Exhibit 10.59
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into this
______ day of December, 1995 by and between Casino Resource Corporation, a
Minnesota corporation with its principal offices at 0000 Xxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxxx, 00000 ("CRC" or the "Company") and Monarch Casinos,
Inc., an Iowa corporation with its principal offices at 0000 Xxxxxxx Xxxx, Xxxxx
00X, Xxx Xxxxxx, Xxxx, 00000 ("Monarch"), and acknowledged and agreed to by
Xxxxxxx X. Xxxxx ("Consultant"), an individual residing at 000 XxXxxxx Xxxxx,
Xxxxx Xxxxxxx, Xxxxxxxxxxx, 00000.
BACKGROUND
Monarch is engaged in the business of the identification and development of
commercial gaming activities.
The Company is engaged in the business of operating and developing
commercial gaming and related hotel and entertainment activities.
The Company and Monarch entered into a Memorandum of Understanding dated
January 18, 1995 (the "January 18 Agreement"), subsequently amended by a letter
agreement dated May 3, 1995 and by an Amendment and Modification Agreement
entered into on even date herewith (collectively, the "CRC-Monarch Agreement"),
pursuant to which, among other things, the Company acquired the right to develop
certain gaming activities.
The Company is currently finalizing a Technical Assistance and Development
Agreement with Xxxxxx'x or an affiliate of Xxxxxx'x for the Company and Xxxxxx'x
to jointly pursue one such gaming opportunity (the "Potawatomi Project") (the
"CRC-Xxxxxx'x Agreement"). In connection with the development of the Potawatomi
Project, Xxxxxx'x has entered into or intends to enter into certain "Casino
Agreements" (as defined in the CRC-Xxxxxx'x Agreement) with the Pokagon Band of
Potawatomi Indians (the "Pokagons"). The Company has previously delivered to
Monarch a current draft dated November 16,1995 of the CRC-Xxxxxx'x Agreement.
From the date of the January 18 Agreement, Monarch has provided certain
consulting services to the Company relating to analyzing potential gaming
ventures. The Company and Monarch have determined that it is in their mutual
best interests to continue that relationship, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the above premises, and the mutual
covenants, agreements and representations herein made, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CRC and Monarch, intending to be legally bound, hereby agree as
follows:
1. ENGAGEMENT; CONSULTANT.
(a) CRC hereby engages Monarch as a consultant of CRC and Monarch
hereby accepts such engagement, upon the terms and conditions hereinafter set
forth.
(b) The Company and Monarch agree that the Consulting Services (as
hereafter defined) to be provided hereunder by Monarch shall be rendered by
Monarch's employee, Xxxxxxx X. Xxxxx ("Consultant").
2. TERM This agreement shall be deemed effective as of January 18, 1995,
and shall continue until the termination of the CRC-Xxxxxx'x Agreement
(including any extensions thereof),
unless sooner terminated under Paragraph 12.
1. SERVICES.
(a) During the term of this Agreement, Monarch shall cause Consultant
to render to the Company such services of an advisory nature as the Company
reasonably and in good faith may request from time to time so that the Company
may have the benefit of Consultant's knowledge, expertise, skills and experience
in the gaming industry (subject to the limitation described in (d) below, the
"Consulting Services").
(b) Monarch shall cause Consultant to be available for advice and
counsel to the officers of the Company and other employees designated by the
Company by telephone, letter, facsimile, or in person, as may be required by the
Company. Consultant shall consider all directions and instructions given by the
Company, but consultant shall independently determine the time and manner of the
performance of his responsibilities and duties hereunder. All communications
made by the Consultant concerning the Consulting Services shall be made to the
Chairman of the company, or to the employee or officer of the Company deemed
appropriate by the Consultant in dealing with the matter involved.
(c) The Consulting Services shall include but not be limited to site
selection, acquisition and planning, permitting and licensing, local, state and
federal government affairs, tribal affairs, feasibility, design and
construction, design and construction budgeting, capital and operating
budgeting, and marketing, planning and analysis.
(d) Notwithstanding the above, the Consulting Services to be provided
hereunder shall relate only to the Potawatomi Project and the next two
succeeding Indian gaming projects brought to the Company by Monarch under the
CRC-Monarch Agreement, and which the Company, in its sole discretion, agrees to
pursue (the Potawatomi Project, together with such two additional projects, the
"Initial Projects").
(e) The Company recognizes the consultant shall not devote his full
business time to the Consulting Services and that the Consultant may continue to
participate in his business interests, other consulting services, and those of
Monarch, other than as may be prohibited by or contrary to this Agreement or the
CRC-Monarch Agreement (including any future amendments thereto).
(f) The Company and Monarch may, in their respective sole discretion,
agree to enter into additional consulting agreements in connection with projects
other than the Initial Projects (such other projects, "Additional Projects"), on
terms and conditions upon which the Company and Monarch may mutually agree.
4. COMPENSATION. As full compensation for all services rendered
hereunder, the Company agrees to pay Monarch as follows:
(a) $3,000, upon execution of this Agreement.
(b) $6,000 per month from January 1995, through the end of the month
in which all "Casino Agreements" with respect to the Potawatomi Project are
executed and delivered (the "Execution Date").
(c) $9,000 per month beginning the next month immediately following
the month in which the Execution Date occurs, until the end of the month in
which the Company receives its first full "Management Fee" under the
CRC-Xxxxxx'x Agreement (the "Commencement Date").
(d) $14,750 per month from the Commencement Date until the
Termination Date (as defined below).
(e) The Company shall also loan to Monarch the amount of $250,000,
upon and subject to the receipt by the Company of a one-time payment in such
amount from Xxxxxx'x under the CRC-Xxxxxx'x Agreement (the "Loan"). The Loan
shall be advanced only if; and when within ten (10) days after, the receipt by
the Company of the one-time $250,000 payment from Xxxxxx'x under the
CRC-Xxxxxx'x Agreement. The Loan shall accrue interest at the rate of 7% and
shall be due on demand at any time after three years and six months from the
execution date of this Agreement; provided however, the Loan shall be deemed
fully paid (including accrued interest) upon the second anniversary of the
opening of the first casino related to the Potawatomi Project.
5. REIMBURSEMENT OF EXPENSES: CERTAIN BENEFITS.
(a) The Company shall reimburse Monarch or Consultant for all
reasonable and necessary expenses incurred by Consultant in connection with his
provision of consulting services hereunder; provided, (i) that such expenses
were either approved in advance by the Company (if such expenses were in excess
of $1,000 or related to business travel), or such expenses were incurred and
submitted for reimbursement in accordance with the expense reimbursement policy
of the Company then in effect, including if required, the submission of
vouchers, receipts or other records in support of the amount and nature of such
expenses, and further provided (ii) that such expenses were in an amount and of
a nature to permit the Company to include such reimbursement as a permissible
expense in accordance with Internal Revenue Code of 1986, as amended, and
Internal Revenue Service guidelines.
(b) Provided that the Company's insurance carriers permit
non-employees of the Company such as Consultant to participate in the group
insurance benefits provided by the Company to its employees and further provided
that any such participation shall not increase the cost to the Company (or its
employees) of providing such benefits to its employees, the Company shall permit
Consultant to participate in such group insurance benefits as Consultant shall
choose, and the Company shall pay one-half of the costs for such benefits, with
the Consultant paying the remaining one-half.
(c) Notwithstanding (a) above, Monarch (and not the company) shall
pay all costs associated with Consultant's moving expenses to Mississippi
if consultant in his sole discretion determines to provide the Consulting
Services from Mississippi. If the provision of the Consulting Services require
relocation by Consultant (other than to Mississippi) as determined by Consultant
in his sole discretion and agreed to by the Company, the Company shall pay for
such expenses as provided in (a) above. If Consultant does move to Mississippi,
the Company agrees to rent to the Consultant the Company's LaSalle Street
Residence in Ocean Springs, Mississippi, for a period of up to ten months from
the date of execution of this Agreement for a rental of $500 per month, plus
utilities and minor repairs which together shall not exceed an additional $200
per month. If Consultant in his sole discretion determines to maintain a
residence in Mississippi, at the request of Consultant, the Company shall use
its best efforts to assist Consultant in obtaining mortgage financing for a
permanent residence in Mississippi, provided this shall not obligate the Company
to provide any financial assistance or guaranty to Consultant or any company
which may finance Consultant's mortgage.
6. INDEPENDENT CONTRACTOR. Monarch's and Consultant's relationship to
the Company under this Agreement is one of an independent contractor only and
nothing herein shall be deemed to make Monarch or Consultant an employee,
partner, co-venturer or other ownership participant in the business or
activities of the Company. Furthermore, it is understood that the Company shall
not withhold any amount from the compensation payable to Monarch or Consultant
but shall file a form 1099 with the Internal Revenue Service of the United
States of America if required to indicate all compensation paid to Consultant.
7. CONFIDENTIAL INFORMATION. In the course of consulting for Company,
Company may provide Consultant with certain financial and other information
concerning its business. Consultant acknowledges that such information, whether
furnished before or after the date of this Agreement, whether written or oral,
together with any analysis, compilations, studies or other documents prepared by
Company or its agents, representatives, or employees regarding such information,
is the sole property of and is confidential to Company (hereinafter referred to
as "Confidential Information"). As used in this paragraph 7, the term Consultant
shall include Monarch.
8. LIMITATION ON SOLICITATION BY CONSULTANT. Consultant agrees that,
except in good faith compliance with his duties hereunder as requested by the
Company, Consultant shall not, without the prior written approval of the
Chairman of the Company.
(a) Solicit additional information regarding the Company or its
business from or otherwise contact any employees, agents, or representatives of
Company;
(b) Contact any customers, visitors, funding sources or employees of
Company or any governmental agencies, as they concern Company, or any of their
respective representatives, regarding the business of Company, the existence of
this Agreement or the subject matter hereof; or
(c) During the term of and for a period of three (3) years following
the execution date of this Agreement, solicit for employment or employ or
otherwise contract for the services of any person who is now employed by Company
in an executive or supervisory position.
As used in this Paragraph 8, the term Consultant shall include Monarch.
9. NONDISCLOSURE. Consultant agrees to hold the Confidential Information
in strictest confidence and to use the Confidential Information only for
purposes of rendering his services to Company as set forth in Paragraph 3 above.
Without limiting the generality of the foregoing, Consultant agrees as follows:
(a) Consultant will not, without the prior written consent of the
Chairman of the Company, disclose the Confidential Information to any person,
firm or corporation;
(b) Consultant shall obligate all persons who receive, directly or
indirectly, any Confidential Information Thorn Consultant to abide by the terms
and conditions of this Agreement as if they were parties hereto;
(c) Consultant shall, at Company's request, return to Company or
destroy all copies of documents within Consultant's possession or control
containing any of the Confidential Information; and
(d) Consultant will not use any of the Confidential Information for
any commercial purposes or for any purpose which might be competitively
disadvantageous to Company.
As used in this Paragraph 9, the term consultant shall include Monarch.
10. EXCEPTIONS TO NONDISCLOSURE. The nondisclosure obligations of
Consultant set forth under Paragraph 9 of this Agreement shall not be deemed to
restrict the use and/or disclosure by Consultant or Monarch of any Confidential
Information which:
(a) Is or becomes publicly known or within the public domain without
the breach of this Agreement by consultant or Monarch or persons permitted to
receive such information pursuant to Paragraph 9 above; or
(b) Is disclosed to Consultant by a third person who is not under an
obligation of confidence to Company.
11. NON-COMPETITION; RIGHT OF FIRST REFUSAL.
(a) Consultant shall not, during the term of this Agreement, unless
acting with the prior written consent of the Board of Directors of the Company,
directly or indirectly:
(i) Own, manage, operate, finance, join, control or participate
in the ownership, management, operation, financing or control of; or be
connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with any business or enterprise engaged
in any business engaged in by Company or any of its affiliates in all those
geographic areas in which Company or any of its affiliates does business or has
indicated an interest to do business; or
(ii) Use or permit his name to be used in connection with, any
business or enterprise engaged in the business engaged in by Company or any of
its affiliates in all those geographic areas in which Company or any of its
affiliates does business or has indicated an interest to do business; or
(iii) Use the name of Company or any name similar thereto.
(b) In no event shall the covenant not to compete described in this
Paragraph 11 apply to Consultant's activities with or on behalf of Monarch,
provided that such activities are consistent with the CRC-Monarch Agreement
and any subsequent amendments thereto, including but not limited to the
Company's right of first refusal on subsequent Monarch gaming ventures, as set
forth in the CRC-Monarch Agreement.
(c) The Company shall have a right of first refusal to participate in
any gaming, entertainment or hotel venture which the Consultant or Monarch may
develop or have the right to participate in during the term of this Agreement.
The Company shall exercise its right of first refusal promptly after it has
received sufficient information to competently assess the opportunity.
12. TERMINATION. This Agreement shall terminate upon the earlier of:
(a) sixty days from the execution date of this Agreement if the
"Casino Agreements" between Xxxxxx'x and the Pokagons are not each executed by
such date;
(b) two years after the date of execution of the "Casino Agreements"
between Xxxxxx'x and the Pokagons if the first casino is not opened for business
or under construction within such period;
(c) expiration of the term set forth in Paragraph 2 above;
(d) mutual agreement of CRC and Monarch, on such terms as Monarch and
the Company may agree;
(e) this agreement will continue upon the death of Monarch's assign,
Xxxxxxx X. Xxxxx, the same as if the Consultant were living, only payments shall
enure to the estate of the Consultant.
(f) notice by the Company of termination "for cause", which shall
consist only of: (i) theft, dishonesty, fraudulent misconduct, gross dereliction
of duty or other grave misconduct by Consultant or Monarch, which conduct is
injurious to the Company; (ii) repeated, demonstrated failure to perform
material duties in a competent and efficient manner; (iii) failure to perform
material duties in a competent and efficient manner in any instance if such
failure is not cured within thirty (30) days after written notice by Company, or
if such cure is not initiated within thirty (30) days of such notice and
continually maintained until cured if such failure cannot be remedied within
thirty days; (iv) material breach of this Agreement by Monarch or consultant, or
of the CRC-Monarch Agreement by Monarch; or (v) if the Consultant or Monarch is
required by applicable law, regulation or requirement to be licensed, permitted
or determined suitable (in any case "Qualified") pursuant to any tribal, local,
state or federal law or regulation, or by any partner or venturer in an Initial
Project or related agreement with the Company, and Consultant or Monarch is
deemed for any reason to be other than fully Qualified. Consultant may be
terminated, but the fees due consultant shall remain in full force and effect so
long as CRC or its assigns are receiving funds from the Pokagon contract;
(g) upon receipt by the Company of written notice from consultant or
Monarch of Consultant's or Monarch's voluntary termination of this Agreement.
Upon termination of this Agreement as provided above (the "Termination
Date"), the Company shall pay to Monarch any amounts due hereunder up to such
Termination Date, and shall reimburse Consultant for his expenses up to such
Termination Date in accordance with Paragraph 5.
13. EQUITABLE RELIEF; SURVIVAL.
(a) Monarch and the Consultant acknowledge that the restrictions
contained in paragraphs 7, 8, 9, 10 and 11 hereof are, in view of the nature of
the business of the Company, reasonable and necessary to protect the legitimate
interests of the Company, and that any violation of any provisions of those
Paragraphs will result in irreparable injury to the Company. Monarch and
Consultant also acknowledge that the Company shall be entitled to temporary and
permanent injunctive relief, without the necessity of proving actual damages,
and to an equitable accounting of all earnings, profits and other benefits
arising from any such violation, which rights shall be cumulative and in
addition to any other rights or remedies to which the Company may be entitled.
In the event of any such violation, the Company shall be entitled to commence an
action for temporary and permanent injunctive relief and other equitable relief
in any court of competent jurisdiction and Consultant and Monarch further
irrevocably submits to the jurisdiction of any Mississippi court or Federal
court sitting in the Southern District of Mississippi over any suit, action or
proceeding arising out of or relating to paragraphs 7, 8, 9,10 or 11. Monarch
and the Consultant each hereby waives, to the fullest extent permitted by law,
any objection that he or it may now or hereafter have to such
jurisdiction or to the venue of any such suit action or proceeding brought in
such a court and any claim that such suit, action or proceeding brought in such
a court and any claim that such suit, action or proceeding has been brought in
any inconvenient forum. Effective service of process may be made upon the
Consultant and Monarch by mail under the notice provisions contained in
paragraph 15 hereof
(b) The provisions of paragraphs 7, 8, 9, 10 and 11 shall survive the
termination of this Agreement.
14. REMEDIES CUMULATIVE; NO WAIVER. No remedy conferred upon the Company
by this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by the Company in exercising any right remedy or power
hereunder or existing at law or in equity shall be construed as a waiver
thereof, and any such right, remedy or power may be exercised by the Company
from time to time and as often as may be deemed expedient or necessary by the
Company in its sole discretion.
15. ENFORCEABILITY. If any provision of this Agreement shall be invalid
or unenforceable, in whole or in part, then such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law, as if such provision has been originally
incorporated herein as so modified or restricted, or as if such provision had
not been originally incorporated herein, as the case maybe.
16. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
in the first paragraph of this Agreement. Any party hereto may also give notice,
request, demand, claim or other communication hereunder using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail, or electronic mail), but such notice, request, demand,
claim, or other communication shall be deemed to have been duly given only if it
is actually received (or if receipt is refused) by the party for whom it is
intended. Any party hereto may change
17. CONTENTS OF AGREEMENT; AMENDMENT AND ASSIGNMENT. This Agreement sets
forth the entire understanding between the parties hereto with respect to the
subject matter hereof and supersedes and is instead of all other prior or
contemporaneous, written or oral, arrangements regarding the same subject matter
between the Consultant or Monarch and the Company. This Agreement cannot be
changed, modified or terminated except upon written amendment duly executed by
the parties hereto. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, including
any successor to the business of the Company (whether by merger, consolidation,
sale of stock or assets or otherwise) or of any or all of the Company's interest
in any of the Initial Projects; except that the duties and responsibilities of
the Consultant hereunder are of a personal nature and shall not be assignable in
whole or in part by the Consultant. This Agreement is not, however, intended to
restrict, limit or otherwise change or modify the rights of any party which are
governed by the CRC-Monarch Agreement.
18. INDEMNIFICATION. Each of Monarch and Consultant agree to jointly and
severally indemnify and hold Company and its affiliates, control persons,
directors, officers, employees and agents harmless from and against all losses,
claims, damages, liabilities, costs or expenses, including those resulting from
any threatened or pending investigation, action, proceeding or dispute caused by
an action of Consultant or Monarch. This indemnity shall also include Company's
reasonable attorney's and accountant's fees and out-of-pocket expenses incurred
in defending any such action or threatened action.
19. APPLICABLE LAW. This Agreement shall be interpreted and construed
under the internal laws of the State of Mississippi without regard to the
conflict of laws provision of any state.
20. HEADINGS. The various headings used in this Agreement are inserted
for convenience only and will not in any way affect the meaning or construction
of this Agreement or any provision hereof .
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all such
counterparts together will constitute but one agreement.
22. COSTS AND EXPENSES. Each party shall bear their own respective costs
and expenses in connection with this Agreement, including any costs or expenses
as to the enforcement of any provision hereof.
23. ARBITRATION. Any dispute between the company and Monarch or the
Consultant under this Agreement, other than a dispute relating to paragraphs 7,
8, 9 10 or 11, will be submitted to arbitration in Mississippi and such
arbitration will be commenced, conducted and concluded in accordance with the
rules, and under the auspices, of the American Arbitration Association then in
effect. The arbitration panel shall consist of three arbitrators: one selected
by company, one by Monarch, and the third pursuant to the rules of the
Association. All fees and expenses of the arbitration will be borne equally by
Monarch and the Company. The decision of the arbitrators will be final and
binding and both parties hereby forever waive and renounce any right either
party may have to seek review of such decision in any tribunal.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
CASINO RESOURCE CORPORATION
By:_________________________________
Xxxx X. Xxxxxx, Chief Executive
Officer
MONARCH CASINOS, INC.
By:____________________________________
Xxxx X. Xxxxxxxx, Chief
Executive Officer
The undersigned hereby acknowledges, agrees and accepts the terms of this
Agreement to the extent such terms relate to the undersigned, including as to
paragraphs 7, 8, 9, 10 and 11.
Executed and delivered this _____ day of December, 1995.
_______________________________________________
Xxxxxxx X. Xxxxx, individually, and as a shareholder of
Monarch
