Exhibit 10.1


 


 


PURCHASE AND SALE AND ESCROW AGREEMENT


 


SELLER:


 


175 FREEMAN STREET INVESTORS LLC


 


 


PURCHASER:


 


THE HAMILTON COMPANY


 


 


PROPERTY:


 


DEXTER PARK APARTMENTS

175 FREEMAN STREET

BROOKLINE, MASSACHUSETTS


 


SEPTEMBER 1, 2009


 





















 


Term
Sheet


 


	
  Purchaser:

  	
   

  	
  THE
  HAMILTON COMPANY

  
	
   

  	
   

  	
   

  
	
  Notice Address:

  	
   

  	
  39
  BRIGHTON AVENUE

  BOSTON, MA 02134

  ATTN: CARL A. VALERI

  PHONE: 617-783-0039

  FAX: 617-783-0568

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WITH A
  COPY TO:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DIONNE &
  GASS LLP

  131 DARTMOUTH STREET, SUITE 501

  BOSTON, MASSACHUSETTS 02116

  ATTN: SALLY E. MICHAEL, ESQ.

  PHONE: 617-912-0920

  FAX: 617-723-4151

  
	
   

  	
   

  	
   

  
	
  Seller:

  	
   

  	
  175
  FREEMAN STREET INVESTORS LLC

  
	
   

  	
   

  	
   

  
	
  Notice Address:

  	
   

  	
  C/O
  UBS REALTY INVESTORS LLC

  242 TRUMBULL STREET

  HARTFORD, CONNECTICUT 06103-1212

  ATTN: GENERAL COUNSEL

  PHONE: 860-616-9158

  FAX: 860-616-9004 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WITH A
  COPY TO:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  C/O
  UBS REALTY INVESTORS LLC

  242 TRUMBULL STREET

  HARTFORD, CONNECTICUT 06103-1212

  ATTN: JAYNE M. BRUNDAGE, EXEC. DIRECTOR

  PHONE: 860-616-9165

  FAX: 860-616-9010

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WITH
  AN ADDITIONAL COPY TO: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BINGHAM
  MCCUTCHEN LLP

  1 STATE STREET

  HARTFORD, CONNECTICUT 06103

  ATTN: R. JEFFREY SMITH, ESQ.

  PHONE: 860-240-2759

  FAX: 860-240-2575

  



 


i





















 


	
  Escrow Agent/Title
  Company:

  	
   

  	
  FIRST
  AMERICAN TITLE INSURANCE COMPANY

  
	
   

  	
   

  	
   

  
	
  Notice Address:

  	
   

  	
  101
  HUNTINGTON AVENUE

  BOSTON, MASSACHUSETTS 02199

  ATTN: MICHAEL J. DESMOND, VICE PRESIDENT

  PHONE: 617-772-9250

  FAX: 617-226-2987

  
	
   

  	
   

  	
   

  
	
  Property:

  	
   

  	
  DEXTER
  PARK APARTMENTS

  175 FREEMAN STREET

  BROOKLINE, MASSACHUSETTS

  
	
   

  	
   

  	
   

  
	
  Purchase Price:

  	
   

  	
  $129,500,000.00

  
	
   

  	
   

  	
   

  
	
  Deposit:

  	
   

  	
  $5,000,000.00

  
	
   

  	
   

  	
   

  
	
  Closing Date:

  	
   

  	
  October 28,
  2009, subject to extension by Seller up to November 24, 2009 per
  Section 1.5

  



 





















 


PURCHASE AND SALE AND ESCROW AGREEMENT


 


THIS PURCHASE AND SALE AND ESCROW AGREEMENT (this “Agreement”)  dated as of
the 1st day of September, 2009, is made by and between 175 FREEMAN
STREET INVESTORS LLC, a Delaware limited liability company (“Seller”), with an office in care of UBS Realty Investors
LLC, 242 Trumbull Street, Hartford, Connecticut 06103, and THE HAMILTON
COMPANY,  INC., a
Massachusetts corporation or its permitted assignee pursuant to Section 11.4
hereof (“Purchaser”), with an office in care of
The Hamilton Company, 39 Brighton Avenue, Boston, Massachusetts 02134.


 


R  E
C  I  T  A  L  S :


 


Seller desires to sell certain improved real property
commonly known as Dexter Park Apartments located at 175 Freeman Street,
Brookline, Massachusetts, along with certain related personal and intangible
property, and Purchaser desires to purchase such real, personal and intangible
property.


 


A G R E E M E N T S
:


 


NOW, THEREFORE,
in consideration of the foregoing, of the covenants, promises and undertakings
set forth herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree
as follows:


 


1.     The
Property.


 


1.1.          Description.  Subject to the terms and conditions set forth
in this Agreement, and for the consideration herein set forth, Seller agrees to
sell and transfer, and Purchaser agrees to purchase and acquire, all of Seller’s
right, title, and interest in and to the following (collectively, the “Property”):


 


1.1.1.       Certain
real property (the “Land”) located
in Brookline, Norfolk County, Massachusetts and more specifically described in Exhibit 1.1.1
attached hereto;


 


1.1.2.       All
improvements located on the Land, including, but not limited to, a 409-unit
apartment building located at 175 Freeman Street, Brookline, Massachusetts and
commonly known as the “Dexter Park Apartments” (the “Building”),
and all other structures, parking areas, systems, fixtures, and utilities
associated with, and utilized by Seller in the ownership and operation of the
Building (all such improvements, together with the Building, being referred to
herein collectively as the “Improvements”);


 


1.1.3.       All
furniture, artwork, personal property, machinery, appliances, tools, building
materials, hardware, carpeting, apparatus, and 


 


1





















 


equipment currently used in the operation, repair and maintenance of
the Land and Improvements and situated thereon (collectively, the “Personal Property”), generally described on  Exhibit 1.1.3 attached hereto,
but expressly excluding all furniture, artwork, personal property, equipment,
fixtures, appliances, machinery, tools, building materials, apparatus and all
other personal property owned by tenants of the Building, public or private
utilities or contractors working at the Property, except, in each of the
foregoing cases, to the extent of any reversionary or other interest of Seller
therein.  The Personal Property to be
conveyed is subject to depletions, replacements and additions in the ordinary
course of business and contractual and legal transfer and use restrictions;


 


1.1.4.       All
rights, easements, hereditaments, interests, and appurtenances belonging to or
inuring to the benefit of Seller and pertaining to the Land, if any, including
any development rights and water or mineral rights owned by or leased to
Seller, if any;


 


1.1.5.       Any
street or road abutting the Land to the center lines thereof;


 


1.1.6.       The
leases and occupancy agreements, as amended, prior to the date hereof,
including those in effect on the date of this Agreement which are identified on
the Schedule of Leases attached hereto as Exhibit 1.1.6, and any
new leases entered into pursuant to Section 4.4, which as of the Closing
Date (as hereinafter defined) affect all or any portion of the Land or
Improvements (collectively, the “Leases”), and
any security and other deposits and prepaid rent actually held by Seller as of
the Closing (as hereinafter defined) with respect to any such Leases;


 


1.1.7.       To the extent Purchaser elects to have the
same assigned to Purchaser pursuant to Section 3.3, and Subject to Section 3.3,
all assignable contracts and agreements and
equipment leases (collectively, the “Contracts”)
relating to the operation, repair or maintenance of the Land, Improvements or
Personal Property the terms of which extend beyond midnight of the day
preceding the Date of Closing (as hereinafter defined);


 


1.1.8.       To
the extent assignable without the consent of third parties, all trademarks,
trade names including the name “Dexter Park”, it being understood that Seller
has not registered any property rights in such name, domain names, permits,
approvals, entitlements and other intangible property (including the telephone
number for the Property) owned by Seller, if any, and used solely in connection
with the Property, including, without limitation, all of Seller’s right, title
and interest in any and all transferable, unexpired warranties and guaranties
(collectively, the “Intangible Personal
Property”); and


 


1.1.9.       All
transferable consents, authorizations, variances or waivers, licenses, permits
and approvals from any governmental or quasi-governmental agency, department,
board, commission, bureau or other entity or 


 


2





















 


instrumentality held by the Seller in respect of the Land or
Improvements (collectively, the “Approvals”).


 


1.2.          Purchase Price.  The total purchase price to be paid for the
Property (“Purchase Price”) is ONE HUNDRED
TWENTY-NINE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($129,500,000.00).


 


1.3.          Payment.  Payment of the Purchase Price is to be made
as follows:


 


1.3.1.       (a)           Purchaser shall make an earnest money
non-refundable deposit of FIVE MILLION DOLLARS ($5,000,000.00) (the “Deposit”) prior to 5:00 p.m. (Eastern Time) of the
second business day immediately following the date of this Agreement.


 


(b)           The
Deposit shall be placed and held in escrow by First American Title Insurance
Company at 101 Huntington Avenue, Boston, Massachusetts (“Title Company”  and  “Escrow Agent”) in an account insured
by the Federal Deposit Insurance Corporation (“FDIC”)
and the Depositors Insurance Fund (“DIF”) using Purchaser’s tax identification number
at a mutually acceptable savings bank chartered in Massachusetts.  Any interest, if any, earned and accrued on
the Deposit shall be considered as part of the Deposit.  Except as otherwise provided in this
Agreement, the Deposit shall be applied to the Purchase Price at Closing.  Escrow Agent shall confirm receipt of the
Deposit.  The failure by Purchaser to
deposit with Escrow Agent any portion of the earnest money Deposit within the
time-frame for doing so shall at the option of Seller exercised by written
notice to Purchaser and without right of cure by Purchaser result in the
immediate, automatic cancellation and termination of this Agreement.


 


1.3.2.       At
Closing, the Purchaser shall pay Seller the Purchase Price, inclusive of the
Deposit and subject to adjustments and pro rations as expressly provided
herein, to a bank account designated by Seller via wire transfer or other form
of immediately available funds.


 


1.3.3.       In addition to being an all cash
transaction, Purchaser’s obligation to purchase the Property is not contingent
upon Purchaser’s ability to obtain financing for the purchase of the Property.


 


1.4.          Independent
Consideration.  Contemporaneously
with the execution and delivery of this Agreement, Purchaser has paid to the
Seller as further consideration for this Agreement, the amount of One Thousand
and No/Dollars ($1,000.00) (“Independent Consideration”)
in addition to the Deposit and independent of any other consideration provided
for hereunder, which Independent Consideration is fully earned by Seller and is
not refundable under any circumstances, but which shall be applied to the
Purchase Price at Closing.


 


3





















 


1.5.          Closing.  Payment of the Purchase Price and closing
hereunder (the “Closing”) will take place pursuant
to a deed and money escrow closing on or before October 28, 2009, at the
offices of the Title Company at 10:00 a.m. local time or at such other
time and place as may be agreed upon in writing by Seller and Purchaser (the
aforesaid date, or such other date as may be agreed upon by the parties, being
referred to in this Agreement as the “Closing Date”
or the “Date of Closing”).  The parties agree that Closing can occur by
delivery of the closing documents and the Purchase Price to the Title Company
pursuant to written instruction letters and that the parties do not have to
physically attend the Closing.  The
Closing Date is of extreme importance to Seller as the Purchase Price is needed
by Seller on the Closing Date in order to satisfy certain obligations of
Seller, and Purchaser’s covenant to close the transaction contemplated by this
Agreement on the Closing Date constitutes a material inducement to the entry by
Seller into this Agreement.  Seller shall
have the one-time right to extend the Closing Date to a date not later than November 24,
2009 by delivering to Purchaser, at least seven (7) days prior to the
Closing Date, a written notice informing Purchaser of Seller’s election to
extend the Closing Date and specifying the extended Closing Date.


 


1.6.          Agreement to Convey.  Seller shall convey, and Purchaser shall
accept, title to the Land and Improvements by a Massachusetts quitclaim deed
and title to the Personal Property, by bill of sale, without warranty as to the
title or the condition of such personalty, with warranty of title as to claims
and demands of all persons claiming by, through, or under Seller, but against
none other.


 


2.     “As
Is” Purchase.


 


2.1.          No Reliance by Purchaser.


 


(a)                 As
a material inducement for Seller entering into this Agreement, Purchaser
expressly acknowledges and agrees that the Property is being sold, and
Purchaser is acquiring the Property, in its present condition and state of
repair.  Purchaser shall accept the
Property in an “AS IS” “WHERE IS”
condition and “WITH ALL FAULTS” as
of the date of this Agreement and as of the Closing.


 


(b)           Seller: (i) has informed Purchaser that the
Improvements are in excess of twenty (20) years in age and the Property was not
developed or constructed by Seller or any affiliate, agent or contractor of
Seller; and (ii) has delegated the day-to-day management of the Property
to an unaffiliated third party property management company (the “Manager”).


 


(c)           Purchaser understands and expressly acknowledges that
unknown liabilities may exist with respect to the Property, that Purchaser
explicitly took that possibility into account in determining and agreeing to
the Purchase Price, and that a portion of such consideration, having been
bargained for between the parties with the knowledge of the possibility of
liabilities, shall be 


 


4





















 


given in
exchange for a full accord and satisfaction and discharge of Seller of all such
liabilities.


 


(d)           Purchaser
shall not rely on any warranties, promises, understandings or representations,
express or implied, of Seller, any Seller Party (as defined below) or any
agent, contractor or employee of Seller or a Seller Party relating to the Property,
the physical condition, development potential, operation, or income generated
by the Property or any other matter or things affected by or related to the
Property, except as may be expressly contained in this Agreement or the closing
documents identified herein, and no such representation or warranty shall be
implied with respect to the Property. 
Without limiting the generality of the foregoing disclaimer of
representations and warranties, except as may be expressly contained in this
Agreement or the closing documents identified herein, Seller specifically
disclaims any warranties or representations of any kind or character, express
or implied, with respect to (i) matters of title, (ii) environmental
matters relating to the Property or any portion thereof, including, without
limitation, the presence of Hazardous Materials, including asbestos, or any
harmful or toxic materials in, on, under or in the vicinity of the Property, (iii) geological
conditions, including, without limitation, subsidence, subsurface conditions,
water table, underground water reservoirs, limitations regarding the withdrawal
of water, and geologic faults and the resulting damage of past and/or future
faulting, (iv) whether, and the extent to which the Property or any
portion thereof is affected by any stream (surface or underground), body of
water, wetlands, flood prone area, flood plain, floodway or special flood
hazard, (v) drainage, (vi) soil conditions, including the existence
of instability, past soil repairs, soil additions or conditions of soil fill,
or susceptibility to landslides, or the sufficiency of any undershoring, (vii) the
presence of endangered species or any environmentally sensitive or protected
areas, (viii) zoning or building entitlements to which the Property or any
portion thereof may be subject, (ix) the availability of any utilities to
the Property or any portion thereof including, without limitation, water,
sewage, gas and electric, (x) usages of adjoining Property, (xi) access to
the Property or any portion thereof, (xii) the Property’s compliance with any
site plans or other plans and specifications, or the size, location, age, use,
design, quality, description, suitability, structural integrity or soundness,
state of repair, water-tightness, operation, habitability, quality of
construction or physical condition of the Property or any portion thereof
including, without limitation, the plumbing, sewer, heating, ventilating, air
conditioning and electrical systems, roofing, windows, balconies, walls, floors
and foundations, (xiii) except for the representations and warranties expressly
contained in this Agreement, the value, title or financial condition of the
Property, or any income, expenses, charges, liens, encumbrances, rights or
claims on or affecting or pertaining to the Property or any part thereof, (xiv)
the condition or use of the Property or compliance of the Property with any or
all past, present or future federal, state or local ordinances, rules,
regulations or laws, building, fire, parking or zoning ordinances, codes or
other similar laws, including without limitation the Americans with
Disabilities Act, (xv) the existence or non-existence 


 


5





















 


of underground storage tanks, surface impoundments, or landfills, (xvi)
the merchantability of the Property or fitness of the Property for any
particular purpose, (xvii) tax consequences, or (xviii) any other matter or
thing with respect to the Property.  A “Seller Party” is defined as the member of Seller, the Manager,
UBS Realty Investors LLC (“UBS”) (Seller’s
advisor), and their respective officers, members, partner(s) and agents of
Seller, Seller’s member, and UBS.


 


(e)           Seller does not make,
has not made, and specifically disclaims any representation or warranty
regarding the suitability of the Property for condominium ownership, including,
without limitation, any representation or warranty regarding the statutes,
laws, codes, rules, regulations, orders or decrees governing the conversion of
the Property to condominium ownership. 
If Purchaser desires to convert the Property to condominium ownership,
Purchaser shall not, until after the Closing Date, (i) file any conversion
or condominium application, declaration, request for approval or other
instrument(s) with the governing authorities; (ii) notify tenants of
the Property of the proposed conversion; (iii) advertise or publicize the
proposed condominiums, or (iv) make or accept any offers, deposits or
reservations for condominium sales.  In
the event that Purchaser converts or attempts to convert the Property to
condominium ownership, Purchaser shall indemnify, defend and hold Seller free
and harmless from any loss, injury, damages, claims, liens, costs or expenses,
including attorneys’ fees and costs, arising out of or in connection with the
conversion or attempted conversion of the Property to condominium ownership,
including, without limitation, any claims from tenants of the Property and any
claims arising in connection with the physical condition of the Property.


 


2.1.1.       Purchaser
acknowledges and agrees that it has had the opportunity to fully inspect and
investigate the Property and matters relevant to the Property and shall make
all inquiries, inspections, tests, audits, studies and analyses that it deems
necessary or desirable in connection with the Property (subject to the
provisions of Section 3.1 of this Agreement) and approve or disapprove in
its sole discretion the results of its investigations and inspections
(including engineering, structural or other tests with respect to the condition
of the Property). Purchaser relied solely upon the results of Purchaser’s own
inspections and judgment and other information obtained or otherwise made
available to Purchaser, rather than any information of Seller, in determining
whether to purchase the Property.  Seller
was and is under no duty to make affirmative disclosures or inquiry regarding
any matter which may or may not be known to Seller or any Seller Party, and
Purchaser, for itself and for its successors and assigns, hereby specifically
waives and releases Seller and each Seller Party from any such duty that
otherwise might exist.


 


2.1.2  
Purchaser hereby waives and releases Seller, and each Seller Party, from
any and all present or future claims, demands, causes of actions, losses,
damages, including, without limitation, exemplary, punitive, indirect or
consequential, special or other damages, liabilities, costs and 


 


6





















 


expenses (including attorney’s fees whether
suit is initiated or not) whether known or unknown, liquidated or contingent
(hereinafter collectively called the “Claims”) arising from or relating to
Property, including, without limitation, any of the matters set  forth in this Section 2, as well as (i) any
defects, errors or omissions in the design, construction, repair, or
maintenance of the Property, or (ii) any environmental and other physical
conditions affecting the Property whether the same are a result of negligence
or otherwise.  The release set forth in
this Section specifically includes, without limitation, any Claims arising
in connection with the presence or alleged presence of asbestos or harmful or
toxic substances in, on, under or about the Property including, without
limitation, any claims under or on account of (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as the same may
have been amended or may be amended from time to time and similar state
statutes and any regulations promulgated thereunder; (ii) any other
federal, state or local law, ordinance, rule or regulation, now or
hereafter in effect, that deals with or otherwise in any manner relates to,
environmental matters of any kind; or (iii) this Agreement or the common
law.  The release
set forth in this Section specifically includes, without limitation, any
claims under the Americans with Disabilities Act of 1990 or similar state or
local laws, as any of those laws may be amended from time to time and any
regulations, orders, rules of procedure or guidelines promulgated in
connection with such laws, regardless of whether they were in existence on the
date of this Agreement.  Purchaser
acknowledges that Purchaser has been represented by independent legal counsel
of Purchaser’s selection and Purchaser is granting this release of its own
volition and after consultation with Purchaser’s counsel.  The waiver and release of claims by Purchaser
in this Section does not obligate Purchaser to indemnify Seller or any
Seller Party against any such claims brought by third parties.


 


INITIALS: 
PURCHASER:


 


2.2.          Merger and
Survival.  All understandings and
agreements heretofore made between the parties or their respective agents or
representatives are merged in this Agreement and the Exhibits hereto annexed,
which alone fully and completely express their agreement, and this Agreement
has been entered into after full investigation, or with the Purchaser satisfied
with the opportunity afforded for investigation, neither party relying upon any
statement or representation by the other unless such statement or
representation is specifically embodied in this Agreement or the Exhibits
annexed hereto.   All
the terms and provisions of Section 2.1 and 2.2 shall survive Closing or
any termination of this Agreement.


 


3.     Inspections.


 


3.1.          Inspections.  Purchaser
acknowledges and agrees that it has had the opportunity to fully inspect
and investigate the Property and matters relevant to the Property and has made
all inquiries, inspections, tests, audits, studies and analyses that it deems
necessary or desirable in connection with the Property, and that Purchaser has


 


7










 












 


no further right to
conduct any further inspection or investigation of the Property, except solely
to the extent Purchaser’s mortgage lender reasonably requires the same in
connection with the underwriting of Purchaser’s acquisition financing for the
Property, to the extent described in this Section 3.1.


 


3.1.1.       To
the extent reasonably required by Purchaser’s mortgage lender in connection
with its underwriting of Purchaser’s acquisition financing for the Property,
Seller has made and shall make available (at no cost to Seller) to Purchaser
and its employees, representatives, counsel, access to the Property during
normal business hours and to documents, materials, reports, books, records and
files relating to the Property including, without limitation, Leases, tenant
files, tenant correspondence, and the financial information available to
Purchaser on the Dexter Park data site at http://www.peracon.com.  However, Seller shall have no ongoing
obligation to provide any “Excluded Items”
which shall mean all of the following materials, except to the extent
previously provided by Seller on the Dexter Park data site at
http://www.peracon.com as of the date of this Agreement:  (i) Seller’s financial analyses or
projections, Investment Committee information, including Seller’s
pre-acquisition due diligence materials, acquisition files on the Property and
the book value of the Property; (ii) material which is subject to attorney
client privilege or which is attorney work product; (iii) market
valuations, appraisals, insurance policies, any engineering, or inspection
reports or proposals or bids for repairs to the Property or any portion thereof
or any current operating budgets for the Property; (iv) financials of
Seller or any affiliate of Seller; (v) material which Seller is legally
required not to disclose; or (vi) any of Seller’s entity-related
instruments, files or correspondence, including tax returns.


 


3.1.2.       To
the extent reasonably required by Purchaser’s mortgage lender in connection
with its underwriting of Purchaser’s acquisition financing for the Property,
subject to the rights of tenants at the Property, Purchaser and the “Purchaser
Parties” (defined in Section 3.6 below) shall be given reasonable access
during normal business hours to the Property for the purpose of making further
non-intrusive physical or environmental inspections of the Property.  When making any non-intrusive physical or
environmental inspection(s) of the Property, Purchaser shall carry the
insurance coverages set out on Exhibit 3.1.2 attached hereto, and, upon
request of Seller, shall provide Seller with written evidence of same.  Purchaser and its agents shall not interfere
with the business activity of Manager, tenants, tenants’ customers or
employees, or any persons occupying or providing goods or services at the
Property, shall not reveal to any third party other than the Purchaser Parties
and persons approved by Seller the results of its inspections other than a
lender in connection with its decision to finance Purchaser’s acquisition of
the Property and provided that such lender has been advised of this
confidentiality restriction and has agreed to abide by it (except as may be
required by law), and shall restore promptly any physical damage caused by such
inspection(s).  Purchaser shall not
damage the Property and shall immediately restore the Property and remove
anything placed on the Property in connection with its inspection(s).


 


8

















 


Purchaser shall give Seller two
(2) business days prior notice of its intention to conduct any inspection(s) or
tenant interviews, and Seller reserves the right to have a representative
present.  Purchaser shall provide Seller
with a copy of any inspection report in Purchaser’s possession promptly upon Seller’s
written request, which obligation shall survive Closing or any termination of
this Agreement.  Purchaser shall
indemnify, defend, and hold Seller and any Seller Party free and harmless from
any loss, injury, damage, claim, lien, cost or expense, including attorney’s
fees and costs, arising out of a breach of the foregoing by Purchaser in
connection with the inspection of the Property, or otherwise from the exercise
by Purchaser or its agents or representatives of the right of access under this
Section 3.1.2. (collectively, the “Purchaser’s Indemnity
Obligations”), which agreement shall survive Closing or termination
of this Agreement for a period of 12 months. 
Any inspections shall be at Purchaser’s expense.  Purchaser’s
Indemnity Obligations shall survive Closing or any termination of this
Agreement.


 


3.1.3.       Except
as otherwise provided in this Agreement, Seller makes no representations or
warranties as to the truth, accuracy or completeness of any materials, reports,
data or other information supplied to Purchaser (or indirectly to Purchaser’s
mortgage lender) by Seller or a Seller Party or any of their respective agents,
employees or contractors  in
connection with Purchaser’s inspection of the Property (e.g., that such
materials are current, complete, accurate or the final version thereof, or that
all such materials are in Seller’s possession). 
It is the parties’ express understanding and agreement that such
materials are provided only for Purchaser’s convenience, and Purchaser shall
rely exclusively on its own independent investigation and evaluation of every
aspect of the Property and not on any materials supplied by Seller or  a Seller Party or any of their respective
agents, employees or contractors. 
Purchaser expressly disclaims any intent to rely on any such materials
provided to it by Seller or a Seller Party or any of their respective agents,
employees or contractors in connection with its inspection and agrees that it
shall rely solely on its own independently developed or verified information
and Purchaser further acknowledges and agrees that such materials were provided
on the express condition that Purchaser shall make and independent verification
of the accuracy of such information.  The
terms and provisions of this Section 3.1.3 shall survive the Closing or
any termination of this Agreement.


 


3.2.         Title and Survey.  Prior to the execution of this Agreement,
Seller has delivered or caused to be delivered to Purchaser, and Purchaser
acknowledges receipt of, (i) a preliminary title report or a commitment
for an ALTA owner’s standard coverage owner’s policy of title insurance
insuring fee title to the Property, together with copies of all items shown as
exceptions to title therein, issued by the Title Company and identified as
Commitment No. 405838, dated July 26, 2009 (the “Title
Commitment”), and (ii) a copy of Seller’s survey of the Land
dated March 29, 2001 and last revised on April 11, 2001 (the “Survey”).  All matters
of title described on the Title Commitment and the Survey, other than delinquent
taxes and assessments and security instruments for existing mortgage
indebtedness secured by the Property, are hereby declared to be 


 


9

















 


acceptable to Purchaser
and shall be deemed “Permitted Encumbrances”
hereunder.  At or prior to Closing,
Seller shall be obligated to: (a) pay all delinquent taxes and
assessments, (b) satisfy and/or
cause to be released the security instruments for existing indebtedness secured
by the Property, and (c) remove any exceptions caused by Seller’s
voluntary acts after July 26, 2009 and not approved by Purchaser.


 


Subject to Section 4.5
of this Agreement, Seller shall not, after the date of this Agreement, by
voluntary act, intentionally create any new easements, liens, deeds of trust,
mortgages, covenants, restrictions, agreements or any other encumbrances to
title to all or any portion of the Property without the prior written consent
of Purchaser.


 


Neither
Purchaser nor Seller shall incur any liability to the other in connection with
the selection of the Title Company or the surveyor retained in connection with
the transaction contemplated by this Agreement or in connection with the loss
by Title Company of the Deposit or any other amounts deposited by either party
into the escrow.


 


3.3.          Contracts.  On or before the date which is thirty (30)
days prior to the Closing Date, Purchaser shall notify Seller in writing if it
elects not to assume at Closing any of the Contracts which are identified on Exhibit 3.3
(the “Contracts”) attached
hereto.  Seller shall give notice of
termination of such disapproved Contract(s) as of the Closing Date;
provided that, if under the disapproved Contract(s) Seller has no right to
terminate same on or prior to Closing, or if a termination fee or charge is due
thereunder as a result of such termination, Purchaser shall (i) assume at
Closing all obligations thereunder from the Date of Closing until the
expiration dates of such Contracts or (ii) reimburse Seller for the
payment of the termination-related fee or charge, as applicable.  Unless Purchaser gives such written notice to
Seller in the time period described above, Purchaser will be deemed to have
approved same, and such Contracts will be assigned by Seller and assumed by
Purchaser at Closing.


 


3.4.          Intentionally Omitted.


 


3.5.          Lead-Based Paint.  Purchaser acknowledges that it has had
sufficient time in which to conduct a risk assessment or inspection of the
Property for the presence of lead-based paint and/or lead-based paint hazards,
and that by electing to proceed with the purchase of the Property
notwithstanding its termination right pursuant to this Section 3.5,
Purchaser shall accept the Property at Closing “AS IS, WHERE IS, WITH ALL
FAULTS” with respect to, among other things, the presence or possible presence
at the Property of lead-based paint and/or lead-based paint hazards.  Purchaser acknowledges that it has been
provided with the notice regarding lead-based paint and/or lead-based paint
hazards attached hereto as Exhibit 3.5, together with all other
deliveries required to be made by sellers of real property under applicable
law.


 


3.6.          Confidentiality.  Unless Seller specifically and expressly
otherwise agrees in writing, all information regarding the Property made
available to Purchaser by Seller or Seller’s agents or representatives (the “Proprietary Information”) is confidential (except to the
extent such information is already in the public domain) and 


 


10

















 


shall not be disclosed, except
as may be required by law, to any other person except those due diligence
professionals or entities assisting Purchaser with the transaction, or
Purchaser’s lender, if any (collectively, the “Purchaser
Parties”) and then only upon Purchaser making such person aware of
the confidentiality restriction and procuring such person’s agreement to be
bound thereby.  If the purchase and sale
contemplated hereby fails to close for any reason whatsoever, Purchaser shall
return to Seller, or cause to be returned to Seller, all Proprietary
Information.  Unless the transaction
contemplated by this Agreement is consummated, Purchaser shall not use or allow
to be used any Proprietary Information for any purpose other than to determine
whether to proceed with the contemplated purchase, or if same is consummated,
in connection with the operation of the Property post-Closing.  The foregoing shall not be deemed to prevent
Purchaser from complying with laws, rules, regulations and court orders,
including, without limitation, governmental regulatory, disclosure, tax and
reporting requirements, which may require disclosure of Proprietary Information
otherwise required to be kept confidential pursuant to this Section 3.6,
but only to the extent such disclosure is required by any of the
foregoing.  Notwithstanding any other
term of this Agreement, the provisions of this Section 3.6 shall survive
Closing for a period of six (6) months, and shall survive any termination
of this Agreement indefinitely. 
Notwithstanding the foregoing, it shall not be a breach of this
Agreement to disclose such Proprietary Information to a person who already
knows such information.


 


4.     Prior
to Closing.


 


Until Closing,
Seller or Seller’s agent shall:


 


4.1.          Insurance.  Keep the Property insured against fire and
other hazards covered by extended coverage endorsement and commercial public
liability insurance against claims for bodily injury, death and property damage
occurring in, on or about the Property, substantially in accordance with
current coverages.


 


4.2.          Operation.  Subject to the Leases, operate and maintain
the Property in a businesslike manner and substantially in accordance with
Seller’s past practices with respect to the Property, and make any and all
repairs and replacements reasonably required to deliver the Property to
Purchaser at Closing in its present condition, normal wear and tear excepted,
provided that (i) Seller shall have no obligation to make extraordinary
capital expenditures or expenditures outside Seller’s normal course of business,
and (ii) in the event of any loss or damage to the Property as described
in Section 7, Seller shall repair the Property only if Seller is obligated
to do so under the Leases and if Seller so elects and then only to the extent
of available insurance proceeds. 
Purchaser shall not contact, deal with, or negotiate with tenants,
subtenants or prospective tenants or subtenants, of the Property without prior
written consent of Seller and shall notify Seller promptly if any tenant, or
prospective tenant, contacts Purchaser.


 


4.3.          New Contracts.  Enter into only those third party contracts
which are reasonably necessary to carry out its obligations under Section 4.2
and, provided 


 


11

















 


such terms are available
on a commercially reasonable basis, which shall be cancelable on no more than
thirty (30) days written notice.


 


4.4.          New Leases.  Continue its present rental program and
efforts at the Property to rent apartment units and renew expiring leases.


 


4.5.          New Liens.  Not create any new encumbrance or lien
affecting the Property other than liens and encumbrances (i) that can be
discharged prior to Closing, and (ii) that in fact are discharged at
Seller’s expense prior to or at the Closing.


 


4.6.          Copies
of Written Notices. Seller shall, from
and after the date hereof, promptly provide Purchaser with copies of all
written notices received by Seller after the date hereof which assert any
material breach of Leases, agreements, laws, covenants or permits applicable to
the Property.


 


4.7.          Lease Terminations; Defaults.  Nothing herein shall in any way affect or
restrict the right of Seller to seek to enforce its rights under any Lease or
permit the early termination of any Lease; provided, however, that such action
is consistent with what a reasonable and prudent property owner would do under
the circumstances then existing.


 


4.8.          Notices of Lease; SNDA.  Seller shall use commercially reasonable
efforts to cooperate with Purchaser to obtain: (a) a release (in
recordable form) of that certain Notice of Lease dated May 1, 1992 between
Dexter Park Limited Partnership, as lessor, and Lundermac Co., Inc., as
lessee, recorded with the Norfolk County, Massachusetts Registry of Deeds in
Book 9381 at Page 545; (b) a release (in recordable form) of that
certain Notice of Lease dated May 27, 1997 between Dexter Park Limited
Partnership, as lessor, and Lundermac Co., Inc., as lessee, recorded with
the Norfolk County, Massachusetts Registry of Deeds in Book 11886 at Page 92;
and (c) a subordination agreement from Lundermac Co., Inc., as
lessee, in favor of Purchaser’s first mortgage lender providing acquisition
financing, in such form as may be reasonably requested by said mortgage lender,
pertaining to the lease identified in that certain Notice of Lease dated July 2,
2001 between 175 Freeman Street Investors, LLC, as lessor, and Lundermac Co., Inc.,
as lessee, recorded with the Norfolk County, Massachusetts Registry of Deeds in
Book 15635 at Page 446.  The ability
of Purchaser and/or Seller to obtain any of the foregoing documents is not a
condition precedent to the Closing, and nothing contained in this Section 4.8
shall be construed as excluding the above-described notices of lease from the
definition of “Permitted Exceptions”.


 


5.     Representations
and Warranties.


 


5.1.         By Seller.


 


(a)           Seller represents
and warrants to Purchaser that, except as otherwise disclosed to Purchaser:


 


5.1.1.       Seller is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, is 


 


12

















 


qualified to do business in the Commonwealth of Massachusetts, has duly
authorized the execution and performance of this Agreement, and such execution
and performance will not violate any material term of its operating agreement.


 


5.1.2.       Seller
has not, and as of the Closing Seller shall not have, (a) made a general
assignment for the benefit of creditors, (b) filed any voluntary petition
in bankruptcy or suffered the filing of any involuntary petition by Seller’s
creditors, (c) suffered the appointment of a receiver to take possession
of all, or substantially all, of Seller’s assets, which remains pending as of
such time, (d) suffered the attachment or other judicial seizure of all,
or substantially all, of Seller’s assets, which remains pending as of such
time, (e) admitted in writing its inability to pay its debts as they come
due, or (f) made an offer of settlement, extension or composition to its
creditors generally.


 


5.1.3.       Seller
is not, and as of the Closing shall not be, a “foreign person” as defined in Section 1445
of the Internal Revenue Code of 1986, as amended (the “Code”)
and any related regulations.


 


5.1.4.       Subject
to Section 11.17, below, Seller is acting as principal in this transaction
with authority to close the transaction. 
This Agreement has been duly executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights and by general principles of equity (whether applied in a
proceeding at law or in equity).


 


5.1.5.       To
Seller’s knowledge, no portion of the Property is the subject of a current,
pending or threatened condemnation proceeding which would have a materially
adverse impact on the Property.


 


5.1.6.       The
Schedule of Leases attached hereto as Exhibit 1.1.6 is a true and correct
copy, as of its date, of the rent roll used by and relied upon by Seller in its
ownership and management of the Property.


 


5.1.7.       There
is no action, suit, hearing, arbitration or proceeding pending, or to the best
of Seller’s knowledge, threatened, against Seller with respect to the Property,
before any court, tribunal or governmental authority.


 


5.1.8.       The
twelve (12) month actual-to-budget operating statements of the Property for
2007, 2008 and year-to-date 2009, as posted on the Dexter Park data site at
http://www.peracon.com, are the reports relied upon by Seller, its member and
its partners in their reporting for the operations of the Property during such
time periods.


 


(b)           Seller shall have no liability with
respect to a breach of the representations and warranties set forth above to
the extent that Purchaser 


 


13

















 


proceeds with the closing of the transaction contemplated hereby with
actual knowledge of such breach or should have known of such breach, through
the exercise of reasonable diligence prior to the Closing Date.


 


5.2.         Condition Precedent.           It shall be a condition precedent to
Purchaser’s obligation to purchase the Property from Seller that (i) all
of Seller’s representations and warranties contained in or made pursuant to
this Agreement shall have been true and correct in all material respects when
made and remain true and correct in all material respects as of the Closing
Date, (ii) the Title Company shall be irrevocably and unconditionally
committed to issue the Title Policy to Purchaser upon payment of its premium
and other charges; and (iii) Seller shall have performed its obligations
pursuant to Section 4.2 hereof.


 


5.3.         By Purchaser.


 


(a)           Purchaser
represents and warrants to Seller that, except as otherwise disclosed to
Seller.


 


5.3.1.       Purchaser
is a Massachusetts corporation duly organized, validly existing and in good
standing under the laws of such State, is authorized to do business in the
Commonwealth of Massachusetts, has duly authorized the execution and performance
of this Agreement, and such execution, delivery, and performance will not
violate any material term of any of its constitutive documents.


 


5.3.2.       Purchaser
has not, and as of the Closing Purchaser shall not have (a) made a general
assignment for the benefit of creditors, (b) filed any voluntary petition
in bankruptcy or suffered the filing of any involuntary petition by Purchaser’s
creditors, (c) suffered the appointment of a receiver to take possession
of all, or substantially all, of Purchaser’s assets, which remains pending as
of such time, (d) suffered the attachment or other judicial seizure of
all, or substantially all, of Purchaser’s assets, which remains pending as of
such time, (e) admitted in writing its inability to pay its debts as they
come due, or (f) made an offer of settlement, extension or composition to
its creditors generally.


 


5.3.3.       Purchaser
is not, and as of the Closing shall not be, a “foreign person” as defined in Section 1445
of the Code and any related regulations.


 


5.3.4.       Purchaser
is acting as principal in this transaction with authority to close the
transaction.  This Agreement is the valid
and legally binding obligation of Purchaser.


 


5.3.5.       Purchaser
is a sophisticated investor in commercial real estate and has and will perform
such due diligence of the Property and its condition (financial and otherwise)
as Purchaser deems appropriate.


 


14

















 


5.3.6.       Purchaser
has reviewed the Leases, Contracts, expenses and other matters relating to the
Property and based upon the representations and warranties of Seller expressly
contained in this Agreement and its own investigations, inspections, tests and
studies, determined whether to purchase the Property and assume Seller’s rights
and obligations under the Leases, Contracts and otherwise with respect to the
Property.


 


5.3.7.       Unless
otherwise disclosed to Seller in writing, neither Purchaser nor any affiliate
of or principal in Purchaser is other than a citizen of, or partnership, corporation
or other form of legal person domesticated in the United States of America.


 


5.3.8.       Neither
Purchaser nor any principal of Purchaser who owns a 20% or greater direct or
indirect ownership interest in Purchaser is a person or entity described by Section 1
of Executive Order 13,224, and neither Purchaser nor any such principal of
Purchaser engages in any dealings or transactions, or is otherwise associated,
with any such persons or entities including the governments of Cuba, Iran,
North Korea, Myanmar, Sudan, Syria, and Venezuela.


 


5.3.9.       The execution, delivery and performance by
Purchaser of its obligations under this Agreement do not and will not
contravene or constitute a default under any provisions of applicable law or
regulation or any agreement, judgment, injunction, order, decree or other
instrument binding on Purchaser.


 


(b)           Purchaser shall have no liability with respect to a breach
of the representations and warranties set forth above to the extent that Seller
proceeds with the closing of the transaction contemplated hereby with actual
knowledge of such breach or should have known of such breach, through the
exercise of reasonable diligence prior to the Closing Date.


 


5.3.10.     Purchaser
is entering into this transaction solely for commercial purposes, and is a
sophisticated business entity with significant experience in purchasing real
property similar to the Property located in the metropolitan Boston real estate
market.  Purchaser acknowledges that its
representations and warranties are a material inducement to Seller’s
willingness to agree to enter into this transaction with Purchaser, and that
but for the representations and warranties contained in this paragraph, Seller
would not execute and deliver this Agreement.


 


5.4.         Condition Precedent. It shall be
a condition precedent to Seller’s obligation to sell the Property to Purchaser
that all of Purchaser’s representations and warranties contained in or made
pursuant to this Agreement shall have been true and correct in all material
respects when made and shall be true and correct in all material respects as of
the Closing Date.  At the Closing,
Purchaser and Seller shall each deliver to the other Seller a certificate
certifying that each of its representations
and warranties in this Agreement is true and correct as of the Closing Date.


 


15

















 


5.5.         Mutual Representation.


 


(a)           Each of Seller and
Purchaser represents to the other that it has had no dealings, negotiations, or
consultations on its own behalf, or for its benefit, with any broker,
representative, employee, agent or other intermediary except Cushman and
Wakefield of Massachusetts, Inc., in connection with this Agreement or the
sale of the Property.  Seller and
Purchaser agree that each will indemnify, defend and hold the other free and
harmless from the claims of any other broker(s), representative(s),
employee(s), agent(s) or other intermediary(ies) claiming to have
represented Seller or Purchaser, respectively, or otherwise to be entitled to compensation
in connection with this Agreement or the sale of the Property.  This provision shall survive Closing for six (6) months.


 


(b)           Neither Seller nor Purchaser will knowingly take, or agree
to or commit to take, any action that would make any representation or warranty
made by such party inaccurate in any material respect at or prior to the
Closing Date.


 


6.     Costs
and Prorations.


 


6.1.         Purpose and Intent.  Except as expressly provided herein, the
purpose and intent of this Agreement is that Seller shall bear all expenses of
ownership and operation of the Property and shall receive all income therefrom
accruing through midnight at the end of the day preceding the Closing Date, and
Purchaser shall bear all such expenses and receive all such income accruing
thereafter.  This provision shall survive
Closing.


 


6.2.         Purchaser’s Costs.  Purchaser shall pay the following costs of
closing this transaction:


 


6.2.1.       The
fees and disbursements of its counsel, inspecting architect and engineer, if
any;


 


6.2.2.       Any escrow
fees;


 


6.2.3.       Any
sales or use taxes relating to the transfer of Personal Property to Purchaser;


 


6.2.4.       The
cost of the issuance of any policy of title insurance issued in connection with
this transaction and any updates to the Title Commitment, including, without
limitation, any additional premium charge(s) for endorsements and/or
deletion(s) of exception items and any cancellation charge(s) imposed
by Title Company in the event the policy of title insurance contemplated by the
Title Commitment is not issued.


 


6.2.5.       The
cost of any update to the copy of the Survey provided by Seller to Purchaser;


 


16

















 


6.2.6.       Any
recording fees relating to the deed to be delivered by Seller hereunder and
Purchaser’s other closing documents and Purchaser’s lender’s documents;


 


6.2.7.       Any
other expense(s) incurred by Purchaser or its representative(s) in
inspecting or evaluating the Property or closing this transaction; and


 


6.3.         Seller’s Costs.  Seller shall pay the following costs of
closing this transaction:


 


6.3.1.       The
fees and disbursements of its counsel;


 


6.3.2.       The
cost of any deed excise stamp taxes;


 


6.3.3.       Any
recording fees relating to the documents to be recorded by Seller in order to
clear title in the manner described by this Agreement;


 


6.3.4.       The
broker’s fee to the extent any such fee is payable pursuant to the separate
agreement with Cushman and Wakefield of Massachusetts, Inc. dated May 21,
2009.


 


6.4.         Prorations.  Collected Rents and any other amounts (including,
without limitation, payment of base rent, ground rent, parking income and
reimbursements of Property operating costs) paid by tenants applicable to the
month in which the Date of Closing occurs or prepaid by tenants for months
after the month in which the Date of Closing occurs shall be prorated as of the
Date of Closing and be adjusted against the Purchase Price on the basis of a
schedule (the “Rent Schedule”) which shall be
prepared by Seller and delivered to Purchaser. 
The Rent Schedule shall set forth (i) rents and other amounts
payable applicable to the month in which the Date of Closing occurs, (ii) rents
and other amounts collected by Seller applicable to the month in which the Date
of Closing occurs, and (iii) rents and other amounts due but uncollected
and applicable to the month in which the Date of Closing occurs, (the latter
unpaid obligations being referred to herein as the “Current
Delinquencies”), as well as rental and other payment delinquencies
(excluding those applicable to the month in which the Date of Closing occurs)
which are owed to Seller but uncollected as of the Date of Closing (“Delinquencies”). 
Purchaser shall receive a credit against the Purchase Price for any cash
security and other deposits with respect to the Leases, which deposits are held
by Seller and have not been applied or forfeited as of Date of Closing.  Such cash deposits will be kept by Seller.


 


6.4.1.       Vault
charges, sewer charges, utility charges and operating expenses actually paid or
payable by Seller as of the Date of Closing shall be prorated as of the Date of
Closing and adjusted against the Purchase Price, provided that within ninety
(90) days after the Closing, Purchaser and Seller shall make a further
adjustment for such charges which may have accrued or been incurred prior to
the Date of Closing, but not collected or paid at that date.  All


 


17
















 


prorations shall be made on a 365-day calendar year basis, using actual
number of days in the month.


 


6.4.2.       Purchaser
shall pay at Closing, the fair market value of the fuel oil stored in any
storage tanks located at the Property, such amount to be determined by Supreme
Energy (Seller’s existing fuel oil retailer) based on a meter reading provided
by Seller’s engineer within the seven (7) days immediately preceding the
Closing Date (but in no event later than three (3) days immediately
preceding the Closing Date).


 


6.5.         Taxes.     Real estate taxes, personal property taxes, special assessments
(and installments thereof) and other governmental taxes and charges relating to
the Property, including annual or periodic permit fees, (collectively, “Taxes”) payable during the year in which Closing occurs
shall be prorated as of the Date of Closing and adjusted against the Purchase
Price.  If Closing occurs before the
actual Taxes payable during such year are known, the proration of Taxes shall
be upon the basis of Taxes for the Property payable by Seller during the
immediately preceding year; provided, however, that if the Taxes payable during
the year in which Closing occurs are thereafter determined to be more or less
than the Taxes payable during the preceding year (after any appeal of the
assessed valuation thereof is concluded), Seller and Purchaser promptly, except
in the case of an ongoing tax protest), shall adjust the proration of Taxes and
Seller or Purchaser, as the case may be, shall pay to the other any amount
required as a result of such adjustment, and further provided that any
reproration of real estate taxes shall take into account only increases in the
tax rate or millage, i.e., any portion of any real estate tax increase
attributable to an increase in assessed value shall not be taken into
account.  This covenant shall not merge
with the deed delivered hereunder but shall survive the Closing.


 


6.6.         In General.


 


(a)           Any
other costs or charges of closing this transaction not specifically mentioned
in this Agreement shall be paid and adjusted in accordance with local custom in
Norfolk County, Massachusetts.


 


(b)   (i) None
of Seller’s insurance policies relating to the Property will be assigned to
Purchaser, and Purchaser shall be responsible for arranging for its own
insurance as of the Closing Date; (ii) utilities paid by Seller, including
telephone, electricity, water and gas, shall be read on as close as possible before the Closing Date and Purchaser with
cooperation from Seller’s on-site Manager, if necessary, shall be responsible
for all the necessary actions needed to arrange for utilities to be transferred
to the name of Purchaser on the Closing Date, including the posting of any
required deposits (it being understood, however, that Seller shall be entitled
to a credit at the Closing for any utility deposits which it or its
predecessors have made prior to the Closing Date, to the extent the same are
transferred to Purchaser, and Seller shall be entitled to recover and retain
from the providers of such utilities any refunds or overpayments to the extent
applicable to the period prior to and including the Closing Date, and any
utility 


 


18

















 


deposits for which it does not receive a credit
hereunder); and (iii) on the Closing Date, the Property will not be
subject to any financing obtained by Seller or its predecessors unless
Purchaser has expressly agreed to assume such financing.  Accordingly, there will be no prorations for
insurance, utilities (except to the extent provided above for utility
deposits), payroll or debt service.  In
the event a meter reading is unavailable for any particular utility or is read
on a date other than the Closing Date, such utility bill shall be prorated in
the manner provided in Section 6.1.


 


6.7.          Closing Adjustment.  Escrow Agent shall prepare a closing
statement on the basis set out above, and shall endeavor to deliver such
computation to Purchaser and Seller at least two (2) business days prior
to Closing.


 


6.8.          Post-Closing Reconciliation.  If any of the aforesaid prorations cannot be
calculated accurately as of the Closing Date, then they shall be calculated as
soon after the Closing Date as feasible, but in any event no later than December 31,
2009. Notwithstanding any provision contained in this Agreement to the
contrary, after the expiration of said period, no further adjustments, credits
or prorations shall be made or allocated between the parties under this
Agreement for any of the items listed in this Section 6, except for any
delinquencies due to Seller and except for a reproration of Taxes pursuant to Section 6.5
above in the event the Taxes for the year of Closing are not known as of the
Closing Date.


 


6.9.          Post-Closing Collections.  Purchaser shall use its best efforts during
the ninety (90) day period immediately following the Date of Closing to collect
Current Delinquencies and Delinquencies. 
Amounts collected from tenants who or which, as of the Date of Closing,
were obligors with respect to Current Delinquencies and/or Delinquencies shall
be applied first to satisfy such tenants’ obligations for the payment period
during which collection occurred, second to satisfy Current Delinquencies,
third to satisfy Delinquencies, and the balance to satisfy any other rental obligations
of such tenants to Purchaser. Amounts collected and applicable to satisfy
Current Delinquencies shall be paid promptly to Seller to the extent of Seller’s
pro-rata entitlement thereto, and amounts collected and applicable to satisfy
Delinquencies shall be promptly paid to Seller.


 


At the end of
the ninety (90) day period following the Date of Closing, Purchaser shall
prepare and deliver to Seller a statement (the “Collection
Statement”) identifying all payments collected during such ninety
(90) days from tenants who were listed on the Rent Schedule prepared and
delivered pursuant to Section 6.4 hereof as obligors on Current
Delinquencies or Delinquencies.  If any
uncollected Current Delinquencies or then unsatisfied Delinquencies exist,
Purchaser hereby agrees to assign to Seller any and all rights afforded the
obligee with respect thereto (with respect to Current Delinquencies, to the
extent of Seller’s pro-rata entitlement thereto), whereupon Seller shall be
entitled to take such steps, including the right to file suit, as Seller in its
sole and absolute discretion deems necessary or appropriate to collect such
sums, excepting only the right to dispossess any tenant still in possession of
its further right to occupy the premises demised to it.  Such assignment shall be effective 


 


19

















 


automatically, without the need for execution or delivery of any
instrument of assignment.  Upon request
of Seller, however, Purchaser shall execute and deliver to Seller such
instrument(s) as Seller may reasonably request to confirm such
assignment.  Purchaser shall, at no cost
to Purchaser, cooperate with Seller in any manner reasonably requested by
Seller in connection with any such collection effort.


 


Purchaser
shall keep and maintain at all times full and accurate books of account and
records adequate to reflect correctly total rental and other payments collected
under each of the Leases, and all such books and records shall be kept and
shall be available to Seller for at least one year after the Date of
Closing.  Seller shall have the right to
inspect, copy and audit such books of account and records at Seller’s expense,
during reasonable business hours, and upon reasonable notice to Purchaser,
whether such books and records are in the possession of Purchaser or any agent
of Purchaser for the purpose of verifying the accuracy of the Collection
Statement and the rental and any other payments collected by Purchaser, which
were earned during Seller’s ownership period, and which should have been paid
to Seller pursuant to this Section  6.9.


 


6.10.        Other Items.  All cash in any operating, reserve or other
property accounts on the Closing Date shall belong to Seller.


 


6.11.        Survival.  The provisions of this Section 6 shall
survive Closing.


 


7.     Damage,
Destruction or Condemnation.


 


7.1.          Material Event.  If, prior to Closing, twenty percent (20%) or
more of the net rentable area of the Building or all access to the Property are
rendered completely untenantable, or are destroyed or taken under power of
eminent domain, Purchaser may elect to terminate this Agreement by giving
written notice of its election to Seller within five (5) business days after receiving notice of such destruction
or taking.  If Purchaser does not give
such written notice within such period, this transaction shall be consummated
on the date and at the Purchase Price provided for in Section 1, and
Seller shall assign to Purchaser the physical damage proceeds of any insurance
policy(ies) payable to Seller, or Seller’s portion of any condemnation award,
as applicable, in both cases up to the amount of the Purchase Price plus
one-half of any amounts in excess thereof, and including any rights of Seller
to prosecute, settle, compromise, or appeal such payments, and, if an insured
casualty, pay to Purchaser the amount of any deductible, if not previously paid
by Seller, but not to exceed the amount of the loss.


 


7.2.          Immaterial Event.  If, prior to Closing, less than twenty
percent (20%) of the net rentable area of the Building is rendered completely
untenantable or are destroyed, or are taken under power of eminent domain,
Purchaser shall close this transaction on the date and at the Purchase Price
agreed upon in Section 1, and Seller shall assign to Purchaser its interest
in the physical damage proceeds of any insurance policies payable to Seller,
and including any rights of Seller to prosecute, settle, compromise, or appeal
such payments, and, if an insured casualty, pay to Purchaser 


 


20

















 


the amount of any
deductible not previously paid by Seller but not to exceed the amount of the
loss.


 


7.3.         Cooperation.  Seller and Purchaser, as may be appropriate,
shall cooperate in prosecuting, settling, and compromising any such condemnation
award and insurance claim.


 


7.4.         Termination and Return of Deposit.  If Purchaser elects to terminate this
Agreement pursuant to this Section 7, and if Purchaser is not, on the date
of such election, in material default of its obligation to have closed under
the Agreement, Seller shall promptly direct the Title Company to return the
Deposit to Purchaser.


 


8.     Notices.  Any notice, consent, or approval required or
permitted to be given hereunder shall be in writing and shall be deemed to be
given when hand delivered or one (1) business day after pickup by Federal
Express, UPS overnight, or similar overnight express service, or on the date
when delivered by facsimile transmission with written acknowledgment of
receipt, in any case addressed to the parties at their respective addresses for
notice set forth in the Term Sheet of this Agreement, or, in each case, to such
other address as either party may from time to time designate by giving notice
in writing to the other party, provided that neither party shall designate as
its address a post office box or other address which does not accept overnight
delivery.  Notice hereunder may be given
by counsel acting on behalf of either party. 
Telephone numbers are for informational purposes only.  Effective notice will be deemed given only as
provided above.  Notice given to Seller
by e-mail is not considered proper notice under this section.


 


9.     Closing
and Escrow.


 


9.1.         Escrow Instructions.  Upon execution of this Agreement, the parties
shall deliver an executed counterpart of this Agreement to the Title Company to
serve as the instructions to the Title Company as the Escrow Agent for
consummation of the transaction contemplated herein, and Title Company shall
execute this Agreement to acknowledge acceptance of the escrow and receipt of
the Deposit.  Seller and Purchaser shall
execute such additional and supplementary escrow instructions as may be
appropriate to enable the Title Company to comply with the terms of this Agreement,
provided, however, that in the event of any conflict between the provisions of
this Agreement and any supplementary escrow instructions, the terms of this
Agreement shall prevail.


 


9.2.         Duties of Escrow Agent.


 


(a)           Escrow
Agent is acting solely as a stakeholder under this Section 9.2.  Escrow Agent’s duties shall be determined
solely by the express provisions hereof and are purely ministerial in nature.


 


(b)           During
the term of this Agreement, Escrow Agent shall hold and deliver the Deposit
strictly in accordance with the terms and provisions of 


 


21

















 


this Agreement and shall not commingle the Deposit with any funds of
Escrow Agent or others.  Escrow Agent
shall invest the Deposit in one or more interest-bearing accounts using Purchaser’s tax identification number
at a mutually acceptable savings bank located chartered in the Commonwealth of
Massachusetts, and such account(s) shall be fully insured by the FDIC
and/or the DIF and have no penalty for early withdrawal.  Escrow Agent shall disburse the Deposit in
strict accordance with the written instructions of the parties hereto.  Escrow Agent shall not disburse the Deposit
without at least one business day’s notice to Seller.  All costs incurred by Escrow Agent in
connection with its obligations under this Section 9.2(b) shall be
borne solely by Purchaser.  In no event
shall Escrow Agent’s use of multiple accounts to hold the Deposit result in
Escrow Agent having to deliver the net sales proceeds to Seller in more than
one (1) wire transfer.


 


Escrow
Agent’s initials:


 


(c)   Intentionally
Omitted.


 


(d)           If
this Agreement is terminated by Purchaser (pursuant to Section 7.1 or Section 10.2
hereof) or by the mutual written agreement of Seller and Purchaser, or if
Escrow Agent is unable at any time to determine to whom the Deposit should be
delivered, then Escrow Agent shall deliver the deposit in accordance with the
joint written instructions of the Seller and Purchaser.  If written instructions are not received by
Escrow Agent within ten (10) days after Escrow Agent has served a written
request for instructions upon both Seller and Purchaser, the Escrow Agent shall
have the right to pay the Deposit into any court of competent jurisdiction in
the state where the Property is located and to interplead Seller and
Purchaser.  Upon the filing of the
interpleader action, Escrow Agent shall be discharged from any further
obligations in connection with this Agreement.


 


(e)           If
costs or expenses are incurred by Escrow Agent because of litigation or a
dispute between Seller and Purchaser concerning this Agreement (which
litigation or dispute does not involve any action, omission or failure to act
by Title Company), Seller and Purchaser shall each pay Escrow Agent one-half of
Escrow Agent’s reasonable costs and expenses. 
Except for such costs and expenses, no fee or charge shall be due or
payable to Escrow Agent for its services under this Agreement.


 


(f)            Escrow
Agent undertakes only to perform the duties and obligations imposed upon it
under the terms of this Agreement, and to do so in strict accordance with the
Agreement, and does not undertake to perform any of the covenants, terms and
provisions applicable to Seller and Purchaser.


 


(g)           Purchaser
and Seller acknowledge and agree that Escrow Agent has assumed no liability
except for gross negligence or willful misconduct and that Escrow Agent may
seek advice from its own counsel and shall be fully 


 


22

















 


protected in any action taken by it in good faith in accordance with
the opinion of its counsel.


 


(h)           The
conditions to the Closing shall be the Escrow Agent’s receipt of funds and
documents as described in this Section 9.2.  Upon receipt of such funds and documents,
Escrow Agent shall deliver the items as described in this Agreement.


 


(i)            All
acts and documents required of Purchaser or Seller in order to close the escrow
pursuant hereto shall be deposited with Escrow Agent no later than 5:00 p.m.
(Eastern Time) on the day immediately preceding the Closing Date, and shall be
available for release at Closing.  In
addition, all funds required from Purchaser in order to close the escrow
pursuant hereto shall be deposited with Escrow Agent no later than 10:00 a.m.
(Eastern Time) on the Closing Date, and shall be available for immediate
distribution at Closing.  Notwithstanding
the foregoing, the Purchaser will not be deemed in default under this Agreement
for delivery of the funds required to consummate the purchase of the Property
in accordance with this Agreement after 10:00 a.m. (Eastern Time) on the
Closing Date, so long as the total amount of funds due and owing to Seller are
actually received by Seller via wire transfer to an account designated by
Seller (as confirmed by Federal Reserve reference number) on the Closing Date.  If Purchaser fails to deposit all funds
sufficiently early on the Closing Date so that Seller does not receive its net
funds prior to 3:00 p.m. (Eastern Time) on the Closing Date, Purchaser
shall pay Seller $3,750.00, representing Seller’s anticipated loss of the
benefit of overnight investment of the net proceeds.


 


(j)            Notwithstanding anything to the
contrary in this Section 9.2, in the event the Closing does not occur on
or before the Closing Date, the Escrow Agent shall, unless it is notified by
both parties to the contrary within five (5) business days after the
Closing Date, return to the depositor thereof items which were deposited
pursuant to this Agreement.  The
foregoing instruction to return items does not include funds or the Deposit.  Any such return shall not, however, relieve
either party of any liability it may have relating to its wrongful failure to
close.


 


(k)           Escrow Agent shall not be responsible
or liable in any manner whatsoever for the correctness, genuineness or validity
of any document or instrument, or any signature thereon, deposited with or
delivered to Escrow Agent pursuant to this Agreement.  Escrow Agent may act in reliance upon any
such document or instrument, which Escrow Agent in good faith believes to be
genuine and duly authorized, without investigation as to the correctness,
genuineness or validity thereof.  Escrow
Agent shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against Escrow
Agent.  Escrow Agent is not chargeable
with knowledge, and has no duties with respect to any other agreements between 


 


23

















 


Seller and
Purchaser.  Escrow Agent shall not be
responsible to see to the correct application of any funds disbursed by it
pursuant to this Agreement.


 


(l)            Seller and Purchaser acknowledge
that the transaction contemplated hereunder shall be closed by delivering
executed documents and the other closing deliveries to the Escrow Agent in
accordance with customary written instructions.


 


(m)          Upon request by Seller and Purchaser,
Escrow Agent shall prepare a closing or settlement statement.


 


(n)           Escrow Agent is familiar with and
understands the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Sec. 78dd-1, et
seq., and any other anti-corruption laws and regulations relevant to the
Agreement and has not and will not violate these laws.


 


(o)           The
President of the United States has issued Executive Order 13224, in conjunction
with the Office of Foreign Assets Control (“OFAC”).  This order bans any United States person from
doing business with any person, entity or group specially designated by the
U.S. Secretary of State or Secretary of the Treasury as a terrorist or
terrorist entity.  OFAC maintains a list
of these persons, entities and groups, known as the Specially Designated
Nationals and Blocked Persons List (“SDN List”).  In order to comply with this order, Escrow
Agent shall not enter into contracts or other agreements with any person whose
name appears on the SDN List.


 


9.3.         Seller’s Deliveries.


 


(a)           Seller shall deliver or cause to be delivered, either at
the Closing through the Title Company or by making available at the Property,
as appropriate, the following items and original documents, each executed and,
if required, acknowledged, as appropriate:


 


9.3.1.       A
Massachusetts quitclaim deed to the Property, in the form attached hereto as Exhibit 9.3.1.


 


9.3.2.       A
bill of sale in the form attached hereto as Exhibit 9.3.2 conveying
the Personal Property.


 


9.3.3.       (i) The Leases and any new
leases entered into pursuant to Section 4.4; (ii) the Rent Schedule,
including a listing of any tenant security and other deposits and prepaid rents
held by Seller with respect to the Property; (iii) the cash security
deposits and letters of credit held by Seller as security under the Leases, but
only to the extent the same have not been applied in accordance with the Leases
or returned to tenants and relate to tenants occupying space at the Property on
the Closing Date pursuant to Leases then in effect and any accrued interest thereon to the extent required by
applicable Massachusetts law; 


 


24

















 


(iv) an assignment of such Leases, deposits, and prepaid rents by
way of an Assignment and Assumption of Leases in the form attached hereto as Exhibit 9.3.3; and (v) a
certificate from the Manager, dated as of the Closing Date, certifying to
Purchaser that the Leases for the Property which are on file in the management office
thereof and which have been made available to Purchaser are used by and relied
upon by Manager in connection with the leasing operations conducted by Manager,
in its capacity as property manager for the Property.


 


9.3.4.       (i) Copies
of all Contracts which Purchaser has elected to assume or which are not
terminable by the Seller without fee or penalty on or before the Date of
Closing; and (ii) an assignment of such Contracts to Purchaser by way of
an assignment and assumption agreement, in the form attached hereto as Exhibit 9.3.4.


 


9.3.5.       An
assignment to Purchaser of Seller’s right, title and interest, if any, in any
names specific to the Property, including any domain name(s), permits,
approvals, entitlements, and other intangible property owned by Seller and used
solely in connection with the Property in the form attached hereto as Exhibit 9.3.5.


 


9.3.6.       An
assignment of all unexpired, transferable warranties and guarantees then in
effect, if any, with respect to the Improvements or any repairs or renovations
to such Improvements and Personal Property being conveyed hereunder, which
assignment is in the form attached hereto as Exhibit 9.3.6.


 


9.3.7.       Seller
shall deliver to Purchaser at Closing, the originals of all Leases, tenant
files, and, to the extent in Seller’s possession and to the extent available,
the Contracts and Equipment Leases being assumed by Purchaser, and any building
plans, specifications and operating manuals relating to the Property.  All other books and records requested by
Purchaser will be provided at Seller’s sole discretion and at Purchaser’s sole
cost.  These materials may be delivered
at the Property.


 


9.3.8.       An
affidavit pursuant to the Foreign Investment and Real Property Tax Act in the
form attached hereto as Exhibit 9.3.8.


 


9.3.9.       Appropriate
evidence of authorization as required by the Title Company.


 


9.3.10.     A
statement updating the Seller’s representations and warranties and certifying
the same as true and correct as of the Closing Date.


 


9.3.11.     Any deed excise stamp tax declaration
in the form required by applicable governmental authorities.


 


9.3.12.     The
Closing Statement (prepared by the Title Company).


 


25

















 


9.3.13.     Keys
or key codes to all locks at the Property, which will be delivered at the
Property.


 


9.3.14.     An owners affidavit and gap
indemnification agreement in form and substance as may be acceptable to
Purchaser and the Title Company, but in any event in sufficient form to permit
the Title Company to issue a standard owner’s policy of title insurance and to
issue the same at Closing, notwithstanding that the deed conveying the Land
shall not have been recorded at such time. 
In addition, Seller shall deliver such other documents as may be
reasonably required by the Title Company and which do not expand or create
Seller liability beyond that provided for by this Agreement as may be agreed
upon by Seller and Purchaser to consummate the transaction, provided, however,
that Seller shall not be obligated to provide to Title Company any other
affidavits, indemnities, certifications, covenants, obligations or liabilities
beyond those that Seller is providing to Purchaser under this Agreement or
which go beyond that required for the issuance by Title Company of a standard
owner’s policy of title insurance.


 


9.4.         Purchaser’s Deliveries.  At Closing, Purchaser shall (i) pay
Seller the Purchase Price through the Escrow Agent and provide any instruments
required by the Title Company from a purchaser of real property; and (ii) execute
and deliver the agreements referred to in Sections 9.3.3(iii) and
9.3.4(ii), any deed excise stamp tax declarations in the form required by
applicable governmental authorities, a statement updating the Purchaser’s
representations and warranties and certifying the same as true and correct as
of the Closing Date, and the Closing Statement.


 


9.5.         Mutual Obligations.  Seller and Purchaser shall each deposit such
other instruments as are reasonably required (i) to confirm their
respective authority to close this transaction, (ii) by Escrow Agent, or (iii) otherwise
to consummate the sale and acquisition of the Property in accordance with the
terms hereof (provided that in no event shall any such documents increase the
liability of Purchaser or Seller). 
Seller and Purchaser hereby designate Escrow Agent as the “Reporting Person” for the transaction pursuant to Section 6045(e) of
the Internal Revenue Code and the regulations promulgated thereunder and agree
to execute such documentation as is reasonably necessary to effectuate such
designation.


 


9.6.         Possession.  Purchaser shall be entitled to possession of
the Property upon conclusion of the Closing, subject to the Permitted
Encumbrances.


 


9.7.         Insurance.  Seller shall terminate its policies of
insurance as of noon on the Date of Closing and Purchaser shall be responsible
for obtaining its own insurance thereafter.


 


9.8.         Utility Service and Deposits.  To the extent any utility account is in
Seller’s name, Seller shall be entitled to the return of any deposit(s) and/or
bond(s) posted by it or its predecessor with any utility company and
Purchaser shall notify each 


 


26

















 


utility company serving
the Property to terminate any Seller account, effective at noon on the Date of
Closing, such notice to be in the form of Exhibit 9.8 attached
hereto.


 


9.9.         Notice Letters.  Subsequent to Closing, Seller shall provide
to Purchaser copies of form letters to tenants and to service, maintenance,
supply and other contractors serving the Property, whose Leases and Contracts
(respectively) were assigned to Purchaser at Closing, advising them of the sale
of the Property to Purchaser, notifying
them that security deposits have been transferred to Purchaser, and
directing to Purchaser all rents and bills for the services and supplies,
respectively, provided to the Property on and after the Date of Closing.


 


10.  Breach;
Default; Failure of Condition.


 


10.1.       Purchaser
Default.  If Purchaser shall breach
or default under this Agreement and, with respect to breaches or defaults for
which a cure period is applicable, fail to cure such breach or default within
such cure period, Seller may terminate this Agreement, the Deposit shall be
retained by Seller as liquidated damages, without the necessity of proving
actual damages, and both parties shall be relieved of and released from any
further liability hereunder except for Purchaser’s Indemnity Obligations set
forth in Sections 3.1.2 and 3.6 hereof and matters which, by the express
provision thereof in this Agreement, survive termination of the Agreement.  Seller and Purchaser agree that Seller’s
damages in the event of such breach or default will be difficult or impractical
to ascertain, the Deposit is a fair and reasonable estimate of such damages as
of the date of this Agreement, and the Deposit is to be retained by Seller as
agreed and liquidated damages in light of Seller’s removal of the Property from
the market and the costs incurred by Seller and shall not constitute a penalty
or a forfeiture.


 


10.1.1.     The
parties hereto agree that it would be difficult to prove actual damages
resulting from a breach of this Agreement and that the Deposit represents a
fair and equitable estimation of Seller’s damages in the event of a breach or
default by Purchaser.  The parties
further agree that this liquidated damage clause is included herein as a result
of negotiation by the parties at the express request of Purchaser and that
Purchaser hereby waives any right to challenge the enforceability of this
clause or its reasonability, and Purchaser hereby waives any and all rights it
may have at law or equity to dispute Seller’s right to the liquidated damages
provided for herein.  In addition, the
parties waive any right to asset the lack of mutuality of remedy as a defense
in the event of any litigation arising out of this Agreement.


 


Seller’s initials:                                                                  Purchaser’s
initials:


 


10.2.       Seller Default.  If Seller shall refuse or fail to convey the
Property as herein provided for any reason other than (i) a breach or
default by Purchaser under this Agreement and the expiration of the cure
period, if any, or (ii) any other provision of this Agreement which
permits Seller to terminate this Agreement or otherwise relieves Seller of the
obligation to convey the Property, Purchaser shall elect as its sole and
exclusive


 


27
















 


remedy hereunder either
to terminate the Agreement and recover the Deposit or to specifically enforce
the Seller’s obligations to convey the Property in accordance with this
Agreement, Purchaser hereby expressly waiving any right to recover exemplary,
punitive, indirect, consequential, special or other damages and all other
remedies available at law or at equity with regard to any such failure; provided
that no action in specific performance shall seek to require the Seller
to do any of the following (other than as required as pursuant to this
Agreement): (a) change the condition of the Property or restore the same
after any fire or other casualty; (b) subject to Sections 3.2
and 10.3 hereof, expend money or post a bond to remove a title encumbrance
or defect or correct any matter shown on a survey of the Property; or (c) secure
any permit, approval, or consent with respect to the Property or Seller’s
conveyance of the Property.


 


10.3.       Failure of Condition.  If prior to Closing Seller discloses to
Purchaser or Purchaser discovers that title to the Property is subject to
defects, limitations or encumbrances other than Permitted Encumbrances, then
Purchaser shall promptly give Seller written notice of any objection
thereto.  In such event, the Closing
shall be postponed for up to thirty (30) days and Seller shall use reasonable
efforts to cure such objection, provided that Purchaser may not object to the
state of title of the Property on the basis of any Permitted Encumbrance(s).


 


10.3.1.     Subject
to Section 3.2 and Section 10.3 hereof, Seller shall have no
obligation to cure any title objection. 
If Purchaser fails to waive an objection within five (5) days after
notice from Seller that Seller is unable to cure the objection prior to the
extended Closing Date, this Agreement shall terminate automatically and  the Title Company shall promptly return the
Deposit to Purchaser, and neither party shall have any liability to the other
except for Purchaser’s obligations set forth in Section  3.1.2 and 3.6
hereof.  For the purposes of this
Agreement, any title defect, limitation or encumbrance other than a Permitted
Encumbrance shall be deemed cured if Title Company or another title insurance
company reasonably acceptable to Purchaser and authorized to do business in Massachusetts,
agrees to issue an ALTA owner’s title insurance policy to Purchaser in the
amount of the Purchase Price, which policy takes no exception for such defect,
limitation or encumbrance and is issued for no additional premium or for an
additional premium if Seller agrees to pay such additional premium upon
Closing.


 


10.4.       Representation
or Warranty Untrue.  Prior to
Closing, if any material
representation or warranty of any party is discovered to have been false, in
any material respect, when made, then such discovery shall be an event of
default by the party that made the false representation or warranty.  If, after the date of this Agreement and
before the Closing, (a) such false representation or warranty shall
constitute a condition that such defaulting party is capable of curing and (b) such
defaulting party notifies the non-defaulting party in writing that it intends
to cure such false representation or warranty, then such defaulting party shall
have the right to cure such false representation or warranty prior to Closing
and, if such condition is not cured by Closing (or if such defaulting party
notifies the non-defaulting party that such condition can not be cured), then
the non-defaulting party shall have all of the rights set forth in 


 


28

















 


Article 10.  However, if the non-defaulting party
consummates the Closing with knowledge of such false representation or
warranty, such non-defaulting party shall be conclusively deemed to have waived
such default and accepted such uncured condition, in which event the
non-defaulting party shall have no rights or remedies under this Agreement
regarding such default and such representation and warranty shall automatically
be deemed amended to fully and accurately state the actual facts and conditions
then known or existing so that no fact or condition first discovered or notice
received or events occurring after the Effective Date can or will constitute a
breach by the defaulting party of any of the warranties or representations.


 


11.          Miscellaneous.


 


11.1.        Entire Agreement.  This Agreement, together with the Exhibits
attached hereto, all of which are incorporated by reference, constitutes the
entire agreement between the parties with respect to the subject matter hereof,
and no alteration, modification or interpretation hereof shall be binding
unless in writing and signed by both parties. 
The parties are not bound by any agreements, understandings, provisions,
conditions, representations or warranties (whether written or oral and whether
made by Seller or any agent, employee or principal of seller or any other
party) other than as are expressly set forth and stipulated in this Agreement.


 


11.2.        Severability.  If any provision of this Agreement or
application to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforced to the fullest extent permitted by law.


 


11.3.        Applicable Law.  This Agreement shall be construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts.


 


11.4.        Assignability.  Purchaser shall not assign this Agreement
without first obtaining Seller’s written consent, provided however, that Purchaser may, without Seller’s consent, but
with no less than five (5) business days written notice to Seller which
notice will include the name of such assignee and the names of all principals
and entities owning twenty-five percent (25%) or more of such assignee, assign
this Agreement to an “Affiliate” of Purchaser or designate an “Affiliate” to
take title, to the Property at Closing.  “Affiliate” means any entity that is owned
or controlled by an entity of which the general partners, managers or voting
members are at least fifty-one (51%) percent owned or controlled by principals
of Purchaser, and shall include trusts or other estate planning entities
created for the benefit of such principals and their immediate family
members.  Any assignment in
contravention of this provision shall be void. 
No assignment, whether or not permitted, shall release the Purchaser
herein named from any obligation or liability under this Agreement.  The Purchaser and any permitted assignee
shall be jointly and severally liable for all such obligations and
liabilities.  Any permitted assignee
shall be deemed to have made any and all representations and 


 


29

















 


warranties made by
Purchaser hereunder, as if the assignee were the original signatory
hereto.  Purchaser acknowledges that any
such assignee shall be subject to
Seller’s verification that such assignee can make the representation set forth
in Section 5.3.8.


 


If Purchaser requests Seller’s consent to an assignment of this
Agreement, Purchaser shall (i) notify Seller in writing of the proposed
assignment; (ii) provide Seller with the name and address of the proposed
assignee; (iii) provide Seller with financial information, including
current financial statements, for the proposed assignee; and (iv) provide
Seller with a copy of the proposed instrument of assignment.


 


Any transfer or assignment of any membership or other beneficial
interest of Purchaser in excess of forty-nine percent (49%) shall be deemed an
assignment within the meaning of this Section 11.4.


 


11.5.       Successors Bound.  This Agreement shall be binding upon and
inure to the benefit of Purchaser and Seller and their respective successors
and permitted assigns.


 


11.6.       Captions.  The captions in this Agreement are inserted
only as a matter of convenience and for reference and in no way define, limit
or describe the scope of this Agreement or the scope or content of any of its
provisions.


 


11.7.       Attorneys’ Fees.  In the event of any litigation arising out of
this Agreement, the prevailing party shall be entitled to recover from the
other party reasonable attorneys’ and paralegals’ fees and costs actually
incurred, whether incurred out of court, at trial, on appeal or in any
bankruptcy, arbitration or administrative proceedings.


 


11.8.       No Relationship. Nothing contained
in this Agreement shall be construed to create a fiduciary, partnership, joint
venture, principal/agent or other relationship between the parties or their
successors or assigns, and the parties owe no duty to each other except as
expressly stated in this Agreement.


 


11.9.       Time of Essence. Time is of the
essence for all purposes of this Agreement.


 


11.10.     Counterparts.  This Agreement may be executed and delivered
in any number of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one and the same
instrument.  Each counterpart may be
delivered by facsimile transmission provided that a signed original is provided
promptly.  The signature page of any
counterpart may be detached therefrom without impairing the legal effect of the
signature(s) thereon provided such signature page is attached to any
other counterpart identical thereto.


 


11.11.     Recordation.  Neither this Agreement nor any memorandum or
notice hereof shall be recorded. 
Purchaser shall (i) not, and hereby waives its rights to, file any
notice of lis pendens or other form of notice of pendency or other instrument
against the Property or any portion thereof in connection herewith and (ii) indemnify



 


30

















 


Seller against all
liabilities (including reasonable attorneys’ fees, expenses and disbursements)
incurred by Seller by reason of the filing by Purchaser or its agent of any
such memorandum, notice or other instrument. 
If Purchaser fails to comply with the terms hereof by recording or
attempting to record this Agreement or a notice thereof, such act shall not
operate to bind or cloud the title to the Property.  Seller shall, nevertheless, have the right
forthwith to institute appropriate legal proceedings to have the same removed
from record.  If Purchaser or any agent,
broker or counsel acting for Purchaser shall cause or permit this Agreement or
a copy thereof to be filed in an office or place of public record, Seller, at
its option, and in addition to Seller’s other rights and remedies, may treat
such act as a default of this Agreement on the part of the Purchaser.  However, the filing of this Agreement in any
lawsuit or other proceedings in which such document is relevant or material
shall not be deemed to be a violation of this Section 11.11.


 


11.12.      Proper Execution. The submission by
Seller to Purchaser of this Agreement in unsigned form shall be deemed to be a
submission solely for Purchaser’s consideration and not for acceptance and execution.  Such submission shall have no binding force
and effect, shall not constitute an option, and shall not confer any rights
upon Purchaser or impose any obligations upon Seller irrespective of any
reliance thereon, change of position or partial performance.  The submission by Seller of this Agreement
for execution by Purchaser and the actual execution and delivery thereof by
Purchaser to Seller shall similarly have no binding force and effect on Seller
unless and until Seller shall have executed this Agreement and the Deposit
shall have been received by the Title Company and a counterpart thereof shall
have been delivered to Purchaser. 
Signatures of this Agreement transmitted by facsimile or via electronic
mail (*.pdf or similar file types) shall be valid and effective to bind the
party so signing.  Each party agrees to
promptly deliver an execution original to this Agreement, any amendment
thereto, or any notice sent via facsimile or via electronic mail with its
actual signature to the other party, but a failure to do so shall not affect
the enforceability of this Agreement, amendment or notice, it being expressly
agreed that each party to this Agreement shall be bound by its own telecopied
or electronically mailed signature in all instances and shall accept the
telecopied or electronically mailed signature of the other party to this
agreement.


 


11.13.      Tax Protest.  If, as a result of any tax protest or
otherwise, any refund or reduction of any real property or other tax or
assessment relating to the Property during the period for which, under the
terms of this Agreement, Seller is responsible, Seller shall be entitled to
receive or retain such refund or the benefit of such reduction, less equitable
prorated costs of collection.


 


11.14.      Best Knowledge; Received Written Notice.  Whenever a representation, warranty or other
statement is made in this Agreement or in any document or instrument to be
delivered at Closing pursuant to this Agreement, on the basis of the best of
knowledge of Seller, or is qualified by Seller having received written notice,
such representation, warranty or other statement is made with the exclusion of
any facts disclosed to or otherwise known by Purchaser, and is made solely on
the basis of the current, conscious, and actual, as distinguished from implied,
imputed and 


 


31

















 


constructive, knowledge
on the date that such representation or warranty is made, without inquiry or
investigation or duty thereof, of Robert Wilkins, (the officer of Seller having responsibility for the
management of the Property), without attribution to such specific officers of
facts and matters otherwise within the personal knowledge of any other officers
or employees of Seller or third parties, including but not limited to tenants
and property managers of the  Property, and
excluding, whether or not actually  known by such
specific officers, any matter known to Purchaser or its agents at the time of
Closing.  So qualifying Seller’s
knowledge shall in no event give rise to any personal liability on the part of
Robert Wilkins or any other officer or employee of any Seller Party.


 


11.15.     Survival and Limitation of
Representations and Warranties.


 


(a)           The representations
and warranties of Seller set forth in this Agreement or any documents executed
in connection herewith shall survive the Closing, but, any action, suit or
proceeding brought by Purchaser against Seller under this Agreement or under
any such documents shall be commenced and served, if at all, on or before the
date which is six (6) months after the date of Closing and, if not
commenced and served on or before such date, thereafter shall be void and of no
force or effect.


 


(b)           Subject
to Section 10.2, above, the aggregate
liability of the Seller with  respect to all
claims arising in connection with the representations and warranties of Seller
which survive the Closing and any other obligations of Seller which expressly
survive Closing under this Agreement shall not exceed FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($500,000.00), and in no event shall any liability arise in
connection therewith unless and except to the extent that the direct damages to
Purchaser by reason of all such claims, collectively, exceed $50,000.00.  In no event shall Seller be liable to Purchaser
for any consequential, exemplary, punitive, or any other type of damages (other
than direct damages) or for unrealized expectations or other similar claims in
respect of any such claims, and in every case Purchaser’s recovery for any
claims shall be net of any insurance proceeds and any indemnity, contribution,
or other similar payment recovered or recoverable by Purchaser from any
insurance company or other third party. 
Seller’s total liability with respect to a default by Seller for refusal
or failure to convey the Property shall not be governed by this Section but
shall instead be governed by the terms and provisions of Section 10.2 of
this Agreement.


 


11.16.     Intentionally Omitted.


 


11.17.     Time to Execute and Deliver.  This Agreement shall be void if one fully
executed copy is not received by Seller on or before 5:00 p.m. Eastern
Time on September 1, 2009 and/or if Seller shall not have received notice
from the Escrow Agent that the Deposit shall have been received by the Escrow
Agent, on or before 5:00 p.m. Eastern Time on the date which is two
business days immediately following the date of this Agreement.


 


32

















 


11.18.     No Personal Liability.  Any liability for participation in this
transaction shall remain with Purchaser and Seller only and in no event shall
there be any personal liability on the part of any officer, manager or employee
of the parties, their partners or their constituent members or entities.  This provision shall survive Closing or any
termination of this Agreement.


 


11.19.     Date of Agreement.  All references to the date of this Agreement
mean the date upon which both Seller and Purchaser have executed this
Agreement.


 


11.20.     Date of Performance.  If the date of performance of any obligation
or the expiration of any time period provided herein should fall on a Saturday,
Sunday or legal holiday, then said obligation shall be due and owing, and said
time period shall expire, on the first day thereafter which is not a Saturday,
Sunday or legal holiday.  Any reference
in this Agreement to a “business day” shall mean any day of the week other than
a Saturday, Sunday or legal holiday. 
Except as may otherwise be set forth herein, any performance provided
for herein shall be timely made if completed not later than 5:00 p.m.
(Eastern Time) on the day of performance.


 


11.21.     Waiver.  Excuse or waiver of the performance by the
other party of any obligation under this Agreement shall only be effective if
evidenced by a written statement signed by the party so excusing or
waiving.  No delay in exercising any
right or remedy shall constitute a waiver thereof, and no waiver by Seller or
Purchaser of the breach of any covenant of this Agreement shall be construed as
a waiver of any preceding or succeeding breach of the same or any other
covenant or condition of this Agreement. 
All of the provisions of this Section 11 shall survive the Closing,
or in the event that the Closing does not occur, any termination or
cancellation of this Agreement.


 


11.22.     Interpretation.  This Agreement is the result of negotiations
between the parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is entered into
by both parties in reliance upon the economic and legal bargains contained
herein and shall be interpreted and construed in a fair and impartial manner
without regard to such factors as the party which prepared the Agreement, the
relative bargaining powers of the parties or the domicile of any party.  Seller and Purchaser are each represented by
legal counsel competent of advising them of their obligations and liabilities
hereunder.  The presentation and
negotiation of this Agreement shall not be construed as any offer by Seller to
sell, or any offer by Purchaser to purchase, the Property or obligate either
party unless and until this Agreement has been duly executed and delivered to
both parties.


 


11.23.     Public Disclosure.  Following Closing, Purchaser and Seller shall
have the right to announce the acquisition and sale of the Property in the
media (including “tombstones”), provided that (i) Purchaser shall consult
with Seller with respect to any such notice or publication and implement any
comments or objections of Seller, and (ii) the Purchase Price is not
disclosed and neither party discloses the name of the other party, directly or
indirectly.  Seller may also publicize
the sale of the Property in the ordinary course of its business.  The provisions of this Section shall 


 


33

















 


survive Closing.  Neither
party shall publicly disclose the terms of this transaction without the prior
written consent of the other party, except (after written notice to the other
party) as may be required by law or as required to enforce the terms and
provisions hereof.


 


11.24.      Governmental
Approvals.  Nothing in this Agreement
shall be construed as authorizing Purchaser to apply for a zoning change,
variance, subdivision map, lot line adjustment, or other discretionary governmental
act, approval or permit with respect to the Property prior to Closing, and
Purchaser shall not do so without the prior written approval of Seller, which
approval may be withheld in Seller’s sole and absolute discretion.  Purchaser also agrees not to submit any
reports, studies or other documents, including without limitation, plans and
specifications, impact statements for water, sewage, drainage or traffic,
environmental review forms, or energy conservation checklists to any
governmental agency, or any amendment or modification to any such instruments
or documents prior to Closing, unless first approved in writing by Seller,
which approval Seller may withhold in its sole, absolute discretion, provided,
however, that Purchaser shall have the right without the consent of Seller to
request a zoning confirmation letter or certificate from the Brookline,
Massachusetts zoning authority.  
Purchaser’s obligation to purchase the Property shall not be subject to
or conditioned upon Purchaser obtaining any variance(s), zoning amendment,
subdivision map, lot line adjustment, condominium approval or other
discretionary governmental act, approval or permit.


 


11.25.      Purchaser Not a Successor of Seller.  Purchaser is not and shall not be deemed to
be a successor to Seller.  Purchaser is
acquiring only the Property and not an ongoing business enterprise.


 


11.26.      Termination.  Upon termination of this Agreement in
accordance with its terms (and not as a result of a default by either party),
neither party shall have any further rights or obligations or liabilities,
except those rights and obligations arising under any sections of this
Agreement which expressly survive termination of this Agreement.  It is hereby agreed that, in addition to
express statements of survivability, all references in this Agreement to Seller’s
or Escrow Agent’s obligation to return the Deposit to Purchaser shall survive
the termination of this Agreement.


 


11.27.      Construction.  As used herein, the words “include”, “including”,
and similar terms shall be construed as if followed by the phrase “without
limitation”.


 


11.28.      No Third Party Beneficiary.  This Agreement is not intended to give or
confer any benefits, rights, privileges, claims, actions, or remedies to any
person or entity as a third party beneficiary.


 


34

















 


IN WITNESS WHEREOF,
the undersigned Seller has executed and delivered this Purchase and Sale and
Escrow Agreement as an instrument under seal as of the date set forth above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust
  Operating

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 

















 


IN WITNESS WHEREOF,
the undersigned Purchaser has executed and delivered this Purchase and Sale and
Escrow Agreement as an instrument under seal as of the date set forth above.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  THE HAMILTON COMPANY, INC.

  
	
   

  	
  a Massachusetts
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


An original, fully executed
copy of this Agreement, together with the Deposit, has been received by the
Title Company this          day of
                        ,
2009, and by execution hereof the Title Company hereby covenants and agrees to
be bound by the terms of this Agreement.


 


	
   

  	
  ESCROW
  AGENT/TITLE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST
  AMERICAN TITLE INSURANCE

  
	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Desmond

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


List of Exhibits


 


	
  Exhibit 1.1.1

  	
   

  	
  Legal Description

  
	
   

  	
   

  	
   

  
	
  Exhibit 1.1.3

  	
   

  	
  Inventory of Personal
  Property

  
	
   

  	
   

  	
   

  
	
  Exhibit 1.1.6

  	
   

  	
  Schedule of Leases and
  Security Deposits

  
	
   

  	
   

  	
   

  
	
  Exhibit 3.1.2

  	
   

  	
  Insurance Requirements

  
	
   

  	
   

  	
   

  
	
  Exhibit 3.3

  	
   

  	
  Schedule of Contracts
  Equipment Leases

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.3.1

  	
   

  	
  Form of
  Massachusetts Quitclaim Deed

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.3.2

  	
   

  	
  Form of Bill of
  Sale

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.3.3

  	
   

  	
  Form of Assignment
  and Assumption of Leases

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.3.4

  	
   

  	
  Form of Assignment
  and Assumption of Contracts

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.3.5

  	
   

  	
  Form of Property
  Name Assignment

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.3.6

  	
   

  	
  Form of Assignment
  of Warranties and Guarantees

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.3.8

  	
   

  	
  Form of FIRPTA
  Affidavit

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.8

  	
   

  	
  Form of Notice to
  Utility Company

  
	
   

  	
   

  	
   

  
	
  Exhibit 9.9

  	
   

  	
  Notice to Tenants

  



 


2

















 


EXHIBIT 1.1.1


LEGAL
DESCRIPTION


 


A certain parcel of land,
with buildings thereon, situated in Brookline, Norfolk County, Massachusetts,
bounded and described as follows:


 


BEGINNING at a point on
the northerly sideline of Freeman Street, said point being the point of
curvature of a curve connecting the northerly side of Freeman Street and the
easterly sideline of Pleasant Street; thence running along said curved line to
the right of radius 30.57 feet a distance of 44.56 feet to a point of
tangency, said point being on the easterly sideline of Pleasant Street;


 


THENCE running along said
easterly sideline of Pleasant Street North 01°19’00” East a distance of
31.37 feet to an angle point;


 


THENCE turning and
running along said easterly sideline of Pleasant Street North 00°44’44”
West a distance of 336.10 feet to a point of curvature;


 


THENCE running along a
curved line to the right of radius 20.00 feet a distance of
34.54 feet to a point of tangency, said point being on the southerly
sideline of Thatcher Street;


 


THENCE running along said
southerly sideline of Thatcher Street South 81°49’38” East a distance of
438.23 feet to a point of curvature;


 


THENCE running along a
curved line to the right of the radius 20.00 feet a distance of
31.35 feet to a point of tangency, said point being on the westerly
sideline of St. Paul Street;


 


THENCE running along the
westerly side of St. Paul Street South 08°00’00” West a distance of
370.47 feet to a point of curvature;


 


THENCE running along a
curved line to the right of the radius 20.00 feet a distance of
31.34 feet to a point of tangency, said point being on the northerly
sideline of Freemen Street;


 


THENCE running along the
northerly sideline of Freeman Street North 82°14’30” West a distance of
372.80 feet to the point of beginning.


 

















 


EXHIBIT 1.1.3


INVENTORY
OF PERSONAL PROPERTY


 


SEE ATTACHED


 

















 


EXHIBIT 1.1.6


SCHEDULE
OF LEASES AND SECURITY DEPOSITS


 


SEE
ATTACHED


 

















 


EXHIBIT 3.1.2


INSURANCE
REQUIREMENTS


 


I.                                         Prior to
performing any Assessment activities, Purchaser and all Purchaser’s
consultants, engineers and any environmental consultant and any subcontractor
thereof (and any other agent, contractor or consultant of Purchaser performing
Assessment activities) shall have and maintain in forms and with companies
reasonably acceptable to Owner at least the following insurance coverage:


 


A.                                   Environmental
Legal Liability Insurance


 


A policy of environmental legal liability insurance, having minimum
limits of Five Million Dollars ($5,000,000) per occurrence (or Each Pollution
Incident Loss) with a Five Million Dollar ($5,000,000) Policy aggregate,
written on a claims-made or occurrence basis, with a deductible no greater than
One Hundred Thousand Dollars ($100,000) per occurrence.  Consultant shall maintain claims-made
coverage in the above liability limits for at least two (2) years after
contract completion under the same terms and conditions.  Notwithstanding the foregoing, in the event
Purchaser wishes to conduct a phase II environmental assessment or any
intrusive  testing, additional or
increased coverage may be required.


 


B.                                     Workers’
Compensation and Employers’ Liability


 


1.                                       Statutory
requirement in states where operating, to include all areas involved in
operations covered under this Agreement.


 


2.                                       Coverage “B”
— Employers’ Liability - $100,000 Bodily Injury by accident — each accident;
$100,000 Bodily Injury by disease — each employee; $500,000 disease policy
limit.


 


C.                                     General
Liability Insurance


 


1.                                       Standard
Commercial General Liability policy form on an occurrence basis including
Premises/Operations Liability, Broad Form Contractual Liability, Blanket
Owner’s and Contractors Liability and Products/Completed Operations Liability
and the explosion, collapse and underground (xcu) exclusions eliminated.


 


2.                                       Limits of
Liability: One Million Dollars ($1,000,000) Per Occurrence and Two Million
Dollars ($2,000,000) Products Completed Operations and General Aggregates.


 


D.                                    Automobile
Liability Insurance


 


1.                                       Comprehensive
Automobile form, including all Owned, Non-Owned and Hired Vehicles.


 


1

















 


2.                                       Limits of
Liability: Bodily Injury, $1,000,000 each person, $1,000,000 any one accident
or loss.


 


3.                                       The policy
shall include Insurance Services Office policy endorsement Form MCS-90 or
a similar endorsement providing coverage for environmental claims should there
be any transportation of pollutants


 


E.                                     Umbrella
Liability


 


Minimum amount of Five Million Dollars ($5,000,000) each occurrence and
general aggregate, providing excess coverage on a following form basis over the
coverage required by Subsections A., B. (except for Worker’s Compensation), C.
and D.


 


II.                                     Additional
Requirements


 


A.                                   Except where
prohibited by law, all insurance policies except the Environmental Legal
Liability Policy, shall provide that the insurance companies waive the rights
of recovery or subrogation against the Owner, its agents, servants, invitees,
employees, affiliated companies, contractors, subcontractors, and their
insurers.


 


B.                                     Such
insurance shall not be subject to cancellation except upon thirty (30) days
prior written notice to Owner.


 


C.                                     All
insurance required hereunder shall be with such insurance companies as are
reasonably satisfactory and acceptable to Owner.  Prior to commencement of the Assessment,
Purchaser shall deliver to Owner for its inspection all insurance certificates
for coverage required hereunder or such other evidence of compliance with the
foregoing insurance requirements as is required by, and satisfactory and
acceptable to, Owner.


 


D.                                    Owner, its
parent, subsidiaries, affiliates, investment advisors, property managers or
designees, and its and their officers, directors, and employees shall be named
as additional insured under the General Liability, Automobile Liability and
Umbrella Liability insurance policies required to be maintained by Purchaser’s
consultants and/or any subcontractor thereof.


 


E.                                      All
Insurance coverage maintained by Purchaser and Purchaser’s consultants and any
subcontractor thereof shall be primary and not contributing with any insurance
maintained by Owner.


 


2

















 


EXHIBIT 3.3


SCHEDULE
OF CONTRACTS AND EQUIPMENT LEASES


 


SEE ATTACHED


 

















 


EXHIBIT 3.5


 


SEE ATTACHED


 


1

















 


EXHIBIT 9.3.1


MASSACHUSETTS
QUITCLAIM DEED


 


175
FREEMAN STREET INVESTORS LLC, a Delaware
limited liability company (the “Grantor”),
whose address is c/o UBS Realty Investors LLC, 242 Trumbull Street, Hartford,
Connecticut 06103, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) paid to Grantor and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, has, subject to the
exceptions hereinafter set forth, GRANTED, SOLD,
and CONVEYED and does hereby GRANT, SELL, and CONVEY, with QUITCLAIM COVENANTS, unto THE HAMILTON
COMPANY, INC., a Massachusetts corporation (the “Grantee”), whose address is 39 Brighton Avenue, Boston,
Massachusetts 02134, certain land located at 175 Freeman Street, Brookline,
Norfolk County, Massachusetts, and being more particularly described in Exhibit A
attached hereto and incorporated herein by reference, together with all
improvements located on such land (such land and improvements being
collectively referred to as the “Property”).


 


This conveyance is made and accepted subject to all
matters set out in Exhibit B attached hereto and incorporated
herein by reference.


 


TO HAVE AND TO HOLD
the Property, together with all rights and appurtenances pertaining thereto,
including all of Grantor’s right, title and interest in and to adjoining
streets, alleys and rights-of-way, unto Grantee and Grantee’s successors,
heirs, and assigns forever; and Grantor does hereby bind itself and its
successors and heirs to warrant and forever defend the Property unto Grantee
and Grantee’s successors, heirs, and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof by, through, or
under Grantor, but not otherwise, for matters arising subsequent to the vesting
of title in Grantor.


 


Notwithstanding any provision to the contrary, Grantor
makes no warranties of any nature or kind, whether statutory, express or
implied, with respect to the physical condition of the Property (including
without limitation any and all improvements located thereon and/or comprising a
part thereof), and Grantee by its acceptance of this Deed accepts the physical
condition of the Property “AS IS, WITH ALL FAULTS.”


 


1

















 


EXECUTED as of
the [      ] day of October, 2009.


 


	
   

  	
  GRANTOR:

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust
  Operating

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 


	
  STATE OF CONNECTICUT

  	
  )

  
	
   

  	
  )          ss

  
	
  COUNTY OF HARTFORD

  	
  )

  



 


On this        day of October, 2009,
before me personally appeared Jayne M. Brundage, who acknowledged herself to be
the Executive Vice President of 175 Freeman Street Investors LLC, a Delaware
limited liability company, and that she, being authorized so to do, executed
the foregoing instrument for the purposes therein contained as her and its free
act and deed, by signing the name of limited liability company by herself as
Executive Director.


 


	
   

  	
  IN WITNESS WHEREOF, I
  have hereunto set my hand

  
	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
            My
  Commission Expire

  



 


2
















 


EXHIBIT 9.3.2


BILL
OF SALE


 


For valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, 175 FREEMAN STREET INVESTORS
LLC, a Delaware limited liability company (the “Seller”),
hereby conveys to THE HAMILTON COMPANY, INC.,
a Massachusetts corporation (the “Purchaser”),
all of Seller’s right, title and interest in and to those certain items of
personal property described on Exhibit A attached hereto and made a
part hereof (the “Personal Property”)
relating to certain real property located at 175 Freeman Street, Brookline,
Norfolk County, Massachusetts.


 


The “Personal
Property” expressly excludes the following: 
(i) all items of personal property owned by tenants, subtenants,
independent contractors, business invitees and utilities; and (ii) all
cash on hand, checks, money orders, prepaid postage in postage meters, accounts
receivable and claims arising prior to the Closing.  This Bill of Sale is given by Seller and
accepted by Purchaser with no warranties, express or implied.


 


Seller has not
made and does not make any express or implied warranty or representation of any
kind whatsoever with respect to the Personal Property, including but not
limited to:  title; merchantability of
the Personal Property or its fitness for any particular purpose; the design or
condition of the Personal Property; the quality or capacity of the Personal
Property; workmanship or compliance of the Personal Property with the
requirements of any law, rule, specification or contract pertaining thereto;
patent infringement or latent defects. 
Purchaser accepts the Personal Property on an “AS IS, WHERE IS” basis.


 


IN WITNESS
WHEREOF, Seller has caused this instrument to be
executed and delivered as of this [      ] day of
October, 2009.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust
  Operating

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general 

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 

















 


EXHIBIT 9.3.3


ASSIGNMENT
AND ASSUMPTION OF LEASES


 


For valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, 175 FREEMAN STREET INVESTORS LLC, a Delaware limited
liability company (the “Assignor”),
hereby assigns, transfers and delegates to THE HAMILTON COMPANY, INC.,
a Massachusetts corporation (the “Assignee”), and
Assignee hereby agrees to assume and accept the assignment and delegation of
all of Assignor’s right, title and interest except for Assignor’s right to
collect delinquent rent in and to the Landlord’s rights and obligations under
the leases and the security deposits relating to the property known as Dexter
Park Apartments and more particularly described on Exhibit A attached
hereto.  The leases and security deposits
(“Leases”) are listed on Exhibit B
attached hereto.


 


By accepting
this Assignment and by its execution hereof, Assignee assumes the payment and
performance of, and agrees to pay, perform and discharge, all the debts, duties
and obligations to be paid, performed or discharged from and after the date
hereof, by the “landlord” or the “lessor” under the terms, covenants and
conditions of the Leases, including, without limitation, brokerage commissions
and compliance with the terms of the Leases relating to tenant improvements and
security deposits.


 


Assignor shall
indemnify Assignee against and hold Assignee harmless from any and all cost,
liability, loss, damage or expense, including, without limitation, reasonable
attorneys’ fees, originating or relating to the period prior to date hereof and
arising out of the Assignor’s obligations under such Leases.  Assignee shall indemnify Assignor against and
hold Assignor harmless from any and all cost, liability, loss, damage or
expense, including, without limitation, reasonable attorneys’ fees, originating
or relating to the period on or after the date hereof and arising out of the
Assignee’s obligations under such Leases.


 


Notwithstanding
anything to the contrary contained herein, the indemnities contained herein
shall survive for a period of six (6) months from the date set forth below
(the “Survival Period”).  Any litigation with respect to such
indemnification must be commenced (by service of process on such other party)
within the Survival Period, and if not so commenced within the Survival Period,
the indemnification shall be void and of no force or effect.  To the extent that Assignee has knowledge as
of the date set forth below of any costs, liability, loss, damage or expense
which would be covered by Assignor’s indemnity set forth above, Assignor’s
indemnity set forth above shall be void and of no force or effect.  No claim for indemnity hereunder shall be
actionable or payable unless the valid claims for indemnification collectively
aggregate more than $50,000.  In no event
shall the liability of Assignor or Assignee hereunder exceed $500,000 (in the
aggregate together with any other liabilities of Assignor arising under the transactions
contemplated by that certain Purchase and Sale and Escrow Agreement dated August [      ],
2009 by and between Assignor and Assignee), and liability hereunder shall be
limited to actual damages and shall not include exemplary, punitive or
consequential damages.


 


1

















 


If any
litigation between Assignor and Assignee arises out of the obligations of the
parties under this Assignment or concerning the meaning or interpretation of
any provision contained herein, the losing party shall pay the prevailing party’s
costs and expenses of such litigation including, without limitation, reasonable
attorneys’ fees.


 


This Agreement
may be executed and delivered in any number of counterparts, each of which so
executed and delivered shall be deemed to be an original and all of which shall
constitute one and the same instrument.


 


This Agreement
is made subject, subordinate and inferior to the easements, covenants and other
matters and exceptions set forth on Exhibit A (the “Permitted Exceptions”), attached hereto and made a part
hereof for all purposes.


 


2

















 


IN WITNESS
WHEREOF, Assignor and Assignee have executed this
Assignment effective as of this [      ] day of
October, 2009.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership 

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust
  Operating

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 


 


	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  THE HAMILTON COMPANY, INC.

  
	
   

  	
  a Massachusetts
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  



 


3

















 


EXHIBIT 9.3.4


ASSIGNMENT
AND ASSUMPTION OF CONTRACTS


 


In consideration
of One Dollar and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, 175 FREEMAN
STREET INVESTORS, LLC, a Delaware limited liability company (the “Assignor”), hereby assigns to and delegates THE HAMILTON COMPANY, INC., a Massachusetts corporation (the
“Assignee”), with an office and place of
business at 39 Brighton Avenue, Boston, Massachusetts 02134, and Assignee
hereby assumes and accepts the assignment and delegation of all of Assignor’s
right, title and interest in and to the contracts, licenses, agreements and
equipment leases (the “Contracts”)
described on Exhibit A attached hereto relating to certain real
property known as Dexter Park Apartments and located at 175 Freeman Street,
Brookline, Norfolk County, Massachusetts, and Assignee hereby accepts such
assignment.


 


Assignor shall
indemnify Assignee against and hold Assignee harmless from any and all cost,
liability, loss, damage or expense, including, without limitation, reasonable
attorneys’ fees, originating or relating to the period prior to date hereof and
arising out of the Assignor’s obligations under the Contracts described on Exhibit A.  Assignee shall indemnify Assignor against and
hold Assignor harmless from any and all cost, liability, loss, damage or
expense, including, without limitation, reasonable attorneys’ fees, originating
or relating to the period on or after the date hereof and arising out of the
Assignee’s obligations under the Contracts described on Exhibit A.


 


Notwithstanding
anything to the contrary contained herein, the indemnities contained herein
shall survive for a period of six (6) months from the date set forth below
(the “Survival Period”).  Any litigation with respect to such
indemnification must be commenced (by service of process on such other party)
within the Survival Period, and if not so commenced within the Survival Period,
the indemnification shall be void and of no force or effect.  To the extent that Assignee has knowledge as
of the date set forth below of any costs, liability, loss, damage or expense
which would be covered by Assignor’s indemnity set forth above, Assignor’s
indemnity set forth above shall be void and of no force or effect.  No claim for indemnity hereunder shall be
actionable or payable unless the valid claims for indemnification collectively
aggregate more than $50,000.  In no event
shall the liability of Assignor or Assignee hereunder exceed $500,000 (in the
aggregate together with any other liabilities of Assignor arising under the transactions
contemplated by that certain Purchase and Sale and Escrow Agreement dated August [      ],
2009 by and between Assignor and Assignee), and liability hereunder shall be
limited to actual damages and shall not include exemplary, punitive or consequential
damages.


 


If any
litigation between Assignor and Assignee arises out of the obligations of the
parties under this Assignment or concerning the meaning or interpretation of
any provision contained herein, the losing party shall pay the prevailing party’s
costs and expenses of such litigation including, without limitation, reasonable
attorneys’ fees.


 


1

















 


This Agreement
may be executed and delivered in any number of counterparts, each of which so
executed and delivered shall be deemed to be an original and all of which shall
constitute one and the same instrument.


 


2

















 


IN WITNESS
WHEREOF, Assignor and Assignee have executed this
Assignment effective as of this [      ] day of
October, 2009.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust
  Operating

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 


 


	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  THE HAMILTON COMPANY, INC.

  
	
   

  	
  a Massachusetts
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  



 


3
















 


EXHIBIT 9.3.5


ASSIGNMENT
OF PROPERTY NAME


 


For valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, 175 FREEMAN STREET INVESTORS LLC, a Delaware limited
liability company (the “Assignor”),
hereby assigns, transfers and sets over unto THE HAMILTON
COMPANY, INC., a Massachusetts corporation (the “Assignee”), all of Assignor’s right, title and interest, if
any, in and to the property name “Dexter Park Apartments”.  Seller makes no warranty or representation of
any kind with respect to its right, title and interest in the property name.


 


IN WITNESS
WHEREOF, Assignor has caused this instrument to be
executed as of this [      ] day of October,
2009.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust
  Operating

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 

















 


EXHIBIT 9.3.6


ASSIGNMENT
OF WARRANTIES AND GUARANTEES


 


THIS
AGREEMENT is made as of the
[      ] day of October, 2009, between 175 FREEMAN STREET INVESTORS LLC, a Delaware limited
liability company (the “Assignor”), and
THE HAMILTON COMPANY, INC., a
Massachusetts corporation (the “Assignee”).


 


R  E
C  I  T  A  L  S :


 


Assignee has
this day acquired from Assignor certain interests in land, buildings and
improvements more particularly described on Exhibit A attached
hereto and made a part hereof (the “Property”).


 


In consideration
of the acquisition of the Property by Assignee and other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, Assignor hereby assigns, transfers and sets over unto Assignee
and Assignee hereby accepts from Assignor all of Assignor’s right, title and
interest in and to all transferable warranties and guarantees, if any, with
respect to the improvements located on the Property or any repairs or
renovations to such improvements and any personal property conveyed to Assignee
by Assignor in connection with the Property.


 


IN WITNESS
WHEREOF, Assignor has caused this instrument to be
executed as of the date above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership 

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust
  Operating

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 

















 


EXHIBIT 9.3.8


AFFIDAVIT
PURSUANT TO FOREIGN INVESTMENT

AND REAL PROPERTY TAX ACT


 


Section 1445 of the Internal Revenue Code (the “Code”) provides that a transferee of a U.S.
real property interest must withhold tax if the transferor is a foreign
person.  For U.S. tax purposes (including
section 1445), the owner of a disregarded entity (which has legal title to a
U.S. real property interest under local law) will be the transferor of the
property and not the disregarded entity. 
To inform
                                          ,
a
                                      ,
of [Address] (“Transferee”) that tax withholding
will not be required in connection with the disposition of the Property as
defined in, and pursuant to, that certain Purchase and Sale and Escrow Agreement
dated
                            ,
the undersigned certifies the following on behalf of                                 
(“Transferor”):


 


1.                                       Transferor
is not a foreign corporation, foreign partnership, foreign trust, or foreign
estate (as those terms are defined in the Code and Income Tax Regulations);


 


2.                                       Transferor is not a disregarded entity as
defined in Code § 1.1445-2(b)(2)(iii);


 


3.                                       Transferor’s U.S. employer identification number is
06-1604937; and


 


4.                                       Transferor’s address is:


 


c/o UBS Realty Investors LLC

242 Trumbull Street

Hartford, Connecticut 06103-1212


 


This Affidavit may be
disclosed to the Internal Revenue Service and any false statement contained
herein could be punished by fine, imprisonment, or both.


 


Under penalties of
perjury I declare that I have examined this Affidavit and to the best of my
knowledge and belief it is true, correct, and complete, and further declare
that I have authority to sign this document on behalf of Transferor.


 


	
   

  	
   

  	
  , a

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
  Duly Authorized

  
				



 

















 


EXHIBIT 9.8


NOTICE
TO UTILITY COMPANY


 


October [      ],
2009


 


RE:                                                                              DEXTER PARK APARTMENTS

175 FREEMAN STREET

BROOKLINE, MASSACHUSETTS


 


You are hereby notified and advised that THE HAMILTON COMPANY, INC. (“Purchaser”)
has purchased and acquired from 175 FREEMAN STREET
INVESTORS LLC all right, title and interest in and to DEXTER PARK APARTMENTS (“Property”).


 


In accordance with the foregoing, you are hereby
notified that all future invoices, bills, correspondence, and notices relating
to the Property, should be delivered to Purchaser at the following
address:  39 Brighton Avenue, Boston,
Massachusetts 02134.


 


Upon final payment of the utility bills, please cancel
any bonds in place and return the originals to Steven Miele at UBS Realty
Investors LLC, 242 Trumbull Street, Hartford, Connecticut 06103-1212.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  175 FREEMAN STREET INVESTORS
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TPF Equity Trust
  Operating Partnership 

  
	
   

  	
   

  	
  LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  TPF Equity Trust Operating
  

  
	
   

  	
   

  	
   

  	
  Partnership GP LLC, its
  general 

  
	
   

  	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jayne M. Brundage

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 

















 


	
   

  	
   

  	
   

  	
  THE HAMILTON COMPANY, INC.

  
	
   

  	
   

  	
   

  	
  a Massachusetts
  corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 9.9


NOTICE TO TENANTS


 


October [      ],
2009


 


Re:      Notice of Change of Ownership of


Dexter Park Apartments,
175 Freeman Street, Brookline, Massachusetts


 


Ladies and Gentlemen:


 


You are hereby notified
as follows:


 


1.     That as of the date hereof, 175 FREEMAN
STREET INVESTORS LLC has transferred, sold, assigned, and conveyed all of its
interest in and to the above-described property, (the “Property”) to THE
HAMILTON COMPANY, INC. (the “New Owner”).


 


2.     Future notices and rental payments with
respect to your leased premises at the Property should be made to the New Owner
in accordance with your lease terms at the following address:


 


Dexter Park Apartments


Attn:                              
(Telephone #:
                      )


Street Address


City, State &
Zip


 


3.               The
New Owner shall be responsible for holding your security deposit in accordance
with the terms of your lease.


 


[REMAINDER
OF PAGE INTENTIONALLY BLANK]


 


1