1
EXHIBIT 10.39
NOTE
$245,000.00
Valdosta, Georgia
December 30, 1996
FOR VALUE RECEIVED, the undersigned, BANKERS HAZARD DETERMINATION SERVICES,
INC., a Florida corporation (the "Borrower") promises to pay to the order of
FIRST OF AMERICA BANK - FLORIDA, F.S.B., a federal saving bank (the "Lender")
the principal sum of TWO HUNDRED FORTY-FIVE THOUSAND AND NO/100 DOLLARS
($245,000.00), together with interest on the principal balance remaining unpaid
from time to time at the rates set forth below.
Term. The term of this Note shall be from the date of this Note through and
including the date that is exactly forty-eight (48) 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 of this Note 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 the 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. 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/ G. Kristin Delano
-------------------------------
The Secretary of Borrower
2
Interest Limitation. Notwithstanding any other provision of 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 instrument 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 201 East Kennedy Boulevard, Tampa, Florida 33602, Attn.: Commercial Loan
Department, or at such other place as the Lender may designate from time to
time, as follows:
(i) Monthly Payments. Except as provided below, principal shall be
due and payable and shall be paid monthly in the amount of FIVE THOUSAND ONE
HUNDRED FOUR AND 17/100 DOLLARS ($5,104.17) each, plus accrued interest,
commencing on the date exactly one (1) month following the date of this Note,
and on the same day of each succeeding month thereafter through and including
the same day of the month next preceding the Maturity Date.
(ii) Maturity Date. On the Maturity Date, all indebtedness evidenced
by this Note (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 (i) above shall
be credited first on account of the interest then accrued on said principal
remaining unpaid and then in reduction of said unpaid principal.
Further, because of increases in the interest rate, should any installment of
principal and interest set forth in subparagraph (i) above be insufficient to:
(A) pay in full the accrued interest on this Note; or (B) fully amortize the
principal amount of this Note on or before the date exactly four (4) years from
the date of this Note (the "Amortization Period"), Lender shall notify Borrower
of the same, and the Borrower shall automatically pay such higher amount as
Lender determines is
Signed for Identification
By: /s/ G. Kristin Delano
-------------------------------
The Secretary of Borrower
2
3
necessary to: (A) prevent negative amortization from occurring under this Note;
and/or (B) fully amortize the principal amount of this Note during the
Amortization Period.
Late Charge. Any payment not received within ten (10) 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 payment. Said "late charge" shall be immediately due and
payable and shall be paid by the Borrower without notice or demand of the holder
hereof.
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 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
prepayment.
Consent and Waiver. Each Obligor (which term shall mean and include the
Borrower, each guarantor, 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 any 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) except as otherwise set forth in the instruments of security for this
Note, 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
Signed for Identification
By: /s/ G. Kristin Delano
-------------------------------
The Secretary of Borrower
3
4
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.
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, trust or agency 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.
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 the Borrower is liable and of which
the Lender is the holder (collectively the "Other Notes"). A default under any
other notes or other evidence of indebtedness or any instrument of security
therefor in which the Borrower is liable and the Lender is the holder,
including, without limitation, under the Other Notes, shall constitute a default
under this Note and any instruments of security therefor.
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 (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; or
(c) a default shall occur under the Other Notes which is not cured within the
applicable curative period set forth in the Other Notes.
Acceleration. If a default shall occur hereunder which is not cured within
ten (10) days or more, then at the option of the Lender, the entire principal
sum then remaining unpaid 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
Signed for Identification
By: /s/ G. Kristin Delano
-------------------------------
The Secretary of Borrower
4
5
of counsel employed after maturity or default to collect this Note or any
principal or interest 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 the Loan, including costs and
attorneys' fees on any appeal, or in any proceedings under the National
Bankruptcy Code or in any post judgment proceedings.
Indemnification. The Borrower hereby agrees to indemnify and hold Lender
harmless from and against any and all loss, damage, cost and expense, including
attorney's fees, that the Lender may incur or sustain by reason of the assertion
of a claim or ruling by a governmental entity that documentary stamp tax or
intangible tax (or any similar tax), or any penalties or interest associated
therewith, must be paid by reason of the execution and delivery of this Note or
any documents or instruments securing this Note (collectively the "Collateral
Documents"), or any subsequent renewals, modifications or amendments of this
Note or the Collateral Documents.
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 and in good standing under the laws
of the State of Florida.
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.
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 Office of Thrift
Signed for Identification
By: /s/ G. Kristin Delano
-------------------------------
The Secretary of Borrower
5
6
Supervision, Federal Deposit Insurance Corporation, or any similar successor
governmental entity, shall assume control of Lender and seize deposits of any
Obligor, the amounts seized shall reduce the indebtedness of the Borrower under
the Note, dollar for dollar.
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 stamp tax is not due and payable on this
Note.
Identification. This Note consists of seven (7) pages, all but the last two
of which have been signed only for identification by the Secretary of 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 HAZARD DETERMINATION
in the presence of: SERVICES, INC., a Florida
corporation
/s/ Signature Illegible By: /s/ G. Kristin Delano
- ----------------------------------- ----------------------------
Its Secretary
/s/ Tina S. Wyers
- ----------------------------------- (CORPORATE SEAL)
As to Borrower
6
7
STATE OF GEORGIA )
COUNTY OF LOWNDES )
The foregoing instrument was acknowledged before me this 30 day of
December, 1996, by G. KRISTIN DELANO, the Secretary of BANKERS HAZARD
DETERMINATION SERVICES, INC., a Florida corporation, on behalf of the
corporation, who is personally known to me or who has produced (TYPE OF
IDENTIFICATION: Driver License) as identification.
/s/ Tina S. Wyers
-------------------------
SIGNATURE
TINA S. WYERS
-------------------------
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL) NOTARY PUBLIC
My Commission Expires: 08/02/00
7