EXHIBIT 10.9
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
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THIS SETTLEMENT AND MUTUAL RELEASE AGREEMENT (hereinafter "Agreement") is
effective as of the 20th day of October, 2005, by and between Table Mountain
Rancheria, a federally-recognized Indian Tribe (hereinafter referenced as "Table
Mountain" or "the Tribe") and American Vantage Companies, a Nevada corporation,
formerly known as American Casino Enterprises, Inc. (hereinafter referenced as
"AVC"), and is entered into in the County of Fresno, State of California. Each
of the foregoing Parties to this Agreement is at times herein referenced as a
"Party" and all of the foregoing Parties are at times herein collectively
referenced as the "Parties." This Agreement relates to each and every Party
regardless of capacity, as hereinafter set forth.
RECITALS
A. In or around July 1991, November 1992, and March 1993, AVC and the
then-acting Tribal Council Chairperson for Table Mountain executed a series of
management contracts (the "Management Agreements"). Table Mountain
contended--and AVC disputed--these Agreements were not validly or properly
executed, and were illegal under state and federal law, and therefore all
amounts paid AVC under such Management Agreements were subject to refund. The
Tribe further contended--and AVC disputed--these Agreements were otherwise
unenforceable on the ground that the Tribe's sovereign immunity was never waived
in connection with these Management Agreements and thus remains intact.
B. In or around February 1996, AVC and the then-acting Tribal Council
Chairperson for Table Mountain executed a termination contract (the "Termination
Agreement"), which contract Table Mountain contended--and AVC disputed--was not
validly or properly executed, and is otherwise unenforceable, in part, because
the Tribe's sovereign immunity was not waived in connection with this
Termination Agreement and thus remains intact.
C. In or around February 1996, AVC and the then-acting Tribal Council
Chairperson for Table Mountain executed a consulting contract (the "Consulting
Agreement"), which contract Table Mountain contended--and AVC disputed--was not
validly or properly executed, and is otherwise unenforceable, in part, because
the Tribe's sovereign immunity was not waived in connection with this Consulting
Agreement and thus remains intact.
D. In or around May 1997 and November 1997, AVC and the then-acting Tribal
Council Chairperson for Table Mountain executed amendments to the Consulting
Agreement (the "Consulting Agreement Amendments"), amendments that Table
Mountain contended--and AVC disputed--were not validly or properly executed, and
are otherwise unenforceable, in part, because the Tribe's sovereign immunity was
not waived in connection with these Consulting Agreement Amendments and thus
remains intact.
E. AVC contended, and Table Mountain denied, that in or around July 1998
Table Mountain executed a promissory note (the "Note") in favor of AVC in the
sum of $2,900,000. Table Mountain contended--and AVC disputed--the Note was not
validly or properly executed, and is otherwise unenforceable, in part, because
the Tribe's sovereign immunity was not waived in connection with the Note and
thus remains intact.
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F. In or around June 1999, AVC sued Table Mountain in the United States
District Court for the Eastern District of California, styled American Vantage
Companies, Inc. v. Table Mountain Rancheria and having Case Number CIV-F-99-5826
AWI (DLB), seeking relief on the Termination Agreement, the Consulting
Agreement, the Consulting Agreement Amendments and the Note. Table Mountain
filed a counterclaim seeking return of all funds paid by Table Mountain to
American Vantage under the Management Agreements. The District Court dismissed
the entire action (including Table Mountain's counterclaim) for lack of subject
matter jurisdiction, declining to reach the question of whether Table Mountain's
sovereign immunity also barred the suit for lack of jurisdiction. AVC appealed
the District Court's dismissal to the Ninth Circuit Court of Appeals, under Case
Number 00-17355, and the Ninth Circuit affirmed the District Court's decision
dismissing the action for lack of subject matter jurisdiction. The foregoing
District Court and Ninth Circuit Appellate Court cases are collectively
referenced as the "Federal Action," and the Parties agree the judgment in the
Federal Action is final.
G. In or around December 2000, before the Federal Action had finally
resolved, AVC sued Table Mountain in the Superior Court of the State of
California, in and for the County of Fresno, styled American Vantage Companies
v. Table Mountain Rancheria and having Case Number 00 CECG 11542, seeking relief
on the Termination Agreement, the Consulting Agreement and the Consulting
Agreement Amendments. The Superior Court twice dismissed AVC's state court
action on jurisdictional grounds--first, on the ground federal law completely
preempted the action and deprived the state court of jurisdiction, and
thereafter, on the ground the Tribe's sovereign immunity remained intact, again
depriving the state court of jurisdiction. AVC appealed the successive
dismissals to the Court of Appeal of the State of California, Fifth Appellate
District, under Case Numbers F038121 and F045223. The Court of Appeal reversed
the first order dismissing the action on complete preemption grounds, but
thereafter, on the basis of its de novo review and own factual findings,
affirmed the second order dismissing the action on the ground the Tribe had not
waived its sovereign immunity. AVC has now filed a Petition for Review with the
California Supreme Court in connection with the Court of Appeal's affirmance of
the dismissal, and such Petition is presently pending for consideration (the
"Pending Petition"). The aforementioned superior court action, intermediate
appeals to the California Court of Appeal, Fifth Appellate District, and the
Pending Petition are collectively referenced as the "State Court Action."
H. The Parties desire to enter into this Agreement in order to settle,
release and discharge any and all claims which they have, or may have, against
one another as of the date of this Agreement, including, without limitation,
claims arising from, pertaining to, or concerning the Management Agreements, the
Termination Agreement, the Consulting Agreement, the Consulting Agreement
Amendments, the Note, and any other claims which are, or might have been, the
subject matter of the Federal Action, the State Court Action, and any other
action for any relief whatsoever that either Party might possess against the
other in connection with AVC's provision of management and/or consulting
services in connection with the Tribe's gaming facility.
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TERMS OF SETTLEMENT AND RELEASE
NOW, THEREFORE, in consideration of the following terms, covenants, and
conditions, and in reliance on the various representations and warranties set
forth below, the Parties agree as follows:
1. SETTLEMENT PAYMENT FOR WITHDRAWAL OF PENDING PETITION AND GENERAL RELEASE
AND DISCHARGE OF CLAIMS
1.1 Settlement Amount
In consideration of AVC's release and discharge of claims and AVC's
warranties and promises set forth in this Agreement, including, but not limited
to, the withdrawal of the Pending Petition, Table Mountain shall pay to AVC a
total of Twenty-Five Thousand Dollars and No Cents ($25,000.00) (hereinafter
"Settlement Amount") as set forth in Subsection 1.2 of this Agreement.
1.2 Payment, Manner and Completion
(A) Table Mountain shall pay the Settlement Amount to AVC, as
specified in this Paragraph (A), in exchange for the delivery to legal counsel
for Table Mountain (record counsel in the Federal and State Court Actions) AVC's
and its legal counsel's original authorized signature to this Agreement and the
duly executed Withdrawal Of Petition For Review required in Section 2 of this
Agreement. Payment of the Settlement Amount shall be made in the form of either
a cashier's check or other check on certified funds payable to the order of
"American Vantage Companies and Xxxxxxx & Xxxxxxx." Table Mountain shall cause
payment of the Settlement Amount to be delivered to AVC's counsel of record,
Xxxxxxx & Xxxxxxx.
(B) Table Mountain's payment obligation under this Agreement shall
be deemed fully performed and discharged, and AVC shall have no right to further
payment from Table Mountain, arising out of this Agreement or otherwise, once
Table Mountain has tendered the Settlement Amount in accordance with Paragraph
(A) of this Subsection.
2. WITHDRAWAL OF PENDING PETITION
Contemporaneously with Table Mountain delivery of a cashier's check
for the Settlement Amount to AVC as well as Table Mountain's and its counsel's
original signature to this Agreement, AVC shall deliver to Table Mountain a duly
executed Withdrawal Of Petition For Review for filing with the California
Supreme Court in accordance with this Section. Said Withdrawal Of Petition For
Review shall manifest AVC's complete withdrawal of the Pending Petition due to
it having been made moot by this settlement and release of the claims underlying
the State Court Action. Table Mountain will then be responsible for the filing
of such Withdrawal of Petition for Review. AVC shall promptly execute and file
any other documents that may be necessary to completely terminate the State
Court Action as a result of this settlement. AVC acknowledges and agrees that
upon the withdrawal of the Pending Petition, the Superior Court's judgment of
dismissal of the State Court Action shall be final.
3. MUTUAL RELEASE OF CLAIMS
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3.1 AVC's Release
AVC, on behalf of itself, and its past, present, and future
directors, officers, shareholders, owners, agents, employees, subrogees,
estates, beneficiaries, representatives, executors, administrators, attorneys,
insurers, parent, subsidiaries, predecessors and successors in interest, and
assigns, and each of them, and all those claiming by, through, under or in
concert with AVC, hereby absolutely, forever and fully, generally and
specifically, releases and discharges Table Mountain and Table Mountain's past,
present, and future tribal members, General Council, Tribal Council, Tribal
Chairperson, agents, employers, employees, joint venturers, representatives,
heirs, spouse, children, issue, estates, beneficiaries, trustors, trustees,
executors, administrators, attorneys, insurers, predecessors and successors in
interest, assigns, and any other person, firm, or corporation with whom Table
Mountain is now or may hereafter be affiliated, and each of them from any and
all claims, demands, obligations, losses, causes of action, actions, damages,
judgments, liens, penalties, costs, expenses (including, but not limited to,
legal costs and attorneys' fees), liabilities, contentions, rights, debts,
accounts, reckonings, duties, promises, subrogation rights, and indemnification
rights, of any nature whatsoever, with respect to, pertaining to, or arising
from any matters, acts, omissions, events, conduct, or occurrences at any time
prior to and as of the date of this Agreement, held in the past, present or
future by AVC, whether known or unknown, suspected or unsuspected, fixed or
contingent, matured or unmatured, and arising out of, pertaining to, or
concerning the Management Agreements, the Termination Agreement, the Consulting
Agreement, the Consulting Agreement Amendments, the Note, and any and all claims
that are, or might have been, the subject matter of the Federal Action and/or
the State Court Action filed against Table Mountain by AVC.
3.2 Table Mountain's Release
Table Mountain on behalf of itself and its past, present, and future
tribal members, General Council, Tribal Council, Tribal Chairperson, agents,
employees, joint venturers, heirs, children, spouses, issue, trustors, trustees,
subrogees, estates, beneficiaries, representatives, executors, administrators,
attorneys, insurers, predecessors and successors in interest, and assigns, and
each of them, and all those claiming by, through, under or in concert with Table
Mountain, hereby absolutely, forever and fully, generally and specifically,
releases and discharges AVC and its past, present, and future directors,
officers, shareholders, owners, agents, employers, employees, joint venturers,
representatives, heirs, spouse, children, issue, estates, beneficiaries,
trustors, trustees, executors, administrators, attorneys, insurers, predecessors
and successors in interest, assigns, and any other person, firm, or corporation
with whom AVC is now or may hereafter be affiliated, and each of them from any
and all claims, demands, obligations, losses, causes of action, actions,
damages, judgments, liens, penalties, costs, expenses (including, but not
limited to, legal costs and attorneys' fees), liabilities, contentions, rights,
debts, accounts, reckonings, duties, promises, subrogation rights, and
indemnification rights, of any nature whatsoever, with respect to, pertaining
to, or arising from any matters, acts, omissions, events, conduct, or
occurrences at any time prior to and as of the date of this Agreement, held in
the past, present or future by Table Mountain, whether known or unknown,
suspected or unsuspected, fixed or contingent, matured or unmatured, and arising
out of, pertaining to, or concerning the Management Agreements, the Termination
Agreement, the Consulting Agreement, the Consulting Agreement Amendments, the
Note, and any or all claims that are, or might have been, the subject matter of
the Federal Action and the State Court Action filed against Table Mountain by
AVC. Notwithstanding any of the foregoing, Table Mountain does not warrant or
represent that it has the authority to bind individual tribal members, future
members, their heirs, children, and/or issue.
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3.3 Complete Release, Civil Code Section 1542
The Parties understand and acknowledge that the releases and
discharges set forth above are general releases. The Parties expressly assume
the risk of any and all claims for damages which exist as of this date, but of
which the Parties do not know or suspect to exist, whether through ignorance,
oversight, error, negligence, or otherwise, and which, if known would materially
affect each Party's decision to enter into this Agreement. The Parties further
acknowledge that they accept the releases of all claims as specified herein as a
complete and final compromise of matters involving disputed issues of law and
fact. The Parties assume the risk that the facts or law may be other than is now
known. In this regard, the provisions of California Civil Code section 1542 are
expressly waived and the Parties to this Agreement understand that said section
provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
Each Party hereby represents and warrants to the other Party that
such warranting Party understands the effect of this waiver of said Civil Code
section and that such warranting Party is represented and has been advised in
making this general release by an attorney licensed to practice law in the State
of California.
3.4 Investigation Related to Claims
Each Party has made such investigation of the facts pertaining to
this Agreement and the settlement described herein and of all of the matters
pertaining thereto as such Party deems necessary.
3.5 Agreement-Based Claims Excepted
Notwithstanding anything contained in this Agreement appearing to
the contrary, it is the express intention of the Parties, and each of them, that
the claims released under the general releases in this Section 3 do not include:
(i) claims, if any, which arise from, pertain to or may be based
upon a breach of this Agreement including, but not limited to,
a breach of any or all of the representations and warranties
set forth in this Agreement; and
(ii) claims, if any, which arise from, pertain to or may be based
upon the executory obligations of this Agreement including but
not limited to, any or all of the indemnifications set forth
in this Agreement.
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3.6 Conditions to Releases
Notwithstanding any provision of this Agreement appearing to the
contrary, the effectiveness of AVC's release in this Section 3 is conditioned
upon Table Mountain's tender of the Settlement Amount required under Section 1
of this Agreement, and the effectiveness of Table Mountain's release in this
Section 3 is conditioned upon AVC's withdrawal of the Pending Petition.
4. WARRANTIES: AUTHORITY, OWNERSHIP, ASSIGNMENT, ACTIONS
4.1 Warranty Of Authority
(A) The undersigned person who executes this Agreement on behalf of
AVC represents and warrants that he/she has the authority of the board of
directors, and any necessary officers and shareholders of AVC to do so, and
agrees to indemnify and hold harmless Table Mountain from any claims that such
authority did not exist.
(B) The undersigned Tribal Chairperson of Table Mountain, who
executes this Agreement on behalf of Table Mountain, represents and warrants
that Table Mountain's entry into this Agreement has been authorized by Table
Mountain's Tribal Council as well as its General Council (the Tribe's governing
body) and said Tribal Chairperson has the authority of the General Council and
the Tribal Council of Table Mountain to do so, and agrees to indemnify and hold
harmless AVC from any claims that such authority did not exist.
4.2 Warranty Of Ownership
Each of the Parties represents and warrants to the other Party that
such warranting Party: (a) is the lawful owner of everything released hereunder;
(b) has all necessary power and authority to make such release, including any
necessary consent or approval from any person and including the absence of any
duty or obligation that would prevent, or be put in breach or default by, such
release; and (c) has not heretofore transferred or attempted to transfer all or
any part of any such thing released in any manner whatsoever, including by way
of subrogation or operation of law. Each of the Parties providing a release
under this Agreement shall indemnify, defend and hold harmless all those who are
intended to be released hereby, and each of them, with respect to any liability,
cost, expense, including, but not limited to, reasonable attorneys' fees and
costs, or claim with respect to, pertaining to, or arising from any assertion
that such an obligation or transfer or lack of power, authority or ownership in
any way limits such release.
4.3 Warranty Regarding Action
Each of the Parties represents and warrants to the other Party that
there are no actions or proceedings of any kind by such warranting Party against
the other Party, other than those expressly recognized herein.
5. TABLE MOUNTAIN SOVEREIGN IMMUNITY
Notwithstanding anything in this Agreement appearing to the
contrary, including, but not limited to, references to specific California
statutes, AVC acknowledges, understands and agrees that Table Mountain is in no
way waiving its sovereign immunity in, or with respect to, this Agreement.
Nothing in this Agreement shall be construed as either a general or limited
waiver by Table Mountain of its sovereign immunity, whether in connection with
this Agreement or any other claim AVC may possess.
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5.1 Return of Table Mountain Records
Within ten (10) business days from the effective date of this
Agreement, AVC (including its counsel) shall deliver to Table Mountain's counsel
(Xxxxxxxxxxxx Xxxx & Xxxxxxxxx in San Francisco) all originals, duplicates,
reproductions, counterparts, copies, and any other version of documents/records
produced by Table Mountain in discovery in the Federal Action and the State
Court Action. Neither AVC nor its counsel may retain any copy or version of the
documents/records required to be returned under this Subsection.
5.2 Return of AVC Records
Within ten (10) business days from the effective date of this
Agreement, Table Mountain shall deliver to AVC's counsel (Xxxxxxx & Xxxxxxx in
San Francisco) all originals, duplicates, reproductions, counterparts, copies,
or any other version of documents/records produced by AVC in discovery in the
Federal Action and State Court Action. Neither Table Mountain nor its counsel
may retain any copy or version of the documents/records required to be returned
under this Subsection.
6. BINDING EFFECT
This Agreement is binding upon and shall inure to the benefit of
each of the Parties hereto, their respective agents, attorneys, employees,
representatives, principals, partners, officers, directors, divisions,
subsidiaries, affiliates, assigns, heirs, successors in interest and
shareholders.
7. ASSIGNMENT RESTRICTED
This Agreement shall not be assignable by any Party hereto without
the written prior consent of the other Party.
8. DISCLAIMER OF LIABILITY
The Parties acknowledge and agree that the execution of this
Agreement is the result of compromise and the Agreement is entered into in good
faith and shall never for any purpose be considered an admission of liability or
responsibility concerning any of the claims compromised herein, which liability
is expressly denied by the Parties, and no past or present wrongdoing on the
part of any of the Parties shall be implied by such execution.
9. FINAL INTEGRATED AGREEMENT
This Agreement represents and contains the entire and only agreement
and understanding among the Parties with respect to the subject matter of this
Agreement, and supercedes any and all prior and contemporaneous oral and written
agreements, understandings, representations, inducements, promises, warranty,
and conditions among the Parties. No agreement, understanding, representation,
inducement, promise, warranty, or condition of any kind with respect to the
subject matter of this Agreement shall be relied upon by the Parties unless
expressly incorporated herein.
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10. AMENDMENTS; WAIVER
This Agreement may not be amended or modified except by an agreement
in writing signed by the Party against whom the enforcement of any modification
or amendment is sought. No waiver of any condition or provision shall be
enforceable unless made in writing.
11. ADDITIONAL DOCUMENTS; TIME
All Parties agree to cooperate fully and execute any and all
supplementary documents and to take all additional actions which may be
necessary or appropriate to give full force and effect to the basic terms and
intent of this Agreement. Nothing in this Section, or elsewhere in this
Agreement, shall be construed as requiring Table Mountain to ever waive its
sovereign immunity. Time is of the essence in this Agreement and all
transactions contemplated hereby.
12. FEES AND EXPENSES
Except as to any cost award that has been previously satisfied by
the Party against whom it was awarded, the Parties hereto shall pay their own
expenses, including court costs, legal and expert fees, incurred in the
prosecution and defense of the Federal Action, the State Court Action, and
incurred in the negotiation, preparation and execution of this Agreement.
13. CONSTRUCTION
13.1 Joint Drafting
Each Party and counsel for each Party have reviewed and negotiated
this Agreement, and accordingly, the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting Party or the person
who caused the ambiguity to exist shall not be employed in the interpretation of
this Agreement. Accordingly, the Parties hereby waive the benefit of California
Civil Code section 1654 and any successor or amended statute providing a rule of
construction to that effect.
13.2 Severability
In the event that one or more of the provisions, or portions
thereof, of this Agreement are determined to be illegal or unenforceable, the
remainder of this Agreement shall not be affected thereby, but the Parties shall
in good faith negotiate valid and enforceable replacement provisions that will
to the greatest extent possible achieve the original intent of this Agreement.
13.3 Construction and Interpretation
This Agreement is entered into in the State of California and shall
be construed and interpreted in accordance with its laws unless federal law
otherwise controls the issue.
13.4 Captions and Headings
Section, subsection, paragraph and other captions or headings
contained in this Agreement are inserted as a matter of convenience and for
reference, and in no way define, limit, extend or otherwise describe the scope
or intent of this Agreement or any provision hereof and shall not affect in any
way the meaning or interpretation of this Agreement.
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14. EFFECTIVE DATE
This Agreement shall be effective as of the date as first written
above, upon execution by the last of the Parties, but without regard to the date
of execution.
15. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original, and all of which together shall be
deemed one and the same instrument.
16. EFFECT OF AGREEMENT
This Agreement may be pleaded as a full and complete defense to, and
may be used as the basis for an injunction against, any action, suit or other
proceeding which may be instituted, prosecuted or attempted, in furtherance of
any claim or action by any Party against the other, in breach of this Agreement.
17. COMPREHENSION OF DOCUMENT
IN ENTERING INTO THIS AGREEMENT, EACH PARTY REPRESENTS THAT IT HAS RELIED
UPON THE LEGAL ADVICE OF ITS ATTORNEYS, WHO ARE THE ATTORNEYS OF ITS OWN CHOICE.
EACH PARTY FURTHER REPRESENTS THAT THE TERMS OF THIS AGREEMENT HAVE BEEN
COMPLETELY READ AND EXPLAINED TO IT BY ITS ATTORNEYS, AND THAT THOSE TERMS ARE
FULLY UNDERSTOOD AND VOLUNTARILY ACCEPTED BY SUCH PARTY.
IN WITNESS WHEREOF, each Party to the settlement and this Agreement
executes this Agreement as of the day and year first above written.
TABLE MOUNTAIN RANCHERIA
/s/ Table Mountain Rancheria Dated: _________________________
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By _________________________
Title: _____________________
AMERICAN VANTAGE COMPANIES, INC.
/s/ American Vantage Companies Dated: _________________________
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By:__________________________
Title: ______________________
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