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EXHIBIT 10.37
NOTE
$60,000.00 Pinellas County, Florida
December 30, 1994
FOR VALUE RECEIVED, the undersigned, NATIONAL FLOOD CERTIFICATION
SERVICES, INC., a Florida corporation (the "Borrower") promises to pay to the
order of FIRST OF AMERICAN BANK-FLORIDA F.S.B., a federal savings bank (the
"Lender") the principal sum of SIXTY THOUSAND AND NO/100 DOLLARS ($60,000.00),
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: 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 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 ONE THOUSAND
AND NO/1OO DOLLARS ($1,000.00) 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: Edwin C. Hussemann
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The Treasurer of Borrower
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Payment. 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 payments 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 of dealing or delay or omission or
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 other 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 BANKERS INSURANCE GROUP, INC., a Florida
corporation, in favor of Lender in the original principal amount of $270,000.00
(the "Bankers 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 executed on even date
Signed for Identification
By: Edwin C. Hussemann
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The Treasurer of Borrower
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hereof by BANKERS DATA CENTER, INC., a Florida corporation, in favor of Lender
in the original principal amount of $200,000.00 (the "Data Note") (the Bankers
Note, the Southern Note and the Data 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 attorneys' fees on any appeal,
or in any proceedings under the National Bankruptcy Code or in any post judgment
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 or executed
in connection with the loan evidenced hereby. The Lender, however, shall have
the right, immediately and without further action by it, to set off 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 trial 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.
Signed for Identification
By: Edwin C. Hussemann
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The Treasurer of Borrower
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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 NATIONAL FLOOD CERTIFICATION
in the presence of: SERVICES, INC., 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 NATIONAL FLOOD
CERTIFICATION SERVICES, 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: 3/25/96
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