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EXHIBIT 10.34
NOTE
$200,000.00 Pinellas County, Florida
December 30, 1994
FOR VALUE RECEIVED, the undersigned, BANKERS DATA CENTER, INC., a
Florida corporation (the "Borrower") promises to pay to the order of FIRST OF
AMERICA BANK-FLORIDA F.S.B., a federal savings bank (the "Lender") the principal
sum of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00), together with
interest on the principal balance remaining unpaid from time to time at the
rate set forth below.
Term. The term of this Note is from the date of this Note through and
including the date that is exactly sixty (60) months following the date of this
Note (the "Term"). The last day of the Term will be sometimes referred to below
as the "Maturity Date".
Interest. The principal balance remaining unpaid from time to time
shall bear interest from the date of this Note through and including the date
that all indebtedness evidenced hereby is paid in full at the rates per annum
equal to Lender's Base Lending Rate (the "Lending Rate") announced or published
by Lender from time to time, to be adjusted daily as and when the Lending Rate
is adjusted. In the event the Lender shall cease or fail to announce or publish
a Lending Rate, regardless of the reason therefor, then the Lender may utilize
the Lending Rate announced or published by any other nationally known financial
institution for purposes of determination of the interest rate for the
remainder of the Term. In the event that all nationally known financial
institutions shall cease or fail to announce or publish a Lending Rate,
regardless of the reason therefor, then the Lender shall select a comparable
national index, and if no comparable national index is available, then Lender
shall establish the interest rate for the remainder of the loan Term.
Lending Rate. The term "Lending Rate" shall mean the annual rate of
interest announced from time to time by the Lender. The Lending Rate is a
reference rate for the information and use of the Lender in establishing the
actual rates to be charged its borrowers. It is not intended to and does not
represent the best or lowest rate of interest available to any borrower or
class of borrowers.
Manner of Calculation. Interest shall be calculated on the basis of a
three hundred sixty (360) day year for actual days elapsed. Interest will be
charged on the principal balance of the loan that remains outstanding from time
to time.
Signed for Identification
By: /s/ Edwin C. Hussemann
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The Treasurer of Borrower
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Interest Limitation. Notwithstanding any other provision of this Note
or of any instrument securing this Note or any other instrument executed in
connection with the loan evidenced hereby, it is expressly agreed that the
amounts payable under this Note or under the other aforesaid instruments for
the payment of interest or any other payment in the nature of or which would be
considered as interest or other charge for the use or loan of money shall not
exceed the highest rate allowed by law, from time to time, to be charged by
Lender. In the event the provisions of this Note or of any instruments referred
to in this paragraph, regarding the payment of interest or other payments in
the nature of or which would be considered as interest or other charge for the
use or loan of money operate to produce a rate that exceeds such limitation,
then the excess over such limitation will not be payable and the amount
otherwise agreed to have been paid shall be reduced by the excess so that such
limitation will not be exceeded, and if any of the payment actually made shall
result in such limitation being exceeded, the amount of the excess shall
constitute and be treated as a payment on the principal hereof and shall
operate to reduce such principal by the amount of such excess, or if in excess
of the principal indebtedness, such excess shall be refunded.
Payments. Principal plus interest shall be due and payable and shall
be paid at 2100 66th Street North, St. Petersburg, Florida 33710, or at such
other place as the Lender may designate from time to time, as follows:
(a) Monthly Payments. Principal shall be due and payable and
shall be paid in equal monthly installments of principal in the amount of THREE
THOUSAND THIRTY-THREE AND 34/100 DOLLARS ($3,333.34) each, together with all
accrued interest thereon, commencing exactly one (1) month from the date
hereof, and on the same day of each succeeding month thereafter through and
including the same day of the month next preceding the Maturity Date.
(b) Maturity Date. On the Maturity Date, all indebtedness
evidenced hereby (whether unpaid principal, accrued interest or otherwise) that
remains unpaid shall be due and payable and shall be paid.
Each installment of principal plus interest under subparagraph (a) above shall
be credited first on account of any costs of collection, then on account of
accrued interest and then in reduction of said unpaid principal.
Late Charge. Any installment not received within fifteen (15) days
when due shall be subject to, and it is agreed that the Lender shall collect
thereon and therewith a "late charge" in the amount of five percent (5%) of the
payment upon each such delinquent installment. Said "late charge" shall be
immediately due and payable and shall be paid by the Borrower without notice or
demand of the holder hereof.
Signed for Identification
By: /s/ Edwin C. Hussemann
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The Treasurer of Borrower
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Prepayment. Borrower shall have the option of prepaying all or any
part of the principal of this Note at any time during the term of this Note,
without notice, premium or penalty for the privilege of such prepayment. The
Lender may require that any partial prepayments be made on the date prepayments
are due. Any partial prepayments shall not postpone the due date of any
subsequent monthly installments or change the amount of such installments,
unless the Lender shall otherwise agree in writing. In the event of any full
prepayment, all accrued interest and other charges evidenced by this Note and
the instruments of security for this Note shall be paid at the same time as
such full principal prepayments.
Consent and Waiver. Each Obligor (which term shall mean and include
the Borrower, each endorser, and all others who may become liable for all or
any part of the obligations evidenced and secured hereby), does hereby, jointly
and severally: (a) consent to any forbearance or extension of the time or
manner of payment hereof and to the release of all or any part of any security
held by the Lender to secure payment of this Note and to the subordination of
the lien of the mortgage and any other instrument of security securing this
Note as to all or any part of the property encumbered thereby, all without
notice or consent of that party; (b) agree that no course or dealing or delay
or omission of forbearance on the part of the Lender in exercising or enforcing
any of its rights or remedies hereunder or under any instrument securing this
Note shall impair or be prejudicial to any of the Lender's rights and remedies
hereunder or to the enforcement hereof and that the Lender may extend or
postpone the time and manner of payment and performance of this Note and any
instrument securing this Note, may grant forbearances and may release, wholly
or partially, any security held by the Lender as security for this Note and
release, partially or wholly, any person or party primarily or secondarily
liable with respect to this Note, all without notice to or consent by any party
primarily or secondarily liable hereunder and without thereby releasing,
discharging or diminishing its rights and remedies against any other party
primarily or secondarily liable hereunder; and (c) waive notice of acceptance
of this Note, notice of the occurrence of any default hereunder or under any
instrument securing this Note and presentment, demand, protest, notice of
dishonor and notice of protest and notices of any and all action at any time
taken or omitted by the Lender in connection with this Note or any instrument
securing this Note and waives all requirements necessary to hold that party to
the liability of that party.
Cross Default. A default under this Note shall be and constitute a
default under any and all notes or other evidence of indebtedness and any
instruments of security therefor in which an Obligor is liable and of which the
Lender is the holder, including without limitation, (i) that certain Note
executed on even date hereof by NATIONAL FLOOD CERTIFICATION SERVICES, INC., a
Florida corporation, in favor of Lender in the original principal amount of
$60,000.00 (the "Flood Note"); (ii) that certain Note executed on even date
hereof by SOUTHERN RENTAL & LEASING CORPORATION, a Florida corporation, in favor
of Lender in the original principal amount of $300,000.00(the "Southern Note");
and (iii) that certain Note
Signed for Identification
By: /s/ Edwin C. Hussemann
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The Treasurer of Borrower
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executed on even date hereof by BANKERS INSURANCE GROUP, INC., a Florida
corporation, in favor of Lender in the original principal amount of $270,000.00
(the "Bankers Note") (the Flood Note, the Southern Note and the Bankers Note
will be sometimes collectively referred to below as the "Other Notes"). A
default under any of the Other Notes or any of the instruments of security
therefor, which is not cured within the applicable curative period set forth in
such instruments shall constitute a default under this Note and all instruments
of security therefor.
Lien. The Lender is hereby granted a lien upon and a security interest
in all property of each Obligor now or at any time hereafter in the possession
of the Lender in any capacity whatsoever, including but not limited to any
balance or share of any deposit account as security for the payment of this
Note, and the Lender is hereby authorized upon default to apply, on or after
maturity (whether by acceleration or otherwise) to the payment of this debt any
such funds or property in possession of the Lender belonging to each Obligor, in
such order of application as Lender may from time to time elect, without advance
notice.
Events of Default. The happening of any of the following events shall
constitute a default hereunder: (a) failure of any Obligor to pay any principal,
interest or any other sums required hereunder when due under this Note or the
Other Notes; or (b) a default shall occur in any instrument securing this Note
or in any other instrument executed in connection with the Loan evidenced
hereby, which is not cured within the applicable curative period set forth in
such instruments.
Acceleration. If a monetary default shall occur hereunder (the default
specified in (a) next above) which is not cured within thirty (30) days, or if a
nonmonetary default shall occur hereunder (the default specified in (b) next
above) and remains uncured for thirty (30) days or more following provision of
written notice to Borrower from Lender specifying with particularity such event
of nonmonetary default (or, if such nonmonetary default cannot be reasonably
cured within the thirty (30) day period, if Borrower does not commence to cure
such nonmonetary default within such thirty (30) day period or thereafter fails
to diligently and continuously proceed to cure such nonmonetary default), then
at the option of the Lender, the entire principal sum then remaining unpaid and
accrued interest shall immediately become due and payable without notice or
demand, and said principal shall bear interest from such date at the highest
legal rate permitted by law, from time to time, to be charged by Lender; it
being agreed that interest not paid when due shall, at the option of the Lender,
draw interest at the rate provided for in this paragraph. Failure to exercise
the above options shall not constitute a waiver of the right to exercise the
same in the event of any subsequent default.
Attorneys' Fees. All parties liable for the payment of this Note agree
to pay the Lender reasonable attorneys' fees and costs, whether or not an action
be brought, for the services of counsel employed after maturity or default to
collect this Note or any principal or interest due
Signed for Identification
By: Edwin C. Hussemann
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The Treasurer of Borrower
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hereunder, or to protect the security, if any, or enforce the performance of
any other agreement contained in this Note or in any instrument of security
executed in connection with this loan, including costs and attorney's fees on
any appeal, or in any proceedings under the National Bankruptcy Code or in any
post judgement proceedings.
Set Off. The Obligors shall have no right of set off against the
Lender under this Note or under any instruments securing this Note of executed
in connection with the loan evidenced hereby. The Lender, however, shall have
the right, immediately and without further action by it, to set of against this
Note all money owed by the Lender in any capacity to each or any Obligor,
whether or not due. Provided however, in the event the Federal Deposit
Insurance Corporation shall assume control of the Lender and seize any deposits
of any Obligor, the amounts seized shall reduce the indebtedness of the
Borrower under this Note.
Waiver of Jury Trial. Borrower hereby voluntarily and irrevocably
waives the right to a trail by jury in connection with any litigation, action or
cause of action arising out of or by virtue of: (i) this instrument; or
(ii) any other agreement or document executed or contemplated to be in
connection with the loan evidenced or secured hereby, or incident hereto (the
"Loan"); or (iii) any course of conduct, course of dealing, representation,
statement or other action of any party in connection with the Loan. The parties
to the Loan have discussed this waiver, have agreed that it is an essential and
material part of their agreement concerning the Loan, and that no officer or
representative of Lender has the authority to modify, orally or in writing, the
terms of this paragraph. This agreement shall be binding on the Borrower, and,
if applicable, on all Obligors as defined herein, and constitutes a material
inducement for Lender entering into the Loan transaction.
Borrower. The Borrower warrants and represents to Lender that it is a
corporation, duly formed, presently existing under the laws of the State of
Florida, and that the individual executing this Note below is fully authorized
to do so on behalf of the Borrower, so as to fully and legally bind the
Borrower to the terms and provisions of this Note.
Florida Law. This Note is executed under seal and constitutes a
contract under the laws of the State of Florida, and shall be enforceable in a
Court of competent jurisdiction in that State, regardless of in which State
this Note is being executed.
Headings. The headings of the paragraphs contained in this Note are
for convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of the parties hereto.
Documentary Stamps. Documentary stamps in the amount required by
Florida law have been purchased and affixed to this Note.
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Identification. This Note consists of six (6) pages, all but the last of
which have been signed only for identification by the Treasurer of the Borrower.
THE UNDERSIGNED ACKNOWLEDGE THAT THE LOAN EVIDENCED HEREBY IS FOR
COMMERCIAL PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
Signed, sealed and delivered BANKERS DATA CENTER, INC.,
in the presence of: a Florida corporation
/s/ A. M. Dahlquist By: /s/ Edwin C. Hussemann
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SIGNATURE SIGNATURE
A. M. DAHLQUIST EDWIN C. HUSSEMANN
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NAME LEGIBLY PRINTED NAME LEGIBLY PRINTED
TYPEWRITTEN OR STAMPED TYPEWRITTEN OR STAMPED
/s/ Nancy C. Haire Its Treasurer
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SIGNATURE
NANCY C. HAIRE
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NAME LEGIBLY PRINTED
TYPEWRITTEN OR STAMPED (CORPORATE SEAL)
As to Borrower
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 29 day of
December, 1994, by EDWIN C. HUSSEMANN, the Treasurer of BANKERS DATA CENTER,
INC., a Florida corporation, on behalf of the corporation.
Personally Known X OR Produced Identification
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Type of Identification Provided
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/s/ Nancy C. Haire
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SIGNATURE
NANCY C. HAIRE
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NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL) (NOTARY PUBLIC)
My Commission Expires:
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