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Exhibit 10.23
THIS PROMISSORY NOTE HAS BEEN ISSUED IN CONNECTION WITH A CERTAIN STOCK PURCHASE
AND SETTLEMENT AND RELEASE AGREEMENT DATED SEPTEMBER 27, 1996 BY AND AMONG
INLAND CASINO CORPORATION ("INLAND"), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(COPIES OF WHICH ARE ON FILE WITH INLAND AND MAY BE OBTAINED FROM THE CORPORATE
SECRETARY OF INLAND) AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY
STATE SECURITIES LAW AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO A
"U.S. PERSON" (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) UNLESS THIS
PROMISSORY NOTE IS REGISTERED UNDER THE SECURITIES ACT. ACCORDINGLY, THIS
PROMISSORY NOTE MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED
UNLESS IT HAS FIRST BEEN REGISTERED UNDER THE SECURITIES ACT AND REGISTERED OR
QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAW OR UNLESS INLAND HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT REGISTRATION UNDER THE
SECURITIES ACT AND REGISTRATION OR QUALIFICATION UNDER ANY APPLICABLE STATE
SECURITIES LAW IS NOT REQUIRED.
PROMISSORY NOTE
$1,000,000.00 San Diego, California September 15, 2000
FOR VALUE RECEIVED, the undersigned, Venture Catalyst Incorporated, a
Utah Corporation ("Maker"), formerly Inland Entertainment Corporation
("Inland"), hereby promises to pay to the order of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual
resident of the State of California ("Payee"), the principal sum of ONE MILLION
DOLLARS ($1,000,000.00) in lawful money of the United States of America.
1. Interest. The unpaid principal balance of this Promissory Note from
time to time outstanding shall bear interest at the rate of ten percent (10%)
per annum, computed on the basis of a 360-day year for the actual number of days
elapsed.
2. Payments. For the first three (3) years of this Promissory Note,
Maker shall pay to Payee, in annual installments commencing on September 15,
2001, interest only on the unpaid principal balance; thereafter, commencing on
September 15, 2004, Maker shall pay to the order of Payee the principal sum of
$1,000,000 in three annual installments in the following manner: $333,333.33 on
each of September 15, 2004, 2005 and 2006, with interest on the unpaid principal
balance as specified in Section 1 hereof payable with each installment of
principal; provided, however, that Maker only shall be obligated to make an
installment payment under this Promissory Note (a) to the extent of Maker's
unreserved and unrestricted earned surplus and capital surplus as provided in
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Article VI of Maker's Articles of Incorporation, and (b) if and to the extent
that such installment payment could be made under Section 16-10a-640 of the Utah
Revised Business Corporation Act or any other similar applicable law, in each
case after giving effect to payments to be made by Maker under that certain
Stock Purchase and Settlement and Release Agreement, dated February 23, 1996, by
and between Maker and ▇▇▇▇ ▇. ▇▇▇▇▇, and after giving effect to payments to be
made by Maker to Payee pursuant to the ▇▇▇▇▇ Promissory Note and to ▇▇▇▇▇
pursuant to the ▇▇▇▇▇ Promissory Note, each made pursuant to the Stock Purchase
and Settlement and Release Agreement, dated September 27, 1996, by and among
Maker, Payee, and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the "Stock Purchase Agreement"); and
provided further, that in assessing whether Maker shall be obligated to make an
installment payment under this Promissory Note, Maker shall only be obligated to
make such payment to Payee to the extent that it could make the corresponding
payment to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ under the Conditional Promissory Notes executed in
favor of ▇▇. ▇▇▇▇▇ pursuant to the Stock Purchase Agreement. Each of the
above-referenced financial tests shall be made immediately prior to the time an
installment payment is scheduled. To the extent such financial tests are not
met, Maker shall be under no obligation to make such payment and Maker shall not
be deemed to be in default on this Promissory Note. To the extent that any such
installment comes due on a day that is not a business day, such payment shall be
due on the next succeeding business day.
3. Adjusted Payments. Notwithstanding anything to the contrary herein,
to the extent that Maker is unable to make an installment payment under this
Promissory Note because of the reasons set forth in Section 2 herein, Maker
shall assess the amount of funds that it may legally use to make payments to
Payee and ▇▇. ▇▇▇▇▇ and, to the extent that there are funds available, Maker
shall first make proportional payments of principal and/or interest thereon
(depending upon the type of payment that was scheduled) to Payee and ▇▇. ▇▇▇▇▇
to the extent legally permissible; thereafter, the amount of such scheduled
installments that the Company was not obligated to pay pursuant to Section 2
hereof shall be added to the principal amount remaining on this Promissory Note
and future annual payments hereunder will be adjusted accordingly. Such
procedures shall apply to successive years' installment payments until the
entire principal amount of each of Payee's and ▇▇. ▇▇▇▇▇' notes are paid in
full, which may extend beyond the anticipated six-year term stated in Section 2
herein.
4. Prepayment of Principal.
(a) Any portion of the principal balance of this Promissory Note
may be repaid from time to time in whole or in part, without penalty, and the
amount of the payments of principal and interest set forth in Section 2 will be
adjusted accordingly; provided, however, that all payments and prepayments made
by the Company under this Promissory Note and the corresponding ▇▇▇▇▇ Promissory
Note shall be proportionate with respect to each such Note.
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(b) If the principal balance of this Promissory Note is paid in
full prior to the final installment date, the entire principal balance
of this Promissory Note will be reduced by an amount equal to two
percent (2%) for each full twelve-month period that the principal
balance is paid in full prior to the final installment date. Such
reduction of the principal shall not reduce any interest payments made
on this Promissory Note. The amount of such principal reduction shall be
deducted from the final installment payment to be paid by Maker.
5. Default. If Maker fails to make any installment payment or portion of
a payment when due, and such failure shall continue thirty (30) days after Maker
has received written notice of the default from Payee, all unpaid principal,
together with accrued interest, will become immediately due and payable at the
Option of the Payee. Notwithstanding anything to the contrary herein, this
Promissory Note will not be in default to the extent Maker is not obligated to
make an installment payment of principal and /or interest hereunder for the
reasons set forth in Section 2 herein.
6. This Promissory Note is made pursuant to the Stock Purchase
Agreement. Nothing in this Promissory Note shall be construed in a manner which
is consistent with the terms of the Stock Purchase Agreement.
7. Limitation on Interest. Notwithstanding any provision contained in
this Promissory Note to the contrary, no holder hereof shall ever be entitled to
receive, collect, or apply as interest on this Promissory Note any amount in
excess for the highest lawful rate permissible under any law that a court of
competent jurisdiction may deem applicable hereto. If any holder hereof ever
receives, collects, or applies as interest any such excess, the amount that
would be excessive interest shall be deemed to be a partial payment of principal
and treated hereunder as such, and, if the principal balance of this Promissory
Note is paid in full, any remaining excess shall promptly be made to Maker.
8. Right of Setoff. To the extent that Payee does not meet his
obligations set forth in Section 19 of the Stock Purchase Agreement, Maker, at
its sole election, may reduce the principal amount of this Promissory Note by
the amount of payments not made by payee pursuant to Section 19 of the Stock
Purchase Agreement. Such right of setoff shall be separate from any other rights
available to the Company and shall not effect any right that any individual
director may have against Payee.
9. Successors and Assigns. This Promissory Note shall be binding upon
Maker, its successors and assigns, and shall inure to the benefit of Payee, its
successors and assigns. Notwithstanding anything to the contrary herein, this
Promissory Note shall not be assigned by Payee without the written consent of
Maker in accordance with the provisions of Section 35 of the Stock Purchase
Agreement.
10. Severability. If any one or more of the provisions contained herein
(or parts thereof), or the application thereof in any circumstance, is held
invalid, illegal or
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unenforceable in any respect for any reason, the validity and enforceability of
any such provision in every other respect and of the remaining provisions hereof
will not be in any way impaired or affected, it being intended that all of the
rights and privileges should be enforceable to the fullest extent permitted by
law.
11. Business Day. For purposes of this Promissory Note, the term
"business day" shall mean any day of the year other than a Saturday, Sunday or
public or bank holiday in San Diego, California.
12. APPLICABLE LAW. THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF
CALIFORNIA.
IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the
date first set forth above.
VENTURE CATALYST INCORPORATED,
A Utah corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and
Chief Financial officer
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