Exhibit 10.3
Recorded 6/30/99 with the Xxxxxxx Registry in Book 1538, Page 717
FIRST MODIFICATION OF MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
THIS FIRST MODIFICATION OF MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT (this "AGREEMENT") is entered into this 28 day of June,
1999, by and between BIRCH POND REALTY CORPORATION, a Delaware corporation
(doing business in the State of New Hampshire as BPRC), having its principal
place of business at 000 Xxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000
("MORTGAGOR"), and XXXX XXXXXXX REAL ESTATE FINANCE, INC., a Delaware
corporation having its principal place of business at Xxxx Xxxxxxx Xxxxx, X-00,
000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("MORTGAGEE").
R E C I T A L S:
WHEREAS, Mortgagee has extended a Loan (the "LOAN") to Mortgagor in the
original principal amount of $12,000,000.00; and
WHEREAS, the Loan is evidenced by that certain Mortgage Note dated
March 1, 1999 in the said principal amount, by Mortgagor to Mortgagee (the
"NOTE"); and
WHEREAS, the indebtedness evidenced by the Note is secured by, inter
alia: (i) that certain Mortgage, Assignment of Leases and Rents and Security
Agreement dated March 1, 1999, by Mortgagor to Mortgagee, and recorded in the
Xxxxxxx County Registry of Deeds (the "RECORDER'S OFFICE") in Book 1518 at Page
0596 (the "MORTGAGE"), encumbering certain real property located in the Town of
Tilton, County of Xxxxxxx and State of New Hampshire and the improvements
thereon; (ii) a certain Assignment of Leases and Rents dated March 1, 1999, by
Mortgagor to Mortgagee, and recorded in the Recorder's Office in Book 1518 at
Page 0680 (the "ASSIGNMENT"); (iii) a certain UCC-1 Financing Statement dated
March 3, 1999 and recorded in the Recorder's Office in Book 1518 at Page 0000
(xxx "XXXXX XXXX XXX"); and (iv) a certain UCC-1 Financing Statement dated
March 3, 1999 and recorded in the Recorder's Office in Book 1518 at Page 0000
(xxx "XXXX XXX"; the Birch Pond UCC and the BPRC UCC are sometimes collectively
referred to herein as the "UCCs"); and
WHEREAS, Mortgagor and Mortgagee now desire to amend the Mortgage to
correct certain provisions relating to the description of certain property to be
released, and to grant to Mortgagee as additional security certain easements
which affect the property encumbered by the Mortgage.
NOW THEREFORE, in consideration of the foregoing premises, and to
effectuate the terms and conditions of the Mortgage, Mortgagor and the Mortgagee
hereby agree as follows (all capitalized terms used herein, but not otherwise
defined, shall have the meaning assigned thereto in the Mortgage):
1. AMENDMENT OF MORTGAGE.
(a) Paragraph 72 of the Mortgage is hereby corrected as follows:
(i) The reference to "Lots 1 and 3" is hereby corrected to read
"Lots 2 and 3."
(iii) The title of the Subdivision Plan is hereby corrected
by substituting the following in its place and stead:
"Subdivision, Plan of Land Prepared for Birch Pond Realty
Corporation, Route 132 (Xxxxxxx Road) Tilton, NH" sheets 1 and
2 of 2, dated April 8, 1999 by Xxxxxx Surveying Consultants,
Laconia, NH, and certified by Xxxxx X. Xxxxxx on May 17, 1999,
which plan was recorded on May 12, 1999 in the Recorder's
Office in Drawer L31 as Plan No. 99 and 100.
(b) The Mortgage is hereby amended to include an alternative
description of the Land (as defined in the Mortgage) as set forth in
EXHIBIT A-1 attached hereto, which description is in addition to, and
not a replacement for, EXHIBIT A of the Mortgage. Exhibit A-1 also
incorporates and includes a description of the easements granted to
Mortgagee as described in Section 2 hereof.
2. GRANT OF EASEMENTS. To additionally secure the payment of the
Indebtedness, Mortgagor has mortgaged, given, granted, bargained, sold,
alienated, enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated
and by these presents does mortgage, give, grant, bargain, sell, alien, enfeoff,
convey, confirm, pledge, assign and hypothecate unto Mortgagee with MORTGAGE
COVENANTS and hereby grants unto Mortgagee a security interest in the following
property and rights, whether now owned by Mortgagor or held or hereafter
acquired by Mortgagor (which property shall be included in the definition of
"Mortgaged Property" in the Mortgage for all purposes): those certain easements
and rights benefitting or appurtenant to the Land or Mortgagor as set forth and
described in that certain Declaration of Easements and Restrictions dated June
28, 1999, made by Mortgagor which is, or will be recorded in the Recorder's
Office.
TO HAVE AND TO HOLD the above granted and described property into and
to the use and benefit of Mortgagee and the successors and assigns of Mortgagee
forever pursuant to and in accordance with the terms and conditions of the
Mortgage.
3. MISCELLANEOUS.
(a) The parties hereto hereby acknowledge and agree that, except as
provided in this Agreement, the Mortgage has not been
modified or amended, and the Mortgage, as amended by this
Agreement, remains in full force and effect.
(b) Mortgagor hereby warrants and represents that as of the date of
this Agreement (after giving effect to the transactions
contemplated by this Agreement), there are no defaults under the
Note or the Mortgage and Mortgagor has no defenses, counterclaims
or offsets to the payment or performance of any of its obligations
under the Note or the Mortgage. Without limiting the foregoing,
Mortgagor hereby ratifies and confirms every provision, covenant,
condition and obligation contained in and under the Note or the
Mortgage, as hereinbefore modified, which provisions, covenants,
conditions and obligations shall continue in full force and effect,
affected by this Agreement only to the extent of the amendments and
modifications set forth herein.
(c) All provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement as
of the date set forth above.
Witnessed:
/s/ Xxxxxxxx X. Xxxxxx BIRCH POND REALTY CORPORATION
------------------------------ (doing business in the State of New
Print Name: Xxxxxxxx Xxxxxx Hampshire as BPRC)
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------ ------------------------------------
Print Name: Xxxxxx Xxxxxx Name: Xxxx X. Xxxxxx
Title: Treasurer and Secretary
/s/ Xxxxxx Xxxxx XXXX XXXXXXX REAL ESTATE
------------------------------ FINANCE, INC., a Delaware corporation
Print Name: Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------ ------------------------------------
Print Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
STATE OF MASSACHUSETTS )
) SS.
COUNTY OF PLYMOUTH )
On this the 28th day of June, 1999, before me, Xxxxxxxx X. Xxxxxx, the
undersigned, personally appeared Xxxx X. Xxxxxx, who acknowledged herself to be
the Secretary/Treasurer of BIRCH POND REALTY CORPORATION, a Delaware corporation
(doing business in the State of New Hampshire as BPRC), and that she, as such
Secretary/Treasurer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by herself as Secretary/Treasurer.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name:
Notary Public
My Commission Expires: 4/1/05
[NOTARY SEAL]
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
On this the 28th day of June, 1999, before me, Xxxx X. Xxxxxx, the
undersigned, personally appeared Xxxxxxx X. XxXxxxxx, who acknowledged himself
to be the Vice President of XXXX XXXXXXX REAL ESTATE FINANCE, INC., a Delaware
corporation, and that he, as such Vice President, being authorized to do so,
executed the foregoing instrument for the purposes therein contained, by signing
the name of the corporation by himself as Vice President.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxx X.Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Notary Public
My Commission Expires: 2/04/05
[NOTARY SEAL]
