MUTUAL RELEASE
This
Mutual Release is made as of March 2, 2007, by River Rock Entertainment
Authority (“River Rock”), a governmental instrumentality of and successor in
interest to the Dry Creek Rancheria Band of Pomo Indians (the “Tribe”), a
federally recognized Indian tribe, and Dry Creek Casino, LLC, a Texas limited
liability company (“Developer” and, together with River Rock, the “Parties”)
with respect to the following:
| 1. |
FOR
GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
are
hereby acknowledged, River Rock, for itself and its successors and
assigns, does hereby forever release, discharge and acquit Developer
and
its successors and assigns, and the members and managers of Developer
and
their successors and assigns, and the officers, directors, employees
and
agents of each of them, and Developer for itself and its successors
and
assigns, does hereby forever release, discharge and acquit River Rock,
the
Tribe, and each of their respective affiliates, subsidiaries, successors
and assigns, and the officers, directors, employees and agents of each
of
them of and from any and all claims, demands, obligations, liabilities,
indebtedness, breaches of contract, breaches of duty or any relationship,
acts, omissions, misfeasance, malfeasance, cause or causes of action,
judgments, debts, controversies, damages, costs, losses and expenses
of
every type, kind, nature, description or character, and irrespective
of
how, why, or by reason of what facts, whether heretofore or now existing,
or which could, might or may now or hereafter be claimed to exist,
of
whatever kind, name or nature, whether known or unknown, past or present,
latent or patent, suspected or unsuspected, anticipated, or unanticipated,
liquidated or unliquidated, each as though fully set forth herein at
length, which in any way arise out of, are connected with or related
to
the making, documenting or performing of that certain Development and
Loan
Agreement between River Rock and Developer dated as of August 21, 2001,
as
amended (the “Agreement”).
|
| 2. |
Each
of River Rock and Developer (each, a “Releasor”) hereby agrees, represents
and warrants that it realizes and acknowledges that factual matters
now
unknown to it may have given or may hereafter give rise to causes of
action, claims, demands, debts, controversies, damages, costs, losses
and
expenses which are presently unknown, unanticipated and unsuspected,
and
it further agrees, represents and warrants that this Mutual Release
has
been negotiated and agreed upon in light of that realization and that
it
nevertheless hereby intends to release, discharge and acquit River
Rock
and Developer, respectively, and each of them, from any and all such
unknown causes of action, claims, demands, debts, controversies, damages,
costs, and losses and expenses which in any way arise out of or are
connected with, or relate to the Agreement. In furtherance of this
intention, each Releasor expressly waives any and all rights conferred
upon it by the provisions of California
Civil Code Section 1542,
and expressly consents that this Mutual Release shall be given full
force
and effect according to each and all of its express terms and provisions.
Section
1542
provides:
|
“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.”
Each
Releasor hereby understands and acknowledges the significance and consequences
of such release and specific waiver of Section
1542
and has
been advised by independent legal counsel concerning the same.
IT
IS
HEREBY FURTHER UNDERSTOOD AND AGREED that the acceptance of delivery of this
Mutual Release by River Rock and Developer shall not be deemed or construed
as
an admission of liability by any party released by the terms hereof, and each
such party hereby expressly denies liability of any nature whatsoever arising
from or related to the subject of this Mutual Release.
| 3. |
The
Parties hereby acknowledge River Rock’s due exercise of the Buy-Out Option
(as such term is defined in the Agreement) and the Parties’ mutual
agreement to fix the amounts due Developer in respect of such exercise
to
the sum of $11,350,000 (the “Buy-Out Fee”), subject to the terms of this
Mutual Release. River Rock shall cause the Buy-Out Fee, less all sums
paid
to Developer toward the Buy-Out Fee after River Rock exercised the
Buy-Out
Option on January 31, 2007 and prior to full execution and delivery
of
this Mutual Release, to be paid to Developer within five (5) business
days
after River Rock‘s receipt of this Mutual Release, duly executed and
delivered by Developer. The Parties agree that they will not seek further
consideration from each other for this Mutual Release.
|
| 4. |
Each
Releasor hereby represents and warrants that (a) it owns all of the
purported claims, rights, demands, and causes of action that it is
releasing by this Mutual Release and that no other person or entity
has
any interest in said claims, rights, demands or causes of action by
reason
of any contract or dealing with such Releasor, and (b) such Releasor
has
not assigned to any other person or entity all or any part of such
claims,
rights, demands or causes of action.
|
| 5. |
This
Mutual Release shall be governed by and construed and interpreted in
accordance with the laws of the State of California.
|
| 6. |
This
Mutual Release may be executed in any number of counterparts, each
of
which when so executed and delivered shall be deemed to be an original
and
all of which counterparts taken together shall constitute but one and
the
same instrument. Signature pages may be detached from the counterparts
and
attached to a single copy of this Mutual Release to physically form
one
document.
|
| 7. |
Without
limiting the foregoing counterparts provision, this Mutual Release
shall
be of no force and effect, and shall not be binding upon any Releasor
or
inure to the benefit of either of River Rock or Developer, unless and
until it has been duly executed and delivered by the Parties hereto
and
River Rock has paid the full Buy-Out Fee to Developer, at which time
this
Mutual Release shall be effective and the Agreement shall be deemed
fully
performed and of no further force or effect.
|
| 8. |
Where
the identity of the parties hereto or the circumstances make it
appropriate, the neuter gender includes the masculine and/or feminine,
and
the singular number includes the plural.
|
| 9. |
The
Parties agree that a facsimile signature shall have the same force
and
effect as an actual, manual signature for purposes of determining the
enforceability of this Agreement.
|
| River Rock Entertainment Authority | Dry Creek Casino, LLC | ||
| By: | By: | ||
|
Xxxxx X. Xxxxxxxxxx, Chairperson |
H. Xxxxxx Xxxx, Manager |
Approved
By:
Dry
Creek Rancheria Band
Of
Pomo Indians
| By: | |||
|
Xxxxxx Xxxxxxx, Chairperson |
