Exhibit 10.17
Prepared By and Return To:
Troy M. Lovell
Foley & Lardner
P.O. Box 3391
Tampa, Florida 33602
THIS MORTGAGE MODIFICATION AGREEMENT MODIFIES A MORTGAGE
WHICH WAS RECORDED AT OR BOOK 1416, PAGE 5745, AND MODIFIED
BY INSTRUMENTS RECORDED AT OR BOOK 1425, PAGE 6814; OR BOOK
1435, PAGE 4456; OR 1435, PAGE 4451; AND OR BOOK 1468, PAGE
2483. DOCUMENTARY STAMP TAXES AND INTANGIBLES TAXES WERE
PAID AT THE TIME OF RECORDING THE MORTGAGE AND PRIOR
MODIFICATIONS THERETO. NO NEW INDEBTEDNESS IS EVIDENCED BY
THIS MORTGAGE MODIFICATION AGREEMENT.
MORTGAGE MODIFICATION AGREEMENT
THIS MORTGAGE MODIFICATION AGREEMENT ("Agreement") is made this 12th day
of April, 2000, by and between Elcotel, Inc., a Delaware corporation
("Borrower"), whose address is 6428 Parkland Drive, Sarasota, Florida 34243, and
Bank of America, N.A., d/b/a NationsBank, N.A., successor to NationsBank, N.A.,
f/k/a NationsBank, N.A. (South), as successor in interest to NationsBank of
Florida, N.A. ("Lender"), whose address is 100 North Tampa, Suite 1700, Tampa,
Florida 33602.
RECITALS
WHEREAS, Borrower is indebted to Lender pursuant to a Consolidated
Promissory Note dated November 25, 1997, in the original principal amount of
$1,920,000 (the "Note");
WHEREAS, the Note is secured by a Mortgage (the "Mortgage") by Borrower,
originally in favor of Carl G. Santangelo, as Trustee encumbering certain real
property located in Manatee County, Florida, as more particularly described on
Exhibit A (the "Mortgaged Property") recorded in Official Records Book 1416,
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beginning at Page 5745, which was assigned to the Bank by an assignment recorded
in Official Records Book 1435, beginning at Page 4451, and which was modified by
instruments recorded in Official Records Book 1425, beginning at Page 6814,
Officual Records Book 1435, beginning at Page 4456, and Official Records Book
1468, beginning at Page 2483, all of the public records of Manatee County,
Florida; and,
WHEREAS, Borrower and Lender have entered into a Forbearance and
Modification Agreement (the "Modification Agreement") of even date herewith
which modifies the terms of the Note and the Mortgage.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Modification Agreement, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Borrower and Lender
agree as follows:
1. RECITALS. The foregoing recitals are true and correct and
incorporated herein by reference.
2. MODIFICATION AGREEMENT. The terms and conditions of the Modification
Agreement are hereby incorporated herein by reference.
3. NO WAIVER OF REMEDIES. Nothing contained herein shall be deemed a
waiver of any of Lender's rights or remedies under the Loan
Documents.
4. RATIFICATION. Except as expressly modified by the terms and
provisions hereof, each of the terms and provisions of the Mortgage
are hereby ratified and shall remain in full force and effect,
notwithstanding any language to the contrary contained in any prior
document, including but not limited to those documents recorded in
Official Records Book 1537, beginning at Page 2933, and Official
Records Book 2666, beginning at Page 1135, of the Public Records of
Manatee County, Florida.
5. GOVERNING LAW. THE TERMS AND PROVISIONS HEREOF SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN.
6. WAIVER OF JURY TRIAL. BORROWER AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING
OUT OF,
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UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY OF THE LOAN
DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
7. BINDING AGREEMENT. This Agreement shall be binding upon the heirs,
executors, administrators, personal representatives, successors and
assigns of the parties hereto; provided, however, the foregoing
shall not be deemed or construed to (i) permit, sanction, authorize
or condone the assignment of all or any part of the Property or any
of Borrower's rights, titles or interests in and to the Property,
except as expressly authorized in the Loan Documents, or (ii) confer
any right, title, benefit, cause of action or remedy upon any person
or entity not a party hereto, which such party would not or did not
otherwise possess.
8. COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be convenient or required.
All counterparts shall collectively constitute a single instrument.
It shall not be necessary in making proof of this Agreement to
produce or account for more than a single counterpart containing the
respective signatures and acknowledgment of, or on behalf of, each
of the parties hereto.
9. NO ORAL AGREEMENTS.
NOTICE: THIS DOCUMENT AND ALL OTHER DOCUMENTS RELATING TO THIS LOAN
CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF
THE PARTIES.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES RELATING TO THE
LOAN.
IN WITNESS WHEREOF, the parties have executed this document as of the date
first above written.
WITNESSES
ELCOTEL, INC., a Delaware corporation
________________________________
Print Name:_____________________
By: /s/ William H. Thompson
--------------------------------
________________________________ Print Name: William H. Thompson
Print Name:_____________________ Title: Senior Vice President
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BANK OF AMERICA, N.A., d/b/a
NationsBank, N.A.
________________________________
Print Name:_____________________
By:__________________________________
________________________________ Print Name:__________________________
Print Name:_____________________ Title:_______________________________
STATE OF _______________________
COUNTY OF ______________________
The foregoing Forbearance Agreement was acknowledged before me, the
undersigned authority, this ___ day of April, 2000, by
_______________________________ as ______________________________ of Elcotel,
Inc., a Delaware corporation, ___ who is personally known to me or ___ who
produced ____________________ as identification.
_____________________________________
Notary Public, State of _____________
Print Name:__________________________
My Commission Expires:_______________
[SEAL]
STATE OF _______________________
COUNTY OF ______________________
The foregoing Forbearance Agreement was acknowledged before me, the
undersigned authority, this ___ day of April, 2000, by ____________________ as
______________ of Bank of America, N.A. d/b/a NationsBank, N.A., ___ who is
personally known to me or ___ who produced ____________________ as
identification.
_____________________________________
Notary Public, State of _____________
Print Name:__________________________
My Commission Expires:_______________
[SEAL]
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EXHIBIT A
Lots 9 and 10, PARKLAND CENTER, PHASE II,
according to the map or plat thereof as recorded
in Plat Book 22, Pages 77 through 79, of the
Public Records of Manatee County, Florida.
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