Exhibit 10.1
THIRD MODIFICATOIN TO THE ADDITIONAL LOAN AGREEMENT
Extension of and Third Modification to the Additional Loan Agreement and
Additional Loan Note
This Extension of and Third Modification to the Additional Loan Agreement and
Additional Loan Note dated as of September 1, 2002 is entered into among Xxxxxx
Xxxxx, an individual, Xxxxxxx Xxxxx, an individual and Xxxxx XX, Inc., a
Massachusetts corporation (collectively, the "Borrowers") and Xxxxx Government
Income Trust, a Massachusetts business trust (the "Holder").
Whereas, the Borrowers and the Holder have entered into the Additional Loan
Agreement (the "Agreement") dated December 28, 1990, the Additional Loan Note
(the "Note") dated December 28, 1990, the Modification Agreement dated May 1997
and the Extension of and Second Modification to the Additional Loan Agreement
and Additional Loan Note dated July 1, 2002 (the "Second Modification");
Whereas, in accordance with the terms of the Agreement, the Note, the
Modification Agreement and the Second Modification, unless extended, the terms
of the Agreement, the Note, the Modification Agreement and the Second
Modification expire on September 5, 2002;
Whereas, the Borrowers and the Holder have mutually agreed to extend the terms
of the Agreement, the Note, the Modification Agreement and the Second
Modification;
Now, therefore, for and 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, the parties hereto
hereby agree as follows:
1. Amendments. The Agreement, the Note, the Modification Agreement and
the Second Modification are amended as follows:
(a) Section A of the Note is amended to read in its entirety as
follows:
A. Unless otherwise accelerated as provided herein or in
the Additional Loan Agreement, the outstanding principal
balance shall be payable on December 31, 2002.
2. Conditions Precedent. Notwithstanding any contrary provision, this
document is not effective unless and until the Holder receives
counterparts of this document executed by each party named on the
signature page or pages of this document.
3. Ratifications. To induce the Holder to enter into this document, the
Borrowers (a) ratify and confirm all provisions of the Agreement,
the Note, the Modification Agreement and the Second Modification as
amended by this document, (b) ratify and confirm that all
guaranties, assurances, and Liens (as defined in the Agreement, the
Note, the Modification Agreement and the Second Modification)
granted, conveyed, or assigned to the Holder under the Agreement,
the Note, the Modification Agreement and the Second Modification (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 the Holder may request in order to create, perfect,
preserve, and protect those guaranties, assurances, and Liens.
4. Representations. To induce the Holder to enter into this document,
the Borrowers represent and warrant to the holder that as of the
date of this document (a) the Borrowers 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 corporate
action in the case of the corporate Borrower, require no action by
or filing with any governmental authority, do not violate any of the
corporate Borrower's organizational documents or violate any law
applicable to any of the Borrowers or any material agreement to
which they or their assets are bound, (b) upon execution and
delivery by all parties to it, this document will constitute the
Borrowers' legal and binding obligation, enforceable against each of
them in accordance with this document's terms except as that
enforceability may be limited by debtor relief laws and general
principles of equity, (c) all other representations and warranties
in the Agreement, the Note, the Modification Agreement and the
Second Modification 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
document, the Agreement, the Note, the Modification Agreement and
the Second Modification are unchanged and continue in full force and
effect.
The parties hereto have caused this Extension of and Third Modification to
the Additional Loan Agreement and Additional Loan Note to be duly executed as of
the date first written above.
Xxxxx XX, Inc., a Massachusetts corporation Xxxxx Government Income Trust,
A Massachusetts business trust
BY: /s/ Xxxxx X. Xxxxx By: Berkshire Mortgage Advisors
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Its: Executive Vice President Limited Partnership, its Advisor
By: BRF Corporation, its general
/s/ Xxxxxxx Xxxxx partner
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Xxxxxxx Xxxxx, an individual
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, an individual
