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EXHIBIT 99.3
TERMINATION AGREEMENT
This Termination Agreement (the "Agreement"), is entered into and
effective this 1st day of February, 1996, by and between the Table Mountain
Rancheria, P. O. Box 410, Friant, California 93626, a federally recognized
Indian Tribe (hereafter "Table Mountain" or the "Band") and American Casino
Enterprises, Inc., 6243 Industrial Road, Las Vegas, Nevada 89118, a Nevada
corporation (hereafter "ACES").
RECITALS
WHEREAS, the Band is a federally recognized Indian Tribe possessing
sovereign powers over the Table Mountain Rancheria in Fresno County, California;
WHEREAS, the Band desires to expedite the development of the economy of
the Table Mountain Rancheria in order to improve tribal self-government and
economic self-sufficiency, to enable the Band better to serve the social,
economic, educational and health needs of its members and to provide its members
with opportunities to improve their own economic circumstances without having to
work outside of the Rancheria community;
WHEREAS, the Band has established and is now operating and managing a
Tribal Gaming Enterprise as the best feasible means by which to accomplish the
Band's objectives as described in the preceding paragraph (hereafter the
"Enterprise");
WHEREAS, in furtherance of the above goals, the Band and ACES
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entered into a Management Consultant Contract dated March 27, 1993, for the term
of seven (7) years and under which ACES would receive a fee equal to thirty-five
percent (35%) of the net revenue of the Enterprise, in the form attached hereto
as Exhibit "A" (the "Management Consultant Contract");
WHEREAS, pursuant to the Management Consultant Contract, ACES provided
the Band the technical assistance, advice, training and consulting services
required by the Band, while respecting the sovereign rights and authority of the
Band;
WHEREAS, the Band and ACES have now mutually agreed to terminate and
extinguish their mutual rights, duties, and obligations as described and found
in the Management Consultant Contract, and have agreed simultaneously to enter
into a Consulting Agreement, substantially in the form attached hereto as
Exhibit "B".
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto agree as follows:
1. TERMINATION OF CURRENT MANAGEMENT CONSULTING AGREEMENT. The
Band and ACES hereby, and pursuant to the terms of this Agreement, terminate and
extinguish the Management Consultant Contract, and the rights, duties, and
obligations of each as described and found in that contract.
2. WAIVER AND RELEASE. By and through this Agreement, the
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Band and ACES hereby waive, release and forever discharge each other from any
and all claims, actions, causes of action and/or liabilities arising under, or
in connection with, the Management Consultant Contract, as described more fully
in paragraph six (6) hereto.
3. TERMINATION PAYMENT.
A. In consideration of the termination and extinguishment of
the rights, duties, and obligations found in the Management Consultant Contract
and ACES' agreement to forego the benefits to which it would be entitled under
the Management Consulting Contract, the Band hereby agrees to pay to ACES an
amount not to exceed Sixteen Million Eight Hundred Thousand Dollars
($16,800,000.00). This sum shall be paid in installments of Three Hundred Fifty
Thousand Dollars ($350,000.00) per month, without interest, over the forty eight
(48) months following the execution of this Agreement; provided, however, that
no such payment shall be required of Tribe for any month in which the Net
Revenue of the Enterprise does not equal or exceed One Million Dollars
($1,000,000.00); and provided further that the term of this Agreement shall be
extended by one month for each month that the Tribe is not obligated to make the
termination payment under the foregoing proviso up to a maximum of twelve (12)
additional months. In no event, however, shall Tribe be obligated to make
payments under this Agreement that total more than Sixteen Million Eight Hundred
Thousand Dollars ($16,800,000.00) and under any
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circumstances, this Agreement shall expire and the Tribe's obligation to make
termination payments under this Agreement shall cease, at the end of the
sixtieth (60th) month following the execution of this Agreement.
B. The Band and ACES hereby expressly acknowledge that the
above payment represents a fair and reasonable Termination Payment by the Band
taking into account the continuing value to the Band of the services that had
been and were to be rendered by ACES under the Management Consulting Agreement;
the exclusive nature of the services that have been rendered by ACES to the
Band; and the revenues that would have been earned by ACES under the Management
Consulting Agreement.
4. CONTEMPORANEOUS EXECUTION OF CONSULTING AGREEMENT.
Contemporaneous with the execution of this Agreement, and as a material element
of the consideration herein, the Band and ACES agree to enter into, execute and
be bound by the Consulting Agreement, dated and effective as of February 1,
1996, substantially in the form attached hereto as Exhibit "B".
REPRESENTATIONS AND WARRANTIES
5. AUTHORITY. Both the Band and ACES hereby represent and warrant
that they have full power and authority to execute and deliver this Agreement
and to perform the obligations herein, and
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that the execution and delivery of this Agreement, and the performance of the
obligations herein, have been duly authorized and approved by all necessary
entities or officials, including the ACES' Board of Directors, and the Band's
Tribal Council.
6. EXTENT OF WAIVER AND RELEASE. Consistent with the "Waiver
and Release" section of this Agreement in paragraph two (2) hereto, the Band and
ACES hereby acknowledge that each releases and forever discharges the other, and
their officials, shareholders, officers, directors, agents, employees,
successors and assigns, from any and all obligations and defaults, acts,
actions, causes of action, suits, proceedings, disputes, rights, claims and
demands, at law or in equity (whether real or contingent, known or unknown),
that each has ever had, now has or may hereafter have, arising from or related
to the Management Consultant Contract or the actions or omissions of any of its
officials, officers, directors, agents, employees, successors and assigns which
are related, whether directly or indirectly, to that contract, whether such
actions or omissions were willful, wanton, intentional, negligent or otherwise.
7. FURTHER ASSURANCES. Each of the parties hereto shall execute
and deliver all other instruments and take all other actions that the other
party hereto may reasonably request from time to time to effectuate the
transactions provided for herein.
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8. NOTICES. Any notice required to be given pursuant to this Agreement
shall be delivered by Express Mail or overnight courier service, addressed as
follows:
to the Band:
Vern Castro, Chairman
Table Mountain Rancheria
P.O. Box 410
Friant, CA 93626
and to Consultant at:
Ronald J. Tassinari, President
American Casino Enterprises, Inc.
6243 Industrial Road
Las Vegas, NV 89118
or to their designees.
9. WAIVER OF SOVEREIGN IMMUNITY. The Band waives its sovereign
immunity from suit solely for purposes of enforcement of the terms of this
Agreement. This waiver is a limited waiver of immunity, and any damages which
may arise as a result of the Band's or its officially recognized
representatives' action shall be limited exclusively to the Band's interest in
revenues derived from the operation of the Enterprise. This limited waiver of
sovereign immunity is granted solely for purposes of implementing this Agreement
and shall be regarded as a limited waiver of sovereign immunity in any
subsequent court proceeding commenced for purposes of enforcing the terms of
this Agreement. Nothing contained in this limited waiver shall be construed to
confer any benefit, tangible or intangible, on any person or entity not a party
to this
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Agreement or as a waiver with respect to any such third person or entity.
10. NO LEASE OR POSSESSORY INTEREST. The parties to this
Agreement agree and expressly warrant that this Agreement is not a lease and
does not convey any present interest whatever in the building or property on
which the Band's Enterprise is located, or any proprietary or possessory
interest in the Enterprise itself. The Band maintains the sole proprietary and
possessory interest in the Enterprise. Moreover, the parties to this Agreement
further warrant and understand that this Agreement does not relate to the
management of the Enterprise; does not grant to Consultant the exclusive right
to operate the Enterprise; does not prohibit the Tribe from encumbering its
lands; and that the Agreement is not "relative to Indian lands" within the
meaning of 25 U.S.C. Section 81.
11. CONFLICT OF INTEREST PROHIBITIONS.
A. The parties represent that no payments have been made and
agree that no payment will be made to any elected member of the Band's tribal
government or relative of any elected member of the Band's tribal government for
the purpose of obtaining or maintaining this Agreement or any other privilege
for ACES. For purposes of this paragraph, "relative" means an individual who is
related to and lives in the immediate household of an elected member of the
Band's tribal government.
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B. No party in interest in ACES is an elected member of the
government of the Band, or a relative of said member as defined by the Secretary
of the Interior.
12. MODIFICATION. This Agreement may be modified only with the
formal written agreement of both parties.
13. SEVERABILITY. In the event any provision of this Agreement
is for any reason held to be illegal or unenforceable, such provision will be
severed or otherwise modified as may best preserve the intention of the parties
hereto, and the Agreement as so modified will remain in full force and effect.
14. RECITALS INCORPORATED. The recitals set forth above are a
material part of this Agreement, and are incorporated herein as if fully set
forth here.
15. GOVERNING LAW. This Agreement shall be governed by the laws
of the United States.
16. ENTIRE AGREEMENT. This Agreement is the entire agreement
between the parties with respect to the subject matter of this Agreement and it
is expressly understood that there are no oral, written or collateral agreements
between the parties or other parties with a financial interest in the subject
matter of this Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered as of the day and year first above written.
TABLE MOUNTAIN RANCHERIA AMERICAN CASINO ENTERPRISES,
INC.
/s/ Vern Castro /s/ Ron Tassinari
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By Vern Castro By Ron Tassinari
Its Chairman Its President
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