EXHIBIT 10.7
PLEDGE AND SECURITY AGREEMENT
dated as of
November 7, 2003
by and among
River Rock Entertainment Authority,
The Dry Creek Rancheria Band of Pomo Indians of California
and
U.S. Bank National Association
Table of Contents
Page
1. Definitions..............................................................................................4
2. Assignment, Pledge and Grant of Security Interest........................................................6
3. Obligations Secured......................................................................................9
4. Representations and Warranties...........................................................................9
5. Subsequent Changes Affecting Collateral; Transfers and Other Liens.......................................9
6. Covenants...............................................................................................10
7. Collections on Collateral...............................................................................10
8. Event of Default........................................................................................11
9. Remedies Upon Event of Default..........................................................................11
10. Remedies Cumulative; Delay Not Waiver...................................................................12
11. Application of Procedures...............................................................................12
12. Attorney-In-Fact........................................................................................12
13. Trustee May Perform.....................................................................................13
14. Perfection; Further Assurances.........................................................................13
15. Governing Law; Jurisdiction; Governing Law Provisions...................................................14
16. Alteration of Obligations...............................................................................16
17. Obligations Absolute; Waiver............................................................................16
18. Place of Business; Location of Records..................................................................18
19. Continuing Assignment and Security Interest.............................................................18
20. Termination of Security Interest........................................................................18
21. Reinstatement...........................................................................................18
22. Trustee's Duties; Reasonable Care.......................................................................18
23. Survival of Provisions..................................................................................19
24. Miscellaneous...........................................................................................19
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT, dated as of November 7, 2003 (as
amended, supplemented, restated or otherwise modified from time to time, this
"Agreement"), is entered into by and among the River Rock Entertainment
Authority (the "Authority"), an unincorporated instrumentality of The Dry Creek
Rancheria Band of Pomo Indians of California (the "Tribe"), the Tribe and U.S.
Bank National Association, a national banking association, as trustee under the
Indenture referred to below (together with its successors and assigns from time
to time under the Indenture, the "Trustee"), for the benefit of the holders from
time to time (the "Holders") of the Senior Notes (as defined below).
RECITALS
A. Facility. The Authority and the Tribe desire to design, develop and
construct three parking structures and certain infrastructure improvements (the
"Project") upon the Tribe's reservation (the "Rancheria") and an access road
upon land adjacent to the Rancheria near Geyserville, California, to support the
existing gaming facility (the "Facility") of the Authority. The Tribe has
delegated to the Authority all rights and decision-making authority with respect
to the development, construction and operation of the Project pursuant to The
River Rock Entertainment Authority Act of 2003 adopted on October 25, 2003 (the
"Authority Ordinance").
B. Senior Notes. Concurrently herewith, the Authority is issuing
$200,000,000 aggregate principal amount of its 9.75% Senior Notes due 2011
(together with all notes issued in exchange or replacement therefor, the
"Initial Senior Notes"), pursuant to the Indenture. In addition, the Authority
may issue additional Senior Notes (other than the Initial Senior Notes) pursuant
to the Indenture in accordance with the provisions thereof (collectively with
the Initial Senior Notes, the "Senior Notes").
C. Use of Proceeds. The Authority will use the net proceeds from the
sale of the Initial Senior Notes for (among other things) the repayment of a
majority of the Authority's outstanding indebtedness, to fund the completion of
the Project, to fund the settlement of litigation involving the Tribe, to fund
the acquisition of and development of an access road on certain real property
adjacent to the Tribe's reservation and to repay outstanding indebtedness of the
Tribe.
D. Purpose. In order to secure the payment and performance by the
Authority of all of its covenants, agreements and obligations under the Senior
Notes, the Trustee (on behalf of the Holders) requires that the Authority shall
have executed this Agreement.
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AGREEMENT
In consideration of the promises contained herein, in reliance on that
certain Governmental Secured Transactions Ordinance adopted by the Tribe on
October 25, 2003, as Ordinance No. ▇▇-▇▇-▇▇-▇▇▇, and as a material inducement to
the purchase of the Senior Notes by the Holders, the Authority hereby agrees
with the Trustee, for the benefit of the Holders, as follows:
1. Definitions.
1.1 Defined Terms. The terms defined in this Section 1 shall
have the meanings herein specified:
"Collateral Accounts" has the meaning ascribed thereto in the
Cash Collateral and Disbursement Agreement.
"Collateral Documents" has the meaning ascribed thereto in the
Cash Collateral and Disbursement Agreement.
"Compact" has the meaning ascribed in the Indenture, as such
Compact is presently in effect.
"Disbursement Agent" means U.S. Bank National Association,
▇▇▇▇▇ Fargo Bank, N.A. and/or the then acting Disbursement Agent under the Cash
Collateral and Disbursement Agreement.
"Dry Creek" means Dry Creek Casino, LLC, a Texas limited
liability company.
"Gaming Assets" has the meaning ascribed thereto in the Cash
Collateral and Disbursement Agreement.
"Gaming Business" has the meaning ascribed thereto in the
Indenture.
"Governmental Action" means any resolution, ordinance,
statute, regulation, order or decision regardless of how constituted having the
force of law or legal authorization of the Tribe, the Authority or any
instrumentality or agency of the Tribe.
"Indenture" means the Indenture dated as of the date hereof,
among the Authority, the Tribe and the Trustee, relating to the Senior Notes.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof, by and among Dry Creek, the Authority, the Tribe
and the Trustee.
"Law" shall mean any federal, state or local law, including
any statute, decision, rule or regulation of the United States or any State of
the United States, and any provision of the Compact.
"New York UCC" means the Uniform Commercial Code as the same
may, from time to time, be enacted and in effect in the State of New York.
"NIGC" means the National Indian Gaming Commission.
"Operating Account" has the meaning ascribed thereto in the
Cash Collateral and Disbursement Agreement.
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"Person" has the meaning ascribed thereto in the Cash
Collateral and Disbursement Agreement.
"Tribal Party" means each of the Tribe and the Authority,
their successors and assigns.
"Tribal UCC" means the Uniform Commercial Code as the same
may, from time to time, be in effect on the Rancheria.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of New York; provided, that
to the extent that the Code is used to define any term herein and such term is
defined differently in different Articles or Divisions of the Code, the
definition of such term contained in Article or Division 9 shall govern;
provided further, that in the event that, by reason of mandatory provisions of
law, any or all of the attachment, perfection or priority of, or remedies with
respect to, the Trustee's lien on any Collateral is governed by the Uniform
Commercial Code as enacted and in effect in a jurisdiction other than the State
of New York (including without limitation the Tribal UCC), the term "UCC" shall
mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for purposes of the provisions thereof relating to such
attachment, perfection, priority or remedies and for purposes of definitions
related to such provisions.
1.2 Index of Additional Defined Terms. In addition, the terms
listed in the left column below shall have the respective meanings ascribed to
such terms in the Section of this Agreement listed opposite such terms in the
right column below:
Defined Term Section
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AAA 15.5
Agreement Introduction
Applicable Courts 15.4
Assigned Agreements 2.1(a)
Authority Introduction
Authority Ordinance A of Recitals
Benefited Party 17
Cash Collateral and Disbursement Agreement 1.3
Collateral 2.1(i)
Event of Default 8
Facility A of Recitals
Facility Obligations 16
Federal Bankruptcy Code 17
Holders Introduction
Indenture B of Recitals
Initial Senior Notes B of Recitals
Obligation Documents 16
Obligee 16
Permitted Claims 15.2
Rancheria A of Recitals
Secured Obligations 3
Senior Notes B of Recitals
Tribe Introduction
Trustee Introduction
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1.3 Other Terms. All capitalized terms used, but not otherwise
defined herein, shall have the meanings provided in the Cash Collateral and
Disbursement Agreement by and among the Disbursement Agent (as defined therein),
the Trustee, the Independent Construction Consultant (as defined therein), the
Tribe and the Authority dated as of the date hereof (the "Cash Collateral and
Disbursement Agreement") if defined therein, and if such terms are not defined
in the Cash Collateral and Disbursement Agreement, such terms shall have the
meanings given them in the UCC.
1.4 Rules of Construction. The words "includes" and
"including" are not limiting, such that "including" means "including, without
limitation." The words "shall" and "will" are used interchangeably and have the
same meaning and the word "or" is not exclusive. The words "herein," "hereof,"
"hereto," "hereunder," and others of similar import refer to this Agreement as a
whole and not to any particular section, subsection, or clause contained within
the Agreement. Wherever from the context it appears appropriate, each term
stated in either the singular or the plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine, and the neuter.
2. Assignment, Pledge and Grant of Security Interest.
2.1 Subject to applicable law (including all applicable rules
and regulations of the NIGC), to secure the timely payment and performance of
the Secured Obligations (as defined in Section 3 hereof) and, in each case, in
reliance on the UCC and the Tribal UCC, each Tribal Party does hereby assign and
pledge to the Trustee, and grant a security interest in favor of the Trustee in,
all the estate, right, title and interest of each Tribal Party, whether now
owned or hereafter acquired, in, to and under to the extent the same are Gaming
Assets that do not constitute real estate or an interest in real estate:
(a) all contracts, agreements and documents, including the
following contracts, agreements and documents, as amended, amended and restated,
supplemented or otherwise modified from time to time (individually, an "Assigned
Agreement," and collectively, the "Assigned Agreements") and all of any Tribal
Party's rights thereunder:
(i) all Construction Contracts with respect to the
Project to which a Tribal Party is or may become a party from time to time;
(ii) all insurance policies maintained or required to
be maintained by a Tribal Party or any other Person under any Construction
Contracts or otherwise with respect to the Collateral (hereinafter defined),
including any such policies insuring against loss of revenues by reason of
interruption of the operation of the Gaming Business and all loss proceeds and
other amounts payable to any Tribal Party thereunder, and all eminent domain
proceeds relating to the Gaming Business;
(iii) all other agreements, including vendor
warranties, running to a Tribal Party or assigned to a Tribal Party, that relate
to the construction, maintenance, improvement, operation or acquisition of the
Gaming Business or any part thereof, or transport of material, equipment and
other parts of the Facility or any part thereof; provided, however, that the
security interest granted hereby with respect to any management contract
relating to the Facility shall only relate to the right to payments under such
management contract;
(iv) any other lease or sublease agreements relating
to the Gaming Business or any part thereof or any ancillary facilities to which
a Tribal Party is or becomes a party, but excluding any lease or sublease
agreement of interest in real property;
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(v) all amendments, supplements, substitutions and
renewals to any of the aforesaid agreements; and
(vi) to the extent assignable, all permits and
governmental approvals issued in the name of a Tribal Party or relating in any
way to the operation of the Gaming Business, including approvals of gaming
regulatory authorities;
(b) all rents, profits, income, distributions, royalties
and revenues derived in any manner by a Tribal Party from the Gaming Business or
any part thereof and the operation of the Facility or any part thereof,
including all Pledged Revenues, but excluding all items described in the proviso
to the definition of "Pledged Revenues" in the Cash Collateral and Disbursement
Agreement;
(c) all other personal property of a Tribal Party,
including personal property relating to the Facility, whether now owned or
existing or hereafter acquired or arising, or in which a Tribal Party may have
an interest, and wheresoever located, whether or not of a type which may be
subject to a security interest under the UCC, including (except to the extent
that any of the following are deemed to be fixtures under applicable law) all
machinery, tools, control equipment, appliances, mechanical and electrical
systems, elevators, lighting, alarm systems, fire control systems, furnishings,
furniture, as-extracted collateral, farm products, manufactured homes,
equipment, service equipment, motor vehicles, building or maintenance equipment,
gaming machines or devices of any type, building or maintenance materials, pipes
and pipelines supplies, goods and property covered by any warehouse receipts or
bills of lading or other such documents, spare parts, maps, plans,
specifications, architectural, engineering, construction or shop drawings,
manuals or similar documents, copyrights, trademarks and trade names, and any
replacements, renewals or substitutions for any of the foregoing or additional
tangible or intangible personal property hereafter acquired by a Tribal Party;
(d) all goods, money, instruments, securities, accounts,
contract rights, commercial tort claims, letters of credit, letter of credit
rights, payment intangibles, health-care insurance receivables, promissory
notes, software, supporting obligations, documents, deposit accounts, chattel
paper (including tangible and electronic chattel paper), as-extracted
collateral, general intangibles and inventory, including those relating to the
Gaming Business;
(e) all investment property (including both certificated
and uncertificated securities, security entitlements, security accounts,
commodity contracts and commodity accounts), and including each of the
Collateral Accounts, and all Financial Assets and other assets therein and all
security entitlements with respect thereto;
(f) all deposit accounts, including the Operating Account,
and all monies and other assets on deposit therein;
(g) all Cash Equivalents;
(h) any other assets owned by a Tribal Party, to the
extent not included in (or expressly excluded from) the foregoing;
(i) all other Gaming Assets to the extent the same do not
constitute real property or an interest in real property and are not included in
(or expressly excluded from) the foregoing; and
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(j) the proceeds (including cash and noncash proceeds) of
all of the above, including: (i) all rights of any Tribal Party to receive
monies due and to become due under or pursuant to the collateral described in
clauses (a) through (i); (ii) all rights of any Tribal Party to receive the
return of any premiums for, or proceeds of, any insurance, indemnity, warranty
or guaranty with respect to the collateral or to receive any condemnation
proceeds; (iii) all claims of any Tribal Party for damages arising out of, or
for breach of or default under, the Assigned Agreements or any other collateral;
(iv) all rights of any Tribal Party to terminate, amend, supplement, modify or
waive performance under the Assigned Agreements, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder; and (v) to
the extent not included in the foregoing, all proceeds receivable or received
when any and all of such collateral is sold, collected, exchanged or otherwise
disposed of, whether voluntarily or involuntarily (all of the collateral
described in clauses (a) through (i), as modified by each other provision of
Sections 2.1 through 2.5, being herein collectively referred to as the
"Collateral"); provided, however, that the Collateral shall not include any
assets, revenues, accounts, property or other interests of any Tribal Party that
a Tribal Party is prohibited from alienating under applicable federal law or
state law, including any statute, decision, rule or regulation of the United
States or the State of California or under any contract or agreement with the
United States or the State of California, including the Compact (except to the
extent Sections 9407, 9408 or 9409 of the UCC or the analogous provision of the
Uniform Commercial Code in effect in any other jurisdiction, as applicable,
would permit the creation of a security interest in such property without
violating applicable law or the Compact); provided, further, the Collateral
shall not include any license, permit or approval if (x) such item is a license
or permit to operate gaming regulated by IGRA, (y) by its terms or operation of
Law such item is not assignable, or (z) the assignment of, or grant of a
security interest in, such item would cause such item to become void, would
constitute a breach under such item, is prohibited by such item or by Law or
would violate any Law, except to the extent Sections 9407, 9408 or 9409 of the
UCC or the analogous provisions of the Uniform Commercial Code in effect in any
other jurisdiction, as applicable, would permit and allow such assignment
without causing such a breach or violation and without causing such item to be
void; AND PROVIDED, STILL FURTHER, THAT NO GRANT OF A SECURITY INTEREST HEREIN
OR ANY OTHER TERM HEREOF, INCLUDING THE RIGHT TO ENFORCE ANY TERMS HEREIN, SHALL
CREATE ANY PROPRIETARY INTEREST OF ANY PERSON IN ANY GAMING ACTIVITY CONDUCTED
BY OR ON BEHALF OF ANY TRIBAL PARTY OR THE TRIBE OR PERMIT ANY PERSON TO MANAGE
ANY SUCH GAMING ACTIVITY.
2.2 In order to effectuate the foregoing, a Tribal Party has
heretofore delivered, or concurrently with the delivery hereof is delivering, to
the Trustee an executed counterpart or certified copy of each of the Assigned
Agreements. Promptly upon the execution thereof, the Authority will likewise
deliver to the Trustee an executed counterpart of each material future lease,
construction agreement, operation agreement and other agreement, including those
relating to the Gaming Business or any part thereof, and amendments and
supplements to the foregoing, included in the Collateral, as they are entered
into by the Authority.
2.3 Notwithstanding anything to the contrary contained herein,
the applicable Tribal Party shall remain liable to perform all of the
obligations undertaken by it under each of the Assigned Agreements, all in
accordance with and pursuant to the terms and provisions thereof, and the
Trustee shall have no obligation or liability under any of such Assigned
Agreements by reason of or arising out of this Agreement, nor shall the Trustee
be required or obligated in any manner to perform or fulfill any obligations of
the Authority thereunder or to make any payment or inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim or take
any action to collect or enforce the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time.
2.4 If any default by a Tribal Party under any of the Assigned
Agreements shall occur and be continuing, then the Trustee shall, at its option,
be permitted (but shall not be obligated) to remedy any such default by giving
written notice of such intent to the applicable Tribal Party and to the parties
to the Assigned Agreement for which the Trustee intends to remedy the default.
Any cure by the Trustee of a Tribal Party's default under any of the Assigned
Agreements shall not be construed as an assumption by the Trustee of any
obligations, covenants or agreements of a Tribal Party under such Assigned
Agreement, and the Trustee shall not be liable to any Tribal Party or any other
Person as a result of any actions undertaken by the Trustee in curing or
attempting to cure any such default. This Agreement shall not be deemed to
release or to affect in any way the obligations of any Tribal Party under the
Assigned Agreements.
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2.5 Any purchase money obligation created by any of the
Collateral Documents shall continue even after the Collateral Documents have
been amended, supplemented, modified, restated, refinanced, consolidated, or
restructured. In addition, to the extent any of the Proceeds may have been used
to finance or refinance any asset, the parties intend for the obligations of the
Authority related thereto to constitute purchase money obligations and for the
Trustee to have a related purchase money security interest.
3. Obligations Secured. Without limiting the generality of the
foregoing, this Agreement and all of the Collateral secure the payment and
performance when due of all covenants, agreements and payment and other
obligations of each Tribal Party under the Indenture and the Collateral
Documents, including without limitation the Senior Note Obligations
(collectively, the "Secured Obligations").
4. Representations and Warranties. Each Tribal Party represents and
warrants as of the date hereof as follows:
4.1 The Authority is an organization organized solely under
the laws of the Tribe, and no other state or jurisdiction, pursuant to the
Authority Ordinance.
4.2 Neither Tribal Party has assigned any of its rights under
the Assigned Agreements except as permitted in the Indenture and the Collateral
Documents.
4.3 Neither Tribal Party has authenticated and is not aware of
any effective financing statement, security agreement or other record similar in
effect covering all or any part of the Collateral, except such as may have been
filed pursuant to this Agreement, the Indenture and the other Collateral
Documents or pursuant to the documents evidencing Permitted Liens described on
Schedule 4.3.
4.4 Except as permitted by the Indenture and the Collateral
Documents, each Tribal Party lawfully possesses the Collateral and has full
right, title and interest in and to the Collateral, including all rights
purported to be granted to it under the Assigned Agreements, not subject to any
mortgages, liens, charges, or encumbrances except Permitted Liens. Each Tribal
Party has full power and lawful authority to grant a security interest in and
assign the Collateral hereunder.
5. Subsequent Changes Affecting Collateral; Transfers and Other Liens.
5.1 Each Tribal Party agrees that the Trustee shall have no
responsibility or liability for informing a Tribal Party of any such changes or
potential changes affecting the Collateral or for taking any action or omitting
to take any action with respect thereto.
5.2 Each Tribal Party agrees that it will not, except as
expressly permitted by the Indenture (subject to Section 19 hereof), create or
permit to exist any lien, mortgage, security interest or encumbrance of any kind
upon or with respect to any of the Collateral, except pursuant to this
Agreement.
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6. Covenants. Each Tribal Party covenants as follows:
6.1 Any action or proceeding to enforce this Agreement or any
Assigned Agreement may be taken by the Trustee either in the applicable Tribal
Party's name or in the Trustee's name, as the Trustee may deem necessary.
6.2 The Tribal Party will, so long as any Secured Obligations
are outstanding, warrant and defend its title to the Collateral and the interest
of the Trustee in the Collateral against any claim or demand of any Persons
(other than Permitted Liens) which could reasonably be expected to materially
adversely affect the Tribal Party's title to, or the Trustee's right or interest
in, such Collateral.
6.3 The Authority will at all times keep accurate and complete
records of the Collateral. The Authority shall permit representatives of the
Trustee upon reasonable prior notice at any time during normal business hours of
the Authority to inspect and make abstracts from the Authority's books and
records pertaining to the Collateral. Upon the occurrence and during the
continuation of any Event of Default, at the Trustee's request, the Authority
shall promptly deliver copies of any and all such records to the Trustee.
6.4 Unless waived in writing by the Trustee, each Tribal Party
shall give the Trustee at least thirty (30) days' notice before a Tribal Party
changes the location of its principal place of business, chief executive office
or location or form of organization and shall, at the expense of the Authority,
execute and deliver, and authorize the filing of, such records, instruments and
documents as may reasonably be required by the Trustee to maintain a perfected
security interest in the Collateral, subject only to Permitted Liens.
6.5 Unless waived in writing by the Trustee, each Tribal Party
shall give the Trustee at least thirty (30) days' notice before it changes the
location of any of the Collateral if such change in location would result in a
failure of the Trustee to maintain a perfected security interest in the
Collateral and shall, at the expense of the Authority, execute and deliver, and
authorize the filing of, such records, instruments and documents as may
reasonably be required by the Trustee to maintain a perfected security interest
in the Collateral, subject only to Permitted Liens.
6.6 In the event notification is given to any account debtor
to discharge its obligations by paying the Trustee (under Section 9406 of the
UCC or otherwise), such notification shall be binding against a Tribal Party
until the Trustee gives alternate instructions. No Tribal Party shall give,
provide, authenticate or deliver, nor authorize the giving, provision,
authentication or delivery of, alternate instructions unless the Trustee
expressly authenticates a record providing for such alternative instructions.
7. Collections on Collateral.
7.1 Upon the occurrence and during the continuance of an Event
of Default, the Trustee shall have the right from time to time to instruct the
Tribal Party and any other parties otherwise required to make payments to a
Tribal Party in connection with the Collateral to make such payments (including
all proceeds, sums or other property arising out of the enforcement of any
rights of a Tribal Party with respect to the Collateral) instead directly to the
Trustee or such other party or parties as the Trustee may designate.
7.2 If a Tribal Party receives any such payments at any time
when, pursuant to the provisions of this Section 7 or any notice delivered
pursuant hereto, such payments should not have been accepted or should have been
paid instead to another party, then such payments shall be received by the
Tribal Party in trust for, and shall be promptly deposited and delivered in kind
to, the Trustee. The Trustee shall have the right to exercise all rights and
remedies of the Authority under the Collateral Documents and to enforce the
Senior Notes and the other Collateral Documents in accordance with the terms of
the this Agreement.
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8. Events of Default. The occurrence of an Event of Default under and
as defined in the Indenture shall constitute an event of default hereunder (each
such occurrence, an "Event of Default").
9. Remedies Upon Event of Default.
9.1 If an Event of Default has occurred and is continuing, the
Trustee may (SUBJECT, IN EACH CASE, TO THE LIMITATION ON PROPRIETARY AND
MANAGEMENT RIGHTS CONTAINED IN THE LAST PROVISO TO SECTION 2.1 AND TO THE
PROVISIONS OF SECTION 24.11 AND SUBJECT TO ANY FEDERAL OR STATE LIMITATIONS ON
THE OPERATION, USE, POSSESSION AND TRANSPORTATION OF GAMING DEVICES): (a)
proceed to protect and enforce the rights vested in it by this Agreement,
including the right to cause all revenues pledged hereby as security and all
other monies pledged hereunder to be paid directly to it, and to enforce its
rights hereunder to such payments and all other rights hereunder by such
appropriate judicial proceedings as it shall deem most effective to protect and
enforce any of such rights, either at law or in equity or otherwise, whether for
specific enforcement of any covenant or agreement contained in any of the
Assigned Agreements, or in aid of the exercise of any power therein or herein
granted, or for any foreclosure hereunder and sale under a judgment or decree in
any judicial proceeding, or to enforce any other legal or equitable right vested
in it by this Agreement or by law; (b) cause any action at law or suit in equity
or other proceeding to be instituted and prosecuted to collect or enforce any of
the Secured Obligations or rights hereunder or included in the Collateral, or to
foreclose or enforce any other agreement or other instrument by or under or
pursuant to which such Secured Obligations are issued or secured, subject in
each case to the provisions and requirements thereof; (c) subject to applicable
law, including all applicable rules and regulations of the NIGC, sell or
otherwise dispose of any or all of the Collateral or cause the Collateral to be
sold or otherwise disposed of in one or more sales or transactions, at such
prices and in such manner as the Trustee may deem commercially reasonable, and
for cash or on credit or for future delivery, without assumption of any credit
risk at any broker's board or at public or private sale, with or without a
warranty of title, without demand of performance or notice of intention to sell
or of time or place of sale (except such notice as is required by applicable
statute and cannot be waived), it being agreed that the Trustee may be a
purchaser on its own behalf at any such public sale and that the Trustee, or any
other Person who may be a bona fide purchaser for value and without notice of
any claims of any or all of the Collateral so sold, shall thereafter hold the
same absolutely free from any claim or right of whatsoever kind, including any
equity of redemption, of the Authority, any such demand, notice or right and
equity being hereby expressly waived and released to the extent permitted by
law; (d) incur reasonable expenses, including reasonable attorneys' fees,
reasonable consultants' fees, and other costs appropriate to the exercise of any
right or power under this Agreement; (e) subject to the observance of all
applicable law, including IGRA and all applicable rules and regulations of the
NIGC, perform any obligation of the Authority hereunder, under the Senior Notes
or under any other Collateral Documents, and make payments, purchase, contest or
compromise any encumbrance, charge or lien, and pay taxes and expenses without,
however, any obligation to do so; (f) subject to the observance of all
applicable law, including IGRA and all applicable rules and regulations of the
NIGC, in connection with any acceleration and foreclosure, take possession of
the Collateral and render it usable and repair and renovate the same without,
however, any obligation to do so, and enter upon the Rancheria and the Facility
or any other location where the same may be located for that purpose, control,
manage, operate, rent and lease the Collateral, either separately or in
conjunction with the Facility, collect all rents and income from the Collateral
and apply the same to reimburse the Trustee for any cost or expenses incurred
hereunder, under the Senior Notes or under any of the Collateral Documents and
to the payment or performance of the Authority's obligations hereunder, under
the Senior Notes or under any of the Collateral Documents, and apply the balance
to the Senior Notes and any remaining excess balance to whomsoever is legally
entitled thereto; (g) subject to the observance of all applicable law, including
IGRA and all applicable rules and regulations of the NIGC, secure the
appointment of a receiver of the Collateral or any part thereof; (h) direct the
Disbursement Agent to stop payment of any disbursements being made at such time
or to be made from any of the Collateral Accounts, and direct all further
disbursements of funds from any of the Collateral Accounts; or (i) exercise any
other or additional rights or remedies granted to a secured party under the UCC.
If pursuant to applicable law prior notice of any such action (other than the
action authorized under Section 9.1(h) above, which shall be governed by the
Cash Collateral and Disbursement Agreement) is required to be given to any
Tribal Party, each Tribal Party hereby acknowledges that the minimum time
required by such applicable law, or if no minimum time is specified, ten (10)
Business Days, shall be deemed a reasonable notice period.
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9.2 All reasonable costs and expenses (including reasonable
attorneys' fees and expenses) incurred by the Trustee in connection with any
such suit or proceeding or in connection with the performance by the Trustee of
any of the agreements of any Tribal Party contained in any of the Assigned
Agreements or any exercise of its rights or remedies hereunder, together with
interest thereon (to the extent permitted by law) computed at a rate per annum
equal to the interest rate provided in the Senior Notes from the date on which
such costs or expenses are incurred to the date of payment thereof, shall
constitute additional Secured Obligations secured by this Agreement and shall be
paid by the Authority to the Trustee on demand.
10. Remedies Cumulative; Delay Not Waiver.
10.1 No right, power or remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other right, power or
remedy and every such right, power and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion or employment of any other appropriate right or
remedy. Resort to any or all security now or hereafter held by the Trustee may
be taken concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken nonjudicial proceedings, or both.
10.2 No delay or omission of the Trustee to exercise any right
or power accruing upon the occurrence and during the continuance of any Event of
Default as aforesaid shall impair any such right or power or shall be construed
to be a waiver of any such Event of Default or an acquiescence therein, and
every power and remedy given by this Agreement may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee.
11. Application of Proceeds. Upon the occurrence and during the
continuation of an Event of Default, the proceeds of any sale of or other
realization upon all or any part of the Collateral shall be applied: first, to
all fees, costs and expenses incurred by and due and owing to the Trustee under
the Senior Notes or the Collateral Documents; second, to accrued and unpaid
interest on the Secured Obligations (including any interest which, but for the
provisions of Bankruptcy Law, would have accrued on such amounts); third, to the
principal amounts of the Secured Obligations outstanding; and fourth, to, or as
directed by, the Authority.
12. Attorney-In-Fact. Subject to applicable law, including all
applicable rules and regulations of the NIGC, each Tribal Party hereby
constitutes and appoints the Trustee, acting for and on behalf of itself and
each successor or assign of the Trustee, the true and lawful attorney-in-fact of
the Tribal Party, with full power and authority in the place and stead of the
Authority and in the name of the Tribal Party, the Trustee or otherwise to, upon
the occurrence and during the continuance of an Event of Default, enforce all
rights, interests and remedies of the Tribal Party with respect to the
Collateral, including the right:
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12.1 to ask, require, demand, receive and give acquittance for
any and all monies and claims for monies due and to become due under or arising
out of the Assigned Agreements or any of the other Collateral, including any
insurance policies;
12.2 to elect remedies thereunder and to endorse any checks or
other instruments or orders in connection therewith;
12.3 to file any claims or take any action or institute any
proceedings in connection therewith which the Trustee may reasonably deem to be
necessary or advisable;
12.4 to pay, settle or compromise all bills and claims which
may be or become liens or security interests against any or all of the
Collateral, or any part thereof, unless a bond or other security satisfactory to
Trustee has been provided; and
12.5 upon foreclosure, subject to the limitations contained in
Section 9.1, to do any and every act which a Tribal Party may do on its behalf
with respect to the Collateral or any part thereof and to exercise any or all of
such Tribal Party's rights and remedies under any or all of the Assigned
Agreements;
provided, however, that the Trustee shall not exercise any such rights except
upon the occurrence and continuation of an Event of Default. This power of
attorney is a power coupled with an interest and shall be irrevocable. The
Trustee shall exercise all remedies under this Agreement in accordance with the
terms of the Indenture.
13. Trustee May Perform. Upon the occurrence and during the continuance
of an Event of Default, if the Authority fails to perform any agreement
contained herein, the Trustee may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Trustee incurred in connection
therewith shall be part of the Secured Obligations.
14. Perfection; Further Assurances.
14.1 Each Tribal Party agrees that from time to time, at the
expense of the Authority, each Tribal Party shall promptly execute and deliver
all records, instruments and documents, and take all action, that may be
reasonably necessary or that the Trustee may reasonably request, in order to
perfect and protect the assignment and security interest granted or intended to
be granted hereby or to enable the Trustee to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, each Tribal Party shall: (a) if any Collateral
shall be evidenced by a promissory note or other instrument (other than checks)
in excess of $10,000, deliver and pledge to the Trustee such note or other
instrument duly endorsed without recourse, and accompanied by duly executed
records of transfer or assignment, all in form and substance satisfactory to the
Trustee; and (b) execute and deliver to the Trustee such financing or
continuation statements, or amendments thereto, and such other records,
instruments, documents, endorsements or notices, as may be reasonably necessary
or desirable or as Trustee may reasonably request, in order to perfect and
preserve the assignments and security interests granted or purported to be
granted hereby.
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14.2 Each Tribal Party hereby authorizes the Trustee to file
one or more financing or continuation statements and other records with respect
to all or any part of the Collateral (including any amendments thereto, or
continuation or termination statements thereof), without the signature or other
authorization of the Authority in such form and in such offices as the Trustee
reasonably determines to be appropriate to perfect or maintain the perfection of
the security interest of the Trustee hereunder. Each Tribal Party acknowledges
and agrees that it is not authorized to, and will not, authenticate or file, or
authorize the filing of, any financing statements or other record with respect
to the Collateral (including any amendments thereto, or continuation or
termination statements thereof), without the express prior written approval and
authorization by the Trustee, consenting to the form and substance of such
filing or record (subject, however, to the provisions of Sections 9509(d)(2) and
9513(c)(1) of the UCC). Each Tribal Party approves, authorizes and ratifies any
filing or recording of records made by or on behalf of Trustee in connection
with the perfection of the security interest in favor of the Trustee.
14.3 The Authority shall pay all filing, registration and
recording fees and all refiling, re-registration and re-recording fees, and all
reasonable expenses incident to the execution and acknowledgment of this
Agreement, and all federal, state, county and municipal stamp taxes and other
taxes, duties, imports, assessments and charges arising out of or in connection
with the execution or authentication and delivery of this Agreement, any
agreement supplemental hereto, any financing statements, and any instruments of
further assurance.
14.4 The Authority shall, promptly upon request, provide to
the Trustee all information and evidence that the Trustee may reasonably request
concerning the Collateral to enable the Trustee to enforce the provisions of
this Agreement.
15. Governing Law; Jurisdiction, Governing Law Provisions.
15.1 Governing Law Provisions. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY; PROVIDED, HOWEVER THAT WITH RESPECT TO THE CREATION,
ATTACHMENT, PERFECTION OR PRIORITY OF THE SECURITY INTEREST IN ANY COLLATERAL,
THE GOVERNING LAW SHALL BE THE APPLICABLE UCC AS SET FORTH IN THE DEFINITION OF
THE TERM "UCC." THE AUTHORITY, THE TRIBE, AND THE TRUSTEE AGREE THAT THE
TRANSACTIONS UNDER THIS AGREEMENT, INCLUDING THE EXECUTION OF THIS AGREEMENT,
THE LENDING OF MONEY AND THE ISSUANCE OF THE SENIOR NOTES, OCCURRED OUTSIDE THE
TRIBE'S RESERVATION, IN THE STATE OF NEW YORK.
15.2 Waiver of Sovereign Immunity. Each of the Authority and
the Tribe unconditionally and irrevocably waives its sovereign immunity, and the
sovereign immunity of each subdivision, agency, department, board, committee,
commission, instrumentality or entity wholly-owned or wholly-controlled,
directly or indirectly, by the Tribe from any suit, action, proceeding or legal
process of any nature, and any and all defenses based thereon, with respect to
any claim, demand, dispute, action or cause of action related or incidental to
this Agreement, the Senior Notes or the Collateral Documents including the offer
or sale of the Senior Notes, whether now existing or hereafter arising and
whether sounding in tort, contract, or otherwise (collectively "Permitted
Claims"). Such waiver extends (i) to permit the interpretation, enforcement and
the seeking of legal or equitable relief and remedies (whether through an award
or granting of specific performance, injunction, mandamus, damages or otherwise)
through judicial proceedings and other legal process as hereinafter provided,
and (ii) to permit judicial actions in any of the Applicable Courts (as defined
below) to compel, enter judgment upon, enforce, modify or vacate any award or
interim injunctive relief related to such arbitration authorized in this Section
15; provided, however, such waiver shall be subject to the following
limitations: (a) no Person may seek enforcement or recover any damages as a
result of such waiver against any property or rights of the Authority or the
Tribe, except as against Gaming Assets and Gaming Assets distributed to the
Tribe in contravention of the Indenture; (b) no Person will be entitled to
enforce such waiver except the Trustee, holders of the Senior Notes, Persons
entitled to be indemnified under this Agreement, and the successors and assigns
of the Trustee and such holders and Persons (each, a "Permitted Party"); (c) no
Person shall be entitled to assert a claim because of such waiver except a
Permitted Claim; (d) claims permitted by such waiver may be brought only in the
Applicable Courts or in arbitration proceedings as described below; and (e) all
Permitted Claims shall be interpreted and subject to the internal law of the
State of New York.
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15.3 Waiver of Tribal Court. Each of the Authority and the
Tribe unconditionally and irrevocably waives the jurisdiction and right of any
tribal court or forum, now or hereafter existing or created, to hear or resolve
any Permitted Claim. Each of the Authority and the Tribe unconditionally and
irrevocably waives the application of any rule or doctrine relating to the
exhaustion of tribal remedies, abstention or comity that might otherwise require
or permit a Permitted Claim to be heard or resolved (either initially or
finally) in a tribal court or other tribal forum.
15.4 Jurisdiction. Each of the Authority and the Tribe
irrevocably consents to arbitration as described below and for the resolution
and enforcement of Permitted Claims and actions permitted by the waivers
described above, to the following courts (the "Applicable Courts"); (a) the
United States District Court for the Southern District of New York and all
courts to which any appeal therefrom may be available; (b) any court of the
State of New York and all courts to which any appeal therefrom may be available;
and (c) any court or other forum of the Tribe (to the extent that a Permitted
Party has commenced or consented to an action in such court or forum).
15.5 Arbitration. At the election of the Trustee, any
Permitted Claims must be resolved by binding arbitration under the commercial
arbitration rules of the American Arbitration Association (the "AAA"), as
modified by this Agreement. An arbitration proceeding may be commenced only by
the Trustee, or to the extent remedies may be enforced directly by a holder of
Senior Notes, by the holder upon the filing with the AAA of a Statement of Claim
(within the meaning of the AAA rules) and serving a copy thereof on the
Authority and the Tribe. A single arbitrator shall hear the Permitted Claim, and
shall be selected in accordance with the rules of the AAA. No person shall be
eligible to serve as an arbitrator if the person is related to, affiliated with
or has represented in a legal capacity any party to the arbitration proceeding
or any party to this Agreement. The arbitrator shall be an attorney admitted to
practice and in good standing before the highest court of a state, who is
experienced in advising clients in connection with commercial borrowings or the
issuance of debt securities. Any party shall be permitted to engage in any
discovery permitted under the rules of the AAA. However, all discovery shall be
completed within 90 days following the initial filing of the Statement of Claim.
The hearing on the arbitration must be held in the City of Los Angeles,
California, and commence and be completed no more than 30 days after the close
of discovery, and the arbitrator shall render an award in writing within 30 days
of the completion of the hearing, which shall contain findings of facts and
conclusions of law. Any arbitrator appointed hereunder may award interim
injunctive relief before the final arbitration award. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator.
15.6 Service of Process. Service of any process, summons,
notice or document by mail to such party's address set forth above shall be
effective service of process for any suit, action or other proceeding brought in
any proper court.
15.7 Non-Impairment. Neither the Authority nor the Tribe nor
any of its Affiliates will: (a) adopt, enact, promulgate or otherwise place into
effect any law or legal requirement that impairs or interferes, or could impair
or interfere, in any manner, with any right or remedy of another party hereunder
or their successors and assigns (it being understood and agreed that any such
law or legal requirement that is adopted, enacted, promulgated or otherwise
placed into effect without the prior written consent of any affected party,
successor or assign shall be void and of no effect); or (b) demand, impose or
receive any tax, charge, assessment, fee or other imposition or impose any
regulatory or licensing requirement against a party, their successors or
assigns, except in connection with licensing required by the Compact entered
into between the Tribe and the State of California, as amended from time to
time.
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16. Alteration of Obligations. Each Tribal Party acknowledges and
agrees that none of the following shall release, impair, reduce, diminish or
otherwise affect any of its obligations under this Agreement: (a) any
alteration, compromise, acceleration or extension of, or any change to, (i) the
Tribe's or the Authority's obligations to complete the design, development,
construction and equipping of the parking facilities and other infrastructure
improvements to the Facility and to commence operation thereof or (ii) the
payment or performance by the Tribe or the Authority under any debt instrument
or other financing, including the Secured Obligations secured hereby, for the
development, construction, equipping or operation of the parking facilities and
other infrastructure improvements to the Facility or the Facility (the
foregoing, collectively, the "Facility Obligations"), in each case in such
manner, upon such terms and at such times as any Person (including the Trustee
or any Holder) (each such Person, an "Obligee") deems best, and without notice
to any Tribal Party; (b) the release of the Tribe or the Authority from any or
all of the Facility Obligations by acceptance of a deed in lieu of foreclosure
or otherwise, as to all or any portion of the Facility Obligations; (c) the
release, substitution or addition of any one or more guarantors or endorsers of
the Facility Obligations; (d) the acceptance of additional or substitute
security for the Facility Obligations; or (e) the release or subordination of
any security for the Facility Obligations. No exercise (including foreclosure of
the Facility or any portion thereof) or non-exercise of any right under any
document relating to the Facility Obligations (collectively, the "Obligation
Documents") by an Obligee, no dealing by an Obligee hereunder or under any
Obligation Document or any other document with the Authority, the Tribe or any
other Person, and no change, impairment or release of all or any portion of the
Facility Obligations or suspension of any right or remedy of an Obligee against
any other Person, including the Tribe or any other such guarantor, endorser or
other Person, shall in any way affect any of the obligations of the Authority
hereunder or under any security furnished by the Authority or give the Authority
any recourse against an Obligee (including the Trustee). If an Obligee has
exculpated or hereafter exculpates the Tribe or the Authority from liability in
whole or in part, or has agreed or hereafter agrees to look solely to the
Facility or any other property for the satisfaction of the Authority's
Obligations under the Indenture, such exculpation and agreement shall not affect
the obligations of the Authority hereunder. Each Tribal Party further
acknowledges that any such exculpation or agreement that has been given or that
is hereafter given to the Authority or the Tribe with respect to the Senior
Notes or any Collateral Document has been given or is given in reliance upon the
covenants of the Tribal Parties contained herein.
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17. Obligations Absolute; Waiver. The obligations of each Tribal Party
hereunder shall be unconditional, absolute and continuing and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by and shall survive the release of any Collateral from the security
interests created hereby. Except for the rights expressly provided to the
Authority hereunder, the Authority hereby waives and relinquishes all rights and
remedies accorded by applicable law to sureties or guarantors and agrees not to
assert or take advantage of any such rights or remedies including: (a) any right
to require any holder or recipient of the direct or indirect benefit of any of
the Facility Obligations (including the Trustee or the Holders) (each a
"Benefited Party") to proceed against the Tribe or any other Person or entity or
to proceed against or exhaust any security held by a Benefited Party at any time
or to pursue any other remedy in the power of a Benefited Party before
proceeding against the Authority; (b) the defense of the statute of limitations
in any action hereunder or in any action for the collection or performance of
the Facility Obligations; (c) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of any other Person or the
failure of a Benefited Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other Person; (d)
appraisal, valuation, stay, extension, marshaling of assets, redemption,
exemption, diligence, demand, presentment, protest and notice of any kind,
including notice of the existence, creation or incurring of any new or
additional indebtedness or obligation or of any action, non-action, performance
or failure to perform on the part of a Benefited Party, the Tribe, any endorser
or creditor of the Tribe or the Authority or on the part of any other Person
under this or any other instrument in connection with any obligation or evidence
of indebtedness held by a Benefited Party as collateral or in connection with
any Facility Obligations; (e) any defense based upon any exercise of remedies,
including foreclosure of the Facility, or upon an election of remedies by a
Benefited Party, including an election to proceed by non-judicial rather than
judicial foreclosure, which destroys or otherwise impairs the subrogation rights
of the Authority, the right of the Authority to proceed against the Tribe or any
other person for reimbursement, or both; (f) any defense based upon any statute
or rule of law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of the
principal; (g) any duty on the part of a Benefited Party to disclose to the
Authority any facts a Benefited Party may now or hereafter know about the Tribe
or any other Person, regardless of whether a Benefited Party has reason to
believe that any such facts materially increase the risk beyond that which the
Authority intends to assume, or has reason to believe that such facts are
unknown to the Authority, or has a reasonable opportunity to communicate such
facts to the Authority, since the Authority acknowledges that the Authority is
fully responsible for being and keeping informed of the financial condition of
the Tribe or any other Person and of all circumstances bearing on the risk of
non-payment of any Facility Obligations; (h) any defense arising because of the
election of a Benefited Party, in any proceeding instituted under title 11 of
the United States Code (the "Federal Bankruptcy Code"), of the application of
Section 1111(b)(2) of the Federal Bankruptcy Code; (i) any defense based upon
any borrowing or grant of a security interest under Section 364 of the Federal
Bankruptcy Code; (j) except as may be expressly set forth herein, any claim or
other rights which it may now have or hereafter acquire against the Tribe or any
other Person that arises from the existence or performance of the Authority's
obligations under this Agreement or any other Obligation Document, including any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
any right to participate in any claim or remedy by a Benefited Party against the
Tribe or any collateral which a Benefited Party now has or hereafter acquires,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, by any payment made hereunder or otherwise, including the
right to take or receive from the Tribe or any other Person or entity, directly
or indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights; (k) any rights
which it may acquire by way of contribution under this Agreement or any
Obligation Document, by any payment made hereunder or otherwise, including the
right to take or receive from any other Person, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security on
account of such contribution rights; (l) any defense based on one-action laws
and any other anti-deficiency protections granted to guarantors by applicable
law; (m) any merger or consolidation of the Tribe or the Authority into or with
any other Person, or any sale, lease or transfer of any or all of the assets of
the Tribe or the Authority to any other Person; (n) any circumstance which might
constitute a defense available to, or a discharge of, the Tribe, the Authority
or a surety; (o) any lack of genuiness, validity, regularity, enforceability or
value of any Facility Obligations, this Agreement or any Obligation Document;
and (p) any other fact or circumstance, including any construction delays or any
contests or claims relating to the construction of the Facility. The Authority
acknowledges and agrees that any nonrecourse or exculpation provided for in any
Obligation Document, or any other provision of an Obligation Document limiting
each respective Benefited Party's recourse to specific collateral or limiting
such Benefited Party's right to enforce a deficiency judgment against the
Authority or the Tribe, shall have absolutely no application to the Authority's
liability under this Agreement. To the extent that any Benefited Party
(including the Trustee) collects or receives any sums or payments from the
Authority or the Tribe or from any guarantor, endorser or other Person under any
Obligation Document or realized from any security, such Benefited Party shall
have the right, but not the obligation, to apply such amounts first to that
portion of the Tribe's or the Authority's indebtedness and obligations, if any,
to such Benefited Party that is not covered by this Agreement, regardless of the
manner in which any such payments or amounts are characterized by the Person
making payment.
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18. Place of Business; Location of Records. Unless the Trustee is
otherwise notified under Section 6.4, the place of business and chief executive
office of each Tribal Party is, and all records of the Authority concerning the
Collateral are and will be, located at its address set forth in Section 15.02 of
the Indenture.
19. Continuing Assignment and Security Interest. This Agreement shall
create a continuing assignment of, and security interest in, the Collateral and
shall: (a) remain in full force and effect until payment in full of the Secured
Obligations; (b) be binding upon each Tribal Party and its successors and
assigns; provided, however, that the obligations of a Tribal Party and its
successors and assigns hereunder may not be assigned without the prior written
consent of the Trustee; and (c) inure, together with the rights and remedies of
the Trustee, to the benefit of the Trustee and its successors, transferees and
assigns. Without limiting the generality of the foregoing but subject to the
terms of the Indenture, the Trustee may assign or otherwise transfer all or any
part of or interest in the Senior Notes or other evidence of indebtedness held
by it to any other Person to the extent permitted by and in accordance with the
Indenture, and such other Person shall thereupon become vested with all or an
appropriate part of the benefits in respect thereof granted to the Trustee
herein or otherwise. The release of the security interest in any or all of the
Collateral, the taking or acceptance of additional security, or the resort by
the Trustee to any security it may have in any order it may deem appropriate,
shall not affect the liability of any person on the indebtedness secured hereby.
If this Agreement shall be terminated or revoked by operation of law, the
Authority will indemnify and save the Trustee harmless from any loss which may
be suffered or incurred by the Trustee in acting hereunder prior to the receipt
by the Trustee, its successors, transferees, or assigns of notice of such
termination or revocation.
20. Termination of Security Interest. Upon the payment in full of the
Secured Obligations (but subject to the provisions of Section 21 below), the
security interest in the Collateral granted hereby shall terminate and all
rights to the Collateral shall revert to the Authority. In addition, upon the
satisfaction of the conditions set forth in Section 14.04 of the Indenture
(Release of Collateral), the security interest in all or a portion of the
Collateral hereunder shall terminate to the extent set forth in such Section
14.04. Upon any such termination, the Trustee will, at the Authority's expense,
authenticate and, subject to Section 21 hereof, deliver to the Authority such
records (including termination statements under the UCC) as the Authority shall
reasonably request to evidence such termination.
21. Reinstatement. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by the
Trustee in respect of the Secured Obligations is rescinded or must otherwise be
restored or returned by the Trustee upon the insolvency, bankruptcy,
reorganization, liquidation of the Authority or upon the dissolution of, or
appointment of any intervenor or conservator of, or trustee or similar official
for, the Authority or any substantial part of the Authority's assets, or
otherwise, all as though such payments had not been made.
22. Trustee's Duties; Reasonable Care. The powers conferred on the
Trustee hereunder are solely to protect its interest in the Collateral and shall
not impose any duty on it to exercise such powers. Except for the safe custody
of any Collateral in its possession and the accounting for monies actually
received by it hereunder, the Trustee shall have no duty as to any Collateral.
The Trustee shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment that is not materially less protective to that which the Trustee
accords its own property, it being expressly agreed that neither the Trustee nor
any Holder shall have responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Trustee or any Holder has or is
deemed to have knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any parties with respect to any Collateral, but the
Trustee may do so at its option and all reasonable expenses (including
reasonable attorneys' fees) incurred in connection therewith shall be payable by
and for the sole account of the Authority.
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23. Survival of Provisions. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement, the Senior Notes and the Indenture. Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements, representations and
warranties of the Authority set forth herein shall terminate only upon payment
in full of the Secured Obligations.
24. Miscellaneous.
24.1 No Personal Liability. No past, present or future officer
or office holder, employee, agent, representative, member of the Authority shall
have any liability for any obligations of the Authority under this Agreement for
any claim based on, in respect of, or by reason of, such obligations or their
creation.
24.2 [Intentionally deleted.]
24.3 Severability. In case any provision in the Agreement
shall be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
24.4 Tables of Contents, Headings, etc. The Table of Contents
and Headings in this Agreement have been inserted for convenience of reference
only, are not to be considered a part of this Agreement and shall in no way
modify or restrict any of the terms or provisions hereof.
24.5 Counterparts, Originals. The parties may sign any number
of copies of this Agreement. Each signed copy shall be an original, but all of
them together represent the same agreement. A facsimile signature page shall
have the same force and effect as an original.
24.6 Time. Time is of the essence of this Agreement.
24.7 Amendments; Waivers; Consents. No amendment,
modification, termination or waiver of any provision of this Agreement, or
consent to any departure by the Authority therefrom, shall in any event be
effective without the written concurrence of the Authority and the Trustee.
24.8 Notices. All notices required or permitted under the
terms and provisions hereof shall be in writing and any such notice shall be
effective if given in accordance with the provisions of Section 15.02 of the
Indenture. Notices to the Authority may be given at the address of the Authority
set forth in such Section 15.02.
24.9 Entire Agreement. This Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of their agreement and is intended as a complete and exclusive
statement of the terms and conditions thereof. This Agreement supercedes all
oral negotiations and prior writings in respect of the subject matter hereof.
24.10 Attorneys' Fees. In the event any legal action or
proceeding (including any of the remedies provided for herein or at law) is
commenced to enforce or interpret this Agreement or any provision thereof the
Authority shall indemnify the Trustee for its reasonable attorneys' fees and
other costs and expenses incurred therein, and if a judgment or award is entered
in any such action or proceeding, such reasonable attorneys' fees and other
costs and expenses may be made a part of such judgment or award.
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24.11 IGRA Savings Provisions. It is not the intent of the
parties hereto that this Agreement, whether considered alone, or together with
any other one or more documents, constitute a management contract within the
meaning of IGRA. Accordingly, to the extent any reasonable basis exists
therefore, each and every provision hereof shall be interpreted in a manner that
does not cause this Agreement to constitute a management contract, whether
considered alone, or together with any other one or more documents. In no event
shall any provision of this Agreement be applied, or deemed in effect or
enforceable, to the extent such provision allows any action or influence by the
Trustee or any other person that constitutes management of gaming in violation
of IGRA. Notwithstanding any other provision herein, if any term or condition
herein should cause this Agreement, alone, or together with any one or more
other documents, to constitute a management contract within the meaning of IGRA,
such provision shall be null and void without any further force and effect, with
all other provisions not similarly null and void remaining in full force and
effect. This Section shall survive as an agreement separate and apart from the
remainder of this Agreement in the event of any determination that any provision
of this Agreement causes the Agreement to constitute a management contract
within the meaning of IGRA.
24.12 Scope of Security Interest. Notwithstanding anything to
the contrary contained in this Agreement, the Trustee's security interest (a) in
assets of the Tribe shall be limited to Gaming Assets that do not constitute
real estate or an interest in real estate and (b) in assets of the Authority
shall not include any asset that constitutes real estate or an interest in real
estate.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and
Security Agreement to be duly executed and delivered as of the day and year
first above written.
THE RIVER ROCK ENTERTAINMENT AUTHORITY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE DRY CREEK RANCHERIA OF POMO
INDIANS OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
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SCHEDULE 4.3
Permitted Liens
"Permitted Liens" means:
(1) Liens on the assets of the Authority created by the
Indenture and the Collateral Documents securing the Senior Notes;
(2) Liens in favor of the Authority;
(3) Liens existing on the date of the Indenture;
(4) Liens to secure Indebtedness that was permitted to be
incurred pursuant to permitted FF&E Financing;
(5) Liens on property existing at the time of acquisition
thereof by the Authority; provided that those Liens were in existence
prior to the contemplation of the acquisition and do not extend to any
assets other than the acquired property;
(6) Liens on property of a Person existing at the time such
Person is merged with or into the Authority; provided that such Liens
were in existence prior to the contemplation of such merger and do not
extend to any assets other than those of the Person merged with or into
the Authority;
(7) Liens or deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business;
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefor;
(9) leases or subleases permitted pursuant to the terms of the
Indenture and that are granted to others and do not in any material
respect interfere with the business of the Authority;
(10) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business and not overdue for a period of more than 90 days or which are
being contested in good faith by appropriate proceedings;
(11) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other social security legislation;
(12) Liens arising as a result of easements, survey
exceptions, title defects, restrictions, encumbrances reservation of,
or rights of others for, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes or zoning or
other restrictions as to the use of real property which, in the
aggregate, do not materially interfere with the ordinary course of the
business of the Authority;
(13) Liens incurred in the ordinary course of business of the
Authority with respect to obligations that do not exceed $2.5 million
at any one time outstanding and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do
not in the aggregate materially impair the operation of business by the
Authority; provided, however, it is acknowledged that Permitted Liens
will not include any Lien on the land held in trust for the Tribe by
the United States or any real property interest therein, including the
buildings, improvements and fixtures, which will give the holder
thereof a proprietary interest in any gaming activity as prohibited by
Section 11(b)(2)(A) of IGRA;
(14) Liens created by or resulting from any legal proceeding
with respect to which the Authority is prosecuting an appeal or other
proceeding for review and the Authority is maintaining adequate
reserves in accordance with GAAP;
(15) Liens arising by reason of a judgment, decree or court
order, to the extent not otherwise resulting in an Event of Default;
and
(16) extensions, renewals or refunding of any Liens referred
to in clauses (1) through (13) above, provided that the renewal,
extension or refunding is limited to all or part of the assets or
property securing the original Lien.
Any capitalized term in this Schedule 4.3 not otherwise defined in the
Pledge and Security Agreement shall have the meaning ascribed thereto in the
Indenture.
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