Exhibit 10.1
THIRD MODIFICATION AGREEMENT
This Third Modification Agreement is made and entered into as of the 8th day of
September 2003 by and among XXXXX GOVERNMENT INCOME TRUST, a Massachusetts
business trust ("GIT"); MOUNTAIN VIEW, LTD., and Alabama limited partnership
(the "Partnership"); and Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
(collectively, the "Partners").
WHEREAS, the Partnership agreed to pay additional interest to GIT pursuant to a
subordinated promissory note (the "Subordinated Note") made by the Partnership
in favor of GIT, which is secured by a subordinated multifamily mortgage (the
"Subordinated Mortgage") dated April 21, 1992 (collectively, the "Subordinated
Loan Documents");
WHEREAS, the Partners have executed an Additional Loan Agreement and an
Additional Loan Note evidencing additional indebtedness of the Partners to GIT
of One Million Five Hundred Fifty Three Thousand Six Hundred and no/100 Dollars
($1,553,600.00) (the "Additional Loan"), which Additional Loan is secured by
Pledge and Security Agreements and UCC financing statements with all documents
dated April 21, 1992 (collectively, the "Additional Loan Documents");
WHEREAS, certain terms of the Subordinated Loan Documents and the Additional
Loan Documents have been modified in the Modification Agreement dated July 1,
1995 and the Second Modification Agreement dated June 28, 1999 (collectively,
the "Modification Agreements");
WHEREAS, in accordance with the terms of the Subordinated Loan Documents, the
Additional Loan Documents, and the Modification Agreements, the Additional Loan
Note matures and is due and payable in full on the tenth anniversary of the
Final Endorsement, which is September 16, 2003;
WHEREAS, the undersigned parties have mutually agreed to extend the maturity
date of the Additional Loan Note all as hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, intending to be legally bound,
the undersigned parties hereby agree as follows:
1. Extension of Additional Loan Note
Section A of the Additional Loan Note is hereby amended to read in its entirety
as follows:
Unless otherwise accelerated as provided herein or in the Additional Loan
Agreement, the outstanding principal balance shall be payable on December 31,
2004 (the "Payment Date").
2. Conditions Precedent
Notwithstanding any contrary provision, this Third Modification Agreement is not
effective unless and until GIT receives counterparts of this document executed
by each party named on the signature page or pages of this document and this
document has been executed and delivered by GIT.
3. Ratifications
To induce GIT to enter into this Third Modification Agreement, the Partnership
and the Partners (a) ratify and confirm all provisions of the Subordinated Loan
Documents, the Additional Loan Documents and the Modification Agreements as
amended by this document, (b) ratify and confirm that all guaranties,
assurances, and Liens (as defined in the Subordinated Loan Documents, the
Additional Loan Documents and the Modification Agreements) granted, conveyed or
assigned to GIT under the Subordinated Loan Documents, the Additional Loan
Documents and the Modification Agreements (as they have been renewed, extended,
and amended) are not released, reduced, or otherwise adversely affected by this
document and continue to guarantee, assure, and secure full payment and
performance of the present and future indebtedness arising hereunder, and (c)
agree to perform those acts and duly authorize, execute, acknowledge, deliver,
file, and record those additional documents as GIT may request in order to
create, perfect, preserve, and protect those guarantees, assurances, and Liens.
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4. Representations
To induce GIT to enter into this Third Modification Agreement, the Partnership
and Partners represent and warrant to GIT that as of the date of this document
(a) the Partnership and Partners have all requisite authority and power to
execute, deliver and perform their respective obligations under this document,
which execution, delivery, and performance have been duly authorized by all
necessary actions, require no action by or filing with any governmental
authority, do not violate any of the Partnership's organizational documents or
violate any law applicable to any of the Partnership's or Partners' or any
material agreement to which they or their assets are bound, (B) upon execution
and delivery by all parties to it, this documents will constitute the
Partnership's and Partners' legal and binding obligation, enforceable against
each of them in accordance with this document's terms except as that
enforceability my be limited by debtor relief laws and general principles of
equity, (c) all other representations and warranties in the Subordinated Loan
Documents, the Additional loan Documents, and the Modification Agreements are
true and correct in all material respects except to the extent that any of them
speak to a different specific date, and (d) no Default or Event of Default
exists.
5. Miscellaneous
Except as specifically amended and modified in this Third Modification
Agreement, the Subordinated Loan Documents, the Additional Loan Documents and
the Modification Agreements are unchanged and continue in full force and effect.
The parties hereto have caused this Third Modification Agreement to be duly
executed as of the date first written above.
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PARTNERSHIP:
Mountain View LTD,. An Alabama
limited partnership
By:
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
PARTNERS:
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
GIT:
Xxxxx Government Income Trust, a
Massachusetts business trust
By: Berkshire Mortgage Advisors
Limited Partnership, its Advisor
By: BRF Corporation, a general partner
By:
/s/ Xxxxx X. X. Xxxxx
------------------------------------
Name: Xxxxx X.X. Xxxxx
Title: Vice President
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