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PROMISSORY NOTE
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Exhibit 10.13
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U.S.
$1,322,573.73
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November 1, 2008
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New Albany, Indiana
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F0R VALUE RECEIVED, FLORIDA GAMING CENTERS,
INC., a Florida Corporation (“FGCI”), promise to pay to
the order of FREEDOM HOLDING, INC. a Delaware 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 One Million Three Hundred
Twenty Two Thousand Five Hundred Seventy Three Dollars and 73/100
($1,322,573.73) or such lesser principal amount as may be owed by
Borrower to Lender hereunder, together with interest on the unpaid
balance until paid, at the rate of ten percent (10%) 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 May 1, 2009 (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:
Borrower may repay all or any portion of this
Note, at any time and from time to time, subject to the following
terms:
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(a)
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Each partial
prepayment shall be in a minimum principal amount of $100,000 and
in integral multiples of $50,000;
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(b)
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Borrower shall
provide Lender with at least fifteen (15) days prior written notice
of any prepayment;
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(c)
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Borrower shall
pay to Lender all accrued and unpaid interest through the date of
such prepayment on the principal balance being prepaid;
and
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(d)
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Borrower shall
pay to Lender any other obligations of the Borrower to the Lender
then due which remain unpaid.
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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 Lender 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.
Borrower warrants and represents to Lender that
Borrower shall use the proceeds represented by this Note solely
for proper business purposes.
All of Lender’s rights and remedies under
this Note are cumulative and non- exclusive. The acceptance by
Lender of any partial payment made hereunder after the time when
any of Borrower’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).
Borrower agrees to pay, upon Lender’s
demand therefore, any and all costs, fees and expenses (including
reasonable attorneys’ fees, costs and expenses) incurred in
enforcing any of Lender’s rights hereunder, and to the extent
not paid shall become part of Borrower’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 FLOYD, 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.
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 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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ATTEST:
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BORROWER:
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FLORIDA
GAMING CENTERS, INC .
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By:
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/s/
Kimberly R. Tharp
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By
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/s/
W.Bennett Collett
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Chairman of the
Board and CEO
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER STATE
SECURITIES LAWS. THESE SECURITIES MAY NOT BE RESOLD OR TRANSFERRED
UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS, AND HEDGING TRANSACTIONS
INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS
AMENDED.
WARRANT TO PURCHASE COMMON
STOCK OF
FLORIDA GAMING
CORPORATION
Void after November 1,
2011
Number of Shares:
20,000
This certifies that Freedom Holding, Inc. (the
“ Holder ”), for value received, is entitled to
purchase, subject to the terms and conditions of this warrant (this
“ Warrant ”), from Florida Gaming Corporation, a
Delaware corporation (the “ Company ”), having
its principal place of business at 3500 N.W. 37 th
Avenue, Miami, Florida 33142, an aggregate of Twenty Thousand
(20,000) shares (the “ Warrant Shares ”) of the
Company’s common stock, par value $0.20 per share (together
with any common stock into which such common stock may be converted
in connection with any merger or consolidation of the Company, the
“Common Stock”), at a price per share of $8.25 (the
“ Exercise Price ”).
This Warrant shall be exercisable, in whole or
in part, at any time or from time to time from and after November
1, 2008 (the “ Initial Exercise Date ”) up to
and including 5:00 p.m. (Eastern Time) on November 1, 2011 (such
date being referred to herein as the “ Expiration Date
”), upon surrender to the Company at its principal office (or
at such other location as the Company may advise the Holder in
writing) of this Warrant properly endorsed with (i) the Exercise
Form attached hereto duly completed and executed and (ii) payment
pursuant to Section 2 of the aggregate Exercise Price for the
number of Warrant Shares for which this Warrant is being exercised
determined in accordance with the provisions hereof. The Exercise
Price and the number of Warrant Shares purchasable hereunder are
subject to further adjustment as provided in Section 4 of this
Warrant
Exercise; Issuance of Certificates;
Acknowledgement . This
Warrant is exercisable at the option of the Holder of record
hereof, at any time or from time to time on or after the Initial
Exercise Date up to the Expiration Date, for all or any part of the
Warrant Shares (but not for a fraction of a Warrant Share) which
may be purchased hereunder. The Company agrees that the shares of
Common Stock purchased under this Warrant shall be and are deemed
to be issued to the Holder hereof as the record owner of such
shares as of the close of business on the date on which this
Warrant shall have been surrendered, properly endorsed, the
completed, executed
