Exhibit 10.1

 

 

PURCHASE AND SALE CONTRACT

 

 

BY AND BETWEEN

 

 

WEBSTER GREEN APARTMENTS, LLC,

a Massachusetts limited liability company,

 

 

AS SELLER

 

 

AND

 

 

THE HAMILTON COMPANY, INC.,

a Massachusetts corporation

 

AS BUYER

 

 

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PURCHASE AND SALE CONTRACT

THIS PURCHASE AND SALE CONTRACT (this “ Contract ”) is entered into as of the ___ day of February, 2018 (the “ Effective Date ”), by and between WEBSTER GREEN APARTMENTS , a Massachusetts limited liability company, with an office at 369 Lindsay Pond Road, Concord, MA 01742 (“ Seller ”), and THE HAMILTON COMPANY, INC ., a Massachusetts corporation, having a principal address at 39 Brighton Avenue, Boston, MA 02134, or its permitted assignee (“ Buyer ”).

NOW, THEREFORE, in consideration of mutual covenants set forth herein, Seller and Buyer hereby agree as follows:

RECITALS

A. The Seller owns the real estate located in Middlesex County, Massachusetts, as more particularly described on Exhibit A attached hereto and made a part hereof, and the improvements thereon.

B. Buyer desires to purchase, and Seller desires to sell, such land, improvements and certain associated property, on the terms and conditions set forth below.

C. Unless otherwise defined herein, any term with its initial letter capitalized in this Contract shall have the meaning set forth in Schedule 1 attached hereto and made a part hereof.

ARTICLE I

PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT

1.1 Purchase and Sale .  Seller agrees to sell and convey the Property to Buyer and Buyer agrees to purchase the Property from Seller, all in accordance with the terms and conditions set forth in this Contract.

1.2 Purchase Price and Deposit .  The total purchase price (“ Purchase Price ”) for the Property shall be an amount equal to Thirty Four Million Five Hundred Thousand Dollars ($34,500,000.00), payable by Buyer, as follows:

1.2.1 Buyer has deposited with Commonwealth Land Title Insurance Company, Attn:  Phil Tanner, Title Attorney (“ Escrow Agent ” or “ Title Insurer ”) a deposit (the “ Offer Deposit ”) in the amount of One Hundred Thousand an 00/100 Dollars ($100,000.00).  Within one (1) Business Day following the execution of this Contract by both Seller and Buyer, Buyer shall deposit with the Escrow Agent an additional deposit (the “ P&S Deposit ”, and together with the Offer Deposit, collectively, the “ Deposit ”) in the amount of Four Hundred Thousand and 00/100 Dollars ($400,000.00) by wire transfer of immediately available funds (“ Good Funds ”).

1.2.2 The balance of the Purchase Price for the Property shall be paid to and received by Escrow Agent by wire transfer of Good Funds no later than 4 pm on the Closing Date.

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1.3 Escrow Provisions Regarding Deposit .  Escrow Agent shall hold the Deposit and make delivery of the Deposit to the party entitled thereto under the terms of this Contract.  Escrow Agent shall invest the Deposit in such short-term, high-grade securities, interest-bearing bank accounts, money market funds or accounts, bank certificates of deposit or bank repurchase contracts as Escrow Agent, in its discretion, deems suitable, and all interest and income thereon shall become part of the Deposit and shall be remitted to the party entitled to the Deposit pursuant to this Contract.

1.3.1 If, prior to the Closing Date, either party makes a written demand upon Escrow Agent for payment of the Deposit pursuant to the terms of this Contract, Escrow Agent shall give written notice to the other party of such demand, making reference to the substance of and time frame described in this Section 1.3.1.  If Escrow Agent does not receive a written objection from the other party to the proposed payment within five (5) Business Days after the giving of such notice, Escrow Agent is hereby authorized to make such payment.  If Escrow Agent does receive such written objection within such five (5) Business Day period, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Contract or a final judgment or arbitrator’s decision.  However, Escrow Agent shall have the right at any time to deliver the Deposit and interest thereon, if any, with a court of competent jurisdiction in the state in which the Property is located.  Escrow Agent shall give written notice of such deposit to Seller and Buyer.  Upon such deposit, Escrow Agent shall be relieved and discharged of all further obligations and responsibilities hereunder.

1.3.2 The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, and that Escrow Agent shall not be deemed to be the agent of either of the parties for any act or omission on its part unless taken or suffered in bad faith in willful disregard of this Contract or involving gross negligence.  Seller and Buyer jointly and severally shall indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorney’s fees, incurred in connection with the performance of Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith, in willful disregard of this Contract or involving gross negligence on the part of the Escrow Agent.

1.3.3 The parties shall deliver to Escrow Agent an executed copy of this Contract.  Escrow Agent shall execute the signature page for Escrow Agent attached hereto which shall confirm Escrow Agent’s agreement to comply with the terms of this Contract.

1.3.4 Escrow Agent, as the person responsible for closing the transaction within the meaning of Section 6045(e)(2)(A) of the Internal Revenue Code of 1986, as amended (the “ Code ”), shall file all necessary information, reports, returns, and statements regarding the transaction required by the Code including, but not limited to, the tax reports required pursuant to Section 6045 of the Code.  Further, Escrow Agent agrees to indemnify and hold Buyer, Seller, and their respective attorneys and brokers harmless from and against any Losses resulting from Escrow Agent’s failure to file the reports Escrow Agent is required to file pursuant to this section.

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ARTICLE II

ACCESS PERIOD

2.1 Access Period .  Subject to the terms of Section 2.3 and the rights of Tenants under the Leases, from and after the Effective Date, Buyer and its consultants, agents, contractors and employees (collectively, “ Consultants ”) shall, at no cost or expense to Seller, have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants and/or licensees as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests (the “ Inspections ”), provided that (i) Buyer must give Seller prior telephone or written notice (including email) of any such inspection or test, and with respect to any intrusive inspection or test (e.g., core sampling) must obtain Seller’s prior written consent (which consent may be given, withheld or conditioned in Seller’s reasonable discretion), and (ii) prior to performing any inspection or test, Buyer must deliver a certificate of insurance to Seller evidencing that Buyer and its contractors, agents and representatives have in place the insurance described in Section 2.3.1 below for its activities on the Property in terms reasonably satisfactory to Seller covering any accident arising in connection with the presence of Buyer, its contractors, agents and representatives on the Property, which insurance shall name Seller as additional insured thereunder.  Buyer shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests.  Subject to the provisions of Section 12.13 hereof, Buyer or Buyer’s representatives may meet with any governmental authority for any good faith, reasonable purpose in connection with the transaction contemplated by this Agreement; provided, however, Buyer must contact Seller in advance by telephone or fax to inform Seller of Buyer’s intended meeting and to allow Seller the opportunity to attend such meeting if Seller desires.

2.2 Review Period .  Buyer shall have until 5:00 p.m. (Boston time) on the date that is fifteen (15) calendar days following the Effective Date within which to determine whether Buyer is satisfied with its Inspections (the “ Review Period ”). If Buyer determines that the Property is unsuitable for its purposes and so notifies Seller in writing within the Review Period, the Deposit shall be returned to Buyer, at which time this Agreement shall be null and void and neither party shall have any further rights or obligations under this Agreement except those which expressly survive termination.

2.3 Buyer Indemnification .  Buyer shall indemnify, hold harmless and, if requested by Seller (in Seller’s reasonable discretion), defend Seller, together with Seller’s affiliates, parent and subsidiary entities, successors, assigns, partners, managers, members, employees, officers, directors, trustees, shareholders, counsel, representatives and agents (collectively, including Seller, “ Seller’s Indemnified Parties ”), from and against any and all damages, mechanics’ liens, materialmen’s liens, liabilities, penalties, interest, losses, demands, actions, causes of action, claims, costs and expenses (including reasonable attorneys’ fees) (collectively, “ Losses ”) arising from or related to Buyer’s or its Consultants’ entry onto the Property, and any Inspections or other acts by Buyer or Buyer’s Consultants with respect to the Property through the Closing Date.

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2.3.1 Buyer hereby agrees to restore, at Buyer’s sole cost and expense, the Property to the same condition existing immediately prior to Buyer’s exercise of its rights pursuant to this Article III .  Buyer shall maintain and cause its third party consultants to maintain (a) casualty insurance and commercial general liability insurance with coverages of not less than $2,000,000.00 for injury or death to any one person and $3,000,000.00 for injury or death to more than one person and $2,000,000.00 with respect to property damage, and (b) worker’s compensation insurance for all of their respective employees in accordance with the law of the state in which the Property is located.  Buyer shall deliver proof of the insurance coverage required pursuant to this Section to Seller (in the form of a certificate of insurance) prior to the earlier to occur of (i) Buyer’s or Buyer’s Consultants’ entry onto the Property, or (ii) the expiration of five (5) days after the Effective Date.

2.4 Property Materials .  On or before the Effective Date, and to the extent the same exist and are in Seller’s possession or reasonable control (subject to Section 2.4.2 ) and have not been heretofore provided by Seller to Buyer, Seller agrees to make the documents set forth on Schedule 2.4, as is updated from time-to-time (together with any other documents or information provided by Seller or its agents to Buyer with respect to the Property, the “ Materials ”) available to the Buyer in electronic form for review and copying.

2.4.1 Except as otherwise provided in this Agreement, Seller makes no representation or warranty, express, written, oral, statutory, or implied, as to the Materials.

2.4.2 In addition to the items set forth on Schedule 2 .4 , on or before the Effective Date, Seller shall deliver to Buyer the most recent rent roll for the Property listing each Tenant, the Lease start and end date, monthly rent and security deposit (the “ Rent Rolls ”).

2.5 Property Contracts .  At least ten (10) days prior to the Closing Date, Buyer shall deliver written notice to Seller (the “ Property Contracts Notice ”) specifying any Property Contracts which Buyer desires to terminate at the Closing, and Seller shall terminate the same  prior to Closing.

ARTICLE III

TITLE

3.1 Title Documents .  Buyer may obtain an ALTA title insurance commitment (the “ Title Commitmen t ”) for the Real Property from the Title Insurer.  Such Title Commitment and title examination shall be at Buyer’s sole cost and expense.  On or before the Effective Date, Seller shall deliver to Buyer a copy of its most recent existing title insurance policy and plat of survey (if any) of the Real Property (the “ Existing Title and Survey ”) in Seller’s possession and control.  Buyer may obtain, at Buyer’s sole option, election and expense, an updated survey of the Property (the “ Updated Survey ”) prepared by the surveyor who provided the Existing Survey or another surveyor selected by Buyer.

3.2 Cure of Title Objections .  Buyer shall have until the expiration of the Review Period (the “ Title Review Period ”) to give Seller a notice objecting to any exception or condition contained in the Title Commitment or shown on the Survey, if any, other than those Permitted Exceptions (as defined in Section 3.3). If Buyer does not give notice of any objections

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to Seller within the Title Review Period, Buyer shall be deemed to have approved the title as shown in the Title Commitment, the title exceptions, and all matters shown on the Existing Survey or the Updated Survey, if any, and any such exceptions or matters shall become “Permitted Exceptions”. If Buyer provides timely objections, Seller shall have five (5) business days after receipt of Buyer notice (the “ Title Cure Period ”) in which to elect, by written notice to Buyer, either (i) to cure or attempt to cure Buyer’s objections, or (ii) not to cure Buyer’s objections; provided, however, notwithstanding the foregoing, Seller shall have no obligation whatsoever to cure or attempt to cure any of Buyer’s objections. Notwithstanding the preceding sentence, Seller shall be obligated, at Closing, to cause Title Insurer to remove (by waiver or endorsement) any (a) mortgage or deed of trust granted by Seller affecting the Property and (b) mechanic’s liens with respect to work contracted for by Seller at the Property, provided that Seller has received written notice of any such mechanic’s lien prior to Closing (collectively, the “ Required Cure Items ”). In the event that Seller fails to provide such written notice of its election to proceed under either clause (i) or (ii) above, Seller shall be deemed to have elected clause (ii) above. At Buyer’s election, but at Seller’s cost and expense, Seller may cause Title Insurer to endorse over any such objection, in which event such objection shall be deemed cured. If Buyer provides timely objections and all of Buyer’s objections are not cured (or agreed to be cured by Seller prior to Closing) within the Title Cure Period for any reason, then, within five (5) business days after the last day of the Title Cure Period Buyer shall, as its sole and exclusive remedy, waiving all other remedies, either: (x) terminate this Agreement by giving a termination notice to Seller, at which time Escrow Agent shall return the Deposit to Buyer and the parties shall have no further rights, liabilities, or obligations under this Agreement (other than those that expressly survive termination); or (y) waive the uncured objections by proceeding to Closing and thereby be deemed to have approved the Buyer’s title as shown in the Title Commitment the title exception documents, the Existing Survey or the Updated Survey, if any, and any such uncured objections shall become “Permitted Exceptions”. If Seller does not timely receive notice of Buyer’s election to terminate under this Section 3.2, Buyer will be deemed to have waived the uncured objections and to approve the title as shown in the Title Commitment the title exception documents, the Survey or the Updated Survey, if any, and such uncured objections shall become “Permitted Exceptions”.

If an update of the Survey or any supplemental title commitment or update issued subsequent to the date of the original Title Commitment discloses any materially adverse matters not set forth on the Survey, the Updated Survey or the original Title Commitment, then, no later than the later of (i) the expiration of the Review Period, or (ii) five (5) business days after Buyer’s receipt of such update of the Updated Survey, Buyer shall have the right to object to any such matter, in which event the same procedures for response, termination and waiver set forth above shall apply to such new objections.

3.3 Permitted Exceptions .  Buyer shall purchase and accept title to the Property subject to the following, all of which shall be included within the phrase “ Permitted Exceptions ”:

3.3.1 the standard exceptions and provisions contained in the promulgated title insurance form employed by the Title Insurer;

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3.3.2 the specific exceptions (excluding exceptions that are part of the promulgated title insurance form) in the Title Commitment that the Title Insurer has not agreed to remove from the Title Commitment and that are not Required Cure Items;

3.3.3 Such real estate taxes for the then current fiscal year as are not due and payable on the Closing Date;

3.3.4 Any liens for municipal betterments or special assessments assessed after the date of this Contract;

3.3.5 All Leases;

3.3.6 Applicable zoning and governmental regulations and ordinances; and

3.3.7 Any defects or title exceptions or encumbrances, arising by, through or under Buyer.

ARTICLE IV

CLOSING

4.1 Closing Date .  The Closing shall occur on March 29, 2018 (the “ Closing Date ”) through an escrow with Escrow Agent, whereby Seller, Buyer and their attorneys need not be physically present at the Closing and may deliver documents by overnight air courier, hand delivery or other means.

4.2 Seller Closing Deliveries .  On or before the Closing Date, Seller shall deliver to Escrow Agent each of the following items:

4.2.1 Quitclaim deed to Buyer (the “ Deed ”) in substantially the same form as attached as Exhibit B .

4.2.2 Bill of Sale in substantially the same form as attached as Exhibit C .

4.2.3 General Assignment in substantially the same form as Exhibit D (collectively, the “ General Assignment ”).

4.2.4 Assignments of Leases and Security Deposits in substantially the same form as Exhibit E (the “ Lease Assignment ”).

4.2.5 Seller’s closing statements.

4.2.6 Title affidavits or indemnities, including a gap indemnity, in a form reasonably acceptable to Seller, which are sufficient to enable Title Insurer to delete the standard pre-printed exceptions to the title insurance policy to be issued pursuant to the Title Commitment. The title affidavit shall contain a certification from the Seller stating that there has been no change to the footprint of the Building since the date of the Existing survey.

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4.2.7 Certifications of each Seller’s non-foreign status pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended.

4.2.8 Resolutions, certificates of good standing, votes and such other organizational documents as Buyer and Buyer’s Title Insurer shall reasonably require evidencing each Seller’s authority to consummate this transaction.

4.2.9 Updated Rent Rolls effective as of the Closing Date.

4.2.10 A certificate updating Seller’s representations and warranties set forth in Section 5.1 as if made on the Closing Date.

4.2.11 Notification letters to all Tenants in the form attached hereto as Exhibit F ,

4.2.12 All keys, security codes and operating manuals in Seller’s possession and, Such other documents as are reasonably necessary to consummate the transactions herein contemplated in accordance with the terms of the Contract.

4.3 Buyer Closing Deliveries .  On or before the Closing Date, Buyer shall deliver to the Escrow Agent (for disbursement to Seller upon the Closing) the following items:

4.3.1 The full Purchase Price (with credit for the Deposit), plus or minus the adjustments or prorations required by this Contract.

4.3.2 Buyer’s closing statements.

4.3.3 Countersigned counterparts of the General Assignment.

4.3.4 Countersigned counterparts of the Lease Assignment.

4.3.5 Resolutions, certificates of good standing, and such other organizational documents as Title Insurer shall reasonably require evidencing Buyer’s authority to consummate this transaction.

4.3.6 Such other documents as are reasonably necessary to consummate the transactions herein contemplated in accordance with the terms of the Contract.

4.4 Closing Prorations and Adjustments .  All normal and customarily proratable items, including, without limitation, collected rents, operating expenses, personal property taxes, other operating expenses and fees, shall be prorated as of the Closing Date, Seller being charged or credited, as appropriate, for all of same attributable to the period up to the Closing Date (and credited for any amounts paid by Seller attributable to the period on or after the Closing Date, if assumed by Buyer) and Buyer being responsible for, and credited or charged, as the case may be, for all of the same attributable to the period on and after the Closing Date.  Seller shall prepare a proration schedule (the “ Proration Schedule ”) of the adjustments described in this Section 4.4 prior to Closing.

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4.4.1 Operating Expenses .  All of the operating, maintenance, taxes (other than real estate taxes), and other expenses incurred in operating the Property that Seller customarily pays, and any other costs incurred in the ordinary course of business for the management and operation of the Property, shall be prorated at Closing.  Seller shall pay all such expenses that accrue prior to the Closing Date and Buyer shall pay all such expenses that accrue from and after the Closing Date.

4.4.2 Utilities .  The final readings and final billings for utilities will be made if possible as of the Closing Date, in which case Seller shall pay all such bills as of the Closing Date. Seller shall be entitled to the return of any deposit(s) posted by it with any utility company, and Seller shall notify each utility company serving the Property to terminate Seller’s account, effective as of noon on the Closing Date.

4.4.3 Real Estate Taxes .  Any real estate taxes for the Property, shall be prorated to the date of Closing, based upon actual days involved.  The proration of real property taxes shall be based upon the assessed valuation and tax rate figures (assuming payment at the earliest time to allow for the maximum possible discount) for the year in which the Closing occurs to the extent the same are available; provided, however, that in the event that actual figures (whether for the assessed value of the Property or for the tax rate) for the year of Closing are not available at the Closing Date, the proration shall be made using figures from the preceding year (assuming payment at the earliest time to allow for the maximum possible discount). Notwithstanding anything to the contrary herein, any post-closing adjustment to actual real estate taxes shall be limited to change in the tax rate or amounts that had been estimated prior to Closing (and not post-closing changes to assessed valuation.)

4.4.4 Property Contracts .  Buyer shall assume at Closing the obligations under the Property Contracts assumed by Buyer and amounts will be adjusted as of the Closing Date.

4.4.5 Leases .

4.4.5.1 All collected rent (whether fixed monthly rentals, additional rentals, escalation rentals, retroactive rentals, operating cost pass-throughs or other sums and charges payable by Tenants under the Leases), income and expenses from any portion of the Property shall be prorated as of the Closing Date.  Buyer shall receive all collected rent and income attributable to dates from and after the Closing Date.  Seller shall receive all collected rent and income attributable to dates prior to the Closing Date.  Notwithstanding the foregoing, no prorations shall be made in relation to either (a) rents which have not been collected as of the Closing Date, or (b) delinquent rents existing, if any, as of the Closing Date (the foregoing (a) and (b) referred to herein as the “ Uncollected Rents ”).  In adjusting for Uncollected Rents, no adjustments shall be made in Seller’s favor for rents which have accrued and are unpaid as of the Closing, but Buyer shall pay Seller such accrued Uncollected Rents if, collected by Buyer after the Closing Date.

4.4.5.2 At Closing, Buyer shall receive a credit against the Purchase Price in an amount equal to the received and unapplied balance of all cash (or cash equivalent) Tenant Deposits, including, but not limited to, security, damage or other refundable deposits paid by any of the Tenants to secure their respective obligations under the Leases, together, in all

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cases, with any interest payable to the Tenants thereunder as may be required by their respective Tenant Lease or state law (the “ Tenant Security Deposit Balance ”), or at Seller’s option, Seller may pay any such interest owed directly to Tenant(s) directly prior to the Closing.  Any cash (or cash equivalents) held by Seller which constitutes the Tenant Security Deposit Balance shall be retained by Seller in exchange for the foregoing credit against the Purchase Price and shall not be transferred by Seller pursuant to this Contract (or any of the documents delivered at Closing), but the obligation with respect to the Tenant Security Deposit Balance nonetheless shall be fully assumed by Buyer.  The Tenant Security Deposit Balance shall not include any non-refundable deposits or fees paid by Tenants to Seller, either pursuant to the Leases or otherwise.

4.4.6 Insurance .  No proration shall be made in relation to insurance premiums and insurance policies that are not to be assigned to Buyer.  Seller shall have the risk of loss of the Property until 11:59 p.m. the day prior to the Closing Date, after which time the risk of loss shall pass to Buyer and Buyer shall be responsible for obtaining its own insurance thereafter.

4.4.7 Employees .  Any of Seller’s and Seller’s manager’s on-site employees, who have not been retained by the Buyer, shall have their employment at the Property terminated as of the Closing Date.

4.4.8 Closing Costs .  Buyer shall pay (i) the cost of recording the Deed (ii) all premiums or fees required to be paid by Buyer with respect to Buyer’s title policy and the Title Commitment, (iii) all costs in connection with any surveys obtained by Buyer for the Property, and (iv) half of the customary closing costs of the Escrow Agent.  Seller shall pay (a) all deed stamps or transfer taxes imposed on the conveyance and the recording of the Deeds, (b) the cost of recording any instrument required to discharge Required Cure Items or other instruments required to deliver title to the Property in the condition required hereunder, (c) the Broker’s fee to the extent any such fee is payable pursuant to a separate agreement, and (d) half of the customary closing costs of the Escrow Agent.

4.4.9 Possession .  Possession of the Property, subject to the Leases, Property Contracts, other than Terminated Contracts, and Permitted Exceptions, shall be delivered to Buyer at the Closing upon release from escrow of all items to be delivered by Buyer.  To the extent reasonably available to Seller, originals or copies of the Leases and Property Contracts, lease files, warranties, guaranties, operating manuals, keys to the property, and Seller’s books and records (other than proprietary information) (collectively, “ Seller’s Property-Related Files and Records ”) regarding the Property shall be made available to Buyer at the Property after the Closing.

4.5 Post-Closing Adjustments .  Buyer or Seller may request that Buyer and Seller undertake to re-adjust any item on the Proration Schedule (or any item omitted therefrom), in accordance with the provisions of Section 4.4 of this Contract; provided, however, that neither party shall have any obligation to re-adjust any items after the expiration of nine months after Closing.

4.6 Cooperation .  The Seller hereby agrees to cooperate with the Buyer and Buyer’s staff up to the date of Closing and thereafter (without cost or expense to Seller) in connection with the transition of ownership and management of the Property.  The Seller agrees to instruct

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the Seller’s management company to leave at the Property, or to turn over to the Buyer, all of the books, records and files pertaining  to the Property (other than confidential or excluded items), as they relate to ownership and management of the Property.  The provisions of this paragraph shall survive the Closing for a period of three (3) months.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF SELLER AND BUYER

5.1 Seller’s Representations .  Except, in all cases, for any fact, information or condition disclosed in the Title Documents, the Permitted Exceptions, the Property Contracts, or the Materials, or which is otherwise known by Buyer prior to the Closing, Seller represents and warrants to Buyer the following (collectively, the “ Seller’s Representations ”) as of the Effective Date and as of the Closing Date:

5.1.1 Seller is validly existing and in good standing under the laws of the state of its formation set forth in the initial paragraph of this Contract; and has the entity power and authority to sell and convey the Property and to execute the documents to be executed by Seller and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company, trustee, or equivalent entity actions required for the execution and delivery of this Contract, and the consummation of the transactions contemplated by this Contract.  The compliance with or fulfillment of the terms and conditions hereof will not conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any contract to which Seller is a party or by which Seller is otherwise bound, which conflict, breach or default would have a material adverse effect on Seller’s ability to consummate the transaction contemplated by this Contract or on the Property.  This Contract is a valid and binding agreement against Seller in accordance with its terms; and

5.1.2 Seller is not a “foreign person,” as that term is used and defined in the Internal Revenue Code, Section 1445, as amended.

5.1.3 The list of Property Contracts attached to this Contract and the copies provided to Buyer are true and complete in all material respects.

5.1.4 The Materials provided to Buyer are true and complete in all material respects.

5.1.5 The Rent Rolls attached hereto are true, accurate and complete and list all Tenants of the Property, and include the following information concerning the Leases affecting the Property as of the date thereon: (a) unit number, (b) name of tenant, (c) rental rate, (d) move in date, (e) expiration date, and (f) amount of security deposit held by Seller.  The copies of the Leases provided to the Buyer are true, accurate and complete.  Seller is not in default (and has not received any written notice from any tenant claiming default by Seller) under any Lease. All rental commissions due to real estate brokers in connection with any lease or occupancy agreement attached hereto have been paid in full. No tenant is entitled to any rebate, concessions, free rent, inducements to rent for management or otherwise.  Seller has complied in all material respects with the M.G.L. c 186, §15B as it relates to the collection of security deposits and last month’s rent.

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5.1.6 Seller has not received from any governmental authority having the power of eminent domain any written notice of any condemnation of the Property or any part thereof.

5.1.7 Seller has received no written notice of any pending or threatened litigation against Seller or the Property.

5.1.8 There have been no changes to the footprint of the Building shown on the Survey since the date of the Survey.

5.1.9 Seller has not received from any governmental authority written notice of any _, violation of any building, fire or health code or any other statute (including but not limited to the Occupational Safety and Health Act or the Americans With Disabilities Act), and to Seller’s knowledge, no such violations exist at the Property, applicable to the Property which will not be cured prior to Closing.

5.2 AS-IS .  Except for Seller’s Representations, the Property is expressly purchased and sold “AS IS,” “WHERE IS,” and “WITH ALL FAULTS” and without recourse or liability of any kind whatsoever to Seller.  Buyer represents and warrants that, as of the date hereof and as of the Closing Date, it has and shall have reviewed and conducted such independent analyses, studies (including, without limitation, environmental studies and analyses concerning the presence of lead, asbestos, water intrusion and/or fungal growth and any resulting damage, PCBs and radon in and about the Property), reports, investigations and inspections as it deems appropriate in connection with the Property.  If Seller provides or has provided any documents, summaries, opinions or work product of consultants, surveyors, architects, engineers, title companies, governmental authorities or any other person or entity with respect to the Property, including, without limitation, the offering prepared by Broker, Buyer and Seller agree that Seller has done so or shall do so only for the convenience of both parties, Buyer shall not rely thereon and the reliance by Buyer upon any such documents, summaries, opinions or work product shall not create or give rise to any liability of or against Seller’s Indemnified Parties.  Buyer acknowledges and agrees that no representation has been made and no responsibility is assumed by Seller with respect to current and future applicable zoning or building code requirements or the compliance of the Property with any other laws, rules, ordinances or regulations, the financial earning capacity or expense history of the Property, the continuation of contracts, continued occupancy levels of the Property, or any part thereof, or the continued occupancy by tenants of any Leases or, without limiting any of the foregoing, occupancy at Closing.

5.3 Representations and Warranties of Buyer .  For the purpose of inducing Seller to enter into this Contract and to consummate the sale and purchase of the Property in accordance herewith, Buyer represents and warrants to Seller the following as of the Effective Date and as of the Closing Date:

5.3.1 Buyer is a corporation, duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts.

5.3.2 Buyer, acting through any of its duly empowered and authorized officers or members, has all necessary entity power and authority to own and use its properties and to transact the business in which it is engaged, and has full power and authority to enter into this

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Contract, to execute and deliver the documents and instruments required of Buyer herein, and to perform its obligations hereunder; and no consent of any of Buyer’s partners, directors, officers or members are required to so empower or authorize Buyer, which has not been received.  The compliance with or fulfillment of the terms and conditions hereof will not conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any contract to which Buyer is a party or by which Buyer is otherwise bound, which conflict, breach or default would have a material adverse effect on Buyer’s ability to consummate the transaction contemplated by this Contract.  This Contract is a valid, binding and enforceable agreement against Buyer in accordance with its terms.

5.3.3 Other than Seller’s Representations, Buyer has not relied on any representation or warranty made by Seller or any representative of Seller (including, without limitation, Broker) in connection with this Contract and the acquisition of the Property.

5.3.4 Buyer is not a Prohibited Person.

5.3.5 To Buyer’s knowledge, none of its investors, affiliates or brokers or other agents (if any), acting or benefiting in any capacity in connection with this Contract is a Prohibited Person.

5.3.6 The funds or other assets Buyer will transfer to Seller under this Contract are not the property of, or beneficially owned, directly or indirectly, by a Prohibited Person.

5.3.7 The funds or other assets Buyer will transfer to Seller under this Contract are not the proceeds of specified unlawful activity as defined by 18 U.S.C. § 1956(c)(7).

ARTICLE VI

OPERATION OF THE PROPERTY

6.1 Leases and Property Contracts .  During the Review Period Seller may enter into new Leases and Property Contracts or modify Leases or any Property Contracts.  Seller shall not enter into or modify any leases or contracts affecting the Property after the end of the Review Period without the Buyer’s prior written consent.

6.2 General Operation of Property .  Seller agrees to keep the Property insured, as presently insured.  Except as specifically set forth in this Contract, Seller shall operate the Property after the Effective Date in the ordinary course of business, and except as necessary in Seller’s reasonable discretion to address any life or safety issue at the Property, Seller will not make any material alterations to the Property or remove any material Fixtures and Tangible Personal Property without the prior written consent of Buyer, which consent shall not be unreasonably withheld, denied or delayed.

6.3 Liens .  Seller covenants that it will not voluntarily create or cause any lien or encumbrance to attach to the Property between the Effective Date and the Closing Date (other than Leases and Property Contracts as provided in Section 6.1 ) unless Buyer approves such lien or encumbrance, in writing, which approval shall not be unreasonably withheld, conditioned or delayed.  If Buyer approves any such subsequent lien or encumbrance, the same shall be deemed a Permitted Encumbrance for all purposes hereunder.

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ARTICLE VII

CONDITIONS PRECEDENT TO CLOSING

7.1 Buyer’s Conditions to Closing .  Buyer’s obligation to close under this Contract shall be subject to and conditioned upon the fulfillment of the following conditions precedent:

7.1.1 All of the documents required to be delivered by Seller at the Closing pursuant to Section 5.2 hereof shall have been delivered;

7.1.2 Each of Seller’s Representations set forth in Section 5.1 shall be true in all material respects as of the Closing Date;

7.1.3 Seller shall have complied with, fulfilled and performed in all material respects each of the covenants, terms and conditions to be complied with, fulfilled or performed by Seller hereunder; and

7.1.4 The Property shall be in substantially the same condition on the Closing Date as it is on the Effective Date, reasonable wear and tear, fire and casualty excepted.

7.1.5 Seller shall complete, to Buyer’s reasonable satisfaction, all renovations and improvement work currently in progress on the Property as described in Schedule 7.1.5 in the time-frame listed , or otherwise secure post-Closing performance as therein described.

7.1.6 .

If any conditions set forth in Section 7 are not met, Buyer may (a) waive any of the foregoing conditions and proceed to Closing on the Closing Date with no offset or deduction from the Purchase Price, or (b) if such failure constitutes a default by Seller, exercise any of its remedies pursuant to this Contract.  In addition to the foregoing rights, if any of the conditions set forth in Section 7.1.5 are not met, the reasonable value of the outstanding work to complete the conditions set forth in such conditions shall be withheld from the Purchase Price at Closing (as described on Schedule 7.1.5) and shall be retained by the Escrow Agent until such conditions are met to the reasonable satisfaction of Buyer, or at Buyer’s option, Buyer shall have the right to cause Seller to enter into a reasonable post-Closing agreement in which Seller agrees to complete the conditions set forth in Section 7 to Buyer’s reasonable satisfaction within a reasonable period of time.

7.2 Seller’s Conditions to Closing .  Without limiting any of the rights of Seller elsewhere provided for in this Contract, Seller’s obligation to close with respect to conveyance of the Property under this Contract shall be subject to and conditioned upon the fulfillment of the following conditions precedent:

7.2.1 All of the documents and funds required to be delivered by Buyer at the Closing pursuant to Section 4.3 hereof shall have been delivered;

7.2.2 Each of the representations, warranties and covenants of Buyer contained herein shall be true in all material respects as of the Closing Date;

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7.2.3 Buyer shall have complied with, fulfilled and performed in all material respects each of the covenants, terms and conditions to be complied with, fulfilled or performed by Buyer hereunder;

If any of the foregoing conditions to Seller’s obligation to close with respect to conveyance of the Property under this Contract are not met, Seller may (a) waive any of the foregoing conditions and proceed to Closing on the Closing Date, or (b) terminate this Contract, and, if such failure constitutes a default by Buyer, exercise any of its remedies under this Contract.

ARTICLE VIII

BROKERAGE

8.1 Indemnity .  Seller represents and warrants to Buyer that it has dealt only with NAI Hunneman, CBRE, and True North Capital Partners, LLC (together, “ Brokers ”) in connection with this Contract.  Seller and Buyer each represents and warrants to the other that, other than the Brokers, it has not dealt with or utilized the services of any other real estate broker, sales person or finder in connection with this Contract, and each party agrees to indemnify, hold harmless, and, if requested in the sole and absolute discretion of the indemnitee, defend (with counsel approved by the indemnitee) the other party from and against all Losses relating to brokerage commissions and finder’s fees arising from or attributable to the acts or omissions of the indemnifying party.

8.2 Broker Commission .  If the Closing occurs, Seller agrees to pay the Brokers a commission according to the terms of a separate contract(s) between Seller and Brokers.  Brokers shall not be deemed a party or third party beneficiary of this Contract.  The provisions of this paragraph shall survive the Closing hereunder .

ARTICLE IX

DEFAULTS AND REMEDIES

9.1 Buyer Default .  If the Seller’s conditions to close set forth in this Contract are not met as of the Closing Date, and Seller has not waived such conditions, and Seller is otherwise prepared to perform, the Seller shall have the right to receive the Deposit, and neither party shall be obligated to proceed with the purchase and sale of the Property.  The Deposit is liquidated damages and recourse to the Deposit is, except for Buyer’s indemnity and confidentiality obligations hereunder, Seller’s sole and exclusive remedy for Buyer’s failure to perform its obligation to purchase the Property or breach of a representation or warranty.  SELLER AND BUYER ACKNOWLEDGE THAT SELLER’S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES RESULTING FROM A DEFAULT BY BUYER IN ITS OBLIGATION TO PURCHASE THE PROPERTY.  SELLER AND BUYER FURTHER AGREE THAT THIS SECTION 9.1 IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER’S EXCLUSIVE REMEDY AGAINST BUYER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A BREACH BY BUYER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS

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CONTEMPLATED BY THIS CONTRACT, OTHER THAN WITH RESPECT TO BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER.

9.2 Seller Default .  If Buyer’s conditions to close set forth in this Contract are not met as of the Closing Date, and Buyer has not waived such conditions, and Buyer is otherwise prepared to perform hereunder, then at Buyer’s option, either (a) this Contract shall terminate and neither party shall be obligated to proceed with the purchase and sale of the Property and the Deposit shall be returned to Buyer plus Buyer’s actual costs not to exceed $50,000.00, or (b) Buyer may seek specific performance of Seller’s obligation pursuant to this Contract, but only if Buyer files suit therefor within sixty (60) days after the Closing Date.

ARTICLE X

RISK OF LOSS OR CASUALTY

10.1 Major Damage .  In the event that the Property is damaged or destroyed by fire or other casualty prior to Closing, and the cost for demolition, site cleaning, restoration, replacement, or other repairs (collectively, the “ Repairs ”), is estimated by the Seller to be more than One Million Dollars ($1,000,000.00), then Seller shall have no obligation to make such Repairs, and shall notify Buyer in writing of such damage or destruction (the “ Damage Notice ”).  Within ten (10) Business Days after Buyer’s receipt of the Damage Notice, Buyer may elect at its option to terminate this Contract by delivering written notice to Seller in which event the Deposit shall be refunded to Buyer.  In the event Buyer fails to terminate this Contract within the foregoing ten (10) Business Day s period, this transaction shall be closed in accordance with Section 10.3 below.

10.2 Minor Damage .  In the event that the Property is damaged or destroyed by fire or other casualty prior to the Closing, and the cost of Repairs is estimated by the Seller to be equal to or less than One Million Dollars ($1,000,000.00), this transaction shall be closed in accordance with Section 10.3 , notwithstanding such casualty.  In such event, Seller shall make such Repairs to the extent of any recovery from insurance carried on the Property, if such Repairs can be reasonably effected before the Closing (and unless Buyer notifies Seller that it shall effectuate such Repairs).

10.3 Closing .  In the event Buyer fails to terminate this Contract following a casualty as set forth in Section 10.1 , or in the event of a casualty as set forth in Section 10.2 , then this transaction shall be closed in accordance with the terms of the Contract for the full Purchase Price, notwithstanding any such casualty, in which case Buyer shall, at Closing, execute and deliver an assignment and assumption of Seller’s rights and obligations with respect to the insurance claim related to such casualty, and thereafter Buyer shall receive all insurance proceeds pertaining to such claim, less any amounts which may already have been spent by Seller for Repairs (plus a credit against the Purchase Price at Closing in the amount of any deductible payable by Seller in connection therewith).

10.4 Repairs .  To the extent that Seller elects to commence any Repairs prior to Closing, then Seller shall be entitled to receive and apply available insurance proceeds to any portion of such Repairs completed or installed prior to Closing, with Buyer being responsible for completion of such Repairs after Closing.  To the extent that any Repairs have been commenced

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prior to Closing, then the Property Contracts shall include, and Buyer shall assume at Closing, all construction and other contracts entered into by Seller in connection with such Repairs.

ARTICLE XI

EMINENT DOMAIN

11.1 Eminent Domain .  In the event that, at the time of Closing, any material part of the Property, such that the Property can no longer be used for multi-family apartment buildings or access to the Property is cut off, is (or previously has been) acquired, or is about to be acquired, by any governmental agency by the powers of eminent domain or transfer in lieu thereof (or in the event that at such time there is any notice of any such acquisition or intent to acquire by any such governmental agency), Buyer shall have the right, at Buyer’s option, to terminate this Contract by giving written notice within ten (10) days after Buyer’s receipt from Seller of notice of the occurrence of such event, and if Buyer so terminates this Contract, Buyer shall recover the Deposit hereunder.  If Buyer fails to terminate this Contract within such ten (10) day period, this transaction shall be closed in accordance with the terms of this Contract for the full Purchase Price and Buyer shall receive the full benefit of any condemnation award.

ARTICLE XII

MISCELLANEOUS

12.1 Binding Effect of Contract .  This Contract shall not be binding on either party until executed by both Buyer and Seller.  Neither the Escrow Agent’s nor the Broker’s execution of this Contract shall be a prerequisite to its effectiveness.  This Contract shall be binding upon and inure to the benefit of Seller and Buyer, and their respective successors and permitted assigns.

12.2 Exhibits and Schedules .  All Exhibits and Schedules annexed hereto are a part of this Contract for all purposes.

12.3 Assignability .  This Contract is not assignable by Buyer to any entity other than New  England Realty Associates Limited Partnership, or its subsidiaries, without first obtaining the prior written approval of Seller.  Notwithstanding the foregoing, Buyer may assign this Contract, without first obtaining the prior written approval of Seller, to one or more entities so long as (A) Buyer is an affiliate of the purchasing entity, and (B) Buyer provides written notice to Seller of any proposed assignment no later than five (5) business days prior to the Closing Date.  As used herein, an affiliate is a person or entity controlled by, under common control with, or controlling another person or entity, which definition will include New  England Realty Associates Limited Partnership, and its subsidiaries.

12.4 Captions .  The captions, headings, and arrangements used in this Contract are for convenience only and do not in any way affect, limit, amplify, or modify the terms and provisions hereof.

12.5 Number and Gender of Words .  Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate.

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12.6 Notices .  All notices, demands, requests and other communications required or permitted hereunder shall be in writing, and shall be (a) personally delivered with a written receipt of delivery; (b) sent by a nationally-recognized overnight delivery service requiring a written acknowledgement of receipt or providing a certification of delivery or attempted delivery; (c) sent by certified or registered mail, return receipt requested; or (d) sent by confirmed facsimile transmission or electronic delivery with an original copy thereof transmitted to the recipient by one of the means described in subsections (a) through (c) no later than one (1) Business Day thereafter.  All notices shall be deemed effective when actually delivered as documented in a delivery receipt; provided, however, that if the notice was sent by overnight courier or mail as aforesaid and is affirmatively refused or cannot be delivered during customary business hours by reason of the absence of a signatory to acknowledge receipt, or by reason of a change of address with respect to which the addressor did not have either knowledge or written notice delivered in accordance with this paragraph, then the first attempted delivery shall be deemed to constitute delivery.  Each party shall be entitled to change its address for notices from time to time by delivering to the other party notice thereof in the manner herein provided for the delivery of notices.  All notices shall be sent to the addressee at its address set forth following its name below:

To Seller:

 

True North Capital Partners, LLC

369 Lindsay Pond Road

Concord, MA 01742

Telephone: (415) 265-6933

Facsimile: (978) 405-5057

Attention: Jeff Bruce

Email: jeff@truenorthcapitalpartners.com

 

With a copy to:

Matthew T. Henshon, Esq.

Henshon Klein LLP

120 Water St., 2 nd Floor

Boston, MA 02109

617-367-1800

617-367-1877 (fax)

mhenshon@henshon.com

 

To Buyer:

 

The Hamilton Company, Inc.

39 Brighton Avenue

Allston, MA 02134

Attention:  Carl A. Valeri
Telephone: (617) 783-0039

Facsimile:  (617) 783-0568

Email:  cvaleri@thehamiltoncompany.com

 

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with copy to:

 

Saul Ewing Arnstein & Lehr LLP

131 Dartmouth Street

Suite 501

Boston, MA 02116

Attention:  Sally E. Michael, Esq.

Telephone:  (617) 912-0920

Facsimile:    (857)  400-3768

Email:  sally.michael@saul.com

 

Any notice required hereunder to be delivered to the Escrow Agent shall be delivered in accordance with above provisions as follows:

Commonwealth Land Title Insurance Company

265 Franklin Street

Boston, MA  02110

Attention:  Philip Tanner

Telephone:  (617) 542-0800

Facsimile:  (617) 542-0638

Email:  phil.tanner@fnf.com

 

Unless specifically required to be delivered to the Escrow Agent pursuant to the terms of this Contract, no notice hereunder must be delivered to the Escrow Agent in order to be effective so long as it is delivered to the other party in accordance with the above provisions.

12.7 Governing Law and Venue .  The laws of The Commonwealth of Massachusetts shall govern the validity, construction, enforcement, and interpretation of this Contract, unless otherwise specified herein except for the conflict of laws provisions thereof.  All claims, disputes and other matters in question arising out of or relating to this Contract, or the breach thereof, shall be decided by proceedings instituted and litigated in a court of competent jurisdiction in The Commonwealth of Massachusetts, and the parties hereto expressly consent to the venue and jurisdiction of such court.

12.8 Entire Agreement .  This Contract embodies the entire Contract between the parties hereto concerning the subject matter hereof and supersedes all prior conversations, proposals, negotiations, understandings and contracts, whether written or oral.

12.9 Amendments .  This Contract shall not be amended, altered, changed, modified, supplemented or rescinded in any manner except by a written contract executed by all of the parties; provided, however, that, (a) the signature of the Escrow Agent shall not be required as to any amendment of this Contract other than an amendment of Section 1.3 , and (b) the signature of the Broker shall not be required as to any amendment of this Contract

12.10 Severability .  In the event that any part of this Contract shall be held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be reformed, and enforced to the maximum extent permitted by law.  If such provision cannot be reformed, it shall

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be severed from this Contract and the remaining portions of this Contract shall be valid and enforceable.

12.11 Multiple Counterparts/Facsimile Signatures .  This Contract may be executed in a number of identical counterparts.  This Contract may be executed by facsimile signatures or electronic delivery of signatures which shall be binding on the parties hereto, with original signatures to be delivered as soon as reasonably practical thereafter.

12.12 Construction .  No provision of this Contract shall be construed in favor of, or against, any particular party by reason of any presumption with respect to the drafting of this Contract; both parties, being represented by counsel, having fully participated in the negotiation of this instrument.

12.13 Confidentiality .  Buyer shall not disclose the terms and conditions contained in this Contract and shall keep the same confidential, provided that Buyer may disclose the terms and conditions of this Contract (a) as required by law, (b) to consummate the terms of this Contract, or any financing relating thereto, or (c) to Buyer’s or Seller’s lenders, attorneys and accountants.  Any information obtained by Buyer in the course of its inspection of the Property, and any Materials provided by Seller to Buyer hereunder, shall be confidential and Buyer shall be prohibited from making such information public to any other person or entity other than its Consultants, without Seller’s prior written authorization, which may be granted or denied in Seller’s sole discretion.  In addition, Buyer shall use its reasonable efforts to prevent its Consultants from divulging any such confidential information to any unrelated third parties except as reasonably necessary to third parties engaged by Buyer for the limited purpose of analyzing and investigating such information for the purpose of consummating the transaction contemplated by this Contract.  Unless and until the Closing occurs, Buyer shall not market the Property (or any portion thereof) to any prospective Buyer or lessee without the prior written consent of Seller, which consent may be withheld in Seller’s sole discretion.

12.14 Time of the Essence .  It is expressly agreed by the parties hereto that time is of the essence with respect to this Contract and any aspect thereof.

12.15 Waiver .  No delay or omission to exercise any right or power accruing upon any default, omission, or failure of performance hereunder shall impair any right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient.  No waiver, amendment, release, or modification of this Contract shall be established by conduct, custom, or course of dealing and all waivers must be in writing and signed by the waiving party.

12.16 Time Zone/Time Periods .  Any reference in this Contract to a specific time shall refer to the time in the time zone where the Property is located.  (For example, a reference to 3:00 p.m. refers to 3:00 p.m. EST if the Property is located in Boston, Massachusetts.)  Should the last day of a time period fall on a weekend or legal holiday, the next Business Day thereafter shall be considered the end of the time period.

12.17 No Personal Liability of Officers, Trustees or Directors of Seller’s Partners .  Buyer agrees that none of Seller’s Indemnified Parties shall have any personal liability under this

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Contract or any document executed in connection with the transactions contemplated by this Contract.

12.18 No Recording .  Buyer shall not cause or allow this Contract or any contract or other document related hereto, nor any memorandum or other evidence hereof, to be recorded or become a public record without Seller’s prior written consent, which consent may be withheld at Seller’s sole discretion.  If Buyer records this Contract or any other memorandum or evidence thereof, Buyer shall be in default of its obligations under this Contract.  Buyer hereby appoints Seller as Buyer’s attorney-in-fact to prepare and record any documents necessary to effect the nullification and release of the Contract or other memorandum or evidence thereof from the public records.  This appointment shall be coupled with an interest and irrevocable.

12.19 Relationship of Parties .  Buyer and Seller acknowledge and agree that the relationship established between the parties pursuant to this Contract is only that of a seller and a Buyer of property.  Neither Buyer nor Seller is, nor shall either hold itself out to be, the agent, employee, joint venturer or partner of the other party.

12.20 Survival .  Except for the representations and warranties contained in this Contract and any other provision in this Contract, that by their express terms survive the termination or Closing (the “ Survival Provisions ”), none of the terms and provisions of this Contract shall survive the termination of this Contract, and if the Contract is not so terminated, all of the terms and provisions of this Contract (other than the Survival Provisions, which shall survive the Closing) shall be merged into the Closing documents and shall not survive Closing.  The Survival Provisions shall survive for six (6) months after the Closing Date (the “ Survival Period ”).  Buyer shall have the right to bring an action against Seller pursuant to this Section only on the following conditions: (i) Buyer first learns of a claim after Closing and files such action against Seller within the Survival Period, and (ii) Buyer shall not have the right to bring a cause of action under this Section unless the damage to Buyer on account of such claim (individually or when combined with damages from other claims) equals or exceeds Twenty-Five Thousand Dollars ($25,000.00), but thereafter Buyer may assert any of such claim in its full amount, beginning with the first dollar of any such claim.  Furthermore, Buyer agrees that the maximum liability of Seller under the indemnity set forth in this Section is limited to One Million Dollars ($1,000,000.00).

 

[Remainder of Page Intentionally Left Blank]

 

 

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NOW, THEREFORE, the parties hereto have executed this Contract as of the date first set forth above.

 

 

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ESCROW AGENT SIGNATURE PAGE

The undersigned executes the Contract to which this signature page is attached for the purpose of agreeing to the provisions of Section 1.3 of the Contract.

 

 

 

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EXHIBITS AND SCHEDULES

 

EXHIBITS

 

 

 

 

SCHEDULES

 

 

 

 

 

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EXHIBIT A

Legal Description

Real property in the City of Needham, County of Norfolk, State of Massachusetts, described as follows:

A certain parcel of land situated on Highland Avenue, Needham, Norfolk County, Massachusetts, together with any improvements situated thereon, as specifically shown as Lot 2 on a plan entitled "Plan of Land in Needham", prepared by Robert A. MacEwen, Registered Land Surveyor, dated January 10, 1984, which plan is recorded with the Norfolk County Registry of Deeds as Plan #472 of 1984 in Plan Book 310 and is bounded and described according to said plan as follows:

Beginning at a point on the Northwesterly side of Highland Avenue, being the Southeasterly corner of the hereinafter described parcel:

Thence running N 52°-38'-21" W 159.45 feet by land now or formerly of James C. Harkins and Charles J. and Ellen Wainwright;

Thence S 31°-54’-04" W 97.33 feet by land now or formerly of Charles J. and Ellen Wainwright;

Thence N 58°-54’-31" W 40.00 feet by Cottage Avenue;

Thence S 31°-05’-29" W 15.00 feet by Cottage Avenue;

Thence N 58°-54’-32" W 25.54 feet;

Thence along a radius of 3232.92 a length of 575.57 feet by land now or formerly of MBTA;

Thence S 65°-50'-24" E 145.02 feet by Lot 1;

Thence N 56°-53'-36" E 101.57 feet by Lot 1;

Thence S 51°-17'-24" E 180.18 feet by Lot 1;

Thence S 06°-17'-24" E 56.57 feet by Lot 1,

Thence S 38°-42'-36" W 470.12 feet along Highland Avenue to a point of nontangency;

Thence along Highland Avenue by a curve having a radius of 1005.00 feet and a length of 43.89 feet, said curve having a chord bearing of S 37°-06'-22" W to the point of beginning.

Together with the benefit of a perpetual access, drainage and underground utility easement as specifically shown on said Plan, and as set forth in Easement Deed from the Town of Needham, dated March 27, 1984, recorded in Book 6387, Page 187, and as shown on the Survey, as appurtenant to Parcel 2 on said plan, and being bounded and described according to said plan as follows:

Exhibit 10.2

Original Mortgage recorded in

Norfolk County Registry of Deeds Book 33802, Page 339

ASSUMPTION AND MODIFICATION AGREEMENT

THIS ASSUMPTION AND MODIFICATION AGREEMENT (this “ Assumption Agreement ”) is entered into effective as of the 29th day of March, 2018, by and between Hamilton Highlands, LLC (“ New Borrower ”),  with an address of 39 Brighton Avenue, Boston, MA 02134, and Brookline Bank (“ Lender ”) with an address of 131 Clarendon Street, Boston, MA 02117.

RECITALS

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AGREEMENT

In consideration of these promises, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties agree as follows:

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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date written above.

 

COMMONWEALTH OF MASSACHUSETTS

 

 

 

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COMMONWEALTH OF MASSACHUSETTS

 

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THIS NOTE AMENDS AND RESTATES THE NOTE DATED JANUARY 14, 2016 IN THE ORIGINAL PRINCIPAL AMOUNT OF $21,500,000.00 FROM WEBSTER GREEN APARTMENTS, LLC TO BROOKLINE BANK IN ITS ENTIRETY

AMENDED AND RESTATED NOTE

DATE OF NOTE :

March 29, 2018

PRINCIPAL AMOUNT OF NOTE :

TWENTY-ONE MILLION FIVE HUNDRED THOUSAND AND 00/00 DOLLARS ($21,500,000.00).  Tranche I (i) $20,829,314.71 shall be used to capitalize the acquisition of that certain real property comprising a 77 unit apartment community commonly known as the Webster Green Apartments and located at 757 Highland Avenue, Needham, Massachusetts, as more particularly described in the Mortgage (as hereinafter defined)(the “Property” ) and (ii) Tranche II, up to the remaining $670,685.29 shall be used to pay for certain renovation costs associated with the Property

MAKER :

Hamilton Highlands, LLC, a Massachusetts limited liability company having its principal office at 39 Brighton Avenue

Boston, Massachusetts 02134

LENDER :

Brookline Bank , a Massachusetts savings bank,  having an address of

131 Clarendon Street

Boston, Massachusetts 02116

MATURITY DATE :

January 15, 2026

LOAN TERM :

A period of approximately ninety-three and one-half (93.5) calendar months commencing upon the date hereof and expiring upon the Maturity Date.

AMORTIZATION :

Interest only until and including the Payment Day (as hereinafter defined) of February 28, 2019.  Commencing with the Payment Day of March 29, 2019 and on each Payment Date thereafter, monthly payments of interest and principal shall be made each in the amount as

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determined by Lender to fully amortize the principal amount of this Loan based on an assumed amortization period of thirty (30) years (the “Amortization Period”) with the entire outstanding principal balance being due on the Maturity Date.

INTEREST RATE :

For the period from the date hereof until and including January 14, 2020:

The Interest Rate shall be a variable rate equal to 195 basis points (1.95%) over the one-month (30 day) LIBOR Rate (as hereafter defined).

The LIBOR Rate shall be determined by Lender prior to the commencement of each Interest Period as defined hereinbelow.  The LIBOR Rate shall remain in effect, subject to the provisions hereof, from and including the first day of the Interest Period to and excluding the last day of the Interest Period for which it is determined.

LIBOR Rate :  The term LIBOR Rate means with respect to each day during Interest Period, the rate for U.S. dollar deposits of thirty (30) day maturity as reported on Reuters Screen LIBOR1 Page as of 11:00 a.m., London time, on the second London business day before the relevant Interest Period begins (or if not so reported, then as determined by Lender from another recognized source or interbank quotation); provided, however that such LIBOR Rate shall not be less than zero at any time during the Loan Term.

For the period from January 15, 2020 until and including January 15, 2026:

The Interest Rate shall be a  fixed rate for five years and thereafter for one year equal to the applicable Federal Home Loan Bank Rate (as hereafter defined) plus 175 basis points.

Federal Home Loan Bank Rate means the interest rate for five (5) year or one (1) year (as applicable) classic advance rate notes of the Federal Home Loan Bank of Boston (or the highest of such rates, if there is more than one such rate).  In the event the Federal Home Loan Bank Rate is no longer available, or becomes unascertainable for any reason, the Lender shall designate a comparable rate which shall be deemed the Federal Home Loan Bank Rate hereunder.  The Federal Home Loan Bank Rate is a reference rate and does not necessarily represent the lowest or best rate charged to any customer.

INTEREST PERIOD :

The first Interest Period shall begin on the date principal is first advanced under this Note (the “Advance Date”) and end on (but excluding) the next succeeding Payment Day (as hereinafter defined), and thereafter, each period commencing on (and including) the last day of the immediately preceding Interest Period and ending on (but excluding) the next Payment Day (before any adjustment for a day that is not a Business Day), provided, (i) any Interest Period that would otherwise end on (but exclude) a day which is not a Business Day shall not be extended to the next succeeding Business Day; (ii) any Interest Period that ends in a month for

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which there is no day which numerically corresponds to the Payment Day shall end on (but exclude) the last business Day of such month, and (iii) any Interest Period that would otherwise extend past the Maturity Date shall end on (but exclude) the Maturity Date.  No Interest Period shall extend beyond the scheduled Maturity Date of the Note.

Interest Calculation Method :    Interest on this Note shall be calculated on the basis of a 360‑day year and charged for the actual number of days elapsed in an interest period; that is, by applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding during the Interest Period.  All interest payable under this Note is computed using this method.

Business Day :   Any day other than a Saturday or a Sunday or any day on which commercial banks in New York, New York, are authorized or required to close.

PAYMENT DAY :

Commencing April 29, 2018,  and on the same day of each succeeding month during the Loan Term and for February, the last day of February (each a “Payment Day”).

MORTGAGED PROPERTY :

The premises known as Webster Green Apartments and located at 757 Highland Avenue, Needham, Massachusetts as described in Exhibit A of the Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (the “Mortgage”).

PREPAYMENT :

Maker may prepay all or any portion of the unpaid principal balance due under this Note by paying, in addition to the payment of principal, accrued interest and any other sums due to the Lender at the time of prepayment, a prepayment premium in an amount equal to the percentage of the amount of principal being prepaid, as follows:

Two (2%) percent from the date hereof through and including January 15, 2025; and

Zero (0%) percent from January 16, 2025 through and including January 15, 2026.

The foregoing premium shall be due in the event of a prepayment by acceleration or otherwise.  In the event any partial prepayment of this Note is permitted, it shall be applied to installments hereof in the inverse order of maturity.  There shall be no prepayment payable if this Note is refinanced by Maker with an agency loan through Walker & Dunlop via Lender or if the Note is refinanced by Lender.

A  NOTE PARTY :

Maker, any one or more of the persons or entities constituting Maker, any principal Maker, co-Maker, and any guarantor, endorser, or surety of Maker.

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PLACE OF EXECUTION OF NOTE :

Boston, Massachusetts

For value received, Maker does hereby promise to pay to the order of  Lender at the office of Lender set forth above or at such other place or places or to such other party or parties as the holder of this Note may from time to time designate, the Principal Amount of this Note, or so much thereof as shall be advanced against this Note from time to time in amounts agreed to from time to time by Lender, together with interest thereon, as follows:  on each Payment Day during the Loan Term starting with the 29th day of April, 2018,  until and including the Payment Day of February 28, 2019,  Maker shall make payments of interest only on the principal balance outstanding at the Interest Rate in effect on the date thereof.  Commencing with the Payment Day of March 28, 2019 and on each Payment Date thereafter, Maker shall make payments of principal and interest the amount as determined by Lender to fully amortize the principal amount of this Loan at the end of the Amortization Period.  On the Maturity Date, Maker shall make a final payment equal to the principal and all accrued interest then outstanding.  If any monies paid by the holder of this Note to cure any default of Maker shall not have been repaid, payments made on account of monies due under this Note may, at the option of the holder of this Note, be applied first to repay such monies paid and the balance, if any, shall be applied on account of interest.

As a condition to this Note, Maker shall pay Lender a non-refundable original fee in an amount equal to $75,250.00.

This Note may be prepaid in full, or in part, subject to payment of the prepayment premium set forth above.

If at any time any amount payable by Maker to Lender on account of principal or interest shall not be paid for a period of fifteen (15) days after the due date thereof, Maker shall then pay to Lender upon demand, in addition to all other amounts payable, a late charge equal to five (5%) percent of the amount so overdue, but in no event less than $15.00.  The foregoing shall not apply to any payment due on the Maturity Date.

If a default shall occur in the making of any payment provided for in this Note,  or if any other event designated as an Event of Default in the Mortgage shall occur, after the expiration of any applicable grace period, then, or at any time thereafter, the Lender may (a) declare the entire debt then remaining unpaid, immediately due and payable and (b) the Interest Rate shall be an annual rate equal to four  (4%) percent in excess of the Interest Rate payable in the absence of a default and (c) apply to the indebtedness of Maker to Lender any and all deposits, certificates of deposit or other sums held by Lender of the account of or due as a credit to Maker all of which sums shall be deemed additional security for all obligations of Maker to Lender evidenced by this Note.

Failure of the holder hereof to exercise the option for acceleration of maturity following any default, or to exercise any other option granted hereunder, or the acceptance by the holder hereof of partial payment hereunder shall not constitute a waiver of any such default, but such options shall remain continuously in force.

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This Note may not be changed orally, but only by an agreement in writing.

The Maker hereby waives presentment for payment, demand, notice of dishonor, diligence in collection, protest, and all other demands and notices (other than notices specifically and expressly provided for herein or in the Mortgage or in any other document that evidences or secures the indebtedness evidenced by this Note) in connection with the delivery, acceptance, performance, default, or enforcement of this Note, the Mortgage or any other security for this Note, and agrees to pay all costs of collection incurred therewith, including reasonable attorneys’ fees and to perform and comply with each of the covenants, conditions, provisions, and agreements of any of the undersigned contained in every instrument evidencing or securing the indebtedness evidenced by this Note.  No extension of the time for the payment of this Note or any installment hereof made by agreement with any person now or hereafter liable for the payment of this Note shall operate to release, discharge, modify, change, or affect the liability of the Maker.

If any provision of this Note shall be determined to be invalid or unenforceable under law, such determination shall not affect the validity or enforcement of the remaining provisions of this Note.  Notwithstanding any provision contained in this Note or in any instrument now or hereafter given as security for this Note or in connection with the loan for which this Note is evidence, the maximum amount of interest and other charges in the nature thereof contracted for or payable shall not exceed the maximum amount which may be lawfully contracted for or payable.  If said amount of interest and other charges shall be determined to exceed said maximum amount, the same shall be reduced to said maximum amount.

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This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.

This Note is secured by the Mortgage.

This Note consists of six (6) pages plus the signature page.

Time is of the essence of this Note.

MAKER AND LENDER (BY ACCEPTANCE OF THIS NOTE) MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF LENDER RELATING TO THE ADMINISTRATION OF THE LOAN OR THE ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.  THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS NOTE AND MAKE THE LOAN.

This instrument shall take effect as a sealed instrument.

End of text.  Signature on following page.

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COMMONWEALTH OF MASSACHUSETTS

 

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BROOKLINB BANK HEREBY AGREES TO THE FOREGOING AMENDED AND RESTATED NOTE, DATED MARCH 29, 2018, IN THE PRINCIPAL AMOUNT OF $21,500,000.00 FROM HAMILTON HIGHLANDS, LLC

BROOKLINE BANK

 

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Exhibit 10.4

LIMITED GUARANTY

This GUARANTY is made as of the 29th day of March, 2018, by New England Realty Associates Limited Partnership ,  a Massachusetts limited partnership with an address c/o The Hamilton Company, 39 Brighton Avenue, Boston, Massachusetts  02134  (the "Guarantor"), for the purpose of inducing Brookline Bank ,  having an address of 131 Clarendon Street, Boston, Massachusetts  02116  (the “Lender”), to make a loan in the amount of Twenty-One Million Five Thousand ($21,500,000.00) Dollars (the “Loan”) to Hamilton Highlands, LLC , a Massachusetts limited liability company, of 39 Brighton Avenue, Boston, Massachusetts  02134 (the “Borrower”).  The Loan will be evidenced by an amended and restated note of the Borrower (the “Note”)  and by a Loan Agreement, as amended, by and between the Lender and Webster Green Apartments, LLC (“Webster”), as assumed by Borrower and will be secured by a Mortgage, Security Agreement and Assignment of Leases and Rents (the “Mortgage”) of certain real property known as 757 Highland Avenue, Needham, Norfolk County, Massachusetts, which is more particularly described in the Mortgage (the "Mortgaged Premises").  The Note, Loan Agreement, Mortgage and all other instruments, whether now existing or hereafter arising, executed in connection with the Loan or any extension or modification thereof or submitted to the Lender are collectively referred to herein as the "Loan Documents."

In consideration of the foregoing, Guarantor agrees as follows:

1.    Guaranty .   Guarantor unconditionally guarantees to the Lender (all of the matters hereby guaranteed being hereafter referred to for convenience as the "Obligations"):

(a)   The full and prompt payment when due of twenty-five percent (25%) of the amount due to the Lender under the Loan Documents, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter;

(b)   The full and prompt payment when due of any and all costs of collection relating to the Loan and this Guaranty;

(c)   the prompt and full payment of all losses, damages and costs (including Lender’s reasonable attorney’s fees) sustained by the Lender as a result of the occurrence of any one or more of the events set forth in clauses (i) - (ix) of this Section 1(c) with respect to the Loan and/or the Mortgaged Premises

 

(i)   Guarantor and/or Borrower denying the Lender possession of the Mortgaged Premises after default under the Loan Documents beyond applicable grace, notice and cure periods;

(ii) The voluntary bankruptcy of the Borrower, or the involuntary bankruptcy of the Borrower not dismissed within ninety (90) days of its filing;

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(iii) Fraud which induces the making of the Loan to the Borrower to the extent that it adversely affects in any material respect the value of the collateral given as security for the Note or the ability of the Borrower to repay the Note;

(iv) The generation, release, storage or disposal of oil, hazardous waste, asbestos or hazardous materials at, on or from the Mortgaged Premises in violation of applicable law or any past, present or future violation of any applicable federal or state law, code, regulation or statute relating to such generation, release, storage and/or disposal at, on or from the Mortgaged Premises;

(v)  Failure to pay real estate taxes or maintain fire and casualty insurance with rent loss coverage as provided in the Mortgage prior to the Lender taking possession of the Mortgaged Premises as mortgagee in possession or while Borrower controls the Mortgaged Premises;

(vi)  The misapplication of security deposits or of any funds held in trust, or of insurance proceeds;

(vii)  The commission of or the continued existence of waste with respect to the Mortgaged Premises;

(viii) The misapplication or misappropriation of tax reserve amounts, tenant improvement reserve accounts, prepaid rents or other similar sums paid to or held by the Borrower or any other person or entity in connection with the operation of the Mortgaged Premises; and/or

(ix) The failure to apply any rent or income from the Mortgaged Premises regardless of its source first to the payment of principal, interest, real estate taxes and other charges when due under the Loan Documents or to the payment of operating expenses or capital expenditures benefiting the Mortgaged Premises or to distributions in the ordinary course of business prior to the occurrence of any Event of Default set forth in the Mortgage

Guarantor’s liability hereunder is direct and unconditional and may be enforced after nonpayment or non-performance by the Borrower, (which nonpayment or nonperformance continues after the expiration of applicable notice and grace periods), of any of the Obligations without requiring Lender to resort to any other person or entity (including, without limitation, the Borrower) or any other right, remedy or collateral.

2.    Rights of the Lender .  Guarantor authorizes the Lender, with the assent of Borrower, to alter at any time, in the Lender’s discretion, any of the terms of the Obligations, to take and to hold any security for the Obligations and to accept additional or substituted security, to subordinate, compromise or release any security, to release the Borrower from its liability for all or any part of  the Obligations, to release any Guarantor hereunder or to substitute or add one or more guarantors or endorsers hereunder, and to assign this Guaranty in whole or in part.  The Lender may take any and all of the foregoing actions upon such terms and conditions as the Lender may elect, without giving notice

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to any Guarantor or obtaining the consent of any Guarantor and without affecting the liability of any Guarantor to the Lender.

3.    Joint, Several and Independent Liability .  The obligations of Guarantor under this Guaranty are joint and several and independent of the obligations of the Borrower.  The Lender may release or settle with the Borrower or any Guarantor at any time without affecting the continuing liability of any Guarantor.  The Lender may proceed against any Guarantor under this Guaranty without first proceeding against the Borrower, against any other Guarantor or any other person or any security held by the Lender and without pursuing any other remedy.  Lender’s rights under this Guaranty will not be altered or exhausted by any action by Lender until all of the Obligations have been paid, performed and satisfied in full.

4.    Waiver of Indulgence .  Guarantor waives notice of acceptance of this Guaranty and all presentment, demand, protest, notice of protest and notices of default or dishonor of any note or other obligation guaranteed hereby and all other suretyship defenses generally.  No extension of time or other indulgence or release of liability or collateral granted by the Lender to the Borrower or to any other guarantor will release or affect the obligations of any Guarantor hereunder and no act, omission or delay on the part of the Lender in exercising any rights hereunder or in taking any action to collect or enforce payment or performance of any of the Obligations shall be a waiver of any such right or release or affect the Obligations.  This Guaranty shall not be impaired by any bankruptcy, insolvency, arrangement, assignment for the benefit of creditors, reorganization or other debtor relief proceedings under any federal or state law, whether now existing or hereafter enacted, with respect to the Borrower or any Guarantor or if for any other reason the Borrower or any other Guarantor has no legal obligation to discharge any of the obligations.

5.    Subordination of Rights .  Guarantor covenants and agrees that any indebtedness of the Borrower to the Guarantor, whether arising from payments made by Guarantor pursuant to this Guaranty or otherwise, is hereby subordinated to the Obligations and that after any default under the Note or any of the other Loan Documents, the Guarantor shall hold any funds received from Borrower in trust for the Lender to satisfy the Obligations. This subordination of the indebtedness and other obligations shall continue until all of the Obligations have been paid, performed and satisfied in full.  Nothing in this Section shall prevent any Guarantor from enforcing and collecting any obligation owed to such Guarantor by the Borrower prior to a default under the Note or under any of the other Loan Documents or after the Obligations have been paid, performed and satisfied in full.

6.    Financial Statements and Tax Returns .   Guarantor shall furnish the Lender annually by May 1 st of each year for as long as any sums are owed to the Lender on account of the Note or other obligations, Guarantor’s financial statement on forms prescribed by the Lender and a complete copy of Guarantor’s federal income tax return for the most recent year. If such tax return is filed on extension, then Guarantor shall provide the Lender with a copy thereof within fifteen (15) days of its filing.

7.    Minimum Net Worth.  For as long as any sums are owed to Lender on account of the Note or other obligations, Guarantor shall maintain (a) a minimum net worth of at least Seven Million Fie Hundred Thousand and 00/100 Dollars ($7,500,000.00), and (b) liquid assets (consisting of cash or cash equivalents, bonds, certificates of deposit, mutual funds, marketable stocks and other

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marketable securities), and reoccurring cash flow distributions from Guarantor’s ownership in real estate investments, which shall not be subject to any liens, of at least One Million and 00/100 ($1,000,000.00).

8.    Default .  The Lender may declare Guarantor in default under this Guaranty if a Guarantor fails to perform any of its obligations under this Guaranty or under any other guaranty given to the Lender in connection with the Loan, or becomes the subject of any bankruptcy, insolvency, assignment for the benefit of creditors, arrangement, reorganization, or other debtor relief proceeding under any federal or state law, whether now existing or hereafter enacted and such proceeding is not dismissed within ninety (90) days of its filing.

9.    Delay; Cumulative Remedies .  No delay or failure by the Lender to exercise any right or remedy against the Borrower or any Guarantor will be construed as a waiver of that right or remedy.  All remedies of the Lender against the Borrower and Guarantor are cumulative.

10.  Expenses of Collection .  Guarantor shall pay to the Lender on demand any and all reasonable expenses paid or incurred by the Lender, including reasonable attorneys’ fees and disbursements, in connection with the collection or enforcement of the Obligations or this Guaranty.  Until paid to the Lender, such sums will bear interest at the rate set forth in the Note.

11.  Entire Agreement .  The whole of this Guaranty is set forth herein, and there is no verbal or other written agreement, and no understanding or custom affecting the terms hereof.  This Guaranty can be modified only by a written instrument signed by the parties to be charged.

12.  Interpretation and Binding Effect .  If any provision of this Guaranty shall be held to be prohibited or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Guaranty.  This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and shall take effect as a sealed instrument and shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.  Guarantor submits  to the jurisdiction of the courts of the Commonwealth of Massachusetts, state and federal, without regard to conflict of laws principles for all purposes with respect to this Guaranty and the Guarantor’s relationship with the Lender.

13.  Termination .   Notwithstanding anything appearing to the contrary in this Guaranty, this Guaranty shall terminate upon full satisfaction of the Loan.

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14.  Waiver of Trial by Jury .    GUARANTOR AND LENDER (BY ACCEPTANCE OF THIS GUARANTY) MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF LENDER RELATING TO THE ADMINISTRATION OF THE LOAN OR THE ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.  THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS GUARANTY AND MAKE THE LOAN.

End of text.  Signatures follow.

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NEW ENGLAND REALTY ASSOCIATES LIMITED

PARTNERSHIP, a Massachusetts limited partnership

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.

On this ________ day of March, 2018, before me, the undersigned notary public, personally appeared Ronald Brown proved to me through satisfactory evidence of identification, personally known to me to be the person whose name is signed on the preceding or attached document and acknowledged to me that he signed it voluntarily for its stated purpose as President of NewReal, Inc, which is the General Partner of NEW ENGLAND REALTY ASSOCIATES LIMITED PARTNERSHIP.

 

 

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