THIRD AMENDED AND RESTATED NOTE
THIRD
AMENDED AND RESTATED NOTE
U.S. $2,400,000.00 |
October
31, 2005
|
New
Albany,
Indiana
|
F0R VALUE RECEIVED, FLORIDA GAMING CENTERS, INC., a Florida Corporation (“FGCI”)
and CITY NATIONAL BANK OF FLORIDA, successor by merger to City National Bank
of
Miami, as Trustee under Trust Agreement dated January 3, 1979, and known as
Trust No. 5003471 (“Trust” and together with FGCI, the “Borrower”),promise to
pay to the order of FREEDOM FINANCIAL CORPORATION, an Indiana corporation,
(“Lender”), at its place of business in New Albany, Indiana or such other place
as Lender may designate from time to time hereafter, the principal amount of
Two
Million Four Hundred Dollars ($2,400,000)or such lesser principal amount as
may
be owed by Xxxxxxxx to Lender hereunder, together with interest on the unpaid
balance until paid, at the rate of eight percent (8%) per annum(the “Stated
Rate”). Interest shall be computed on the basis of a 360 day year and charged
for the actual number of days elapsed. The final payment of all then outstanding
principal and interest shall be due on October 31, 2008 (the “Maturity Date”).
Borrower’s obligations under this Note shall be defined and referred to herein
as “Borrower’s Liabilities”.
All payments received hereunder shall be first applied to interest due and
the
balance, if any, to principal. Principal and interest shall be payable as
follows:
Commencing on the twentieth (20th)
day of
November, 2005 and continuing on the twentieth (20th)
day of
each month thereafter until the Maturity Date, Borrower shall make monthly
payments of principal and interest to Lender as necessary to repay the then
outstanding principal balance at the Stated Rate (with interest payable in
arrears) amortized on a level term basis over a twenty-five (25) year term
commencing on the date hereof. If not sooner paid, the outstanding principal
amount of the loan evidenced hereby and all interest accrued and unpaid thereon,
shall be due and payable on the Maturity Date.
Borrower may repay all or any portion of this Note, at any time and from time
to
time, subject to the following terms:
(a)
Each
partial prepayment shall be in a minimum principal amount of $100,000 and in
integral multiples of $50,000;
(b)
Borrower
shall provide Lender with at least fifteen (15) days prior written notice of
any
prepayment;
(c)
Borrower
shall pay to Lender all accrued and unpaid interest through the date of such
prepayment on the principal balance being prepaid; and
(d)
Borrower
shall pay to Lender any other obligations of the Borrower to the Lender then
due
which remain unpaid.
All principal payments hereunder shall be accompanied by accrued interest on
the
principal amount being repaid to the date of payment. All payments hereunder,
whether in respect of principal, interest, or otherwise, shall be made without
setoff, counterclaim or deduction in same day funds no later than 2:00 p.m.,
Indiana time, on the date due by wire transfer (or by advice of transfer from
or
between accounts of Borrower and Lender) to such account as Lender shall specify
from time to time by notice to Borrower. Funds received after that time shall
be
deemed to have been received by Xxxxxx on the next following Business Day.
All payments shall be made in immediately available U.S. Dollars. Whenever
any
payment to be made shall otherwise be due on a day which is not a Business
Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in computing interest, if any, in connection
with such payment.
Reference is hereby made to those certain Loan Documents executed between
Xxxxxxxx and CIB Bank dated as of October 31, 2001, as modified by a First
Modification of Loan Documents by and among Borrower, CIB Bank, Florida Gaming
Corporation, a Delaware corporation (“FGC”), and X. Xxxxxxx Xxxxxxx, an
individual, (“Xxxxxxx”) dated as of October 31, 2004; a Second Modification of
Loan Documents dated as of January 31, 2005 by and among Xxxxxxxx, First Bank
as
successor by merger to CIB Bank, FGC, and Xxxxxxx; and a Third Modification
of
Loan Documents of even date herewith by and among Xxxxxxxx, Lender, FGC and
Xxxxxxx (as the same may be amended from time to time, the “Loan Agreement”) for
a statement of (a) the terms and conditions under which the loan evidenced
hereby has been made, secured and is to be repaid, and (b) Xxxxxx’s remedies
upon the occurrence of a Event of Default hereunder. The terms and conditions
of
the Loan Agreement are incorporated herein by reference in their entirety.
Any
capitalized terms under herein that are not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
Borrower
warrants and represents to Lender that Borrower shall use the proceeds
represented by this Note solely for proper business purposes, and
consistently with all applicable statutes and the provisions of the Loan
Agreement and Loan Documents.
All of Xxxxxx’s rights and remedies under this Note are cumulative and non-
exclusive. The acceptance by Xxxxxx of any partial payment made hereunder after
the time when any of Xxxxxxxx’s Liabilities become due and payable will not
establish a custom, or waive any rights of Lender to enforce prompt
payment hereof. Lender’s failure to require strict performance by Borrower of
any provision of this Note shall not waive, affect, or diminish any right of
Lender thereafter to demand strict compliance and performance therewith. Any
waiver of an Event of Default hereunder shall not suspend, waive or affect
any
other Event of Default hereunder. Borrower and every endorser waive presentment
demand and protest and notice of presentment, protest, default, non-payment,
maturity, release, compromise, settlement, extension or renewal of this Note,
and hereby ratify and confirm whatever Lender may do in this regard. Borrower
further waives any and all notice or demand to which Borrower might be entitled
with respect to this Note by virtue of any statute or law (to the extent
permitted by law).
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Xxxxxxxx agrees to pay, upon Xxxxxx’s demand therefor, any and all costs, fees
and expenses (including reasonable attorneys’ fees, costs and expenses) incurred
in enforcing any of Xxxxxx’s rights hereunder, and to the extent not paid shall
become part of Xxxxxxxx’s Liabilities hereunder.
If any provision of this Note or the application thereof to any party or
circumstance is held invalid or unenforceable, the remainder of this Note and
the application thereof to other parties or circumstances will not be affected
thereby, the provisions of this Note being severable in any such
instance.
If this Note is signed by more than one party, the liability of each such party
shall be joint and several, and each reference herein to Borrower shall be
deemed to refer to each such party.
This Note is submitted by Borrower to Lender at Lender’s principal place of
business and shall be deemed to have been made thereat. This Note shall be
governed and controlled by the laws of the State of Indiana as to
interpretation, enforcement, validity, construction, and effect, but without
reference to its choice of law provisions. Any notice required hereunder shall
be served consistent with the terms and provisions of the Loan Agreement
relating to notice.
No modification, waiver, estoppel, amendment, discharge or change of this Note
or any related instrument shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
estoppel amendment, discharge or change is sought.
BORROWER IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY OR
RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS NOTE MAY BE LITIGATED IN
COURTS HAVING SITUS WITHIN THE JURISDICTION OF THE COUNTY OF XXXXX, STATE OF
INDIANA. BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY LOCAL, STATE OR
FEDERAL COURT LOCATED IN SAID COUNTY AND STATE AND WAIVES ANY OBJECTION IT
MAY
HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY
PROCEEDING HEREUNDER.
XXXXXXXX
AND LENDER IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN AN ACTION OF
PROCEEDING: (1) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH
THIS
NOTE OR AMENDMENT, INSTRUMENT, DOCUMENT, OR AGREEMENT DELIVERED OR WHICH MAY
IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH 0R (2) ARISING FROM ANY DISPUTE
OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS NOTE OR ANY SUCH AMENDMENT,
INSTRUMENT, DOCUMENT, OR AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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This Note is a restatement of the indebtedness evidenced by and is a replacement
of that certain Second Amended and Restated Note of the undersigned dated
January 31, 2005 in the face principal amount of $3,359,469.54 payable to the
order of First Bank as successor by merger to CIB Bank as predecessor in
interest to Lender (“Prior Note”), and nothing contained herein shall be
construed (i) to deem paid or forgiven the unpaid principal amount of, or unpaid
accrued interest on the Prior Note outstanding at the time of its replacement
by
this Note; or (ii) to release, cancel, terminate or otherwise adversely affect
all or any part of any security interest or other encumbrance heretofore granted
to or for the benefit of the Prior Note.
This Note is executed and delivered by City National Bank of Florida, not
personally, but as Trustee as aforesaid in the exercise of the power and
authority conferred upon and vested in such Trustee, provided, that City
National Bank of Florida hereby personally warrants that it possesses full
power
and authority to execute and deliver same. It is expressly understood and agreed
that nothing contained in this Note shall be construed as creating any liability
on City National Bank of Florida personally to pay the indebtedness evidenced
by
this Note and the other Loan Documents or any interest that may accrue thereon,
or to perform any covenant, express or implied, contained therein, all such
personal liability, if any, being expressly waived by Xxxxxx and by every person
now of hereafter claiming any right hereunder.
ATTEST: | BORROWER: | |||
FLORIDA GAMING CENTERS, INC. | ||||
By: | /s/ Xxxxxxxx X. Xxxxx | By: | /s/ X. Xxxxxxx Xxxxxxx | |
Xxxxxxxx X. Xxxxx | X. Xxxxxxx Xxxxxxx | |||
Secretary | Chairman of the Board and CEO | |||
|
|
CITY NATIONAL
BANK OF
FLORIDA
Successor
by merger to City National
Bank
of Miami, as Trustee under Trust
Agreement
dated January 3, 1979 and
known
as Trust No. 500371
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