SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into by
and between Casino Resource Corporation ("CRC") and Xxxxx X. Xxxx ("Xxxx") as
of this 15th day of January, 1998, as follows:
WHEREAS, Xxxx is the beneficial owner of 1,480,944 shares of common
stock of CRC;
WHEREAS, CRC and Xxxx have entered into a Cherokee Dispute and Warrant
Purchase Agreement whereby Xxxx delivered two Promissory Notes in the
aggregate amount of $1.5 million which were reduced to an outstanding, unpaid
principal balance of only $1,232,000;
WHEREAS, Xxxx subsequently executed and delivered to CRC a renewal
Promissory Note ("Note") in the principal amount of $1,232,000 dated as of
October 1, 1996;
WHEREAS, in order to support repayment of the Note, Xxxx provided CRC
with an unrestricted pledge of 150,000 shares of CRC common stock;
WHEREAS, Xxxx has also made a pledge of at least some of his CRC stock
to Hibernia National Bank of Baton Rouge, Louisiana;
WHEREAS, Xxxx is in default of the Note and currently owes CRC the
principal amount of $1.232 million, plus interest;
WHEREAS, in order to enforce collection of the Note, CRC has duly
provided Xxxx with notice of a private foreclosure sale of the 150,000 shares
of CRC common stock pledged in support of that obligation and has also
commenced an action entitled CASINO
RESOURCE CORPORATION X. XXXX which is venued in the Circuit Court of Xxxxxxxx
County, Mississippi, and identified by Court File No. A24002-98-00002 ("the
Litigation");
WHEREAS, Xxxx claims to have several defenses to CRC's effort to collect
the Note and claims against CRC and/or its officers or directors which
defenses and claims would be asserted in the Litigation;
WHEREAS, Xxxx has a contingent future interest in certain amounts and
consulting fees, particularly five percent (5%) of the net revenues from the
Pokagon Project, pursuant to that certain Agreement with CRC dated as of
December 1, 1995 (called, "Consulting Agreement"); and
WHEREAS, the undersigned parties wish to enter into this Agreement in
order to conclusively resolve all of the disputes and controversies between
them and to avoid the further time and expense of any further legal
proceedings or litigation, including attorney's fees.
NOW, THEREFORE, in consideration of the foregoing premises and all of
the terms and conditions hereinafter set forth, the undersigned parties
hereby stipulate and agree as follows:
1. Xxxx hereby unconditionally transfers and assigns to CRC full
ownership of the 150,000 shares of CRC common stock pledged to CRC in support
of payment of the Note. As soon as practicable after the execution of this
Agreement, but in no event more than
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seven (7) business days from the execution of this Agreement, Xxxx shall also
deliver and transfer to CRC full ownership of an additional 220,000 shares of
CRC common stock to which he holds clear and unrestricted title. Upon
transfer of the aforementioned 150,000 shares of CRC common stock and
delivery of the aforementioned 220,000 shares of CRC common stock, CRC will
process a credit against the outstanding balance of the Note (or the Renewal
Note attached as Exhibit B, as the case may be) for each share at the market
price of the stock (i.e., the closing bid price as quoted by NASDAQ) on the
date on which the transfer and delivery of each such share of stock is
effected.
2. Upon the execution of this Agreement, Xxxx shall provide
Xxxx X. Xxxxxx with an unconditional and irrevocable proxy to vote all of the
shares of CRC common stock in which he holds a beneficial interest in the form
attached and hereby incorporated by reference as Exhibit X. Xxxx shall also
notify any party or parties as necessary to enable Xx. Xxxxxx to exercise the
proxy as of the date of this Agreement. Such proxy is subject only to any
valid, prior security interest in favor of Hibernia National Bank and
associated rights to vote the stock, if any. Xxxx further covenants and
agrees that he shall not, directly or indirectly, take any action whatsoever
to direct or influence in any manner Hibernia National Bank's exercise of any
proxy rights; and any violation of this covenant shall constitute a material
breach of
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this Agreement and an Event of Default under the Renewal Note and Security
Agreement attached as Exhibit B and C. It is further understood and agreed
that should Xxxx attempt to directly or indirectly vote any of the stock
encompassed by this Agreement, such stock shall be subject to all of the first
prior proxy rights granted to Xx. Xxxxxx.
3. Xxxx hereby expressly confirms and warrants that he has clear and
unrestricted title to 150,000 shares of CRC common stock pledged in support
of the Note and that he will have at the time of transfer and delivery to CRC
clear and unrestricted title to the balance of the 220,000 shares of CRC
common stock referenced in the foregoing Paragraph No. 1, above; that he has,
or will have at the time of transfer, full rights and power to deliver and
transfer clear and unrestricted title to said stock in connection with the
execution and consummation of this Agreement; and that such stock is not
directly or indirectly encumbered in any way by any right or claim nor any
tax lien or security interest or lien (except in favor of CRC) including, but
not limited to, any such interest, lien, right or claim in favor of Hibernia
National Bank and/or the Internal Revenue Service and/or the State of
Louisiana. The obligation of this provision may be satisfied by timely
delivery of 220,000 unrestricted shares of CRC stock from a third party which
Xxxx shall cause to be delivered in conformity with all of the warranties of
clear title of this provision. Xxxx hereby further
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expressly confirms and warrants that he has full rights and power to provide
the proxy of the balance of the shares of CRC stock in which he holds a
beneficial interest, subject only to any valid interest of Hibernia National
Bank as set forth in the foregoing Paragraph No. 2, above.
4. Upon the execution of this Agreement, the Note shall be replaced
with Xxxx'x execution and delivery to CRC of a Renewal Note for the full
remaining balance of his unpaid obligation in the form attached and hereby
incorporated by reference as Exhibit B. Payment of the Renewal Note shall be
secured by a perfected security interest constituting a first lien on all of
Xxxx'x right, title, and interest in the Consulting Agreement which shall be
evidenced by a Security Agreement in the form attached and hereby incorporated
by reference as Exhibit C. It is further expressly understood and agreed that
CRC may at any time and for any reason, upon five days' written notice,
whether or not an Event of Default under the Renewal Note or the Security
Agreement has occurred, exercise the option in its sole discretion to acquire
and accept all of Xxxx'x right, title and interest in the Consulting
Agreement including, without limitation, the then existing and thereafter
arising rights to any amounts under Paragraph 4(b) of the Consulting
Agreement, in full satisfaction of the Renewal Note by returning the Renewal
Note to Xxxx marked "Paid", whereupon all of Xxxx'x right, title, and
interest to any then existing and
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thereafter arising rights to any amounts under the Consulting Agreement shall
be immediately, completely, unconditionally, and irrevocably terminated and
released without any remaining redemption rights or claim to any surplus
relating thereto under the Consulting Agreement. It is further agreed that
upon the earlier of a) NIGG approval (or equivalent regulatory approval by
any successor agency or regulatory authority) of the Pokagon Project with
CRC, and CRC affiliated manager, or a company with which CRC has a
contractual relationship relating to the management of that Project or b)
commencement of gaming activities in connection with the Pokagon Project by
CRC, a CRC affiliated manager, or a company with which CRC has a
contractual relationship relating to the management of that Project, Xxxx
shall have the right to demand that CRC acquire and accept the collateral in
full satisfaction of the Renewal Note and upon such demand CRC shall be
obligated to acquire and accept such collateral in full satisfaction of the
Renewal Note, shall xxxx the Renewal Note "Paid" and return it to Xxxx.
Furthermore, in the event that CRC shall sell, assign or transfer its
interest in the Pokagon Project, in whole or in part, to any other party, by
way of sale, loan, settlement, fee, or otherwise for consideration in an
amount in excess of $1 million, Xxxx'x obligation under the Renewal Note
shall be fully discharged and satisfied and CRC shall xxxx the Renewal Note
"Paid" and return it to Xxxx. Any satisfaction pursuant to this Paragraph
shall be
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without any remaining redemption rights or claim to a surprise as set forth
above.
5. Upon request, Xxxx further covenants and agrees to execute and
promptly deliver any such additional agreements and documents that may
reasonably be required to complete and effectuate the terms of this Agreement.
6. Xxxx shall be solely responsible for any state of federal income
taxes due by Xxxx as a result of the operation and performance of any
provision of this Agreement including, without limitation, the delivery and
transfer of the CRC common stock in partial satisfaction of the Note and/or
the satisfaction of the Renewal Note pursuant to the acquisition and
cancellation of the Consulting Agreement.
7. Xxxx, on behalf of himself and all of his assigns, successors, heirs,
and personal representatives hereby unconditionally remises, releases and
forever discharges CRC and all of its affiliated or related entities and all
of their respective predecessors, successors, assigns, insurers, officers,
directors, agents, representatives, attorneys and current and former
employees from any and all claims, demands, damages, rights, or causes of
action of any kind, at law or in equity, whether fixed or contingent,
liquidated or unliquidated, known or unknown, which Xxxx (or anyone claiming
through or under Xxxx) ever had, now has or may have as of the date of this
Agreement provided, however,
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that nothing herein shall be deemed in any manner to extinguish any future
rights under the Consulting Agreement or to preclude Xxxx from taking legal
action to enforce the terms and conditions of this Agreement or any of its
Exhibits.
8. Subject to the warranties and covenants set forth in this Agreement,
CRC hereby unconditionally remises and forever releases Xxxx from any and all
claims, demands, damages, rights or causes of action of any kind, at law or
in equity, whether fixed or contingent, liquidated or unliquidated, known or
unknown, which CRC ever had, has or may have up to and including the date of
this Agreement provided, however, that nothing in this provision shall be
deemed in any manner to release Xxxx, or extinguish any future rights, under
the Consulting Agreement, this Agreement or any of the Agreements set forth
in the attached Exhibits nor extinguish any preexisting proxy rights in any
shares of CRC common stock beneficially owned by Xxxx, all of which are
expressly reserved.
9. Upon the full execution of this Agreement, together with all
Exhibits, and the delivery and transfer to CRC of all of the 370,000 shares
of CRC common stock referenced in the foregoing Paragraph No. 1, above, CRC
shall forthwith execute and file a Notice of Voluntary Dismissal without
Prejudice of the Litigation.
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However, should Xxxx fail to deliver the balance of the 220,000 shares of CRC
stock pursuant to Paragraph No. 1, the transfer of the 150,000 shares of CRC
stock and the delivery of the proxy shall remain in full force and effect,
but, at the option of CRC, the balance of this Agreement shall be rescinded
and CRC shall be free to continue to pursue the Litigation.
10. The undersigned parties hereby expressly represent and warrant by
signing below that there has been no assignment of any right, claim or cause
of action encompassed by this Agreement to any individual, corporation or
other legal entity whatsoever; that they have read this Agreement and
consulted with legal counsel of their choice, where necessary; that this
Agreement has been signed freely, without any representation, promise or
inducement not expressed herein, or the exertion of influence by any party
upon any other party; that each of the undersigned parties understands all of
the terms and conditions of this Agreement; and that they agree to be bound
to and by this Agreement; and that they agree to be bound to and by this
Agreement in all respects.
11. Time is of the essence in the performance of this Agreement. The
undersigned parties hereby expressly agree that this Agreement constitutes
the complete and entire Settlement Agreement and Release between and among
the parties. This Agreement may not be changed orally, and no change,
addition, deletion or any other modification, oral or written, of this
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Agreement shall be binding unless and until each party to this Agreement
executes a written amendment.
12. This Agreement shall be governed by and construed according to the
substantive provisions of Mississippi law (excluding conflicts of law rules).
The undersigned parties expressly consent to the exclusive jurisdiction of
the Circuit Courts of Jackson or Xxxxxxxx County, Mississippi, or the United
States District Court, Southern District of Mississippi, for any action
relating to the construction of this Agreement and the determination of any
and all controversies arising from this Agreement.
13. If any provision of this Agreement is held unlawful or
unenforceable in any respect, such illegality or unenforceability shall not
affect any other provision which can be given effect, and this Agreement
shall be construed and applied as if the unlawful or unenforceable provision
had never been contained herein.
14. This Agreement shall be binding upon, and the benefits and
obligations provided for herein shall inure to the parties hereto and all of
their respective heirs, legal representatives, successors, assigns, and
transferees.
15. This Agreement shall have no effect whatsoever unless and until it
is fully executed by all parties.
16. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and
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the same instrument. A signature transmitted by telecopier or other
equivalent facsimile shall be deemed an original provided, however, that the
parties shall promptly exchange originals as soon as possible upon the full
execution of this Agreement.
/s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
CASINO RESOURCE CORPORATION
By: Xxxx X. [ILLEGIBLE]
-----------------------------------
Its: CEO
------------------------------
11
PROMISSORY NOTE
$1,196,884.88 Ocean Springs, Mississippi
January 15, 1998
Maker: Xxxxx X. Xxxx
FOR VALUE RECEIVED, the Maker promises to pay to the order of CASINO
RESOURCE CORPORATION ("CRC"), at its office in Ocean Springs, Mississippi, or
at such other place as any present or future holder of this Note may
designate from time to time, the principal amount of $1,196,884.88, plus
interest thereon from the date of this Note until is fully paid, computed on
the basis of the actual number of days elapsed and a 365-day year.
INTEREST: The interest rate under this Note is a fixed rate of 7.00% per
annum.
PAYMENTS: The Maker shall make the following payments of principal and
interest under this Note:
The unpaid balance of principal and accrued interest under this Note shall
be due and payable in full on January 15, 2001.
PREPAYMENTS: The Maker shall have no right to prepay any amount under this
Note without the prior written consent of the holder of this Note.
OTHER PROVISIONS:
This Note is an amendment, extension, renewal or replacement of the Maker's
$1,232,000.00 Promissory Note to CRC dated October 1, 1996, and such previous
Promissory Note is hereby terminated.
At the option of the holder of this Note, any payment under this Note
may be applied first to the payment of changes, fees and expenses (other than
principal and interest) under this Note and any other agreement or writing in
connection with this Note, second to the payment of interest accrued through
the date of payment, and third to the payment of principal under this Note.
The Maker represents, warrants, certifies to CRC and agrees that all advances
under this Note shall be used solely for business purposes.
The occurrence of any of the following events shall constitute an Event
of Default under this Note:
(i) any breach or default in the payment or performance of this Note, or
the Maker's Security Agreement dated the date hereof in favor of CRC,
or the Maker fails to deliver to CRC 220,000 shares of CRC common
stock in accordance with the second sentence of paragraph 1 of the
Settlement
Agreement and Release dated January 15, 1998 between CRC and the
Maker; or
(ii) the insolvency or death of the Maker; or
(iii) any appointment of a receiver, trustee or similar officer of any
property of the Maker; or
(iv) any assignment for the benefit of creditors of the Maker; or
(v) any commencement of any proceeding under any bankruptcy, insolvency,
receivership, dissolution, liquidation or similar law by or against
the Maker; or
(vi) the Maker takes any action to revoke or terminate any agreement,
liability or security in favor of the holder of this Note; or
(vii) the entry of any judgment or other order for the payment of money
in the amount of $25,000.00 or more against the Maker; or
(viii) the issuance or levy of any writ, warrant, attachment, garnishment,
execution or other process against any property of the Maker; or
(ix) the attachment of any tax lien to any property of the Maker; or
(x) any statement, representation or warranty made by the Maker (or any
representative of the Maker) to the holder of this Note at any time
shall be incorrect or misleading in any material respect when made.
Upon the commencement of any proceeding under any bankruptcy law by or
against the Maker, the unpaid principal balance of this Note plus accrued
interest and all other charges, fees and expenses under this Note shall
automatically become immediately due an payable in full, without any
declaration, presentment, demand, protest, or other notice of any kind. Upon
the occurrence of any other Event of Default and at any time thereafter, the
then holder of this Note may, at its option, declare this Note to be
immediately due and payable in full and thereupon the unpaid principal balance
of this Note plus accrued interest and all other charges, fees and expenses
under this Note shall immediately become due and payable in full, without any
presentment, demand, protest or other notice of any kind.
The Maker: (i) waives demand, presentment, protest, notice of protest,
notice of dishonor and notice of nonpayment of this Note; (ii) agrees to
promptly provide the holder of this Note from time to time with the Maker's
financial statements and such other information respecting the financial
condition, business and property of the Maker as the holder of this Note may
request
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in form and substance acceptable to the holder of this Note; (iii) agrees
that when or at any time after this Note becomes due the holder of this Note,
without notice, may offset or charge the full amount owning on this Note
against any amount then owning by the holder of this Note to the Maker,
whether or not then due; (iv) agrees to pay on demand all fees, costs and
expenses of the holder of this Note in connection with this Note and any
transactions and matters relating to this Note, including but not limited to
reasonable attorney's fees and legal expenses, plus interest on such amounts
at the rate set forth in this Note; and (v) consents to the personal
jurisdiction of the state and federal courts located in the State of
Mississippi in connection with any controversy related in any way to this
Note or any transaction or matter relating to this Note, waives any argument
that venue in such forums is not convenient, and agrees that any litigation
initiated by the Maker against CRC or any other holder of this Note relating
in any way to this Note or any transaction or matter relating to this Note,
shall be venued in either the Circuit Court of Jackson or Xxxxxxxx County,
Mississippi, or the United States District Court, Southern District of
MIssissippi. Interest on any amount under this Note shall continue to
accrue, at the option of the holder of this Note, until such holder receives
final payment of such amount in collected funds in form and substance
acceptable to such holder.
No waiver of any right or remedy under this Note shall be valid unless
in writing executed by the holder of this Note, and any such waiver shall be
effective only in the specific instance and for the specific purpose given.
All rights and remedies of the holder of this Note shall be cumulative and
may be exercised singly, concurrently or successively. All references in this
Note to the holder of this Note shall mean CRC and any and all other present
and future holders of this Note. This Note shall bind the Maker and the
heirs, representative, successors and assigns of the Maker. This Note shall
benefit the holder of this Note and its successors and assigns. This Note
shall be governed by and construed in accordance with the internal laws of
the State of Mississippi (excluding conflict of law rules).
THE MAKER REPRESENTS AND WARRANTS TO CRC AND AGREES THAT THE MAKER HAS
READ ALL OF THIS NOTE AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS NOTE.
Address of Maker: MAKER:
0000 Xxxx Xxxxxxxxx Xxxxx /s/ Xxxxx X. Xxxx
Xxxxx Xxxxx, XX 00000 ----------------------------
Telephone: (000) 000-0000 Xxxxx X. Xxxx
Casino Resource Corporation agrees to this Promissory Note.
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Executed as of the date first above written.
CASINO RESOURCE CORPORATION
By /s/ Xxxx Xxxxxx
---------------------------
Title CEO
------------------------
4
SECURITY AGREEMENT
Date: January 15, 1998
Secured
Debtor: Xxxxx X. Xxxx Party: Casino Resource Corporation
Address: 0000 Xxxx Xxxxxxxxx Xxxxx Address: 000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000 Xxxxx Xxxxxxx, XX 00000
Social Security No. ###-##-####
1. OBLIGATIONS SECURED. This Agreement secures the following (called
the "Obligations"):
All debts, liabilities and obligations under this Agreement, the
Settlement Agreement and Release dated January 15, 1998 by and
between the Secured Party and the Debtor, and the Debtor's
$1,196,884.88 Promissory Note dated January 15, 1998 in favor of
the Secured Party, including but not limited to all principal
interest, and other charges, fees, expenses and amounts, and all
amendments, extensions, renewals and replacements of the foregoing.
2. SECURITY INTEREST. To secure the payment and performance of the
Obligations, the Debtor grants the Secured Party a security interest (the
"Security Interest") in, and assigns to the Secured Party, the following
property (called the "Collateral"):
All of the Debtor's right, title and interest in the Agreement dated
December 1, 1995, by and between the Debtor and the Secured Party,
and all amendments, extensions, renewals and replacements of the
foregoing, including but not limited to all existing and future
payments and rights to receive payments thereunder, all whether now
existing or hereafter arising, whether now owned or hereafter
acquired, and all proceeds of the foregoing property, including
without limitation all accounts, instruments, chattel paper,
investment property, other rights to payment, deposit accounts,
money and general intangibles related to the foregoing property.
3. REPRESENTATION, WARRANTIES AND AGREEMENTS. The Debtor represents
and warrants to the Secured Party and agrees as follows:
a. The address of the Debtor's residence and chief executive office
is shown at the beginning of this Agreement. The Debtor has not used any
trade name, assumed name, or other name except the Debtor's name stated
above. The Debtor shall give the Secured Party prior written notice of any
change in such address or the Debtor's name or if the Debtor uses any other
name. The Debtor has authority to execute and perform this Agreement. The
Debtor's social security number is shown above.
b. Except as set forth in any existing or future agreement executed
by the Secured Party, the Debtor is the owner of the Collateral, or will be
the owner of the Collateral hereafter acquired, free of all security
interest, liens and encumbrances other than the Security Interest and any
other security interest of the Secured Party, the Debtor shall not permit any
security interest, lien or encumbrance, other than the Security Interest and
any other security interest of the Secured Party, to attach to any Collateral
without the prior written consent of the Secured Party, the Debtor shall
defend the Collateral against the claims and demands of all persons other
than the Secured Party, and shall promptly pay all taxes, assessments and
other government charges upon or against the Debtor, any Collateral and the
Security Interest, and no financing statement covering any Collateral is on
file in any public office.
c. The Debtor shall not sell or otherwise dispose of any Collateral
or any interest therein without the prior written consent of the Secured
Party.
d. Each account, instrument, investment property, chattel paper,
other right to payment and general intangible constituting Collateral is, or
will be when acquired, the valid, genuine and legally enforceable obligation
of the account debtor or other issuer or obligor named therein or in the
Debtor's records pertaining thereto as being obligated to pay such
obligation, subject to no defense, setoff or counterclaim. The Debtor shall
not, without the prior written consent of the Secured Party, agree to any
material modification or amendment of any such obligation or agree to any
subordination or cancellation of any such obligation.
e. The Debtor shall (i) promptly notify the Secured Party of any
loss of any Collateral or of any adverse change in the prospect of payment of
any account, instrument, chattel paper, other right to payment or general
intangible constituting Collateral, (ii) at the Debtor's residence, keep
accurate and complete records pertaining to the Collateral and the Debtor's
financial condition, business and property, and provide the Secured Party such
periodic reports concerning the Collateral and the Debtor's financial
condition, business and property as the Secured Party may from time to time
request; (iii) at all reasonable times permit the Secured Party and its
representatives to examine, inspect and copy the Debtor's records pertaining
to the Collateral and the Debtor's financial condition, business and
property; and (iv) at the Secured Party's request, promptly execute, endorse
and deliver such financing statements and other instruments, documents,
control agreements, chattel paper and writings and take such other actions
deemed by the Secured Party to be necessary or desirable to establish,
protect, perfect or enforce the Security Interest and the rights of the
Secured Party under this Agreement and applicable law, and pay all costs of
filing financing statements and other writings in all public offices where
filing is deemed by the Secured Party to be necessary or desirable.
4. COLLECTION RIGHTS. At any time before or after an Event of Default,
the Secured Party may, and at the request of the Secured Party the Debtor
shall, promptly notify any account debtor, issuer or obligor of any account,
instrument, investment property, chattel paper, other right to payment or
general intangible constituting Collateral that the same has been assigned to
the
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Secured Party and direct such account debtor, issuer or obligor to make all
future payments to the Secured Party.
5. LIMITED POWER OF ATTORNEY. If the Debtor at any time fails to perform
or observe any agreement herein, the Secured Party, in the name and on behalf
of the Debtor or, at its option, in its own name, may perform or observe such
agreement and take any action which the Secured Party may deem necessary or
desirable to cure or correct such failure. The Debtor irrevocably authorizes
Secured Party and grants the Secured Party a limited power of attorney in the
name and on behalf of the Debtor or, at its option, in its own name, to
collect, receive, receipt for, create, prepare, complete, execute, endorse,
deliver and file any and all financing statements, control agreements,
insurance applications, remittances, instruments, documents, chattel paper
and other writings, to grant any extension to, compromise, settle, waive,
notify, amend, adjust, change and release any obligation of any account
debtor, issuer, obligor, insurer or other person pertaining to any
Collateral, and to take any other action deemed by the Secured Party to be
necessary or desirable to establish, perfect, protect or enforce the Security
Interest. All of the Secured Party's advances, fees, charges, costs and
expenses, including but not limited to audit fees and expenses and reasonable
attorneys' fees and legal expenses, in connection with the Obligations and in
the protection and exercise of any rights or remedies hereunder, together
with interest thereon at the highest rate then applicable to any of the
Obligations, shall be secured hereunder and shall be paid by the Debtor to
the Secured Party on demand.
6. EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "Event of Default": (a) any breach or default in the
payment or performance at any of the Obligations; or (b) the insolvency or
death of the Debtor; or (c) any appointment of a receiver, trustee or similar
officer of any property of the Debtor; or (d) any assignment for the benefit
of creditors of the Debtor; or (e) any commencement of any proceeding under
any bankruptcy, insolvency, receivership, dissolution, liquidation or similar
law by or against the Debtor; or (f) the Debtor takes any action to revoke or
terminate any agreement liability or security in favor of the Secured Party;
or (g) the entry of any judgment or other order for the payment of money in
the amount of $25,000.00 or more against the Debtor; or (h) the issuance or
levy of any writ, warrant, attachment, garnishment, execution or other
process against any property of the Debtor; or (i) the attachment of any tax
lien to any property of the Debtor; or (j) any statement, representation or
warranty made by the Debtor (or any representative of the Debtor) to the
Secured Party at any time shall be incorrect or misleading in any material
respect when made.
7. REMEDIES. Upon the commencement of any proceeding under any
bankruptcy law by or against the Debtor, all Obligations automatically shall
become immediately due and payable in full, without declaration, presentment,
or other notice or demand, all of which are hereby waived by the Debtor. In
addition, upon the occurrence of any Event of Default and at any time
thereafter, the Secured Party may exercise any one or more of the following
rights and remedies: (a) declare all Obligations to be immediately due and
payable in full, and the same shall thereupon be immediately due and payable
in full, without presentment or other notice or demand, all of which are
hereby waived by the Debtor; (b) exercise and enforce any and all rights and
remedies available upon default
3.
under this Agreement, the Uniform Commercial Code, and any other applicable
agreements and laws. If notice to the Debtor of any intended disposition of
Collateral or other action is required, such notice shall be deemed
reasonably and properly given if mailed by regular or certified mail, postage
prepaid, to the Debtor at the address stated at the beginning of this
Agreement or at the most recent address shown in the Secured Party's records,
at least 10 days prior to the action described in such notice. The Debtor
consents to the personal jurisdiction of the state and federal courts located
in the State of Mississippi in connection with any controversy related to this
Agreement, the Collateral, the Security Interest or any of the Obligations,
waives any argument that venue in such forums is not convenient, and agrees
that any litigation initiated by the Debtor against the Secured Party in
connection with this Agreement, the Collateral, the Security Interest or any
of the Obligations shall be venued in either the Circuit Court of Jackson or
Xxxxxxxx County, Mississippi, or the United States District Court, Southern
District of Mississippi.
8. MISCELLANEOUS. This Agreement supersedes and replaces the Pledge of
Shares of Stock dated February 11, 1997 and Subordination Agreement dated
October 1, 1996, both executed by the Debtor in favor of the Secured Party,
and such Pledge and Subordination Agreement are hereby terminated. All terms
in this Agreement that are defined in the Mississippi Uniform Commercial Code
(the "UCC") shall have the meanings set forth in the UCC. A carbon,
photographic or other reproduction of this Agreement is sufficient as a
financing statement. No provision of this Agreement can be waived, modified,
amended, abridged, supplemented, terminated or discharged and the Security
Interest cannot be released or terminated, except by a writing duly executed
by the Secured Party. A waiver shall be effective only in the specific
instance and for the specific purpose given. No delay or failure to act shall
preclude the exercise or enforcement of any of the Secured Party's rights or
remedies. All rights and remedies of the Secured Party shall be cumulative
and may be exercised singularly, concurrently or successively at the Secured
Party's option, and the exercise or enforcement of any one such right or
remedy shall not be a condition to or bar the exercise or enforcement of any
other. This Agreement shall bind and benefit the Debtor and the Secured Party
and their respective heirs, representatives, successors, and assigns and
shall take effect when executed by the Debtor and delivered to the Secured
Party, and the Debtor waives notice of the Secured Party's acceptance hereof.
If any provision or application of this Agreement is held unlawful or
unenforceable in any respect, such illegality or unenforceability shall not
affect other provisions or applications which can be given effect, and this
Agreement shall be construed as if the unlawful or unenforceable provision or
application had never been contained herein or prescribed hereby. All
representations and warranties contained in this Agreement shall survive the
execution, delivery and performance of this Agreement and the creation,
payment and performance of the Obligations. This Agreement and the rights and
duties of the parties shall be governed by and construed in accordance with
the internal laws of the State of Mississippi (excluding conflict of law
rules).
4.
THE DEBTOR REPRESENTS AND WARRANTS TO THE SECURED PARTY AND AGREES THAT
THE DEBTOR HAS READ ALL OF THIS AGREEMENT AND UNDERSTANDS ALL OF THE
PROVISIONS OF THIS AGREEMENT.
/s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
CASINO RESOURCE CORPORATION
By /s/ Xxxx X. Xxxxxx
--------------------------------
Title CEO
-----------------------------
5.
IRREVOCABLE PROXY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a stockholder of
Casino Resource Corporation, a Minnesota corporation (the "Company"), holding
1,330,944 shares of the $.01 par value Common Stock of the Company (as pledged
as collateral to Hibernia National Bank and as evidenced by stock certificate
numbers 2958, 2711-2720, 2349-2351, 2340-2348, 2360, 2052, and 2038) does hereby
grant to Xxxx X. Xxxxxx, Chairman of the Board, an irrevocable proxy pursuant to
the provisions of Minnesota Statute Section 302A.449 (the "Proxy") to vote
1,330,944 shares of the $.01 par value Common Stock of the Company (the "Proxy
Stock") to the same extent and with the same effect as the undersigned might or
could do under any applicable laws or regulations governing the rights and
powers of stockholder of a Minnesota corporation. Xxxx X. Xxxxxx shall be able
to vote the Proxy Stock, at his discretion, on any matter to come to a vote at
any meetings or actions of the stockholders of the Company.
So long as this Irrevocable Proxy remains in full force and effect, the
said Proxy shall have all powers the undersigned would possess if present
personally at any such meeting.
The undersigned hereby affirms that this Proxy is given in connection with
the execution of a certain Settlement Agreement and Release, dated January 15,
1998, by the undersigned and the Company, and as such this Proxy is coupled with
interest and is irrevocable; provided, however, that this Irrevocable Proxy (i)
shall bind solely the said 1,330,944 shares of the Proxy Stock and shall not be
binding upon any other shares of capital stock of the Company hereafter acquired
by the undersigned and (ii) shall remain in full force and effect until the
undersigned sells or transfers the said 1,330,944 shares of Proxy Stock to an
unaffiliated third-party in a bona fide transaction.
The certificates representing the Proxy Stock shall bear the following
legend:
"The shares represented by this certificate are subject to the terms,
conditions, and restrictions of an Irrevocable Proxy dated January 15,
1998, governing the voting of these shares for all purposes, a copy of
which Irrevocable Proxy is on file in the office of the corporation."
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
15th day of January, 1998.
/s/ Xxxxx X. Xxxx
-------------------------------
XXXXX X. XXXX
Subscribed and sworn to before
me this _____ day of January, 1998.
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