EXHIBIT 10.4
FORM OF
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ACKNOWLEDGMENT AND AGREEMENT
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THIS ACKNOWLEDGMENT AND AGREEMENT (the "Agreement"), dated as of
___________ __, 2002, is made by and among L. Xxxxxx Xxxxx, XX ("Xxxxx"),
Xxxxxxxx Xxxxx ("Xxxxx") and Xxxx Xxxxx Xxxxx ("Xxxxx").
RECITALS
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X. Xxxxx owns all of the outstanding shares of capital stock of Xxxxx
Casino Marketing, Inc., a Delaware corporation ("Xxxxx Corporation").
X. Xxxxx, Xxxxx Corporation and Venture Catalyst Incorporated, a Utah
corporation (the "Company"), have entered into that certain Agreement and Plan
of Merger dated May __, 2002 (the "Merger Agreement") pursuant to which the
Company will be merged with and into Xxxxx Corporation (the "Merger").
C. In connection with the Merger, the Company, Xxxxx and Xxxxx have entered
into that certain Restructuring Agreement dated as of May 13, 2002 (the
"Restructuring Agreement"), pursuant to which Xxxxx and Xxxxx have agreed to
restructure certain Promissory Notes previously issued by the Company in favor
of each of Xxxxx and Xxxxx (the "Promissory Notes"), by canceling such
Promissory Notes in exchange for the Company's agreement to issue and deliver to
each of Xxxxx and Xxxxx a Class A Contingent Promissory Note (each, a
"Contingent Note" and collectively, the "Contingent Notes") providing for
principal payments to be made by the Company to Xxxxx and Xxxxx based upon the
Gross Revenues (as defined in the Contingent Notes) of the Company.
D. It is a condition precedent to the closing of the transactions
contemplated by the Restructuring Agreement that Xxxxx enter into this Agreement
with Xxxxx and Xxxxx.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
AGREEMENT
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1. Acknowledgment. The parties hereto acknowledge that they have received
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copies of and reviewed the Merger Agreement, the Restructuring Agreement and the
Contingent Notes.
2. Agreement of Xxxxx Regarding Business with the Barona Tribe. Until such
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time that both of the Contingent Notes have been paid in full and cancelled,
Xxxxx agrees to conduct all of his direct and indirect business dealings with
the Barona Tribe (as defined below) exclusively through the Company or such
other entity directly or indirectly controlled by Xxxxx ("Xxxxx Affiliates")
that assumes the rights and obligations of the Company under the Contingent
Notes in accordance with the assignment provisions contained in Section 7 of the
Contingent
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Notes. For purposes of this Agreement, the term "Barona Tribe" shall mean the
Barona Group of Capitan Grande Band of Mission Indians, also known as the Barona
Band of Mission Indians, a federally recognized Indian Tribe.
3. Xxxxx Xxxxx. Notwithstanding the provisions of Section 2 to the
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contrary, nothing in this Agreement shall prohibit Xxxxx Xxxxx (Xxxxx'x spouse)
from performing services for the Barona Tribe or the Barona Casino as an
employee or consultant in exchange for compensation (subject to reasonable cost
of living adjustments) and fringe benefits (including health and life insurance
and automobile benefits) comparable to those currently being provided to Xxxxx
Xxxxx by the Company; provided, however, that until such time that both of the
Contingent Notes have been paid in full and cancelled, Xxxxx Xxxxx may not at
the same time be an employee of or a consultant to the Barona Tribe or the
Barona Casino, on the one hand, and the Company or any Xxxxx Affiliates, on the
other hand. Further, Xxxxx and Xxxxx shall have no personal recourse against
Xxxxx Xxxxx arising from or related to any breach of or default under this
Agreement. Xxxxx acknowledges and agrees that Xxxxx and Xxxxx shall have
personal recourse against him arising from or related to any breach of or
default under this Section 3.
4. Agreement of Xxxxx Regarding the Company. Until such time that both of
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the Contingent Notes have been paid in full and cancelled, Xxxxx agrees to not
sell, assign or otherwise transfer (including transfers by operation of law)
ownership or control of the Company or Xxxxx Corporation (collectively, the
"Xxxxx Entities") or all or substantially all of the assets of any of the Xxxxx
Entities to any person or entity other than an entity controlled by Xxxxx and,
in any such case, only if the Contingent Notes are assumed by the acquiring
entity prior to or concurrent with the consummation of any such sale, assignment
or transfer.
5. Notices. All notices required or permitted hereunder shall be in writing
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and shall be deemed effectively given: (a) upon personal delivery to the party
to be notified, (b) when sent by confirmed telex or facsimile if sent during
normal business hours of the recipient, if not, then on the next business day,
(c) five (5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the party
to be notified at the address indicated for such party on the signature page
hereof or at such other address as such party may designate by ten (10) days
advance written notice to the other parties hereto.
6. Termination. This Agreement and all rights and obligations hereunder
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automatically shall terminate at the time that the Contingent Notes
have been paid in full and cancelled.
7. Severability. In the event that any one or more of the provisions (or
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parts thereof) contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired or affected, it being intended that all of the rights and privileges of
each party shall be enforceable to the fullest extent permitted by law.
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8. Entire Agreement; Amendments and Waivers. This Agreement constitutes the
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entire agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. This Agreement may not be amended or
modified except by an instrument in writing signed on behalf of each of the
parties hereto. No waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.
9. Fees and Expenses. Each party shall be liable for their own costs and
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expenses incurred in connection with this Agreement.
10. Governing Law. The validity, interpretation and performance of this
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Agreement shall be governed by and construed under the law of the
State of California without regard to conflicts of laws principles.
11. Enforcement. The parties hereto consent and agree that exclusive
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jurisdiction for the resolution of any dispute between them in respect of the
enforcement of the rights and duties created by this Agreement shall reside in
any federal or state court sitting in San Diego County, California. Service in
any action to enforce rights created by this Agreement may be effected on
counsel of record for any party to this Agreement. The prevailing party in any
action to enforce this Agreement shall be entitled to recover its costs and
expenses, including, without limitation, reasonable attorneys' fees.
12. Headings. Headings in this Agreement are included for convenience of
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reference only and shall not be deemed a part of or in any manner to affect this
Agreement or any provision hereof.
13. Counterparts. This Agreement may be executed in counterparts with the
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same effect as if all parties hereto had signed the same document. All
counterparts so executed shall be deemed to be an original, shall be construed
together and shall constitute one agreement.
[Signature page follows]
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[SIGNATURE PAGE TO ACKNOWLEDGMENT AND AGREEMENT]
IN WITNESS WHEREOF, this Agreement has been executed as of the date written
above.
___________________________________________
L. Xxxxxx Xxxxx, XX
Address:
0000 Xxxxx Xxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Facsimile No. 000-000-0000
___________________________________________
Xxxxxxxx Xxxxx
Address:
000 Xxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: _______________
___________________________________________
Xxxx Xxxxx Xxxxx
Address:
______________________________
______________________________
Facsimile No.: _______________
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