EXHIBIT 10.3
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Prepared By & Return To:
Xxxxxxx X. Xxxx, Esq. (bh)
XXXX XXXXXXXXX
000 X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
MORTGAGE MODIFICATION AND FUTURE ADVANCE AGREEMENT
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THIS AGREEMENT, executed this 26th day of November, 1997, by
and between NATIONSBANK, N.A., a National Banking Association, as
successor in interest to NATIONSBANK, N.A. (SOUTH) and
NATIONSBANK OF FLORIDA, N.A., herein called "MORTGAGEE", and
ELCOTEL, INC., a Delaware corporation, herein called "MORTGAGOR".
W I T N E S S E T H:
WHEREAS, Mortgagor being indebted to Xxxx X. Xxxxxxxxxx, as
Trustee of THE ELCOTEL MORTGAGE TRUST, under Declaration of Trust
dated September 27, 1993 (herein called "ASSIGNOR") executed and
delivered to the Mortgagee a certain note dated September 28,
1993, as evidence of said debt, and also executed and delivered a
Mortgage as security therefor of like date, said Mortgage being
recorded in Official Records Book 1416, Page 5745, Public Records
of Manatee County, Florida (the "Mortgage") which Mortgage
secures that certain promissory note dated September 28, 1993, in
the original principal amount of ONE MILLION AND NO/100 DOLLARS
($1,000,000.00) (the "Note"), and encumbers the property (the
"Property") more particularly described as follows:
Xxxx 0 xxx 00, Xxxxx XX, XXXXXXXX XXXXXX,
according to the plat thereof recorded in
Plat Book 22, Pages 77 through 79, Public
Records of Manatee County, Florida.
and
WHEREAS, Assignor has assigned the Note and Mortgage to
Mortgagee by Assignment of Mortgage dated May 20, 1994, recorded
in Official Records Book 1435, Page 4451, of the Public Records
of Manatee County, Florida; and
WHEREAS, the Mortgage was modified by Mortgage Modification
Agreement dated May 23, 1994, and recorded in Official Records
Book 1435, Page 4456, and by Mortgage Modification Agreement
dated August 31, 1995, and recorded in Official Records Book
1468, Page 2483, of the Public Records of Manatee County,
Florida; and
WHEREAS, Mortgagor has requested Mortgagee to modify the
terms of the Note and Mortgage and Mortgagee has agreed to modify
the Note and Mortgage in accordance herewith.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00)
paid by each party to the other, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, and the mutual covenants hereinafter set forth, the
parties jointly and severally hereby agree as follows:
1. The Mortgage evidences and secures an unpaid principal
indebtedness of THREE HUNDRED FIFTEEN THOUSAND ONE HUNDRED
SEVENTY THREE AND 80/100 DOLLARS ($315,173.80) on the date of
execution of this Agreement. Mortgagor acknowledges and
certifies that Mortgagor has no claim, demand or setoff
whatsoever against Mortgagee and that Mortgagor is justly
indebted to Mortgagee for the sums set forth above.
2. The maturity date of the Mortgage and the indebtedness
secured thereby is extended to November 26, 2002, as evidenced by
that certain Renewal Note dated of even date herewith in the
amount of THREE HUNDRED FIFTEEN THOUSAND ONE HUNDRED SEVENTY
THREE AND 80/100 DOLLARS ($315,173.80) (the "Renewal Note"),
which Renewal Note is secured by the Mortgage. The required
documentary stamps on the obligation evidenced by the Renewal
Note have been affixed to the Mortgage securing the original
indebtedness renewed hereby, recorded in Official Records Book
1416, Page 5745, Public Records of Manatee County, Florida.
3. Mortgagor hereby acknowledges execution and delivery to
Mortgagee of a ONE MILLION SIX HUNDRED FOUR THOUSAND EIGHT
HUNDRED TWENTY SIX AND 20/100 DOLLAR ($1,604,826.20) Note (the
"Future Advance Note") the maturity date of which is November 26,
2002, which is an obligation in addition to the indebtedness set
forth in paragraph 1, and is a future advance pursuant to and
secured by the Mortgage.
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4. The Renewal Note and the Future Advance Note are
consolidated by the terms of that certain Consolidation Note
dated November 26, 1997, in the amount of ONE MILLION NINE
HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($1,920,000.00) (the
"Consolidation Note") executed by Mortgagor and delivered to
Mortgagee, the maturity date of which is November 26, 2002, which
Consolidation and Renewal Note is secured by the Mortgage.
5. Mortgagor agrees that a default by Mortgagor on any
note, mortgage or other evidence of indebtedness held by
Mortgagee, shall at the option of Mortgagee also constitute a
default on any other note, mortgage or other evidence of
indebtedness held by Mortgagee.
6. It is the intent of the parties that this instrument
shall not constitute a novation and shall in no way adversely
affect the lien priority of the Mortgage or any other loan
documents delivered by Mortgagor to Mortgagee (collectively, the
"Loan Documents"). In the event that this Agreement, or any part
hereof, shall be construed by a court of competent jurisdiction
as operating to affect the lien priority of the Loan Documents
over the claims which would otherwise be subordinate thereto,
then to the extent that third persons acquiring an interest in
such property between the time of execution of the Loan Documents
and the execution hereof, are prejudiced thereby, this Agreement
or such portion hereof as shall be so construed, shall be void
and of no force and effect and this Agreement shall constitute,
as to that portion, a subordinate lien on the collateral,
incorporating by reference the terms of the Loan Documents, and
which Loan Documents then shall be enforced pursuant to the terms
therein contained, independent of this Agreement; provided,
however, that notwithstanding the foregoing, the parties hereto,
as between themselves, shall be bound by all terms and conditions
hereof until all indebtedness owing from the Mortgagor to the
Mortgagee shall have been paid in full.
7. In consideration of the Mortgagee renewing the
indebtedness set forth above, making the future advance, and
consolidating the indebtedness evidenced by the Consolidation
Note, Mortgagor hereby waives any and all claims, causes of
action and/or defenses against Mortgagee arising prior to the
execution of this Agreement and agrees to hold Mortgagee, its
employees, officers and agents harmless from all matters, claims
and liabilities existing or arising prior to the date hereof.
Mortgagor acknowledges, represents and warrants to Mortgagee that
Mortgagor has no offset or defenses to this Agreement, the
indebtedness evidenced by the Consolidation Note or the Loan
Documents.
8. State of Florida documentary stamps in the amount
required by law for the Renewal Note were affixed to the Mortgage
and were cancelled pursuant to law. Documentary stamps for the
Future Advance Note have been paid upon the recording of this
Mortgage Modification and Future Advance Agreement. The Renewal
Note qualifies for an exemption from payment of documentary
stamps under regulations adopted pursuant to Chapter 201, Florida
Statutes, and therefore, no additional documentary stamps are now
due or payable; however, in the event that the Department of
Revenue, its agents or employees, notifies either Mortgagor or
Mortgagee that the transaction which is the subject of this
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Mortgage Modification and Future Advance Agreement is subject to
payment of documentary stamp tax, intangible tax, or any other
such tax, then, in such event, Mortgagor agrees to immediately
remit to the Department of Revenue or to the Mortgagee the full
amount of such tax deemed to be due and payable as requested by
the Department of Revenue. Mortgagor may contest any liability
for such tax payment; however, any such contest shall be taken
solely at the election, cost, and expense of Mortgagor. The
liability of Mortgagor under this provision shall survive the
satisfaction of the obligations referenced hereunder. Any
failure of Mortgagor to comply with the terms and provisions of
this section shall constitute a default under the Renewal Note,
Mortgage, and all other loan documents executed in connection
therewith.
9. All references in the Mortgage to the "Note" shall be
deemed to include the Renewal Note, Future Advance Note, and the
Consolidation Note. All terms, covenants, and conditions of said
Mortgage remain unchanged except as specified above. This
Agreement shall not waive any right or remedy afforded Mortgagee
under said Mortgage. This Agreement shall be binding on the
parties, their heirs, personal representatives, successors and
assigns.
10. Restated Loan Agreement. In connection with this
Agreement, Mortgagor and Mortgagee have entered into that certain
Restated Loan Agreement dated November 26, 1997 (the "Restated
Loan Agreement"). Mortgagor agrees that a default by Mortgagor
under the Restated Loan Agreement shall be a default hereunder.
11. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG
THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT
OF OR RELATING TO THE MORTGAGE OR THIS MODIFICATION AGREEMENT OR
ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED
ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW). THE RULES
OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE
EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL.
JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS MODIFICATION AGREEMENT
MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS
MODIFICATION AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION
OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED
IN BRADENTON, FLORIDA, AND ADMINISTERED BY ENDISPUTE, INC., D/B/A
J.A.M.S/ENDISPUTE WHO WILL APPOINT AN ARBITRATOR; IF
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J.A.M.S./ENDISPUTE IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER,
THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED
TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN
ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THE MORTGAGE OR
THIS MODIFICATION AGREEMENT SHALL BE DEEMED TO (I) LIMIT THE
APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS MODIFICATION
AGREEMENT; OR (II) BE A WAIVER BY THE MORTGAGEE OF THE PROTECTION
AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY
EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE MORTGAGEE
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT
PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE MORTGAGEE MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THE MORTGAGE OR THIS
MODIFICATION AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP
REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR
FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY
SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OF CLAIM
OCCASIONING RESORT TO SUCH REMEDIES.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals effective as of the day and year first above written.
Signed, sealed and delivered NATIONSBANK, N.A., a National
in the presence of: Banking Association, as
successor in interest to
NATIONSBANK, N.A. (SOUTH) and
NATIONSBANK OF FLORIDA, N.A.
/s/ Xxxxxxx X. Xxxxxxxx By:/s/ Xxxxxx Xxxx
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*Xxxxxxx X. Xxxxxxxx Xxxxxx Xxxx, Vice President
*(Print Name of Witness)
Address: 0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxx
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*Xxxxxxx X. Xxxx (CORPORATE SEAL)
*(Print Name of Witness)
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MORTGAGEE
ELCOTEL, INC., a Delaware
corporation
/s/ Xxxxx X. Xxxxxxxx By:/s/ Xxxxxx X. Xxxxx
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*Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx, as
*(Print Name of Witness) Vice-President and Chief
Financial Officer
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
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*Xxxxxxx X. Xxxxxxxx (CORPORATE SEAL)
*(Print Name of Witness)
MORTGAGOR
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STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this
26th day of November, 1997, by XXXXXX XXXX, as Vice President of
NATIONSBANK, N.A., a National Banking Association, as successor
in interest to NATIONSBANK, N.A. (SOUTH) and NATIONSBANK OF
FLORIDA, N.A., on behalf of said corporation. He is personally known to
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me and produced as identification and did not take an oath.
/s/ Xxxxxxx X. Xxxxxxxx
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*Xxxxxxx X. Xxxxxxxx
(NOTARIAL SEAL) *(Print Name of Notary Public)
Notary Public - State of Florida
My commission expires May 27,1999
Commission Number XX000000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX
The foregoing instrument was acknowledged before me this
26th day of November, 1997, by Xxxxxx X. Xxxxx, as Vice-President and
Chief Financial Officer of ELCOTEL, INC., a Delaware corporation, on behalf
of said corporation. He is personally known to me and produced as
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identification and did not take an oath.
/s/ Xxxxxxx X. Xxxxxxxx
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*Xxxxxxx X. Xxxxxxxx
(NOTARIAL SEAL) *(Print Name of Notary Public)
Notary Public - State of Florida
My commission expires May 27,1999
Commission Number CC564756
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