Exhibit 99.1
XXXXXXXXXXXXXXXXXXXXXX.XXX
Loan Agreement
This Loan and Security Agreement (this "Agreement") is made as of
January 2, 2003 (the "Effective Date"), by and between BounceBack
Xxxxxxxxxxxx.xxx, Inc., a Minnesota corporation, f/k/a Casino Resource
Corporation (the "Company"), and Xxxxx Xxxxx, an individual resident of the
State of Nevada ("Lender").
Recitals
A. Pursuant to that certain Conditional Release and Termination
Agreement between the Company and Lakes Entertainment, Inc.,
a Minnesota corporation, f/k/a Lakes Gaming, Inc. ("Lakes")
dated May 20, 1999 (as amended, the "Lakes Agreement"), as
amended by that certain Amendment to Conditional Release and
Termination Agreement dated July 1, 1999 (the "Lakes
Amendment"), and further amended on the date hereof, the
Company is entitled to certain contingent payments (the
"Lakes Payments") upon the opening of a casino (the "Casino")
as contemplated by the First Amended and Restated Management
Agreement between the Pokagon Band of Potawatomi Indians (the
"Tribe") and Great Lakes Gaming of Michigan, LLC, a
wholly-owned subsidiary of Lakes ("Great Lakes"), dated
October 16, 2000 (as amended, the "Management Agreement").
B. The Company initiated a civil suit against Xxxxxx'x
Entertainment, Inc. on September 4, 1998 in United States
District Court for District of Minnesota, court file number
98-2058 (JEL/JGL), styled as Casino Resource Corporation x.
Xxxxxx'x Entertainment, Inc., and Xxxxxx'x Operating Company,
Inc., d/b/a Xxxxxx'x Southwest Michigan Casino Corporation,
Xxxxxx'x Southwest Michigan Casino Corporation, Xxxxxx X.
Xxxxx, Xxxxx X. Xxxx, and Xxxx Does 1-10, seeking damages for
alleged breaches of various agreements with the Company and
tortuous interference with the Company's contractual and
prospective economic advantage associated with the Company's
management agreement with the Tribe (the "Xxxxxx'x Lawsuit").
C. The Company is seeking $500,000 in bridge financing for
working capital purposes, which will be secured by the Lakes
Payments and the recovery, if any, from the Xxxxxx'x Lawsuit.
Agreement
The parties, intending to be legally bound, hereby agree as follows:
1. AMOUNT AND TERMS OF THE LOAN
1.1 The Loan. Subject to the terms and conditions contained in this
Agreement, Lender hereby agrees to advance to the Company at Closing the sum of
Five Hundred Thousand
and no/100 Dollars ($500,000.00) (the "Loan"). The Loan shall be evidenced by a
promissory note in the form of Exhibit A attached hereto (the note executed at
Closing, and any amendments, restatements or substitutions, shall be referred to
collectively as the "Note") and secured by the Lakes Payments and Xxxxxx'x
Lawsuit as provided in Section 2 of this Agreement. Interest shall be payable on
the outstanding principal balance of the Loan plus Capitalized Interest (as
defined below) (such principal balance plus Capitalized Interest shall be
referred to as the "Principal Balance") at an annual rate of thirty percent
(30%) per annum compounded annually ("Applicable Rate"), in the manner provided
below. Additional Interest (as defined below) shall also be due and payable to
the extent required by Section 1.3 hereof.
1.2 Repayment. Payments of Principal Balance and interest thereon at
the Applicable Rate under the Note shall be due and payable commencing on the
earlier of (i) the last day of the calendar quarter following the first
anniversary of the date on which the Casino is opened for business, or (ii) the
first anniversary of the date on which Lakes commences making the Lakes Payments
to the Company in accordance with the Lakes Agreement (the "Loan Repayment
Commencement Date"). Interest which accrues from the date of the Note until the
Loan Repayment Commencement Date shall be capitalized and added to the
outstanding principal balance as of the Loan Repayment Commencement Date (such
interest shall be referred to as "Capitalized Interest"). The Principal Balance
(including such Capitalized Interest), together with interest thereon at the
Applicable Rate, shall be due and payable in twelve (12) equal quarterly
installments commencing on the Loan Repayment Commencement Date and continuing
on the last day of each of the succeeding calendar quarters until the third
anniversary of the Loan Repayment Commencement Date (the "Maturity Date") at
which time the then outstanding Principal Balance and accrued interest thereon
shall be due and payable in full. Such payments shall commence on the Loan
Repayment Commencement Date and continue on the last day of each of the
succeeding calendar quarters until the Maturity Date. If requested by the
Lender, following the determination of the Loan Commencement Repayment Date, the
Company agrees to execute and deliver to Lender at Lender's request an amended
and restated note setting forth the Principal Balance outstanding and the amount
of each quarterly payment (including interest and any Additional Interest) and
otherwise in substantially the form of the Note.
1.3 Additional Interest. Prior to the Loan Repayment Commencement Date,
Lender shall determine the sum of (i) the Capitalized Interest and (ii) the
total amount of interest payable under Section 1.2 from the Loan Repayment
Commencement Date through the Maturity Date (such sum shall be referred to as
the "Total Interest Payable"). If the Total Interest Payable is less then One
Million and no/100 Dollars ($1,000,000.00) (the "Minimum Interest Amount"), the
difference between the Total Interest Payable and the Minimum Interest Amount
shall be due and payable in twelve (12) equal quarterly installments commencing
on the Loan Repayment Commencement Date, in the same manner as the Principal
Balance and interest thereon at the Applicable Rate (such payments shall be
referred to as "Additional Interest"). If the Total Interest Payable exceeds the
Minimum Interest Amount, no Additional Interest shall be payable. Lender shall
provide the Company with written notice of the amount of Additional Interest, if
any, prior to the Loan Repayment Commencement Date.
1.4 Mandatory Prepayment in Full. The outstanding Principal Balance
under the Note, together with all accrued and unpaid interest and Additional
Interest and any Prepayment
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Penalty, shall become immediately due and payable if the Loan Repayment
Commencement Date has not occurred by the fifth anniversary of the Closing Date.
1.5 Mandatory Prepayment of Accelerated Lakes Payments. Upon early
receipt of any Lakes Payments which Lakes has accelerated due to the Tribe's
exercise of its buyout option pursuant to Section 8 of the Management Agreement,
a transfer by Great Lakes of its interest in the Management Agreement or in the
Development Agreement (as defined below), or for any other reason (such
accelerated payments shall be referred to as "Accelerated Lakes Payments"), the
Company shall immediately pay to Lender an amount equal to the greater of (i)
the amount of such Accelerated Lakes Payments, or (ii) the outstanding Principal
Balance under the Note, together with all accrued and unpaid interest and
Additional Interest and any Prepayment Penalty. Accelerated Lakes Payments shall
be deemed to be a prepayment and applied in accordance with the terms set forth
in the Note. As used herein, "Development Agreement" shall mean the First
Amended and Restated Development Agreement between Great Lakes and the Tribe,
dated October 16, 2002, as heretofore and hereafter amended.
1.6 Mandatory Prepayment of Net Lawsuit Proceeds. Upon receipt of the
Lawsuit Award, the Company shall immediately pay to Lender an amount equal to
the lesser of (i) thirty percent (30%) of the Net Lawsuit Proceeds, or (ii) the
outstanding Principal Balance under the Note, together with all accrued and
unpaid interest and Additional Interest. Net Lawsuit Proceeds shall be deemed to
be a prepayment and applied in accordance with the terms set forth in the Note.
"Lawsuit Award" shall mean the gross award recovered from the Xxxxxx'x Lawsuit.
"Net Lawsuit Proceeds" shall mean the net proceeds recovered from the Xxxxxx'x
Lawsuit after payment of reasonable attorneys' fees and costs of the litigation.
1.7 Prepayment Penalty. In the event of a prepayment in full of the
Note under Section 1.4, 1.5 or 1.6 or acceleration of the Principal Balance
under Section 9.2, a prepayment penalty shall be due and payable equal to the
excess (if any) of the Minimum Interest Amount over the Total Interest Payable
that has accrued as of the date of the Mandatory Prepayment Event or the date of
such acceleration under Section 9.2, as applicable (such amount shall be
referred to as the "Prepayment Penalty"). In calculating the Prepayment Penalty,
repayments of Principal Balance shall be deemed to be applied first to the
principal balance outstanding (excluding Capitalized Interest), then to
Capitalized Interest. An event triggering prepayment in full or in part under
Section 1.4, 1.5 or 1.6 shall be referred to as a "Mandatory Prepayment Event."
1.8 Expenses and Attorneys' Fees. The Company shall reimburse the
Lender for all costs of collection before and after judgment, and the costs of
preservation and/or liquidation of any collateral.
2. SECURITY.
The Company agrees to grant and convey to Lender a security interest in
the Lakes Payments and the Xxxxxx'x Lawsuit (together, the "Collateral") by
executing and delivering at Closing a Security Agreement in the form attached
hereto as Exhibit B. The Company also agrees to execute and deliver to Lender an
Assignment of the Xxxxxx'x Lawsuit in the form
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attached hereto as Exhibit C. The Company covenants and agrees that it shall
cause Lakes, upon the commencement of the Lakes Payments, to make payments
directly to Lender equal to the amounts payable under the Note, and to deduct
such payments from the Lakes Payments that would otherwise be due to the
Company.
3. XXXXXX'X BONUS.
In the event that the Lawsuit Award exceeds Seven Million and no/100
Dollars ($7,000,000.00), the Company shall pay to Lender an amount equal to five
percent (5%) of the amount of the Lawsuit Award in excess of $7,000,000.00,
payable immediately out of the first proceeds received. Such payment shall not
be deemed to be a prepayment of the Note, but shall be in addition to all
amounts due and owing under the Note.
4. OPTIONS.
The Company shall deliver to Lender at closing options to purchase One
Hundred Fifty Thousand (150,000) shares of the Company's Common Stock at an
exercise price of Ten Cents ($.10) per share (the "Options"). The Options shall
be fully vested and have a term of ten (10) years. The Company shall also
execute and deliver to Lender at Lender's request a registration rights
agreement acceptable to Lender, including piggyback registration rights
acceptable to Lender, and demand registration rights which Lender may exercise
commencing on the fifth anniversary of the Effective Date.
5. THE CLOSING
5.1 Closing Date. The closing of the transactions contemplated hereby
(the "Closing") will be held on or before January 2, 2003 or at such other time
as the Company and Lender mutually agree, either orally or in writing (the
"Closing Date").
5.2 Conditions to Lender's Obligations. Lender's obligation to close
this Agreement and fund the Loan shall be subject to the following conditions
precedent, and each document required to be delivered to Lender shall be in form
and substance satisfactory to Lender:
(a) Execution and delivery of the letter agreement attached hereto as
Exhibit D by Lakes (the "Letter Agreement");
(b) Execution and delivery of each of the Company's Closing Documents
(as defined below);
(c) Each of the Company's representations and warranties being true and
correct as of the date of Closing;
(d) No default of the Company existing under this Agreement or any
other agreement between Lender and the Company; and
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(e) Lender having received confirmation satisfactory to it that no
third party has a perfected and first priority security interest or other lien
in the Collateral, except the security interest of SouthTrust Bank existing as
of the date hereof.
5.3 Delivery. At the Closing, the Company will execute and deliver, or
cause to be executed and delivered, to the Lender each of the following in form
and substance acceptable to the Lender: (a) the Note, (b) the Security
Agreement, (c) the Assignment, (d) the Letter Agreement, (e) copies of the
Company's articles of incorporation and bylaws, and of corporate resolutions
approving this Loan, certified to be true and complete by the Company's
secretary, (f) a stock option agreement, and if requested by Lender, a
registration rights agreement, with respect to the Options, and (g) all other
documents or agreements applicable to the Loan or as may be reasonably requested
by Lender ("Company's Closing Documents").
6. WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents and warrants to Lender that as of the
date of this Agreement and as of the Closing Date, except as set forth on a
Schedule of Exceptions furnished to Lender, specifically identifying the
relevant subparagraph(s) hereof, which exceptions will be deemed to be
representations and warranties as if made hereunder:
6.1 Organization; Good Standing; Qualification. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Minnesota, has all requisite corporate power and authority
to execute and deliver this Agreement and to carry out and perform its
obligations under the provisions of this Agreement. The Company is duly
qualified or licensed as a foreign corporation in each jurisdiction wherein the
nature of its activities makes such qualification or licensing necessary.
6.2 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement and the performance of all obligations of the
Company hereunder, including the issuance and delivery of the Note and the
Options, has been taken or will be taken prior to the Closing. This Agreement,
the Note and any other documents between the Company and the Lender (the "Loan
Documents"), when executed and delivered by the Company, will constitute valid
and legally binding obligations of the Company, enforceable in accordance with
their respective terms.
6.3 Governmental Consents. No consent, approval, qualification, order
or authorization of, or filing with, any local, state, or federal governmental
authority is required on the part of the Company in connection with the
Company's valid execution, delivery, or performance of this Agreement, or the
offer, sale or issuance of the Note by the Company.
6.4 Noncontravention. The making and performance of this Agreement and
the execution and delivery of the Note and other Loan Documents will not result
in the breach of, or constitute a default under, or result in the creation of
any lien or encumbrance upon, any property or assets of the Company pursuant to
any indenture or loan or credit agreement or other agreement or instrument to
which the Company is a party or by which the Company or its
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property may be bound or affected (other than under this Agreement, the
Assignment, or the Security Agreement).
6.5 Litigation. There are no actions, suits, or proceedings pending or,
to the knowledge of the Company, threatened against or affecting the Company or
the properties of the Company before any court or government department,
commission, board, bureau, agency or instrumentality which, if determined
adversely to the Company, would have a material adverse effect on the financial
condition, properties or operations of the Company or the ability of the Company
to perform this Agreement.
6.6 Title to Properties. Except for the security interest granted to
Lender herein and the security interest of SouthTrust Bank existing as of the
Effective Date, the Company has good and marketable title to properties and
assets it owns, which properties and assets are not subject to any mortgage,
pledge, lease, lien, charge, security interest, encumbrance or restriction.
6.7 Lakes Agreement; Xxxxxx'x Lawsuit. The Lakes Agreement is in full
force and effect, and no event of default by any party has occurred under the
Lakes Agreement. The Company has not entered into a settlement agreement with
respect to the Xxxxxx'x Lawsuit or waived, terminated or compromised any rights
with respect to the Xxxxxx'x Lawsuit.
6.8 Accuracy of Information. All information, certificates, or
statements given to the Lender pursuant to this Agreement or other related
documents will be true and correct in all material respects when given.
7. REPRESENTATIONS AND WARRANTIES OF LENDER.
Lender hereby represents and warrants to the Company that this
Agreement, when executed and delivered, will constitute a valid and legally
binding obligation of Lender.
8. COVENANTS OF THE COMPANY.
The Company covenants and agrees as follows:
8.1 Organizational Existence; Compliance with Law. That it shall
maintain its organizational existence in good standing, and conduct its business
in accordance with all applicable laws and regulations of the United States or
of any states or political subdivisions thereof. The Company shall not make any
material change in the nature or manner of its business activities;
8.2 Xxxxxx'x Lawsuit. That the Company shall not assign any of its
rights in the Xxxxxx'x Lawsuit without Lender's prior written consent; and that
in the event, after the occurrence of an Event of Default, the Lender exercises
his rights as a secured lender with respect to the Xxxxxx'x Lawsuit, the Company
shall fully cooperate with the Lender in the Lender's prosecution and collection
of the Xxxxxx'x Lawsuit;
8.3 Financial Statements. That it shall furnish Lender within one
hundred twenty days (120) days after the end of each fiscal year of the Company,
with audited financial
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statements of the Company, prepared by and with the unqualified opinion of a
certified public accountant acceptable to Lender, including a balance sheet,
statement of income and expense and statement of changes in capital for said
year prepared in accordance with generally accepted accounting principles and
certified as true and correct by the chief executive officer of the Company;
8.4 Title. That it shall maintain absolute title to all Collateral,
free and clear of all interests, liens, attachments and security interests
except as set forth herein and except for the security interest of SouthTrust
Bank existing on the date of this Agreement. The Company shall not sell, lease,
or otherwise dispose of any Collateral, except the sale of inventory in the
ordinary course of the Company's business, without Lender's prior written
consent;
8.5 Lakes Agreement. That it shall act diligently to maintain the Lakes
Agreement in full force and effect, and to enforce all of its rights and
remedies under the Lakes Agreement. The Company shall not agree to any
modification, waiver, termination or compromise of its rights under the Lakes
Agreement except with the prior written consent of Lender and shall further
immediately provide Lender with copies of any amendments to the Management
Agreement and/or Development Agreement when made available to the Company. The
Company has advised the Lender of its agreement to pay proceeds from the Lakes
Agreement in the amount of One Million and no/100 Dollars ($1,000,000.00) to
Xxxxxxx Xxxxx and Monarch Casinos, Inc.;
8.6 SouthTrust Bank. That it shall obtain and deliver to Lender within
fifteen (15) days of closing an executed acknowledgement from SouthTrust Bank
that SouthTrust Bank shall not lend additional funds in excess of Two Hundred
Thousand and no/100 Dollars ($200,000.00) to the Company, unless SouthTrust Bank
subordinates payment of, and its lien relating to, such additional loan to the
security interest of Lender and delivers to Lender a subordination agreement
acceptable to Lender;
8.7 Fabyanske, Xxxxxx & Xxxx, P.A. That it shall obtain and deliver to
Lender within fifteen (15) days of closing an executed acknowledgement from
Fabyanske, Xxxxxx & Xxxx, P.A., the Company's counsel in the Xxxxxx'x Lawsuit,
attaching the firm's complete fee agreement with the Company and agreeing that
in no event shall the fees payable by the Company in connection with the
Xxxxxx'x Lawsuit be increased without the prior written consent of the Lender;
and
8.8 Amendment to Lakes Agreement. That it shall obtain, execute and
deliver to Lender within fifteen (15) days of closing an amendment to the Lakes
Agreement executed by Lakes, providing that payments due to the Company shall be
accelerated in the event that the Tribe exercises its buyout option pursuant to
Section 8 of the Management Agreement. Such payments shall only be accelerated
to the extent of payments actually received by Lakes from the Tribe, and such
payments shall be subject to the greater of the discount applied by the Tribe to
its payments to Lakes, or the discount provided in Section 5.6 of the Lakes
Amendment.
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9. EVENTS OF DEFAULT.
9.1 Events of Default. Notwithstanding any cure periods described
below, the Company will immediately notify the Lender in writing when the
Company obtains knowledge of the occurrence of any default specified below.
Regardless of whether the Company has given the required notice, the occurrence
of one or more of the following shall constitute an "Event of Default":
(a) Nonpayment. The Company shall fail to pay any interest or
principal due on the Note, or any fees, charges, costs, expenses or other
amounts outstanding under this Agreement or any other Loan Documents within five
(5) business days after receipt of written notice of nonpayment from the Lender;
(b) Nonperformance. Except as set forth in paragraphs (a) and
(c) through (g), the Company shall fail to perform or observe any agreement,
term, provision, condition, or covenant required to be performed or observed by
the Company under this Agreement or any other Loan Documents and shall not cure
such failure within ten (10) business days after notice in writing thereof from
the Lender; provided, however, that no notice or cure period shall be required
for the breach of any negative covenant (i.e., a covenant prohibiting any act of
the Company);
(c) Bankruptcy; Insolvency. The Company becomes insolvent or
bankrupt, or admits in writing its inability to pay its debts as they mature, or
makes an assignment for the benefit of creditors, or dissolves or suspends
operations of any material portion of its business, or the Company applies for
or consents to the appointment of a trustee or receiver for the Company, or for
the major part of the property of the Company;
(d) Appointment of Trustee. A trustee or receiver is
appointed for the Company for the major part of the property of the Company and
the order of such appointment is not discharged, vacated or stayed within thirty
(30) days after such appointment;
(e) Judgment Against Company. Any judgment, writ or warrant
of attachment or of any similar process in an amount in excess of $50,000 shall
be entered or filed against the Company or against any of the property of the
Company and remains unpaid, unvacated, unbonded or unstayed for a period of
thirty (30) days;
(f) Order for Relief. An order for relief shall be entered in
any federal bankruptcy proceeding in which the Company is the debtor; or if
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings,
or other proceedings for relief under any bankruptcy or similar law or laws for
the relief of debtors, are instituted by or against the Company and, if
instituted against Company, are consented to or, if contested by the Company,
are not dismissed by the adverse parties or by an order, decree or judgment
within thirty (30) days after such institution; or
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(g) Breach of Representation or Warranty. (i) Any
representation or warranty made by or on behalf of the Company in this Agreement
or in any certificate, report or other instrument delivered under or pursuant to
any term hereof or thereof shall prove to have been untrue or incorrect in any
material respect as of the date of this Agreement or the Closing Date, or (ii)
any report, certificate, financial statement or financial schedule or other
instrument prepared or purported to be prepared by Company or any officer of the
Company furnished or delivered under or pursuant to this Agreement after the
Closing Date shall prove to be untrue or incorrect in any material respect as of
the date it was made, furnished or delivered.
9.2 Remedies upon Default. Upon the occurrence of any Event of Default,
and at any time thereafter unless and until such Event of Default is waived in
writing by Lender, Lender may exercise one or several or all of the following
rights and remedies:
(a) Lender may at any time thereafter, by written notice to
the Company, declare the unpaid principal balance of the Note, together with the
interest and Additional Interest (if any) accrued thereon and other amounts
accrued hereunder or under any other Loan Documents, to be immediately due and
payable; and the unpaid balance shall thereupon be due and payable, all without
presentation, demand, protest or further notice of any kind, all of which are
hereby waived, and notwithstanding anything to the contrary contained herein.
(b) Lender may exercise and enforce any and all rights and
remedies available upon default to a secured party under the Uniform Commercial
Code, including, without limitation, the right to take possession of the
Collateral, or any evidence thereof, proceeding without judicial process
(without a prior hearing or notice thereof, which the Company hereby expressly
waives) and the right to sell, lease or otherwise dispose of any or all of the
Collateral. If notice to the Company of any intended disposition of the
Collateral or any other intended action is required by law in a particular
instance, such notice shall be deemed commercially reasonable if given at least
ten (10) calendar days prior to the date of intended disposition or other
action.
(c) Lender may exercise all rights and remedies available
upon default under the Security Agreement, under any other Loan Documents, or
under applicable law.
(d) Nothing in this Section 9.2 is intended to restrict
Lender's rights under this Agreement or at law, and Lender may exercise all such
rights and remedies cumulatively as and when they are available and Lender may
exercise or enforce any and all other rights or remedies available by law or
agreement against the Company, or against any other Person or property.
10. MISCELLANEOUS.
10.1 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party will be
liable or bound to any other party in any manner by any warranties,
representations, or covenants, except as specifically set forth herein or
therein.
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10.2 Survival of Warranties. The warranties, representations, and
covenants of the Company and Lender contained in or made pursuant to this
Agreement will survive the execution and delivery of this Agreement and the
Closing.
10.3 Successors and Assigns. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon the successors and assigns of
the parties. Notwithstanding the foregoing, in no event shall the Company assign
or delegate its rights or obligations under this Agreement, the Note, or any
other Loan Documents without the prior written consent of the Lender. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and permitted assigns any
rights, remedies, obligations.
10.4 Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement will be governed by
and construed and enforced in accordance with the internal laws of the State of
Minnesota, without regard to conflicts of laws principles or principles that
might otherwise refer construction or interpretation of this Agreement to the
substantive law of another jurisdiction. THE COMPANY HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITUATED IN HENNEPIN
COUNTY, MINNESOTA, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS WITH
REGARD TO ANY ACTIONS, CLAIMS, DISPUTE OR PROCEEDINGS RELATING TO THIS
AGREEMENT, THE NOTE, THE COLLATERAL, OR ANY OTHER LOAN DOCUMENT, OR ANY
TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF
THE FOREGOING. Nothing herein will affect the Lender's rights to serve process
in any manner permitted by law, or limit the Lender's rights to bring
proceedings against the Company in the competent courts of any other
jurisdiction(s).
10.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.6 Notices. All notices, consents, waivers and other communications
under this Agreement and the Note must be in writing and will be deemed to have
been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile or electronic mail (with written confirmation of
receipt), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses and facsimile numbers set forth on the signature page
below (or to such other addresses and facsimile numbers as a party may designate
by notice to the other party).
10.7 Severability. If any provision or provisions of this Agreement is
or are held invalid or unenforceable by any court of competent jurisdiction, the
other provisions of this Agreement will remain in full force and effect. Any
provision or provisions of this Agreement held invalid or unenforceable only in
part or degree will remain in full force and effect to the extent not held
invalid or unenforceable.
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10.8 Counterpart Signatures. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of which
together will constitute one and the same agreement.
10.9 Further Assurances. Each party agrees and covenants that at any
time and from time to time it will promptly execute and deliver to the other
party such further instruments and documents and take such further action as the
other party may reasonable require in order to carry out the full intent and
purpose of this Agreement.
10.10 WAIVER OF JURY TRIAL. COMPANY ACKNOWLEDGES THAT THE RIGHT TO
TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED AND THAT THE
TIME AND EXPENSE REQUIRED FOR A TRIAL BY A JURY MAY EXCEED THE TIME AND EXPENSE
REQUIRED FOR TRIAL WITHOUT A JURY. THE COMPANY, AFTER CONSULTING (OR HAVING HAD
THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF COMPANY'S CHOICE, KNOWINGLY AND
VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF COMPANY AND LENDER, WAIVES ANY RIGHT
TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT, ANY RELATED
AGREEMENTS, OR OBLIGATIONS THEREUNDER. THE COMPANY HAS READ ALL OF THIS
AGREEMENT AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS AGREEMENT. THE COMPANY
ALSO AGREES THAT COMPLIANCE BY THE LENDER WITH THE EXPRESS PROVISIONS OF THIS
AGREEMENT SHALL CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED REASONABLE FOR ALL
PURPOSES.
10.11 Indemnification. Except for harm arising from Lender's gross
negligence or willful misconduct, the Company indemnifies and agrees to defend
and hold the Lender harmless from any and all losses, costs, damages, claims and
expenses of any kind suffered by or asserted against the Lender relating to
claims by third parties arising out of the financing provided under this
Agreement or related to any Collateral. This indemnification and hold harmless
provision will survive the termination of this Agreement and related agreements
and the satisfaction of the Note.
[The remainder of this page has been left intentionally blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BOUNCEBACK XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Chief Executive Officer
Address: 000 Xxxxxxxxx Xxxxxxxxx
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Xxxxx Xxxxxxx, XX 00000
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Facsimile: 000-000-0000
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Email: xxxx@xxxxxxxxxxxxxxxxxxxxxx.xxx
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/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Address: 0000 Xxxxxxx Xxxx Xxxxx
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Xxx Xxxxx, XX 00000
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Facsimile:----------------------------
Email:--------------------------------
244133
[Signature page to Loan Agreement between BounceBack
Xxxxxxxxxxxx.xxx, Inc. and Xxxxx Xxxxx.]
-12-
A-1
EXHIBIT A
Form of Note
A-1
EXHIBIT B
Form of Security Agreement
A-2
EXHIBIT C
Form of Assignment
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
________________________________________________________________________________
Casino Resource Corporation Court File No.: 98-2058(JEL/JGL)
Plaintiff,
COLLATERAL
v. ASSIGNMENT OF LAWSUIT
AND CLAIMS AND
ACKNOWLEDGMENT
TO XXXXX XXXXX
Xxxxxx'x Entertainment, Inc., and Xxxxxx'x Operating
Company, Inc., d/b/a Xxxxxx'x Southwest Michigan
Casino Corporation, Xxxxxx'x Southwest Michigan
Casino Corporation, Xxxxxx X. Xxxxx, Xxxxx X. Xxxx, and
Xxxx Does 1-10
Defendants.
________________________________________________________________________________
For value received, receipt of which is acknowledged, the undersigned
Plaintiff has assigned and granted a security interest to Xxxxx Xxxxx, an
individual residing at 0000 Xxxxxxx Xxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000 (the
"Lender"), in all of the undersigned's right, title and interest, whether now or
hereafter acquired, in the undersigned Plaintiff's suit against Defendants filed
with the District Court on September 4, 1998, court file number 98-2058
(JEL/JGL), styled as Casino Resource Corporation x. Xxxxxx'x Entertainment,
Inc., and Xxxxxx'x Operating Company, Inc., d/b/a Xxxxxx'x Southwest Michigan
Casino Corporation, Xxxxxx'x Southwest Michigan Casino Corporation, Xxxxxx X.
Xxxxx, Xxxxx X. Xxxx, and Xxxx Does 1-10 (the "Suit"), including without
limitation, any and all choses in action, claims, judgments against Defendants
which may be entered by the District Court in the Suit, any settlement agreement
relating to the Suit and approved by the District Court, requiring payment of
any sum by Defendants, together further without limitation all rights in this
Suit or otherwise to collect or enforce Plaintiff's right to any judgment or
settlement and all other rights to payment or proceeds arising from or relating
to the Suit (collectively, the "Assigned Rights"). Said security interest has
been granted pursuant to a security agreement dated January 2, 2003, executed by
the undersigned in favor of the Lender.
The undersigned officer declares, on behalf of Plaintiff and under
penalty of perjury, that he has the power and authority to assign Plaintiff's
rights to the Assigned Rights to the Lender as described above.
[The remainder of this page has been intentionally left blank.]
225013
2
Dated: January 2, 2003 BOUNCEBACK XXXXXXXXXXXX.XXX, INC.
f/k/a Casino Resource Corporation
By: /s/ Xxxx Xxxxx
-------------------------------
Its: CEO
--------------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 2nd day of
January 2003, by Xxxx X. Xxxxxx the CEO of BounceBack Xxxxxxxxxxxx.xxx, Inc., a
Minnesota corporation, for and on behalf of said corporation.
/s/ Xxxxxxxxx X. Xxxxx
----------------------
Notary Public
244149
_____________________________________
Mississippi Statewide Notary Public
My Commission Expires Dec. 3, 2005
Bonded Thru Xxxxxxx Notary Service
_____________________________________
A-3
EXHIBIT D
Form of Letter Agreement
A-4
