This document should be returned after recording to:
Xxxxx XxXxxx
Berkshire Mortgage Finance
Xxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Second Modification Agreement
This Second Modification Agreement (the "Agreement") is made and entered into as
of the day of December 1999 by and among XXXXX GOVERNMENT INCOME TRUST, a
Massachusetts business trust ("GIT"); BERKSHIRE MORTGAGE FINANCE CORPORATION, a
Massachusetts corporation (the "First Mortgagee"); LIFESTYLES AT BOOT RANCH, a
Florida general partnership (the "Partnership"); and M&D Palm Harbor
Partnership, a Florida partnership, and FL-TAMPA, Inc., a Florida corporation
(collectively, the "Partners" or "Borrowers").
W I T N E S S E T H:
WHEREAS, Xxxxx Mortgage Corporation, now known as Berkshire Mortgage Finance
Corporation (the "First Mortgagee") made a mortgage loan to the Partnership in
the principal sum of Ten Million Three Hundred Thousand One Hundred and No/100
Dollars ($10,300,100) which loan was coinsured by the U.S. Department of Housing
and Urban Development (the "Coinsured Loan");
WHEREAS, the Coinsured Loan was made with respect to Lifestyles at Boot Ranch
Apartments (the "Project") located on the land described in Exhibit A hereto
attached (the "Project") and the terms of the following Coinsured Loan
documents:
A. The Coinsured Loan is evidenced by a certain Mortgage Note (the "Coinsured
Note") dated December 11, 1990 from the Partnership to the First Mortgagee
in the original principal sum of $10,300,100.00;
B. The repayment of the indebtedness evidenced by the Coinsured Note is
secured by, among other things, (i) a Mortgage dated December 11, 1990 and
recorded in the Official Records of Pinellas County, Florida in Book 7446,
Page 1133 (the "Coinsured Mortgage"); (ii) a Regulatory Agreement dated
December 11, 1990 (the "Regulatory Agreement") and recorded in the Official
Records of Pinellas County, Florida in Book 7446, Page 1140 (the Coinsured
Note, Coinsured Mortgage and Regulatory Agreement are collectively referred
to as the "First Mortgage Loan Documents")
WHEREAS, the First Mortgagee obtained funding for the Coinsured Loan through the
purchase of a GNMA MBS by GIT. The interest rate on the Coinsured Loan was below
the then-prevailing interest rates for comparable loans and securities and GIT
was unwilling to participate in the Coinsured Loan unless the Partnership agreed
to pay additional interest to GIT;
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 December 11, 1990 and recorded in the Official
Records of Pinellas County, Florida in Book 7447, Page 1096 (the Subordinated
Note and Subordinated Mortgage are collectively referred to as the
"Participating Loan Documents");
WHEREAS, the Partners have executed an Additional Loan Agreement and a
Additional Loan Note evidencing an Additional Loan in the principal sum of One
Million Eight Hundred Seventeen Thousand Six Hundred Sixty-five and No/100
Dollars ($1,817,665.00) (the "Additional Loan"), which Additional Loan is
secured by Pledge and Security Agreements and UCC financing statements with all
documents dated December 11, 1990 (collectively, the "Additional Loan
Documents");
WHEREAS, the Additional Loan Agreement was amended in the Addendum to Additional
Loan Agreement executed by the Partners and GIT on May 14, 1992;
WHEREAS, the Project experienced financial difficulties and the Partnership and
the Partners requested assistance from GIT in regards to their obligations under
the Coinsured Loan Documents, the Participating Loan Documents and the
Additional Loan Documents;
WHEREAS, the Partnership, Partners, the First Mortgagee and GIT executed a
Modification Agreement dated August 1, 1996 (the "1996 Modification Agreement")
that provided debt service relief on the Coinsured Loan for two years ending
December 31, 1997, that changed the payment obligations under the Additional
Loan Documents, and that changed the participation features of the Participating
Loan Documents for that period;
WHEREAS, the Project has continued to experience financial difficulties and the
Partnership and the Partners have requested additional assistance from GIT in
regards to their obligations under the Coinsured Loan Documents, the
Participating Loan Documents and the Additional Loan Documents;
WHEREAS, the Partnership, the Partners, the First Mortgagee and GIT have agreed
to further modify the Subordinated Note, the Additional Loan Agreement and the
Additional Loan Note based on GIT's providing the financial assistance described
herein, and
WHEREAS, the Partnership, the Partners, the First Mortgagee and GIT have reached
an agreement to the terms and conditions of the financial assistance which is
set forth herein.
NOW THEREFORE, in consideration of the foregoing, Ten and No/100 Dollars
($10.00) in hand paid to GIT and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound, the Partnership, the Partners, the First Mortgagee and GIT hereby agree
as follows:
1. Recitals Incorporated. The foregoing Recitals are hereby incorporated
herein to the same extent as if hereafter fully set forth.
2. Coinsured Loan Default. The Coinsured Loan must be fully reinstated
concurrent with the execution of this Agreement. All delinquent principal,
interest, escrow deposits and late charges then owing to the First
Mortgagee must be paid in full through the date of execution.
3. Interest Rebate. The Partnership shall continue to make monthly debt service
payment in accordance with the Coinsured Note. Retroactively to January 1, 1998
and during the period of the next ten years thereafter (the "Workout Term"), GIT
will rebate monthly to the Partnership the difference between (i) the interest
rate payable under the Coinsured Note (i.e., 8.5% per annum) and (ii) the rate
indicated for each of the following calendar years during the Workout Term
(collectively, the "Modified Rate"):
Calendar Year Modified Rate
1998 6.75%
1999 6.75%
2000 7.00%
2001 7.00%
2002 7.00%
2003 7.00%
2004 7.00%
2005 7.00%
2006 7.00%
2007 7.00%
4. Partnership and/or Partners' New Equity Contribution. The Partnership
and/or the Partners will provide upon execution of this Agreement an equity
contribution of $550,000 to be deposited in an interest-bearing escrow
account controlled by GIT. Withdrawals from the escrow account may be used
solely for Project repairs and replacements mutually agreed to by the
managing general partner of the Partnership and GIT.
5. Additional Interest under the Subordinated Note. Paragraph 1 of the
Subordinated Note, Payment of Additional Interest appearing on pages two,
three and four, is hereby deleted in its entirety. The following is
substituted in lieu thereof.
1. Additional Interest. The Maker covenants and agrees to pay the Holder
"Additional Interest" which shall mean and include "Participating Income
Interest" and "Participating Appreciation Interest" as defined below. All
payments of Participating Income Interest made by the Maker to the Holder under
this Subordinated Note shall be calculated in accordance with the provisions of
this Paragraph 1 and shall be applied towards those amounts due to the Holder,
GIT, under the Additional Loan Documents. Notwithstanding anything to the
contrary contained or implied in the preceding sentence, the Maker shall be
obligated only for payments of Additional Interest pursuant to this Subordinated
Note and shall not be in any way directly liable for making payments under the
Additional Loan Note, except for the guarantee specifically providing for under
Section 8.N. of the Additional Loan Agreement.
A. Participating Income Interest. Participating Income Interest shall mean
fifty percent (50%) of the following:
(i) all distributable Surplus Cash, as that term is defined in the
Regulatory Agreement, subject, however, to the extent then applicable, to the
provisions of Paragraph 4 herein relating to Surplus Cash and the requirement in
the Regulatory Agreement that Surplus Cash may only be distributed at the end of
a semiannual or annual fiscal year, (except for proceeds of refinancing,
casualty insurance proceeds, and capital contributions to the Maker from any
Partner);
(ii) any unrestricted cash of the Maker generated from the operation of the
Project; and
(iii) any balance in reserve or escrow accounts not used to satisfy closing
prorations or paid to a third party for the purpose of such escrow.
Solely for the purpose of calculating Participating Income Interest, any
management fees in excess of 4% gross income, or such higher management fee as
HUD or the Lender may determine to be necessary in order to obtain proper
management of the Project, shall not be recognized as a deduction from the
Maker's distributable Surplus Cash or unrestricted cash in determining
Participating Income Interest.
Participating Income Interest shall be deemed to be earned on an annual basis,
concurrent with the calculation period for Surplus Cash, beginning with the
first full fiscal year after the execution of this Agreement. Participating
Income Interest, to the extent it is earned, shall be payable annually to the
Holder within 90 days of the end of any fiscal year in which Surplus Cash has
been generated. In order to verify the accuracy of the computation of
Participating Income Interest, Holder may review the Maker's books and records
during normal business hours upon three (3) days' notice. Maker also shall
submit to the Holder monthly unaudited and annual audited financial statements
and shall submit to the Holder all financial statements submitted to the Lender.
B. Participating Appreciation Interest. Participating Income Interest shall mean
and include,
(i) in the event of a Sale or a Refinancing, Net Proceeds from the Sale or
Refinancing Transaction allocated as follows (all terms as hereinafter
defined):
(a) xxxx xxxxx 50% to the Maker and 50% to the Holder up to an aggregate of
the first $1,100,000 of Net Proceeds,
(b) xxxx xxxxx 25% to the Maker and 75% to the Holder up to an aggregate of
the next $1,690,220 of Net Proceeds, and
(c) xxxx xxxxx 50% to Maker and 50% to the Holder of any remaining Net
Proceeds; or
(ii) upon the Accelerated Maturity Date or upon acceleration pursuant to
Paragraph 1.D. below, an allocation of the Value over the Outstanding
Indebtedness as follows (all terms as hereinafter defined):
(a) xxxx xxxxx 50% to the Maker and 50% to the Holder up to an aggregate of
the first $1,100,000 of Net Proceeds,
(b) xxxx xxxxx 25% to the Maker and 75% to the Holder up to an aggregate of
the next $1,690,220 of Net Proceeds, and
(c) xxxx xxxxx 50% to Maker and 50% to the Holder of any remaining Net
Proceeds.
"Sale" means any bona fide sale, transfer, conveyance, assignment, exchange,
liquidation or other disposition for value to a third party or parties of the
Project or of 10% or more of the beneficial interest in the Maker, including a
transfer as described in Section 6.0 below. Any sale to a "Related Party" or
"Affiliate" must receive the prior
written approval of the Holder. A "Related Party" includes, without limitation,
any spouse, brother, sister, parent, child or grandchild or the Maker or general
partner of the Maker. An "Affiliate" means, as to the Maker, any individual or
entity (i) that directly or indirectly controls or is controlled by or is under
common control with the Maker, (ii) that is an officer of, partner in or trustee
of, or serves in a similar capacity with respect to the Maker of which the Maker
is an officer, partner or trustee, or with respect to which the Maker serves in
a similar capacity, or (iii) that is the beneficial owner, directly or
indirectly, of 10% or more of any class of equity securities of the Maker or of
which the Maker is directly or indirectly the owner of 10% or more of any class
of equity securities.
"Refinancing" means the payment in full of the Coinsured Loan prior to the
Maturity Date from the proceeds of a loan or loans secured by the Project or
loans secured by a pledge of any beneficial interest in the Project or the
Maker.
"Net Proceeds from a Sale or Refinancing Transaction" means,
(i) in the case of a Sale, all consideration paid in connection with a Sale of
the Project including the stated purchase price, cash, notes, interest on
any deferred portion of the purchase price and the value of any and all
other consideration for or with respect to the Project, direct or indirect,
and whether paid to the Maker or to any other person or party, less (a)
prorations and reasonable selling expenses including reasonable independent
third party broker's commissions, (b) title searches, (c) survey costs, (d)
recording costs, escrowed charges and transfer taxes, and (e) reasonable
attorneys' fees paid by Maker in connection with such Sale, or
(ii) in the case of a Refinancing, "Value" less "Outstanding Indebtedness" and
(a) points paid by the Maker as origination fees on the loan, (b)
reasonable underwriting expenses paid by the Maker, including appraisal,
engineering, environmental and survey fees, and (c) reasonable attorneys'
fees paid by the Maker to close the loan.
"Outstanding Indebtedness" means:
(i) the unpaid principal balance of the Coinsured Loan and all accrued and
unpaid interest thereon;
(ii) any and all other sums then due and owing by the Maker to the Lender in
accordance with the Coinsured Mortgage, including, without limitation, (a)
all late charges and any applicable penalties, (b) all amounts which the
Lender may have advanced to pay obligations of the Maker under the
Coinsured Mortgage (including, without limitation, insurance premiums,
taxes, costs of maintenance and repair of the Project, title costs and
filing fees and charges), together with interest thereon at the rate
stipulated in the Coinsured Note, reduced by all insurance proceeds,
condemnation awards, or reserve or escrowed funds to which the Lender shall
then be entitled.
In connection with a Sale of a beneficial interest in the Maker that is greater
than 10% of the total beneficial interests in the Maker, the Outstanding
Indebtedness, as calculated in subparagraphs (i) and (ii) above shall be reduced
proportionately so that it
bears the same ratio to the total Outstanding Indebtedness that the amount of
the beneficial interest sold bears to the total of all of the beneficial
interests in the Maker.
"Value" of the Project shall be determined by an appraisal of the Project,
prepared not earlier than sixty (60) days prior to, as applicable, the Maturity
Date or the date of Refinancing. The appraisal shall be prepared by a qualified
M.A.I. appraiser selected by the Maker from a list of three M.A.I. appraisers
selected by the Holder. The determination of appraised value shall be based on
the then prevailing market rates for comparable multifamily rental space in the
same vicinity of the Project even if the actual rent then being paid is less
than the rental income of the Project shown in the appraisal. To determine the
highest appraised value, the appraisal shall separately specify:
(i) The Value of the Project assuming the Coinsured Loan may be assumed by
the purchaser of the Project with financing charge or expense imposed by the
Holder in connection with such assumptions (other than fees permitted by the
Secretary of HUD for approving a transfer of physical assets);
(ii) The Value of the Project assuming the Loan may not be assumed; and
(iii) The Value of the Project assuming conversion to condominium or
cooperative ownership, provided, however, that there is evidence satisfactory to
the Holder that there exists a market for condominium or cooperative conversions
in the area where the Project is located and taking into account an allowance
for reasonable costs incurred in connection with such conversion. In the absence
of such evidence, Value shall be determined in accordance with subparagraphs (i)
and (ii) above.
The Value established under (i) above may be utilized only if the Holder has not
elected to direct the Lender to declare the principal sum owing with respect to
the Coinsured Loan to be due and payable.
In the event either the Maker or Holder does not agree with the appraisal,
within ten (10) business days after receipt thereof, the party not agreeing with
the appraisal must notify the other party, and the Holder will arrange for
another appraisal of the Project by one of the other two M.A.I. appraisers on
the list, which appraisal must be completed and submitted to the Maker and
Holder within sixty (60) days.
If the second appraisal amount differs from the first appraisal amount by 5% or
less, the average of the two appraisals shall become the Value. If the second
appraisal differs from the first appraisal by more than 5% and the Maker and
Holder to not agree upon Value, within ten (10) days the two appraiser shall
select a third M.A.I. appraiser who shall review the two appraisals and within
thirty (30) days shall establish the Value.
The cost of the first appraisal shall be paid by the Maker. The cost of
subsequent appraisals will be divided equally between Maker and Holder.
C. Participating Appreciation Interest shall be deemed earned and payable on
the first to occur of (i) the date of Sale or Refinancing; (ii) the
Maturity Date or Accelerated Maturity Date, or (iii) a permitted prepayment
of all sums owed under this Subordinated Note and the Coinsured Note.
D. Notwithstanding the foregoing, in the event of a default by the Maker,
and upon the Holder's election, in its sole discretion, to accelerate
all amounts owned under this Subordinated Note, the Holder may obtain
the appraisal described above, and the Participating Appreciation
Interest, if any, owed to the Holder as a result of such appraisal
shall be due and payable within ten (10) days after a copy of the
completed appraisal is delivered to the Maker.
E. Notwithstanding any provision herein to the contrary, the Maker
expressly understands and agrees to pay to the Holder all Additional
Interest which has not been paid, when the Secretary of HUD or his
successors or assigns is no longer the coinsurer of the Coinsured
Loan.
6. Operating Loan Notes and Interest Advance. Principal and interest outstanding
for the following four (4) Operating Loan Notes and the Interest Advance
outstanding under the 1996 Modification Agreement shall be payable exclusively
from the amounts payable to Holder as Participating Appreciation Interest
pursuant to this Agreement. Any such payments shall be credited first against
accrued and unpaid interest due under the Operating Loan Notes, second against
principal due under the Operating Loan Notes, and third against the Interest
Advance outstanding under the 1996 Modification Agreement. The current principal
balances are:
Operating Loan Note dated September 1, 1993 $ 32,710
Operating Loan Note dated March 1, 1994 32,681
Operating Loan Note dated September 1, 1994 32,706
Operating Loan Note dated September 1, 1995 12,840
Interest Advance for 1996 101,458
Interest Advance for 1997 101,003
Total Current Outstanding Principal $ 313,398
7. Acceleration of Maturity Date. The first paragraph of Paragraph 3.A. of the
Subordinated Note, Acceleration of Maturity appearing at the top of page five,
is hereby deleted and the following is substituted therefore.
At any time on or after the 14th anniversary of Final Endorsement, namely, June
14, 2006, the Holder of this Subordinated Promissory Note may, in its sole
discretion, upon not less than twelve (12) calendar months written notice to the
Maker, accelerate the Maturity Date ("Accelerated Maturity Date") of this
Subordinated Note:
8. General Provisions of Subordinated Note. The first sentence of Paragraph 6.C.
is hereby deleted in its entirety and the following substituted in lieu thereof.
C. Notwithstanding anything to the contrary contained in the Subordinated
Note, payment of Participating Income Interest shall be due and
payable within 90 days of the end of any fiscal year in which Surplus
Cash was generated.
9. Additional Loan Interest. Paragraph 1.(b) of the Additional Loan Agreement is
hereby deleted in its entirety and the following substituted in lieu thereof.
(b) Additional Loan Interest shall mean Base Interest as described in
Paragraph 1.(e).
10. Base Interest on Additional Loan. Section 1.(e) of the Additional Loan
Agreement is hereby deleted in its entirety and the following substituted in
lieu thereof:
(e) "Base Interest" shall mean any surplus cash earned by the Holder in
any calendar year and characterized as Participating Income Interest
in accordance with the terms of the Subordinated Note.
11. Capital Calls. Paragraph 1.(f) of the Additional Loan Agreement is hereby
deleted in its entirety.
12. Preferred Interest on Additional Loan. Section 1.(n) of the Additional Loan
Agreement is hereby deleted in its entirety. Any subsequent references to
Preferred Interest within the Additional Loan agreement are hereby deleted as
well.
13. Payment of Additional Loan. Section 2 of the Additional Loan Agreement is
deleted in its entirety and the following substituted in lieu thereof:
Borrowers hereby jointly and severally covenant and agree to pay all obligations
under the Additional Loan Note and this Agreement, including without limitation,
principal and Base Interest to the Holder in accordance with the terms of the
Additional Loan Note.
A. Base Interest shall be payable from any surplus cash received by the
Holder pursuant to the Subordinated Note and characterized therein as
Participating Income Interest but credited as Base Interest under the
Additional Loan Note.
B. Principal shall be due and payable in the manner set forth in the
Additional Loan Note.
14. Payment Shortfalls/Capital Calls. Section 3 of the Additional Loan Agreement
is deleted in its entirety.
15. Acceleration of Payment Date. Section 6.A. of the Additional Loan Agreement
is hereby deleted in its entirety and the following substituted in lieu thereof:
A. At any time on or after the 14th anniversary date of the Final
Endorsement, namely, June 14, 2006, the Holder of this Additional Loan
Agreement may, in its sole discretion, upon not less than twelve (12)
calendar months written notice to the Borrowers, accelerate the
Payment Date of the Additional Loan Note.
16. Additional Loan Note. The first paragraph of the Additional Loan Note shall
be deleted in its entirety and the following substituted in lieu thereof:
FOR VALUE RECEIVED, FL-TAMPA, INC. AND M&D PALM HARBOR PARTNERSHIP
(collectively, the "Borrowers") jointly and severally promise to pay to the
order of Xxxxx Government Income Trust, a Massachusetts business trust organized
and existing under the laws of Massachusetts ("Holder") or order, as it
principal place of business at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or
at such other place as may be designated in writing by Holder, the principal sum
of One Million Eight Hundred Seventeen Thousand Six Hundred Sixty-Five and
No/100 Dollars ($1,817,665.00) together with Base Interest as that term is
defined in and computed in Subsections 1(e) of the Additional Loan Agreement
executed between Holder and Borrowers of even date herewith and attached hereto
and made a part hereof (the "Additional Loan Agreement") as follows:
A. Unless otherwise accelerated as provided herein or in the Additional
Loan Agreement, the outstanding principal balance shall be payable on
the earlier of the 15th anniversary of the Final Endorsement, namely
May 14, 2007 (the "Payment Date").
B. Base Interest shall be payable in annual installments equal to the
Holder's share of Surplus Cash payable as Participating Income
Interest in accordance with the Subordinated Note, within 90 days of
the end of each fiscal year in which Surplus Cash is generated.
C. This Note may be prepaid in full without prepayment penalty so long as
any amounts due under the Coinsured Note and the Subordinated
Promissory Note have been paid in full at the time of such prepayment.
17. Certain Definitions. All capitalized terms unless defined herein shall have
the same meaning as those terms are defined in the Subordinated Note, the
Additional Loan Agreement and the Additional Loan Note.
18. Notice Requirements.
(a) All notices and other communications required or permitted under this
Agreement shall be in writing and, if mailed by prepaid United States
first-class, certified mail, return receipt requested, at any time other than a
general discontinuance of postal service due to strike, lockout or otherwise,
shall be deemed to be received on the earlier of the date shown on the return
receipt or three (3) business days after the postmarked day thereof. In
addition, notices hereunder may be delivered by hand or by overnight courier, in
which event the notice shall be deemed effective when delivered. All notices and
other communications under this Agreement shall be given to the parties hereto
at the following addresses:
If to the Partnership or Partners:
c/o Forest City Enterprises
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
If to the Partners:
FL-Tampa, Inc.
c/o Forest City Enterprises
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
M&D Palm Harbor, Inc.
0000 X. Xxxxxxxxx Xxx., Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
If to the First Mortgagee:
Berkshire Mortgage Finance Corporation
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to GIT:
c/o Berkshire Mortgage Finance Corporation
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to
Peabody & Xxxxx
Suite 800
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxx, Esquire
(b) Any party hereto may change the address to which notices shall be
directed under this paragraph 17 by giving ten (10) days written notice of such
change to the other parties.
19. Loan Documents Not Impaired. Except as expressly set forth herein with
respect to the Subordinated Note, the Additional Loan Agreement and the
Additional Loan Note, the agreements set forth herein are not intended to affect
or alter the obligations of the Partnership and the Partners under the First
Mortgage Documents, the Subordinated Loan Documents or Additional Loan Documents
and this Agreement shall not be construed as a novation, renegotiation or
release under any of these documents.
20. Representations of Borrower. The Partnership and Partners hereby acknowledge
and confirm with the First Mortgagee and GIT that:
(i) They have no offset, counterclaim or defense with respect to the
obligations under the First Mortgage Loan Documents, the Subordinated Loan
Documents or Additional Loan Documents and to the extent that they have any
offset, counterclaim or defense with respect to the obligations thereunder, they
hereby waive and release such offset, counterclaim and defense.
(ii) The Partnership and Partners ratify and affirm all obligations under
the First Mortgage Loan Documents and the Subordinated Loan Documents and the
Additional Loan Documents.
(iii) Except for the matters expressly set forth herein, the Partnership
and the Partners hereby release and forever discharge the First Mortgagee and
GIT and all its directors, officer, employees, administrators, agents,
subsidiaries, affiliates, appraisers, inspectors, accountant, attorneys,
successors and assigns from any and all present existing causes of action,
demands, claims, debts, accounts, liabilities, costs, expenses, contracts,
promises, agreements and damages whatsoever (hereinafter referred to
individually and collectively as the "Claims") which related to the First
Mortgage Loan Documents, the Subordinated Loan Documents, the Additional Loan
Documents and also including without limitation any and all claims arising out
of or relating to the exercise by the First Mortgagee and GIT of any rights
pursuant thereto.
21. Representation of the First Mortgagee and GIT. The First Mortgagee and GIT
hereby acknowledge that all payment obligations identified in this Agreement,
First Mortgage Loan Documents, the Subordinated Loan Documents, and the
Additional Loan Documents are nonrecourse.
22. Execution in Counterparts. This Agreement may be signed in counterparts by
the parties and shall be effective upon the signature of the second party to
sign the Agreement.
23. Binding Effect. The terms and provisions of this Agreement shall be binding
upon the parties hereto and their heirs, successors and assigns.
24. Time is of the Essence. Time is of the essence in this Agreement.
25. Governing Law. This Agreement shall be construed under the laws of the State
of Florida and if any provisions of this Agreement are held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, then such
illegality, invalidity or unenforceability shall not affect the legality,
validity or enforceability of the other provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned parties have caused this instrument to be
executed as of the day, month and year first written above.
PARTNERSHIP:
Lifestyles at Boot Ranch, a Florida general partnership
By: FL-Tampa, Inc. a Florida corporation, general partner
By:
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
By: M&D Palm Harbor Partnership, a Florida partnership,
general partner
By:
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
PARTNERS:
FL-Tampa, Inc., a Florida corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
M&D Palm Harbor Partnership, a Florida partnership
By:
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
GIT:
Xxxxx Government Income Trust, a Massachusetts business trust
By: Berkshire Mortgage Advisors Limited Partnership, its Advisor
By: BRF Corporation, its general partner
By:
Name: Xxxxx X.X. Xxxxx
Title: Vice President
FIRST MORTGAGEE:
Berkshire Mortgage Finance Corporation
By:
Name: Xxxxx X.X. Xxxxx
Title: Vice President
COUNTY OF: Cuyahoga
STATE OF OHIO
The foregoing instrument was acknowledged before me this __th day of December
1999 by Xxxxx X. Xxxxxxxx, Executive Vice President of FL-Tampa, Inc., a
Florida corporation, a general partner of Lifestyles at Boot Ranch, a Florida
general partnership, on behalf of said partnership.
WITNESS my hand and Notarial Seal.
Xxxxxxxx X. Xxxxxxxxx
NOTARY PUBLIC, State of Ohio
Recorded in Cuyahoga County
My Commission Expires Mar.17,2002
My Commission Expires:
COUNTY OF: Hillsborough
STATE OF: Florida
The foregoing instrument was acknowledged before me this __th day of December
1998 by Xxxxxxx X. Xxxxxx, General Partner of M&D Palm Harbor,
Inc., a Florida corporation, a general partner of Lifestyles at Boot Ranch, a
Florida general partnership, on behalf of said partnership.
WITNESS my hand and Notarial Seal.
Xxxx Xxx Xxxxx
NOTARY PUBLIC, State of Florida
Commission # CC 783993
Expires NOV.19,2002
Bonded Thru Atlantic Bonding Co.,Inc.
My Commission Expires:
COUNTY OF SUFFOLK
COMMONWEALTH OF MASSACHUSETTS
The foregoing instrument was acknowledged before me this __th day of December
1998 by Xxxxx X.X. Xxxxx, Vice President of BRF Corporation, general partner of
Berkshire Mortgage Advisors Limited Partnership, advisor to Xxxxx Government
Income Trust, a Massachusetts business trust, on behalf of said trust.
WITNESS my hand and Notarial Seal.
Xxxxxxx X. Xxxxxxxx
NOTARY PUBLIC
My Commission Expires: March 13, 0000
XXXXXX XX XXXXXXX
XXXXXXXXXXXX XX XXXXXXXXXXXXX
The foregoing instrument was acknowledged before me this __th day of December
1998 by Xxxxx X.X. Xxxxx, Vice President of Berkshire Mortgage Finance
Corporation, a Massachusetts corporation, on behalf of said corporation.
WITNESS my hand and Notarial Seal.
Xxxxxxx X. Xxxxxxxx
NOTARY PUBLIC
My Commission Expires: March 13, 2003
