SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
FLORIDA GAMING CORPORATION
--------------------------
(Name of Issuer)
Common Stock, par value $.10 per share
--------------------------------------
(Title of Class of Securities)
340689-10-8
(CUSIP Number)
FREDERIC DORWART
Old City Hall
124 East Fourth Street
Tulsa, OK 74103-5010
(918) 583-9922
(918) 583-8251 (Facsimile)
-------------------------------------------------
(Name, Address and Telephone Number
Person Authorized to Receive
Notices and Communications)
September 12, 1996
-------------------------------
(Date of Event Which Required Filing)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b) (3) or (4), check this box [ ].
Check the following box if a fee is being paid with this statement [X].
Page 1 of 19 Pages
CUSIP No. 340689-10-8
(1) Name of Reporting Person S.S. BOK DPC Asset Holding Corporation
or I.R.S. Identification No.
of Above Person
(2) Check the Appropriate Box (a) [ ]
if a Member of a Group (b) [ ]
(See instructions)
(3) SEC Use Only
(4) Source of Funds (See instructions) CO
(5) Check if Disclosure of Legal
Proceedings is Required
Pursuant to Items 2(d) or 2(e)
(6) Citizenship or Place Oklahoma Corporation
of Organization
Number of Shares Beneficially
Owned by Each Reporting
Person With:
(7) Sole Voting Power Zero
(8) Shared Voting Power Zero
(9) Sole Dispositive Power 703,297
(10) Shared Dispositive Power None
(11) Aggregate Amount Beneficially 703,297
Owned by Each Reporting Person
(12) Check if the Aggregate Amount in [ ]
Row (11) Excludes Certain Shares
(See instructions)
(13) Percent of Class Represented by 20.7
Amount in Row (11)
(14) Type of Reporting Person CO
(See instructions)
Page 2 of 19 Pages
SCHEDULE 13D
Filed In Connection with Transactions in the
Shares of Florida Gaming Corporation
--------------------------------------------
ITEM 1. SECURITY AND ISSUER
This schedule relates to the common stock, par value $.10 per share (the
"Common Stock"), of Florida Gaming Corporation, a Delaware corporation (the
"Issuer" or the "Company"). The principal executive offices of the Issuer are
located at 1750 South Kings Highway, Fort Pierce, Florida 34945-3099.
ITEM 2. IDENTITY AND BACKGROUND
(1) GENERAL. This statement is filed on behalf of BOK DPC Asset Holding
Corporation, an Oklahoma Corporation ("DPC"). BOK Financial Corporation
("BOKF") owns all of the issued and outstanding capital stock of Bank of
Oklahoma, National Association ("BOK"). BOK owns all of the issued and
outstanding capital stock of DPC. George B. Kaiser ("Kaiser") owns
approximately 76% of the issued and outstanding common stock of BOKF. The
common stock of BOKF is listed for trading on NASDAQ under the trading symbol
"BOKF".
(2) BOKF. BOKF is an Oklahoma corporation. BOKF is a bank holding
company under the Bank Holding Act of 1965. The address of the principal
business and principal office of BOKF, BOK and DPC is:
Bank of Oklahoma Tower
P.O. Box 2300
Tulsa, Oklahoma 74192
With respect to paragraphs (d) and (e) of this Item 2, none.
(3) The executive officers, directors, and each person who may be deemed
to be controlling DPC are as follows:
(4) (a) George B. Kaiser (Director of BOKF and BOK)
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Chairman of the Board of Directors and Chief Executive Officer
BOK FINANCIAL CORPORATION and
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
Sole Director, Chief Executive Officer and Principal Owner of
GBK Corporation (holding company of Kaiser-Francis Oil Company
and related entities) (oil and gas exploration, production,
marketing, acquisition and disposition)
Page 3 of 19 Pages
KAISER-FRANCIS OIL COMPANY
P.O. Box 21468
Tulsa, OK 74121-1468
(d) No
(e) No
(f) United States of America
(5) (a) W. Wayne Allen (Director of BOKF and BOK)
(b) 18 Phillips Building
Bartlesville, OK 74004
(c) President and Chief Executive Officer
PHILLIPS PETROLEUM CO.
18 Phillips Building
Bartlesville, OK 74004
(d) No
(e) No
(f) United States of America
(6) (a) Keith E. Bailey (Director of BOKF and BOK)
(b) P.O. Box 2400
One Williams Center - 49th Floor
Tulsa, OK 74102
(c) Chairman of the Board and Chief Executive Officer
THE WILLIAMS COMPANIES, INC.
(diversified company primarily engaged in pipeline and
telecommunications activities)
P.O. Box 2400
One Williams Center - 49th Floor
Tulsa, OK 74102
(d) No
(e) No
Page 4 of 19 Pages
(f) United States of America
(7) (a) James E. Barnes (Director of BOKF)
(b) 1800 South Baltimore Avenue
P.O. Box 645
Tulsa, OK 74101-0645
(c) Chairman of the Board and Chief Executive Officer
MAPCO, INC.
(diversified energy company with primary operations in
pipelines, petroleum products, natural gas liquids, coal
and liquid plant foods)
1800 South Baltimore Avenue
P.O. Box 645
Tulsa, OK 74101-0645
(d) No
(e) No
(f) United States of America
(8) (a) Sharon J. Bell (Director of BOKF)
(b) P. O. Box 3209
320 South Boston, Suite 801
Tulsa, Oklahoma 74103
(c) Attorney and Managing Partner
ROGERS AND BELL
P. O. Box 3209
320 South Boston, Suite 801
Tulsa, Oklahoma 74103
(d) No
(e) No
(f) United States of America
(9) (a) Larry W. Brummett (Director of BOKF and BOK)
(b) 100 West Fifth Street
Page 5 of 19 Pages
Tulsa, OK 74103
(c) Chairman of the Board, President and Chief Executive Officer
ONEOK, Inc.
100 West Fifth Street
Tulsa, OK 74103
(d) No
(e) No
(f) United States of America
(10) (a) Chuck Cotter
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Senior Vice President
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(11) (a) Glenn A. Cox (Director of BOKF and BOK)
(b) 401 SE Dewey, Suite 318
Bartlesville, OK 74003
(c) Retired President and COO
PHILLIPS PETROLEUM COMPANY
(diversified company primarily engaged in oil and gas
exploration, production, refining and marketing and
pipeline system operations domestically and internationally)
401 SE Dewey, Suite 318
Bartlesville, OK 74003
(d) No
Page 6 of 19 Pages
(e) No
(f) United States of America
(12) (a) Ralph S. Cunningham (Director of BOKF and BOK)
(b) P.O. Box 3758
Tulsa, OK 74102-3758
(c) President and CEO
Citgo Petroleum Corporation
P.O. Box 3758
Tulsa, OK 74102-3758
(d) No
(e) No
(f) United States of America
(13) (a) Nancy F. Davies (Director of BOKF and BOK)
(b) 2802 Meadowlark Lane
Enid, OK 73703
(c) Community Leader
2802 Meadowlark Lane
Enid, OK 73703
(d) No
(e) No
(f) United States of America
(14) (a) Dr. Robert H. Donaldson (Director of BOKF and BOK)
(b) 600 South College
Tulsa, OK 74104
(c) President
THE UNIVERSITY OF TULSA
600 South College
Page 7 of 19 Pages
Tulsa, OK 74104
(d) No
(e) No
(f) United States of America
(15) (a) William E. Durrett (Director of BOKF)
(b) P.O. Box 25523
Oklahoma City, OK 73125
(c) Chairman, President and CEO
AMERICAN FIDELITY CORP.
(insurance holding company)
P.O. Box 25523
Oklahoma City, OK 73125
(d) No
(e) No
(f) United States of America
(16) (a) Mark W. Funke
(b) P.O. Box 24128
Oklahoma City, OK 73124
(c) Executive Vice President
BANK OF OKLAHOMA, N.A.
P.O. Box 24128
Oklahoma City, OK 73124
(d) No
(e) No
(f) United States of America
(17) (a) James O. Goodwin (Director of BOKF and BOK)
Page 8 of 19 Pages
(b) P. O. Box 3267
624 East Archer
Tulsa, Oklahoma 74101
(c) Chief Executive Officer, The Oklahoma Eagle Publishing Co.
P. O. Box 3267
624 East Archer
Tulsa, Oklahoma 74101
(d) No
(e) No
(f) United States of America
(18) (a) D. Joseph Graham (Director of BOK)
(b) P.O. Box 21468
(6733 S. Yale - 74136)
Tulsa, OK 74121-1468
(c) Vice President and CFO
KAISER-FRANCIS OIL COMPANY
P.O. Box 21468
(6733 S. Yale - 74136)
Tulsa, OK 74121-1468
(d) No
(e) No
(f) United States of America
(19) (a) V. Burns Hargis (Director of BOKF and BOK)
(b) Two Leadership Square, Tenth Floor
Oklahoma City, OK 73102
(c) Attorney and of Counsel to
Law Firm of McAfee & Taft
Two Leadership Square, Tenth Floor
Oklahoma City, OK 73102
Page 9 of 19 Pages
(d) No
(e) No
(f) United States of America
(20) (a) Eugene A. Harris (Director of BOK)
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Executive Vice President
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(21) (a) H. James Holloman
(b) P.O. Box 2300
Tulsa, OK 74192
(c) President
BANCOKLAHOMA TRUST COMPANY
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(22) (a) Thomas J. Hughes, III (Director of BOKF and BOK)
(b) P.O. Box 2220 (9810 East 42nd St.)
Tulsa, OK 74101
Page 10 of 19 Pages
(c) President and Chief Executive Officer
HUGHES LUMBER CO.
P.O. Box 2220 (9810 East 42nd St.)
Tulsa, OK 74101
(d) No
(e) No
(f) United States of America
(23) (a) E.C. Joullian, IV (Director of BOKF and BOK)
(b) 2000 Classen Center - 800 East
Oklahoma City, OK 73106
(c) President
Mustang Fuel Corporation
2000 Classen Center - 800 East
Oklahoma City, OK 73106
(d) No
(e) No
(f) United States of America
(24) (a) Robert J. LaFortune (Director of BOKF)
(b) 2104 Philtower Building
427 South Boston
Tulsa, Oklahoma 74103
(c) Investments
2104 Philtower Building
427 South Boston
Tulsa, Oklahoma 74103
(d) No
(e) No
(f) United States of America
Page 12 of 19 Pages
(25) (a) David L. Laughlin
(b) 7060 S. Yale - #200
Tulsa, OK 74136
(c) President
BancOklahoma Mortgage Corp.
7060 S. Yale - #200
Tulsa, Oklahoma 74136
(d) No
(e) No
(f) United States of America
(26) (a) Philip C. Lauinger, Jr. (Director of BOKF)
(b) 320 S. Boston, Suite 1130
Tulsa, OK 74103
(c) President and Chief Executive Officer
LAUINGER PUBLISHING COMPANY
320 S. Boston, Suite 1130
Tulsa, OK 74103
(d) No
(e) No
(f) United States of America
(27) (a) David R. Lopez (Director of BOKF and BOK)
(b) 800 North Harvey
Oklahoma City, OK 73102
(c) President - Oklahoma
Southwestern Bell Telephone
800 North Harvey
Oklahoma City, OK 73102
(d) No
Page 12 of 19 Pages
(e) No
(f) United States of America
(28) (a) Stanley A. Lybarger (Director of BOKF and BOK)
(b) P.O. Box 2300
Tulsa, OK 74192
(c) President and COO
BOK FINANCIAL CORPORATION and
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(29) (a) Frank A. McPherson (Director of BOKF and BOK)
(b) P.O. Box 25861
Oklahoma City, OK 73125
(c) Chairman of the Board and CEO
KERR-McGEE CORPORATION
P.O. Box 25861
Oklahoma City, OK 73125
(d) No
(e) No
(f) United States of America
(30) (a) Paul Mesmer
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Senior Vice President
Page 13 of 19 Pages
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(31) (a) John J. Maintz
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Senior Vice President
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(32) (a) John C. Morrow
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Senior Vice President/Controller
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(33) (a) Robert L. Parker, Sr. (Director of BOKF)
Page 14 of 19 Pages
(b) Eight East Third Street
Tulsa, OK 74103
(c) Board Chairman
PARKER DRILLING COMPANY
Eight East Third Street
Tulsa, OK 74103
(d) No
(e) No
(f) United States of America
(34) (a) James W. Pielsticker (Director of BOKF and BOK)
(b) 4230 South Elwood
Tulsa, OK 74107
(c) Arrow Trucking Company
4230 South Elwood
Tulsa, OK 74107
(d) No
(e) No
(f) United States of America
(35) (a) James A. Robinson (Director of BOKF)
(b) 1924 S. Utica, Suite 1004
Tulsa, OK 74104
(c) Investments
1924 S. Utica, Suite 1004
Tulsa, OK 74104
(d) No
(e) No
(f) United States of America
Page 15 of 19 Pages
(36) (a) L. Francis Rooney, III (Director of BOKF and BOK)
(b) 111 West Fifth Street
Tulsa, OK 74103-4253
(c) Chairman of the Board and Chief Executive Officer
Manhattan Construction Co.
111 West Fifth Street
Tulsa, OK 74103-4253
(d) No
(e) No
(f) United States of America
(37) (a) Norman W. Smith
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Executive Vice-President
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(38) (a) Wayne D. Stone
(b) P.O. Box 24128
Oklahoma City, OK 73124
(c) President-Oklahoma City
BANK OF OKLAHOMA, N.A.
P.O. Box 24128
Oklahoma City, OK 73124
(d) No
Page 16 of 19 Pages
(e) No
(f) United States of America
(39) (a) Gregory K. Symons
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Executive Vice President
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(40) (a) James A. White (Director of BOK)
(b) P.O. Box 2300
Tulsa, OK 74192
(c) Executive Vice-President and Chief Financial Officer of BOKF
and BOK
BANK OF OKLAHOMA, N.A.
P.O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(41) (a) Charles D. Williamson
(b) P. O. Box 2300
Tulsa, OK 74192
(c) Executive Vice-President
BANK OF OKLAHOMA, N.A.
Page 17 of 19 Pages
P. O. Box 2300
Tulsa, OK 74192
(d) No
(e) No
(f) United States of America
(42) (a) Robert L. Zemanek (Director of BOKF and BOK)
(b) 212 East 6th Street
Tulsa, OK 74119
(c) President and CEO
Public Service Company of Oklahoma
212 East 6th Street
Tulsa, OK 74119
(d) No
(e) No
(f) United States of America
ITEM 3. SOURCE OR AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Owned assets.
ITEM 4. PURPOSE OF TRANSACTIONS.
To recover losses on loans previously made by a borrower. DPC intends to sell
the Issuer's securities from time to time to purchasers in directly negotiated
transactions and in the over-the-counter market.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
703,297 shares of the Issuer's Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, OR UNDERSTANDINGS WITH RESPECT TO SECURITIES
OF ISSUER.
Pursuant to an agreement with the Issuer, certificates representing the
securities being acquired will not be delivered to DPC until the Division of
Pari-mutuel Wagering with the Florida Department of Business and Professional
Regulation (the "Division") enters an ordering authorizing the delivery of the
certificates (the "Division's Order") and, when delivered, will be delivered
to an affiliate of DPC in trust pursuant to the Division's Order. DPC expects
the Division's Order to require DPC to give an irrevocable proxy requiring the
securities being acquired to be voted in the same proportion as the holders of
all other securities of the Issuer vote their securities until such time as
the securities are sold by DPC to a third party.
Page 18 of 19 Pages
Pursuant to an agreement with the Issuer the securities being acquired are
being registered for resale by DPC with the Securities and Exchange Commission
and with the securities commissions of various states.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
(a) Not applicable
(b) (i) Loan Sale Agreement dated July 3, 1996.
(ii) First Amendment to Loan Sale Agreement dated September 12,
1996.
(iii) Secured Note between the Company and BOK dated September 12,
1996.
(iv) Pledge Agreement dated September 12, 1996
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and
correct.
BOK DPC Asset Holding Corporation
by Stanley A. Lybarger, President
Signed: /s/ Stanley A. Lybarger
Page 19 of 19 Pages
Exhibit Item 7. (b)(i)
LOAN SALE AGREEMENT
This agreement (the "Agreement") is made this 3 day of July, 1996 between:
(i) Florida Gaming Corporation ("FGC");
(ii) Bank of Oklahoma, National Association ("BOK"); and,
(iii) BOK DPC Asset Holding Corporation, an Oklahoma
Corporation ("DPC").
In consideration of the mutual promises and covenants hereinafter set
forth (the adequacy of which FGC, BOK and DPC hereby expressly acknowledge),
and intending to be legally bound hereby, FGC, BOK, and DPC agree as follows:
(1) PURPOSE OF THIS AGREEMENT. WJA Realty Limited Partnership ("WJA") has
heretofore made and issued those certain promissory notes and loan
agreements ("WJA Notes") described on Exhibit A attached hereto and by
this reference made a part hereof. In connection with the making and
issuance of the WJA Notes, WJA executed and delivered various collateral
and security interests (the "WJA Collateral") securing payment and
performance of the WJA Notes described on Exhibit B attached hereto and
by this reference made a part hereof. BOK is the owner of the WJA Notes
and the WJA Collateral. DPC is a wholly-owned subsidiary of BOK. FGC
desires to purchase the WJA Notes and WJA Collateral from BOK. The
purpose of this Agreement is to set forth the terms and conditions on
which BOK shall sell the WJA Notes and WJA Collateral to FGC.
(2) AGREEMENT TO PURCHASE AND SELL WJA NOTES. On the terms and conditions
set forth in this Agreement, BOK shall sell to FGC, and FGC shall buy
from BOK, the WJA Notes and WJA Collateral (the "Purchase").
(a) The purchase price ("Purchase Price") shall be:
(i) Eight Million United States Dollars (the "Cash
Consideration"); and,
(ii) Six Hundred Fifteen Thousand Three Hundred and Eighty-five
(615,385) shares, subject to adjustment as hereafter
provided, of $0.10 par value common stock of FGC (the "FGC
Common Stock" or the "Stock Consideration").
(iii) A non-interest bearing promissory note (the "FGC Note") in
the principal amount of One Million United States Dollars
($1,000,000) which note shall be in the form and content of
Exhibit C attached hereto.
(b) The Cash Consideration shall be paid at Closing by the wire
transfer on the Closing Date (as hereafter defined) of United
States Dollars immediately available in Tulsa, Oklahoma in
accordance with the following wire transfer instructions:
Bank of Oklahoma, National Association
ABA Routing Number: 103900036
Reference: WJA Realty
For Credit To: Tulsa Loan Operations
(c) In the event the Reference Price of FGC Common Stock (as
hereafter determined) is less than $6.50 per share, FGC shall, at
FGC's option, do one of the following (the "Repricing Option") :
(i) increase the number of shares which shall constitute the
Stock Consideration to an amount determined by dividing
Four Million and Three Dollars ($4,000,003) by the
Reference Price; or,
(ii) pay BOK Four Million and Three United States Dollars
(US$4,000,003) in funds immediately available in Tulsa,
Oklahoma.
(iii) The Reference Price shall be the average of the mid-points
of the daily high and low prices of FGC Common Stock for
each of the ten trading days immediately preceding the
Closing.
(d) If there are any changes in the capitalization of FGC occasioned
by reorganization, combination of shares, declaration or payment
of stock dividends, stock splits, reverse stock splits,
reclassifications or recapitalization of such stock, the merger
or consolidation of FGC with some other corporation or any other
transaction have comparable effect, then in that event the number
and kind of shares constituting the Stock Consideration shall be
appropriately adjusted so that DPC shall not be adversely
affected thereby.
(e) The Stock Consideration shall be paid at the Closing by the
delivery of usual and customary certificates in good form
acceptable to counsel for BOK (provided such acceptance shall not
be unreasonably withheld or delayed) representing the Stock
Consideration duly registered in the name of DPC.
(f) The FGC Note shall be executed and delivered to BOK at the
Closing.
(3 DELIVERY OF WJA NOTES AND WJA COLLATERAL. At the Closing, BOK shall:
(a) Endorse (the "Endorsement") each promissory note which is one of
the WJA Notes in the following manner:
"WITHOUT RECOURSE AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES
(except as expressly set forth in that certain Loan Sale Agreement
dated July 3, 1996 between Bank of Oklahoma, National
Association and Florida Gaming Corporation), pay to the order of
Florida Gaming Corporation:
Bank of Oklahoma, National Association
By______________________________________
Its ______________________________(Title)
____________________________(Print Name)"
(b) Assign (the "Assignments") the WJA Collateral to FGC WITHOUT
RECOURSE AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES (except as
expressly set forth in that certain Loan Agreement dated July 3,
1996 between Bank of Oklahoma, National Association and Florida
Gaming Corporation). The Assignments shall be in usual and
customary form acceptable to counsel to FGC (provided such
acceptance is not unreasonably withheld or delayed) and to counsel
to BOK (provided such acceptance is not unreasonably withheld or
delayed). The Assignments shall include the execution and delivery
(WITHOUT RECOURSE AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES
except as expressly set forth in that certain Loan Agreement dated
July 3, 1996 between Bank of Oklahoma, National Association and
Florida Gaming Corporation) of such financing statements and other
documents reasonably required to evidence ownership of the WJA
Collateral by FGC.
(c) Deliver to FGC copies of all note and collateral files relating
to the WJA Notes and the WJA Collateral in the possession of
BOK.
(d) The provisions of sub-paragraph (a) above notwithstanding, if, in
the event any original promissory note is lost, BOK may, in lieu
of delivery of the original, deliver to FGC a commercially
reasonable affidavit of lost note executed by the custodian of
such note at the time of the loss thereof and the Endorsement
shall be by separate allonge to the promissory note.
(e) The Purchase shall be FINAL, WITHOUT RECOURSE, AND WITHOUT ANY
REPRESENTATIONS OR WARRANTIES (except as expressly set forth in
this Agreement).
(f) Without limiting the generality of the provisions of subparagraph
(e) of the paragraph, BOK advises FGC that the original of one of
the WJA Notes and the original of certain documents evidencing
the WJA Collateral were lost by the prior custodian thereof.
(4) STATUS OF WJA NOTES PRIOR TO CLOSING. From the date hereof until the
Closing:
(a) All payments received by BOK in respect of the WJA Notes shall
reduce the Purchase Price. Interest accrued, but unpaid, under
the WJA Notes as of the Closing shall be for the account of FGC.
(b) BOK shall not take any steps to realize the value of any of the
Collateral without the prior written consent of FGC which FGC
may, in its sole discretion and without limitation, grant or
withhold.
(5) REPRESENTATIONS AND WARRANTIES OF FGC. FGC hereby represents, warrants,
and promises to BOK that:
(a) At the time of its execution and delivery, this Agreement and all
other documents executed by FGC and delivered by FGC to BOK in
accordance with this Agreement are and shall be (i) duly
authorized, executed and delivered by FGC, (ii) legal, valid and
binding obligations of FGC and (iii) enforceable in accordance
with their respective terms, subject to bankruptcy, insolvency,
reorganization or other similar laws relating to creditors'
rights generally.
(b) FGC has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby.
(c) All requisite action (corporate, trust, partnership or otherwise)
has been taken by FGC in connection with the entering into this
Agreement, the instruments referenced herein, and the
consummation of the transaction contemplated hereby. No consent
of any partner, shareholder, creditor, investor, judicial or
administrative body, governmental authority or other party is
required to enter into and consummate this Agreement.
(d) The individuals executing this Agreement and the instruments
referenced herein on behalf of the FGC have the legal power,
right, and actual authority to bind FGC to the terms and
conditions hereof and thereof.
(e) This Agreement and all documents required hereby to be executed
by the FGC are and shall be valid, legally binding obligations of
and enforceable against FGC in accordance with their terms.
(f) The Stock Consideration when issued and delivered to DPC shall
be fully paid and non-assessable and free and clear of all
liens, claims, and encumbrances.
(g) FGC is current in all filings required by the rules and
regulations of the Securities and Exchange Commission and shall,
so long as BOK owns any shares of the Stock Consideration,
remain current in all such filings.
(h) FGC shall use its best efforts to cause all conditions precedent
to its obligations to close the transaction contemplated by this
Agreement to be fulfilled as soon as reasonably practicable and,
in all events, on or before October 11, 1996.
(i) FGC shall indemnify BOK and DPC, and hold BOK and DPC harmless
from, all loss, cost, and expense arising out of the assertion
by any person or entity of a claim based on the ownership of the
WJA Note and the WJA Collateral by FGC and/or the exercise by
FGC of any rights arising by virtue of such ownership, to the
extent such claim relates to actions taken by FGC after the
Closing.
(j) The representations and warranties of FGC set forth in this
Agreement, whether set forth in this paragraph or elsewhere,
shall survive the Closing.
(k) FGC shall uses its best efforts to assist DPC in DPC's effort to
obtain any required approval of the acquisition of the Stock
Consideration by DPC by the Division of Pari-mutuel Wagering
with the Florida Department of Business and Professional
Regulation.
(l) FGC shall indemnify BOK and DPC, and hold BOK and DPC harmless
from, all loss, cost, and expense (including reasonable
attorney's fees and expert's fees whether incurred before or
after the commencement of litigation and all litigation costs)
arising out of the breach by FGC of any covenant,
representation, or warranty of FGC set forth in this or any
other paragraph of this Agreement.
(6) REPRESENTATIONS AND WARRANTIES BY BOK. BOK hereby represents and
warrants to FGC that:
(a) At the time of its execution and delivery, this Agreement and
all other documents executed by BOK and delivered by BOK to FGC
in accordance with this Agreement are and shall be (i) duly
authorized, executed and delivered by BOK, (ii) legal, valid and
binding obligations of BOK and (iii) enforceable in accordance
with their respective terms, subject to bankruptcy, insolvency,
reorganization or other similar laws relating to creditors'
rights generally.
(b) BOK has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby.
(c) All requisite action (corporate, trust, partnership or
otherwise) has been taken by BOK in connection with the entering
into this Agreement, the instruments referenced herein, and the
consummation of the transaction contemplated hereby. No consent
of any partner, shareholder, creditor, investor, judicial or
administrative body, governmental authority or other party is
required to enter into and consummate this Agreement.
(d) The individuals executing this Agreement and the instruments
referenced herein on behalf of BOK have the legal power, right,
and actual authority to bind BOK to the terms and conditions
hereof and thereof.
(e) This Agreement and all documents required hereby to be executed
by the BOK are and shall be valid, legally binding obligations
of and enforceable against BOK in accordance with their terms.
(f) BOK shall indemnify FGC, and hold FGC harmless from, all loss,
cost, and expense arising out of the assertion by any person of
entity of a claim based on the ownership of the WJA Note and the
WJA Collateral by BOK and/or the exercise by BOK of any rights
arising by virtue of such ownership, to the extent such claim
relates to actions taken by BOK.
(g) BOK has, and at the Closing BOK will transfer to FGC, all of
BOK's right, title and interest in and to the WJA Notes and WJA
Collateral, free and clear of all mortgages, pledges, security
interests, liens, encumbrances, and other interests, to the
extent and only to the extent they arise by reason of any claim
asserted by, through, or under BOK.
(h) Paul D. Mesmer has been the principal officer of BOK responsible
for the administration of the WJA Notes and WJA Collateral. To
the best knowledge of Paul D. Mesmer, there has been no claim
made or threatened against BOK, or against any of the prior
holders of any of the WJA Notes (or any prior notes which were
restated or refinanced by any of the WJA Notes) by WJA (or any
general or limited partner of affiliate of WJA) including,
without limitation, any so called lender liability claim.
(i) FGC has had access to substantially all the loan documentation
in the possession of BOK respecting the WJA Notes and WJA
Collateral.
(j) Attached to this Agreement as Exhibit D is a statement of the
collective interest balances, collective principal balances,
collective payment amounts, and payment dates for the WJA Notes
from January 15, 1994, excluding as payments any proceeds from
the sale of the Ft. Pierce Fronton to Lexicon Corporation (which
payments were applied retroactively to January 15, 1994).
Exhibit D is materially correct and complete and has been
calculated using the reduced interest rate as provided in
paragraph (8) of the Second Forbearance Agreement between WJA
and the lending banks as of January 15, 1994 for the entire
period of time.
(k) BOK has no knowledge of any fact or circumstance which in the
opinion of BOK indicates that the documents which create the WJA
Collateral do not represent bona fide, legally binding
obligations of the parties thereto enforceable in accordance
with their terms or which would, by reason of any waiver,
estoppel or the like, impair the holder of the WJA Notes and the
documents evidencing the WJA Collateral from enforcing them in
accordance with their terms.
(l) To the best knowledge of Paul D. Mesmer, neither WJA nor any of
the general or limited partners of WJA or their affiliates have
indicated to BOK while BOK has held the WJA Notes that WJA has
any defense against its obligation to pay the WJA Notes in
accordance with their terms or to comply with its obligations
under the WJA Collateral Documents.
(m) BOK shall indemnify FGC, and hold FGC harmless from, all loss,
cost, and expense (including reasonable attorney's fees and
expert's fees whether incurred before or after the commencement
of litigation and all litigation costs) arising out of the
breach by BOK of any covenant, representation, or warranty of
BOK set forth in this or any other paragraph of this Agreement.
(n) BOK is the owner of the WJA Notes and the WJA Collateral, has
not assigned (neither voluntarily nor involuntarily) any rights
arising thereunder to any other party, and shall assign to FGC
at the Closing all right, title and interest in the WJA Notes
free of all pledges security interests, liens, encumbrances or
other interests in the WJA Notes. To the best knowledge of Paul
D. Mesmer, the WJA Collateral constitutes a first lien in the
assets described therein.
(o) To the best knowledge of Paul D. Mesmer, the documents listed on
Exhibit B include all the material property, licenses, and
contracts used in connection with the operation of the WJA Jai
Alai frontons in Miami, Tampa, and Ocala, Florida other than (I)
player and employee contracts, (ii) contracts for services and
material, and (iii) leased equipment.
(7) REPRESENTATIONS AND WARRANTIES BY DPC. DPC hereby represents and
warrants to FGC that:
(a) At the time of its execution and delivery, this Agreement and
all other documents executed by DPC and delivered by DPC to FGC
in accordance with this Agreement are and shall be (i) duly
authorized, executed and delivered by DPC, (ii) legal, valid and
binding obligations of DPC and (iii) enforceable in accordance
with their respective terms, subject to bankruptcy, insolvency,
reorganization or other similar laws relating to creditors'
rights generally.
(b) DPC has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby.
(c) All requisite action (corporate, trust, partnership or
otherwise) has been taken by DPC in connection with the entering
into this Agreement, the instruments referenced herein, and the
consummation of the transaction contemplated hereby. No consent
of any partner, shareholder, creditor, investor, judicial or
administrative body, governmental authority or other party is
required to enter into and consummate this Agreement.
(d) The individuals executing this Agreement and the instruments
referenced herein on behalf of the have the legal power, right,
and actual authority to bind DPC to the terms and conditions
hereof and thereof.
(e) This Agreement and all documents required hereby to be executed
by the DPC are and shall be valid, legally binding obligations
of and enforceable against DPC in accordance with their terms.
(f) DPC shall use its best efforts to obtain any required approval
of the acquisition of the Stock Consideration by DPC by the
Division of Pari-mutuel Wagering with the Florida Department of
Business and Professional Regulation.
(g) DPC shall indemnify FGC, and hold FGC harmless from, all loss,
cost, and expense (including reasonable attorney's fees and
expert's fees whether incurred before or after the commencement
of litigation and all litigation costs) arising out of the
breach by DPC of any covenant, representation, or warranty of
DPC set forth in this or any other paragraph of this Agreement.
(8) PROVISIONS RESPECTING STOCK CONSIDERATION. The following provisions
shall apply to all shares constituting the Stock Consideration issued
in accordance with this Agreement (the Shares"):
(a) DPC represents and warrants to FGC that:
(i) DPC is acquiring the Shares for its own account without a
view to further distribution.
(ii) DPC is the wholly-owned operating subsidiary of a national
bank and an institutional investor within the meaning of
Section 401(b)(9) of the Oklahoma Securities Act.
(iii) DPC has reviewed the FGC 1995 SEC Form 10K, the FGC 1995
Annual Report, and the most recent FGC Form 10Q. DPC has
reviewed all information respecting FGC which it deems
relevant or material to a decision whether to acquire the
Shares.
(iv) DPC has the knowledge and experience necessary to analyze
the business and affairs of FGC and to determine whether
to acquire the Shares.
(v) DPC is financially able to assume any risk of loss
respecting the Shares.
(b) FGC shall, on or before August 1, 1996, file with the United
States Securities Exchange Commission and the applicable state
securities commissions of Florida, Oklahoma, New York, Illinois,
and five other states selected by DPC such registration
statements, applications for approval, notices, or other filings
as shall be reasonably necessary to permit the lawful sale by
DPC of the Shares under federal law and the laws of such states
(hereafter individual and collectively called the
"registration" or "registration statement").
(c) The registration statement shall be filed in compliance with the
Securities Act of 1933, Rule 415 of the Securities and Exchange
Commission, and the laws of each state in which the registration
is filed.
(d) FGC shall use FGC's best efforts to cause the registration
statement to become effective permitting the sale of the Stock
Consideration to DPC without restriction forthwith upon the
Closing (as herein defined) or as soon as possible following the
Closing.
(e) FGC shall pay all costs of the registration (including filing
fees, legal, accounting, printing, and transfer agent costs).
(f) FGC shall submit all registration documents to DPC reasonably in
advance of filing or finalizing such documents and shall
receive, consider and accept or reject (in FGC's reasonable
discretion) such comments as DPC shall timely make. FGC shall
file the registration statement in accordance with all
applicable laws.
(g) FGC represents and warrants that the registration statement
(including any prospectus) will (i) contain all statements which
are required to be stated therein, including all such statements
respecting FGC (and its subsidiaries) and the sale by DPC of the
Shares, by the Securities Act of 1933 and any applicable state
securities law, (ii) conform in all material respects with the
applicable requirements of such acts, and (iii) will not contain
any untrue statement of a material fact or fail to state any
material fact necessary to make the statements therein not
misleading.
(h) DPC shall advise, cooperate and consult with FGC in the
registration as may be appropriate.
(i) FGC shall keep DPC reasonably advised of the status of the
registration.
(j) If at any time, FGC has material information not publicly
disclosed which, under the applicable regulations of the
Securities and Exchange Commission precludes the sale of Shares
without an effective amendment thereto:
(i) FGC shall promptly advise DPC and DPC shall cease
effecting sales of the Shares until an appropriate
amendment becomes effective; and,
(ii) FGC shall withhold such information from the public for
only so long as the shortest reasonable period of time a
valid reason for such non-disclosure exists under the
applicable regulations of the Securities and Exchange
Commission.
(iii) FGC shall promptly file an appropriate amendment and use
its best efforts to cause the amendment to become
effective on the same terms and conditions as provided
above for the registration statement.
(k) FGC shall maintain the effectiveness of the registration
statement for two years following the Closing
(9) CONDITIONS PRECEDENT TO OBLIGATIONS OF BOK. The obligation of BOK to
close the transaction contemplated by this Agreement shall be subject
to each and all of the following conditions precedent:
(a) FGC shall have performed and complied with, in all material
respects, all of its obligations under this Agreement which are
to be performed or complied with prior to or at the Closing.
(b) The representations and warranties of FGC set forth in this
Agreement shall be true and correct as of the Closing.
(c) The registration statement shall be effective in accordance with
the terms and conditions of this Agreement.
(d) The acquisition of the Stock Consideration by DPC shall have
been approved, if required, by the Division of Pari-mutuel
Wagering with the Florida Department of Business and
Professional Regulation.
(e) The Closing shall have been consummated on or before October 28,
1996.
(10) CONDITIONS PRECEDENT TO OBLIGATIONS OF FGC. The obligation of FGC to
close the transaction contemplated by this Agreement shall be subject
to each and all of the following conditions precedent:
(a) BOK shall have performed and complied with, in all material
respects, all of its obligations under this Agreement which are
to be performed or complied with prior to or at the Closing.
(b) DPC shall have performed and complied with, in all material
respects, all of its obligations under this Agreement which are
to be performed or complied with prior to or at the Closing.
(c) WJA shall have obtained, not later than October 7, 1996, all
approvals required under the laws of the State of Florida to
establish and operate card rooms as authorized in 1996 State of
Florida House Bill 337 from the Dade County (Florida) Commission
for the Miami Jai-Alai Fronton owned by WJA and from the
Hillsborough County (Florida) Commission for the Tampa Jai-Alai
Fronton owned by WJA.
(d) The representations and warranties of BOK and DPC set forth in
this Agreement shall be true and correct as of the Closing.
(e) The registration statement shall be effective in accordance with
the terms and conditions of this Agreement.
(f) The acquisition of the Stock Consideration by DPC shall have
been approved, if required, by the Division of Pari-mutuel
Wagering with the Florida Department of Business and
Professional Regulation.
(g) The Closing shall have been consummated on or before October 28,
1996.
(h) WJA shall not have experienced a material property loss in
excess of any applicable insurance or a forfeiture of its gaming
license at one or more of its Florida frontons.
(11) THE CLOSING. The closing (the "Closing" of the Purchase shall take
place on the eleventh business day following the first day on which all
conditions precedent to the obligations of FGC, BOK and DPC shall have
been fulfilled or waived (the "Closing Date"). At the Closing:
(a) BOK shall perform the obligations required of BOK by the
provisions of paragraph 3 above.
(b) FGC shall pay the Purchase Price to BOK as provided by paragraph
2 above.
(c) Notwithstanding any other provision of this Agreement to the
contrary, in the event all conditions precedent to the
obligations of FGC, BOK, and DPC shall have been fulfilled on or
before October 28, 1996 except the condition set forth in
subparagraph 9(c) and 10(e) respecting the effectiveness of the
registration statement, BOK shall have the right to require FGC
to close the transaction by performing all its obligations except
delivery of the Stock Consideration and to thereafter deliver the
Stock Consideration pursuant to an effective registration
statement not later than December 31, 1996.
(12) DISCLOSURE OF THIS AGREEMENT. No public disclosure of this Agreement
shall be made by FGC, BOK or DPC without prior notice to and the
approval of the content of such disclosure by all parties hereto
(provided such approval shall not be unreasonably withheld or delayed);
provided nothing in this paragraph shall preclude FGC from having
private discussion with WJA respecting the subject matter of this
Agreement.
(13) MISCELLANEOUS PROVISIONS. The following miscellaneous provisions shall
apply to this Agreement:
(a) All notices or advices required or permitted to be given by or
pursuant to this Agreement, shall be given in writing. All such
notices and advices shall be (i) delivered personally,
(ii) delivered by facsimile or delivered by U.S. Registered or
Certified Mail, Return Receipt Requested mail, or (iii) delivered
for overnight delivery by a nationally recognized overnight
courier service. Such notices and advices shall be deemed to
have been given (i) the first business day following the date of
delivery if delivered personally or by facsimile, (ii) on the
third business day following the date of mailing if mailed by
U.S. Registered or Certified Mail, Return Receipt Requested, or
(iii) on the date of receipt if delivered for overnight delivery
by a nationally recognized overnight courier service. All such
notices and advices and all other communications related to this
Agreement shall be given as follows:
If to FGC: Mr. W. Bennett Collett
Chairman and Chief Executive Officer
Florida Gaming Corporation
P.O. Box 3027
Louisville, Kentucky
40201
502-589-2000 - Telephone
502-945-7717 - Facsimile
With copy to: James Giesel, Esquire
Brown, Todd & Heyburn
3700 Providian Center
400 West Market
Louisville, Kentucky
40202
502-589-5400 - Telephone
502-581-1087 - Facsimile
If to BOK or DPC: Mr. Paul D. Mesmer, SVP
Bank of Oklahoma,
National Association
Bank of Oklahoma Tower
P.O. Box 2300
Tulsa, Oklahoma 74192
918-588-6491 - Telephone
918-588-8251 - Facsimile
With Copy to: Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, OK 74103
(918) 583-9945 - Telephone
(918) 583-8251 - Facsimile
or to such other address as the party may have furnished to the
other parties in accordance herewith, except that notice of
change of addresses shall be effective only upon receipt.
(b) This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law provisions)
of the State of Oklahoma.
(c) This Agreement is the entire Agreement of the parties respecting
the subject matter hereof. There are no other agreements,
representations or warranties, whether oral or written,
respecting the subject matter hereof.
(d) This Agreement, and all the provisions of this Agreement, shall
be deemed drafted by all of the parties hereto.
(e) This Agreement shall not be interpreted strictly for or against
any party, but solely in accordance with the fair meaning of the
provisions hereof to effectuate the purposes and interest of
this Agreement.
(f) Each party hereto has entered into this Agreement based solely
upon the agreements, representations and warranties expressly
set forth herein and upon his own knowledge and investigation.
Neither party has relied upon any representation or warranty of
any other party hereto except any such representations or
warranties as are expressly set forth herein.
(g) Each of the persons signing below on behalf of a party hereto
represents and warrants that he or she has full requisite power
and authority to execute and deliver this Agreement on behalf of
the parties for whom he or she is signing and to bind such party
to the terms and conditions of this Agreement.
(h) This Agreement may be executed in counterparts, each of which
shall be deemed an original. This Agreement shall become
effective only when all of the parties hereto shall have
executed the original or counterpart hereof. This agreement may
be executed and delivered by a facsimile transmission of a
counterpart signature page hereof.
(i) In any action brought by a party hereto to enforce the
obligations of any other party hereto, the prevailing party
shall be entitled to collect from the opposing party to such
action such party's reasonable litigation costs and attorneys
fees and expenses (including court costs, reasonable fees of
accountants and experts, and other expenses incidental to the
litigation).
(j) This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and
assigns.
(k) This is not a third party beneficiary contract. No person or
entity other than a party signing this Agreement shall have any
rights under this Agreement.
(l) This Agreement may be amended or modified only in a writing
which specifically references this Agreement.
(m) This Agreement may not be assigned by any party hereto.
(n) Nothing in this Agreement shall be construed to create a
partnership or joint venture, nor to authorize any party hereto
to act as agent for or representative of any other party hereto.
Each party hereto shall be deemed an independent contractor and
no party hereto shall act as, or hold itself out as acting as,
agent for any other party hereto.
(o) A party to this Agreement may decide or fail to require full or
timely performance of any obligation arising under this
Agreement. The decision or failure of a party hereto to require
full or timely performance of any obligation arising under this
Agreement (whether on a single occasion or on multiple
occasions) shall not be deemed a waiver of any such obligation.
No such decisions or failures shall give rise to any claim of
estoppel, laches, course of dealing, amendment of this Agreement
by course of dealing, or other defense of any nature to any
obligation arising hereunder.
(p) The repudiation, breach, or failure to perform any obligation
arising under this Agreement by a party after reasonable notice
thereof shall be deemed a repudiation, breach, and failure to
perform all of such party's obligations arising under this
Agreement.
(q) Time is of the essence with respect to each obligation arising
under this Agreement. The failure to timely perform an
obligation arising hereunder shall be deemed a failure to
perform the obligation.
(r) In the event any provision of this Agreement, or the application
of such provision to any person or set of circumstances, shall
be determined to be invalid, unlawful, or unenforceable to any
extent for any reason, the remainder of this Agreement, and the
application of such provision to persons or circumstances other
than those as to which it is determined to be invalid, unlawful,
or unenforceable, shall not be affected and shall continue to be
enforceable to the fullest extent permitted by law.
Dated and effective the date first set forth above.
"FGC"
Florida Gaming Corporation
by /s/ W. Bennett Collett
"BOK"
Bank of Oklahoma,
National Association
by /s/ Paul D. Mesmer
"DPC"
DPC Asset Holding Corporation
by /s/ Paul D. Mesmer
Exhibit Item 7.(b)(ii)
AMENDMENT TO LOAN SALE AGREEMENT
This Amendment To Loan Sale Agreement (the "Amendment") is made this 12th
day of September, 1996 between:
(i) Florida Gaming Corporation ("FGC");
(ii) Bank of Oklahoma, National Association ("BOK"); and,
(iii) BOK DPC Asset Holding Corporation, an Oklahoma
Corporation ("DPC").
In consideration of the mutual promises and covenants hereinafter set
forth (the adequacy of which FGC, BOK and DPC hereby expressly acknowledge),
and intending to be legally bound hereby, FGC, BOK, and DPC agree as follows:
(1) Purpose of this Amendment. FGC, BOK and DPC have heretofore entered into
that certain Agreement dated July 3, 1996 respecting the sale by BOK to
FGC of the WJA Notes as defined therein (the "Agreement"). The capitalized
terms used in this Amendment shall have the meaning ascribed to them in the
Agreement. FGC, BOK, and DPC desire to amend the Agreement. This Amendment
sets forth the agreement of FGC, BOK and DPC respecting the terms and
conditions of the Agreement which shall be amended.
(2) Amendment of Paragraph 10(c) of Agreement. Existing Paragraph 10(c) of
the
Agreement shall be deleted in its entirety and the following substituted
therefor:
"This subparagraph (c) has been intentionally omitted."
(3) Amendment of Paragraph 2(a) of Agreement. Existing Paragraph 2(a) of the
Agreement shall be deleted in its entirely and the following substituted
therefor:
"(a) The purchase price ("Purchase Price") shall be:
(i) Two Million United States Dollars (the "Cash
Consideration"); and,
(ii) Six Hundred Fifteen Thousand Three Hundred
and Eighty-five (615,385) shares, subject to
adjustment as hereafter provided, of $0.10 par
value common stock of FGC (the "FGC
Common Stock" or the "Stock Consideration").
(iii) A non-interest bearing promissory note (the
"FGC Note") in the principal amount of One
Million United States Dollars ($1,000,000)
which note shall be in the form and content of
Exhibit C attached hereto.
(iv) A secured interest bearing promissory note
(the "Secured Note") in the principal amount
of Six Million United States Dollars
($6,000,000) which note shall be in the form
and content of Exhibit D attached hereto."
(4) Amendment of Paragraph 2(e) of Agreement. The existing paragraph 2(e) of
the
Agreement shall be deleted and the following new Paragraph 2(e) shall be
substituted therefor:
"(e) The Stock Consideration shall be paid not later than the third
business day following the Closing, subject to the entry of a
consent order by the Division of Pari-mutuel Wagering with the
Florida Department of Business and Professional Regulation (the
"Division"), by the delivery, in escrow to the escrow agent (as
hereafter defined, the Escrow Agent), of usual and customary
certificates in good form acceptable to counsel for BOK (provided
such acceptance shall not be unreasonably withheld or delayed)
representing the Stock Consideration duly registered in the name
of DPC. The escrow agent shall be BancOklahoma Trust
Company. The Escrow Agent shall hold the Stock Consideration
in trust pursuant to the terms of the consent order entered by the
Division. In the event the Division does not approve the
acquisition on or before January 1, 1999, the Escrow Agent shall
return the Stock Consideration to FGC."
(5) New Paragraph 2(g). The following new paragraph 2(g) shall be added:
"(g) The Secured Note shall be secured by a security interest in the
WJA Notes which security interest shall be in the form and
content of Exhibit E attached hereto (the "Security Agreement")."
(6) New Paragraph 2(h). The following new paragraph 2(h) shall be added:
"(h) The Secured Note and the Security Agreement shall be executed
and delivered at the Closing. At the Closing, FGC shall pay BOK
(together with and in the same manner as the Cash Consideration)
a loan fee of Sixty Thousand United States Dollars (US$60,000).
(7) Amendment of Paragraph 9(c) of Agreement. Existing paragraph 9(c) of
the Agreement is hereby deleted and the following new paragraph 9(c)
substituted therefor in its entirety:
"(c) This Paragraph has been intentionally omitted."
(8) New Paragraph 11. Existing Paragraph 11 of the Agreement shall be deleted
in its
entirety and the following substituted therefor:
"The Closing. The closing (the "Closing" of the Purchase shall take place
on the
first business day following the first day on which all conditions
precedent to the
obligations of FGC, BOK and DPC shall have been fulfilled or waived (the
"Closing
Date"). At the Closing:
(a) BOK shall perform the obligations required of BOK by the
provisions of paragraph 3 above.
(b) FGC shall pay the Purchase Price to BOK and perform the
obligations of FGC required of FGC by the provisions of
paragraph 2 above.
(c) FGC shall deliver a certificate of its Secretary certifying to the
correctness of FGC borrowing resolutions by which the Board of
Directors of FGC shall have authorized the execution and delivery
of the FGC Note, the Secured Note, and the Security Agreement.
(9) Enforceability of Agreement. As amended by this Amendment, the Agreement
shall continue to be in full force and effect in accordance with its
terms. The word
Agreement as used in the Agreement shall mean the Agreement as amended by
this
Amendment.
(10) Shares of FGC Common Stock. FGC, BOK, and DPC hereby agree that the
Stock
Consideration, as adjusted in accordance with paragraph 2(c),
consists of
703,297 shares of FGC Common Stock.
(11) Date of Closing. FGC, BOK, and DPC hereby agree that the Closing
shall occur
on Thursday, September 12, 1996.
(12) Miscellaneous Provisions. The Miscellaneous Provisions of the
Agreement are
hereby incorporated herein by this reference.
Dated and effective the date first set forth above.
"FGC"
FLORIDA GAMING CORPORATION
By /s/ W. Bennett Collett
"BOK"
BANK OF OKLAHOMA,
NATIONAL ASSOCIATION
By /s/ Paul D. Mesmer
"DPC"
DPC ASSET HOLDING
CORPORATION
By /s/ Paul D. Mesmer
Item 7.(b)(iii)
SECURED NOTE
NEGOTIABLE PROMISSORY INSTALLMENT NOTE
$6,000,000.00 Tulsa, Oklahoma
SEPTEMBER 12, 1996
FOR VALUE RECEIVED, FLORIDA GAMING CORPORATION (the "Borrower") hereby
promises to pay to the order of BANK OF OKLAHOMA, NATIONAL
ASSOCIATION (the "Bank"), at the Bank's principal offices in Tulsa, Oklahoma,
in lawful money of the United States of America, the principal sum of SIX
MILLION and NO/100 DOLLARS ($6,000,000), together with interest thereon from
the date hereof on the unpaid balance of principal from time to time
outstanding, and on any past due interest, at the variable annual rate of
interest hereinafter specified, due and payable as follows:
(i) interest only on the last day of September 1996, October 1996,
November 1996, December 1996, January 1997, and February
1997;
(ii) principal amount of $83,333.33 plus interest on the last day of
March 1997, April 1997, May 1997, June 1997, July 1997, and
August 1997;
(iii) principal amount of $166,666.66 plus interest on last day of
September 1997 and thereafter on the last day of each month until
August 31,1998; and,
(iv) a final installment in the amount of all principal then outstanding
plus interest on September 12, 1998 (the "Maturity Date").
All payments shall be applied first to accrued but unpaid interest with
the excess, if any, applied in reduction of the outstanding principal balance
hereof.
The rate of interest payable upon the indebtedness evidenced by this Note
shall be a variable annual rate of interest equal from day to day to the
Applicable Prime Rate, as hereinafter defined. Any change in the Applicable
Prime Rate shall be effective with respect to this Note as of the date upon
which any change in such rate of interest shall occur. Interest shall be
computed on the basis of a year of 360 days per year, but assessed for the
actual number of days lapsed.
For the purposes of this Note, "Applicable Prime Rate" shall mean the
annual rate of interest announced by Chase Manhattan Bank, National
Association, New York, New York ("Chase") from time to time as its prime or
base rate, which shall be the rate used by Chase as a base or standard for
pricing purposes and which shall not necessarily be its best or lowest rate.
Should Chase cease to announce a prime or base rate, or
should it be merged, consolidated, liquidated or dissolved in such a manner
that it loses its separate
corporate or banking identity, then the Applicable Prime Rate shall be the
Prime Rate published by the Wall Street Journal in its "Money Rates" column
or a similar rate if such rate ceases to be published. Any change in the
Applicable Prime Rate shall be effective as of the date of the change.
After default in the payment of any amount of principal or interest owing
hereunder within fifteen (15) days of the due date thereof (whether on
maturity, acceleration or otherwise) or upon the occurrence of any Event of
Default as described in the Pledge Agreement between the Borrower and the Bank
dated as of even date herewith ("Pledge Agreement"), the unpaid principal
amount hereof shall bear interest computed at a variable annual rate equal
from day to day to the Applicable Prime Rate plus five (5%) percent, but
in no event at a rate which is greater than the maximum rate which permitted
by law. Upon default in the payment of any amount of interest payable
hereunder, such interest shall, to the full extent permitted by law, bear
interest at the same rate as principal.
This Note is made pursuant to and secured by the Pledge Agreement.
Reference is hereby made to the Pledge Agreement, as well as any supplemental
security agreements, for a description of the property, assets and interests
thereby mortgaged, conveyed, pledged and/or assigned, as the case may be, the
nature and extent of the security thereunder and the security interests
carried forward or created thereby, and the rights of the Bank (or the
holder of this Note) and the Borrower in respect thereof.
Should the indebtedness represented by this Note be collected at law or in
equity
or in bankruptcy, receivership or other court proceedings or the Note be
placed in the hands of attorneys for collection after default, the Borrower
agrees to pay hereunder, in addition to the principal and interest due and
payable hereon, reasonable attorneys fees, court costs, and other collection
expenses incurred by the holder hereof.
The Borrower hereby waives presentment for payment, demand, notice of
nonpayment, protest and notice of protest with respect to any payment
hereunder and agrees to any substitution or release of the security or
collateral described in the Pledge Agreement and to the addition or release of
any party liable hereunder. No delay on the part of the holder hereof in
exercising any rights hereunder shall operate as a waiver of such
rights.
Upon the occurrence of any default hereunder or pursuant to the Pledge
Agreement, Bank shall have the right, immediately and without further action
by it, to set off against this Note all money owed by Bank in any capacity to
each or any maker or other person who is or might be liable for payment
hereof, whether or not due, and also to set off against all other liabilities
of the maker to Bank all money owed by Bank in any capacity to the maker; and
Bank shall be deemed to have exercised such right of setoff and to have
made a charge against such money immediately upon the occurrence of such
default even though such charge is made or entered into the books of Bank
subsequently thereto.
This Note and the indebtedness evidenced hereby shall be construed and
enforced in accordance with and governed by the laws of the State of Oklahoma.
FLORIDA GAMING CORPORATION
By /s/ W. Bennett Collett
----------------------
its Chairman and CEO
DUE: September 12, 1998 "Borrower"
Exhibit Item 7.(b)(iv)
PLEDGE AGREEMENT
This Pledge Agreement (this "Agreement") is executed and delivered this
12th day of September, 1996, by FLORIDA GAMING CORPORATION, a Florida
corporation ("the "Pledgor"), to and with BANK OF OKLAHOMA, NATIONAL
ASSOCIATION (the "Secured Party").
RECITALS:
A. Pledgor is indebted to Secured Party in the aggregate sum of $6,000,000
as evidenced by that certain Negotiable Promissory Installment Note executed
by Pledgor under even date herewith, due September 12, 1998 (called the
Secured Note and referred to in this Pledge Agreement as the "Note") .
B. Pursuant to that certain Loan Sale Agreement dated July 3, 1996 as
amended by that certain Amendment of Loan Sale Agreement dated under even date
herewith (the "Loan Sale Agreement"), Pledgor agreed to execute and deliver
this Agreement to pledge the Collateral (referred to in the Loan Sale
Agreement and in this Agreement as the WJA Collateral) to Secured Party as
security for the Note.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
I.
SECURITY INTEREST AND PLEDGE
1.1 SECURITY INTEREST AND PLEDGE. Subject to the terms of this Agreement,
Pledgor hereby pledges and grants to Secured Party a first priority
security interest and lien in the WJA Notes and the WJA Collateral as
such terms are defined in the Loan Sale Agreement (such property being
hereinafter sometimes called the "Collateral"). Collateral as used
herein includes all proceeds of Collateral.
1.2 OBLIGATIONS. The Collateral shall secure the obligations, liabilities
and indebtedness of Pledgor to Secured Party pursuant to the Note and
this Agreement.
1.3 PERFECTION OF SECURITY INTEREST. Secured Party shall perfect the
security interest hereby granted by keeping possession of the WJA
Notes, the WJA Collateral, and the Assignments (as such terms are
defined in the Loan Sale Agreement).
<PAGE>
II.
REPRESENTATIONS AND WARRANTIES
Pledgor represents and warrants to Secured Party that:
2.1 TITLE. Pledgor owns, and with respect to Collateral acquired after
the date hereof, Pledgor will own, legally and beneficially, the
collateral free and clear of any lien, security interest, pledge,
claim or other encumbrance or any right or option on the part of any
third person to purchase or otherwise acquire the Collateral or any
part thereof, except for the security interest granted hereunder.
2.2 AUTHORITY. Pledgor has the authority to execute, deliver and perform
this Agreement, and the execution, delivery and performance of this
Agreement by Pledgor do not and will not conflict with, result in a
breach of, or constitute a default under the provisions of any
indenture, mortgage, deed of trust, security agreement, or other
instrument or agreement or any judgment, decree, order, law, statute,
or other governmental rule or regulation applicable to Pledgor or any
of its property.
III.
AFFIRMATIVE AND NEGATIVE COVENANTS
Pledgor covenants and agrees with Secured Party that until the Note is
paid in full:
3.1 INCUMBRANCES. Pledgor shall not create, permit or suffer to exist,
and shall defend the Collateral against, any lien, security interest
or other encumbrance on the Collateral arising by, through, or under
Pledgor except the pledge and security interest of Secured Party
hereunder, and shall defend Pledgor's rights in the Collateral and
Secured Party's security interest in the Collateral against the claims
of all persons and entities arising by, through, or under Pledgor.
3.2 SALE OF COLLATERAL. Pledgor shall not sell, assign or otherwise
dispose of the Collateral or any part thereof without the prior
written consent of Secured Party; provided, however:
(a) Pledgor may take all such actions as it deems reasonably
necessary or appropriate to foreclose the WJA
Collateral; and,
(b) Pledgor may by foreclosure or in an agreed transaction
substitute a first mortgage lien on what is commonly
referred to as the Ft. Pierce fronton for (i) 200,000
shares of FGC Common Stock and (ii) the FGC $1,000,000
note owed to WJA Realty, currently held by BOK as part
of the WJA Collateral, subject to approval of the
documentation by counsel to BOK (which shall not be
unreasonably withheld or delayed).
3.3 PROCEEDS OF COLLATERAL. All proceeds of Collateral shall be received,
held, and paid in accordance with the following provisions:
(a) So long as the Note is not in default, all cash payments
received by the Pledgor or Secured Party in respect of
the WJA Notes shall be for the account of Pledgor. If
such a cash payment is received by the Secured Party
while the Note is not in default, the Secured Party
shall forthwith pay such cash payment over to the
Pledgor.
(b) So long as the Note is in default, all cash payments
received by the Pledgor or the Secured Party shall be
for the account of the Secured Party and applied by the
Secured Party to payment of the Note (whether such
payment is less than or more than the amount necessary
to cure the default). If such a cash payment is received
by the Pledgor while the Note is in default, Pledgor
agrees to accept the same as Secured Party's agent and
to hold the same in trust for Secured Party, and to
forthwith pay the entire amount of such cash payment
over to Secured Party to be applied by Secured Party
against the Note (whether such payment is less than or
more than the amount necessary to cure the default).
(c) If Pledgor shall receive any payment of money or
property in respect of the sale of any or all of the WJA
Collateral to any person or entity unaffiliated with
Pledgor (whether by foreclosure or otherwise), Pledgor
shall accept such proceeds as Secured Party's agent and
hold the same in trust for Secured Party to the extent
of the Secured Party's interest therein, and deliver
the same forthwith to Secured Party in the exact form
received with the appropriate endorsement or assignment
of Pledgor, or to execute such further instruments
agreements, filings, notices as may be required in the
opinion of counsel to Secured Party to evidence such
transfer to Secured Party and Secured Party shall apply
such money and property to payment of the Note.
(d) If Pledgor or an affiliate of Pledgor shall acquire
ownership of the Collateral (whether by foreclosure or
otherwise), Pledgor shall, or shall cause such affiliate
to, hold the same in trust for Secured Party, and
deliver the same forthwith to Secured Party in the exact
form received with the appropriate endorsement or
assignment of Pledgor, or execute such further
instruments agreements, filings, notices as may be
required in the opinion of counsel to Secured Party to
evidence the continuation of Secured Party's security
interest and lien in such money and property, and
Secured Party shall hold such money and property as
Collateral for the Note, subject to the terms hereof.
(e) All sums of money and property paid and received in
respect of the Collateral that are received by Pledgor
shall, until paid or delivered to Secured Party in
accordance with the foregoing provisions of this
paragraph, be held by Pledgor in trust as additional
security for the Note.
IV.
RIGHTS OF SECURED PARTY AND PLEDGOR
4.1 RIGHT TO REALIZE VALUE OF WJA COLLATERAL. So long as no Event of
Default shall have occurred and be continuing, Pledgor shall be
entitled to exercise any and all rights of the Secured Party in and
to, or relating or pertaining to, the WJA Notes and the WJA Collateral
or any part thereof. Secured Party shall execute and deliver to
Pledgor such further instruments, agreements, filings, and notices as
may be reasonably required in the opinion of counsel to Secured Party
to enable Pledgor to realize the value of the WJA Collateral. The
foregoing to the contrary notwithstanding the Pledgor shall take no
action which may adversely affect the first priority security interest
or lien of the Secured Party in the Collateral and Secured Party shall
not be obligated to deliver any such further instruments, agreements,
filings, or notices if, in the opinion of counsel to Secured Party,
the security interest or lien of Secured Party may be adversely
affected thereby.
4.2 SECURED PARTY'S DUTY OF CARE. Other than the exercise of reasonable
care in the physical custody of the Collateral while held by Secured
Party hereunder, Secured Party shall have no responsibility for or
obligation or duty with respect to all or any part of the Collateral
or any matter or proceeding arising out of or relating thereto.
V.
DEFAULT
5.1 EVENTS OF DEFAULT. Each of the following shall be deemed an "Event of
Default":
(a) Any failure to make payment when due (including any
grace period provided in the Note) of any amount due
under the Note.
(b) Any representation or warranty made by Pledgor in this
Agreement is false in any material respect on the date
when made or deemed to have been made.
(c) Pledgor shall fail to perform, observe or comply with
any covenant, agreement or term contained in this
Agreement for a period of fifteen (15) days after
Pledgor's receipt of written notice from Secured Party
of non-performance.
(d) Pledgor shall commence a voluntary proceeding seeking
liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official for it
or a substantial part of its property or shall consent
to any such relief or to the appointment of or taking
possession by any such official in an involuntary case
or other proceeding commenced against it or shall make a
general assignment for the benefit of creditors or shall
generally fail to pay its debts as they become due or
shall take any action to authorize any of the foregoing.
(e) An involuntary proceeding shall be commenced against
Pledgor seeking liquidation, reorganization or other
relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official for it or a substantial part of its
property, and such involuntary proceeding shall remain
undismissed and unstayed for a period of sixty (60)
days.
5.2 RIGHTS AND REMEDIES OF SECURED PARTY. Upon the occurrence and
continuance of an Event of Default, Secured Party shall have the
following rights and remedies to the extent consistent with applicable
law:
(a) In addition to all other rights and remedies granted to
Secured Party in this Agreement and in any other
instrument (or agreement securing, evidencing, or
relating to the Note), Secured Party shall have all of
the rights and remedies of a secured party then existing
or existing as of the date hereof under the Uniform
Commercial Code as adopted by the State of Oklahoma.
Without limiting the generality of the foregoing,
Secured Party may:
(i) Sell or otherwise dispose of the
Collateral, or any part thereof, in one
or more parcels at public or private
sale or sales, at Secured Party's
offices or elsewhere, for cash, on
credit or for future delivery, and/or
(ii) Bid and become a purchaser at any sale
free of any right or equity of
redemption in Pledgor, which right or
equity is hereby expressly waived and
released by Pledgor.
Pledgor agrees that Secured Party shall not be obligated
to give more than ten (10) days' written notice of the
time and place of any public sale or of the time after
which any private sale may take place and that such
notice shall constitute reasonable notice of such
matters. Pledgor shall be liable for all reasonable
attorneys' fees and other expenses incurred by Secured
Party in connection with the enforcement of Secured
Party's rights under this Agreement. Pledgor shall
remain liable for any deficiency if the proceeds of any
sale or disposition of the Collateral are insufficient
to pay the Notes. Pledgor hereby waives all rights of
marshalling in respect of the Collateral.
(b) Secured Party may cause any or all of the Collateral
held by it to be transferred into the name of Secured
Party or the name or names of Secured Party's nominee or
nominees.
(c) Secured Party shall he entitled to receive all cash
payments in respect of the WJA Notes.
(d) Secured Party shall have the right, but shall not be
obligated to, exercise or cause to be exercised all
rights and powers of the holder of the WJA Notes and of
the secured party in respect of the WJA Collateral, and
Pledgor shall deliver to Secured Party, if requested by
Secured Party, such instruments, agreements, filings,
and notices as may be reasonably required in the opinion
of counsel to Secured Party to enable Secured Party to
realize the value of the WJA Notes and the WJA
Collateral.
(e) Pledgor hereby acknowledges and confirms that Secured
Party may be unable to effect a public sale of any or
all of the Collateral by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and
applicable state securities laws and may be compelled to
resort to one or more private sales thereof to a
restricted group of purchasers who will be obligated to
agree, among other things, to acquire any shares of the
Collateral for their own respective accounts for
investment and not with a view to distribution or resale
thereof. Pledgor further acknowledges and confirms that
any such private sale may result in prices or other
terms less favorable to the seller than if such sale
were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable
manner, and Secured Party shall be under no obligation
to take any steps in order to permit the Collateral to
be sold at a public sale. Secured Party shall be under
no obligation to delay a sale of any of the Collateral
for any period of time necessary to permit any issuer
thereof to register such Collateral for public sale
under the Securities Act of 1933, as amended, or under
applicable state securities laws.
(f) On any sale of the Collateral, Secured Party is hereby
authorized to comply with any limitation or restriction
with which compliance is necessary, in the view of
Secured Party's counsel, in order to avoid any violation
of applicable law or in order to obtain any required
approval of the purchaser or purchasers by any
applicable governmental authority.
5.3 RIGHTS OF PLEDGOR. The Pledgor shall have all of the rights of a
debtor arising under the Uniform Commercial Code as in effect in the
State of Oklahoma as of the date hereof.
VI.
MISCELLANEOUS
6.1 MISCELLANEOUS PROVISIONS. The Miscellaneous Provisions of the Loan
Sale Agreement are hereby by this reference incorporated herein and
made a part hereof.
IN WITNESS WHEREOF, the Pledgor has duly executed this Agreement as of the
date first above written.
"Pledgor"
FLORIDA GAMING CORPORATION
By /s/ W. Bennett Collett
"Secured Party"
BANK OF OKLAHOMA,
NATIONAL ASSOCIATION
By /s/ Paul D. Mesmer
