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EXHIBIT 10.8
MUTUAL RELEASE
This Mutual Release (the "Release") is entered into and effective this 27th
day of March, 1996 (the "Effective Date"), by and between the Barona Group of
Capitan Grande Band of Mission Indians also known as the Barona Band of Mission
Indians, a federally recognized Indian Tribe (hereinafter "Barona" or the
"Band") and Inland Casino Corporation, a Utah corporation, successor to Inland
Casino Partners, a California partnership (hereinafter "Inland").
RECITALS
WHEREAS, the Band is a federally recognized Indian Tribe possessing
sovereign powers over the Barona Indian Reservation in San Diego County,
California;
WHEREAS, the Band desires to expedite the development of the economy of the
Barona Reservation in order to improve tribal self-government and economic
self-sufficiency, to enable the Band better to serve the social, economic,
educational and health needs of its members and to provide its members with
opportunities to improve their own economic circumstances without having to work
outside of the Reservation community;
WHEREAS, the Band has established and is now operating and managing the
Barona Casino as the best feasible means by which to accomplish the Band's
objectives as described in the preceding paragraph (hereinafter the
"Enterprise");
WHEREAS, in furtherance of the above goals, the Band and Inland entered
into that certain agreement entitled "Gaming Management Agreement" dated
February, 1992, as amended, for the term of seven (7) years and under which
Inland would receive a fee equal to certain percentages of the net revenue of
the Enterprise, in the form attached hereto as Exhibit "A" (the "Gaming
Agreement");
WHEREAS, pursuant to the Gaming Agreement, Inland provided the Band the
technical assistance, advice, training and consulting services required by the
Band, while respecting the sovereign rights and authority of the Band;
WHEREAS, the Band and Inland have now mutually agreed to release and
extinguish their mutual rights, duties, and obligations as described and found
in the Gaming Agreement, and have agreed simultaneously to enter into a
Consulting Agreement, substantially in the form attached hereto as Exhibit "B."
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto agree as follows:
1. Release of Current Gaming Agreement. The Band and Inland hereby, and
pursuant to the terms of this Release, release and extinguish the Gaming
Agreement, and the rights, duties, and obligations of each as described and
found in that contract, as of the effective date of this Mutual Release.
2. Waiver and Release. By and through this Release, the Band and Inland
hereby waive, release and forever discharge each other from any and all claims,
actions, causes of action and/or liabilities arising under, or in connection
with, the Gaming Agreement, as described more fully in paragraph five (5)
hereto.
3. Contemporaneous Execution of Consulting Agreement. Contemporaneous with
the execution of this Release, and as a material element of the consideration
herein, the Band and Inland agree to enter into, execute and be bound by the
Consulting Agreement, dated and effective as of March 27, 1996, substantially in
the form attached hereto as Exhibit "B."
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4. Representations, Warranties and Covenants. Both the Band and Inland
hereby represent and warrant that they have full power and authority to execute
and deliver this Release and to perform the obligations herein, and that the
execution and delivery of this Release, and the performance of the obligations
herein, have been duly authorized and approved by all necessary entities or
officials, including Inland's Board of Directors, and the Band's General
Council.
5. Extent of Waiver and Release. Consistent with the "Waiver and Release"
section of this Release in paragraph two (2) hereto, the Band and Inland hereby
acknowledge that each releases and forever discharges the other, and their
respective officials, shareholders, officers, directors, agents, employees,
successors and assigns from any and all obligations and defaults, acts, actions,
causes of action, suits, proceedings, disputes, rights, claims and demands, at
law or in equity (whether real or contingent, known or unknown), that each has
ever had, now has or may hereafter have, arising from or related to the Gaming
Agreement or the actions or omissions of any of their respective officials,
officers, directors, agents, employees, successors and assigns which are
related, whether directly or indirectly, to that contract, whether such actions
or omissions were willful, wanton, intentional, negligent or otherwise, except
as may be required by applicable federal law. The parties expressly waive all
rights under Section 1542 of the Civil Code of the State of California,
including any successor statute and under any similar or equivalent provision of
federal law. The parties understand that Section 1542 provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Nothing herein shall, or shall be construed to, release or waive any
obligations of either party under this Release, under the Consulting Agreement,
or in connection with any financial adjustments arising out of the annual audit
for the current fiscal year.
6. Further Assurances. Each of the parties hereto shall execute and
deliver all other instruments and take all other actions that the other party
may reasonably request from time to time to effectuate the transactions provided
for herein.
7. Notices. Any notice required to be given pursuant to this Release shall
be delivered by Express Mail or overnight courier service, addressed as follows:
to the Band at Chairman Xxxxxxxx XxXxxxxx
Barona Group of Capitan Grande
Band of Mission Indians
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
with a copy to: Art Xxxxx, Esq.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxxxxxxx 00000
and to Inland at: Xxxxx X. Xxxxx, XX
Inland Casino Corporation
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxx, Xxxxxxxxxx 00000
with a copy to: Xxxx Xxxxxx, Esq.
General Counsel
Inland Casino Corporation
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxx, Xxxxxxxxxx 00000
or to their designees.
8. Waiver of Sovereign Immunity. The Band waives its sovereign immunity
from suit solely for purposes of enforcement of the terms of this Release. This
waiver is a limited waiver of immunity, and any
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damages which may arise as a result of the Band's or its officially recognized
representatives' action shall be limited exclusively to the Band's interest in
revenues derived from the operation of the Enterprise. This limited waiver of
sovereign immunity is granted solely for purposes of implementing this Release
and shall be regarded as a limited waiver of sovereign immunity in any
subsequent court proceeding commenced for purposes of enforcing the terms of
this Release. Nothing contained in this limited waiver shall be construed to
confer any benefit, tangible or intangible, on any person or entity not a party
to this Release or as a waiver with respect to any third person or entity.
9. Attorneys' Fees and Costs. Each party shall bear its own attorneys'
fees and costs in connection with the preparation and execution of the Release.
In the event of any disputes relating to and/or arising under this Release
and/or the transactions contemplated herein, the prevailing party shall be
entitled to receive its reasonable attorneys' fees and its costs and expenses of
arbitration or litigation, in addition to any other relief to which such party
may be entitled.
10. Arbitration. Any dispute relating to and/or arising under this Release
and/or the transactions contemplated herein shall be submitted to binding
arbitration before the American Arbitration Association (the "AAA") in San
Diego, California, and decided under the AAA's Commercial Arbitration Rules. The
prevailing party shall be entitled to seek confirmation and enforcement of any
arbitration award in any court of competent jurisdiction located in San Diego
County, California.
11. No Lease or Possessory Interest. The parties to this Release agree and
expressly warrant that this Release is not a lease and does not convey any
present interest whatever in the building or property on which the Band's
Enterprise is located, or any proprietary or possessory interest in the
Enterprise itself. The Band maintains the sole proprietary and possessory
interest in the Enterprise. Moreover, the parties to this Release further
warrant and understand that this Release does not relate to the management of
the Enterprise; does not grant to Consultant the exclusive right to operate the
Enterprise; does not prohibit the Tribe from encumbering its lands; and that the
Release is not "relative to Indian lands" within the meaning of 25 U.S.C.
Section 81.
12. Conflict of Interest Prohibitions.
A. The parties represent that no payments have been made and agree that no
payment will be made to any elected member of the Band's tribal government or
relative of any elected member of the Band's tribal government for the purpose
of obtaining or maintaining this Release or any other privilege for Inland. For
purposes of this paragraph, "relative" means an individual who is related to and
lives in the immediate household of an elected member of the Band's tribal
government.
B. No party interest in Inland is an elected member of the government of
the Band, or a relative of said member as defined by the Secretary of the
Interior.
13. Modification. This Release may be modified only with the formal
written agreement of both parties.
14. Severability. In the event any provision of this Release is for any
reason held to be illegal or unenforceable, such provision will be severed or
otherwise modified as may best preserve the intention of the parties hereto, and
the Release as so modified will remain in full force and effect.
15. Recitals Incorporated. The recitals set forth above are a material
part of this Release, and are incorporated herein as if fully set forth herein.
16. Governing Law. This Release shall be governed by the laws of the
United States.
17. Entire Agreement. This Release is the entire agreement between the
parties with respect to the subject matter of this Release and it is expressly
understood that there are no oral, written, or collateral agreements between the
parties or other parties with a financial interest in the subject matter of this
Release.
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IN WITNESS WHEREOF, the undersigned have caused this Release to be executed
and delivered as of the day and year first above written.
BARONA GROUP OF CAPITAN GRANDE
BAND OF MISSION INDIANS, aka BARONA
BAND OF MISSION INDIANS
By: /s/ XXXXXXXX XXXXXXXX
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Xxxxxxxx XxXxxxxx
Its: Chairman
INLAND CASINO CORPORATION,
a Utah corporation
By: /s/ XXXXX X. XXXXX, XX
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Xxxxx X. Xxxxx, XX
Its: Chairman
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