1, 3, 6, 7, and 24 New England Executive Park

Premises:

1, 3, 6, 7, and 24 New England Executive Park

Burlington, MA 01803

RESTRICTIVE COVENANT

This RESTRICTIVE COVENANT (this “Covenant”) is entered into on this ______day of ______, 20165, by and between the Town of Burlington (the “Town”), a Massachusetts municipal corporation acting by and through its Planning BoardBoard of Selectmen (the “Board”), having an address of 29 Center Street, Burlington, MA 01803, and NEEP Investors Holdings LLC (the “Owner”), a Delaware limited liability company having an address of ______. NEEP Hotel Realty, LLC (the “Tenant”), a ______, joins in this Covenant for the purposes stated herein.

Recitals

Whereas, the Owner is the owner of certain parcels of land in Burlington, Massachusetts, which parcels are located at 1, 3, 6, 7, and 24 New England Executive Park and described more particularly in Certificate of Title No. ______(the “Property”) filed with the Middlesex South Registry District of the Land Court (the “Registry”);

Whereas, the Owner has leased [a portion of] the Property to the Tenant for a term of ______(___) years, commencing on ______, pursuant to a [Ground] Lease dated ______(the “Lease”);]

Whereas, ______filed an application with the Town’s Planning Board for a Planned Development District Special Permit under Article XII of the Burlington Zoning Bylaws (the “Zoning Bylaws”), for the development of the Property for commercial office space, retail, hotel, and restaurant uses;

Whereas, the Planning Board issued a Certificate of Decision on Special Permit, dated on or about August 1, 2014, a copy of is filed with the Registry as Doc. No. 1706128 (as the same may be amended from time to time, the “Special Permit”), authorizing the development of the Property for the foregoing purposes, including, without limitation, the construction and operation of a hotel serving transient guests on a portion of the Property;

Whereas, the Planning Board has expressed concern to the Burlington Building Inspector and filed an appeal with the Town’s Zoning Board of Appeals from the issuance of a building permit for construction of the hotel portion of the project, asserting that the hotel on the Property may be used for residential purposes (“Appeal”);

Whereas, the Owner and the Tenant have agreed, in connection with the Appeal and as a basis for upholding the building permit, to alleviate the Board’s concerns and to procure an unappealed building permit, the Owner and the Board have executed a Memorandum of Agreement, dated ______, 2015, and the Owner has agreed to impose a covenant on the Property on the terms set forth below that prohibits residential use of the hotel; and

Whereas, the covenants and agreements set forth herein shall run with and bind the Property and the Owner and its successors and assigns.

Now, therefore, in consideration of the Memorandum of Agreement, the Special Permit granted by the Board, the Building Inspector’s issuance of the building permit and the Board’s withdrawal of its objections to said building permitZoning Board of Appeals’ vote to uphold the building permit, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

Agreement

1.  Recitals. The recitals to this Covenant are incorporated into and are part of this Agreement.

2.  Covenant: The Owner hereby covenants and agrees that, during the Term (defined below) of this Covenant, the hotel authorized under the Special Permit (the “hotel”) shall at all times be: (a) used solely for transient or overnight occupancy and be occupied by guests who are licensees under Massachusetts law, not tenants; (b) licensed under G.L. c. 140, §6 as a hotel, and (c) operated so that the majority of guest-nights per calendar year are provided to guests whose stay is no longer than thirty twenty-five (3025) consecutive days and no guest shall be allowed to stay for ninety (90) consecutive days or more or for more than one hundred and eighty (180) total days in any one-yearrolling twelve-month period. For the purposes hereof, the term “average” shall mean the arithmetic mean. In no event shall the hotel be used for residential purposes, including, without limitation, as a permanent residence, multi-family residence or rooming house. If any guest of the hotel uses the hotel as his/her residential address for purposes of receiving mail, registering to vote, enrolling children in school or any other purpose, The Owner agrees, immediately upon being informed of same, to notify the guest that such use is not permitted. If the guest does not discontinue use/designation of the hotel as his/her residential address, the Owner agrees to immediately require the guest to check out of the hotel and shall not allow such person to return as a guest of the hotel. No services commonly associated with transitional housing or short term residential studio units, including without limitation provision of case management or counseling, may be provided to hotel clients on site. The Owner agrees that it shall not agree to accept transitional housing placements or any similar placement in the hotel.

3.  Food Preparation Facilities. The food preparation equipment in each of the rooms of the hotel shall be limited to only the following: (a) in 25 rooms, there may be a microwave (without convection oven function), vent hood, garbage disposal, dishwasher, and refrigerator of up to 15.5 cubic feet in size; (b) in the remaining 145 rooms, there may be all of the foregoing equipment as well as a two-burner cooktop (not larger in dimension than sufficient for two pots or pans) up to 2500 watts each. No portable food preparation equipment, including without limitation hot plates, shall be provided to guests.

4.  Hotel Amenities. The Owner shall provide at least sixty (60) days advance written notice to the Building Inspector and the Zoning Board of Appeals (copies to the Town’s Planning Director and Town Moderator) in the event that any of the following amenities shall no longer be available at the hotel: indoor swimming pool, fitness center, corporate and event function space (approximately 1,000 square feet), business center for professional travelers, a kitchen which will serve breakfast daily to hotel patrons. No such amenity may be removed from the hotel without the prior vote of approval by the Zoning Board of Appeals. If at any time the full-service restaurant in the adjacent commercial condominium ceases to operate as a full-service restaurant that also provides room service to hotel patrons, the Owner shall take immediate steps to convert the kitchen and dining area within the hotel to a full-service restaurant that serves breakfast, lunch and dinner and provides a full room-service menu to hotel patrons. This shall be considered an interim measure only, and the Owner shall immediately develop a plan to restore the full-service restaurant within the adjacent commercial condominium. The Owner shall engage in a dialogue with the Building Inspector and the Zoning Board of Appeals regarding its plan to restore such service. If, at any time, the Building Inspector and/or Zoning Board of Appeals determine that the Owner is not taking adequate steps to implement the interim measure of upgrading the hotel kitchen/dining facilities and/or formulating and implementing a permanent plan restore full restaurant service, the Town may pursue its enforcement rights set forth herein and/or available at law or in equity, including without limitation revocation or suspension by the Building Inspector of the occupancy permit(s) for the hotel.

5.  Marketing. To ensure that the hotel is used solely for the purposes permitted hereunder, any marketing materials used or distributed with regard to the hotel (apart from franchisor’s standard marketing materials) shall disclose that the hotel does not provide residences (notwithstanding that the hotel name may use the word “residence”), but provides only hotel-room or hotel-suite accommodations for hotel (and not residential) occupancy. The Owner shall provide the Board with pre-opening copies of its marketing materials, and shall, forthwith after one (1) full calendar year of operation and for each year thereafter, provide the Board with both its then-current marketing materials and a written report based on its guest log on the number of guests (but not their names) and number of nights for each unit/room. If marketing or occupancy history indicates that the hotel is marketed and/or used for other than transient occupancy, the Owner shall revise its marketing materials and business practices to the reasonable satisfaction of the Board so as to ensure compliance with the terms hereof.

6.  Reporting/Record Retention. Owner shall, on a quarterly basis, provide to the Town’s Building Inspector a report for the preceding twelve-month period, based on the guest log and any other records available to them, detailing the average number of nights stayed per guest, the number of guests (but not their names) and number of nights stayed (both consecutive and cumulative) by each guest. The report shall provide a numerical or other identifiable designation for each guest, without providing the guest’s name, and such designation shall be consistent for each guest in each such report. Each report shall be provided in electronic form, and the Owner shall notify the Town’s Planning Director and Town Moderator when each report is submitted to the Building Inspector.

All records upon which the quarterly reports are based shall be retained for a period of at least two years. The Building Inspector shall have the right to review such records to evaluate the accuracy of the quarterly reports. The Town shall also have the right to retain an independent auditor of its choosing to review such quarterly reports. The Owner shall fully cooperate with such review.

7.  Easement. The Owner hereby grants the Town, including the BoardBuilding Inspector, the right to enter onto the Property and the hotel for the purpose of ensuring compliance with the terms hereof and taking any and all action as may be necessary or convenient to abate or cure any violation hereof.

8.  Default, Reimbursement. The Owner, for itself and its successors and assigns, covenants and agrees to reimburse the Town for any and all reasonable costs and expenses (including without limitation court costs and reasonable attorneys’ fees) incurred in enforcing this Covenant and/or in remedying or abating any violation thereof. The Owner shall pay the Town within thirty (30) days from the presentment of invoices therefor, and, should the payment not be made on time, the unpaid amount shall accrue interest at the rate of ten percent (10%) per annum, and the Town shall have the right to file a lien against the Property. Notwithstanding anything to the contrary contained herein, the Owner’s rights and obligations under this Covenant shall terminate upon the Owner’s transfer of its interest in the Property, except that liability for acts or omissions occurring prior to transfer shall survive the transfer.

9.  The Term. The covenants, rights, easements, liabilities, restrictions, agreements and obligations herein set forth shall run with the Property and any portion thereof and shall inure to the benefit of the Town and be binding upon the Owner and its successors and assigns for the Term. The “Term” shall commence on the date that this Covenant is filed with the Registry and shall terminate on the later of (a) the date on which the Property no longer requires the benefit of the Special Permit, as evidenced by a recorded release and/or termination of the same, or (b) in perpetuity. The Owner agrees that this Covenant shall be considered an “other restriction held by a governmental body,” as that term is used in G.L. c. 184, § 26, and thus not subject to the limitations on the enforceability of restrictions in G.L. c. 184, § 26-30. To the extent such restrictions are deemed subject to said statutes, this Covenant shall have a duration of fifty (50) years from the date that this Covenant is filed with the Registry, and may be renewed for a twenty (20)-year period by filing a notice of restriction prior to thirty (30) years from the date of imposition, as allowed by law, pursuant to G.L. c.184, §§23 & 26-30, as the same may be amended.

10.  Enforcement. The Town, acting by and through Board Building Inspector and/or the Board of Selectmen, shall have the right (but not the obligation) to enforce this Covenant by appropriate legal proceedings and to obtain injunctive and other equitable relief against any violations, it being agreed that the Town may have no adequate remedy at law, and this right shall be in addition to, and not in limitation of, any other rights and remedies available to the Town. Violation of any of any provision of this Covenant shall be grounds for revocation of any building permit or certificate of occupancy granted for the hotel. Prior to such revocation, the Building Inspector shall notify the Owner of such violation and give the Owner reasonable time, not to exceed thirty (30) days, to cure the violation. If, at the end of the said thirty (30) day period, the Owner has not cured the violation, or in the case of violations requiring more than thirty (30) days to cure, has not commenced the cure and prosecuted the cure continuously and expeditiously, the Zoning Board of Appeals may hold a hearing, upon seven (7) days written notice to the Owner, in order to determine whether the failure to abide by the conditions contained herein should result in a recommendation to the Building Inspector to revoke any building permit or certificate of occupancy for the hotel. The Building Inspector need not await such recommendation before taking such action, provided the Owner has been afforded the opportunity to cure set forth herein.Notwithstanding the foregoing, the Town agrees that, except in the event of an emergency, it shall not bring an action against the Owner unless the Town has informed the Owner in writing of the default and the Owner fails to cure the same within thirty (30) days from the date of the Town’s notice. These provisions are not intended to limit or curtail the Town’s other remedies, at law or in equity, to enforce compliance with this Covenant, the Town’s Zoning Bylaws, and any other applicable state or local regulation, decision or order.