Exhibit 3.2
NOTE
$249,026.00 Palm Beach County, Florida
FOR VALUE RECEIVED, FLORIDA GAMING CORPORATION OF DELAWARE, a Delaware
corporation, and FREEDOM FINANCIAL CORPORATION, and Indiana corporation,
having their principal address at ______________________ ("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").
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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 items.
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. Xxxxx'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 provide 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.
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10. Xxxxx 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 Xxxxx.
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 to 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 sum 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 Xxxxx, 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 on 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.
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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 of 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 require 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. XXXXXXXXX XXXXXX 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 XXXXXXXXX, 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 XXXXXXXXX.
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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
------------------,
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