EXHIBIT 10.4
Prepared By & Return To:
Xxxxxxx X. Xxxx, Esq. (bh)
XXXX XXXXXXXXX
000 X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
MORTGAGE MODIFICATION AGREEMENT
THIS AGREEMENT, executed this 31st day of August,
1995, by and between NATIONSBANK OF FLORIDA, N.A., a
National Banking Association, 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, 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, provided that the
Mortgage and the Second Mortgage are cross-defaulted.
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 SEVEN HUNDRED SIXTY FOUR THOUSAND AND NO/100
DOLLARS ($764,000.00) 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 confirmed as May 23, 1999, as evidenced by
that certain Renewal Note dated of even date herewith in the
amount of SEVEN HUNDRED SIXTY FOUR THOUSAND AND NO/100 DOLLARS
($764,000.00) (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 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.
4. 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.
5. In consideration of the Mortgagee renewing the
indebtedness set forth above, evidenced by the Renewal 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 Renewal Note or the Loan Documents.
6. All references in the Mortgage to the "Note" shall be
deemed to include the Note and the Renewal 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.
7. 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
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 OF FLORIDA, N.A.,
in the presence of: a National Banking Association
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------ -----------------------
* Xxxxxx Xxxxxx Xxxxxxx X. Xxxx
*(Print Name of Witness) Vice President
Address: 0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxx
------------------------
* Xxxxxxx X. Xxxx (CORPORATE SEAL)
*(Print Name of Witness)
MORTGAGEE
ELCOTEL, INC., a Delaware
corporation
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
------------------------ -----------------------
* Xxxxxxx X. Xxxx Xxxxxx X. Xxxxx,
*(Print Name of Witness) As: Vice President and Chief
Financial Officer
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxx
------------------------
* Xxxxxxx X. Xxxx (CORPORATE SEAL)
*(Print Name of Witness)
MORTGAGOR
STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this
31st day of August, 1995, by XXXXXXX X. XXXX, as Vice President
of NATIONSBANK OF FLORIDA, N.A., a National Banking Association,
on behalf of said corporation. He is personally known to me and
did not take an oath.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
* Xxxxxxx X. Xxxxxxx
(NOTARIAL SEAL) *(Print Name of Notary Public)
Notary Public - State of Florida
My commission expires 5/27/99
Commission Number CC 460875
STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this
31st day of August, 1995, 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 did not take an oath.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
* Xxxxxxx X. Xxxxxxx
(NOTARIAL SEAL) *(Print Name of Notary Public)
Notary Public - State of Florida
My commission expires 5/27/99
Commission Number CC 460875
