Exhibit 10.28
PLACEMENT FEE AGREEMENT
THIS
PLACEMENT FEE AGREEMENT ("Agreement") is made on September 1, 2005
("Effective Date") irrespective of the date of signing, by and between PDS
GAMING CORPORATION a Minnesota corporation
("PDS"), whose address
is 6280 Annie
Oakley Drive, Las Vegas, NV 89120, and ITG-VEGAS, INC ("ITGV") a Nevada
corporation and INTERNATIONAL THOROUGHBRED BREEDERS, INC ("ITB") a Delaware
corporation (ITGV and ITB are hereinafter
individually and collectively referred
to as "Client" and are and hereby agree to
be jointly and
severally liable
for
all obligations created by this Agreement),
both of whom have
their address at
One East 11 Street, Suite 500, Riviera
Beach, Florida 33404.
RECITALS
WHEREAS,
PDS is engaged in the
business of providing financial services to
the gaming industry; and
WHEREAS,
Client agrees and
acknowledges that but
for the services of PDS,
Client would not have completed a $29.3
million material recapitalization of the
Client's company debt (herein referred to as the "PDS Indebtedness
transaction"); and
WHEREAS,
Client determined that
the involvement of PDS was critical to the
consummation of the PDS Indebtedness transaction and to future financial
transactions that may be contemplated by
Client; and
WHEREAS,
Client agrees that PDS dedicated significant resources to the
efforts to complete the PDS Indebtedness
transaction; and
WHEREAS,
Client had previously
agreed to compensate
PDS for its work with
regard to the PDS Indebtedness transaction and this Agreement
memorializes said
agreement as requested by Client;
NOW, THEREFORE,
IN CONSIDERATION of the mutual covenants and conditions set
forth herein and other good and valuable
consideration,
the sufficiency and
adequacy of which is hereby acknowledged by the parties, it is agreed as
follows:
1) Placement Fee: As a result of the closing of the PDS Indebtedness
transaction
on June 30,
2005, for services rendered by PDS to Client,
Client,
and each of them jointly and severally, agrees to pay PDS a
placement
fee equal to $750,000.00 ("Placement Fee") which shall be
considered
completely
earned and due as of
the Effective Date and will be
in addition to any other fees that may be due to PDS or have been
previously paid to PDS with regard to the PDS Indebtedness transaction.
Client agrees to
pay the Placement Fee in the following manner:
a) Upon the Effective Date of this Agreement, Client has paid to PDS
$50,000.00 which will
be applied to the Placement Fee of $750,000.00
and reduce the unpaid balance of the Placement Fee to
$700,000.00.
b) No additional payments of the Placement Fee to PDS will be
required
until March 1, 2006.
c) The unpaid balance of the
Placement Fee shall not bear any interest.
d) On March 1, 2006, and on the
first day of each month thereafter up to
and including
February 1, 2007, Client will pay to PDS monthly
payments of $58,333.33. In the event the payments are not
received by
PDS on the first day of the month when due and within a 10 day cure
period, then the
unpaid balance of the Placement Fee shall bear
interest at a rate of
fifteen percent (15%) per annum ("Default
Interest") beginning
on the first day of the month in which the
monthly payment of
$58,333.33
is not paid by Client
and received by
PDS and shall continue
until the day the default has been cured. Any
accrued Default
Interest shall be due and payable on the first day of
the month when the next month's payment is due.
e) In the event of default
under this Agreement, PDS shall have the right
after satisfaction
in full under the loan agreement to offset any
unpaid amount of the
Placement Fee against any other assets, cash or
collateral held by PDS for the benefit of Client or in which PDS
has a
perfected security
interest, whether said security interest is
as a
part of this Agreement or any and all other agreements between PDS
and
Client.
f) In the event that Client
refinances
fifty percent or mor of the PDS
Indebtedness transaction, then the entire Placement Fee, including
any
accrued Default Interest, will be due in full and payable
immediately
upon the closing and
funding of the
refinancing.
If payment is not
made at the time of the closing and funding of the refinancing, then
it shall be considered an event of default.
2) Placement Fee Agreement
Collateral:
Client agrees to
ensure and take such
steps as are
necessary to provide
that PDS will have a secondary security
interest in the
proceeds of the Realen-Turnberry/Cherry
Hill, LLC Note
dated
November 29, 2000 ("Turnberry Note") remaining, if any, after
satisfaction
in full of the
loan agreement or release of the note as
security for the loan under the loan agreement. Client may from time to
time
substitute the
collateral with
collateral reasonably
acceptable to
PDS. Such
collateral
substitution will be
valued at an amount equal to or
greater than the
outstanding
balance due for the
payment of the remainder
of the Placement
Fee plus accrued but unpaid interest then due or to become
due pursuant to
the terms of this Agreement.
3) Breach and Default. Client
shall be deemed in breach of this Agreement upon
the failure to
perform any obligation
under this
Agreement and PDS
shall
have all of the
rights set forth herein and all rights at law and in
equity.
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4) Waiver of Jury Trial.
The parties hereby
knowingly and
voluntarily waive
their
right to a jury trial
on any claim or cause of action based upon or
arising out of,
directly or indirectly, this Agreement, any dealings
between the
parties relating to the subject matter hereof o
