SETTLEMENT AGREEMENT
THIS AGREEMENT, entered as of day of March, 1996, by and between PALM
SPRINGS EAST LIMITED PARTNERSHIP, a Nevada limited partnership, in all
capacities, including its capacity as debtor and debtor-in-possession in the
PSELP Bankruptcy Case defined below ("PSELP"), and the 29 PALMS BAND OF MISSION
INDIANS (the "Tribe"), a federally recognized Indian tribe. For good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, PSELP and the Tribe confirm and agree as follow:
W I T N E S S E T H:
A. The Tribe is a band of Native Americans recognized as possessing the
powers of self governance; and
B. PSELP is an affiliated entity of Elsinore Corporation, a publicly traded
corporation regulated by the Nevada Gaming Commission; and
C. PSELP and the Tribe entered into a Management Agreement, dated November
11, 1993, and amended on January 25, 1994 (the "Management Agreement"), for the
management of Class II gaming and such Class III gaming as authorized during the
term of the Management Agreement in accordance with the Indian Gaming Regulatory
Act, the controlling Gaming Ordinance of the Tribe, and such Tribal-State
Compact between the Tribe and the State of California as may be entered into, at
the Spotlight 29 Casino (the "Casino"), located in the county of Riverside,
state of California; and
D. PSELP and the Tribe entered into a Loan Agreement, dated November 11,
1993 (the "Loan Agreement") in the amount of Ten Million Dollars ($10,000,000),
to fund the development, construction and operation of the Casino; and
E. Effective July 29, 1994, the National Indian Gaming Commission (the
"NIGC"), approved the Management Agreement and Loan Agreement, and thereafter
PSELP completed the design and construction of the Casino, which was opened to
the public on January 14, 1995; and
F. Pursuant to the Management Agreement, PSELP has provided periodically to
the Tribe working capital advances to permit the continued operation of the
Casino; and
G. With accrued interest, the funds advanced by PSELP pursuant to the Loan
Agreement and the working capital contributions total an aggregate amount which
exceeds $13 million; and
H. On or about February 15, 1995, the Tribe determined that the Casino
could not compete effectively with other casinos in the area without the
addition of video "pull-tab" gaming devices; and
I. On March 3, 1995, the Tribe installed and now operates video "pull-tab"
gaming devices at the Casino; and
J. Disputes have arisen between PSELP and the Tribe with respect to the
rights of the parties under the Management Agreement and under the Loan
Agreement; and
K. On March 27, 1995, PSELP, its general partner Elsub Corporation, and
Elsinore Corporation initiated legal action (the "Legal Action") against the
Tribe in connection with the Management Agreement and moved for a preliminary
injunction requiring the removal of the "pull-tab" devices on the grounds that
the Tribe did not yet have authority from the State of California to operate
"pull-tab" devices at the Casino; and
L. On or about April 13, 1995, and in the midst of legal action at an
impasse in negotiations, PSELP withdrew from the onsite management of the Casino
and PSELP discontinued funding operating shortfalls of the Casino; and
M. On May 16, 1995, PSELP and the other plaintiffs dismissed without
prejudice the Legal Action that had been commenced against the Tribe; and
N. On May 16, 1995, the Tribe delivered to PSELP notice of claimed breaches
under the Management Agreement; and, as part of the notice, the Tribe threatened
to terminate the Management Agreement; and
O. Effective June 16, 1995, the Tribe declared that the Management
Agreement with PSELP was terminated; and
P. Since approximately April 15, 1995, the Tribe has performed the
management duties that had been performed previously by PSELP under the
Management Agreement; and
Q. In order to resolve all known and unknown outstanding disputes between
PSELP and the Tribe, and to avoid costly and protracted litigation, and to avoid
costly and protracted litigation, PSELP and the Tribe desire to resolve their
disputes by compliance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged by the respective parties hereto, it
is agreed as follows:
1 SECTION
Definitions
"Act" means the Indian Gaming Regulatory Act, 102 Xxxx. 0000,
00 X.X.X. 0000, et seq.
"Class II Gaming" has the meaning given that phrase by the Act.
"Class III Gaming" has the meaning given that phrase by the Act.
"Closing Date" has the meaning given in Section 7 of this Agreement.
"Compact" means such Tribal-State Compact for the Conduct of Class III
Gaming as may be entered into between the Tribe and the State of California
pursuant to the Act.
"Event of Default" has the meaning given in Section 10 of this
Agreement.
"Facility" means the gaming center constructed and operating at the
Site and shall include any room or rooms therewith and all equipment therein, in
which gaming is conducted, and shall further include patron food, beverage and
service facilities, and any other related income producing property or
activities on the Site.
"GAAP" means Generally Accepted Accounting Principles as promulgated by
the American Institute of Certified Public Accountants.
"Gross Receipts" means all revenue of any kind resulting from the
operation of the Facility.
"Income" means, consistent with GAAP and determined on an accrual
basis, all Gross Receipts, including, but not limited to, royalties, earnings,
income, interest, proceeds, products, rents, revenues and other payments which
may now or hereafter be received or become receivable from the operation of the
Facility, net of all expenses necessary or proper for the maintenance,
operation, and repair of the Facility (the "Operating Expenses"), including, but
not limited to, costs of goods, gaming equipment, services, prizes, employee
wages, taxes relating to employee wages, advertising, promotion, bus and
coordinator costs, auto and travel expense, bad debt expense, uniforms, office
expense, printing, supplies, utilities, rent, insurance, maintenance, legal
services, costs of regulations, accounting and miscellaneous and other expenses;
provided, however, that legal and other expenses relating to the dispute between
PSELP and Tribe, interest and principal repayment on the Restated Note and
depreciation on the Facility shall not be Operating Expenses for purposes of
this definition.
"Loan Agreement" means that certain Loan Agreement between PSELP and
the Tribe, dated November 11, 1993.
"Management Agreement" means that certain Management Agreement between
PSELP and the Tribe dated November 11, 1993, and the addendum thereto dated
January 23, 1994.
"Obligations" means all obligations owing under this Agreement and
under the Restated Note.
"Party" or "Parties" means PSELP, and its affiliate Elsinore
Corporation, or the Tribe, or both, as required by the context of the usage of
the term in this Agreement.
"PSELP Bankruptcy Case" means the Chapter 11 case of PSELP commenced on
October 31, 1995, and pending in the United States Bankruptcy Court for the
District of Nevada, Case No. 95-24688 RCJ.
"Reservation" means the lands near the city of Indio, county of
Riverside, state of California recognized by the United States of America as the
Reservation of the Tribe.
"Restated Note" means the Restated Commercial Promissory Note in the
form of Exhibit "B" to this Agreement which the Tribe will execute and deliver
to PSELP on the Closing Date, pursuant to Section 3.2 of this Agreement.
"Site" means the approximate 55-acre parcel of Reservation land
described in Exhibit "A" to this Agreement.
"Tribal Council" means the 29 Palms Band of Mission Indians Tribal
Council, the duly elected governing body of the Tribe as authorized by Article 3
of the Tribal Articles of Association.
2 SECTION
Termination of Management Agreement
PSELP and the Tribe agree that the Management Agreement shall be and
hereby is terminated effective June 16, 1995.
3 SECTION
Replacement of Development Loan Agreement
3.1 The Loan Agreement between the Tribe and PSELP is replaced by the terms
of this Agreement.
In this regard:
(a) As of January 1, 1996, the principal sum of the indebtedness owing from
the Tribe to PSELP shall be $9 million (the "Restated Principal").
(b) The annual rate of interest payable on the Restated Principal shall be
adjusted quarterly on June 30, September 30, December 31 and March 31, of any
applicable year, to an amount equal to the then maximum allowable interest rate
permitted under California law, which interest rate in no event shall be less
than 10.0 percent or more than 12.0 percent.
(c) The Restated Principal will be repaid in accordance with the terms of
the Restated Note which is attached hereto as Exhibit "B".
3.2 On the Closing Date, the Tribe will execute and deliver the Restated
Note to PSELP.
4 SECTION
Mutual Releases
4.1 Effective on the Closing Date, the Tribe does hereby unconditionally
and irrevocably release, quit and absolutely discharge PSELP and its
predecessors, successors, assigns, officers, directors, partners, employees,
agents, affiliates, and subsidiaries of and from any and all rights, claims,
obligations, actions, causes of action, suits, debts, liens, contracts,
liabilities, demands, costs, expenses (including, but not limited to attorneys'
fees), whether known, unknown, fixed, contingent, accrued, inchoate, or
otherwise, which now exist or may hereafter arise pursuant to statute, contract,
tort, or equity, and which are based on the Management Agreement, or on any
other matters which have occurred before the execution of this Agreement.
Pursuant to this general release of all claims, the Tribe expressly waives the
protections and benefits of California Civil Code Section 1542 which states:
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.
At closing, the Tribe will deliver to PSELP a Release in the form of Exhibit "C"
to this Agreement.
4.2 Effective on the Closing Date, PSELP does hereby unconditionally and
irrevocably release, quit and absolutely discharge Tribe and its predecessors,
successors, assigns, officers, directors, partners, employees, agents,
affiliates, and subsidiaries of and from any and all rights, claims,
obligations, actions, causes of action, suits, debts, liens, contracts,
liabilities, demands, costs, expenses (including, but not limited to attorneys'
fees), whether known, unknown, fixed, contingent, accrued, inchoate, or
otherwise (collectively, the "Claims"), which now exist or may hereafter arise
pursuant to statute, contract, tort, or equity, and which are based on the
Management Agreement, or on any other matters which have occurred before the
execution of this Agreement. Notwithstanding any other provision hereof, this
Release shall not release the Tribe or other released parties from any
liability, lien, security interest or other Claim whatsoever in conjunction
with, or resulting from any breach or violation of, the Agreement, the Restated
Note, the Loan Agreement as modified by this Agreement, or related loan and
security documents. Pursuant to this general release of all of all claims, PSELP
expressly waives the protections and benefits of California Civil Code Section
1542 which states:
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.
At closing, PSELP will deliver to the Tribe a Release in the form of Exhibit "D"
to this Agreement.
4.3 By entering into this Agreement, neither PSELP nor the Tribe expressly
or implicitly admits to or acknowledges any past liability or obligation to the
other under any contract, agreement, instrument or arrangement.
5 SECTION
No Encumbrances
The Tribe will not encumber the assets and Income of the Facility without
the express written consent of PSELP, which consent will not be unreasonably
withheld. Nothing in this Agreement authorizes either party to encumber any real
property owned by the Tribe.
6 SECTION
Representations and Warranties
6.1 Representations and Warranties of PSELP. In addition to the other
covenants, promises and warranties contained in other parts of this Agreement,
PSELP represents and warrants for the benefit and reliance of the Tribe as
follows:
(a) PSELP is a limited partnership duly organized, validly existing and in
good standing under the laws of the State of Nevada, with all requisite
partnership power and authority to enter into and carry out its obligations
under this Agreement, subject to the approval of the Bankruptcy Court in the
PSELP Bankruptcy Case as provided below.
(b) Subject to the approval of the Bankruptcy Court in the PSELP Bankruptcy
Case as provided below, the execution, delivery, and performance of this
Agreement by the persons (including Elsub Management, Inc.) executing the same
on behalf of PSELP have been duly and validly authorized (and by their execution
hereof such persons individually represent and warrant that they are so
authorized) and this Agreement and the other agreements and instruments
contemplated hereby constitute legal, valid and binding obligations of PSELP,
enforceable in accordance with their respective terms.
(c) To the knowledge of PSELP, the execution, delivery or performance of
this Agreement will not, with or without the giving of notice and/or the passage
oftime (1) violate any provision of law applicable to PSELP or the Facility
whichwould prevent the consummation of the transactions contemplated by this
Agreement; or, (2) conflict with any judgment, order, injunction, decree or
ruling of any court or governmental authority, or other agreement or instrument
by which PSELP or the Facility are bound, or to which any of them are subject,
or which would prevent the consummation of the transactions contemplated by this
Agreement, except that the Agreement is subject to the approval of the
Bankruptcy Court in the PSELP Bankruptcy Case as provided below.
(d) The execution and delivery of this Agreement by PSELP and the
consummation of the transactions contemplated hereunder will not result in any
obligation or liability (with respect to accrued benefits or otherwise) to any
employee benefit plan or to any employee or former employee of PSELP.
(e) PSELP has not made any untrue statement of material fact in this
Agreement or in any document to be furnished to the Tribe under this Agreement,
and PSELP has not omitted any material fact in this Agreement or in any document
to be furnished to the Tribe which would cause any of the statements made herein
or in any documents furnished to the Tribe to be misleading.
6.2 Representations and Warranties of Tribe. In addition to the other
covenants, promises and warranties contained in other parts of this Agreement,
the Tribe hereby represents and warrants for the benefit of PSELP as follows:
(a) The Tribe is an Indian tribe duly organized, validly existing and in
good standing under the laws of the United States of America, with all requisite
tribal powerand authority to enter into and carry out its obligations under this
Agreement.
(b) The execution, delivery, and performance of this Agreement by the
persons executing the same on behalf of the Tribe have been duly and validly
authorized (and by their execution hereof such persons individually represent
and warrant that they are so authorized) and this Agreement and the other
agreements and instruments contemplated hereby constitute legal, valid and
binding obligations of the Tribe, enforceable in accordance with their
respective terms.
(c) Except for approvals from the National Indian Gaming Commission, the
Tribe will not assert that any other consent, license, permit, order, approval
or authorization of any governmental authority or private party is required in
connection with the execution, delivery, and performance of this Agreement and
the Restated Note by the Tribe.
(d) The execution, delivery or performance of this Agreement will not, with
or without the giving of notice and/or the passage of time (1) violate any
provision of law applicable to the Tribe or the Facility or which would prevent
the consummation of the transactions contemplated by this Agreement; or, (2)
conflict with or result in the breach or termination of, or constitute a default
under or pursuant to any indenture, mortgage, deed of trust or any judgment,
order, injunction, decree or ruling of any court or governmental authority, or
other agreement or instrument by which the Tribe or the Facility are bound, or
to which any of them are subject, or which would prevent the consummation of the
transactions contemplated by this Agreement; or, (3) result in the creation of
any lien, charge or encumbrance upon the Facility except as provided in Section
5 of this Agreement.
(e) The Tribe has good and marketable title to the Facility except as
specifically stated herein or as described on Schedule 1 attached hereto.
(f) All debts, arising by contract or otherwise affecting the Facility that
have been incurred prior to the Closing Date and are obligations of the Tribe,
which have been or will be fully paid by the Tribe.
(g) There are no actions, claims, suits or proceedings pending directly
against the Tribe or the Facility in any court or before any administrative
agency which would prevent the Tribe from completing the transactions provided
for herein.
(h) The Tribe has not made any untrue statement of material fact in this
Agreement or in any document to be furnished to the PSELP under this Agreement,
and the Tribe has not omitted any material fact in this Agreement or in any
document to be furnished to the PSELP which would cause any of the statements
made herein or in any documents furnished to the Tribe to be misleading.
6.3 No Limitation. No specific warranty or representation contained herein
shall be deemed to modify or limit any general warranty or representation.
6.4 Reliance on Warranties. The representations and warranties of PSELP and
the Tribe contained herein are made with the knowledge and expectations that the
other party is placing complete reliance thereon.
6.5 Continued Validity. The representations and warranties contained herein
shall be true and correct as of the date of the execution hereof, or such other
date as specified herein, and as of the Closing Date and shall survive the
Closing Date and investigation at any time made by or on behalf of the Tribe or
PSELP.
7 SECTION
Closing
7.1 The closing shall be as provided in this Section 7 and shall occur at
the offices of PSELP, 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx.
7.2 At the closing, PSELP shall deliver to the Tribe:
(a) A form of Order which will be submitted to the Bankruptcy Court for
purposes of obtaining judicial approval of this Agreement; and
(b) A release pursuant to Section 4 above substantially in the form of
Exhibit "D" to this Agreement.
7.3 At the closing, the Tribe shall deliver to PSELP the following:
(a) A fully executed Restated Note in the form of Exhibit B to this
Agreement;
(b) A release pursuant to Section 4 substantially in the form of Exhibit
"C" to this Agreement;
(c) The legal opinion of general counsel of the Tribe in substantially the
form as Exhibit "E" to this Agreement; and
(d) A fully executed and duly certified resolution of the Tribal Council,
in substantially the form of Exhibit "F" to this Agreement, unconditionally and
specifically: (1)approving this Agreement and all schedules, exhibits and
related documents and instruments entered into between PSELP and the Tribe in
connection herewith; and (2) waiving the sovereign immunity of the Tribe in
accordance with Sections 5 and 12 of this Agreement and acknowledging that no
action of the Tribal Council or Tribal Gaming Commission of the 29 Palms Band of
Mission Indians shall operate to excuse the Tribe's obligations to perform the
terms of this Agreement.
7.4 At the closing, PSELP and the Tribe shall execute such documents and
instruments not in conflict with the terms hereof as any of them may require to
fully effectuate the terms, covenants and conditions hereof.
7.5 PSELP and the Tribe shall pay their own respective costs, fees and
expenses, including attorney fees and costs, incurred in connection with the
negotiation, documentation, and closing of this Agreement.
7.6 The terms, covenants and conditions hereof shall not merge with any
documents or instrument executed or delivered at closing or in connection with
the consummation of the transactions contemplated by this Agreement, and shall
survive the closing and shall continue in full force and effect until such time,
if any, as provided herein.
8 SECTION
Tribe's Reporting and Inspection Obligations
8.1 Until the Tribe satisfies in full all of the Obligations, the Tribe
shall furnish PSELP within sixty (60) days after the end of each of the Tribe's
fiscal years, audited financial statements covering the operations of the
Facility for such fiscal year by delivering to PSELP an accurate and complete
copy of such financial reports as must be submitted to the NIGC. Said statements
shall include, but need not be limited to, a balance sheet and a statement of
profit and loss satisfactorily certified by an accounting firm deemed
satisfactory by the NIGC. The Tribe's fiscal year ends September 28. The
above-required statements shall segregate income and expense attributable to the
Facility and shall include the gross sales figures of any tenant paying
percentage or other rental with respect thereto.
8.2 The Tribe shall keep and maintain at an office located in the Facility
complete, accurate and customary records and books of account with respect to
all of the Tribe's business transactions with respect to the Facility and shall
retain the same intact until the Tribe fully satisfies the Obligations. PSELP or
its representatives shall be entitled at all reasonable times to inspect and
make copies and extracts of all such records and books of account.
8.3 PSELP may make or cause to be made reasonable entries upon and
inspection of the Facility until the Tribe fully satisfies the Obligations.
8.4 The Tribe agrees at any time, and from time to time, during the term
hereof and within ten (10) days after demand therefor from PSELP, to execute and
deliver to PSELP, or any party designated by PSELP, a certificate in recordable
form certifying the amount then due pursuant to this Agreement and the
Obligations secured hereby, the terms of payment thereof, the dates to which
payments have been paid, that this Agreement and all instruments and Obligations
secured hereby are in full force and effect and that there are no defenses or
offsets thereto, or specifying in what regards this Agreement or such
Obligations are not in full force and effect and the nature of any defense or
offsets thereto, together with such other information as PSELP may request.
8.5 PSELP will not disclose voluntarily any financial information obtained
from the Tribe pursuant to this Agreement without first obtaining the consent of
the Tribe. PSELP will promptly notify the Tribe of any subpoena which requires
the Tribe to disclose financial information received from the Tribe pursuant to
this Agreement. The Tribe, at its own expense, may elect to contest such a
subpoena. If the Tribe does not elect to contest the subpoena within five days
of the return date on the subpoena, then PSELP is authorized to abide by the
subpoena and produce any financial information requested by the subpoena. Upon
satisfaction of the Tribe's Obligations under this Agreement, PSELP will return
any financial information pertaining to the Tribe which is still in the
possession of PSELP.
9 SECTION
Insurance
9.1 The Tribe shall obtain and maintain insurance coverage of the following
types in amount mutually agreeable to the Tribe and PSELP through policies
exclusively devoted to the Facility and the business activity conducted thereon:
casualty other than earthquake insurance, and earthquake insurance.
9.2 PSELP shall be named as additional insured and mortgagee/loss payee on
all policies. Within ten (10) days from the date hereof, the Tribe will deliver
to PSELP certificates of insurance documenting the Tribe's compliance with the
requirements of Section 10.1 of this Agreement. The policies shall provide that
the insurer shall not assert the Tribe's immunity from suit for claims within
the policy limits. The Tribe shall not be liable beyond those limits.
9.3 In the event the Facility is substantially destroyed and the Tribe
decides not to rebuild, the insurance proceeds shall be used first to repay the
Obligations to PSELP, any remaining proceeds shall be paid to the Tribe.
9.4 If the Tribe elects to utilize such insurance proceeds to rebuild the
Facility, in such event, the Tribe's Obligations pursuant to this Agreement
shall automatically be extended for the length of time equal to the elapsed time
the Facility was unavailable for complete operation due to the destruction of
Facility.
10 SECTION
Default
10.1 Any default in the performance of any term, covenant or condition
contained herein or in any instrument or obligation secured hereby shall be an
Event of Default hereunder. PSELP will provide written notice of any default to
the Tribe, and the Tribe will have ten (10) days following receipt of notice to
cure the default. In the event that the Tribe fails to cure its default within
ten (10) days of receipt of written notice from PSELP, then PSELP will be free
to exercise all of its rights and remedies under this Agreement. The failure of
PSELP to exercise its rights with respect to any particular default will not
constitute a waiver of that default or a waiver of any subsequent default.
10.2 The waiver or release by PSELP of any default or of any of the
provisions, covenants and conditions hereof on the part of the Tribe to be kept
and performed shall not be a waiver or release of any preceding or subsequent
breach of the same or any other provision, covenant or condition contained
herein. The subsequent acceptance of any sum in payment of any indebtedness
secured hereby or any other payment hereunder by the Tribe to PSELP shall not be
construed to be a waiver or release of any preceding breach by the Tribe of any
provision, covenant or condition of this Agreement other than the failure of the
Tribe to pay the particular sum so accepted, regardless of PSELP's knowledge of
such preceding breach at the time of acceptance of such payment. No payment by
the Tribe or receipt by PSELP of a lesser amount than the amount therein
provided shall be deemed to be other than on account of the earliest sums due
and payable hereunder, nor shall any endorsement or statement on any check or
any letter or document accompanying any check or payment be deemed an accord and
satisfaction, and PSELP may accept any check or payment without prejudice to
PSELP's right to recover the balance of such sum or pursue any other remedy
provided in this Agreement. The consent by PSELP to any matter or event
requiring such consent shall not constitute a waiver of the necessity for such
consent or any subsequent matter or event.
10.3 PSELP shall give the Tribe prompt notice of the occurrence of any
Event of Default hereunder.
11 SECTION
Dispute Resolution Procedures
11.1 Meet and Confer; No Arbitration. Whenever during the term of this
Agreement, any disagreement or dispute arises between the Parties as to the
interpretation of this Agreement or any rights or obligations arising
thereunder, such matters shall be resolved whenever possible by meeting and
conferring. Any Party may request such a meeting by giving notice to the other,
in which case such other Parties shall make themselves available within seven
(7) days thereafter. If such matters cannot be so resolved within ten (10) days
from the date of such meeting, and involve any claim of breach of default under
this Agreement, either Party may enforce the provisions of this Agreement by
commencing a civil action in a Court of competent jurisdiction as provided in
Section 12.2 and 12.3 of this Agreement. The Parties shall have no legal or
equitable obligation to consent to arbitration under this Agreement.
11.2 Judicial Enforcement. Either Party may obtain an interpretation of, or
enforce any provision, right or obligation provided for in, this Agreement, the
Restated Note, the Loan Agreement as modified herein, and related loan and
security documents by commencing a civil action in the United States District
Court for the Central District of California. If and only if the United States
District Court lacks jurisdiction, then and only then does the Tribe consent to
be sued in the Superior Court of the State of California in Riverside County,
with appeals as appropriate to the California Court of Appeals and the
California State Supreme Court. Neither the Tribe nor PSELP may challenge the
jurisdiction of a Court to hear and consider a civil complaint filed pursuant to
Section 12 of this Agreement. The Tribe expressly waives its sovereign immunity
for this purpose in accordance with the provision of Section 12.3 of this
Agreement.
11.3 Tribe's Limited Waiver of Sovereign Immunity.
(a) Jurisdiction and Venue. The Tribe hereby waives, limits, or modifies
its sovereign immunity from unconsented suit only as provided in this Section
11. The Tribe expressly waives its sovereign immunity from suit or action for
any breach of, or default on, the Tribe's representations, warranties and
Obligations under this Agreement and under the Restated Commercial Promissory
Note executed by the Tribe in accordance with this Agreement. The Tribe consents
to be sued in the United States District Court for the Central District of
California. If and only if the United States District Court lacks jurisdiction,
then and only then does the Tribe consent to be sued in the Superior Court of
the State of California in Riverside County, with appeals as appropriate to the
California Court of Appeals and the California State Supreme Court. Neither the
Tribe nor PSELP may challenge the jurisdiction of a Court to hear and consider a
civil complaint filed pursuant to Section 11 of this Agreement.
(b) Monetary Damages. The Courts described in Section 11.2 and 11.3(a),
above shall have authority to enforce an award of monetary damages set forth in
any judgement or order of the court. In no case shall a Party be entitled to
punitive damages. NOTWITHSTANDING THE FOREGOING, IT IS UNDERSTOOD AND AGREED BY
THE PARTIES HERETO THAT RECOURSE FOR THE RECOVERY OF ANY INDEBTEDNESS REFERENCED
HEREIN IS LIMITED TO THE INCOME OF THE FACILITY AS DEFINED IN THIS AGREEMENT.
(c) Injunctive or Declaratory Relief. The Court may utilize its powers,
including its equity powers, as it deems necessary and appropriate.
11.4 Notice Requirements. Before any suit is filed, the complaining party
will submit to the responding party a written notice of each claim as to which
suit is contemplated, and the basis for the claim.
11.5 Limitation Periods.
(a) No action for damages may be commenced against the Tribe until the same
has been presented to the Tribe and thirty (30) days have elapsed since the date
of presentation without settlement of the amounts claimed.
(b) No action for damages may be commenced against PSELP until the same has
been presented to PSELP and thirty (30) days have elapsed since the date of
presentation without settlement of the amounts claimed.
11.6 Attorney's Fees. If action is brought by any Party to enforce the
provisions of this Agreement or to pursue any remedy permitted under this
Agreement, the losing Party shall pay reasonable attorney's fees of the
prevailing Party, to be fixed by the Court as a part of the costs in any such
action.
12 SECTION
Effective Date of Agreement
12.1 Approval of National Indian Gaming Commission. This Agreement shall
not be effective unless and until it is approved by the Chairman of the National
Indian Gaming Commission, unless the Chairman advises in writing that approval
of this Agreement by the National Indian Gaming Commission is not required for
the Agreement to be enforceable against the Tribe.
13.2 Approval of Tribal Council. This Agreement shall not be effective
unless and until it is approved and accepted by the Tribal Council for the
Tribe.
13.3 Approval of Court in PSELP Bankruptcy Case. This Agreement is subject
to approval by order of the Bankruptcy Court in the PSELP Bankruptcy Case, and
will be presented for such approval by counsel for PSELP. In this approval
process, this Agreement will be noticed to the Nevada Gaming Commission which
will have the opportunity to object to the Agreement and be heard in the
Bankruptcy Court proceedings with respect to this Agreement. In the event this
Agreement is not approved by the Bankruptcy Court, then this Agreement shall be
null and void and of no further force or effect.
13 SECTION
Amendment
The provisions of this Agreement may be modified at any time by written
agreement signed by PSELP and the Tribe, and subject to approval by the Chairman
of the National Indian Gaming Commission, and the Bankruptcy Court in the PSELP
Bankruptcy Case (if necessary).
14 SECTION
Waiver
Any of the terms or conditions of this Agreement may be waived by the
written consent of PSELP and the Tribe at any time by the Party entitled to the
benefit thereof, but no such waiver shall affect or impair the right of the
waiving Party to require observance, performance or satisfaction either of that
term or condition as it applied on a subsequent occasion or of any other term or
condition of this Agreement.
15 SECTION
Facility Ownership and Encumbrances
Except as reflected on Schedule 1 to this Agreement, the Tribe is the
exclusive owner of the Facility, including but not limited to physical premises
of the Casino and any personal property located thereon such as the video or
other gaming machines and equipment, inventory, equipment, supplies and working
capital. The Tribe specifically warrants and represents that it shall not
directly or indirectly hypothecate or encumber the Income or the Facility
without PSELP's prior written consent.
16 SECTION
Notices
Any notice under this Agreement shall be in writing, and any written
notice or other document shall be deemed to have been duly given on the date of
personal service on the parties or service by telecopy transmittal at the
addresses or telecopy numbers set forth below or at the most recent address or
telecopy number specified by the addresses through written notice under this
provision.
Palm Springs East Limited Partnership 000 Xxxxxxx Xxxxxx
Attn: Xxxxxx X. Xxxxxx, President Xxx Xxxxx, XX 00000
Elsub Management Corporation Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Lang 0 Xxxxx Xxxxxxx Xxxxxx
Xxxx: Xxxx X. Clemency Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Twenty-Nine Palms Band of Mission x/x Xxxxxxxxx 00 Xxxxxx
Xxxxxxx P. O. Box 128
Attn: Xxxx Xxxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
With a copy to: x/x Xxxxxxxxx 00 Xxxxxx
Xxxx: Xxxx Xxxxxxx, General Counsel P. X. Xxx 000
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
17 SECTION
Payments to Members of the Government of the Tribe Prohibited
No payments have been made nor shall be made to any elected member of
the government of the Tribe or any relative of any elected member of the
government of the Tribe for the purpose of obtaining this Agreement or for any
privilege for PSELP.
18 SECTION
Compliance with Tribal Codes
The Tribe will not alter, amend or repeal its Ordinances relating to
gambling operations in a way that has a materially adverse economic effect on
PSELP or the Facility. The Tribe will impose no tribal taxes either on PSELP or
the Facility until such date as the Tribe has fully satisfied all Obligations
owing to PSELP under this Agreement, the Restated Note and related loan and
security documents.
19 SECTION
Federal Approval
This Agreement may be subject to approval of the NIGC under the Act.
The Tribe and PSELP shall take all steps necessary to promptly secure any
required approval and to comply with applicable federal law.
20 SECTION
Tribal Approval
Whenever in this Agreement the approval of the Tribe is required such
approval shall be expressed by a written resolution duly adopted and certified
by the Tribal Council.
21 SECTION
Miscellaneous
21.1 Time of Essence. Time is of the essence in the
performance of this Agreement and all of the terms, provisions, covenants and
conditions hereof.
21.2 Captions. The captions appearing at the commencement of
the Sections of this Agreement are descriptive only and for convenience in
reference to this Agreement and in no way whatsoever define, limit or describe
the scope or intent of this Agreement, nor in any way affect this Agreement.
21.3 Pronouns. Personal pronouns shall be construed to comport
with the gender and number required by the context, and the singular shall
include the plural and the plural shall include singular as may be required by
the context.
21.4 No Party Deemed Drafter. The Parties agree that neither
Party shall be deemed to be the drafter of this Agreement and that in the event
this Agreement is ever construed by a court of law or equity, such court shall
not construe this Agreement or any provision hereof against either Party as the
drafter of the Agreement. PSELP and the Tribe, and each of them, acknowledge
that both Parties hereto have contributed substantially and materially to the
preparation hereof.
21.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which when executed and delivered shall be an
original, but all such counterpart shall constitute one and the same Agreement.
Any signature page of this Agreement may be detached from any counterpart
without impairing the legal effect of any signatures thereon, and may be
attached to another counterpart, identical in form thereto, but having attached
to it one or more additional signature pages.
21.6 Severability. If any provisions of this Agreement are
held by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of the Agreement shall continue in full force and effect and shall in
no way be impaired or invalidated.
21.7 Governing Law. The rights and obligations of the
parties and the interpretation and performance of this Agreement shall be
governed by California law and by applicable federal laws and regulations.
21.8 Entire Agreement. This Agreement constitutes the entire
agreement between PSELP and the Tribe and supersedes all prior representations
and agreements. Other than as stated herein, there are no representations,
warranties, agreements, arrangements, or understandings, oral or written,
between or among the parties which further amends or supplements the terms of
this Agreement.
IN WITNESS WHEREOF, PSELP and the Tribe have executed this Agreement
the day and year first above written.
PALM SPRINGS EAST LIMITED 29 PALMS BAND OF MISSION INDIANS
PARTNERSHIP
By By
Xxxxxx X. Xxxxxx, President Xxxx Xxxx, Chairman
Elsub Management Corporation
General Partner of Palm Springs
East Limited Partnership
EXHIBIT "B"
RESTATED COMMERCIAL PROMISSORY NOTE
U.S. $9,000,000 March __, 1996
FOR VALUE RECEIVED, the undersigned 29 Palms Band of Mission Indians
Tribe ("Tribe"), promises to pay Palm Springs East, L.P. ("PSELP") the principal
sum of $9,000,000 as provided herein, with interest on the unpaid principal
balance hereunder from the date hereof until paid in full, at an annual rate of
10% or the maximum allowable interest rate permitted under California law, not
to exceed 12%. Principal, interest, and other amounts (if any) owing hereunder
from the Tribe shall be due and payable to PSELP, at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxx 00000, or such other place as PSELP may designate, in monthly
payments (except as provided below), with the first payment due on the fifteenth
day of the month following the date hereof. Payments shall be made solely from
Income as defined in that certain Settlement Agreement dated March __, 1996
between PSELP and the Tribe (the "Settlement Agreement"). Up to twenty percent
(20%) of the Income from the Facility (defined in the Settlement Agreement) will
be used by the Tribe to make the payments due to PSELP under this Note. Subject
to the twenty percent (20%) Income limitation, the Tribe will make payments of
$290,405 to PSELP, adjusted quarterly to reflect changes in the applicable
interest rate. Payments made by the Tribe under this Note shall be applied first
to accrued interest, then to principal, then to any other amounts owing under
this Note. Any shortfall shall be carried forward to the next succeeding month
as a current payable for that month. The entire remaining indebtedness, if not
sooner paid, shall be due and payable on February 15, 1999, provided, however,
in the event that Income is not adequate to pay the entire indebtedness
hereunder by February 15, 1999, then this Note shall be automatically renewed
and extended until February 15, 2001, upon showing by the Tribe (in accordance
with generally accepted accounting principles) that Income was inadequate to pay
said indebtedness as provided herein. If extended, all remaining indebtedness
owing from the Tribe under this Note is due on February 15, 2001. In the event
that the Income is not adequate to pay all of the Indebtedness owing under this
Note by February 15, 2001, then the Tribe and PSELP will petition the National
Indian Gaming Commission (the "NIGC") for permission to extend further the
maturity of this Note until no later than February 15, 2003. In the event that
the NIGC refuses to permit an extension of this Note beyond February 15, 2001,
or, if extended, in the event that Income is not adequate to pay all of the
Indebtedness by February 15, 2003, then all Obligations owing from the Tribe to
PSELP under this Note and under the Settlement Agreement will be deemed to be
satisfied.
As stated above, payments under the Note are required monthly, except
that, the Tribe may elect to not make payments during the months of June, July,
and August. In the event that the Tribe elects to not make a payment in June,
then the Tribe will include in the following January's monthly payment of Income
to PSELP an additional payment of $35,000. In the event that the Tribe elects to
not make a payment in July, then the Tribe will include in the following
February's monthly payment of Income to PSELP an additional payment of $35,000.
In the event that the Tribe elects to not make a payment in August, then the
Tribe will include in the following March's monthly payment of Income to PSELP
an additional payment of $35,000.
Failure by the Tribe to make the payment(s) required under this Note
will constitute a default. Upon a default by the Tribe, PSELP shall be entitled,
subject to the notice provisions required by the Settlement Agreement, to
proceed with full recourse in accordance with law, including the right to
recover all reasonable costs and expenses of collection, including reasonable
attorneys' fees. Any failure of PSELP to exercise its recourse in the event of
such default shall not constitute a forbearance or waiver of such rights of
recourse; provided, however, it is expressly understood and agreed by the
parties hereto that recourse for recovery of any indebtedness referenced herein
is limited to the Income as defined in the Settlement Agreement.
If the Settlement Agreement between the Tribe and PSELP is terminated
for any reason, the total amount of outstanding principal and interest owing
under this Note shall, at the option of PSELP, immediately become due and
payable by the Tribe to PSELP, notwithstanding anything contained herein or in
the Settlement Agreement to the contrary; provided, however, that the Tribe
shall have no obligation to make payments to PSELP if this Note is deemed
satisfied as set forth above.
Presentment, notice of dishonor and protest are hereby waived by all
makers, sureties, guarantors, and endorsers hereof. This Note shall be the joint
and several obligation of all makers, sureties, guarantors, and endorsers and
shall be binding upon them and their successors and assigns.
To the extent the Tribe promises to pay the indebtedness referenced
herein and to the extent of PSELP's and/or note holders' rights to seek recourse
in accordance with law for collection of Tribe's liability hereunder, the Tribe
hereby waives its defense of sovereign immunity. Approval of this instrument of
indebtedness by Tribe shall be confirmed by a Tribal Resolution accordingly.
It is expressly understood and agreed that PSELP may proceed in the
first instance against the Tribe to collect the indebtedness evidenced by this
Note, without first proceeding against guarantor or any other person, firm, or
corporation, and without first resorting to any property given at any time to
PSELP as collateral security.
It is expressly understood and agreed that any obligation of the Tribe
hereunder is strictly limited to the repayment of the indebtedness incurred
pursuant hereto, and nothing herein contained shall obligate Tribe to PSELP in
any other respect nor shall PSELP be entitled to any participation, favorite
treatment, or any authority over Tribe, which would constitute a usurpation of
their respective jurisdictions or authority.
If any provision of this Note is null and void, the nullity shall not
effect any other provision of this Note which can be given effect without the
void provision and to this end, the provisions of this Note are severable.
This instrument of indebtedness, as well as any other documents and
agreements executed in conjunction herewith, shall be governed by and construed
in accordance with laws of the State of California. Provisions in the Settlement
Agreement pertaining to venue, jurisdiction, and waiver of sovereign immunity
are incorporated by reference into the terms and conditions of this Note.
The parties hereto agree that execution of a facsimile of this
Agreement shall have the same force and effect as an executed original and shall
be binding upon the parties hereto.
IN WITNESS WHEREOF, the undersigned Tribe sets its hand of
this ___________ day of ___________, 1996.
29 PALMS BAND OF MISSION INDIANS
By:
Xxxx Xxxx, Chairman
EXHIBIT "C"
FULL AND FINAL RELEASE OF ALL CLAIMS
(Tribe to PSELP)
This Release is made pursuant to that certain Settlement Agreement,
dated as of March ___, 1996 (the "Settlement Agreement"), executed by and
between PALM SPRINGS EAST LIMITED PARTNERSHIP, a Nevada limited partnership
("PSELP"), and the 29 PALMS BAND OF MISSION INDIANS (the "Tribe"), a federally
recognized Indian tribe, in conjunction with that certain Settlement Agreement,
and as part of the closing that is provided for in the Settlement Agreement.
Terms used herein with their initial letters capitalized that are defined in the
Settlement Agreement shall have the meaning given them in the Settlement
Agreement unless otherwise defined herein.
In consideration of the mutual promises set forth in the Settlement
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Tribe, voluntarily, knowingly,
and unconditionally, with specific and express intent, and on behalf of itself
and its agents, accountants, attorneys, affiliates, predecessors, successors and
assigns (collectively, the "Releasing Parties"), hereby fully releases, acquits,
and forever discharges PSELP and its successors, assigns, partners, affiliates,
subsidiaries, parent companies, principals, directors, officers, employees,
agents, accountants, insurers, attorneys, and any other party who may be
responsible or liable for the acts or omissions of PSELP (collectively, the
"Released Parties"), of and from any and all actions, causes of action, suits,
debts, disputes, damages, claims, obligations, liabilities, costs, expenses and
demands of any kind whatsoever, at law or in equity, whether matured, or
unmatured, liquidated or unliquidated, vested or contingent, xxxxxx or inchoate,
known or unknown (collectively, "Claims") that the Releasing Parties (or any of
them) had, now has, or hereafter can, shall, or may have (to the extent such
future Claims arise in whole or in part out of acts or omissions prior to the
date of the execution of this Release) against the Released Parties or any of
them for, upon, or by reason of any matter, cause, or thing whatsoever directly
or indirectly arising in connection with or related to: (i) the Management
Agreement; or (ii) any other matters which have occurred on or before the date
of this Release.
Notwithstanding any other provision hereof, this Release shall not
release the Released Parties from any liability in conjunction with, or
resulting from any breach or violation of, the Settlement Agreement.
Each Released Party who is not a party to the Settlement Agreement is
nevertheless an express and intended third-party beneficiary of both the
Settlement Agreement and this Release.
The Tribe hereby agrees that it will not assert, and that it is
estopped from asserting, against the Released Parties, or any of them, any Claim
that it has released in this Release. In addition, the Tribe hereby agrees that
it will not commence, join in, prosecute or participate in any suit or other
proceeding in a position that is adverse to any of the Released Parties arising
directly or indirectly from any Claim that it has released in this Release.
No waiver or amendment of this Release, or the promises, obligations or
conditions herein, shall be valid unless set forth in writing and signed by the
party against whom such waiver or amendment is to be enforced, and no evidence
of any waiver or amendment of this Release shall be offered or received in
evidence in any proceeding, arbitration or litigation between the Releasing
Parties (or any of them) and the Released Parties (or any of them) arising out
of or affecting this Release unless such waiver or amendment is in writing and
signed as stated above.
The Tribe hereby represents and warrants that it has not assigned,
pledged, or transferred in any manner to any person or entity any Claim that is
the subject of this Release. The Tribe shall indemnify the Released Parties and
each of them from and against all Claims that are the subject of this Release
that are asserted by any person or entity by or through any Releasing Parties or
as a result of any assignment, pledge, or transfer that caused the foregoing
representation to be false.
The Tribe hereby agrees, represents and warrants that it has had advice
of counsel of its own choosing in negotiations for and the preparation of this
Release, that it has read this Release or has had the same read to it by its
counsel, that it has had this Release fully explained by such counsel, and that
it is fully aware of its contents and legal effect.
This Release shall be binding upon the successors and assigns of the
Tribe, and shall inure to the benefit of the successors and assigns of PSELP.
This Release shall be governed by and construed in accordance with the
laws of the State of California. By executing this Release, the undersigned
consents to the transaction evidenced hereby. Pursuant to this general release
of all claims, the Tribe expressly waives the protections and benefits of
California Civil Code Section 1542 which states:
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.
The provisions of this Release shall be specifically enforceable.
Executed as of March , 1996.
29 PALMS BAND OF MISSION INDIANS
By
Xxxx Xxxx, Chairman
EXHIBIT "D"
FULL AND FINAL RELEASE OF ALL CLAIMS
(PSELP to Tribe)
This Release is made pursuant to that certain Settlement Agreement,
dated as of March 29, 1996 (the "Settlement Agreement"), executed by and between
PALM SPRINGS EAST LIMITED PARTNERSHIP, a Nevada limited partnership ("PSELP"),
and the 29 PALMS BAND OF MISSION INDIANS (the "Tribe"), a federally recognized
Indian tribe, in conjunction with that certain Settlement Agreement, and as part
of the closing that is provided for in the Settlement Agreement. Terms used
herein with their initial letters capitalized that are defined in the Settlement
Agreement shall have the meaning given them in the Settlement Agreement unless
otherwise defined herein.
In consideration of the mutual promises set forth in the Settlement
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, PSELP, voluntarily, knowingly, and
unconditionally, with specific and express intent, and on behalf of itself and
its agents, accountants, attorneys, affiliates, predecessors, successors and
assigns (collectively, the "Releasing Parties"), hereby fully releases, acquits,
and forever discharges the Tribe and its successors, assigns, partners,
affiliates, subsidiaries, parent companies, principals, directors, officers,
employees, agents, accountants, insurers, attorneys, and any other party who may
be responsible or liable for the acts or omissions of the Tribe (collectively,
the "Released Parties"), of and from any and all actions, causes of action,
suits, debts, disputes, damages, claims, obligations, liabilities, costs,
expenses and demands of any kind whatsoever, at law or in equity, whether
matured, or unmatured, liquidated or unliquidated, vested or contingent, xxxxxx
or inchoate, known or unknown (collectively, "Claims") that the Releasing
Parties (or any of them) had, now has, or hereafter can, shall, or may have (to
the extent such future Claims arise in whole or in part out of acts or omissions
prior to the date of the execution of this Release) against the Released Parties
or any of them for, upon, or by reason of any matter, cause, or thing whatsoever
directly or indirectly arising in connection with or related to: (i) the
Management Settlement Agreement; or (ii) any other matters which have occurred
on or before the date of this Release except for any such Claims relating to the
funds under the Loan Agreement which are owing by the Tribe as stated in the
Settlement Agreement, and all liens, security interests or other interests
securing such advances.
Notwithstanding any other provision hereof, this Release shall not
release the Released Parties from any liability, lien, security interest or
other Claims whatsoever related to or in conjunction with, or resulting from any
breach or violation of, the Settlement Agreement, the Restated Note, or related
loan and security documents.
Each Released Party who is not a party to the Settlement Agreement is
nevertheless an express and intended third-party beneficiary of both the
Settlement Agreement and this Release.
PSELP hereby agrees that it will not assert, and that it is estopped
from asserting, against the Released Parties, or any of them, any Claim that it
has released in this Release. In addition, PSELP hereby agrees that it will not
commence, join in, prosecute or participate in any suit or other proceeding in a
position that is adverse to any of the Released Parties arising directly or
indirectly from any Claim that it has released in this Release.
No waiver or amendment of this Release, or the promises, obligations or
conditions herein, shall be valid unless set forth in writing and signed by the
party against whom such waiver or amendment is to be enforced, and no evidence
of any waiver or amendment of this Release shall be offered or received in
evidence in any proceeding, arbitration or litigation between the Releasing
Parties (or any of them) and the Released Parties (or any of them) arising out
of or affecting this Release unless such waiver or amendment is in writing and
signed as stated above.
PSELP hereby represents and warrants that it has not assigned, pledged,
or transferred in any manner to any person or entity any Claim that is the
subject of this Release, except as expressly provided in the Settlement
Agreement. PSELP shall indemnify the Released Parties and each of them from and
against all Claims that are the subject of this Release that are asserted by any
person or entity by or through any Releasing Parties or as a result of any
assignment, pledge, or transfer that caused the foregoing representation to be
false.
PSELP hereby agrees, represents and warrants that it has had advice of
counsel of its own choosing in negotiations for and the preparation of this
Release, that it has read this Release or has had the same read to it by its
counsel, that it has had this Release fully explained by such counsel, and that
it is fully aware of its contents and legal effect.
This Release shall be binding upon the successors and assigns of PSELP
and shall inure to the benefit of the successors and assigns of the Tribe.
This Release shall be governed by and construed in accordance with the
laws of the State of California. By executing this Release, the undersigned
consents to the transaction evidenced hereby. Pursuant to this general release
of all claims, PSELP expressly waives the protections and benefits of California
Civil Code Section 1542 which states:
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.
The provisions of this Release shall be specifically enforceable.
Executed as of ______________, 1996.
PALM SPRINGS EAST LIMITED PARTNERSHIP
By
Xxxxxx X. Xxxxxx, President
Elsub Management Corporation
General Partner of Palm Springs
East Limited Partnership
EXHIBIT "E"
Xxxx X. Xxxxxxx
SPOTLIGHT 29 CASINO
00-000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Palm Springs East, Limited Partnership
c/o Xxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
I am general counsel to the 29 PALMS BAND OF MISSION INDIANS
(the "Tribe"), a federally recognized Indian tribe. In connection with my
representation of the Tribe, I observed the Tribe execute and acknowledge that
certain Settlement Agreement dated as of February ___, 1996 (the "Settlement
Agreement"), executed by and between PALM SPRINGS EAST LIMITED PARTNERSHIP, a
Nevada limited partnership ("PSELP"), and the Tribe, and certain related
documents identified in the Settlement Agreement, including, without limitation,
the Restated Note as defined in the Settlement Agreement and the Release
referenced in Section 4 of the Settlement Agreement (the "Release"). (The
Settlement Agreement, the Restated Note, the Release, the Loan Agreement as
modified by the Settlement Agreement, and the other documents relating to the
Settlement Agreement will be referred to herein collectively as the
"Documents"). In addition, I have reviewed such other documents, certificates,
laws, instruments and agreements as in my judgment are necessary or appropriate
to enable me to render this opinion, including, without limitation, the
Constitution, Charter documents and organizational documents and resolutions
promulgated by or on behalf of the Tribe. In addition, I have conducted such
other inquiries and examinations as I deem necessary and appropriate for
rendering this opinion.
Based on the foregoing, it is my opinion that:
(a) The Tribe is a federally recognized Indian tribe
with full right, power and authority to carry out and
consummate the transactions contemplated by the Settlement
Agreement, and has duly taken all actions
necessary to carry out and consummate the transactions
contemplated to be performed on its part by the Settlement
Agreement and other Documents.
(b) The laws of the State of California will govern
and control: (i) the rights and remedies of PSELP under the
Settlement Agreement and other Documents; and (ii) the rights
and remedies of the parties to the Settlement Agreement and
other Documents.
(c) The provisions, covenants, and waivers contained
in the Documents executed by the Tribe relating to the waiver
of sovereign immunity by the Tribe and the submittal to
jurisdiction of the Tribe to the United States District Court
for the Central District of California, or if the United
States District Court lacks jurisdiction, the Superior Court
of the State of California in Riverside County, with appeals
as appropriate to the California Court of Appeals and the
California State Supreme Court, including, without limitation,
Section 11.3 of the Settlement Agreement, are valid and
enforceable.
(d) To the best of my knowledge, no further consent,
approval, order, authorization, registration, resolution,
declaration or designation of or filing with any governmental
authority of the United States (except only the consent of the
National Indian Gaming Commission and possibly the consent of
the Bureau of Indian Affairs) or the Tribe or any subdivision
thereof is required in connection with the authorization,
execution, delivery or performance by the Tribe of the
Settlement Agreement and other Documents.
(e) The Tribe has duly authorized, executed and
delivered the Settlement Agreement and other Documents
executed by the Tribe, and duly consented to all of the
Documents.
(f) The Tribe has taken all necessary tribal action
to authorize the execution and delivery of the Settlement
Agreement and other Documents, and the persons who executed
the Settlement Agreement and other Documents on behalf of the
Tribe were duly authorized to do so. The Settlement Agreement
and other Documents are in full force and effect and
constitute the legal, valid and binding obligations of the
Tribe, enforceable against the Tribe in accordance with their
terms.
(g) The Tribe's Articles of Association do not
prohibit the Tribe from entering into the Settlement Agreement
and other Documents. A true and complete copy of the Tribe's
resolution certified by the Tribe's secretary authorizing the
execution, delivery and performance of the Settlement
Agreement and other Documents is attached as Exhibit "1"
hereto. The Tribe's resolution is in full force and effect and
has not been amended, abrogated, or terminated.
Sincerely,
Xxxx X. Xxxxxxx
General Counsel to the Tribe
EXHIBIT "F"
TWENTY-NINE PALMS BAND OF MISSION INDIANS
GENERAL COUNCIL RESOLUTION REGARDING SETTLEMENT AGREEMENT
WHEREAS, the Twenty-Nine Palms Tribe of Mission Indians (the "Tribe")
has authorized its Chairman, Xxxx Xxxx (the "Chairman") to negotiate that
certain Settlement Agreement (the "Settlement Agreement"), with PALM SPRINGS
EAST LIMITED PARTNERSHIP, a Nevada limited partnership ("PSELP"), as well as
certain related documents identified in the Settlement Agreement, including,
without limitation, the Restated Note as defined in the Settlement Agreement and
the Release referenced in Section 3 of the Settlement Agreement (the "Release");
and
WHEREAS, after due consideration, the General Council has determined
that it is in the best interests of the Tribe for the Tribe to execute and
deliver to PSELP the Settlement Agreement and the related documents, including
the Restated Note and the Release (collectively the "Documents");
NOW, THEREFORE, BE IT RESOLVED, that the Settlement Agreement and all
schedules, exhibits and related Documents (including, but not limited to,
delivery of the "Restated Commercial Promissory Note" dated _______, 1996) are
hereby approved by the General Council, subject to review and, if necessary,
approval of the National Indian Gaming Commission ("NIGC");
RESOLVED, FURTHER, that the Chairman is hereby authorized to execute
and deliver to PSELP the Settlement Agreement and other Documents;
RESOLVED, FURTHER, that once the Settlement Agreement and related
Documents have been reviewed and (if deemed necessary by NIGC) approved by NIGC,
the General Council specifically agrees:
(a) Under the Settlement Agreement, the Tribe waives its
sovereign immunity as provided in Section 11.3 of the Settlement
Agreement, and any lawsuits related to the Settlement Agreement or the
other Documents will be determined in the courts of the United States
or
California as stated in the Settlement Agreement; and
(b) No subsequent action by the General Council, the Tribe's
gaming commission or any other governing body of the Tribe, or any
tribal court, shall operate to excuse the Tribe's obligations under the
Settlement Agreement and the other Documents.
RESOLVED, FURTHER, that the Tribe's counsel, Xxxx X. Xxxxxxx, is
authorized to present copies of the Settlement Agreement and the other
Documents, and all other appropriate material to NIGC, and to meet with NIGC and
perform all other acts reasonably necessary on behalf of the Tribe to secure
NIGC's approval of the Settlement Agreement and other Documents, provided,
however, that counsel shall not agree to any changes in the economic or other
material terms of the Settlement Agreement or other Documents without prior
approval by the General Council.
Certification
I, _________________, the duly authorized secretary/custodian of
records for the Tribe, certify that the foregoing resolution was approved and
adopted at a duly noticed and constituted meeting of the Tribal Council
conducted on ________ ___, 1996.
DATED this ___ day of ___________, 1996.
(Print Name)
Secretary/Custodian of Records for
the Tribal Council of the 29 Palms
Band of Mission Indians
