Exhibit 10.2.2
Prepared by, and after recording
return to:
Venable LLP
600 Massachusetts Avenue, NW
Washington, DC 20001
Attention: Stephanie L. DeLong, Esq.
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
(MASSACHUSETTS)
(MIDDLESEX COUNTY)
(COURTYARD AT WESTGATE)
Property Address: 105 Westgate Dr, Burlington,
Middlesex County, Massachusetts 01803
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
This MULTIFAMILY MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (as amended, restated, replaced, supplemented, or otherwise modified
from time to time, the “Security Instrument”) dated as of June 16, 2022, is executed by WESTGATE APARTMENTS
BURLINGTON, LLC, a limited liability company organized and existing under the laws of Delaware, as mortgagor (“Borrower”),
to and for the benefit of KEYBANK NATIONAL ASSOCIATION, a national banking association, as mortgagee (“Lender”).
Borrower, Lender and others
are parties to that certain Master Credit Facility Agreement dated as of November 30, 2021 (as amended, restated, replaced, supplemented
or otherwise modified from time to time, the “Loan Agreement”). Lender shall, from time to time, make Advances to Borrower
in accordance with the terms of the Loan Agreement. All Advances made in accordance with the Loan Agreement are referred to, collectively,
as the “Mortgage Loan.”
Borrower,
in consideration of (i) the Mortgage Loan evidenced by (a) that certain Multifamily Note in the original principal amount of $156,000,000
dated as of November 30, 2021, executed by Borrower and others and made payable to the order of Lender, (b) that certain Multifamily
Note in the original principal amount of $80,284,000 dated as of June 16, 2022, executed by Borrower and others and made payable
to the order of Lender, (c) all schedules, riders, allonges, addenda, renewals, extensions, amendments and modifications thereto,
and (d) any additional Multifamily Notes issued from time to time pursuant to the Loan Agreement and all schedules, riders, allonges,
addenda, renewals, extensions, amendments and modifications thereto (individually and collectively, as amended, restated, replaced, supplemented
or otherwise modified from time to time, the “Note”), and (ii) the Loan Agreement, and to secure to Lender the
repayment of the Indebtedness (as defined in this Security Instrument), and all renewals, extensions and modifications thereof, and the
performance of the covenants and agreements of Borrower contained in the Loan Documents (as defined in the Loan Agreement), excluding
the Environmental Indemnity Agreement (as defined in this Security Instrument), irrevocably and unconditionally mortgages, grants, assigns,
remises, releases, warrants and conveys to and for the benefit of Lender, with power of sale, the Mortgaged Property (as defined in this
Security Instrument), including the real property located at the municipal address of 105 Westgate Dr, Burlington, Massachusetts 01803
in the County of Middlesex, Commonwealth of Massachusetts, and described in Exhibit A attached to this Security Instrument
and incorporated by reference (the “Land”), to have and to hold such Mortgaged Property unto Lender and Lender’s
successors and assigns, forever; Borrower hereby releasing, relinquishing and waiving, to the fullest extent allowed by law, all rights
and benefits, if any, under and by virtue of the homestead exemption laws of the Property Jurisdiction (as defined in this Security Instrument),
if applicable. This Security Instrument and all of the grants herein, are made with MORTGAGE COVENANTS within the meaning of M.G.L.c. 183 Section 19.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 1 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
Borrower represents and warrants
that Borrower is lawfully seized of the Mortgaged Property and has the right, power and authority to mortgage, grant, assign, remise,
release, warrant and convey the Mortgaged Property, and that the Mortgaged Property is not encumbered by any Lien (as defined in this
Security Instrument) other than Permitted Encumbrances (as defined in this Security Instrument). Borrower covenants that Borrower will
warrant and defend the title to the Mortgaged Property against all claims and demands other than Permitted Encumbrances.
Borrower and Lender, by its acceptance
hereof, each covenants and agrees as follows:
1. Defined
Terms.
Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Loan Agreement. All terms used and
not specifically defined herein, but which are otherwise defined by the UCC, shall have the meanings assigned to them by the UCC. The
following terms, when used in this Security Instrument, shall have the following meanings:
“Condemnation Action”
means any action or proceeding, however characterized or named, relating to any condemnation or other taking, or conveyance in lieu thereof,
of all or any part of the Mortgaged Property, whether direct or indirect.
“Enforcement Costs”
means all expenses and costs, including reasonable attorneys’ fees and expenses, fees and out-of-pocket expenses of expert witnesses
and costs of investigation, incurred by Lender as a result of any Event of Default under the Loan Agreement or in connection with efforts
to collect any amount due under the Loan Documents, or to enforce the provisions of the Loan Agreement or any of the other Loan Documents,
including those incurred in post-judgment collection efforts and in any bankruptcy or insolvency proceeding (including any action for
relief from the automatic stay of any bankruptcy proceeding or Foreclosure Event) or judicial or non-judicial foreclosure proceeding,
to the extent permitted by law.
“Environmental Indemnity
Agreement” means that certain Environmental Indemnity Agreement dated as of the date of the Loan Agreement, executed by Borrower
to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented, or otherwise modified from time to time.
“Environmental Laws”
has the meaning set forth in the Environmental Indemnity Agreement.
“Event of Default”
has the meaning set forth in the Loan Agreement.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 2 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
“Fixtures”
means all Goods that are so attached or affixed to the Land or the Improvements as to constitute a fixture under the laws of the Property
Jurisdiction.
“Goods”
means all of Borrower’s present and hereafter acquired right, title and interest in all goods which are used now or in the
future in connection with the ownership, management, or operation of the Land or the Improvements or are located on the Land or in the
Improvements, including inventory; furniture; furnishings; machinery, equipment, engines, boilers, incinerators, and installed building
materials; systems and equipment for the purpose of supplying or distributing heating, cooling, electricity, gas, water, air, or light;
antennas, cable, wiring, and conduits used in connection with radio, television, security, fire prevention, or fire detection, or otherwise
used to carry electronic signals; telephone systems and equipment; elevators and related machinery and equipment; fire detection, prevention
and extinguishing systems and apparatus; security and access control systems and apparatus; plumbing systems; water heaters, ranges, stoves,
microwave ovens, refrigerators, dishwashers, garbage disposers, washers, dryers, and other appliances; light fixtures, awnings, storm
windows, and storm doors; pictures, screens, blinds, shades, curtains, and curtain rods; mirrors, cabinets, paneling, rugs, and floor
and wall coverings; fences, trees, and plants; swimming pools; exercise equipment; supplies; tools; books and records (whether in written
or electronic form); websites, URLs, blogs, and social network pages; computer equipment (hardware and software); and other tangible personal
property which is used now or in the future in connection with the ownership, management, or operation of the Land or the Improvements
or are located on the Land or in the Improvements.
“Imposition Deposits”
means deposits in an amount sufficient to accumulate with Lender the entire sum required to pay the Impositions when due.
“Impositions” means
(a) any
water and sewer charges which, if not paid, may result in a lien on all or any part of the Mortgaged Property;
(b) the
premiums for fire and other casualty insurance, liability insurance, rent loss insurance and such other insurance as Lender may require
under the Loan Agreement;
(c) Taxes;
and
(d) amounts
for other charges and expenses assessed against the Mortgaged Property which Lender at any time reasonably deems necessary to protect
the Mortgaged Property, to prevent the imposition of liens on the Mortgaged Property, or otherwise to protect Lender’s interests,
all as reasonably determined from time to time by Lender.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 3 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
“Improvements”
means the buildings, structures, improvements, and alterations now constructed or at any time in the future constructed or placed upon
the Land, including any future replacements, facilities, and additions and other construction on the Land.
“Indebtedness” means the principal
of, interest on, and all other amounts due at any time under the Note, the Loan Agreement, this Security Instrument or any other Loan
Document (other than the Environmental Indemnity Agreement and Guaranty), including Prepayment Premiums, late charges, interest charged
at the Default Rate, and accrued interest as provided in the Loan Agreement and this Security Instrument, advances, costs and expenses
to perform the obligations of Borrower or to protect the Mortgaged Property or the security of this Security Instrument, all other monetary
obligations of Borrower under the Loan Documents (other than the Environmental Indemnity Agreement), including amounts due as a result
of any indemnification obligations, and any Enforcement Costs.
“Land” means
the real property described in Exhibit A.
“Leases”
means all present and future leases, subleases, licenses, concessions or grants or other possessory interests now or hereafter in force,
whether oral or written, covering or affecting the Mortgaged Property, or any portion of the Mortgaged Property (including proprietary
leases or occupancy agreements if Borrower is a cooperative housing corporation), and all modifications, extensions or renewals thereof.
“Lien” means any claim or charge
against property for payment of a debt or an amount owed for services rendered, including any mortgage, deed of trust, deed to secure
debt, security interest, tax lien, any materialman’s or mechanic’s lien, or any lien of a Governmental Authority, including
any lien in connection with the payment of utilities, or any other encumbrance.
“Mortgaged Property” means
all of Borrower’s present and hereafter acquired right, title and interest, if any, in and to all of the following:
(a) the
Land;
(b) the
Improvements;
(c) the
Personalty;
(d) current
and future rights, including air rights, development rights, zoning rights and other similar rights or interests, easements, tenements,
rights-of-way, strips and gores of land, streets, alleys, roads, sewer rights, waters, watercourses, and appurtenances related to or benefitting
the Land or the Improvements, or both, and all rights-of-way, streets, alleys and roads which may have been or may in the future be vacated;
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 4 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(e) insurance
policies relating to the Mortgaged Property (and any unearned premiums) and all proceeds paid or to be paid by any insurer of the Land,
the Improvements, the Personalty, or any other part of the Mortgaged Property, whether or not Borrower obtained the insurance pursuant
to Lender’s requirements;
(f) awards,
payments and other compensation made or to be made by any municipal, state or federal authority with respect to the Land, the Improvements,
the Personalty, or any other part of the Mortgaged Property, including any awards or settlements resulting from (1) Condemnation
Actions, (2) any damage to the Mortgaged Property caused by governmental action that does not result in a Condemnation Action, or
(3) the total or partial taking of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property under
the power of eminent domain or otherwise and including any conveyance in lieu thereof;
(g) contracts,
options and other agreements for the sale of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property entered
into by Borrower now or in the future, including cash or securities deposited to secure performance by parties of their obligations;
(h) Leases
and Lease guaranties, letters of credit and any other supporting obligation for any of the Leases given in connection with any of the
Leases, and all Rents;
(i) earnings,
royalties, accounts receivable, issues and profits from the Land, the Improvements or any other part of the Mortgaged Property, and all
undisbursed proceeds of the Mortgage Loan and, if Borrower is a cooperative housing corporation, maintenance charges or assessments payable
by shareholders or residents;
(j) Imposition
Deposits;
(k) refunds
or rebates of Impositions by any municipal, state or federal authority or insurance company (other than refunds applicable to periods
before the real property tax year in which this Security Instrument is dated);
(l) tenant
security deposits;
(m) names
under or by which any of the above Mortgaged Property may be operated or known, and all trademarks, trade names, and goodwill relating
to any of the Mortgaged Property;
(n) Collateral
Accounts and all Collateral Account Funds;
(o) products,
and all cash and non-cash proceeds from the conversion, voluntary or involuntary, of any of the above into cash or liquidated claims,
and the right to collect such proceeds; and
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 5 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(p) all
of Borrower’s right, title and interest in the oil, gas, minerals, mineral interests, royalties, overriding royalties, production
payments, net profit interests and other interests and estates in, under and on the Mortgaged Property and other oil, gas and mineral
interests with which any of the foregoing interests or estates are pooled or unitized.
“Permitted
Encumbrance” means only the easements, restrictions and other matters listed in a schedule of exceptions to coverage
in the Title Policy and Taxes for the current tax year that are not yet due and payable.
“Personalty” means all of Borrower’s
present and hereafter acquired right, title and interest in all Goods, accounts, choses of action, chattel paper, documents, general intangibles
(including Software), payment intangibles, instruments, investment property, letter of credit rights, supporting obligations, computer
information, source codes, object codes, records and data, all telephone numbers or listings, claims (including claims for indemnity or
breach of warranty), deposit accounts and other property or assets of any kind or nature related to the Land or the Improvements now or
in the future, including operating agreements, surveys, plans and specifications and contracts for architectural, engineering and construction
services relating to the Land or the Improvements, and all other intangible property and rights relating to the operation of, or used
in connection with, the Land or the Improvements, including all governmental permits relating to any activities on the Land.
“Prepayment Premium”
has the meaning set forth in the Loan Agreement.
“Property Jurisdiction”
means the jurisdiction in which the Land is located.
“Rents” means
all rents (whether from residential or non-residential space), revenues and other income from the Land or the Improvements, including
subsidy payments received from any sources, including payments under any “Housing Assistance Payments Contract” or other rental
subsidy agreement (if any), parking fees, laundry and vending machine income and fees and charges for food, health care and other services
provided at the Mortgaged Property, whether now due, past due, or to become due, and tenant security deposits.
“Software”
means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does
not include any computer program that is included in the definition of Goods.
“Taxes” means
all taxes, assessments, vault rentals and other charges, if any, general, special or otherwise, including assessments for schools, public
betterments and general or local improvements, which are levied, assessed or imposed by any public authority or quasi-public authority,
and which, if not paid, may become a lien, on the Land or the Improvements or any taxes upon any Loan Document.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 6 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
“Title Policy”
has the meaning set forth in the Loan Agreement.
“UCC” means
the Uniform Commercial Code in effect in the Property Jurisdiction, as amended from time to time.
“UCC Collateral” means any
or all of that portion of the Mortgaged Property in which a security interest may be granted under the UCC and in which Borrower has any
present or hereafter acquired right, title or interest.
2. Security
Agreement; Fixture Filing.
(a) To
secure to Lender, the repayment of the Indebtedness, and all renewals, extensions and modifications thereof, and the performance of the
covenants and agreements of Borrower contained in the Loan Documents, Borrower hereby pledges, assigns, and grants to Lender a continuing
security interest in the UCC Collateral. This Security Instrument constitutes a security agreement and a financing statement under the
UCC. This Security Instrument also constitutes a financing statement pursuant to the terms of the UCC with respect to any part of the
Mortgaged Property that is or may become a Fixture under applicable law, and will be recorded as a “fixture filing” in accordance
with the UCC. Borrower hereby authorizes Lender to file financing statements, continuation statements and financing statement amendments
in such form as Lender may require to perfect or continue the perfection of this security interest without the signature of Borrower.
If an Event of Default has occurred and is continuing, Lender shall have the remedies of a secured party under the UCC or otherwise provided
at law or in equity, in addition to all remedies provided by this Security Instrument and in any Loan Document. Lender may exercise any
or all of its remedies against the UCC Collateral separately or together, and in any order, without in any way affecting the availability
or validity of Lender’s other remedies. For purposes of the UCC, the debtor is Borrower and the secured party is Lender. The name
and address of the debtor and secured party are set forth after Borrower’s signature below which are the addresses from which information
on the security interest may be obtained.
(b) Borrower
represents and warrants that: (1) Borrower maintains its chief executive office at the location set forth after Borrower’s
signature below, and Borrower will notify Lender in writing of any change in its chief executive office within five (5) days of
such change; (2) Borrower is the record owner of the Mortgaged Property; (3) Borrower’s state of incorporation, organization,
or formation, if applicable, is as set forth on Page 1 of this Security Instrument; (4) Borrower’s exact legal name is
as set forth on Page 1 of this Security Instrument; (5) Borrower’s organizational identification number, if applicable,
is as set forth after Borrower’s signature below; (6) Borrower is the owner of the UCC Collateral subject to no liens, charges
or encumbrances other than the lien hereof; (7) except as expressly provided in the Loan Agreement, the UCC Collateral will not
be removed from the Mortgaged Property without the consent of Lender; and (8) no financing statement covering any of the UCC Collateral
or any proceeds thereof is on file in any public office except pursuant hereto.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 7 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(c) All
property of every kind acquired by Borrower after the date of this Security Instrument which by the terms of this Security Instrument
shall be subject to the lien and the security interest created hereby, shall immediately upon the acquisition thereof by Borrower and
without further conveyance or assignment become subject to the lien and security interest created by this Security Instrument. Nevertheless,
Borrower shall execute, acknowledge, deliver and record or file, as appropriate, all and every such further deeds of trust, mortgages,
deeds to secure debt, security agreements, financing statements, assignments and assurances as Lender shall require for accomplishing
the purposes of this Security Instrument and to comply with the rerecording requirements of the UCC.
3. Assignment of Leases and Rents; Appointment of Receiver; Lender in Possession.
(a) As
part of the consideration for the Indebtedness, Borrower absolutely and unconditionally assigns and transfers to Lender all Leases and
Rents. It is the intention of Borrower to establish present, absolute and irrevocable transfers and assignments to Lender of all Leases
and Rents and to authorize and empower Lender to collect and receive all Rents without the necessity of further action on the part of
Borrower. Borrower and Lender intend the assignments of Leases and Rents to be effective immediately and to constitute absolute present
assignments, and not assignments for additional security only. Only for purposes of giving effect to these absolute assignments of Leases
and Rents, and for no other purpose, the Leases and Rents shall not be deemed to be a part of the Mortgaged Property. However, if these
present, absolute and unconditional assignments of Leases and Rents are not enforceable by their terms under the laws of the Property
Jurisdiction, then each of the Leases and Rents shall be included as part of the Mortgaged Property, and it is the intention of Borrower,
in such circumstance, that this Security Instrument create and perfect a lien on each of the Leases and Rents in favor of Lender, which
liens shall be effective as of the date of this Security Instrument.
(b) Until an Event of Default has occurred and is continuing, but subject to the limitations set forth in the Loan Documents, Borrower
shall have a revocable license to exercise all rights, power and authority granted to Borrower under the Leases (including the right,
power and authority to modify the terms of any Lease, extend or terminate any Lease, or enter into new Leases, subject to the limitations
set forth in the Loan Documents), and to collect and receive all Rents, to hold all Rents in trust for the benefit of Lender, and to apply
all Rents to pay the Monthly Debt Service Payments and the other amounts then due and payable under the other Loan Documents, including
Imposition Deposits, and to pay the current costs and expenses of managing, operating and maintaining the Mortgaged Property, including
utilities and Impositions (to the extent not included in Imposition Deposits), tenant improvements and other capital expenditures. So
long as no Event of Default has occurred and is continuing (and no event which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default has occurred and is continuing), the Rents remaining after application pursuant to the preceding
sentence may be retained and distributed by Borrower free and clear of, and released from, Lender’s rights with respect to Rents
under this Security Instrument.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 8 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(c) If an Event of Default has occurred and is continuing, without the necessity of Lender entering upon and taking and maintaining
control of the Mortgaged Property directly, by a receiver, or by any other manner or proceeding permitted by the laws of the Property
Jurisdiction, the revocable license granted to Borrower pursuant to Section 3(b) shall automatically terminate, and Lender shall
immediately have all rights, powers and authority granted to Borrower under any Lease (including the right, power and authority to modify
the terms of any such Lease, or extend or terminate any such Lease) and, without notice, Lender shall be entitled to all Rents as they
become due and payable, including Rents then due and unpaid. During the continuance of an Event of Default, Borrower authorizes Lender
to collect, sue for and compromise Rents and directs each tenant of the Mortgaged Property to pay all Rents to, or as directed by, Lender,
and Borrower shall, upon Borrower’s receipt of any Rents from any sources, pay the total amount of such receipts to Lender. Although
the foregoing rights of Lender are self-effecting, at any time during the continuance of an Event of Default, Lender may make demand for
all Rents, and Lender may give, and Borrower hereby irrevocably authorizes Lender to give, notice to all tenants of the Mortgaged Property
instructing them to pay all Rents to Lender. No tenant shall be obligated to inquire further as to the occurrence or continuance of an
Event of Default, and no tenant shall be obligated to pay to Borrower any amounts that are actually paid to Lender in response to such
a notice. Any such notice by Lender shall be delivered to each tenant personally, by mail or by delivering such demand to each rental
unit.
(d) If an Event of Default has occurred and is continuing, Lender may, regardless of the adequacy of Lender’s security or the
solvency of Borrower, and even in the absence of waste, enter upon, take and maintain full control of the Mortgaged Property, and may
exclude Borrower and its agents and employees therefrom, in order to perform all acts that Lender, in its discretion, determines to be
necessary or desirable for the operation and maintenance of the Mortgaged Property, including the execution, cancellation or modification
of Leases, the collection of all Rents (including through use of a lockbox, at Lender’s election), the making of repairs to the
Mortgaged Property and the execution or termination of contracts providing for the management, operation or maintenance of the Mortgaged
Property, for the purposes of enforcing this assignment of Rents, protecting the Mortgaged Property or the security of this Security Instrument
and the Mortgage Loan, or for such other purposes as Lender in its discretion may deem necessary or desirable.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 9 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(e) Notwithstanding
any other right provided Lender under this Security Instrument or any other Loan Document, if an Event of Default has occurred and is
continuing, and regardless of the adequacy of Lender’s security or Borrower’s solvency, and without the necessity of giving
prior notice (oral or written) to Borrower, Lender may apply to any court having jurisdiction for the appointment of a receiver for the
Mortgaged Property to take any or all of the actions set forth in Section 3. If Lender elects to seek the appointment of a receiver
for the Mortgaged Property at any time after an Event of Default has occurred and is continuing, Borrower, by its execution of this Security
Instrument, expressly consents to the appointment of such receiver, including the appointment of a receiver ex parte, if permitted
by applicable law. Borrower consents to shortened time consideration of a motion to appoint a receiver. Lender or the receiver, as applicable,
shall be entitled to receive a reasonable fee for managing the Mortgaged Property and such fee shall become an additional part of the
Indebtedness. Immediately upon appointment of a receiver or Lender’s entry upon and taking possession and control of the Mortgaged
Property, possession of the Mortgaged Property and all documents, records (including records on electronic or magnetic media), accounts,
surveys, plans, and specifications relating to the Mortgaged Property, and all security deposits and prepaid Rents, shall be surrendered
to Lender or the receiver, as applicable. If Lender or receiver takes possession and control of the Mortgaged Property, Lender or receiver
may exclude Borrower and its representatives from the Mortgaged Property.
(f) The
acceptance by Lender of the assignments of the Leases and Rents pursuant to this Section 3 shall not at any time or in any event
obligate Lender to take any action under any Loan Document or to expend any money or to incur any expense. Lender shall not be liable
in any way for any injury or damage to person or property sustained by any Person in, on or about the Mortgaged Property. Prior to Lender’s
actual entry upon and taking possession and control of the Land and Improvements, Lender shall not be:
(1) obligated
to perform any of the terms, covenants and conditions contained in any Lease (or otherwise have any obligation with respect to any Lease);
(2) obligated to appear in or defend any action or proceeding relating to any Lease or the Mortgaged Property; or
(3) responsible for the operation, control, care, management or repair of the Mortgaged Property or any portion of the Mortgaged Property.
The execution of this Security
Instrument shall constitute conclusive evidence that all responsibility for the operation, control, care, management and repair of the
Mortgaged Property is and shall be that of Borrower, prior to such actual entry and taking possession and control by Lender of the Land
and Improvements.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 10 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(g) Lender
shall be liable to account only to Borrower and only for Rents actually received by Lender. Lender shall not be liable to Borrower, anyone
claiming under or through Borrower or anyone having an interest in the Mortgaged Property by reason of any act or omission of Lender
under this Section 3, and Borrower hereby releases and discharges Lender from any such liability to the fullest extent permitted
by law, provided that Lender shall not be released from liability that occurs as a result of Lender’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction pursuant to a final, non-appealable court order. If the Rents are not sufficient
to meet the costs of taking control of and managing the Mortgaged Property and collecting the Rents, any funds expended by Lender for
such purposes shall be added to, and become a part of, the principal balance of the Indebtedness, be immediately due and payable, and
bear interest at the Default Rate from the date of disbursement until fully paid. Any entering upon and taking control of the Mortgaged
Property by Lender or the receiver, and any application of Rents as provided in this Security Instrument, shall not cure or waive any
Event of Default or invalidate any other right or remedy of Lender under applicable law or provided for in this Security Instrument or
any Loan Document.
4. Protection
of Lender’s Security.
If Borrower fails to perform
any of its obligations under this Security Instrument or any other Loan Document, or any action or proceeding is commenced that purports
to affect the Mortgaged Property, Lender’s security, rights or interests under this Security Instrument or any Loan Document (including
eminent domain, insolvency, code enforcement, civil or criminal forfeiture, enforcement of Environmental Laws, fraudulent conveyance or
reorganizations or proceedings involving a debtor or decedent), Lender may, at its option, make such appearances, disburse or pay such
sums and take such actions, whether before or after an Event of Default or whether directly or to any receiver for the Mortgaged Property,
as Lender reasonably deems necessary to perform such obligations of Borrower and to protect the Mortgaged Property or Lender’s security,
rights or interests in the Mortgaged Property or the Mortgage Loan, including:
(a) paying fees and out-of-pocket expenses of attorneys, accountants, inspectors and consultants;
(b) entering upon the Mortgaged Property to make repairs or secure the Mortgaged Property;
(c) obtaining (or force-placing) the insurance required by the Loan Documents; and
(d) paying
any amounts required under any of the Loan Documents that Borrower has failed to pay.
Any
amounts so disbursed or paid by Lender shall be added to, and become part of, the principal balance of the Indebtedness, be immediately
due and payable and bear interest at the Default Rate from the date of disbursement until fully paid. The provisions of this Section 4
shall not be deemed to obligate or require Lender to incur any expense or take any action.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 11 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
5. Default;
Acceleration; Remedies.
(a) If
an Event of Default has occurred and is continuing, Lender, at its option, may declare the Indebtedness to be immediately due and payable
without further demand, and may either with or without entry or taking possession as herein provided or otherwise, proceed by suit or
suits at law or in equity or any other appropriate proceeding or remedy (1) to enforce payment of the Mortgage Loan; (2) to foreclose
this Security Instrument judicially or non-judicially by the STATUTORY POWER OF SALE granted herein; (3) to enforce or exercise any right
under any Loan Document; and (4) to pursue any one (1) or more other remedies provided in this Security Instrument or in any other
Loan Document or otherwise afforded by applicable law. Each right and remedy provided in this Security Instrument or any other Loan Document
is distinct from all other rights or remedies under this Security Instrument or any other Loan Document or otherwise afforded by applicable
law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order. Borrower has the right
to bring an action to assert the nonexistence of an Event of Default or any other defense of Borrower to acceleration and sale.
(b) This
Security Instrument is made upon the STATUTORY CONDITION provided for by M.G.L.c. 183 Section 20, and upon the further
condition that all covenants and agreements of Borrower contained in this Security Instrument shall be kept and fully performed, and
upon any breach of such covenants and agreements or if an Event of Default shall exist and continue under this Security Instrument, Lender
shall have, as to the Mortgaged Property, the STATUTORY POWER OF SALE. Borrower acknowledges that the STATUTORY POWER OF SALE granted
in this Security Instrument may be exercised or directed by Lender without prior judicial hearing. In the event Lender invokes the power
of sale:
(1) Lender shall send to Borrower and any other Persons required to receive such notice, written notice of Lender’s election
to cause the Mortgaged Property to be sold. Borrower hereby authorizes and empowers Lender to take possession of the Mortgaged Property,
or any part thereof, and hereby grants to Lender a STATUTORY POWER OF SALE and authorizes and empowers Lender to sell (or, in the case
of the default of any purchaser, to resell) the Mortgaged Property or any part thereof, in compliance with applicable law, including compliance
with any and all notice and timing requirements for such sale;
(2) Lender
shall have the authority to determine the terms of the sale, subject to applicable law. In connection with any such sale, the whole of
the Mortgaged Property may be sold in one (1) parcel as an entirety or in separate lots or parcels at the same or different times.
Lender shall have the right to become the purchaser at any such sale. Lender shall be entitled to receive costs and expenses from such
sale not to exceed the amount permitted by applicable law;
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 12 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(3) within
a reasonable time after the sale, Lender shall deliver to the purchaser of the Mortgaged Property a deed or such other appropriate conveyance
document conveying the Mortgaged Property so sold without any express or implied covenant or warranty. The recitals in such deed or document
shall be prima facie evidence of the truth of the statements made in those recitals; and
(4) the outstanding principal amount of the Mortgage Loan and the other Indebtedness, if not previously due, shall be and become immediately
due and payable without demand or notice of any kind. If the Mortgaged Property is sold for an amount less than the amount outstanding
under the Indebtedness, the deficiency shall be determined by the purchase price at the sale or sales. Borrower waives all rights, claims,
and defenses with respect to Lender’s ability to obtain a deficiency judgment.
(c) Borrower
acknowledges and agrees that the proceeds of any sale shall be applied as determined by Lender unless otherwise required by applicable
law.
(d) In
connection with the exercise of Lender’s rights and remedies under this Security Instrument and any other Loan Document, there
shall be allowed and included as Indebtedness: (1) all expenditures and expenses authorized by applicable law and all other expenditures
and expenses which may be paid or incurred by or on behalf of Lender for reasonable legal fees, appraisal fees, outlays for documentary
and expert evidence, stenographic charges and publication costs; (2) all expenses of any environmental site assessments, environmental
audits, environmental remediation costs, appraisals, surveys, engineering studies, wetlands delineations, flood plain studies, and any
other similar testing or investigation deemed necessary or advisable by Lender incurred in preparation for, contemplation of or in connection
with the exercise of Lender’s rights and remedies under the Loan Documents; and (3) costs (which may be reasonably estimated as
to items to be expended in connection with the exercise of Lender’s rights and remedies under the Loan Documents) of procuring
all abstracts of title, title searches and examinations, title insurance policies, and similar data and assurance with respect to title
as Lender may deem reasonably necessary either to prosecute any suit or to evidence the true conditions of the title to or the value
of the Mortgaged Property to bidders at any sale which may be held in connection with the exercise of Lender’s rights and remedies
under the Loan Documents. All expenditures and expenses of the nature mentioned in this Section 5 and such other expenses and fees
as may be incurred in the protection of the Mortgaged Property and rents and income therefrom and the maintenance of the lien of this
Security Instrument, including the fees of any attorney employed by Lender in any litigation or proceedings affecting this Security Instrument,
the Note, the other Loan Documents, or the Mortgaged Property, including bankruptcy proceedings, any Foreclosure Event, or in preparation
of the commencement or defense of any proceedings or threatened suit or proceeding, or otherwise in dealing specifically therewith, shall
be so much additional Indebtedness and shall be immediately due and payable by Borrower, with interest thereon at the Default Rate until
paid.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 13 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(e) Any
action taken by Lender pursuant to the provisions of this Section 5 shall comply with the laws of the Property Jurisdiction. Such
applicable laws shall take precedence over the provisions of this Section 5, but shall not invalidate or render unenforceable any
other provision of any Loan Document that can be construed in a manner consistent with any applicable law. If any provision of this Security
Instrument shall grant to Lender (including Lender acting as a mortgagee-in-possession), or a receiver appointed pursuant to the provisions
of this Security Instrument any powers, rights or remedies prior to, upon, during the continuance of or following an Event of Default
that are more limited than the powers, rights, or remedies that would otherwise be vested in such party under any applicable law in the
absence of said provision, such party shall be vested with the powers, rights, and remedies granted in such applicable law to the full
extent permitted by law.
6. Waiver
of Statute of Limitations and Marshaling.
Borrower hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the lien of this Security Instrument or to any action brought
to enforce any Loan Document. Notwithstanding the existence of any other security interests in the Mortgaged Property held by Lender or
by any other party, Lender shall have the right to determine the order in which any or all of the Mortgaged Property shall be subjected
to the remedies provided in this Security Instrument and/or any other Loan Document or by applicable law. Lender shall have the right
to determine the order in which any or all portions of the Indebtedness are satisfied from the proceeds realized upon the exercise of
such remedies. Borrower, for itself and all who may claim by, through or under it, and any party who now or in the future acquires a security
interest in the Mortgaged Property and who has actual or constructive notice of this Security Instrument, waives any and all right to
require the marshaling of assets or to require that any of the Mortgaged Property be sold in the inverse order of alienation or that any
of the Mortgaged Property be sold in parcels (at the same time or different times) in connection with the exercise of any of the remedies
provided in this Security Instrument or any other Loan Document, or afforded by applicable law.
7. Waiver
of Redemption; Rights of Tenants.
(a) Borrower
hereby covenants and agrees that it will not at any time apply for, insist upon, plead, avail itself, or in any manner claim or take
any advantage of, any appraisement, stay, exemption or extension law or any so-called “Moratorium Law” now or at any time
hereafter enacted or in force in order to prevent or hinder the enforcement or foreclosure of this Security Instrument. Without limiting
the foregoing:
(1) Borrower,
for itself and all Persons who may claim by, through or under Borrower, hereby expressly waives any so-called “Moratorium Law”
and any and all rights of reinstatement and redemption, if any, under any order or decree of foreclosure of this Security Instrument,
it being the intent hereof that any and all such “Moratorium Laws”, and all rights of reinstatement and redemption of Borrower
and of all other Persons claiming by, through or under Borrower are and shall be deemed to be hereby waived to the fullest extent permitted
by the laws of the Property Jurisdiction;
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 14 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(2) Borrower
shall not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any right, power or remedy herein
or otherwise granted or delegated to Lender but will suffer and permit the execution of every such right, power and remedy as though
no such law or laws had been made or enacted; and
(3) if
Borrower is a trust, Borrower represents that the provisions of this Section 7 (including the waiver of reinstatement and redemption
rights) were made at the express direction of Borrower’s beneficiaries and the persons having the power of direction over Borrower,
and are made on behalf of the trust estate of Borrower and all beneficiaries of Borrower, as well as all other persons mentioned above.
(b) Lender
shall have the right to foreclose subject to the rights of any tenant or tenants of the Mortgaged Property having an interest in the
Mortgaged Property prior to that of Lender. The failure to join any such tenant or tenants of the Mortgaged Property as party defendant
or defendants in any such civil action or the failure of any decree of foreclosure and sale to foreclose their rights shall not be asserted
by Borrower as a defense in any civil action instituted to collect the Indebtedness, or any part thereof or any deficiency remaining
unpaid after foreclosure and sale of the Mortgaged Property, any statute or rule of law at any time existing to the contrary notwithstanding.
8. Notice.
(a) All
notices under this Security Instrument shall be:
(1) in writing, and shall be (A) delivered, in person, (B) mailed, postage prepaid, either by registered or certified delivery, return
receipt requested, or (C) sent by overnight express courier;
(2) addressed to the intended recipient at its respective address set forth at the end of this Security Instrument; and
(3) deemed
given on the earlier to occur of:
(A) the date when the notice is received by the addressee; or
(B) if
the recipient refuses or rejects delivery, the date on which the notice is so refused or rejected, as conclusively established by the
records of the United States Postal Service or such express courier service.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 15 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(b) Any
party to this Security Instrument may change the address to which notices intended for it are to be directed by means of notice given
to the other party in accordance with this Section 8.
(c) Any
required notice under this Security Instrument which does not specify how notices are to be given shall be given in accordance with this
Section 8.
9. Mortgagee-in-Possession.
Borrower acknowledges and
agrees that the exercise by Lender of any of the rights conferred in this Security Instrument shall not be construed to make Lender a
mortgagee-in-possession of the Mortgaged Property so long as Lender has not itself entered into actual possession of the Land and Improvements.
10. Release.
Upon payment of the Indebtedness,
Lender shall discharge this Security Instrument. Borrower shall pay Lender’s reasonable costs incurred in discharging this Security
Instrument.
11. Governing Law; Consent to Jurisdiction and Venue.
This Security Instrument shall
be governed by the laws of the Property Jurisdiction without giving effect to any choice of law provisions thereof that would result in
the application of the laws of another jurisdiction. Borrower agrees that any controversy arising under or in relation to this Security
Instrument shall be litigated exclusively in the Property Jurisdiction. The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all controversies that arise under or in relation to any security
for the Indebtedness. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation and waives
any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.
12. Miscellaneous Provisions.
(a) This
Security Instrument shall bind, and the rights granted by this Security Instrument shall benefit, the successors and assigns of Lender.
This Security Instrument shall bind, and the obligations granted by this Security Instrument shall inure to, any permitted successors
and assigns of Borrower under the Loan Agreement. If more than one (1) person or entity signs this Security Instrument as Borrower,
the obligations of such persons and entities shall be joint and several. The relationship between Lender and Borrower shall be solely
that of creditor and debtor, respectively, and nothing contained in this Security Instrument shall create any other relationship between
Lender and Borrower. No creditor of any party to this Security Instrument and no other person shall be a third party beneficiary of this
Security Instrument or any other Loan Document.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 16 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(b) The
invalidity or unenforceability of any provision of this Security Instrument or any other Loan Document shall not affect the validity
or enforceability of any other provision of this Security Instrument or of any other Loan Document, all of which shall remain in full
force and effect. This Security Instrument contains the complete and entire agreement among the parties as to the matters covered, rights
granted and the obligations assumed in this Security Instrument. This Security Instrument may not be amended or modified except by written
agreement signed by the parties hereto.
(c) The
following rules of construction shall apply to this Security Instrument:
(1) The
captions and headings of the sections of this Security Instrument are for convenience only and shall be disregarded in construing this
Security Instrument.
(2) Any
reference in this Security Instrument to an “Exhibit” or “Schedule” or a “Section” or an “Article”
shall, unless otherwise explicitly provided, be construed as referring, respectively, to an exhibit or schedule attached to this Security
Instrument or to a Section or Article of this Security Instrument.
(3) Any
reference in this Security Instrument to a statute or regulation shall be construed as referring to that statute or regulation as amended
from time to time.
(4) Use of the singular in this Security Instrument includes the plural and use of the plural includes the singular.
(5) As
used in this Security Instrument, the term “including” means “including, but not limited to” or “including,
without limitation,” and is for example only, and not a limitation.
(6) Whenever
Borrower’s knowledge is implicated in this Security Instrument or the phrase “to Borrower’s knowledge” or a similar
phrase is used in this Security Instrument, Borrower’s knowledge or such phrase(s) shall be interpreted to mean to the best of
Borrower’s knowledge after reasonable and diligent inquiry and investigation.
(7) Unless otherwise provided in this Security Instrument, if Lender’s approval, designation, determination, selection, estimate,
action or decision is required, permitted or contemplated hereunder, such approval, designation, determination, selection, estimate, action
or decision shall be made in Lender’s sole and absolute discretion.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 17 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
(8) All
references in this Security Instrument to a separate instrument or agreement shall include such instrument or agreement as the same may
be amended or supplemented from time to time pursuant to the applicable provisions thereof.
(9) “Lender may” shall mean at Lender’s discretion, but shall not be an obligation.
13. Time is of the Essence.
Borrower agrees that, with
respect to each and every obligation and covenant contained in this Security Instrument and the other Loan Documents, time is of the essence.
14. WAIVER OF TRIAL BY JURY.
TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH
RESPECT TO ANY ISSUE ARISING OUT OF THIS SECURITY INSTRUMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER THAT IS TRIABLE
OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH OF BORROWER AND LENDER, KNOWINGLY AND VOLUNTARILY
WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED
EXHIBITS. The following Exhibits are attached to this Security Instrument and incorporated fully herein by reference:
| x | Exhibit A |
Description of the Land (required) |
| x | Exhibit B |
Modifications to Security Instrument (Master Credit Facility Agreement) |
[Remainder of Page Intentionally Blank]
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page 18 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
IN
WITNESS WHEREOF, Borrower has signed and delivered this Security Instrument under seal (where applicable) or has caused this
Security Instrument to be signed and delivered by its duly authorized representative under seal (where applicable). Where applicable law
so provides, Borrower intends that this Security Instrument shall be deemed to be signed and delivered as a sealed instrument.
| |
BORROWER: |
| |
|
| |
WESTGATE
APARTMENTS BURLINGTON, LLC, |
| |
a
Delaware limited liability company |
| |
|
| |
By: |
NewReal, Inc., |
| |
|
a Massachusetts corporation |
| |
|
its Manager |
| |
|
| |
|
By: |
|
(SEAL) |
| |
|
|
|
|
| |
|
Name: |
Ronald Brown |
| |
|
Title: |
President |
| |
|
| |
|
By: |
|
(SEAL) |
| |
|
|
|
|
| |
|
Name: |
Jameson Brown |
| |
|
Title: |
Treasurer |
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page S-1 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Ronald Brown, the President of
NewReal, Inc., a Massachusetts corporation, the Manager of Westgate Apartments Burlington, LLC, a Delaware limited liability company,
proved to me through satisfactory evidence of identification, which were ______________________________, to be the person whose name is
signed on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose or is
the free act and deed of the party signing the document.
__________________________________
Notary Public
My Commission Expires:_________________
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Jameson Brown, the Treasurer of
NewReal, Inc., a Massachusetts corporation, the Manager of Westgate Apartments Burlington, LLC, a Delaware limited liability company,
proved to me through satisfactory evidence of identification, which were ______________________________, to be the person whose name is
signed on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose or is
the free act and deed of the party signing the document.
__________________________________
Notary Public
My Commission Expires:_________________
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page S-2 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
| |
The name, chief executive office and organizational
identification number of Borrower (as Debtor under any applicable Uniform Commercial Code) are:
Debtor Name/Record Owner: Westgate Apartments Burlington,
LLC
Debtor Chief Executive Office Address:
c/o The Hamilton Company, Inc.
39 Brighton Avenue
Boston, Massachusetts 02134
Attn: Jameson Brown, CEO and Andrew Bloch, CFO
Debtor Organizational ID Number: 3892866 |
| |
|
| |
The name and chief executive office of
Lender (as Secured Party) are:
Secured Party Name: KeyBank National Association
Secured Party Chief Executive Office Address:
127 Public Square
Cleveland, Ohio 44114
Lender Notice Address:
KeyBank Real Estate Capital - Servicing Department
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Mail code: KS-01-11-0501
Attention: Servicing Manager |
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page S-3 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
COURTYARD AT WESTGATE
EXHIBIT A
The land on Beacon Street, Burlington and Pearl
Street, Woburn, Middlesex County, Massachusetts, more particularly shown as Lot F on a "Plan of Land Showing Proposed Easements in
Burlington/Woburn, MA" dated February 22, 1999, revised March 17, 1999 by Selwyn and Kirwin Associates, recorded with said Deeds
in Book 29966, Page 289, more particularly described as follows:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PREMISES
AT A POINT ON PEARL STREET;
THENCE, South 80° 29’ 00” West
108.39’ by Pearl Street to a point;
THENCE, North 33° 02' 38” East 9.57’
by Beacon Street to a point;
THENCE, South 84° 39’ 42” West
7.04’ by Beacon Street to a point;
THENCE, North 01° 35’ 40" East
163.55’ to a point;
THENCE, North 00° 20’ 50" West
127.48’ to a point;
THENCE, North 05° 55’ 20” West
101.39’ to a point;
THENCE, North 10° 58’ 00” West
70.78’ to a point;
THENCE, North 69° 06' 30” West 71.65’
to a point;
THENCE, North 45° 35’ 10” East
196.34’ to a point;
THENCE, South 89° 41’ 30” East
115.50 to a point;
THENCE, North 21° 41’ 30” West
165.00’ to a point;
THENCE, North 73° 08’ 30” East
280.50’ to a point;
THENCE, South 41° 16’ 30” East
30 00’ to a point;
THENCE, South 11° 14’ 50” East
253 93’ to a point;
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page A-1 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
THENCE, South 80° 09’ 29” West
141. 62’ to a point;
THENCE, South 32° 18’ 34” West
82 29’ to a point;
THENCE, North 56° 58’ 40” West
203 89’ to a point;
THENCE, North 89° 41’ 30” West
18 85’ to a point;
THENCE, South 33° 02’ 30” West
140 69’ to a point;
THENCE, South 10° 58’ 00” East
106 41’ to a point;
THENCE, South 57° 33’ 07” East
200 58’ to a point;
THENCE, South 33° 02' 38” West 264.00’
to a point;
THENCE, by a curve to the left with radius of
23.33’ a distance of 47.18’;
THENCE, South 82° 50’ 33” East
51.49’ to the point of beginning.
Containing 129.077 square feet of land according
to said plan.
Together with the rights and easements as set
forth in a Cross Easement Agreement between New England Realty Associates Limited Partnership and Westgate Apartments, LLC dated March
24, 1999 and recorded in the Registry in Book 29966, Page 302 and filed as Document No. 1101724.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page A-2 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
EXHIBIT B
MODIFICATIONS TO SECURITY INSTRUMENT
(Master Credit Facility Agreement)
The foregoing Security Instrument
is hereby modified as follows:
1. Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Security Instrument.
2. Section 5 of the Security Instrument is hereby amended by replacing the first word of paragraph (a) “If” with
the phrase “Subject to the terms of the Loan Agreement, if.”
3. Section 10
of the Security Instrument is hereby amended and restated as follows:
10. Release.
Reference is hereby made
to Section 2.10 (Collateral Events) of the Loan Agreement. Subject to the terms, conditions and limitations of such Article, Borrower
is entitled to obtain a release of this Security Instrument. If the original Lender named in this Security Instrument, or any successor,
assignee or transferee to the original Lender’s interest in this Security Instrument, assigns or otherwise disposes of its interest
in this Security Instrument and the Note, then upon such assignment or other disposition all liabilities and obligations to release the
Mortgaged Property covered by this Security Instrument on the part of the original Lender, or such successor Lender, which accrue after
such assignment or disposition shall cease and terminate and each successor Lender shall, without further agreement, be bound by Lender’s
obligation to release the Mortgaged Property when obligated to do so under the Loan Agreement, but only during the period of such successor
Lender’s ownership of the interest in this Security Instrument and the Note. PROVIDED ALWAYS, and this Security Instrument is upon
the express condition that, if Borrower pays to Lender the entire unpaid principal balance of the Note, the interest thereon and all other
sums payable by Borrower to Lender as are secured by this Security Instrument, in accordance with the provisions of the Loan Agreement,
the Note, this Security Instrument and the other Loan Documents, at the times and in the manner specified, without offset, deduction,
fraud or delay, and Borrower complies with all the agreements, conditions, covenants, provisions and stipulations contained in the Loan
Agreement, the Note, this Security Instrument and the other Loan Documents, then this Security Instrument and the estate hereby granted
shall cease and become void and Lender shall cancel this Security Instrument.
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page B-1 |
Massachusetts
(Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
4. Section 11 of the Security Instrument is hereby amended and restated as follows:
11. Governing
Law; Consent to Jurisdiction and Venue.
The provisions of Section 15.01
of the Loan Agreement (entitled Choice of Law; Consent to Jurisdiction) are hereby incorporated into this Security Instrument by this
reference to the fullest extent as if the text of such Section were set forth in its entirety herein and, additionally, those provisions
relating to the waiver of jury trial set forth in Section 15.02 of the Loan Agreement shall be deemed to supplement those provisions contained
in Section 14 of this Security Instrument.
5. The following section is hereby added to the Security Instrument as Section 15 (Substitution):
15. Substitution.
The provisions of Section
2.10 (Collateral Events) of the Loan Agreement are hereby incorporated by reference as if such provisions were set forth in their entirety
herein.
6. The following section is hereby added to the Security Instrument as Section 16 (Remedies Against Other Collateral):
16. Remedies
Against Other Collateral.
Borrower hereby acknowledges
that the Indebtedness is also secured by liens on collateral which may be located in jurisdictions other than the Property Jurisdiction.
Borrower further agrees and consents that upon the occurrence and during the continuance of an Event of Default, Lender shall have the
right, in its sole and absolute discretion, to exercise any and all rights and remedies in and under any of the Loan Documents, including
the right to proceed, at the same or at different times, to foreclose any or all liens against such collateral (or sell such collateral
under power of sale) in accordance with the terms of this Security Instrument or any other Security Instrument, by any proceedings appropriate
in the jurisdictions where such collateral is located, and that no enforcement action taking place in any jurisdiction shall preclude
or bar enforcement in any other jurisdiction. Any Foreclosure Event brought in any jurisdiction in which collateral is located may be
brought and prosecuted as to any part of such collateral without regard to the fact that a Foreclosure Event has not been instituted elsewhere
on any other part of the collateral for the Indebtedness. No notice, except as may be expressly required by the Loan Documents or by applicable
law, shall be required to be given to Borrower in connection with (a) the occurrence of such Event of Default, or (b) Lender’s
exercise of any and all of its rights or remedies after the occurrence of such Event of Default.
[Remainder f Page Intentionally
Blank]
| Fannie Mae Multifamily Security Instrument | Form 6025.MA | Page B-2 |
Massachusetts (Courtyard at Westgate, Middlesex
County) | 06-12 | © 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) | | |
Prepared by, and after recording
return to:
Venable LLP
600 Massachusetts Avenue, NW
Washington, DC 20001
Attention: Stephanie L. DeLong, Esq.
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES
AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
(MASSACHUSETTS)
(MIDDLESEX COUNTY)
(HAMILTON VILLAGE)
Property
Address: 9 School St, Framingham, Middlesex County, Massachusetts 01701
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
|
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES
AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
This MULTIFAMILY MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (as amended, restated, replaced, supplemented, or otherwise modified
from time to time, the “Security Instrument”) dated as of June 16, 2022, is executed by SCHOOL STREET 9, LLC,
a limited liability company organized and existing under the laws of Delaware, as mortgagor (“Borrower”), to and for
the benefit of KEYBANK NATIONAL ASSOCIATION, a national banking association, as mortgagee (“Lender”).
Borrower,
Lender and others are parties to that certain Master Credit Facility Agreement dated as of November 30, 2021 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”). Lender shall, from
time to time, make Advances to Borrower in accordance with the terms of the Loan Agreement. All Advances made in accordance with the
Loan Agreement are referred to, collectively, as the “Mortgage Loan.”
Borrower,
in consideration of (i) the Mortgage Loan evidenced by (a) that certain Multifamily Note in the original principal amount of
$156,000,000 dated as of November 30, 2021, executed by Borrower and others and made payable to the order of Lender, (b) that
certain Multifamily Note in the original principal amount of $80,284,000 dated as of June 16, 2022, executed by Borrower and others
and made payable to the order of Lender, (c) all schedules, riders, allonges, addenda, renewals, extensions, amendments and modifications
thereto, and (d) any additional Multifamily Notes issued from time to time pursuant to the Loan Agreement and all schedules, riders,
allonges, addenda, renewals, extensions, amendments and modifications thereto (individually and collectively, as amended, restated, replaced,
supplemented or otherwise modified from time to time, the “Note”), and (ii) the Loan Agreement, and to secure
to Lender the repayment of the Indebtedness (as defined in this Security Instrument), and all renewals, extensions and modifications
thereof, and the performance of the covenants and agreements of Borrower contained in the Loan Documents (as defined in the Loan Agreement),
excluding the Environmental Indemnity Agreement (as defined in this Security Instrument), irrevocably and unconditionally mortgages,
grants, assigns, remises, releases, warrants and conveys to and for the benefit of Lender, with power of sale, the Mortgaged Property
(as defined in this Security Instrument), including the real property located at the municipal address of 9 School St, Framingham, Massachusetts
01701 in the County of Middlesex, Commonwealth of Massachusetts, and described in Exhibit A attached to this Security Instrument
and incorporated by reference (the “Land”), to have and to hold such Mortgaged Property unto Lender and Lender’s
successors and assigns, forever; Borrower hereby releasing, relinquishing and waiving, to the fullest extent allowed by law, all rights
and benefits, if any, under and by virtue of the homestead exemption laws of the Property Jurisdiction (as defined in this Security Instrument),
if applicable. This Security Instrument and all of the grants herein, are made with MORTGAGE COVENANTS within the meaning of M.G.L.c. 183 Section 19.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 1 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
Borrower represents and warrants
that Borrower is lawfully seized of the Mortgaged Property and has the right, power and authority to mortgage, grant, assign, remise,
release, warrant and convey the Mortgaged Property, and that the Mortgaged Property is not encumbered by any Lien (as defined in this
Security Instrument) other than Permitted Encumbrances (as defined in this Security Instrument). Borrower covenants that Borrower will
warrant and defend the title to the Mortgaged Property against all claims and demands other than Permitted Encumbrances.
Borrower and Lender, by its acceptance hereof,
each covenants and agrees as follows:
1.
Defined Terms.
Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Loan Agreement. All terms used and
not specifically defined herein, but which are otherwise defined by the UCC, shall have the meanings assigned to them by the UCC. The
following terms, when used in this Security Instrument, shall have the following meanings:
“Condemnation Action” means
any action or proceeding, however characterized or named, relating to any condemnation or other taking, or conveyance in lieu thereof,
of all or any part of the Mortgaged Property, whether direct or indirect.
“Enforcement Costs” means
all expenses and costs, including reasonable attorneys’ fees and expenses, fees and out-of-pocket expenses of expert witnesses
and costs of investigation, incurred by Lender as a result of any Event of Default under the Loan Agreement or in connection with efforts
to collect any amount due under the Loan Documents, or to enforce the provisions of the Loan Agreement or any of the other Loan Documents,
including those incurred in post-judgment collection efforts and in any bankruptcy or insolvency proceeding (including any action for
relief from the automatic stay of any bankruptcy proceeding or Foreclosure Event) or judicial or non-judicial foreclosure proceeding,
to the extent permitted by law.
“Environmental Indemnity Agreement”
means that certain Environmental Indemnity Agreement dated as of the date of the Loan Agreement, executed by Borrower to and for the
benefit of Lender, as the same may be amended, restated, replaced, supplemented, or otherwise modified from time to time.
“Environmental Laws” has the
meaning set forth in the Environmental Indemnity Agreement.
“Event of Default” has the
meaning set forth in the Loan Agreement.
“Fixtures” means all Goods
that are so attached or affixed to the Land or the Improvements as to constitute a fixture under the laws of the Property Jurisdiction.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 2 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
“Goods”
means all of Borrower’s present and hereafter acquired right, title and interest in all goods which are used now or in the
future in connection with the ownership, management, or operation of the Land or the Improvements or are located on the Land or in the
Improvements, including inventory; furniture; furnishings; machinery, equipment, engines, boilers, incinerators, and installed building
materials; systems and equipment for the purpose of supplying or distributing heating, cooling, electricity, gas, water, air, or light;
antennas, cable, wiring, and conduits used in connection with radio, television, security, fire prevention, or fire detection, or otherwise
used to carry electronic signals; telephone systems and equipment; elevators and related machinery and equipment; fire detection, prevention
and extinguishing systems and apparatus; security and access control systems and apparatus; plumbing systems; water heaters, ranges,
stoves, microwave ovens, refrigerators, dishwashers, garbage disposers, washers, dryers, and other appliances; light fixtures, awnings,
storm windows, and storm doors; pictures, screens, blinds, shades, curtains, and curtain rods; mirrors, cabinets, paneling, rugs, and
floor and wall coverings; fences, trees, and plants; swimming pools; exercise equipment; supplies; tools; books and records (whether
in written or electronic form); websites, URLs, blogs, and social network pages; computer equipment (hardware and software); and other
tangible personal property which is used now or in the future in connection with the ownership, management, or operation of the Land
or the Improvements or are located on the Land or in the Improvements.
“Imposition Deposits” means
deposits in an amount sufficient to accumulate with Lender the entire sum required to pay the Impositions when due.
“Impositions” means
(a) any
water and sewer charges which, if not paid, may result in a lien on all or any part of the Mortgaged Property;
(b) the
premiums for fire and other casualty insurance, liability insurance, rent loss insurance and such other insurance as Lender may require
under the Loan Agreement;
(c) Taxes;
and
(d) amounts
for other charges and expenses assessed against the Mortgaged Property which Lender at any time reasonably deems necessary to protect
the Mortgaged Property, to prevent the imposition of liens on the Mortgaged Property, or otherwise to protect Lender’s interests,
all as reasonably determined from time to time by Lender.
“Improvements” means the buildings,
structures, improvements, and alterations now constructed or at any time in the future constructed or placed upon the Land, including
any future replacements, facilities, and additions and other construction on the Land.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 3 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
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“Indebtedness” means the principal
of, interest on, and all other amounts due at any time under the Note, the Loan Agreement, this Security Instrument or any other Loan
Document (other than the Environmental Indemnity Agreement and Guaranty), including Prepayment Premiums, late charges, interest charged
at the Default Rate, and accrued interest as provided in the Loan Agreement and this Security Instrument, advances, costs and expenses
to perform the obligations of Borrower or to protect the Mortgaged Property or the security of this Security Instrument, all other monetary
obligations of Borrower under the Loan Documents (other than the Environmental Indemnity Agreement), including amounts due as a result
of any indemnification obligations, and any Enforcement Costs.
“Land” means the real property
described in Exhibit A.
“Leases” means all present
and future leases, subleases, licenses, concessions or grants or other possessory interests now or hereafter in force, whether oral or
written, covering or affecting the Mortgaged Property, or any portion of the Mortgaged Property (including proprietary leases or occupancy
agreements if Borrower is a cooperative housing corporation), and all modifications, extensions or renewals thereof.
“Lien” means any claim or
charge against property for payment of a debt or an amount owed for services rendered, including any mortgage, deed of trust, deed to
secure debt, security interest, tax lien, any materialman’s or mechanic’s lien, or any lien of a Governmental Authority,
including any lien in connection with the payment of utilities, or any other encumbrance.
“Mortgaged Property” means
all of Borrower’s present and hereafter acquired right, title and interest, if any, in and to all of the following:
(a) the
Land;
(b) the
Improvements;
(c) the
Personalty;
(d) current
and future rights, including air rights, development rights, zoning rights and other similar rights or interests, easements, tenements,
rights-of-way, strips and gores of land, streets, alleys, roads, sewer rights, waters, watercourses, and appurtenances related to or
benefitting the Land or the Improvements, or both, and all rights-of-way, streets, alleys and roads which may have been or may in the
future be vacated;
(e) insurance
policies relating to the Mortgaged Property (and any unearned premiums) and all proceeds paid or to be paid by any insurer of the Land,
the Improvements, the Personalty, or any other part of the Mortgaged Property, whether or not Borrower obtained the insurance pursuant
to Lender’s requirements;
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 4 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(f) awards,
payments and other compensation made or to be made by any municipal, state or federal authority with respect to the Land, the Improvements,
the Personalty, or any other part of the Mortgaged Property, including any awards or settlements resulting from (1) Condemnation
Actions, (2) any damage to the Mortgaged Property caused by governmental action that does not result in a Condemnation Action, or
(3) the total or partial taking of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property under
the power of eminent domain or otherwise and including any conveyance in lieu thereof;
(g) contracts,
options and other agreements for the sale of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property
entered into by Borrower now or in the future, including cash or securities deposited to secure performance by parties of their obligations;
(h) Leases
and Lease guaranties, letters of credit and any other supporting obligation for any of the Leases given in connection with any of the
Leases, and all Rents;
(i) earnings,
royalties, accounts receivable, issues and profits from the Land, the Improvements or any other part of the Mortgaged Property, and all
undisbursed proceeds of the Mortgage Loan and, if Borrower is a cooperative housing corporation, maintenance charges or assessments payable
by shareholders or residents;
(j) Imposition
Deposits;
(k) refunds
or rebates of Impositions by any municipal, state or federal authority or insurance company (other than refunds applicable to periods
before the real property tax year in which this Security Instrument is dated);
(l) tenant
security deposits;
(m) names
under or by which any of the above Mortgaged Property may be operated or known, and all trademarks, trade names, and goodwill relating
to any of the Mortgaged Property;
(n) Collateral
Accounts and all Collateral Account Funds;
(o) products,
and all cash and non-cash proceeds from the conversion, voluntary or involuntary, of any of the above into cash or liquidated claims,
and the right to collect such proceeds; and
(p) all
of Borrower’s right, title and interest in the oil, gas, minerals, mineral interests, royalties, overriding royalties, production
payments, net profit interests and other interests and estates in, under and on the Mortgaged Property and other oil, gas and mineral
interests with which any of the foregoing interests or estates are pooled or unitized.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 5 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
“Permitted
Encumbrance” means only the easements, restrictions and other matters listed in a schedule of exceptions to coverage
in the Title Policy and Taxes for the current tax year that are not yet due and payable.
“Personalty” means all of
Borrower’s present and hereafter acquired right, title and interest in all Goods, accounts, choses of action, chattel paper, documents,
general intangibles (including Software), payment intangibles, instruments, investment property, letter of credit rights, supporting
obligations, computer information, source codes, object codes, records and data, all telephone numbers or listings, claims (including
claims for indemnity or breach of warranty), deposit accounts and other property or assets of any kind or nature related to the Land
or the Improvements now or in the future, including operating agreements, surveys, plans and specifications and contracts for architectural,
engineering and construction services relating to the Land or the Improvements, and all other intangible property and rights relating
to the operation of, or used in connection with, the Land or the Improvements, including all governmental permits relating to any activities
on the Land.
“Prepayment Premium” has the
meaning set forth in the Loan Agreement.
“Property Jurisdiction” means
the jurisdiction in which the Land is located.
“Rents” means all rents (whether
from residential or non-residential space), revenues and other income from the Land or the Improvements, including subsidy payments received
from any sources, including payments under any “Housing Assistance Payments Contract” or other rental subsidy agreement (if
any), parking fees, laundry and vending machine income and fees and charges for food, health care and other services provided at the
Mortgaged Property, whether now due, past due, or to become due, and tenant security deposits.
“Software”
means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does
not include any computer program that is included in the definition of Goods.
“Taxes” means all taxes, assessments,
vault rentals and other charges, if any, general, special or otherwise, including assessments for schools, public betterments and general
or local improvements, which are levied, assessed or imposed by any public authority or quasi-public authority, and which, if not paid,
may become a lien, on the Land or the Improvements or any taxes upon any Loan Document.
“Title Policy” has the meaning
set forth in the Loan Agreement.
“UCC” means the Uniform Commercial
Code in effect in the Property Jurisdiction, as amended from time to time.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 6 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
“UCC Collateral” means any
or all of that portion of the Mortgaged Property in which a security interest may be granted under the UCC and in which Borrower has
any present or hereafter acquired right, title or interest.
2. Security
Agreement; Fixture Filing.
(a) To
secure to Lender, the repayment of the Indebtedness, and all renewals, extensions and modifications thereof, and the performance of the
covenants and agreements of Borrower contained in the Loan Documents, Borrower hereby pledges, assigns, and grants to Lender a continuing
security interest in the UCC Collateral. This Security Instrument constitutes a security agreement and a financing statement under the
UCC. This Security Instrument also constitutes a financing statement pursuant to the terms of the UCC with respect to any part of the
Mortgaged Property that is or may become a Fixture under applicable law, and will be recorded as a “fixture filing” in accordance
with the UCC. Borrower hereby authorizes Lender to file financing statements, continuation statements and financing statement amendments
in such form as Lender may require to perfect or continue the perfection of this security interest without the signature of Borrower.
If an Event of Default has occurred and is continuing, Lender shall have the remedies of a secured party under the UCC or otherwise provided
at law or in equity, in addition to all remedies provided by this Security Instrument and in any Loan Document. Lender may exercise any
or all of its remedies against the UCC Collateral separately or together, and in any order, without in any way affecting the availability
or validity of Lender’s other remedies. For purposes of the UCC, the debtor is Borrower and the secured party is Lender. The name
and address of the debtor and secured party are set forth after Borrower’s signature below which are the addresses from which information
on the security interest may be obtained.
(b) Borrower
represents and warrants that: (1) Borrower maintains its chief executive office at the location set forth after Borrower’s
signature below, and Borrower will notify Lender in writing of any change in its chief executive office within five (5) days
of such change; (2) Borrower is the record owner of the Mortgaged Property; (3) Borrower’s state of incorporation, organization,
or formation, if applicable, is as set forth on Page 1 of this Security Instrument; (4) Borrower’s exact legal name is
as set forth on Page 1 of this Security Instrument; (5) Borrower’s organizational identification number, if applicable,
is as set forth after Borrower’s signature below; (6) Borrower is the owner of the UCC Collateral subject to no liens, charges
or encumbrances other than the lien hereof; (7) except as expressly provided in the Loan Agreement, the UCC Collateral will not
be removed from the Mortgaged Property without the consent of Lender; and (8) no financing statement covering any of the UCC Collateral
or any proceeds thereof is on file in any public office except pursuant hereto.
(c) All
property of every kind acquired by Borrower after the date of this Security Instrument which by the terms of this Security Instrument
shall be subject to the lien and the security interest created hereby, shall immediately upon the acquisition thereof by Borrower and
without further conveyance or assignment become subject to the lien and security interest created by this Security Instrument. Nevertheless,
Borrower shall execute, acknowledge, deliver and record or file, as appropriate, all and every such further deeds of trust, mortgages,
deeds to secure debt, security agreements, financing statements, assignments and assurances as Lender shall require for accomplishing
the purposes of this Security Instrument and to comply with the rerecording requirements of the UCC.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 7 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
3. Assignment
of Leases and Rents; Appointment of Receiver; Lender in Possession.
(a) As
part of the consideration for the Indebtedness, Borrower absolutely and unconditionally assigns and transfers to Lender all Leases and
Rents. It is the intention of Borrower to establish present, absolute and irrevocable transfers and assignments to Lender of all Leases
and Rents and to authorize and empower Lender to collect and receive all Rents without the necessity of further action on the part of
Borrower. Borrower and Lender intend the assignments of Leases and Rents to be effective immediately and to constitute absolute present
assignments, and not assignments for additional security only. Only for purposes of giving effect to these absolute assignments of Leases
and Rents, and for no other purpose, the Leases and Rents shall not be deemed to be a part of the Mortgaged Property. However, if these
present, absolute and unconditional assignments of Leases and Rents are not enforceable by their terms under the laws of the Property
Jurisdiction, then each of the Leases and Rents shall be included as part of the Mortgaged Property, and it is the intention of Borrower,
in such circumstance, that this Security Instrument create and perfect a lien on each of the Leases and Rents in favor of Lender, which
liens shall be effective as of the date of this Security Instrument.
(b) Until
an Event of Default has occurred and is continuing, but subject to the limitations set forth in the Loan Documents, Borrower shall have
a revocable license to exercise all rights, power and authority granted to Borrower under the Leases (including the right, power and
authority to modify the terms of any Lease, extend or terminate any Lease, or enter into new Leases, subject to the limitations set forth
in the Loan Documents), and to collect and receive all Rents, to hold all Rents in trust for the benefit of Lender, and to apply all
Rents to pay the Monthly Debt Service Payments and the other amounts then due and payable under the other Loan Documents, including Imposition
Deposits, and to pay the current costs and expenses of managing, operating and maintaining the Mortgaged Property, including utilities
and Impositions (to the extent not included in Imposition Deposits), tenant improvements and other capital expenditures. So long as no
Event of Default has occurred and is continuing (and no event which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default has occurred and is continuing), the Rents remaining after application pursuant to the preceding sentence
may be retained and distributed by Borrower free and clear of, and released from, Lender’s rights with respect to Rents under this
Security Instrument.
(c) If
an Event of Default has occurred and is continuing, without the necessity of Lender entering upon and taking and maintaining control
of the Mortgaged Property directly, by a receiver, or by any other manner or proceeding permitted by the laws of the Property Jurisdiction,
the revocable license granted to Borrower pursuant to Section 3(b) shall automatically terminate, and Lender shall immediately
have all rights, powers and authority granted to Borrower under any Lease (including the right, power and authority to modify the terms
of any such Lease, or extend or terminate any such Lease) and, without notice, Lender shall be entitled to all Rents as they become due
and payable, including Rents then due and unpaid. During the continuance of an Event of Default, Borrower authorizes Lender to collect,
sue for and compromise Rents and directs each tenant of the Mortgaged Property to pay all Rents to, or as directed by, Lender, and Borrower
shall, upon Borrower’s receipt of any Rents from any sources, pay the total amount of such receipts to Lender. Although the foregoing
rights of Lender are self-effecting, at any time during the continuance of an Event of Default, Lender may make demand for all Rents,
and Lender may give, and Borrower hereby irrevocably authorizes Lender to give, notice to all tenants of the Mortgaged Property instructing
them to pay all Rents to Lender. No tenant shall be obligated to inquire further as to the occurrence or continuance of an Event of Default,
and no tenant shall be obligated to pay to Borrower any amounts that are actually paid to Lender in response to such a notice. Any such
notice by Lender shall be delivered to each tenant personally, by mail or by delivering such demand to each rental unit.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 8 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(d) If
an Event of Default has occurred and is continuing, Lender may, regardless of the adequacy of Lender’s security or the solvency
of Borrower, and even in the absence of waste, enter upon, take and maintain full control of the Mortgaged Property, and may exclude
Borrower and its agents and employees therefrom, in order to perform all acts that Lender, in its discretion, determines to be necessary
or desirable for the operation and maintenance of the Mortgaged Property, including the execution, cancellation or modification of Leases,
the collection of all Rents (including through use of a lockbox, at Lender’s election), the making of repairs to the Mortgaged
Property and the execution or termination of contracts providing for the management, operation or maintenance of the Mortgaged Property,
for the purposes of enforcing this assignment of Rents, protecting the Mortgaged Property or the security of this Security Instrument
and the Mortgage Loan, or for such other purposes as Lender in its discretion may deem necessary or desirable.
(e) Notwithstanding
any other right provided Lender under this Security Instrument or any other Loan Document, if an Event of Default has occurred and is
continuing, and regardless of the adequacy of Lender’s security or Borrower’s solvency, and without the necessity of giving
prior notice (oral or written) to Borrower, Lender may apply to any court having jurisdiction for the appointment of a receiver for the
Mortgaged Property to take any or all of the actions set forth in Section 3. If Lender elects to seek the appointment of a receiver
for the Mortgaged Property at any time after an Event of Default has occurred and is continuing, Borrower, by its execution of this Security
Instrument, expressly consents to the appointment of such receiver, including the appointment of a receiver ex parte, if permitted
by applicable law. Borrower consents to shortened time consideration of a motion to appoint a receiver. Lender or the receiver, as applicable,
shall be entitled to receive a reasonable fee for managing the Mortgaged Property and such fee shall become an additional part of the
Indebtedness. Immediately upon appointment of a receiver or Lender’s entry upon and taking possession and control of the Mortgaged
Property, possession of the Mortgaged Property and all documents, records (including records on electronic or magnetic media), accounts,
surveys, plans, and specifications relating to the Mortgaged Property, and all security deposits and prepaid Rents, shall be surrendered
to Lender or the receiver, as applicable. If Lender or receiver takes possession and control of the Mortgaged Property, Lender or receiver
may exclude Borrower and its representatives from the Mortgaged Property.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 9 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(f) The
acceptance by Lender of the assignments of the Leases and Rents pursuant to this Section 3 shall not at any time or in any event
obligate Lender to take any action under any Loan Document or to expend any money or to incur any expense. Lender shall not be liable
in any way for any injury or damage to person or property sustained by any Person in, on or about the Mortgaged Property. Prior to Lender’s
actual entry upon and taking possession and control of the Land and Improvements, Lender shall not be:
(1) obligated
to perform any of the terms, covenants and conditions contained in any Lease (or otherwise have any obligation with respect to any Lease);
(2) obligated
to appear in or defend any action or proceeding relating to any Lease or the Mortgaged Property; or
(3) responsible
for the operation, control, care, management or repair of the Mortgaged Property or any portion of the Mortgaged Property.
The execution of this Security Instrument shall
constitute conclusive evidence that all responsibility for the operation, control, care, management and repair of the Mortgaged Property
is and shall be that of Borrower, prior to such actual entry and taking possession and control by Lender of the Land and Improvements.
(g) Lender
shall be liable to account only to Borrower and only for Rents actually received by Lender. Lender shall not be liable to Borrower, anyone
claiming under or through Borrower or anyone having an interest in the Mortgaged Property by reason of any act or omission of Lender
under this Section 3, and Borrower hereby releases and discharges Lender from any such liability to the fullest extent permitted
by law, provided that Lender shall not be released from liability that occurs as a result of Lender’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction pursuant to a final, non-appealable court order. If the Rents are not sufficient
to meet the costs of taking control of and managing the Mortgaged Property and collecting the Rents, any funds expended by Lender for
such purposes shall be added to, and become a part of, the principal balance of the Indebtedness, be immediately due and payable, and
bear interest at the Default Rate from the date of disbursement until fully paid. Any entering upon and taking control of the Mortgaged
Property by Lender or the receiver, and any application of Rents as provided in this Security Instrument, shall not cure or waive any
Event of Default or invalidate any other right or remedy of Lender under applicable law or provided for in this Security Instrument or
any Loan Document.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 10 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
4. Protection
of Lender’s Security.
If Borrower fails to perform
any of its obligations under this Security Instrument or any other Loan Document, or any action or proceeding is commenced that purports
to affect the Mortgaged Property, Lender’s security, rights or interests under this Security Instrument or any Loan Document (including
eminent domain, insolvency, code enforcement, civil or criminal forfeiture, enforcement of Environmental Laws, fraudulent conveyance
or reorganizations or proceedings involving a debtor or decedent), Lender may, at its option, make such appearances, disburse or pay
such sums and take such actions, whether before or after an Event of Default or whether directly or to any receiver for the Mortgaged
Property, as Lender reasonably deems necessary to perform such obligations of Borrower and to protect the Mortgaged Property or Lender’s
security, rights or interests in the Mortgaged Property or the Mortgage Loan, including:
(a) paying
fees and out-of-pocket expenses of attorneys, accountants, inspectors and consultants;
(b) entering
upon the Mortgaged Property to make repairs or secure the Mortgaged Property;
(c) obtaining
(or force-placing) the insurance required by the Loan Documents; and
(d) paying
any amounts required under any of the Loan Documents that Borrower has failed to pay.
Any amounts so disbursed or paid by Lender shall
be added to, and become part of, the principal balance of the Indebtedness, be immediately due and payable and bear interest at the Default
Rate from the date of disbursement until fully paid. The provisions of this Section 4 shall not be deemed to obligate or require
Lender to incur any expense or take any action.
5. Default;
Acceleration; Remedies.
(a) If
an Event of Default has occurred and is continuing, Lender, at its option, may declare the Indebtedness to be immediately due and payable
without further demand, and may either with or without entry or taking possession as herein provided or otherwise, proceed by suit or
suits at law or in equity or any other appropriate proceeding or remedy (1) to enforce payment of the Mortgage Loan; (2) to
foreclose this Security Instrument judicially or non-judicially by the STATUTORY POWER OF SALE granted herein; (3) to enforce or
exercise any right under any Loan Document; and (4) to pursue any one (1) or more other remedies provided in this Security
Instrument or in any other Loan Document or otherwise afforded by applicable law. Each right and remedy provided in this Security Instrument
or any other Loan Document is distinct from all other rights or remedies under this Security Instrument or any other Loan Document or
otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively,
in any order. Borrower has the right to bring an action to assert the nonexistence of an Event of Default or any other defense of Borrower
to acceleration and sale.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 11 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(b) This
Security Instrument is made upon the STATUTORY CONDITION provided for by M.G.L.c. 183 Section 20, and upon the further
condition that all covenants and agreements of Borrower contained in this Security Instrument shall be kept and fully performed, and
upon any breach of such covenants and agreements or if an Event of Default shall exist and continue under this Security Instrument, Lender
shall have, as to the Mortgaged Property, the STATUTORY POWER OF SALE. Borrower acknowledges that the STATUTORY POWER OF SALE granted
in this Security Instrument may be exercised or directed by Lender without prior judicial hearing. In the event Lender invokes the power
of sale:
(1) Lender
shall send to Borrower and any other Persons required to receive such notice, written notice of Lender’s election to cause the
Mortgaged Property to be sold. Borrower hereby authorizes and empowers Lender to take possession of the Mortgaged Property, or any part
thereof, and hereby grants to Lender a STATUTORY POWER OF SALE and authorizes and empowers Lender to sell (or, in the case of the default
of any purchaser, to resell) the Mortgaged Property or any part thereof, in compliance with applicable law, including compliance with
any and all notice and timing requirements for such sale;
(2) Lender
shall have the authority to determine the terms of the sale, subject to applicable law. In connection with any such sale, the whole of
the Mortgaged Property may be sold in one (1) parcel as an entirety or in separate lots or parcels at the same or different
times. Lender shall have the right to become the purchaser at any such sale. Lender shall be entitled to receive costs and expenses from
such sale not to exceed the amount permitted by applicable law;
(3) within
a reasonable time after the sale, Lender shall deliver to the purchaser of the Mortgaged Property a deed or such other appropriate conveyance
document conveying the Mortgaged Property so sold without any express or implied covenant or warranty. The recitals in such deed or document
shall be prima facie evidence of the truth of the statements made in those recitals; and
(4) the
outstanding principal amount of the Mortgage Loan and the other Indebtedness, if not previously due, shall be and become immediately
due and payable without demand or notice of any kind. If the Mortgaged Property is sold for an amount less than the amount outstanding
under the Indebtedness, the deficiency shall be determined by the purchase price at the sale or sales. Borrower waives all rights, claims,
and defenses with respect to Lender’s ability to obtain a deficiency judgment.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 12 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(c) Borrower
acknowledges and agrees that the proceeds of any sale shall be applied as determined by Lender unless otherwise required by applicable
law.
(d) In
connection with the exercise of Lender’s rights and remedies under this Security Instrument and any other Loan Document, there
shall be allowed and included as Indebtedness: (1) all expenditures and expenses authorized by applicable law and all other expenditures
and expenses which may be paid or incurred by or on behalf of Lender for reasonable legal fees, appraisal fees, outlays for documentary
and expert evidence, stenographic charges and publication costs; (2) all expenses of any environmental site assessments, environmental
audits, environmental remediation costs, appraisals, surveys, engineering studies, wetlands delineations, flood plain studies, and any
other similar testing or investigation deemed necessary or advisable by Lender incurred in preparation for, contemplation of or in connection
with the exercise of Lender’s rights and remedies under the Loan Documents; and (3) costs (which may be reasonably estimated
as to items to be expended in connection with the exercise of Lender’s rights and remedies under the Loan Documents) of procuring
all abstracts of title, title searches and examinations, title insurance policies, and similar data and assurance with respect to title
as Lender may deem reasonably necessary either to prosecute any suit or to evidence the true conditions of the title to or the value
of the Mortgaged Property to bidders at any sale which may be held in connection with the exercise of Lender’s rights and remedies
under the Loan Documents. All expenditures and expenses of the nature mentioned in this Section 5 and such other expenses and fees
as may be incurred in the protection of the Mortgaged Property and rents and income therefrom and the maintenance of the lien of this
Security Instrument, including the fees of any attorney employed by Lender in any litigation or proceedings affecting this Security Instrument,
the Note, the other Loan Documents, or the Mortgaged Property, including bankruptcy proceedings, any Foreclosure Event, or in preparation
of the commencement or defense of any proceedings or threatened suit or proceeding, or otherwise in dealing specifically therewith, shall
be so much additional Indebtedness and shall be immediately due and payable by Borrower, with interest thereon at the Default Rate until
paid.
(e) Any
action taken by Lender pursuant to the provisions of this Section 5 shall comply with the laws of the Property Jurisdiction. Such
applicable laws shall take precedence over the provisions of this Section 5, but shall not invalidate or render unenforceable any
other provision of any Loan Document that can be construed in a manner consistent with any applicable law. If any provision of this Security
Instrument shall grant to Lender (including Lender acting as a mortgagee-in-possession), or a receiver appointed pursuant to the provisions
of this Security Instrument any powers, rights or remedies prior to, upon, during the continuance of or following an Event of Default
that are more limited than the powers, rights, or remedies that would otherwise be vested in such party under any applicable law in the
absence of said provision, such party shall be vested with the powers, rights, and remedies granted in such applicable law to the full
extent permitted by law.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 13 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
6. Waiver
of Statute of Limitations and Marshaling.
Borrower hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the lien of this Security Instrument or to any action brought
to enforce any Loan Document. Notwithstanding the existence of any other security interests in the Mortgaged Property held by Lender
or by any other party, Lender shall have the right to determine the order in which any or all of the Mortgaged Property shall be subjected
to the remedies provided in this Security Instrument and/or any other Loan Document or by applicable law. Lender shall have the right
to determine the order in which any or all portions of the Indebtedness are satisfied from the proceeds realized upon the exercise of
such remedies. Borrower, for itself and all who may claim by, through or under it, and any party who now or in the future acquires a
security interest in the Mortgaged Property and who has actual or constructive notice of this Security Instrument, waives any and all
right to require the marshaling of assets or to require that any of the Mortgaged Property be sold in the inverse order of alienation
or that any of the Mortgaged Property be sold in parcels (at the same time or different times) in connection with the exercise of any
of the remedies provided in this Security Instrument or any other Loan Document, or afforded by applicable law.
7. Waiver
of Redemption; Rights of Tenants.
(a) Borrower
hereby covenants and agrees that it will not at any time apply for, insist upon, plead, avail itself, or in any manner claim or take
any advantage of, any appraisement, stay, exemption or extension law or any so-called “Moratorium Law” now or at any time
hereafter enacted or in force in order to prevent or hinder the enforcement or foreclosure of this Security Instrument. Without limiting
the foregoing:
(1) Borrower,
for itself and all Persons who may claim by, through or under Borrower, hereby expressly waives any so-called “Moratorium Law”
and any and all rights of reinstatement and redemption, if any, under any order or decree of foreclosure of this Security Instrument,
it being the intent hereof that any and all such “Moratorium Laws”, and all rights of reinstatement and redemption of Borrower
and of all other Persons claiming by, through or under Borrower are and shall be deemed to be hereby waived to the fullest extent permitted
by the laws of the Property Jurisdiction;
(2) Borrower
shall not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any right, power or remedy herein
or otherwise granted or delegated to Lender but will suffer and permit the execution of every such right, power and remedy as though
no such law or laws had been made or enacted; and
(3) if
Borrower is a trust, Borrower represents that the provisions of this Section 7 (including the waiver of reinstatement and redemption
rights) were made at the express direction of Borrower’s beneficiaries and the persons having the power of direction over Borrower,
and are made on behalf of the trust estate of Borrower and all beneficiaries of Borrower, as well as all other persons mentioned above.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 14 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(b) Lender
shall have the right to foreclose subject to the rights of any tenant or tenants of the Mortgaged Property having an interest in the
Mortgaged Property prior to that of Lender. The failure to join any such tenant or tenants of the Mortgaged Property as party defendant
or defendants in any such civil action or the failure of any decree of foreclosure and sale to foreclose their rights shall not be asserted
by Borrower as a defense in any civil action instituted to collect the Indebtedness, or any part thereof or any deficiency remaining
unpaid after foreclosure and sale of the Mortgaged Property, any statute or rule of law at any time existing to the contrary notwithstanding.
8. Notice.
(a) All
notices under this Security Instrument shall be:
(1) in
writing, and shall be (A) delivered, in person, (B) mailed, postage prepaid, either by registered or certified delivery, return
receipt requested, or (C) sent by overnight express courier;
(2) addressed
to the intended recipient at its respective address set forth at the end of this Security Instrument; and
(3) deemed
given on the earlier to occur of:
(A) the
date when the notice is received by the addressee; or
(B) if
the recipient refuses or rejects delivery, the date on which the notice is so refused or rejected, as conclusively established by the
records of the United States Postal Service or such express courier service.
(b) Any
party to this Security Instrument may change the address to which notices intended for it are to be directed by means of notice given
to the other party in accordance with this Section 8.
(c) Any
required notice under this Security Instrument which does not specify how notices are to be given shall be given in accordance with this
Section 8.
9. Mortgagee-in-Possession.
Borrower acknowledges and
agrees that the exercise by Lender of any of the rights conferred in this Security Instrument shall not be construed to make Lender a
mortgagee-in-possession of the Mortgaged Property so long as Lender has not itself entered into actual possession of the Land and Improvements.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 15 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
10. Release.
Upon payment of the Indebtedness,
Lender shall discharge this Security Instrument. Borrower shall pay Lender’s reasonable costs incurred in discharging this Security
Instrument.
11. Governing
Law; Consent to Jurisdiction and Venue.
This Security Instrument
shall be governed by the laws of the Property Jurisdiction without giving effect to any choice of law provisions thereof that would result
in the application of the laws of another jurisdiction. Borrower agrees that any controversy arising under or in relation to this Security
Instrument shall be litigated exclusively in the Property Jurisdiction. The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all controversies that arise under or in relation to any security
for the Indebtedness. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation and waives
any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.
12. Miscellaneous
Provisions.
(a) This
Security Instrument shall bind, and the rights granted by this Security Instrument shall benefit, the successors and assigns of Lender.
This Security Instrument shall bind, and the obligations granted by this Security Instrument shall inure to, any permitted successors
and assigns of Borrower under the Loan Agreement. If more than one (1) person or entity signs this Security Instrument as Borrower,
the obligations of such persons and entities shall be joint and several. The relationship between Lender and Borrower shall be solely
that of creditor and debtor, respectively, and nothing contained in this Security Instrument shall create any other relationship between
Lender and Borrower. No creditor of any party to this Security Instrument and no other person shall be a third party beneficiary of this
Security Instrument or any other Loan Document.
(b) The
invalidity or unenforceability of any provision of this Security Instrument or any other Loan Document shall not affect the validity
or enforceability of any other provision of this Security Instrument or of any other Loan Document, all of which shall remain in full
force and effect. This Security Instrument contains the complete and entire agreement among the parties as to the matters covered, rights
granted and the obligations assumed in this Security Instrument. This Security Instrument may not be amended or modified except by written
agreement signed by the parties hereto.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 16 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(c) The
following rules of construction shall apply to this Security Instrument:
(1) The
captions and headings of the sections of this Security Instrument are for convenience only and shall be disregarded in construing this
Security Instrument.
(2) Any
reference in this Security Instrument to an “Exhibit” or “Schedule” or a “Section” or an “Article”
shall, unless otherwise explicitly provided, be construed as referring, respectively, to an exhibit or schedule attached to this Security
Instrument or to a Section or Article of this Security Instrument.
(3) Any
reference in this Security Instrument to a statute or regulation shall be construed as referring to that statute or regulation as amended
from time to time.
(4) Use
of the singular in this Security Instrument includes the plural and use of the plural includes the singular.
(5) As
used in this Security Instrument, the term “including” means “including, but not limited to” or “including,
without limitation,” and is for example only, and not a limitation.
(6) Whenever
Borrower’s knowledge is implicated in this Security Instrument or the phrase “to Borrower’s knowledge” or a similar
phrase is used in this Security Instrument, Borrower’s knowledge or such phrase(s) shall be interpreted to mean to the best
of Borrower’s knowledge after reasonable and diligent inquiry and investigation.
(7) Unless
otherwise provided in this Security Instrument, if Lender’s approval, designation, determination, selection, estimate, action or
decision is required, permitted or contemplated hereunder, such approval, designation, determination, selection, estimate, action or
decision shall be made in Lender’s sole and absolute discretion.
(8) All
references in this Security Instrument to a separate instrument or agreement shall include such instrument or agreement as the same may
be amended or supplemented from time to time pursuant to the applicable provisions thereof.
(9) “Lender
may” shall mean at Lender’s discretion, but shall not be an obligation.
13. Time
is of the Essence.
Borrower agrees that, with
respect to each and every obligation and covenant contained in this Security Instrument and the other Loan Documents, time is of the
essence.
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 17 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
14. WAIVER
OF TRIAL BY JURY.
TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL
BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS SECURITY INSTRUMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER
THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH
RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH OF BORROWER AND LENDER, KNOWINGLY
AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED
EXHIBITS. The following Exhibits are attached to this Security Instrument and incorporated fully herein by reference:
| x | Exhibit A Description
of the Land (required) |
| | | |
| | x | Exhibit B Modifications
to Security Instrument (Master Credit Facility Agreement) |
[Remainder of Page Intentionally
Blank]
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page 18 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
IN
WITNESS WHEREOF, Borrower has signed and delivered this Security Instrument under seal (where applicable) or has caused this
Security Instrument to be signed and delivered by its duly authorized representative under seal (where applicable). Where applicable
law so provides, Borrower intends that this Security Instrument shall be deemed to be signed and delivered as a sealed instrument.
| |
BORROWER: |
|
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| |
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| |
SCHOOL STREET 9, LLC, |
|
| |
a Delaware limited liability company |
|
| |
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| |
By: |
NewReal, Inc., |
|
| |
|
a Massachusetts corporation |
|
| |
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its Manager |
|
| |
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|
| |
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|
|
| |
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By: |
|
(SEAL) |
| |
|
Name: |
Ronald Brown |
|
| |
|
Title: |
President |
|
| |
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| |
|
|
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|
| |
|
By: |
|
(SEAL) |
| |
|
Name: |
Jameson Brown |
|
| |
|
Title: |
Treasurer |
|
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page S-1 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
COMMONWEALTH OF MASSACHUSETTS
COUNTY
OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Ronald Brown, the President of
NewReal, Inc., a Massachusetts corporation, the Manager of School Street 9, LLC, a Delaware limited liability company, proved
to me through satisfactory evidence of identification, which were ______________________________, to be the person whose name is signed
on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose or is the free
act and deed of the party signing the document.
__________________________________
Notary Public
My Commission Expires:______________
COMMONWEALTH OF MASSACHUSETTS
COUNTY
OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Jameson Brown, the Treasurer of
NewReal, Inc., a Massachusetts corporation, the Manager of School Street 9, LLC, a Delaware limited liability company, proved
to me through satisfactory evidence of identification, which were ______________________________, to be the person whose name is signed
on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose or is the free
act and deed of the party signing the document.
__________________________________
Notary Public
My Commission Expires:______________
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page S-2 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
| |
The name, chief executive office and organizational identification
number of Borrower (as Debtor under any applicable Uniform Commercial Code) are:
Debtor Name/Record Owner: School Street 9, LLC
Debtor Chief Executive Office Address:
c/o The Hamilton Company, Inc.
39 Brighton Avenue
Boston, Massachusetts 02134
Attn: Jameson Brown, CEO and Andrew Bloch, CFO
Debtor Organizational ID Number: 3637853 |
| |
The name and chief executive office of Lender (as Secured Party)
are:
Secured Party Name: KeyBank National Association
Secured Party Chief Executive Office Address:
127 Public Square
Cleveland, Ohio 44114
Lender Notice Address:
KeyBank Real Estate Capital - Servicing Department
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Mail code: KS-01-11-0501
Attention: Servicing Manager |
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page S-3 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
HAMILTON VILLAGE
EXHIBIT A
A certain parcel of
land situated in Framingham in the County of Middlesex and said Commonwealth, bounded and described as follows:
Northerly by School
Street, sixty-two and 22/100 feet;
Easterly by Lot 15 as
shown on plan hereinafter mentioned, two hundred and 45/100 feet;
Westerly by Lot 16 as
shown on said plan, eighty-nine and 07/100 feet;
Northwesterly by Lot
A on said plan, two hundred six and 04/100 feet.
All of said boundaries
are determined by the Court to be located as shown on a subdivision plan, as approved by the Court, filed in the Land Registration Office,
as copy of which is filed in the Middlesex South Registry District of the Land Court as Plan No. 16357G in Registration Book 739,
Page 99 with Certificate of Title No. 121849. Being Lot 14 as shown on said plan.
Also another certain
parcel of land situated in Framingham, described as follows:
Lot 18
| Southwesterly | by
Lot 20, being the southwesterly line of Cochituate Brook. |
| Northerly | by a line crossing Cochituate Brook, being
the southerly line of former location of Cochituate Brook, about twenty-eight (28) feet. |
| Northeasterly | by
Lot 22, being the northeasterly line of Cochituate Brook. |
| Easterly | by a line crossing Cochituate Brook, being
the westerly line of the former location of Cochituate Brook, about twenty-seven (27) feet. |
Said parcel is shown
as Lot 18 on said plan. (Plan No. 16357H)
Also another certain
parcel of land situated in Framingham, described as follows:
Lot 20
| Southwesterly | by
Boston and Albany Railroad Company about two hundred (200) feet. |
|
Northeasterly |
by Lot 18, being the southwesterly line of Cochituate Brook. |
| Fannie Mae Multifamily Security
Instrument |
Form 6025.MA |
Page A-1 |
| Massachusetts (Hamilton
Village, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
Southeasterly by land
now or formerly of Herbert Brown et al about seventy-four (74) feet.
Said parcel is shown
as Lot 20 on said plan. (Plan No. 16357H)
Also another certain
parcel of land situated in Framingham, described as follows:
Lot 22
| Northwesterly | by
Lots 14, 15 and 12, one hundred ninety-two and 01/100 (192.01) feet. |
| Northeasterly | by Lots 11, 5, 9
and 8 on said plan four hundred thirty-three and 52/100 (433.52) feet. |
| Southeasterly | by land now or formerly of Charles
J. Montani and land formerly of F.E. Bell one hundred sixty-five and 14/100 (165.14) feet. |
|
Northeasterly |
by land of said Bell three hundred sixty-seven and 75/100 (367.75) feet. |
| Southeasterly | by land now or formerly of Herbert
Brown et al about three hundred eighty-two (382) feet. |
| Westerly | by Lot 18, by a line crossing Cochituate
Brook, being the westerly line of the former location of Cochituate Brook, about twenty-seven
(27) feet. |
|
Southwesterly |
by Lot 18, being the northeasterly line of Cochituate Brook. |
| Southerly | by Lot 18, by a line crossing Cochituate
Brook, being the southerly line of the former location of Cochituate Brook, about twenty-eight
(28) feet. |
| Southwesterly | by the Boston and Albany Railroad
Company about two hundred eighteen (218) feet, and |
| Westerly | by
Lot A three hundred twenty-eight and 59/100 (328.59) feet. |
Said parcel is shown
as Lot 22 on said plan. (Plan No. 16357H)
All of said boundaries
are determined by the Court to be located as shown on a subdivision plan, as approved by the Court, filed in the Land Registration Office,
a copy of which is filed in the Registry of Deeds for the South Registry District of Middlesex County in Registration Book 752, Page 113,
with Certificate 124463.
There is appurtenant
to Lots 18, 20 and 22 the right to use as a passageway that part of Lot 8 marked “Way” shown on plan filed in Registration
Book 572, Page 7, more particularly set forth in deed filed as Document No. 436043 as reserved in Document No. 329531.
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Also another certain
parcel of land situated in Framingham, described as follows:
Lot 23
Northerly by School
Street, fifteen feet;
Southeasterly by Lot
24 as shown on plan hereinafter mentioned, fifty-one and 84/100 feet; and
Westerly by Lot 14 on
said plan, fifty (50) feet.
Said parcel is shown
as Lot 23 on said plan. (Plan No. 16357I)
All of said boundaries
are determined by the Court to be located as shown on a subdivision plan, as approved by the Court, filed in the Land Registration Office,
a copy of which is filed in the Middlesex South Registry District of the Land Court in Registration Book 756, Page 42 with Certificate
of Title 125191, Land Court Plan No. 16537I.
Said Lot 23 is subject
to the provisions set forth in deed given by the City of Boston to John B. Dench dated October 1, 1856 and recorded in the Registry
in Book 2567, Page 449.
Excepting from the above-described
premises so much of the premises as was taken by Taking by the Middlesex County Commissioners for the relocation of School Street dated
September 26, 1939 and filed as Document No. 160804.
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Form 6025.MA |
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Village, Middlesex County) |
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EXHIBIT B
MODIFICATIONS TO SECURITY INSTRUMENT
(Master Credit Facility
Agreement)
The foregoing Security Instrument
is hereby modified as follows:
1. Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Security Instrument.
2. Section 5
of the Security Instrument is hereby amended by replacing the first word of paragraph (a) “If” with the phrase “Subject
to the terms of the Loan Agreement, if.”
3. Section 10
of the Security Instrument is hereby amended and restated as follows:
10. Release.
Reference is hereby
made to Section 2.10 (Collateral Events) of the Loan Agreement. Subject to the terms, conditions and limitations of such Article,
Borrower is entitled to obtain a release of this Security Instrument. If the original Lender named in this Security Instrument, or any
successor, assignee or transferee to the original Lender’s interest in this Security Instrument, assigns or otherwise disposes
of its interest in this Security Instrument and the Note, then upon such assignment or other disposition all liabilities and obligations
to release the Mortgaged Property covered by this Security Instrument on the part of the original Lender, or such successor Lender, which
accrue after such assignment or disposition shall cease and terminate and each successor Lender shall, without further agreement, be
bound by Lender’s obligation to release the Mortgaged Property when obligated to do so under the Loan Agreement, but only during
the period of such successor Lender’s ownership of the interest in this Security Instrument and the Note. PROVIDED ALWAYS, and
this Security Instrument is upon the express condition that, if Borrower pays to Lender the entire unpaid principal balance of the Note,
the interest thereon and all other sums payable by Borrower to Lender as are secured by this Security Instrument, in accordance with
the provisions of the Loan Agreement, the Note, this Security Instrument and the other Loan Documents, at the times and in the manner
specified, without offset, deduction, fraud or delay, and Borrower complies with all the agreements, conditions, covenants, provisions
and stipulations contained in the Loan Agreement, the Note, this Security Instrument and the other Loan Documents, then this Security
Instrument and the estate hereby granted shall cease and become void and Lender shall cancel this Security Instrument.
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Form 6025.MA |
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Village, Middlesex County) |
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4.
Section 11 of the Security Instrument is hereby amended and restated
as follows:
11. Governing
Law; Consent to Jurisdiction and Venue.
The provisions
of Section 15.01 of the Loan Agreement (entitled Choice of Law; Consent to Jurisdiction) are hereby incorporated into this Security
Instrument by this reference to the fullest extent as if the text of such Section were set forth in its entirety herein and, additionally,
those provisions relating to the waiver of jury trial set forth in Section 15.02 of the Loan Agreement shall be deemed to supplement
those provisions contained in Section 14 of this Security Instrument.
5.
The following section is hereby added to the Security Instrument
as Section 15 (Substitution):
15. Substitution.
The provisions
of Section 2.10 (Collateral Events) of the Loan Agreement are hereby incorporated by reference as if such provisions were set forth
in their entirety herein.
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Form 6025.MA |
Page B-2 |
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Village, Middlesex County) |
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6.
The following section is hereby added to the Security Instrument as Section 16 (Remedies
Against Other Collateral):
16. Remedies
Against Other Collateral.
Borrower hereby
acknowledges that the Indebtedness is also secured by liens on collateral which may be located in jurisdictions other than the Property
Jurisdiction. Borrower further agrees and consents that upon the occurrence and during the continuance of an Event of Default, Lender
shall have the right, in its sole and absolute discretion, to exercise any and all rights and remedies in and under any of the Loan Documents,
including the right to proceed, at the same or at different times, to foreclose any or all liens against such collateral (or sell such
collateral under power of sale) in accordance with the terms of this Security Instrument or any other Security Instrument, by any proceedings
appropriate in the jurisdictions where such collateral is located, and that no enforcement action taking place in any jurisdiction shall
preclude or bar enforcement in any other jurisdiction. Any Foreclosure Event brought in any jurisdiction in which collateral is located
may be brought and prosecuted as to any part of such collateral without regard to the fact that a Foreclosure Event has not been instituted
elsewhere on any other part of the collateral for the Indebtedness. No notice, except as may be expressly required by the Loan Documents
or by applicable law, shall be required to be given to Borrower in connection with (a) the occurrence of such Event of Default,
or (b) Lender’s exercise of any and all of its rights or remedies after the occurrence of such Event of Default.
[Remainder of Page Intentionally Blank]
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Prepared by, and after recording
return to:
Venable LLP
600 Massachusetts Avenue, NW
Washington, DC 20001
Attention: Stephanie L. DeLong, Esq.
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES
AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
(MASSACHUSETTS)
(NORFOLK COUNTY)
(STONEBRIDGE APARTMENTS)
Property
Address: 38 Dean St, Norwood, Norfolk County, Massachusetts 02062
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
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| Massachusetts (Stonebridge Apartments, Norfolk County) |
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© 2012 Fannie Mae |
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MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES
AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
This MULTIFAMILY MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (as amended, restated, replaced, supplemented, or otherwise modified
from time to time, the “Security Instrument”) dated as of June 16, 2022, is executed by NERA DEAN STREET ASSOCIATES,
LLC, a limited liability company organized and existing under the laws of Delaware, as mortgagor (“Borrower”),
to and for the benefit of KEYBANK NATIONAL ASSOCIATION, a national banking association, as mortgagee (“Lender”).
Borrower,
Lender and others are parties to that certain Master Credit Facility Agreement dated as of November 30, 2021 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”). Lender shall, from
time to time, make Advances to Borrower in accordance with the terms of the Loan Agreement. All Advances made in accordance with the Loan
Agreement are referred to, collectively, as the “Mortgage Loan.”
Borrower,
in consideration of (i) the Mortgage Loan evidenced by (a) that certain Multifamily Note in the original principal amount of
$156,000,000 dated as of November 30, 2021, executed by Borrower and others and made payable to the order of Lender, (b) that
certain Multifamily Note in the original principal amount of $80,284,000 dated as of June 16, 2022, executed by Borrower and others
and made payable to the order of Lender, (c) all schedules, riders, allonges, addenda, renewals, extensions, amendments and modifications
thereto, and (d) any additional Multifamily Notes issued from time to time pursuant to the Loan Agreement and all schedules, riders,
allonges, addenda, renewals, extensions, amendments and modifications thereto (individually and collectively, as amended, restated, replaced,
supplemented or otherwise modified from time to time, the “Note”), and (ii) the Loan Agreement, and to secure
to Lender the repayment of the Indebtedness (as defined in this Security Instrument), and all renewals, extensions and modifications thereof,
and the performance of the covenants and agreements of Borrower contained in the Loan Documents (as defined in the Loan Agreement), excluding
the Environmental Indemnity Agreement (as defined in this Security Instrument), irrevocably and unconditionally mortgages, grants, assigns,
remises, releases, warrants and conveys to and for the benefit of Lender, with power of sale, the Mortgaged Property (as defined in this
Security Instrument), including the real property located at the municipal address of 38 Dean St, Norwood, Massachusetts 02062 in the
County of Norfolk, Commonwealth of Massachusetts, and described in Exhibit A attached to this Security Instrument and incorporated
by reference (the “Land”), to have and to hold such Mortgaged Property unto Lender and Lender’s successors and
assigns, forever; Borrower hereby releasing, relinquishing and waiving, to the fullest extent allowed by law, all rights and benefits,
if any, under and by virtue of the homestead exemption laws of the Property Jurisdiction (as defined in this Security Instrument), if
applicable. This Security Instrument and all of the grants herein, are made with MORTGAGE COVENANTS within the meaning of M.G.L.c. 183 Section 19.
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Borrower represents and warrants
that Borrower is lawfully seized of the Mortgaged Property and has the right, power and authority to mortgage, grant, assign, remise,
release, warrant and convey the Mortgaged Property, and that the Mortgaged Property is not encumbered by any Lien (as defined in this
Security Instrument) other than Permitted Encumbrances (as defined in this Security Instrument). Borrower covenants that Borrower will
warrant and defend the title to the Mortgaged Property against all claims and demands other than Permitted Encumbrances.
Borrower and Lender, by its acceptance hereof,
each covenants and agrees as follows:
1. Defined
Terms.
Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Loan Agreement. All terms used and
not specifically defined herein, but which are otherwise defined by the UCC, shall have the meanings assigned to them by the UCC. The
following terms, when used in this Security Instrument, shall have the following meanings:
“Condemnation Action” means
any action or proceeding, however characterized or named, relating to any condemnation or other taking, or conveyance in lieu thereof,
of all or any part of the Mortgaged Property, whether direct or indirect.
“Enforcement Costs” means all
expenses and costs, including reasonable attorneys’ fees and expenses, fees and out-of-pocket expenses of expert witnesses and costs
of investigation, incurred by Lender as a result of any Event of Default under the Loan Agreement or in connection with efforts to collect
any amount due under the Loan Documents, or to enforce the provisions of the Loan Agreement or any of the other Loan Documents, including
those incurred in post-judgment collection efforts and in any bankruptcy or insolvency proceeding (including any action for relief from
the automatic stay of any bankruptcy proceeding or Foreclosure Event) or judicial or non-judicial foreclosure proceeding, to the extent
permitted by law.
“Environmental Indemnity Agreement”
means that certain Environmental Indemnity Agreement dated as of the date of the Loan Agreement, executed by Borrower to and for the benefit
of Lender, as the same may be amended, restated, replaced, supplemented, or otherwise modified from time to time.
“Environmental Laws” has the
meaning set forth in the Environmental Indemnity Agreement.
“Event of Default” has the
meaning set forth in the Loan Agreement.
“Fixtures” means all Goods
that are so attached or affixed to the Land or the Improvements as to constitute a fixture under the laws of the Property Jurisdiction.
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“Goods”
means all of Borrower’s present and hereafter acquired right, title and interest in all goods which are used now or in the
future in connection with the ownership, management, or operation of the Land or the Improvements or are located on the Land or in the
Improvements, including inventory; furniture; furnishings; machinery, equipment, engines, boilers, incinerators, and installed building
materials; systems and equipment for the purpose of supplying or distributing heating, cooling, electricity, gas, water, air, or light;
antennas, cable, wiring, and conduits used in connection with radio, television, security, fire prevention, or fire detection, or otherwise
used to carry electronic signals; telephone systems and equipment; elevators and related machinery and equipment; fire detection, prevention
and extinguishing systems and apparatus; security and access control systems and apparatus; plumbing systems; water heaters, ranges, stoves,
microwave ovens, refrigerators, dishwashers, garbage disposers, washers, dryers, and other appliances; light fixtures, awnings, storm
windows, and storm doors; pictures, screens, blinds, shades, curtains, and curtain rods; mirrors, cabinets, paneling, rugs, and floor
and wall coverings; fences, trees, and plants; swimming pools; exercise equipment; supplies; tools; books and records (whether in written
or electronic form); websites, URLs, blogs, and social network pages; computer equipment (hardware and software); and other tangible personal
property which is used now or in the future in connection with the ownership, management, or operation of the Land or the Improvements
or are located on the Land or in the Improvements.
“Imposition Deposits” means
deposits in an amount sufficient to accumulate with Lender the entire sum required to pay the Impositions when due.
“Impositions” means
(a) any
water and sewer charges which, if not paid, may result in a lien on all or any part of the Mortgaged Property;
(b) the
premiums for fire and other casualty insurance, liability insurance, rent loss insurance and such other insurance as Lender may require
under the Loan Agreement;
(c) Taxes;
and
(d) amounts
for other charges and expenses assessed against the Mortgaged Property which Lender at any time reasonably deems necessary to protect
the Mortgaged Property, to prevent the imposition of liens on the Mortgaged Property, or otherwise to protect Lender’s interests,
all as reasonably determined from time to time by Lender.
“Improvements” means the buildings,
structures, improvements, and alterations now constructed or at any time in the future constructed or placed upon the Land, including
any future replacements, facilities, and additions and other construction on the Land.
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“Indebtedness” means the principal
of, interest on, and all other amounts due at any time under the Note, the Loan Agreement, this Security Instrument or any other Loan
Document (other than the Environmental Indemnity Agreement and Guaranty), including Prepayment Premiums, late charges, interest charged
at the Default Rate, and accrued interest as provided in the Loan Agreement and this Security Instrument, advances, costs and expenses
to perform the obligations of Borrower or to protect the Mortgaged Property or the security of this Security Instrument, all other monetary
obligations of Borrower under the Loan Documents (other than the Environmental Indemnity Agreement), including amounts due as a result
of any indemnification obligations, and any Enforcement Costs.
“Land” means the real property
described in Exhibit A.
“Leases” means all present
and future leases, subleases, licenses, concessions or grants or other possessory interests now or hereafter in force, whether oral or
written, covering or affecting the Mortgaged Property, or any portion of the Mortgaged Property (including proprietary leases or occupancy
agreements if Borrower is a cooperative housing corporation), and all modifications, extensions or renewals thereof.
“Lien” means any claim or charge
against property for payment of a debt or an amount owed for services rendered, including any mortgage, deed of trust, deed to secure
debt, security interest, tax lien, any materialman’s or mechanic’s lien, or any lien of a Governmental Authority, including
any lien in connection with the payment of utilities, or any other encumbrance.
“Mortgaged Property” means
all of Borrower’s present and hereafter acquired right, title and interest, if any, in and to all of the following:
(a) the
Land;
(b) the
Improvements;
(c) the
Personalty;
(d) current
and future rights, including air rights, development rights, zoning rights and other similar rights or interests, easements, tenements,
rights-of-way, strips and gores of land, streets, alleys, roads, sewer rights, waters, watercourses, and appurtenances related to or benefitting
the Land or the Improvements, or both, and all rights-of-way, streets, alleys and roads which may have been or may in the future be vacated;
(e) insurance
policies relating to the Mortgaged Property (and any unearned premiums) and all proceeds paid or to be paid by any insurer of the Land,
the Improvements, the Personalty, or any other part of the Mortgaged Property, whether or not Borrower obtained the insurance pursuant
to Lender’s requirements;
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(f) awards,
payments and other compensation made or to be made by any municipal, state or federal authority with respect to the Land, the Improvements,
the Personalty, or any other part of the Mortgaged Property, including any awards or settlements resulting from (1) Condemnation
Actions, (2) any damage to the Mortgaged Property caused by governmental action that does not result in a Condemnation Action, or
(3) the total or partial taking of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property under
the power of eminent domain or otherwise and including any conveyance in lieu thereof;
(g) contracts,
options and other agreements for the sale of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property entered
into by Borrower now or in the future, including cash or securities deposited to secure performance by parties of their obligations;
(h) Leases
and Lease guaranties, letters of credit and any other supporting obligation for any of the Leases given in connection with any of the
Leases, and all Rents;
(i) earnings,
royalties, accounts receivable, issues and profits from the Land, the Improvements or any other part of the Mortgaged Property, and all
undisbursed proceeds of the Mortgage Loan and, if Borrower is a cooperative housing corporation, maintenance charges or assessments payable
by shareholders or residents;
(j) Imposition
Deposits;
(k) refunds
or rebates of Impositions by any municipal, state or federal authority or insurance company (other than refunds applicable to periods
before the real property tax year in which this Security Instrument is dated);
(l) tenant
security deposits;
(m) names
under or by which any of the above Mortgaged Property may be operated or known, and all trademarks, trade names, and goodwill relating
to any of the Mortgaged Property;
(n) Collateral
Accounts and all Collateral Account Funds;
(o) products,
and all cash and non-cash proceeds from the conversion, voluntary or involuntary, of any of the above into cash or liquidated claims,
and the right to collect such proceeds; and
(p) all
of Borrower’s right, title and interest in the oil, gas, minerals, mineral interests, royalties, overriding royalties, production
payments, net profit interests and other interests and estates in, under and on the Mortgaged Property and other oil, gas and mineral
interests with which any of the foregoing interests or estates are pooled or unitized.
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“Permitted
Encumbrance” means only the easements, restrictions and other matters listed in a schedule of exceptions to coverage
in the Title Policy and Taxes for the current tax year that are not yet due and payable.
“Personalty” means all of Borrower’s
present and hereafter acquired right, title and interest in all Goods, accounts, choses of action, chattel paper, documents, general intangibles
(including Software), payment intangibles, instruments, investment property, letter of credit rights, supporting obligations, computer
information, source codes, object codes, records and data, all telephone numbers or listings, claims (including claims for indemnity or
breach of warranty), deposit accounts and other property or assets of any kind or nature related to the Land or the Improvements now or
in the future, including operating agreements, surveys, plans and specifications and contracts for architectural, engineering and construction
services relating to the Land or the Improvements, and all other intangible property and rights relating to the operation of, or used
in connection with, the Land or the Improvements, including all governmental permits relating to any activities on the Land.
“Prepayment Premium” has the
meaning set forth in the Loan Agreement.
“Property Jurisdiction” means
the jurisdiction in which the Land is located.
“Rents” means all rents (whether
from residential or non-residential space), revenues and other income from the Land or the Improvements, including subsidy payments received
from any sources, including payments under any “Housing Assistance Payments Contract” or other rental subsidy agreement (if
any), parking fees, laundry and vending machine income and fees and charges for food, health care and other services provided at the Mortgaged
Property, whether now due, past due, or to become due, and tenant security deposits.
“Software”
means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does
not include any computer program that is included in the definition of Goods.
“Taxes” means all taxes, assessments,
vault rentals and other charges, if any, general, special or otherwise, including assessments for schools, public betterments and general
or local improvements, which are levied, assessed or imposed by any public authority or quasi-public authority, and which, if not paid,
may become a lien, on the Land or the Improvements or any taxes upon any Loan Document.
“Title Policy” has the meaning
set forth in the Loan Agreement.
“UCC” means the Uniform Commercial
Code in effect in the Property Jurisdiction, as amended from time to time.
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“UCC Collateral” means any
or all of that portion of the Mortgaged Property in which a security interest may be granted under the UCC and in which Borrower has any
present or hereafter acquired right, title or interest.
2. Security
Agreement; Fixture Filing.
(a) To
secure to Lender, the repayment of the Indebtedness, and all renewals, extensions and modifications thereof, and the performance of the
covenants and agreements of Borrower contained in the Loan Documents, Borrower hereby pledges, assigns, and grants to Lender a continuing
security interest in the UCC Collateral. This Security Instrument constitutes a security agreement and a financing statement under the
UCC. This Security Instrument also constitutes a financing statement pursuant to the terms of the UCC with respect to any part of the
Mortgaged Property that is or may become a Fixture under applicable law, and will be recorded as a “fixture filing” in accordance
with the UCC. Borrower hereby authorizes Lender to file financing statements, continuation statements and financing statement amendments
in such form as Lender may require to perfect or continue the perfection of this security interest without the signature of Borrower.
If an Event of Default has occurred and is continuing, Lender shall have the remedies of a secured party under the UCC or otherwise provided
at law or in equity, in addition to all remedies provided by this Security Instrument and in any Loan Document. Lender may exercise any
or all of its remedies against the UCC Collateral separately or together, and in any order, without in any way affecting the availability
or validity of Lender’s other remedies. For purposes of the UCC, the debtor is Borrower and the secured party is Lender. The name
and address of the debtor and secured party are set forth after Borrower’s signature below which are the addresses from which information
on the security interest may be obtained.
(b) Borrower
represents and warrants that: (1) Borrower maintains its chief executive office at the location set forth after Borrower’s
signature below, and Borrower will notify Lender in writing of any change in its chief executive office within five (5) days
of such change; (2) Borrower is the record owner of the Mortgaged Property; (3) Borrower’s state of incorporation, organization,
or formation, if applicable, is as set forth on Page 1 of this Security Instrument; (4) Borrower’s exact legal name is
as set forth on Page 1 of this Security Instrument; (5) Borrower’s organizational identification number, if applicable,
is as set forth after Borrower’s signature below; (6) Borrower is the owner of the UCC Collateral subject to no liens, charges
or encumbrances other than the lien hereof; (7) except as expressly provided in the Loan Agreement, the UCC Collateral will not be
removed from the Mortgaged Property without the consent of Lender; and (8) no financing statement covering any of the UCC Collateral
or any proceeds thereof is on file in any public office except pursuant hereto.
(c) All
property of every kind acquired by Borrower after the date of this Security Instrument which by the terms of this Security Instrument
shall be subject to the lien and the security interest created hereby, shall immediately upon the acquisition thereof by Borrower and
without further conveyance or assignment become subject to the lien and security interest created by this Security Instrument. Nevertheless,
Borrower shall execute, acknowledge, deliver and record or file, as appropriate, all and every such further deeds of trust, mortgages,
deeds to secure debt, security agreements, financing statements, assignments and assurances as Lender shall require for accomplishing
the purposes of this Security Instrument and to comply with the rerecording requirements of the UCC.
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3. Assignment
of Leases and Rents; Appointment of Receiver; Lender in Possession.
(a) As
part of the consideration for the Indebtedness, Borrower absolutely and unconditionally assigns and transfers to Lender all Leases and
Rents. It is the intention of Borrower to establish present, absolute and irrevocable transfers and assignments to Lender of all Leases
and Rents and to authorize and empower Lender to collect and receive all Rents without the necessity of further action on the part of
Borrower. Borrower and Lender intend the assignments of Leases and Rents to be effective immediately and to constitute absolute present
assignments, and not assignments for additional security only. Only for purposes of giving effect to these absolute assignments of Leases
and Rents, and for no other purpose, the Leases and Rents shall not be deemed to be a part of the Mortgaged Property. However, if these
present, absolute and unconditional assignments of Leases and Rents are not enforceable by their terms under the laws of the Property
Jurisdiction, then each of the Leases and Rents shall be included as part of the Mortgaged Property, and it is the intention of Borrower,
in such circumstance, that this Security Instrument create and perfect a lien on each of the Leases and Rents in favor of Lender, which
liens shall be effective as of the date of this Security Instrument.
(b) Until
an Event of Default has occurred and is continuing, but subject to the limitations set forth in the Loan Documents, Borrower shall have
a revocable license to exercise all rights, power and authority granted to Borrower under the Leases (including the right, power and authority
to modify the terms of any Lease, extend or terminate any Lease, or enter into new Leases, subject to the limitations set forth in the
Loan Documents), and to collect and receive all Rents, to hold all Rents in trust for the benefit of Lender, and to apply all Rents to
pay the Monthly Debt Service Payments and the other amounts then due and payable under the other Loan Documents, including Imposition
Deposits, and to pay the current costs and expenses of managing, operating and maintaining the Mortgaged Property, including utilities
and Impositions (to the extent not included in Imposition Deposits), tenant improvements and other capital expenditures. So long as no
Event of Default has occurred and is continuing (and no event which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default has occurred and is continuing), the Rents remaining after application pursuant to the preceding sentence
may be retained and distributed by Borrower free and clear of, and released from, Lender’s rights with respect to Rents under this
Security Instrument.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 8 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(c) If
an Event of Default has occurred and is continuing, without the necessity of Lender entering upon and taking and maintaining control of
the Mortgaged Property directly, by a receiver, or by any other manner or proceeding permitted by the laws of the Property Jurisdiction,
the revocable license granted to Borrower pursuant to Section 3(b) shall automatically terminate, and Lender shall immediately
have all rights, powers and authority granted to Borrower under any Lease (including the right, power and authority to modify the terms
of any such Lease, or extend or terminate any such Lease) and, without notice, Lender shall be entitled to all Rents as they become due
and payable, including Rents then due and unpaid. During the continuance of an Event of Default, Borrower authorizes Lender to collect,
sue for and compromise Rents and directs each tenant of the Mortgaged Property to pay all Rents to, or as directed by, Lender, and Borrower
shall, upon Borrower’s receipt of any Rents from any sources, pay the total amount of such receipts to Lender. Although the foregoing
rights of Lender are self-effecting, at any time during the continuance of an Event of Default, Lender may make demand for all Rents,
and Lender may give, and Borrower hereby irrevocably authorizes Lender to give, notice to all tenants of the Mortgaged Property instructing
them to pay all Rents to Lender. No tenant shall be obligated to inquire further as to the occurrence or continuance of an Event of Default,
and no tenant shall be obligated to pay to Borrower any amounts that are actually paid to Lender in response to such a notice. Any such
notice by Lender shall be delivered to each tenant personally, by mail or by delivering such demand to each rental unit.
(d) If
an Event of Default has occurred and is continuing, Lender may, regardless of the adequacy of Lender’s security or the solvency
of Borrower, and even in the absence of waste, enter upon, take and maintain full control of the Mortgaged Property, and may exclude Borrower
and its agents and employees therefrom, in order to perform all acts that Lender, in its discretion, determines to be necessary or desirable
for the operation and maintenance of the Mortgaged Property, including the execution, cancellation or modification of Leases, the collection
of all Rents (including through use of a lockbox, at Lender’s election), the making of repairs to the Mortgaged Property and the
execution or termination of contracts providing for the management, operation or maintenance of the Mortgaged Property, for the purposes
of enforcing this assignment of Rents, protecting the Mortgaged Property or the security of this Security Instrument and the Mortgage
Loan, or for such other purposes as Lender in its discretion may deem necessary or desirable.
(e) Notwithstanding
any other right provided Lender under this Security Instrument or any other Loan Document, if an Event of Default has occurred and is
continuing, and regardless of the adequacy of Lender’s security or Borrower’s solvency, and without the necessity of giving
prior notice (oral or written) to Borrower, Lender may apply to any court having jurisdiction for the appointment of a receiver for the
Mortgaged Property to take any or all of the actions set forth in Section 3. If Lender elects to seek the appointment of a receiver
for the Mortgaged Property at any time after an Event of Default has occurred and is continuing, Borrower, by its execution of this Security
Instrument, expressly consents to the appointment of such receiver, including the appointment of a receiver ex parte, if permitted
by applicable law. Borrower consents to shortened time consideration of a motion to appoint a receiver. Lender or the receiver, as applicable,
shall be entitled to receive a reasonable fee for managing the Mortgaged Property and such fee shall become an additional part of the
Indebtedness. Immediately upon appointment of a receiver or Lender’s entry upon and taking possession and control of the Mortgaged
Property, possession of the Mortgaged Property and all documents, records (including records on electronic or magnetic media), accounts,
surveys, plans, and specifications relating to the Mortgaged Property, and all security deposits and prepaid Rents, shall be surrendered
to Lender or the receiver, as applicable. If Lender or receiver takes possession and control of the Mortgaged Property, Lender or receiver
may exclude Borrower and its representatives from the Mortgaged Property.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 9 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(f) The
acceptance by Lender of the assignments of the Leases and Rents pursuant to this Section 3 shall not at any time or in any event
obligate Lender to take any action under any Loan Document or to expend any money or to incur any expense. Lender shall not be liable
in any way for any injury or damage to person or property sustained by any Person in, on or about the Mortgaged Property. Prior to Lender’s
actual entry upon and taking possession and control of the Land and Improvements, Lender shall not be:
(1) obligated
to perform any of the terms, covenants and conditions contained in any Lease (or otherwise have any obligation with respect to any Lease);
(2) obligated
to appear in or defend any action or proceeding relating to any Lease or the Mortgaged Property; or
(3) responsible
for the operation, control, care, management or repair of the Mortgaged Property or any portion of the Mortgaged Property.
The execution of this Security Instrument shall
constitute conclusive evidence that all responsibility for the operation, control, care, management and repair of the Mortgaged Property
is and shall be that of Borrower, prior to such actual entry and taking possession and control by Lender of the Land and Improvements.
(g) Lender
shall be liable to account only to Borrower and only for Rents actually received by Lender. Lender shall not be liable to Borrower, anyone
claiming under or through Borrower or anyone having an interest in the Mortgaged Property by reason of any act or omission of Lender under
this Section 3, and Borrower hereby releases and discharges Lender from any such liability to the fullest extent permitted by law,
provided that Lender shall not be released from liability that occurs as a result of Lender’s gross negligence or willful misconduct
as determined by a court of competent jurisdiction pursuant to a final, non-appealable court order. If the Rents are not sufficient to
meet the costs of taking control of and managing the Mortgaged Property and collecting the Rents, any funds expended by Lender for such
purposes shall be added to, and become a part of, the principal balance of the Indebtedness, be immediately due and payable, and bear
interest at the Default Rate from the date of disbursement until fully paid. Any entering upon and taking control of the Mortgaged Property
by Lender or the receiver, and any application of Rents as provided in this Security Instrument, shall not cure or waive any Event of
Default or invalidate any other right or remedy of Lender under applicable law or provided for in this Security Instrument or any Loan
Document.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 10 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
4.
Protection of Lender’s Security.
If Borrower fails to perform
any of its obligations under this Security Instrument or any other Loan Document, or any action or proceeding is commenced that purports
to affect the Mortgaged Property, Lender’s security, rights or interests under this Security Instrument or any Loan Document (including
eminent domain, insolvency, code enforcement, civil or criminal forfeiture, enforcement of Environmental Laws, fraudulent conveyance or
reorganizations or proceedings involving a debtor or decedent), Lender may, at its option, make such appearances, disburse or pay such
sums and take such actions, whether before or after an Event of Default or whether directly or to any receiver for the Mortgaged Property,
as Lender reasonably deems necessary to perform such obligations of Borrower and to protect the Mortgaged Property or Lender’s security,
rights or interests in the Mortgaged Property or the Mortgage Loan, including:
(a) paying
fees and out-of-pocket expenses of attorneys, accountants, inspectors and consultants;
(b) entering
upon the Mortgaged Property to make repairs or secure the Mortgaged Property;
(c) obtaining
(or force-placing) the insurance required by the Loan Documents; and
(d) paying
any amounts required under any of the Loan Documents that Borrower has failed to pay.
Any amounts so disbursed or paid by Lender shall
be added to, and become part of, the principal balance of the Indebtedness, be immediately due and payable and bear interest at the Default
Rate from the date of disbursement until fully paid. The provisions of this Section 4 shall not be deemed to obligate or require
Lender to incur any expense or take any action.
5. Default;
Acceleration; Remedies.
(a) If
an Event of Default has occurred and is continuing, Lender, at its option, may declare the Indebtedness to be immediately due and payable
without further demand, and may either with or without entry or taking possession as herein provided or otherwise, proceed by suit or
suits at law or in equity or any other appropriate proceeding or remedy (1) to enforce payment of the Mortgage Loan; (2) to
foreclose this Security Instrument judicially or non-judicially by the STATUTORY POWER OF SALE granted herein; (3) to enforce or
exercise any right under any Loan Document; and (4) to pursue any one (1) or more other remedies provided in this Security
Instrument or in any other Loan Document or otherwise afforded by applicable law. Each right and remedy provided in this Security Instrument
or any other Loan Document is distinct from all other rights or remedies under this Security Instrument or any other Loan Document or
otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively,
in any order. Borrower has the right to bring an action to assert the nonexistence of an Event of Default or any other defense of Borrower
to acceleration and sale.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 11 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(b) This
Security Instrument is made upon the STATUTORY CONDITION provided for by M.G.L.c. 183 Section 20, and upon the further
condition that all covenants and agreements of Borrower contained in this Security Instrument shall be kept and fully performed, and upon
any breach of such covenants and agreements or if an Event of Default shall exist and continue under this Security Instrument, Lender
shall have, as to the Mortgaged Property, the STATUTORY POWER OF SALE. Borrower acknowledges that the STATUTORY POWER OF SALE granted
in this Security Instrument may be exercised or directed by Lender without prior judicial hearing. In the event Lender invokes the power
of sale:
(1) Lender
shall send to Borrower and any other Persons required to receive such notice, written notice of Lender’s election to cause the Mortgaged
Property to be sold. Borrower hereby authorizes and empowers Lender to take possession of the Mortgaged Property, or any part thereof,
and hereby grants to Lender a STATUTORY POWER OF SALE and authorizes and empowers Lender to sell (or, in the case of the default of any
purchaser, to resell) the Mortgaged Property or any part thereof, in compliance with applicable law, including compliance with any and
all notice and timing requirements for such sale;
(2) Lender
shall have the authority to determine the terms of the sale, subject to applicable law. In connection
with any such sale, the whole of the Mortgaged Property may be sold in one (1) parcel as an entirety or in separate lots or
parcels at the same or different times. Lender shall have the right to become the purchaser at any such sale. Lender shall be entitled
to receive costs and expenses from such sale not to exceed the amount permitted by applicable law;
(3) within
a reasonable time after the sale, Lender shall deliver to the purchaser of the Mortgaged Property a deed or such other appropriate conveyance
document conveying the Mortgaged Property so sold without any express or implied covenant or warranty. The recitals in such deed or document
shall be prima facie evidence of the truth of the statements made in those recitals; and
(4) the
outstanding principal amount of the Mortgage Loan and the other Indebtedness, if not previously due, shall be and become immediately
due and payable without demand or notice of any kind. If the Mortgaged Property is sold for an amount less than the amount outstanding
under the Indebtedness, the deficiency shall be determined by the purchase price at the sale or sales. Borrower waives all rights, claims,
and defenses with respect to Lender’s ability to obtain a deficiency judgment.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 12 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(c) Borrower
acknowledges and agrees that the proceeds of any sale shall be applied as determined by Lender unless otherwise required by applicable
law.
(d) In
connection with the exercise of Lender’s rights and remedies under this Security Instrument and any other Loan Document, there shall
be allowed and included as Indebtedness: (1) all expenditures and expenses authorized by applicable law and all other expenditures
and expenses which may be paid or incurred by or on behalf of Lender for reasonable legal fees, appraisal fees, outlays for documentary
and expert evidence, stenographic charges and publication costs; (2) all expenses of any environmental site assessments, environmental
audits, environmental remediation costs, appraisals, surveys, engineering studies, wetlands delineations, flood plain studies, and any
other similar testing or investigation deemed necessary or advisable by Lender incurred in preparation for, contemplation of or in connection
with the exercise of Lender’s rights and remedies under the Loan Documents; and (3) costs (which may be reasonably estimated
as to items to be expended in connection with the exercise of Lender’s rights and remedies under the Loan Documents) of procuring
all abstracts of title, title searches and examinations, title insurance policies, and similar data and assurance with respect to title
as Lender may deem reasonably necessary either to prosecute any suit or to evidence the true conditions of the title to or the value of
the Mortgaged Property to bidders at any sale which may be held in connection with the exercise of Lender’s rights and remedies
under the Loan Documents. All expenditures and expenses of the nature mentioned in this Section 5 and such other expenses and fees
as may be incurred in the protection of the Mortgaged Property and rents and income therefrom and the maintenance of the lien of this
Security Instrument, including the fees of any attorney employed by Lender in any litigation or proceedings affecting this Security Instrument,
the Note, the other Loan Documents, or the Mortgaged Property, including bankruptcy proceedings, any Foreclosure Event, or in preparation
of the commencement or defense of any proceedings or threatened suit or proceeding, or otherwise in dealing specifically therewith, shall
be so much additional Indebtedness and shall be immediately due and payable by Borrower, with interest thereon at the Default Rate until
paid.
(e) Any
action taken by Lender pursuant to the provisions of this Section 5 shall comply with the laws of the Property Jurisdiction. Such
applicable laws shall take precedence over the provisions of this Section 5, but shall not invalidate or render unenforceable any
other provision of any Loan Document that can be construed in a manner consistent with any applicable law. If any provision of this Security
Instrument shall grant to Lender (including Lender acting as a mortgagee-in-possession), or a receiver appointed pursuant to the provisions
of this Security Instrument any powers, rights or remedies prior to, upon, during the continuance of or following an Event of Default
that are more limited than the powers, rights, or remedies that would otherwise be vested in such party under any applicable law in the
absence of said provision, such party shall be vested with the powers, rights, and remedies granted in such applicable law to the full
extent permitted by law.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 13 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
6. Waiver
of Statute of Limitations and Marshaling.
Borrower hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the lien of this Security Instrument or to any action brought
to enforce any Loan Document. Notwithstanding the existence of any other security interests in the Mortgaged Property held by Lender or
by any other party, Lender shall have the right to determine the order in which any or all of the Mortgaged Property shall be subjected
to the remedies provided in this Security Instrument and/or any other Loan Document or by applicable law. Lender shall have the right
to determine the order in which any or all portions of the Indebtedness are satisfied from the proceeds realized upon the exercise of
such remedies. Borrower, for itself and all who may claim by, through or under it, and any
party who now or in the future acquires a security interest in the Mortgaged Property and who has actual or constructive notice of this
Security Instrument, waives any and all right to require the marshaling of assets or to require that any of the Mortgaged Property be
sold in the inverse order of alienation or that any of the Mortgaged Property be sold in parcels (at the same time or different times)
in connection with the exercise of any of the remedies provided in this Security Instrument or any other Loan Document, or afforded by
applicable law.
7. Waiver
of Redemption; Rights of Tenants.
(a) Borrower
hereby covenants and agrees that it will not at any time apply for, insist upon, plead, avail itself, or in any manner claim or take any
advantage of, any appraisement, stay, exemption or extension law or any so-called “Moratorium Law” now or at any time hereafter
enacted or in force in order to prevent or hinder the enforcement or foreclosure of this Security Instrument. Without limiting the foregoing:
(1) Borrower,
for itself and all Persons who may claim by, through or under Borrower, hereby expressly waives any so-called “Moratorium Law”
and any and all rights of reinstatement and redemption, if any, under any order or decree of foreclosure of this Security Instrument,
it being the intent hereof that any and all such “Moratorium Laws”, and all rights of reinstatement and redemption of Borrower
and of all other Persons claiming by, through or under Borrower are and shall be deemed to be hereby waived to the fullest extent permitted
by the laws of the Property Jurisdiction;
(2) Borrower
shall not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any right, power or remedy herein
or otherwise granted or delegated to Lender but will suffer and permit the execution of every such right, power and remedy as though no
such law or laws had been made or enacted; and
(3) if
Borrower is a trust, Borrower represents that the provisions of this Section 7 (including the waiver of reinstatement and redemption
rights) were made at the express direction of Borrower’s beneficiaries and the persons having the power of direction over Borrower,
and are made on behalf of the trust estate of Borrower and all beneficiaries of Borrower, as well as all other persons mentioned above.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 14 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(b) Lender
shall have the right to foreclose subject to the rights of any tenant or tenants of the Mortgaged Property having an interest in the Mortgaged
Property prior to that of Lender. The failure to join any such tenant or tenants of the Mortgaged Property as party defendant or defendants
in any such civil action or the failure of any decree of foreclosure and sale to foreclose their rights shall not be asserted by Borrower
as a defense in any civil action instituted to collect the Indebtedness, or any part thereof or any deficiency remaining unpaid after
foreclosure and sale of the Mortgaged Property, any statute or rule of law at any time existing to the contrary notwithstanding.
8. Notice.
(a) All
notices under this Security Instrument shall be:
(1) in
writing, and shall be (A) delivered, in person, (B) mailed, postage prepaid, either by registered or certified delivery, return
receipt requested, or (C) sent by overnight express courier;
(2) addressed
to the intended recipient at its respective address set forth at the end of this Security Instrument; and
(3) deemed
given on the earlier to occur of:
(A) the
date when the notice is received by the addressee; or
(B) if
the recipient refuses or rejects delivery, the date on which the notice is so refused or rejected, as conclusively established by the
records of the United States Postal Service or such express courier service.
(b) Any
party to this Security Instrument may change the address to which notices intended for it are to be directed by means of notice given
to the other party in accordance with this Section 8.
(c) Any
required notice under this Security Instrument which does not specify how notices are to be given shall be given in accordance with this
Section 8.
9. Mortgagee-in-Possession.
Borrower acknowledges and
agrees that the exercise by Lender of any of the rights conferred in this Security Instrument shall not be construed to make Lender a
mortgagee-in-possession of the Mortgaged Property so long as Lender has not itself entered into actual possession of the Land and Improvements.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 15 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
10. Release.
Upon payment of the Indebtedness,
Lender shall discharge this Security Instrument. Borrower shall pay Lender’s reasonable costs incurred in discharging this Security
Instrument.
11. Governing
Law; Consent to Jurisdiction and Venue.
This Security Instrument shall
be governed by the laws of the Property Jurisdiction without giving effect to any choice of law provisions thereof that would result in
the application of the laws of another jurisdiction. Borrower agrees that any controversy arising under or in relation to this Security
Instrument shall be litigated exclusively in the Property Jurisdiction. The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all controversies that arise under or in relation to any security
for the Indebtedness. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation and waives
any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.
12. Miscellaneous
Provisions.
(a) This
Security Instrument shall bind, and the rights granted by this Security Instrument shall benefit, the successors and assigns of Lender.
This Security Instrument shall bind, and the obligations granted by this Security Instrument shall inure to, any permitted successors
and assigns of Borrower under the Loan Agreement. If more than one (1) person or entity signs this Security Instrument as Borrower,
the obligations of such persons and entities shall be joint and several. The relationship between Lender and Borrower shall be solely
that of creditor and debtor, respectively, and nothing contained in this Security Instrument shall create any other relationship between
Lender and Borrower. No creditor of any party to this Security Instrument and no other person shall be a third party beneficiary of this
Security Instrument or any other Loan Document.
(b) The
invalidity or unenforceability of any provision of this Security Instrument or any other Loan Document shall not affect the validity or
enforceability of any other provision of this Security Instrument or of any other Loan Document, all of which shall remain in full force
and effect. This Security Instrument contains the complete and entire agreement among the parties as to the matters covered, rights granted
and the obligations assumed in this Security Instrument. This Security Instrument may not be amended or modified except by written agreement
signed by the parties hereto.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 16 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
(c) The
following rules of construction shall apply to this Security Instrument:
(1) The
captions and headings of the sections of this Security Instrument are for convenience only and shall be disregarded in construing this
Security Instrument.
(2) Any
reference in this Security Instrument to an “Exhibit” or “Schedule” or a “Section” or an “Article”
shall, unless otherwise explicitly provided, be construed as referring, respectively, to an exhibit or schedule attached to this Security
Instrument or to a Section or Article of this Security Instrument.
(3) Any
reference in this Security Instrument to a statute or regulation shall be construed as referring to that statute or regulation as amended
from time to time.
(4) Use
of the singular in this Security Instrument includes the plural and use of the plural includes the singular.
(5) As
used in this Security Instrument, the term “including” means “including, but not limited to” or “including,
without limitation,” and is for example only, and not a limitation.
(6) Whenever
Borrower’s knowledge is implicated in this Security Instrument or the phrase “to Borrower’s knowledge” or a similar
phrase is used in this Security Instrument, Borrower’s knowledge or such phrase(s) shall be interpreted to mean to the best
of Borrower’s knowledge after reasonable and diligent inquiry and investigation.
(7) Unless
otherwise provided in this Security Instrument, if Lender’s approval, designation, determination, selection, estimate, action or
decision is required, permitted or contemplated hereunder, such approval, designation, determination, selection, estimate, action or decision
shall be made in Lender’s sole and absolute discretion.
(8) All
references in this Security Instrument to a separate instrument or agreement shall include such instrument or agreement as the same may
be amended or supplemented from time to time pursuant to the applicable provisions thereof.
(9) “Lender
may” shall mean at Lender’s discretion, but shall not be an obligation.
13. Time
is of the Essence.
Borrower agrees that, with
respect to each and every obligation and covenant contained in this Security Instrument and the other Loan Documents, time is of the essence.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 17 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
14. WAIVER
OF TRIAL BY JURY.
TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH
RESPECT TO ANY ISSUE ARISING OUT OF THIS SECURITY INSTRUMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER THAT IS TRIABLE
OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH OF BORROWER AND LENDER, KNOWINGLY AND VOLUNTARILY
WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED
EXHIBITS. The following Exhibits are attached to this Security Instrument and incorporated fully herein by reference:
| x | Exhibit A |
Description of the Land (required) |
| x | Exhibit B |
Modifications to Security Instrument
(Master Credit Facility Agreement) |
[Remainder of Page Intentionally Blank]
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page 18 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
IN
WITNESS WHEREOF, Borrower has signed and delivered this Security Instrument under seal (where applicable) or has caused this
Security Instrument to be signed and delivered by its duly authorized representative under seal (where applicable). Where applicable law
so provides, Borrower intends that this Security Instrument shall be deemed to be signed and delivered as a sealed instrument.
| |
BORROWER: |
| |
|
| |
NERA DEAN STREET ASSOCIATES, LLC, |
| |
a Delaware limited liability company |
| |
|
| |
By: |
NewReal, Inc., |
| |
|
a Massachusetts corporation |
| |
|
its Manager |
| |
|
|
| |
|
|
| |
|
By: |
|
(SEAL) |
| |
|
Name: |
Ronald Brown |
|
| |
|
Title: |
President |
|
| |
|
|
| |
|
|
| |
|
By: |
|
(SEAL) |
| |
|
Name: |
Jameson Brown |
|
| |
|
Title: |
Treasurer |
|
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page S-1 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
COMMONWEALTH OF MASSACHUSETTS
COUNTY
OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Ronald Brown, the President of
NewReal, Inc., a Massachusetts corporation, the Manager of NERA Dean Street Associates, LLC, a Delaware limited liability
company, proved to me through satisfactory evidence of identification, which were ______________________________, to be the person whose
name is signed on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose
or is the free act and deed of the party signing the document.
_____________________________________
Notary Public
My Commission Expires:______________
COMMONWEALTH OF MASSACHUSETTS
COUNTY
OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Jameson Brown, the Treasurer of
NewReal, Inc., a Massachusetts corporation, the Manager of NERA Dean Street Associates, LLC, a Delaware limited liability
company, proved to me through satisfactory evidence of identification, which were ______________________________, to be the person whose
name is signed on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose
or is the free act and deed of the party signing the document.
_____________________________________
Notary Public
My Commission Expires:______________
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page S-2 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
| |
The name, chief executive office and organizational identification
number of Borrower (as Debtor under any applicable Uniform Commercial Code) are:
Debtor Name/Record
Owner: NERA Dean Street Associates, LLC
Debtor Chief Executive Office Address:
c/o The Hamilton Company, Inc.
39 Brighton Avenue
Boston, Massachusetts 02134
Attn: Jameson Brown, CEO and Andrew Bloch, CFO
Debtor Organizational ID Number: 3528150 |
| |
|
| |
The name and chief executive office of Lender (as Secured Party) are:
Secured Party Name: KeyBank National Association
Secured Party Chief Executive Office Address:
127 Public Square
Cleveland, Ohio 44114
Lender Notice Address:
KeyBank Real Estate Capital - Servicing Department
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Mail code: KS-01-11-0501
Attention: Servicing Manager
|
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page S-3 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
STONEBRIDGE APARTMENTS
EXHIBIT A
Lot A
A Certain parcel of land situated in Norwood,
Norfolk County, Massachusetts, being shown as Lot A on a plan entitled “Land in Norwood, Mass. of Trustees of Penn Central Transportation
Co. D.R. to be conveyed to George & Delores Elias,” dated December 14, 1970, prepared by R. E. Cameron &
Associates, Surveyors, which plan is recorded in the Norfolk County Registry of Dees as Plan No. 173 of 1971 in Book 4723, Page 300.
Said Lot A is further bounded and described as follows:
|
SOUTHERLY |
by Dean Street, four hundred sixty-three and 42/100 (463.42) feet; |
|
NORTHWESTERLY |
four hundred ninety-two (492) feet; |
| NORTHEASTERLY | by land marked “Florence Caras & Marian Rogovin” on said plan three hundred twenty-eight
and 75/100 (328.75) feet; |
| EASTERLY | by Lot B as shown on said plan by two lines measuring two hundred forty-eight and 30/100 (248.30) feet
and one hundred thirty-six and 05/100 9136.05) feet, respectively. |
Lot A is also shown as a parcel marked “3
50/100 Acres” on a plan entitled “Plan of Land in Norwood, Mass. Belonging to George H. Morrill,” dated January 1898
and recorded in the Norfolk County Registry of Deeds in Book 810, Page 393.
Lot B
A certain parcel of land situated in said Norwood
and being shown as Lot B on the first mentioned plan. Said Lot B being further bounded and described as follows:
|
SOUTHERLY |
by
Dean Street sixty-three and 82/100 (63.82) feet; |
| WESTERLY | by Lot A as shown on said plan by two lines measuring one hundred thirty-six and 05/100 (136.05) feet
and two hundred forty-eight and 30/100 (248.30) feet, respectively |
| WESTERLY | by land marked “Florence Caras & Marian Rogovin” on said plan five hundred fifty-three
and 94/100 (553.94) feet; |
| NORTHERLY | ten and 05/100 (10.05) feet; and |
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page A-1 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
| EASTERLY | by land now or formerly of Penn Central Transportation Company by three lines measuring two hundred seventeen
(217) feet, five hundred eighty-one and 15/100 (581.15) feet and one hundred sixty-four and 70/100 (164.70) feet, respectively. |
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page A-2 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
EXHIBIT B
MODIFICATIONS TO SECURITY
INSTRUMENT
(Master Credit Facility Agreement)
The foregoing Security Instrument
is hereby modified as follows:
1. Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Security Instrument.
2. Section 5
of the Security Instrument is hereby amended by replacing the first word of paragraph (a) “If” with the phrase “Subject
to the terms of the Loan Agreement, if.”
3. Section 10
of the Security Instrument is hereby amended and restated as follows:
10. Release.
Reference is hereby
made to Section 2.10 (Collateral Events) of the Loan Agreement. Subject to the terms, conditions and limitations of such Article,
Borrower is entitled to obtain a release of this Security Instrument. If the original Lender named in this Security Instrument, or any
successor, assignee or transferee to the original Lender’s interest in this Security Instrument, assigns or otherwise disposes of
its interest in this Security Instrument and the Note, then upon such assignment or other disposition all liabilities and obligations
to release the Mortgaged Property covered by this Security Instrument on the part of the original Lender, or such successor Lender, which
accrue after such assignment or disposition shall cease and terminate and each successor Lender shall, without further agreement, be bound
by Lender’s obligation to release the Mortgaged Property when obligated to do so under the Loan Agreement, but only during the period
of such successor Lender’s ownership of the interest in this Security Instrument and the Note. PROVIDED ALWAYS, and this Security
Instrument is upon the express condition that, if Borrower pays to Lender the entire unpaid principal balance of the Note, the interest
thereon and all other sums payable by Borrower to Lender as are secured by this Security Instrument, in accordance with the provisions
of the Loan Agreement, the Note, this Security Instrument and the other Loan Documents, at the times and in the manner specified, without
offset, deduction, fraud or delay, and Borrower complies with all the agreements, conditions, covenants, provisions and stipulations contained
in the Loan Agreement, the Note, this Security Instrument and the other Loan Documents, then this Security Instrument and the estate hereby
granted shall cease and become void and Lender shall cancel this Security Instrument.
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page B-1 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
4. Section 11
of the Security Instrument is hereby amended and restated as follows:
11. Governing
Law; Consent to Jurisdiction and Venue.
The provisions of
Section 15.01 of the Loan Agreement (entitled Choice of Law; Consent to Jurisdiction) are hereby incorporated into this Security
Instrument by this reference to the fullest extent as if the text of such Section were set forth in its entirety herein and, additionally,
those provisions relating to the waiver of jury trial set forth in Section 15.02 of the Loan Agreement shall be deemed to supplement
those provisions contained in Section 14 of this Security Instrument.
5. The
following section is hereby added to the Security Instrument as Section 15 (Substitution):
15. Substitution.
The provisions of
Section 2.10 (Collateral Events) of the Loan Agreement are hereby incorporated by reference as if such provisions were set forth
in their entirety herein.
6. The
following section is hereby added to the Security Instrument as Section 16 (Remedies Against Other Collateral):
16. Remedies
Against Other Collateral.
Borrower hereby
acknowledges that the Indebtedness is also secured by liens on collateral which may be located in jurisdictions other than the Property
Jurisdiction. Borrower further agrees and consents that upon the occurrence and during the continuance of an Event of Default, Lender
shall have the right, in its sole and absolute discretion, to exercise any and all rights and remedies in and under any of the Loan Documents,
including the right to proceed, at the same or at different times, to foreclose any or all liens against such collateral (or sell such
collateral under power of sale) in accordance with the terms of this Security Instrument or any other Security Instrument, by any proceedings
appropriate in the jurisdictions where such collateral is located, and that no enforcement action taking place in any jurisdiction shall
preclude or bar enforcement in any other jurisdiction. Any Foreclosure Event brought in any jurisdiction in which collateral is located
may be brought and prosecuted as to any part of such collateral without regard to the fact that a Foreclosure Event has not been instituted
elsewhere on any other part of the collateral for the Indebtedness. No notice, except as may be expressly required by the Loan Documents
or by applicable law, shall be required to be given to Borrower in connection with (a) the occurrence of such Event of Default, or
(b) Lender’s exercise of any and all of its rights or remedies after the occurrence of such Event of Default.
[Remainder of Page Intentionally Blank]
| Fannie Mae Multifamily Security Instrument |
Form 6025.MA |
Page B-2 |
| Massachusetts (Stonebridge Apartments, Norfolk County) |
06-12 |
© 2012 Fannie Mae |
| HAMILTON/KeyBank (2021 MCFA) |
|
|
Prepared by, and after recording
return to:
Venable LLP
600 Massachusetts Avenue, NW
Washington, DC 20001
Attention: Stephanie L. DeLong, Esq.
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
(MASSACHUSETTS)
(MIDDLESEX COUNTY)
(WESTGATE APARTMENTS)
Property
Address: 2 Westgate Dr, Woburn, Middlesex County, Massachusetts 01801
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
|
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
MULTIFAMILY
MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT
AND FIXTURE FILING
This MULTIFAMILY MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (as amended, restated, replaced, supplemented, or otherwise modified
from time to time, the “Security Instrument”) dated as of June 16, 2022, is executed by WESTGATE APARTMENTS,
LLC, a limited liability company organized and existing under the laws of Delaware, as mortgagor (“Borrower”),
to and for the benefit of KEYBANK NATIONAL ASSOCIATION, a national banking association, as mortgagee (“Lender”).
Borrower,
Lender and others are parties to that certain Master Credit Facility Agreement dated as of November 30, 2021 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”). Lender shall, from
time to time, make Advances to Borrower in accordance with the terms of the Loan Agreement. All Advances made in accordance with the Loan
Agreement are referred to, collectively, as the “Mortgage Loan.”
Borrower,
in consideration of (i) the Mortgage Loan evidenced by (a) that certain Multifamily Note in the original principal amount of
$156,000,000 dated as of November 30, 2021, executed by Borrower and others and made payable to the order of Lender, (b) that
certain Multifamily Note in the original principal amount of $80,284,000 dated as of June 16, 2022, executed by Borrower and others
and made payable to the order of Lender, (c) all schedules, riders, allonges, addenda, renewals, extensions, amendments and modifications
thereto, and (d) any additional Multifamily Notes issued from time to time pursuant to the Loan Agreement and all schedules, riders,
allonges, addenda, renewals, extensions, amendments and modifications thereto (individually and collectively, as amended, restated, replaced,
supplemented or otherwise modified from time to time, the “Note”), and (ii) the Loan Agreement, and to secure
to Lender the repayment of the Indebtedness (as defined in this Security Instrument), and all renewals, extensions and modifications thereof,
and the performance of the covenants and agreements of Borrower contained in the Loan Documents (as defined in the Loan Agreement), excluding
the Environmental Indemnity Agreement (as defined in this Security Instrument), irrevocably and unconditionally mortgages, grants, assigns,
remises, releases, warrants and conveys to and for the benefit of Lender, with power of sale, the Mortgaged Property (as defined in this
Security Instrument), including the real property located at the municipal address of 2 Westgate Dr, Woburn, Massachusetts 01801 in the
County of Middlesex, Commonwealth of Massachusetts, and described in Exhibit A attached to this Security Instrument and incorporated
by reference (the “Land”), to have and to hold such Mortgaged Property unto Lender and Lender’s successors and
assigns, forever; Borrower hereby releasing, relinquishing and waiving, to the fullest extent allowed by law, all rights and benefits,
if any, under and by virtue of the homestead exemption laws of the Property Jurisdiction (as defined in this Security Instrument), if
applicable. This Security Instrument and all of the grants herein, are made with MORTGAGE COVENANTS within the meaning of M.G.L.c. 183 Section 19.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 1 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
Borrower represents and warrants
that Borrower is lawfully seized of the Mortgaged Property and has the right, power and authority to mortgage, grant, assign, remise,
release, warrant and convey the Mortgaged Property, and that the Mortgaged Property is not encumbered by any Lien (as defined in this
Security Instrument) other than Permitted Encumbrances (as defined in this Security Instrument). Borrower covenants that Borrower will
warrant and defend the title to the Mortgaged Property against all claims and demands other than Permitted Encumbrances.
Borrower and Lender, by its acceptance hereof,
each covenants and agrees as follows:
Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Loan Agreement. All terms used and
not specifically defined herein, but which are otherwise defined by the UCC, shall have the meanings assigned to them by the UCC. The
following terms, when used in this Security Instrument, shall have the following meanings:
“Condemnation Action” means
any action or proceeding, however characterized or named, relating to any condemnation or other taking, or conveyance in lieu thereof,
of all or any part of the Mortgaged Property, whether direct or indirect.
“Enforcement Costs” means all
expenses and costs, including reasonable attorneys’ fees and expenses, fees and out-of-pocket expenses of expert witnesses and costs
of investigation, incurred by Lender as a result of any Event of Default under the Loan Agreement or in connection with efforts to collect
any amount due under the Loan Documents, or to enforce the provisions of the Loan Agreement or any of the other Loan Documents, including
those incurred in post-judgment collection efforts and in any bankruptcy or insolvency proceeding (including any action for relief from
the automatic stay of any bankruptcy proceeding or Foreclosure Event) or judicial or non-judicial foreclosure proceeding, to the extent
permitted by law.
“Environmental Indemnity Agreement”
means that certain Environmental Indemnity Agreement dated as of the date of the Loan Agreement, executed by Borrower to and for the benefit
of Lender, as the same may be amended, restated, replaced, supplemented, or otherwise modified from time to time.
“Environmental Laws” has the
meaning set forth in the Environmental Indemnity Agreement.
“Event of Default” has the
meaning set forth in the Loan Agreement.
“Fixtures” means all Goods
that are so attached or affixed to the Land or the Improvements as to constitute a fixture under the laws of the Property Jurisdiction.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 2 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
“Goods”
means all of Borrower’s present and hereafter acquired right, title and interest in all goods which are used now or in the
future in connection with the ownership, management, or operation of the Land or the Improvements or are located on the Land or in the
Improvements, including inventory; furniture; furnishings; machinery, equipment, engines, boilers, incinerators, and installed building
materials; systems and equipment for the purpose of supplying or distributing heating, cooling, electricity, gas, water, air, or light;
antennas, cable, wiring, and conduits used in connection with radio, television, security, fire prevention, or fire detection, or otherwise
used to carry electronic signals; telephone systems and equipment; elevators and related machinery and equipment; fire detection, prevention
and extinguishing systems and apparatus; security and access control systems and apparatus; plumbing systems; water heaters, ranges, stoves,
microwave ovens, refrigerators, dishwashers, garbage disposers, washers, dryers, and other appliances; light fixtures, awnings, storm
windows, and storm doors; pictures, screens, blinds, shades, curtains, and curtain rods; mirrors, cabinets, paneling, rugs, and floor
and wall coverings; fences, trees, and plants; swimming pools; exercise equipment; supplies; tools; books and records (whether in written
or electronic form); websites, URLs, blogs, and social network pages; computer equipment (hardware and software); and other tangible personal
property which is used now or in the future in connection with the ownership, management, or operation of the Land or the Improvements
or are located on the Land or in the Improvements.
“Imposition Deposits” means
deposits in an amount sufficient to accumulate with Lender the entire sum required to pay the Impositions when due.
“Impositions” means
(a) any
water and sewer charges which, if not paid, may result in a lien on all or any part of the Mortgaged Property;
(b) the
premiums for fire and other casualty insurance, liability insurance, rent loss insurance and such other insurance as Lender may require
under the Loan Agreement;
(c) Taxes;
and
(d) amounts
for other charges and expenses assessed against the Mortgaged Property which Lender at any time reasonably deems necessary to protect
the Mortgaged Property, to prevent the imposition of liens on the Mortgaged Property, or otherwise to protect Lender’s interests,
all as reasonably determined from time to time by Lender.
“Improvements” means the buildings,
structures, improvements, and alterations now constructed or at any time in the future constructed or placed upon the Land, including
any future replacements, facilities, and additions and other construction on the Land.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 3 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
“Indebtedness” means the principal
of, interest on, and all other amounts due at any time under the Note, the Loan Agreement, this Security Instrument or any other Loan
Document (other than the Environmental Indemnity Agreement and Guaranty), including Prepayment Premiums, late charges, interest charged
at the Default Rate, and accrued interest as provided in the Loan Agreement and this Security Instrument, advances, costs and expenses
to perform the obligations of Borrower or to protect the Mortgaged Property or the security of this Security Instrument, all other monetary
obligations of Borrower under the Loan Documents (other than the Environmental Indemnity Agreement), including amounts due as a result
of any indemnification obligations, and any Enforcement Costs.
“Land” means the real property
described in Exhibit A.
“Leases” means all present
and future leases, subleases, licenses, concessions or grants or other possessory interests now or hereafter in force, whether oral or
written, covering or affecting the Mortgaged Property, or any portion of the Mortgaged Property (including proprietary leases or occupancy
agreements if Borrower is a cooperative housing corporation), and all modifications, extensions or renewals thereof.
“Lien” means any claim or charge
against property for payment of a debt or an amount owed for services rendered, including any mortgage, deed of trust, deed to secure
debt, security interest, tax lien, any materialman’s or mechanic’s lien, or any lien of a Governmental Authority, including
any lien in connection with the payment of utilities, or any other encumbrance.
“Mortgaged Property” means
all of Borrower’s present and hereafter acquired right, title and interest, if any, in and to all of the following:
(a) the
Land;
(b) the
Improvements;
(c) the
Personalty;
(d) current
and future rights, including air rights, development rights, zoning rights and other similar rights or interests, easements, tenements,
rights-of-way, strips and gores of land, streets, alleys, roads, sewer rights, waters, watercourses, and appurtenances related to or benefitting
the Land or the Improvements, or both, and all rights-of-way, streets, alleys and roads which may have been or may in the future be vacated;
(e) insurance
policies relating to the Mortgaged Property (and any unearned premiums) and all proceeds paid or to be paid by any insurer of the Land,
the Improvements, the Personalty, or any other part of the Mortgaged Property, whether or not Borrower obtained the insurance pursuant
to Lender’s requirements;
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 4 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
(f) awards,
payments and other compensation made or to be made by any municipal, state or federal authority with respect to the Land, the Improvements,
the Personalty, or any other part of the Mortgaged Property, including any awards or settlements resulting from (1) Condemnation
Actions, (2) any damage to the Mortgaged Property caused by governmental action that does not result in a Condemnation Action, or
(3) the total or partial taking of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property under
the power of eminent domain or otherwise and including any conveyance in lieu thereof;
(g) contracts,
options and other agreements for the sale of the Land, the Improvements, the Personalty, or any other part of the Mortgaged Property
entered into by Borrower now or in the future, including cash or securities deposited to secure performance by parties of their obligations;
(h) Leases
and Lease guaranties, letters of credit and any other supporting obligation for any of the Leases given in connection with any of the
Leases, and all Rents;
(i) earnings,
royalties, accounts receivable, issues and profits from the Land, the Improvements or any other part of the Mortgaged Property, and all
undisbursed proceeds of the Mortgage Loan and, if Borrower is a cooperative housing corporation, maintenance charges or assessments payable
by shareholders or residents;
(j) Imposition
Deposits;
(k) refunds
or rebates of Impositions by any municipal, state or federal authority or insurance company (other than refunds applicable to periods
before the real property tax year in which this Security Instrument is dated);
(l) tenant
security deposits;
(m) names
under or by which any of the above Mortgaged Property may be operated or known, and all trademarks, trade names, and goodwill relating
to any of the Mortgaged Property;
(n) Collateral
Accounts and all Collateral Account Funds;
(o) products,
and all cash and non-cash proceeds from the conversion, voluntary or involuntary, of any of the above into cash or liquidated claims,
and the right to collect such proceeds; and
(p) all
of Borrower’s right, title and interest in the oil, gas, minerals, mineral interests, royalties, overriding royalties, production
payments, net profit interests and other interests and estates in, under and on the Mortgaged Property and other oil, gas and mineral
interests with which any of the foregoing interests or estates are pooled or unitized.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 5 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
“Permitted
Encumbrance” means only the easements, restrictions and other matters listed in a schedule of exceptions to coverage
in the Title Policy and Taxes for the current tax year that are not yet due and payable.
“Personalty” means all of Borrower’s
present and hereafter acquired right, title and interest in all Goods, accounts, choses of action, chattel paper, documents, general intangibles
(including Software), payment intangibles, instruments, investment property, letter of credit rights, supporting obligations, computer
information, source codes, object codes, records and data, all telephone numbers or listings, claims (including claims for indemnity or
breach of warranty), deposit accounts and other property or assets of any kind or nature related to the Land or the Improvements now or
in the future, including operating agreements, surveys, plans and specifications and contracts for architectural, engineering and construction
services relating to the Land or the Improvements, and all other intangible property and rights relating to the operation of, or used
in connection with, the Land or the Improvements, including all governmental permits relating to any activities on the Land.
“Prepayment Premium” has the
meaning set forth in the Loan Agreement.
“Property Jurisdiction” means
the jurisdiction in which the Land is located.
“Rents” means all rents (whether
from residential or non-residential space), revenues and other income from the Land or the Improvements, including subsidy payments received
from any sources, including payments under any “Housing Assistance Payments Contract” or other rental subsidy agreement (if
any), parking fees, laundry and vending machine income and fees and charges for food, health care and other services provided at the Mortgaged
Property, whether now due, past due, or to become due, and tenant security deposits.
“Software”
means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does
not include any computer program that is included in the definition of Goods.
“Taxes” means all taxes, assessments,
vault rentals and other charges, if any, general, special or otherwise, including assessments for schools, public betterments and general
or local improvements, which are levied, assessed or imposed by any public authority or quasi-public authority, and which, if not paid,
may become a lien, on the Land or the Improvements or any taxes upon any Loan Document.
“Title Policy” has the meaning
set forth in the Loan Agreement.
“UCC” means the Uniform Commercial
Code in effect in the Property Jurisdiction, as amended from time to time.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 6 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
“UCC Collateral” means any
or all of that portion of the Mortgaged Property in which a security interest may be granted under the UCC and in which Borrower has any
present or hereafter acquired right, title or interest.
2. Security
Agreement; Fixture Filing.
(a) To
secure to Lender, the repayment of the Indebtedness, and all renewals, extensions and modifications thereof, and the performance of the
covenants and agreements of Borrower contained in the Loan Documents, Borrower hereby pledges, assigns, and grants to Lender a continuing
security interest in the UCC Collateral. This Security Instrument constitutes a security agreement and a financing statement under the
UCC. This Security Instrument also constitutes a financing statement pursuant to the terms of the UCC with respect to any part of the
Mortgaged Property that is or may become a Fixture under applicable law, and will be recorded as a “fixture filing” in accordance
with the UCC. Borrower hereby authorizes Lender to file financing statements, continuation statements and financing statement amendments
in such form as Lender may require to perfect or continue the perfection of this security interest without the signature of Borrower.
If an Event of Default has occurred and is continuing, Lender shall have the remedies of a secured party under the UCC or otherwise provided
at law or in equity, in addition to all remedies provided by this Security Instrument and in any Loan Document. Lender may exercise any
or all of its remedies against the UCC Collateral separately or together, and in any order, without in any way affecting the availability
or validity of Lender’s other remedies. For purposes of the UCC, the debtor is Borrower and the secured party is Lender. The name
and address of the debtor and secured party are set forth after Borrower’s signature below which are the addresses from which information
on the security interest may be obtained.
(b) Borrower
represents and warrants that: (1) Borrower maintains its chief executive office at the location set forth after Borrower’s
signature below, and Borrower will notify Lender in writing of any change in its chief executive office within five (5) days
of such change; (2) Borrower is the record owner of the Mortgaged Property; (3) Borrower’s state of incorporation, organization,
or formation, if applicable, is as set forth on Page 1 of this Security Instrument; (4) Borrower’s exact legal name is
as set forth on Page 1 of this Security Instrument; (5) Borrower’s organizational identification number, if applicable,
is as set forth after Borrower’s signature below; (6) Borrower is the owner of the UCC Collateral subject to no liens, charges
or encumbrances other than the lien hereof; (7) except as expressly provided in the Loan Agreement, the UCC Collateral will not be
removed from the Mortgaged Property without the consent of Lender; and (8) no financing statement covering any of the UCC Collateral
or any proceeds thereof is on file in any public office except pursuant hereto.
(c) All
property of every kind acquired by Borrower after the date of this Security Instrument which by the terms of this Security Instrument
shall be subject to the lien and the security interest created hereby, shall immediately upon the acquisition thereof by Borrower and
without further conveyance or assignment become subject to the lien and security interest created by this Security Instrument. Nevertheless,
Borrower shall execute, acknowledge, deliver and record or file, as appropriate, all and every such further deeds of trust, mortgages,
deeds to secure debt, security agreements, financing statements, assignments and assurances as Lender shall require for accomplishing
the purposes of this Security Instrument and to comply with the rerecording requirements of the UCC.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 7 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
3. Assignment
of Leases and Rents; Appointment of Receiver; Lender in Possession.
(a) As
part of the consideration for the Indebtedness, Borrower absolutely and unconditionally assigns and transfers to Lender all Leases and
Rents. It is the intention of Borrower to establish present, absolute and irrevocable transfers and assignments to Lender of all Leases
and Rents and to authorize and empower Lender to collect and receive all Rents without the necessity of further action on the part of
Borrower. Borrower and Lender intend the assignments of Leases and Rents to be effective immediately and to constitute absolute present
assignments, and not assignments for additional security only. Only for purposes of giving effect to these absolute assignments of Leases
and Rents, and for no other purpose, the Leases and Rents shall not be deemed to be a part of the Mortgaged Property. However, if these
present, absolute and unconditional assignments of Leases and Rents are not enforceable by their terms under the laws of the Property
Jurisdiction, then each of the Leases and Rents shall be included as part of the Mortgaged Property, and it is the intention of Borrower,
in such circumstance, that this Security Instrument create and perfect a lien on each of the Leases and Rents in favor of Lender, which
liens shall be effective as of the date of this Security Instrument.
(b) Until
an Event of Default has occurred and is continuing, but subject to the limitations set forth in the Loan Documents, Borrower shall have
a revocable license to exercise all rights, power and authority granted to Borrower under the Leases (including the right, power and authority
to modify the terms of any Lease, extend or terminate any Lease, or enter into new Leases, subject to the limitations set forth in the
Loan Documents), and to collect and receive all Rents, to hold all Rents in trust for the benefit of Lender, and to apply all Rents to
pay the Monthly Debt Service Payments and the other amounts then due and payable under the other Loan Documents, including Imposition
Deposits, and to pay the current costs and expenses of managing, operating and maintaining the Mortgaged Property, including utilities
and Impositions (to the extent not included in Imposition Deposits), tenant improvements and other capital expenditures. So long as no
Event of Default has occurred and is continuing (and no event which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default has occurred and is continuing), the Rents remaining after application pursuant to the preceding sentence
may be retained and distributed by Borrower free and clear of, and released from, Lender’s rights with respect to Rents under this
Security Instrument.
(c) If
an Event of Default has occurred and is continuing, without the necessity of Lender entering upon and taking and maintaining control of
the Mortgaged Property directly, by a receiver, or by any other manner or proceeding permitted by the laws of the Property Jurisdiction,
the revocable license granted to Borrower pursuant to Section 3(b) shall automatically terminate, and Lender shall immediately
have all rights, powers and authority granted to Borrower under any Lease (including the right, power and authority to modify the terms
of any such Lease, or extend or terminate any such Lease) and, without notice, Lender shall be entitled to all Rents as they become due
and payable, including Rents then due and unpaid. During the continuance of an Event of Default, Borrower authorizes Lender to collect,
sue for and compromise Rents and directs each tenant of the Mortgaged Property to pay all Rents to, or as directed by, Lender, and Borrower
shall, upon Borrower’s receipt of any Rents from any sources, pay the total amount of such receipts to Lender. Although the foregoing
rights of Lender are self-effecting, at any time during the continuance of an Event of Default, Lender may make demand for all Rents,
and Lender may give, and Borrower hereby irrevocably authorizes Lender to give, notice to all tenants of the Mortgaged Property instructing
them to pay all Rents to Lender. No tenant shall be obligated to inquire further as to the occurrence or continuance of an Event of Default,
and no tenant shall be obligated to pay to Borrower any amounts that are actually paid to Lender in response to such a notice. Any such
notice by Lender shall be delivered to each tenant personally, by mail or by delivering such demand to each rental unit.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 8 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
(d) If
an Event of Default has occurred and is continuing, Lender may, regardless of the adequacy of Lender’s security or the solvency
of Borrower, and even in the absence of waste, enter upon, take and maintain full control of the Mortgaged Property, and may exclude Borrower
and its agents and employees therefrom, in order to perform all acts that Lender, in its discretion, determines to be necessary or desirable
for the operation and maintenance of the Mortgaged Property, including the execution, cancellation or modification of Leases, the collection
of all Rents (including through use of a lockbox, at Lender’s election), the making of repairs to the Mortgaged Property and the
execution or termination of contracts providing for the management, operation or maintenance of the Mortgaged Property, for the purposes
of enforcing this assignment of Rents, protecting the Mortgaged Property or the security of this Security Instrument and the Mortgage
Loan, or for such other purposes as Lender in its discretion may deem necessary or desirable.
(e) Notwithstanding
any other right provided Lender under this Security Instrument or any other Loan Document, if an Event of Default has occurred and is
continuing, and regardless of the adequacy of Lender’s security or Borrower’s solvency, and without the necessity of giving
prior notice (oral or written) to Borrower, Lender may apply to any court having jurisdiction for the appointment of a receiver for the
Mortgaged Property to take any or all of the actions set forth in Section 3. If Lender elects to seek the appointment of a receiver
for the Mortgaged Property at any time after an Event of Default has occurred and is continuing, Borrower, by its execution of this Security
Instrument, expressly consents to the appointment of such receiver, including the appointment of a receiver ex parte, if permitted
by applicable law. Borrower consents to shortened time consideration of a motion to appoint a receiver. Lender or the receiver, as applicable,
shall be entitled to receive a reasonable fee for managing the Mortgaged Property and such fee shall become an additional part of the
Indebtedness. Immediately upon appointment of a receiver or Lender’s entry upon and taking possession and control of the Mortgaged
Property, possession of the Mortgaged Property and all documents, records (including records on electronic or magnetic media), accounts,
surveys, plans, and specifications relating to the Mortgaged Property, and all security deposits and prepaid Rents, shall be surrendered
to Lender or the receiver, as applicable. If Lender or receiver takes possession and control of the Mortgaged Property, Lender or receiver
may exclude Borrower and its representatives from the Mortgaged Property.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 9 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
(f) The
acceptance by Lender of the assignments of the Leases and Rents pursuant to this Section 3 shall not at any time or in any event
obligate Lender to take any action under any Loan Document or to expend any money or to incur any expense. Lender shall not be liable
in any way for any injury or damage to person or property sustained by any Person in, on or about the Mortgaged Property. Prior to Lender’s
actual entry upon and taking possession and control of the Land and Improvements, Lender shall not be:
(1) obligated
to perform any of the terms, covenants and conditions contained in any Lease (or otherwise have any obligation with respect to any Lease);
(2) obligated
to appear in or defend any action or proceeding relating to any Lease or the Mortgaged Property; or
(3) responsible
for the operation, control, care, management or repair of the Mortgaged Property or any portion of the Mortgaged Property.
The execution of this Security Instrument shall
constitute conclusive evidence that all responsibility for the operation, control, care, management and repair of the Mortgaged Property
is and shall be that of Borrower, prior to such actual entry and taking possession and control by Lender of the Land and Improvements.
(g) Lender
shall be liable to account only to Borrower and only for Rents actually received by Lender. Lender shall not be liable to Borrower, anyone
claiming under or through Borrower or anyone having an interest in the Mortgaged Property by reason of any act or omission of Lender
under this Section 3, and Borrower hereby releases and discharges Lender from any such liability to the fullest extent permitted
by law, provided that Lender shall not be released from liability that occurs as a result of Lender’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction pursuant to a final, non-appealable court order. If the Rents are not sufficient
to meet the costs of taking control of and managing the Mortgaged Property and collecting the Rents, any funds expended by Lender for
such purposes shall be added to, and become a part of, the principal balance of the Indebtedness, be immediately due and payable, and
bear interest at the Default Rate from the date of disbursement until fully paid. Any entering upon and taking control of the Mortgaged
Property by Lender or the receiver, and any application of Rents as provided in this Security Instrument, shall not cure or waive any
Event of Default or invalidate any other right or remedy of Lender under applicable law or provided for in this Security Instrument or
any Loan Document.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 10 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
4. Protection
of Lender’s Security.
If Borrower fails to perform
any of its obligations under this Security Instrument or any other Loan Document, or any action or proceeding is commenced that purports
to affect the Mortgaged Property, Lender’s security, rights or interests under this Security Instrument or any Loan Document (including
eminent domain, insolvency, code enforcement, civil or criminal forfeiture, enforcement of Environmental Laws, fraudulent conveyance or
reorganizations or proceedings involving a debtor or decedent), Lender may, at its option, make such appearances, disburse or pay such
sums and take such actions, whether before or after an Event of Default or whether directly or to any receiver for the Mortgaged Property,
as Lender reasonably deems necessary to perform such obligations of Borrower and to protect the Mortgaged Property or Lender’s security,
rights or interests in the Mortgaged Property or the Mortgage Loan, including:
(a) paying
fees and out-of-pocket expenses of attorneys, accountants, inspectors and consultants;
(b) entering
upon the Mortgaged Property to make repairs or secure the Mortgaged Property;
(c) obtaining
(or force-placing) the insurance required by the Loan Documents; and
(d) paying
any amounts required under any of the Loan Documents that Borrower has failed to pay.
Any amounts so disbursed or paid by Lender shall
be added to, and become part of, the principal balance of the Indebtedness, be immediately due and payable and bear interest at the Default
Rate from the date of disbursement until fully paid. The provisions of this Section 4 shall not be deemed to obligate or require
Lender to incur any expense or take any action.
5. Default;
Acceleration; Remedies.
(a) If
an Event of Default has occurred and is continuing, Lender, at its option, may declare the Indebtedness to be immediately due and payable
without further demand, and may either with or without entry or taking possession as herein provided or otherwise, proceed by suit or
suits at law or in equity or any other appropriate proceeding or remedy (1) to enforce payment of the Mortgage Loan; (2) to
foreclose this Security Instrument judicially or non-judicially by the STATUTORY POWER OF SALE granted herein; (3) to enforce or
exercise any right under any Loan Document; and (4) to pursue any one (1) or more other remedies provided in this Security
Instrument or in any other Loan Document or otherwise afforded by applicable law. Each right and remedy provided in this Security Instrument
or any other Loan Document is distinct from all other rights or remedies under this Security Instrument or any other Loan Document or
otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively,
in any order. Borrower has the right to bring an action to assert the nonexistence of an Event of Default or any other defense of Borrower
to acceleration and sale.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 11 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
(b) This
Security Instrument is made upon the STATUTORY CONDITION provided for by M.G.L.c. 183 Section 20, and upon the further
condition that all covenants and agreements of Borrower contained in this Security Instrument shall be kept and fully performed, and
upon any breach of such covenants and agreements or if an Event of Default shall exist and continue under this Security Instrument, Lender
shall have, as to the Mortgaged Property, the STATUTORY POWER OF SALE. Borrower acknowledges that the STATUTORY POWER OF SALE granted
in this Security Instrument may be exercised or directed by Lender without prior judicial hearing. In the event Lender invokes the power
of sale:
(1) Lender
shall send to Borrower and any other Persons required to receive such notice, written notice of Lender’s election to cause the
Mortgaged Property to be sold. Borrower hereby authorizes and empowers Lender to take possession of the Mortgaged Property, or any part
thereof, and hereby grants to Lender a STATUTORY POWER OF SALE and authorizes and empowers Lender to sell (or, in the case of the default
of any purchaser, to resell) the Mortgaged Property or any part thereof, in compliance with applicable law, including compliance with
any and all notice and timing requirements for such sale;
(2) Lender
shall have the authority to determine the terms of the sale, subject to applicable law. In connection with any such sale, the whole of
the Mortgaged Property may be sold in one (1) parcel as an entirety or in separate lots or parcels at the same or different
times. Lender shall have the right to become the purchaser at any such sale. Lender shall be entitled to receive costs and expenses from
such sale not to exceed the amount permitted by applicable law;
(3) within
a reasonable time after the sale, Lender shall deliver to the purchaser of the Mortgaged Property a deed or such other appropriate conveyance
document conveying the Mortgaged Property so sold without any express or implied covenant or warranty. The recitals in such deed or document
shall be prima facie evidence of the truth of the statements made in those recitals; and
(4) the
outstanding principal amount of the Mortgage Loan and the other Indebtedness, if not previously due, shall be and become immediately
due and payable without demand or notice of any kind. If the Mortgaged Property is sold for an amount less than the amount outstanding
under the Indebtedness, the deficiency shall be determined by the purchase price at the sale or sales. Borrower waives all rights, claims,
and defenses with respect to Lender’s ability to obtain a deficiency judgment.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 12 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
(c) Borrower
acknowledges and agrees that the proceeds of any sale shall be applied as determined by Lender unless otherwise required by applicable
law.
(d) In
connection with the exercise of Lender’s rights and remedies under this Security Instrument and any other Loan Document, there
shall be allowed and included as Indebtedness: (1) all expenditures and expenses authorized by applicable law and all other expenditures
and expenses which may be paid or incurred by or on behalf of Lender for reasonable legal fees, appraisal fees, outlays for documentary
and expert evidence, stenographic charges and publication costs; (2) all expenses of any environmental site assessments, environmental
audits, environmental remediation costs, appraisals, surveys, engineering studies, wetlands delineations, flood plain studies, and any
other similar testing or investigation deemed necessary or advisable by Lender incurred in preparation for, contemplation of or in connection
with the exercise of Lender’s rights and remedies under the Loan Documents; and (3) costs (which may be reasonably estimated
as to items to be expended in connection with the exercise of Lender’s rights and remedies under the Loan Documents) of procuring
all abstracts of title, title searches and examinations, title insurance policies, and similar data and assurance with respect to title
as Lender may deem reasonably necessary either to prosecute any suit or to evidence the true conditions of the title to or the value
of the Mortgaged Property to bidders at any sale which may be held in connection with the exercise of Lender’s rights and remedies
under the Loan Documents. All expenditures and expenses of the nature mentioned in this Section 5 and such other expenses and fees
as may be incurred in the protection of the Mortgaged Property and rents and income therefrom and the maintenance of the lien of this
Security Instrument, including the fees of any attorney employed by Lender in any litigation or proceedings affecting this Security Instrument,
the Note, the other Loan Documents, or the Mortgaged Property, including bankruptcy proceedings, any Foreclosure Event, or in preparation
of the commencement or defense of any proceedings or threatened suit or proceeding, or otherwise in dealing specifically therewith, shall
be so much additional Indebtedness and shall be immediately due and payable by Borrower, with interest thereon at the Default Rate until
paid.
(e) Any
action taken by Lender pursuant to the provisions of this Section 5 shall comply with the laws of the Property Jurisdiction. Such
applicable laws shall take precedence over the provisions of this Section 5, but shall not invalidate or render unenforceable any
other provision of any Loan Document that can be construed in a manner consistent with any applicable law. If any provision of this Security
Instrument shall grant to Lender (including Lender acting as a mortgagee-in-possession), or a receiver appointed pursuant to the provisions
of this Security Instrument any powers, rights or remedies prior to, upon, during the continuance of or following an Event of Default
that are more limited than the powers, rights, or remedies that would otherwise be vested in such party under any applicable law in the
absence of said provision, such party shall be vested with the powers, rights, and remedies granted in such applicable law to the full
extent permitted by law.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 13 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
6. Waiver
of Statute of Limitations and Marshaling.
Borrower hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the lien of this Security Instrument or to any action brought
to enforce any Loan Document. Notwithstanding the existence of any other security interests in the Mortgaged Property held by Lender
or by any other party, Lender shall have the right to determine the order in which any or all of the Mortgaged Property shall be subjected
to the remedies provided in this Security Instrument and/or any other Loan Document or by applicable law. Lender shall have the right
to determine the order in which any or all portions of the Indebtedness are satisfied from the proceeds realized upon the exercise of
such remedies. Borrower, for itself and all who may claim by, through or under it, and any party who now or in the future acquires a
security interest in the Mortgaged Property and who has actual or constructive notice of this Security Instrument, waives any and all
right to require the marshaling of assets or to require that any of the Mortgaged Property be sold in the inverse order of alienation
or that any of the Mortgaged Property be sold in parcels (at the same time or different times) in connection with the exercise of any
of the remedies provided in this Security Instrument or any other Loan Document, or afforded by applicable law.
7. Waiver
of Redemption; Rights of Tenants.
(a) Borrower
hereby covenants and agrees that it will not at any time apply for, insist upon, plead, avail itself, or in any manner claim or take
any advantage of, any appraisement, stay, exemption or extension law or any so-called “Moratorium Law” now or at any time
hereafter enacted or in force in order to prevent or hinder the enforcement or foreclosure of this Security Instrument. Without limiting
the foregoing:
(1) Borrower,
for itself and all Persons who may claim by, through or under Borrower, hereby expressly waives any so-called “Moratorium Law”
and any and all rights of reinstatement and redemption, if any, under any order or decree of foreclosure of this Security Instrument,
it being the intent hereof that any and all such “Moratorium Laws”, and all rights of reinstatement and redemption of Borrower
and of all other Persons claiming by, through or under Borrower are and shall be deemed to be hereby waived to the fullest extent permitted
by the laws of the Property Jurisdiction;
(2) Borrower
shall not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any right, power or remedy herein
or otherwise granted or delegated to Lender but will suffer and permit the execution of every such right, power and remedy as though
no such law or laws had been made or enacted; and
(3) if
Borrower is a trust, Borrower represents that the provisions of this Section 7 (including the waiver of reinstatement and redemption
rights) were made at the express direction of Borrower’s beneficiaries and the persons having the power of direction over Borrower,
and are made on behalf of the trust estate of Borrower and all beneficiaries of Borrower, as well as all other persons mentioned above.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 14 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
(b) Lender
shall have the right to foreclose subject to the rights of any tenant or tenants of the Mortgaged Property having an interest in the
Mortgaged Property prior to that of Lender. The failure to join any such tenant or tenants of the Mortgaged Property as party defendant
or defendants in any such civil action or the failure of any decree of foreclosure and sale to foreclose their rights shall not be asserted
by Borrower as a defense in any civil action instituted to collect the Indebtedness, or any part thereof or any deficiency remaining
unpaid after foreclosure and sale of the Mortgaged Property, any statute or rule of law at any time existing to the contrary notwithstanding.
8. Notice.
(a) All
notices under this Security Instrument shall be:
(1) in
writing, and shall be (A) delivered, in person, (B) mailed, postage prepaid, either by registered or certified delivery, return
receipt requested, or (C) sent by overnight express courier;
(2) addressed
to the intended recipient at its respective address set forth at the end of this Security Instrument; and
(3) deemed
given on the earlier to occur of:
(A) the
date when the notice is received by the addressee; or
(B) if
the recipient refuses or rejects delivery, the date on which the notice is so refused or rejected, as conclusively established by the
records of the United States Postal Service or such express courier service.
(b) Any
party to this Security Instrument may change the address to which notices intended for it are to be directed by means of notice given
to the other party in accordance with this Section 8.
(c) Any
required notice under this Security Instrument which does not specify how notices are to be given shall be given in accordance with this
Section 8.
9. Mortgagee-in-Possession.
Borrower acknowledges and
agrees that the exercise by Lender of any of the rights conferred in this Security Instrument shall not be construed to make Lender a
mortgagee-in-possession of the Mortgaged Property so long as Lender has not itself entered into actual possession of the Land and Improvements.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 15 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
10. Release.
Upon payment of the Indebtedness,
Lender shall discharge this Security Instrument. Borrower shall pay Lender’s reasonable costs incurred in discharging this Security
Instrument.
11. Governing
Law; Consent to Jurisdiction and Venue.
This Security Instrument
shall be governed by the laws of the Property Jurisdiction without giving effect to any choice of law provisions thereof that would result
in the application of the laws of another jurisdiction. Borrower agrees that any controversy arising under or in relation to this Security
Instrument shall be litigated exclusively in the Property Jurisdiction. The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all controversies that arise under or in relation to any security
for the Indebtedness. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation and waives
any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.
12. Miscellaneous
Provisions.
(a) This
Security Instrument shall bind, and the rights granted by this Security Instrument shall benefit, the successors and assigns of Lender.
This Security Instrument shall bind, and the obligations granted by this Security Instrument shall inure to, any permitted successors
and assigns of Borrower under the Loan Agreement. If more than one (1) person or entity signs this Security Instrument as Borrower,
the obligations of such persons and entities shall be joint and several. The relationship between Lender and Borrower shall be solely
that of creditor and debtor, respectively, and nothing contained in this Security Instrument shall create any other relationship between
Lender and Borrower. No creditor of any party to this Security Instrument and no other person shall be a third party beneficiary of this
Security Instrument or any other Loan Document.
(b) The
invalidity or unenforceability of any provision of this Security Instrument or any other Loan Document shall not affect the validity
or enforceability of any other provision of this Security Instrument or of any other Loan Document, all of which shall remain in full
force and effect. This Security Instrument contains the complete and entire agreement among the parties as to the matters covered, rights
granted and the obligations assumed in this Security Instrument. This Security Instrument may not be amended or modified except by written
agreement signed by the parties hereto.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 16 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
(c) The
following rules of construction shall apply to this Security Instrument:
(1) The
captions and headings of the sections of this Security Instrument are for convenience only and shall be disregarded in construing this
Security Instrument.
(2) Any
reference in this Security Instrument to an “Exhibit” or “Schedule” or a “Section” or an “Article”
shall, unless otherwise explicitly provided, be construed as referring, respectively, to an exhibit or schedule attached to this Security
Instrument or to a Section or Article of this Security Instrument.
(3) Any
reference in this Security Instrument to a statute or regulation shall be construed as referring to that statute or regulation as amended
from time to time.
(4) Use
of the singular in this Security Instrument includes the plural and use of the plural includes the singular.
(5) As
used in this Security Instrument, the term “including” means “including, but not limited to” or “including,
without limitation,” and is for example only, and not a limitation.
(6) Whenever
Borrower’s knowledge is implicated in this Security Instrument or the phrase “to Borrower’s knowledge” or a similar
phrase is used in this Security Instrument, Borrower’s knowledge or such phrase(s) shall be interpreted to mean to the best
of Borrower’s knowledge after reasonable and diligent inquiry and investigation.
(7) Unless
otherwise provided in this Security Instrument, if Lender’s approval, designation, determination, selection, estimate, action or
decision is required, permitted or contemplated hereunder, such approval, designation, determination, selection, estimate, action or
decision shall be made in Lender’s sole and absolute discretion.
(8) All
references in this Security Instrument to a separate instrument or agreement shall include such instrument or agreement as the same may
be amended or supplemented from time to time pursuant to the applicable provisions thereof.
(9) “Lender
may” shall mean at Lender’s discretion, but shall not be an obligation.
13. Time
is of the Essence.
Borrower agrees that, with
respect to each and every obligation and covenant contained in this Security Instrument and the other Loan Documents, time is of the
essence.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 17 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
14. WAIVER
OF TRIAL BY JURY.
TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL
BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS SECURITY INSTRUMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER
THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH
RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH OF BORROWER AND LENDER, KNOWINGLY
AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED
EXHIBITS. The following Exhibits are attached to this Security Instrument and incorporated fully herein by reference:
| x | Exhibit A |
Description of the Land (required) |
| |
x | Exhibit B |
Modifications to Security Instrument
(Master Credit Facility Agreement) |
[Remainder of Page Intentionally Blank]
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page 18 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
IN
WITNESS WHEREOF, Borrower has signed and delivered this Security Instrument under seal (where applicable) or has caused this
Security Instrument to be signed and delivered by its duly authorized representative under seal (where applicable). Where applicable
law so provides, Borrower intends that this Security Instrument shall be deemed to be signed and delivered as a sealed instrument.
| |
BORROWER: |
| |
|
|
| |
WESTGATE APARTMENTS, LLC, |
| |
a Delaware limited liability company |
| |
|
|
| |
By: |
NewReal, Inc., |
| |
|
a Massachusetts corporation |
| |
|
its Manager |
| |
|
By: |
|
(SEAL) |
| |
|
Name: |
Ronald Brown |
|
| |
|
Title: |
President |
| |
|
|
|
| |
|
|
|
| |
|
By: |
|
(SEAL) |
| |
|
Name: |
Jameson Brown |
|
| |
|
Title: |
Treasurer |
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page S-1 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
COMMONWEALTH OF MASSACHUSETTS
COUNTY
OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Ronald Brown, the President of
NewReal, Inc., a Massachusetts corporation, the Manager of Westgate Apartments, LLC, a Delaware limited liability company,
proved to me through satisfactory evidence of identification, which were ______________________________, to be the person whose name
is signed on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose or
is the free act and deed of the party signing the document.
__________________________________
Notary Public
My Commission Expires:______________
COMMONWEALTH OF MASSACHUSETTS
COUNTY
OF ______________ , SS.
On
this _____ day of _______________, 2022, before me, the undersigned notary public, personally appeared Jameson Brown, the Treasurer of
NewReal, Inc., a Massachusetts corporation, the Manager of Westgate Apartments, LLC, a Delaware limited liability company,
proved to me through satisfactory evidence of identification, which were ______________________________, to be the person whose name
is signed on the preceding document, and acknowledged to me that this document is signed either voluntarily for its stated purpose or
is the free act and deed of the party signing the document.
__________________________________
Notary Public
My Commission Expires:______________
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page S-2 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
| |
The name, chief executive office and organizational identification
number of Borrower (as Debtor under any applicable Uniform Commercial Code) are:
Debtor Name/Record Owner: Westgate Apartments Burlington, LLC
Debtor Chief Executive Office Address:
c/o The Hamilton Company, Inc.
39 Brighton Avenue
Boston, Massachusetts 02134
Attn: Jameson Brown, CEO and Andrew Bloch, CFO
Debtor Organizational ID Number: 5404585 |
| |
The name and chief executive office of Lender (as Secured Party)
are:
Secured Party Name: KeyBank National Association
Secured Party Chief Executive Office Address:
127 Public Square
Cleveland, Ohio 44114
Lender Notice Address:
KeyBank Real Estate Capital - Servicing Department
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Mail code: KS-01-11-0501
Attention: Servicing Manager |
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page S-3 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
WESTGATE APARTMENTS
EXHIBIT A
Those certain parcels of land, with the buildings
and other improvements thereon, situated on Pearl Street in Woburn and Burlington, Middlesex County, Massachusetts, shown as the following
parcels:
1. Parcel E on a plan entitled "Subdivision
Plan of Land in Burlington/Woburn, Massachusetts" dated February 22, 1999 and recorded in the Middlesex South District Registry
of Deeds as Plan No. 315 of 1999 (the “Plan”).
2. Parcel C as shown on the Plan and also shown
as Lot C on a plan entitled “Plan of Land Burlington-Woburn, Mass.,” prepared by Joseph Selwyn dated February 3, 1963
and recorded in the Middlesex South District Registry of Deeds as Plan No. 386 of 1963;
3. Parcel D as shown on the Plan and also shown
as Lot D on a plan entitled “Plan of Land, Woburn, Mass.,” prepared by Joseph Selwyn dated January 26, 1963 and recorded
in the Middlesex South District Registry of Deeds as Plan No. 387 of 1963; and
4. A registered parcel shown on a plan entitled
“Plan of Land in Woburn,” prepared by Silverman Engineering Company, dated September 22, 1910 and filed with the Land
Court as Plan No. 3191A. Said plan is also filed in Registration Book 23, Page 249, with Certificate No. 3516.
Together with the rights and easements (the "Parking
Easement") as set forth in Quitclaim Deed dated March 24, 1999 from New England Realty Associates Limited Partnership to Westgate
Apartments, LLC recorded in the Middlesex South District Registry of Deeds in Book 29966, Page 295 and filed with Middlesex South
Registry District of the Land Court as Document No. 1101723, in accordance with the terms thereof.
Together with the rights and easements as set
forth in Cross Easement Agreement by and between New England Realty Associates Limited Partnership ,as Grantor, and Westgate Apartments,
LLC, as Grantee, dated March 24, 1999 recorded in the Middlesex South District Registry of Deeds in Book 29966, Page 302 and
filed with Middlesex South Registry District of the Land Court District as Document No. 1101724.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page A-1 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
EXHIBIT B
MODIFICATIONS TO SECURITY INSTRUMENT
(Master Credit Facility Agreement)
The foregoing Security Instrument
is hereby modified as follows:
1. Capitalized
terms used and not specifically defined herein have the meanings given to such terms in the Security Instrument.
2. Section 5
of the Security Instrument is hereby amended by replacing the first word of paragraph (a) “If” with the phrase “Subject
to the terms of the Loan Agreement, if.”
3. Section 10
of the Security Instrument is hereby amended and restated as follows:
10. Release.
Reference is hereby
made to Section 2.10 (Collateral Events) of the Loan Agreement. Subject to the terms, conditions and limitations of such Article,
Borrower is entitled to obtain a release of this Security Instrument. If the original Lender named in this Security Instrument, or any
successor, assignee or transferee to the original Lender’s interest in this Security Instrument, assigns or otherwise disposes
of its interest in this Security Instrument and the Note, then upon such assignment or other disposition all liabilities and obligations
to release the Mortgaged Property covered by this Security Instrument on the part of the original Lender, or such successor Lender, which
accrue after such assignment or disposition shall cease and terminate and each successor Lender shall, without further agreement, be
bound by Lender’s obligation to release the Mortgaged Property when obligated to do so under the Loan Agreement, but only during
the period of such successor Lender’s ownership of the interest in this Security Instrument and the Note. PROVIDED ALWAYS, and
this Security Instrument is upon the express condition that, if Borrower pays to Lender the entire unpaid principal balance of the Note,
the interest thereon and all other sums payable by Borrower to Lender as are secured by this Security Instrument, in accordance with
the provisions of the Loan Agreement, the Note, this Security Instrument and the other Loan Documents, at the times and in the manner
specified, without offset, deduction, fraud or delay, and Borrower complies with all the agreements, conditions, covenants, provisions
and stipulations contained in the Loan Agreement, the Note, this Security Instrument and the other Loan Documents, then this Security
Instrument and the estate hereby granted shall cease and become void and Lender shall cancel this Security Instrument.
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page B-1 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
4. Section 11
of the Security Instrument is hereby amended and restated as follows:
11. Governing
Law; Consent to Jurisdiction and Venue.
The provisions
of Section 15.01 of the Loan Agreement (entitled Choice of Law; Consent to Jurisdiction) are hereby incorporated into this Security
Instrument by this reference to the fullest extent as if the text of such Section were set forth in its entirety herein and, additionally,
those provisions relating to the waiver of jury trial set forth in Section 15.02 of the Loan Agreement shall be deemed to supplement
those provisions contained in Section 14 of this Security Instrument.
5. The
following section is hereby added to the Security Instrument as Section 15 (Substitution):
15. Substitution.
The provisions
of Section 2.10 (Collateral Events) of the Loan Agreement are hereby incorporated by reference as if such provisions were set forth
in their entirety herein.
6. The
following section is hereby added to the Security Instrument as Section 16 (Remedies Against Other Collateral):
16. Remedies
Against Other Collateral.
Borrower hereby
acknowledges that the Indebtedness is also secured by liens on collateral which may be located in jurisdictions other than the Property
Jurisdiction. Borrower further agrees and consents that upon the occurrence and during the continuance of an Event of Default, Lender
shall have the right, in its sole and absolute discretion, to exercise any and all rights and remedies in and under any of the Loan Documents,
including the right to proceed, at the same or at different times, to foreclose any or all liens against such collateral (or sell such
collateral under power of sale) in accordance with the terms of this Security Instrument or any other Security Instrument, by any proceedings
appropriate in the jurisdictions where such collateral is located, and that no enforcement action taking place in any jurisdiction shall
preclude or bar enforcement in any other jurisdiction. Any Foreclosure Event brought in any jurisdiction in which collateral is located
may be brought and prosecuted as to any part of such collateral without regard to the fact that a Foreclosure Event has not been instituted
elsewhere on any other part of the collateral for the Indebtedness. No notice, except as may be expressly required by the Loan Documents
or by applicable law, shall be required to be given to Borrower in connection with (a) the occurrence of such Event of Default,
or (b) Lender’s exercise of any and all of its rights or remedies after the occurrence of such Event of Default.
[Remainder of Page Intentionally Blank]
| Fannie
Mae Multifamily Security Instrument |
Form 6025.MA |
Page B-2 |
| Massachusetts
(Westgate Apartments, Middlesex County) |
06-12 |
©
2012 Fannie Mae |
| HAMILTON/KeyBank
(2021 MCFA) |
|
|
