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EXHIBIT 10.38
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is executed this 30 day of
December, 1994, by NATIONAL FLOOD CERTIFICATION SERVICES, INC., a Florida
corporation (the "Borrower"), in favor of FIRST OF AMERICA BANK-FLORIDA F.S.B.,
a federal savings bank (the "Lender"), and is made in reference to the following
facts:
(A) On or about the date hereof, the Lender has agreed to make a loan
to the Borrower in the original principal amount of SIXTY THOUSAND AND NO/1OO
DOLLARS ($60,000.00) (the "Loan"). The Loan is evidenced by that certain Note
executed by the Borrower in favor of the Lender (the "Note").
(B) As a condition to making the Loan, the Lender has required
Borrower to grant Lender a first security interest and lien in certain tangible
and intangible personal property of Borrower, as more particularly described in
Exhibit "A" attached hereto and by this reference made a part hereof, together
with all increases, accessions, replacements, upgrades, parts, fittings,
accessories and equipment, now or hereafter affixed to all or any part thereof,
or used in connection therewith, and all replacements of all or any part thereof
(collectively the "Collateral"). The Collateral will at times be located at
00000 0xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx.
NOW THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the Borrower does hereby covenant, agree, warrant
and represent with and to the Lender as follows:
1. Recitals. The statements contained in the recitals of fact set forth
above (the "Recitals") are true and correct and the Recitals by this reference
are made a part of this Agreement.
2. Security Interest. Borrower does hereby grant to Lender a first
security interest and lien in the Collateral as security to secure the payment
of principal, interest and other sums due or to become due under the Note, and
any and all extensions, modifications or renewals of the Note, and all present
and future indebtedness, obligations, and liabilities contained in or referred
to or which may hereafter arise in connection with or as contemplated by the
Note and any instruments of security therefor, and any and all modifications or
extensions of the Note, and the instruments of security therefor, and all
obligations and liabilities of Borrower hereunder, all of which are hereinafter
referred to as the "Obligations."
3. Use and Location of Collateral. The Collateral was and shall be
acquired and is and shall be used primarily for business use.
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4. Payment. The Borrower shall pay and perform, all and singular, the
Obligations, including but not limited to the payment of sums of principal and
interest and other sums payable by virtue of the Note promptly when due, and
shall perform all of Borrower's agreements in the Note and herein and pay all
taxes and assessments levied or assessed against the Collateral, against this
Agreement and against the Obligations secured hereby, whether such taxes and
assessments be against the Collateral, the Obligations, the Borrower, the
Lender, or another. All such taxes and assessments shall be paid by Borrower
before they become delinquent, and before the date they would have become
delinquent or within ten (10) days after payment of same, whichever shall be
sooner, Borrower shall deliver to Lender official receipts, or copies thereof,
showing payment.
5. Insurance. To keep the tangible personal property portion of the
Collateral continuously insured against loss by fire, theft, tornado, windstorm,
flood and such other hazards, as may be approved by Lender, in companies and in
amounts each company as may be approved by and acceptable to Lender; all such
insurance policies shall be in form acceptable to Lender with loss payable to
Lender as its interest may appear, and in each and every such policy or
certified copies thereof shall be promptly delivered to and held by Lender. Not
less than thirty (30) days in advance of the expiration of each such policy
Borrower shall deliver to Lender a renewal or certified copy thereof, together
with the receipt, or copy thereof, for the premium for such renewal. In the
event of loss the insurance claim proceeds, or any part thereof, shall be
applied by Lender in the manner it deems proper, whether for reduction of the
Loan indebtedness, restoration of the Collateral or otherwise.
6. Protection of Lender's Security. Borrower is and will be the owner
of the Collateral free and clear from any lien, security interest or
encumbrance, except for the lien and the obligations of this Agreement. No
financing statement covering any of the Collateral is on file in any public
office. Borrower will from time to time at the request of Lender execute one or
more financing statements and such other documents (and pay the costs of filing
or recording the same in all public offices deemed necessary or desirable by
Lender) and do such other acts and things, all as Lender may request to
establish and maintain a valid perfected first security interest in the
Collateral to secure the payment and performance of the Obligations.
7. Replacement of Collateral. To keep the tangible personal property
portion of the Collateral, all and singular, on the property where presently
located and not to remove or permit same to be removed therefrom without the
prior written consent of the Lender except that Borrower shall be entitled to
dispose of such of the Collateral as has become unfit for continued use provided
Borrower simultaneously replaces same with property of similar kind and for like
use and provided the purchase price of any such replacement shall have been paid
in full and provided that the lien of this Agreement shall continue upon any
such replacement. To use reasonable care and diligence to preserve and keep the
Collateral in good condition and not to permit or commit any waste, impairment
or deterioration thereof and to use same only for the purpose for which same is
now agreed upon to be used in connection with said improvements.
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8. Sale or Encumbrance. Except as set forth in paragraph 7 above, not
to sell or attempt to sell any of the Collateral and not to create or permit any
other security interest or other lien or encumbrance upon such Collateral
without the prior written consent of the Lender.
9. Costs and Attorneys' Fees. To pay, all and singular, the
expenditures, costs, charges and expenses, including reasonable attorneys' fees
and costs of title searches and information requests, incurred or paid at any
time by the Lender because of the failure on the part of the Borrower promptly
and fully to perform and pay the Obligations, and all such costs, charges and
expenses shall be immediately due and payable and shall bear interest at the
highest legal rate permitted by law to be charged by Lender from time to time,
from date of payment by Lender until repaid by Borrower and, together with such
interest, shall be secured by the lien of this Agreement.
10. Default. Borrower shall be in default under this Agreement upon the
happening of any of the following events or conditions: (a) failure or omission
to perform or pay when due any of the Obligations (including any installment
thereof or interest thereon); (b) any warranty, representation or statement made
or furnished to lender by or on behalf of Borrower proves to have been false in
any material respect when made or furnished; (c) Borrower makes an assignment
for the benefit of creditors; (d) a Receiver is appointed for Borrower or any
part of the Collateral; (e) Borrower files a Petition in Bankruptcy, is
adjudicated a bankrupt, or files any petition or institutes any proceedings
under the Bankruptcy Code with respect to Borrower's assets and liabilities; (f)
Borrower defaults in, breaches or fails to perform any one or more of the
covenants and agreements contained in the Obligations, including without
limitation, this Agreement, the Note or any of the instruments of security
therefor executed by Borrower in connection with the loan secured hereby on even
date herewith or hereafter.
11. Acceleration. Upon the occurrence of any monetary default which
remains uncured for (30) days or more, or should a nonmonetary default remain
uncured for thirty (30) days or more following receipt 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 the Borrower does not commence to cure such
nonmonetary default within the thirty (30) day period or thereafter fails to
diligently and continuously proceed to cure such nonmonetary default), Lender
may, at its option, declare all Obligations, or any of them (notwithstanding any
provision thereof), immediately due and payable without demand or notice of any
kind and the same thereupon shall immediately become and be due and payable
without demand or notice, and Lender shall have and may exercise from time to
time any and all rights and remedies of a Lender under the Uniform Commercial
Code of the State of Florida and any and all other rights and remedies available
to it under any other applicable law, including the right to foreclose this
Agreement and the other instruments of security in the same proceedings. A
monetary default shall be deemed to include failure to make payments of
principal, interest and late charges under the Note as well as payments of taxes
and governmental assessments and premiums for insurance under any instruments of
security for the Note and this Agreement. Notwithstanding anything contained in
the preceding sentences of this paragraph 11 to the contrary, there shall be no
requirement of a curative period as set forth above
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in the event of a default described in subparagraphs (c), (d) or (e) of
paragraph 10 hereof. Upon request or demand of Lender, Borrower shall, at
Borrower's expense, assemble the Collateral and make it available to the Lender
and Borrower shall promptly pay all costs of Lender of collection of any and all
of the Obligations and enforcements of rights hereunder, including reasonable
attorneys' fees and legal expenses and expenses of any repairs to any of the
Collateral and expenses of any repairs to any realty or other property to which
any of the Collateral may be affixed or be a part. Expenses of retaking,
holding, preparing for sale, selling or the like, shall include those incurred
on appeal, if any.
12. Waiver. No waiver by Lender of any default shall operate as a
waiver of any other default or of the same default on a future occasion. No
delay or omission on the part of Lender in exercising any right or remedy shall
operate as a waiver thereof or the exercise of any other right or remedy.
13. Provisions Cumulative. The provisions of this Agreement are
cumulative and in addition to the provisions of the Note secured by this
Agreement and the provisions of the instruments securing the Note and Lender
shall have all the benefits, rights and remedies of and under the Note and any
other instrument securing same. All rights of Lender hereunder shall inure to
the benefit of its successors and assigns and all obligations of Borrower
hereunder shall bind the successors and assigns of Borrower.
14. Florida Contract. This Agreement has been delivered in the State of
Florida and shall be construed in accordance with the laws of Florida and the
venue for any litigation as a result of this Agreement shall be Hillsborough
County, Florida.
15. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity only, without invalidating the remainder of
such provision or of the remaining provisions of this agreement.
16. Assignment by Lender. In the event of any assignment hereof by
Lender, Borrower covenants and agrees that Borrower will not assert against any
assignee hereof any claim or defense which Borrower may have against Lender,
except Borrower may assert against any such assignee any defense of a type which
may be asserted against a holder in due course of a negotiable instrument under
the Uniform Commercial Code of the State of Florida.
17. Headings. The headings of the paragraphs contained in this
Agreement 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.
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IN WITNESS WHEREOF, Borrower has executed this instrument under seal the
day and year first above written.
Signed, sealed and delivered NATIONAL FLOOD CERTIFICATION
in the presence of: SERVICES, INC., a Florida corporation
/s/ A. M. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------- ---------------------------
SIGNATURE SIGNATURE
A. M. XXXXXXXXX XXXXX X. XXXXXXXXX
--------------------------- ---------------------------
NAME LEGIBLY PRINTED NAME LEGIBLY PRINTED
TYPEWRITTEN OR STAMPED TYPEWRITTEN OR STAMPED
/s/ Xxxxx X. Xxxxx Its Treasurer
---------------------------
SIGNATURE
XXXXX X. XXXXX
---------------------------
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 XXXXX X. XXXXXXXXX, the Treasurer of NATIONAL FLOOD
CERTIFICATION SERVICES, INC., a Florida corporation, on behalf of the
corporation.
Personally Known OR Produced Identification
--------
Type of Identification Provided
------------------------------------
/s/ Xxxxx X. Xxxxx
-------------------------
SIGNATURE
XXXXX X. XXXXX
-------------------------
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL) (NOTARY PUBLIC)
My Commission Expires:
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NATIONAL FLOOD CERT. SERVICE
FILE LISTING REPORT
A Co Asset G/L Asset In-Svc P Dep Vendor/ Disposal Acquired
SYS No C No Desc Location CL Acct No Date T Meth Mfg Date Value
------------------------------------------------------------------------------------------------------------------------------------
BOOK:INTERNAL FY:DECEMBER
000152 A TBA FF 03/01/94 P NoDep 219.57
S/C CHAIR
000153 A TBA FF 03/01/94 P NoDep 219.57
S/C CHAIR
000154 A TBA FF 03/01/94 P NoDep 219.57
S/C CHAIR
000155 A TBA FF 03/01/94 P NoDep 219.57
S/C CHAIR
000156 A TBA FF 03/01/94 P NoDep 219.57
S/C CHAIR
000174 A 138-0924 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000175 A 138-0925 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000176 A 138-0926 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000177 A 138-0927 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000178 A 138-0928 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000179 A 138-0929 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000180 A 138-0930 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000181 A 138-0931 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000182 A 138-0932 FF 07/01/94 P SLMM 232.64
S/C CHAIR
000183 A 138-0933 FF 07/01/94 P SLMM 232.64
-------
Class: FF Count= 15 3424.25
000157 A 500-0277 HW 02/01/94 P SLMM 2177.79
DELL 433/NP BASE
000158 A 501-0309 HW 02/01/94 P SLMM 0.00
VS14 COLOR MONITOR (INCLUDED IN 500-0277)
000159 A 502-0376 HW 02/01/94 P SLMM 0.00
SPACESAVER QUIET KEY KEYBOARD (INCLUDED IN 500-0277)
000160 A 500-0271 HW 02/01/94 P SLMM 2314.40
DELL 433/NP BASE COMPUTER
000161 A 501-0303 HW 02/01/94 P SLMM 0.00
ULTRASCAN 14C MONITOR (INCLUDED IN 500-0271)
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December 17, 1994
12:58 PM
Page
NATIONAL FLOOD CERT. SERVICE
FILE LISTING REPORT
------------------------------------------------------------------------------------------------------------------------------------
SYS No A Co Asset No Desc Location Cl G/L Asset Acct In-Svc P Dep Vendor/Mfg Disposal Acquired
C No Date T Meth Date Value
------------------------------------------------------------------------------------------------------------------------------------
000162 A 502-0370 HW 02/01/94 P SLMM 0.00
SPACESAVER QUIET KEY KEYBOARD (INCLUDED IN 500-0271)
000163 A 611-0040 HW 02/01/94 P SLMM 1219.53
MICROPOLIS HARD DRIVE
000164 A 611-0040 HW 02/01/94 P SLMM 1219.53
MICROPOLIS HARD DRIVE
000165 A 611-0040 HW 02/01/94 P SLMM 1219.54
MICROPOLIS HARD DRIVE
000166 A 611-0040 HW 02/01/94 P SLMM 1219.54
MICROPOLIS HARD DRIVE
000167 A 500-0307 HW 04/01/94 P SLMM 2088.08
COMPAQ PROLINEA D486 DX 33
000168 A 501-0333 HW 04/01/94 P SLMM 0.00
MAGNAVOX 14 SVGA COLOR MONITOR (INCLUDED IN 500-0307)
000169 A 502-0404 HW 04/01/94 P SLMM 0.00
KEYBOARD (INCLUDED IN 500-0307)
000170 A HW 04/01/94 P SLMM 7390.00
DELL 466/T SYSTEM, 3 XXXXX XX FAX 14400B, XXXXXX
000184 A 500-0325 HW 07/01/94 P SLMM 2045.14
PROLINEA 4 33 MODEL 120 W LB COMPUTER
000185 A 500-0324 HW 07/01/94 P SLMM 2045.14
PROLINEA 4 33 MODEL 120 W LB COMPUTER
000186 A 501-0350 HW 07/01/94 P NoDep 0.00
MONITOR (INCLUDED IN 500-0325)
000187 A 501-0349 HW 07/01/94 P NoDep 0.00
MONITOR (INCLUDED IN 500-0324)
000188 A 502-0423 HW 07/01/94 P NoDep 0.00
KEYBOARD (INCLUDED IN 500-0325)
000189 A 502-0422 HW 07/01/94 P NoDep 0.00
KEYBOARD (INCLUDED IN 500-0324)
000190 A 622-0256 HW 07/01/94 P NoDep 0.00
NIC (INCLUDED IN 500-0325)
000191 A 622-0274 HW 07/01/94 P NoDep 0.00
NIC (INCLUDED IN 500-0324)
000194 A HW 08/01/94 P MT200 1370.50
EXPANSION CARD FOR FOCUS CHASSIS
000195 A 602-0071 HW 09/01/94 P MT200 1631.06
64 MB UPGRADE FOR SERVER
000196 A 602-0072 HW 09/01/94 P MT200 1631.06
64 MB UPGRADE FOR SERVER
000197 A 503-0006 HW 10/01/94 P MT200 6728.20
DISK SUBSYSTEM UPGRADE FOR SERVERS AT NFCS (SEE NOTES)
000198 A 647-0005 HW 10/01/94 P MT200 1037.90
APC SMRT-UPS 2000-2000VA LOGIC (SEE NOTES)
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December 17, 1994
12:58 PM
Page 3
NATIONAL FLOOD CERT. SERVICE
FILE LISTING REPORT
------------------------------------------------------------------------------------------------------------------------------------
SYS No A Co Asset No Desc Location Cl G/L Asset Acct In-Svc P Dep Vendor/Mfg Disposal Acquired
C No Date T Meth Date Value
------------------------------------------------------------------------------------------------------------------------------------
----------
Class: HW Count= 27 35337.41
000171 A SW 04/01/94 P SLMM 9900.00
HOST - FAX SOFTWARE
000172 A SW 05/01/94 P SLMM 8500.00
ZIP + 4 CENTROIDS FOR THE US
000173 A SW 06/01/94 P SLMM 2000.00
MAP SOFTWARE 10 USER NETWORK PAK
000192 A SW 07/01/94 P SLMM 2000.00
NETWORK PAK OF 10
000193 A SW 07/01/94 P SLMM 2000.00
NETWORK PAK OF 10
----------
Class: SW Count= 5 24400.00
----------
Grand Total Count= 47 63161.66
==========
----------------------------Calculation Assumptions-----------------------------
Book Short Years Midquarter Convention Adjustment Convention
---- ----------- --------------------- ---------------------
Internal [N] [N] None
-----------------------------Asset Grouping/Sorting-----------------------------
Group: FILE LISTING
Include Assets that meet the following conditions:
Internal Book Placed in Service Date is between 01/01/1994 and
12/31/1994
Sort Assets by:
Class in ascending order and report subtotals
