Exhibit 10.5
MUTUAL RELEASE AGREEMENT
This Mutual Release Agreement (the "Release") is entered into by and
between EXCAL ENERGY CORPORATION ("EXCAL"), MTR GAMING GROUP, INC. ("MTR"),
FLEUR-XXXXX CORPORATION ("FLEUR-XXXXX") and SABAL CORPORATION ("SABAL")
effective as of this 30 day of October, 1998.
RECITALS
WHEREAS, contemporaneously with the execution of this Agreement, SABAL
and EXCAL have entered into a Term Loan Agreement (the "Loan Agreement"); and
WHEREAS, contemporaneously with the execution of this Agreement, EXCAL
and MTR have conveyed their interest in certain oil and gas leases to Sabal
pursuant to a Xxxx of Sale, Quitclaim and Assignment of Interest (the "Xxxx
of Sale"); and
WHEREAS, contemporaneously with the execution of this document, SABAL
executed an Assignment of Production Payment (the "Production Payment")
conveying a production payment to EXCAL; and
WHEREAS, SABAL and FLEUR-XXXXX CORPORATION have entered into a Letter
Agreement dated October 13, 1998 (the "Letter Agreement") pursuant to
which SABAL will acquire certain oil and gas leases and contract rights from
FLEUR-XXXXX, an Assignment and Assumption Agreement of even date herewith
(the "Assignment and Assumption Agreement"); a Xxxx of Sale and a Xxxx of
Sale, Quitclaim and Assignment of Interests (collectively the "X-X Xxxxx of
Sale"); and
WHEREAS, MTR and EXCAL, on the one hand, FLEUR-XXXXX and SABAL, on the
other, wish to resolve certain claims which the parties might have against
each other and to set forth the terms of such agreement in a written
document, it is therefore agreed as follows:
AGREEMENT
1. For the foregoing and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, MTR and EXCAL
hereby release FLEUR-XXXXX and SABAL, their respective shareholders,
officers, directors, employees, representatives, attorneys and assigns from
any and all claims, causes of action, debts, losses, expenses or other
obligations of any kind or nature whatsoever, arising out of the prior
dealings of the parties with respect to certain oil and gas leases and
operations within the Area of Mutual Interest described on Exhibit 1 hereto.
2. For the foregoing and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, FLEUR-XXXXX and
SABAL hereby release MTR and EXCAL, their respective shareholders, officers,
directors, employees, representatives, attorneys and assigns from any and all
claims, causes of action, debts, losses, expenses or other obligations of any
kind or nature whatsoever, arising out of the prior dealings of the parties
with respect to certain oil and gas leases and operations within the Area of
Mutual Interest described on Exhibit 1 hereto.
3. Notwithstanding the foregoing releases, nothing herein shall
release MTR, EXCAL or SABAL from their duties and obligations with respect
to the Loan Agreement, the Xxxx of Sale, the Assignment of Production
Payment, or other documents executed in connection therewith, it being the
intention of the parties to this Release that only the causes of action which
existed prior
2
to the execution of the Loan Agreement, the Xxxx of Sale and the Assignment
of Production Payment executed contemporaneously herewith be released.
4. Notwithstanding the foregoing releases, nothing herein shall
release SABAL or FLEUR-XXXXX from their duties and obligations with respect
to the Letter Agreement, the Assignment and Assumption Agreement, the X-X
Xxxxx of Sale or other documents executed in connection therewith, it being
the intention of the parties to this Release that only the causes of action
which existed prior to the execution of the Letter Agreement, the X-X Xxxxx
of Sale and the Assignment and Assumption Agreement be released.
5. This Release may be executed in any number of counterparts, and
by different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute
one and the same agreement. This Agreement shall be effective upon receipt
by each of the parties hereto of a facsimile copy of an executed counterpart,
with the original executed counterpart to be forwarded to the other party as
soon as practicable thereafter.
EXCAL ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-fact
SABAL CORP.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
3
MTR GAMING GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-fact
Assistant Secretary, Director
FLEUR-XXXXX CORPORATION
By: /s/ Xxxxx Xxxxxx Xx.
---------------------------------
Name: Xxxxx Xxxxxx Xx.
Title: Chairman, CEO
THE DISTRICT OF COLUMBIA Section
Section
Section
This instrument was acknowledged before me on the 27th day
of October, 1998 by XXXXXX X. Xxxxx, Attorney-in-fact of EXCAL ENERGY
CORPORATION.
/s/ Xxxx X. Xxxxxxxxx
--------------------------------
NOTARY PUBLIC, DISTRICT OF COLUMBIA
THE STATE OF TEXAS Section
Section
COUNTY OF XXXXXX Section
This instrument was acknowledged before me on the 19th day
of October, 1998 by XXXXX XXXXXXXX, President of SABAL CORP.
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------
NOTARY PUBLIC, XXXXX XX XXXXX
0
XXXXXXXX XX XXXXXXXX Section
Section
Section
This instrument was acknowledged before me on the 27th day
of October, 1998 by Xxxxxx X. Xxxxx, Attorney-in-fact of MTR GAMING GROUP, INC.
/s/ Xxxx X. Xxxxxxxxx
--------------------------------
NOTARY PUBLIC, DISTRICT
THE STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on the _____ day
of ________, 1998 by Xxxxx Xxxxxx, Xx., Chairman CEO of FLEUR-XXXXX
CORPORATION.
/s/ Xxxxx X. Xxxxx
--------------------------------
NOTARY PUBLIC, STATE OF TEXAS
5
