AMENDED AND RESTATED LOAN AGREEMENT
AMENDED
AND RESTATED LOAN AGREEMENT
THIS
AMENDED AND RESTATED LOAN AGREEMENT (“Agreement”) is made and entered into by
and among FLORIDA
GAMING CENTERS, INC.,
a
Florida corporation (“FGCI”), 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 (“Trustee” and
together with FGCI, the “Borrower”) and FREEDOM
FINANCIAL CORPORATION,
an
Indiana corporation “Lender”).
WITNESSETH:
WHEREAS,
Borrowers entered into Loan Documents, including a Loan Agreement, with CIB
Bank
as of October 31, 2001 (the “Original Loan Agreement”), relating to a $4,600,000
loan by CIB Bank to Borrowers with a maturity date of January 31, 2005 (the
“CIB
Loan”) and
WHEREAS,
the Loan Documents were amended by a First Amendment dated as of October 31,
2001; and
WHEREAS,
at January 31, 2005 the principal balance due on the CIB Loan had been reduced
to $3,359,469.54; and
WHEREAS,
Borrowers and First Bank, as successor by merger to CIB Bank, entered into
a
Second Amendment to Loan Documents dated as of January 31, 2005, including
a
Second Amended and Restated Note, under which First Bank loaned Borrowers
$3,359,469.54 with a maturity date of October 31, 2005 (the “First Bank Loan”);
and
WHEREAS,
the Second Amendment to Loan Documents provided that as of January 31, 2005,
First Bank was entitled to receive a deferred fee in the amount of $250,000
“Deferred Fee”), but if First Bank and Citrus Bank, which participated in the
First Bank Loan, exercised certain warrants to purchase shares of common stock
of Florida Gaming Corporation, a Delaware corporation, (“FGC”) (the “First Bank
Warrants”) the amount of the Deferred Fee would be reduced to as low as $81,525;
and
WHEREAS,
the First Bank Loan was secured by mortgages and assignments of rents and leases
on three parcels of land situated in either St. Lucie County or Miami-Dade
County, Florida (the “Mortgages”); and
WHEREAS,
the First Bank Loan was guaranteed by FGC, and by X. Xxxxxxx Xxxxxxx,
(“Xxxxxxx”) individually (the FGC and Xxxxxxx Guaranty Agreements);
and
WHEREAS,
at October 31, 2005, the principal balance due on the First Bank Loan was
reduced to $2,400,000; and
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WHEREAS,
on October 31, 2005, the Lender purchased the First Bank Loan for $2,400,000,
and First Bank assigned the Second Amended and Restated Note and the Mortgages,
but not the FGC or the Xxxxxxx Guaranty Agreements, to Lender; and
WHEREAS,
First Bank retained right to the Deferred Fee and First Bank and Citrus Bank
retained the right to exercise the First Bank Warrants; and
WHEREAS,
the parties hereto have agreed to enter into this Amended and Restated Loan
Agreement for the purpose of setting forth the terms and conditions of the
$2,400,000 loan by FFC to Borrowers (the “FFC Loan”).
NOW,
THEREFORE, in consideration of the premises and the mutual promises of the
parties hereto, they hereby covenant and agree a follows.
1.
The
FFC Loan.
The FFC
Loan shall be evidenced by a Third Amended and Restated Note in the form
attached hereto as Exhibit “1” and incorporated herein by
reference.
2.
Security
for FFC Loan.
The FFC
Loan shall be secured by the Mortgages, except that approximately 70 acres
of
land adjoining the Fort Xxxxxx Xxx Alai which is being sold shall not serve
as
security for the FFC Loan.
3.
Guaranty
of FFC Loan.
The
payment of the FCC Loan shall be unconditionally guaranteed by FGC and by
Xxxxxxx.
4.
Representations
and Warranties of FGCI.
FGCI
hereby represents and warrants to Lender as follows:
(a) |
Corporate
Standing.
FGCI is a corporation duly organized, validly existing an in good
standing
under the laws of the State of Florida. FGCI has full corporate power
and
authority to own or hold the properties it now owns, and to carry
on the
business presently conducted by it. FGCI has full corporate power
and
authority to enter into this Agreement and all other agreements
contemplated by this Agreement, and to consummate the transactions
contemplated hereunder.
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(b) |
Authorization,
Execution and Delivery of Agreement by FGCI.
This Agreement has been duly authorized by all necessary corporate
action
and has been duly executed and delivered by FGCI. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with or constitute a violation
of
any provision of the articles of incorporation, bylaws, any material
contract, trust agreement, pledge agreement, indenture, or other
agreement
or instrument to which FGCI is a party or by which FGCI is bound
or any of
its properties is subject.
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5.
Survival
of Representations and Warranties.
FGCI
agrees that all representations and warranties in this Agreement will be true,
correct, and complete in all material respects at the Loan Closing Date and
at
all times thereafter until the FFC Loan is paid in full.
6.
Closing.
The FCC
Loan shall be closed as of October 31, 2005 (the “Closing Date”). At the closing
FRCI shall deliver the following documents (“Loan Documents”) to Lender, all of
which shall be duly executed by the Borrower and the Guarantors, as the case
may
be:
(a)
This
Agreement.
(b)
The
Third Amended and Restated Note.
(c)
The
FGC and the Xxxxxxx Guaranty Agreements.
7.
Borrower’s
Agreements. Sections 6.3, 6.4, 6.5, 6.7, 6.8, 6.9 6.12, 6.13, 6.14, 6.15, 6.16,
6.20 and 6.21 of the Original Loan Agreement, a copy of which is attached
hereto, are incorporated herein by reference.
8.
Insurance
Policies.
Article
7 of the Original Loan Agreement is incorporated herein by
reference.
9.
Casualties.
Article
8 of the Original Loan Agreement is incorporated herein.
10.
Defaults.
Article
9 of the Original Loan Agreement is incorporated herein by
reference.
11.
Lender’s Remedies in the Event of Default. Article 10 of the Original
Loan Agreement is incorporated herein by reference.
12.
Notices.
Notices
and other communications provided for herein and in the other Loan Documents
shall be in writing and shall be delivered personally, sent via facsimile,
mailed, by certified or registered mail, postage prepaid or delivered by
overnight courier addressed:
If
to
Lender:
Freedom
Financial Corporation
0000
Xxxxxxxxxxx Xxxx, Xxxxx X
Xxx
Xxxxxx, XX 00000
Attention:
Xxxxxxxx X. Xxxxx
If
to
Borrower:
Florida
Gaming Centers, Inc.
0000
X.X.
00xx
Xxxxxx
Xxxxx,
xx
00000
Attention:
X. Xxxxxxx Xxxxxxx
All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the
date
of personal delivery, mailing or facsimile transmission and on the date one
business day after delivery to an overnight courier, in each case addressed
to
such person as provided above, or in accordance with the latest unrevoked
direction from such person.
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13.
General
Provisions.
Sections 11.2, 11.3, 11.4, 11.5, 11.7, 11.8, 11.9, 11.10, 11.11, 11.14, 11.15,
11.16, 11.17, and 11.18 of the Original Loan Agreement are incorporated herein
by reference.
14.
Land
Trust Exculpation.
This
Agreement 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 Agreement shall be construed as creating any
liability on City National Bank of Florida personally to pay the indebtedness
evidenced by the Third Amended and Restated 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 Lender and by every person now of hereafter claiming any right
hereunder.
15.
Applicable
Law.
This
Agreement and the other Loan Documents shall be governed by and construed in
accordance with the laws of the State of Indiana (exclusive of its conflict
of
laws provisions) except with respect to the provisions of any Loan Documents
which relate to realizing upon any collateral located outside the State of
Indiana which shall be governed by the law of the state in which the collateral
is located.
16.
BORROWER IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY OR
RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT AND THE OTHER
LOAN
DOCUMENTS 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.
17.
BORROWER 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
AGREEMENT OR OTHER 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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IN
WITNESS WHEREOF, the Borrower and the Lender have executed this Agreement as
of
the 31st
day of
October, 2005.
THE
BORROWER:
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FLORIDA
GAMING CENTERS, INC
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ATTEST: |
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By:
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By:
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Xxxxxxxx
X. Xxxxx
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X.
Xxxxxxx Xxxxxxx
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Secretary
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Chairman
and CEO
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CITY
NATIONAL BANK OF FLORIDA,
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successor
by merger to City National Bank
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of
Miami, as Trustee under Trust Agreement
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dated
January 3, 1979 and known as Trust
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No.
5003471
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By:
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Name:
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Title:
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THE
LENDER:
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FREEDOM
FINANCIAL CORPORATION
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By:
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X.
Xxxxxxx Xxxxxxx
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Chairman
and CEO
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