Exhibit 3.1
PREPARED BY AND RETURN TO:
XXXXXX X. XXXXX, ESQUIRE
0000 Xxxxxxxxxx Xxxx., #000
Xxxx Xxxx Xxxxx, XX 00000
Our File #:
MORTGAGE MODIFICATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and executed this 22nd day of
April, 1998 ("Effective Date") by and between FLORIDA GAMING CORPORATION OF
DELAWARE, a Delaware corporation ("Florida Gaming") FREEDOM FINANCIAL CORP.,
an Indiana corporation ("Freedom") and XXXXXX ROAD HOLDING COMPANY, a Florida
corporation ("Xxxxxx Road").
R E C I T A L S:
WHEREAS, XXXXXX ROAD, FLORIDA GAMING and FREEDOM entered into that
certain Guaranty Agreement ("Guaranty") dated November 3, 1994; and
WHEREAS, FLORIDA GAMING executed a mortgage ("Mortgage") on November 3,
1994 in favor of XXXXXX ROAD to secure the Guaranty, which Mortgage was
recorded in Official Records Book 92, Page 2308, of the Public Records of
St. Lucie County, Florida; and
WHEREAS, under the Guaranty Agreement FLORIDA GAMING and FREEDOM
guaranteed XXXXXX ROAD that the 47,336 shares of Common Stock of FLORIDA
GAMING CORPORATION issued to XXXXXX ROAD ("Stock") would have a value of Ten
Dollars ($10.00) per share on November 3, 1997; and
WHEREAS, the STOCK had a value of Four Dollars ($4.00) per share on
November 3, 1997; and
1
WHEREAS, the amount due under the GUARANTY from FLORIDA GAMING and
FREEDOM to XXXXXX ROAD is TWO HUNDRED EIGHTY FOUR THOUSAND SIXTEEN AND NO/00
($284,016.00) which was due and payable to XXXXXX ROAD on FEBRUARY 12, 1998;
and
WHEREAS, FLORIDA GAMING and FREEDOM have requested that the terms of the
Guaranty Agreement and Mortgage be modified to allow them to pay the
indebtedness by payment to XXXXXX ROAD of THIRTY FIVE THOUSAND AND NO/00
($35,000.00) upon execution of this Agreement, with the balance of
$249,016.00 to be paid in accordance with the Promissory Note ("Note")
attached hereto as EXHIBIT "A"
WHEREAS, XXXXXX ROAD has agreed to said request.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other
valuable consideration, the receipt of which is hereby acknowledged the
Parties hereby agree as follows:
1. The foregoing Recitals are true and correct and incorporated herein
by reference.
2. Upon execution hereof FLORIDA GAMING and FREEDOM agree to pay to
XXXXXX ROAD Thirty Five Thousand Dollars ($35,000.00), with the balance of
$249,016.00 to be paid in accordance with the Note attached hereto as
EXHIBIT "A".
3. The Mortgage executed on November 3, 1994 by FLORIDA GAMING in
favor of XXXXXX ROAD is hereby modified to secure, in addition to the
Guaranty, the Note in the amount of TWO HUNDRED FORTY NINE THOUSAND SIXTEEN
DOLLARS AND NO/00 ($249,016.00) dated FEBRUARY 12, 1998, a copy of which is
attached hereto as EXHIBIT "A".
4. FLORIDA GAMING and FREEDOM agree that all obligations, including
but not limited to the obligations to pay the Note, a copy of which is
attached hereto as EXHIBIT "A" shall be and remain the binding valid and
enforceable obligation of FLORIDA GAMING and FREEDOM jointly and severally.
5. FLORIDA GAMING and FREEDOM agree that there is no defense or right
of offset against XXXXXX ROAD.
6. FLORIDA GAMING and FREEDOM covenant, warrant and agree that:
a. The Mortgage secures and shall continue to secure the full
repayment of the Note
b. The Mortgage is and shall remain a valid first priority lien on
the Property until the Note is repaid in full
c. That the Guaranty, as modified by this Agreement, is hereby
ratified and affirmed and shall remain in full force and effect
2
7. This Agreement shall bind and enure to the benefit of the Parties
hereto and their respective heirs, legal representatives, successors and
assigns
8. This Agreement shall be governed by and construed according to the
laws of the State of Florida
9. This Agreement may be executed and delivered in any number of
counterparts, each of which when so executed and delivered shall be and
constitute an original and one and the same document
10. This Agreement may not be changed or terminated, except in writing,
signed by all Parties
11. Time is of the essence under this Agreement
12. BANKRUPTCY.
A. EVENT OF BANKRUPTCY DEFINED. When appearing in this agreement, the
term "Event of Bankruptcy" shall mean: (a) if FLORIDA GAMING or FREEDOM
shall (i) file a voluntary petition in bankruptcy for adjudication as
bankrupt, (ii) seek reorganization or an arrangement under any bankruptcy or
similar statute of the United States of America or any subdivision thereof or
of any foreign jurisdiction in response to an involuntary petition, (iii)
consent to the filing of a petition in bankruptcy or reorganization, (iv)
consent to the appointment of a receiver or a trustee or officer performing
similar functions with respect to any substantial part of their property, (v)
make a general assignment for the benefit of their creditors, (vi) execute a
consent to any other type of insolvency proceeding or any informal proceeding
for the dissolution or liquidation of, or settlement of, claims against or
winding up of their affairs or the appointment of a receiver or trustee or
officer performing similar functions for any of them, or for any of their
assets, or (b) the filing against the Borrower of a petition for adjudication
as bankrupt or insolvent or for reorganization under any bankruptcy or
similar laws of the United States of America or any state thereof or any
foreign jurisdiction, or the institution against the Borrower of any other
type of insolvency proceeding or any formal or informal proceeding for the
dissolution, liquidation, settlement of claims against or winding up of any
of their respective affairs.
B. CERTAIN REPRESENTATIONS AND COVENANTS AS TO BANKRUPTCY. FLORIDA
GAMING and FREEDOM represent that, as of the date hereof, no Event of
Bankruptcy has occurred with respect to any of them.
C. RELIEF FROM STAY AND DISMISSAL. If any Event of Bankruptcy shall
occur with respect to the FLORIDA GAMING or FREEDOM, the XXXXXX ROAD shall be
entitled to immediate and complete relief from any automatic stay or
moratorium (including, but not limited to, the immediate lifting of such stay
"for cause"), arising out of or related to the occurrence of any Event of
Bankruptcy, and the XXXXXX ROAD shall be permitted to proceed to protect
3
and enforce its rights or remedies either by suit in equity or by action at
law, or both. FLORIDA GAMING and FREEDOM covenant and agree, upon request by
the XXXXXX ROAD, to join with the XXXXXX ROAD in filing the appropriate
petitions or requests for relief required to obtain the relief referred to
herein.
13. FLORIDA GAMING AND FREEDOM HEREBY AGREE NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST
WITH REGARD TO THE NOTE, THIS MORTGAGE, OR THE OTHER SECURITY DOCUMENTS, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
FLORIDA GAMING AND FREEDOM, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. MORTGAGEE IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY FLORIDA
GAMING AND FREEDOM.
14. FLORIDA GAMING and FREEDOM recognize that the prompt payment of the
principal balance plus accrued interest due under the Note on JUNE 30, 1998
is part of the consideration FOR XXXXXX ROAD to enter into this Agreement and
that in light thereof the Promissory Note shall contain a late charge equal
to FIVE PERCENT (5%) of the total principal and interest due on the maturity
date.
15. FLORIDA GAMING, FREEDOM and XXXXXX ROAD agree that this Agreement
is not intended to, nor shall it be deemed to be, a Novation.
SIGNED, SEALED, AND DELIVERED
IN THE PRESENCE OF:
XXXXXX ROAD HOLDING COMPANY, a
Florida corporation
---------------------------- By: --------------------------------
First Witness __________________, as President
----------------------------
Printed Name
----------------------------
Second Witness
----------------------------
Printed Name
4
FLORIDA GAMING CORPORATION OF
DELAWARE, A DELAWARE CORPORATION
-------------------------------- By: /s/ X. X. Xxxxxxx
First Witness ----------------------------
CHAIRMAN & CEO
--------------------------------
Printed Name
--------------------------------
Second Witness
--------------------------------
Printed Name
FREEDOM FINANCIAL CORP., AN INDIANA
CORPORATION
------------------------------- By: /s/ X. X. Xxxxxxx
First Witness ------------------------------
CHAIRMAN & CEO
-------------------------------
Printed Name
-------------------------------
Second Witness
-------------------------------
Printed Name
* * * *
STATE OF )
------------------------ )
COUNTY OF )
-----------------------
The foregoing instrument was acknowledged before me this _____ day of
March, 1998, by XXXXXX X. XXXXX, as PRESIDENT of XXXXXX ROAD HOLDING COMPANY,
A FLORIDA CORPORATION, who is personally known to me or who have produced
identification and who did take an oath.
XXXXXX X. XXXXX Identification: --------------------------------
--------------------------------
Notary Public
(SEAL) Printed Name:
-------------------
My Commission Expires:
----------
5
* * * *
STATE OF Florida )
)
COUNTY OF Dade )
The foregoing instrument was acknowledged before me this 31st day of
March, 1998 by X.X. Xxxxxxx, as PRESIDENT of FLORIDA GAMING CORPORATION OF
DELAWARE, A DELAWARE CORPORATION, who is personally known to me or who have
produced identification and who did take an oath.
Identification:
----------------------- ------------------------------
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Notary Public
(SEAL) Printed Name: Xxxxxxx X. Xxxxxx
My Commission Expires: [SEAL]
* * * *
STATE OF Florida )
)
COUNTY OF Dade )
The foregoing instrument was acknowledged before me this 31st day of
March, 1998 by X.X. Xxxxxxx, as PRESIDENT of FREEDOM FINANCIAL CORP., AN
INDIANA CORPORATION, who is personally known to me or who have produced
identification and who did take an oath.
Identification:
----------------------- ------------------------------
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Notary Public
(SEAL) Printed Name: Xxxxxxx X. Xxxxxx
My Commission Expires: [SEAL]
6
NOTE
----
$249,016.00 Palm Beach County, Florida
FOR VALUE RECEIVED, FLORIDA GAMING CORPORATION OF DELAWARE, A DELAWARE
CORPORATION, and FREEDOM FINANCIAL CORPORATION, AN INDIANA CORPORATION,
having their principal address at 0000 Xxxxxxxxxxx Xx. XXX XXXXXX, XX 00000
("Maker"), promises to pay to the order of XXXXXX ROAD HOLDING COMPANY, A
FLORIDA CORPORATION, 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx,
Xxxxxxx, 00000 ("Payee"), the principal sum of TWO HUNDRED FORTY NINE
THOUSAND SIXTEEN and 00/100 DOLLARS ($249,016.00), in lawful money of the
United States of America, or so much of that sum as may be advanced under
this Note, together with interest from FEBRUARY 12, 1998, at the rate of
EIGHT PERCENT (8%) per annum and on the terms set forth herein, as follows:
1. Maker shall pay the entire principal balance together with accrued
interest on JUNE 30, 1998 (the "Maturity Date").
2. The principal and interest shall be payable at XXXXXX ROAD HOLDING
COMPANY, 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx, or
at such other place as Payee or holder, from time to time, may designate in
writing.
3. Maker shall have the privilege of prepaying this Note in full or in
part without penalty, at any time.
4. Payment of this Note is secured by a Mortgage Deed dated November
3, 1994 from Florida Gaming Corporation of Delaware to Xxxxxx Road Holding
Company recorded in Official Records Book 92, Page 2308, of the Public
Records of St. Lucie County, Florida (the "Mortgage"), as modified by
Mortgage Modification Agreement of even date herewith, together with the
buildings and other improvements constructed and to be constructed on such
premises, more particularly described in the Mortgage (referred to as the
"Mortgaged Property").
INITIALS: C
------------
1
5. All of the agreements, conditions, covenants, provisions and
stipulations contained in the Mortgage herewith and between the parties
hereto, which are to be kept and performed by Maker, are hereby made a part of
this Note to the same extent and with the same force and effect as if they
were fully set forth herein, and Maker covenants and agrees to keep and
perform them, or cause them to be kept and performed, strictly in accordance
with their terms.
6. If the entire principal balance plus accrued interest is not paid on
or before the Maturity Date then there shall also be immediately due and
payable a late charge at the rate of five percent (5%) of the unpaid
principal balance plus accrued interest on the Maturity Date.
7. It is further understood, however, that should any default be made in
the payment of any installment of principal and interest or any other payment
due under this Note on the date such payment is due, or in the performance of
any of the agreements, conditions, covenants, provisions or stipulations
contained in this Note, or in any of the Loan Documents, then Payee, at its
option and without notice to Maker which notice is expressly waived by Maker
unless expressly required elsewhere in this Note or in the Loan Documents,
may declare due and payable immediately the entire unpaid balance of
principal with interest accrued on it at the applicable rate specified above
to the date of default and after that date at a "Default Rate" which shall be
the highest rate permitted by applicable law, and all other sums due by Maker
under this Note or under the Mortgage, or under any of the other Loan
Documents, notwithstanding anything to the contrary in this Note or in the
Loan Documents, and payment may be enforced and recovered in whole or in part
at any time by one or more of the remedies provided to Payee in this Note, in
the Mortgage or in any of the other Loan Documents. In such a case Payee may
also recover all costs of collection including all costs of suit and other
expenses in connection with it, together with reasonable attorneys' fees for
collection (whether incurred before or at trial, on appeal or in bankruptcy,
together with interest on any judgment obtained by Payee at the Default Rate,
including interest at the Default Rate from and after the date of any
execution, judicial or foreclosure sale until actual payment is made to Payee
of the full amount due Payee.
8. Payee's failure to exercise its option to accelerate the indebtedness
evidenced by this Note shall not constitute a waiver of the right to exercise
that option at any other time so long as that event of default remains
outstanding and uncured, or to exercise it upon the occurrence of another
default.
9. The remedies of Payee as provided in this Note, or in the Mortgage,
shall be cumulative and concurrent; may be pursued singly, successively, or
together at the sole discretion of Payee, may be exercised as often as
occasion for their exercise shall occur; and in no event shall the failure to
exercise any such right or remedy be construed as a waiver or release of it.
INITIALS: C
-----------
2
10. Maker agrees that any real estate that may be levied upon pursuant
to a judgment obtained by virtue of this Note, or any writ of execution
issued on it, may be sold upon any such writ in whole or in part in any order
desired by Payee.
11. Maker and all endorsers, sureties and Guarantors jointly and
severally waive presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Note, and all
other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note, and they agree that the
liability of each of them shall be unconditional without regard to the
liability of any other party, and shall not be affected in any manner by any
indulgence, extension of time, renewals, waivers, releases, or modifications
that may be granted by Payee with respect to the payment or other provisions
of this Note, and to the release of the collateral or any part of it, with or
without substitution, and agree that additional makers, endorsers, Guarantors,
or sureties may become parties to it without notice to them or affecting their
liability under this Note.
12. If any provision of this Note is held be invalid or unenforceable by
a court of competent jurisdiction, the other provisions of this Note shall
remain in full force and effect and shall be construed liberally in favor of
Payee in order to effectuate the provisions of this Note. In no event shall
the rate of interest payable under this Note exceed the maximum rate of
interest permitted to be charged by the applicable law (including the choice
of law rules) and any interest paid in excess of the permitted rate shall be
refunded to Maker. That refund shall be made by application of the excessive
amount of interest paid against any sums outstanding and shall be applied in
such order as Payee may determine. If the excessive amount of interest paid
exceeds the sums outstanding, the portion exceeding the sums outstanding
shall be refunded in cash by Payee. Any crediting or refund shall not cure or
waive any default by Maker under this Note. Maker agrees, however, that in
determining whether or not any interest payable under this Note exceeds the
highest rate permitted by law, any non-principal payment including, without
limitation, prepayment fees and late charges shall be deemed, to the extent
permitted by law, to be an expense, fee, premium or penalty rather than
interest.
13. Payee shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies under this Note unless the waiver
is in writing and signed by Payee, and then only to the extent specifically
set forth in the writing. A waiver on one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy to a subsequent
event. A release of one or more parties hereto or of any Guarantor hereof
shall not constitute a release of any other party or Guarantor.
14. This instrument shall be governed by and construed according to the
laws of the State of Florida.
INITIALS: C
------------
3
15. Upon default by Maker in the payment hereof, Payee shall have the
right, immediately and without further action or notice by it, to set off
against the Note and the indebtedness evidenced hereby, all money owed (if
any) by the Payee or any affiliate thereof to the Maker or any Guarantor, in
any capacity, whether or not due, and also to set off against all other
liabilities of the Payee or any affiliate to Maker or any Guarantor all money
owed by Payee or any affiliate in any capacity to Maker or any Guarantor.
16. Whenever used, the singular number shall include the plural, the
plural the singular, the use of any gender shall be applicable to all gender,
and the words "Payee" and "Maker" shall be deemed to include the respective
heirs, personal representatives, successors and assigns of Payee and Maker.
If Maker consists of more than one person, corporation or other entity, the
obligations and liabilities of such persons, corporations or other entities
under this Note shall be joint and several, and the word "Maker" shall mean
all or some or any of them.
17. All notices given to Maker or Payee shall be given in writing and
will be deemed given when delivered personally or delivered by first class
mail to Maker or Payee at the addresses written above or such other address
as may be designated by Maker or Payee from time to time.
18. All payments under this Note shall be made in such coin or currency
of the United States of America as at the time of payment shall be legal
tender for the payment of public or private debts.
19. Time is of the essence as to each provision of this Note or the
Mortgage which requires Maker to take any action within a specified time
period.
20. The Florida Documentary Stamp Tax due on this Note has been paid
upon recording the Mortgage.
21. MORTGAGOR HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE
NOTE, THIS MORTGAGE, OR THE OTHER SECURITY DOCUMENTS, OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MORTGAGOR, AND
IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY MORTGAGOR.
INITIALS: C
-----------
4
IN WITNESS WHEREOF, Maker, intending to be legally bound, has duly
executed and delivered this Note.
FLORIDA GAMING CORPORATION OF
DELAWARE, A DELAWARE CORPORATION
By: /s/ X. X. Xxxxxxx
--------------------------
CHAIRMAN & CEO
4/22/98
FREEDOM FINANCIAL CORPORATION, AN
INDIANA CORPORATION
By: /s/ X. X. Xxxxxxx
--------------------------
CHAIRMAN & CEO
INITIALS: C
------------
------------
5
