EXHIBIT 10.2
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
dated as of
November 7, 2003
among
U.S. Bank National Association, as USB Disbursement Agent,
▇▇▇▇▇ Fargo Bank, N.A., as WFB Disbursement Agent,
U.S. Bank National Association, as Trustee,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., as Independent Construction Consultant
River Rock Entertainment Authority
and
The Dry Creek Rancheria Band of Pomo Indians of California
(solely with respect to its obligations under Section 13)
Table of Contents
Page
1. Definitions..............................................................................................2
1.1. Defined Terms...................................................................................2
1.2 Index of Additional Defined Terms...............................................................8
2. Appointment of Disbursement Agents; Establishment of Collateral Accounts; Related Provisions.............9
2.1 Appointment of the Disbursement Agents..........................................................9
2.2 Establishment of Collateral Accounts............................................................9
2.2.1 Establishment of Collateral Accounts...................................................9
2.2.2 General...............................................................................10
2.2.3 Net Loss Proceeds.....................................................................10
2.3 Acknowledgement of Security Interest; Control..................................................10
2.4 Control of Collateral Accounts.................................................................10
2.5 Control of Specific Collateral Accounts........................................................12
2.5.1 Control of Operating Account..........................................................12
2.5.2 Control of Construction Disbursement Account, ▇▇▇▇▇ Property Improvements
Account and Construction Escrow Account...............................................12
2.6 The Authority's Rights.........................................................................12
2.7 Cash Equivalents...............................................................................12
2.8 Remedies.......................................................................................13
2.9 Waiver of Set-Off Rights.......................................................................13
2.10 Cooperation....................................................................................13
3. Certain Responsibilities of Disbursement Agents and Independent Construction Consultant.................14
3.1 Disbursements from the Collateral Accounts.....................................................14
3.2 Transfer of Funds at Direction of Trustee......................................................14
3.3 Payment of Compensation........................................................................14
3.3.1 Independent Construction Consultant's Compensation....................................14
3.3.2 Procedure.............................................................................14
3.4 Periodic Review................................................................................15
3.4.1 Review by USB Disbursement Agent......................................................15
3.4.2 Review by Independent Construction Consultant.........................................15
4. Disbursements During Construction Period................................................................16
4.1 Initial Disbursements from the Construction Disbursement Account...............................16
4.2 Subsequent Disbursements from the Construction Disbursement Account and Construction
Escrow Account.................................................................................16
4.2.1 Disbursement Requests.................................................................16
4.2.2 Additional Conditions to Subsequent Disbursements from the Construction
Disbursement Account..................................................................17
4.2.3 Non-Satisfaction of Conditions........................................................17
4.2.4 Disbursements from Construction Escrow Account........................................18
4.2.5 Final Disbursement from Construction Escrow Account...................................19
4.3 Disbursements from ▇▇▇▇▇ Property Improvements Account.........................................19
4.3.1 Land Development Disbursement Requests................................................19
4.3.2 Additional Conditions to Disbursements from the Land Development Disbursement
Account...............................................................................19
4.3.3 Non-Satisfaction of Conditions........................................................20
4.3.4 Final Disbursement from Land Development Disbursement Account.........................20
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5. Certain Construction Period Covenants...................................................................21
5.1 Available Construction Funds Certificate.......................................................21
5.2 Construction Cost Overruns.....................................................................21
5.3 Project Cost Schedule Certificate..............................................................21
5.4 Final Plans....................................................................................21
5.5 Amendment to Authority Budget..................................................................22
6. Certain Operating Period Covenants......................................................................22
6.1 Deposit of Pledged Revenues Other Than Cage Cash...............................................22
6.1.1 Transfer to WFB Disbursement Agent....................................................22
6.1.2 Control Agreement.....................................................................22
6.1.3 Discretionary Deposits................................................................22
6.2 Funds in Accounts..............................................................................22
6.3 Notice of Substantial Completion...............................................................22
7. Limitation of Liability.................................................................................23
7.1 Limitation of a Disbursement Agent's Liability.................................................23
7.2 Limitation of Independent Construction Consultant's Liability..................................23
8. Indemnity and Insurance.................................................................................24
8.1 Indemnification of Disbursement Agent..........................................................24
8.2 Insurance......................................................................................24
9. Termination.............................................................................................25
10. Substitution or Resignation of Disbursement Agent.......................................................25
10.1 Procedure......................................................................................25
10.2 Successor Disbursement Agent...................................................................26
10.3 Eligibility; Disqualification..................................................................26
10.4 Consent of Independent Construction Consultant.................................................26
11. Statement of Collateral Accounts........................................................................26
12. Miscellaneous...........................................................................................26
12.1 Waiver.........................................................................................26
12.2 Invalidity.....................................................................................26
12.3 No Authority...................................................................................26
12.4 Assignment.....................................................................................26
12.5 Benefit........................................................................................27
12.6 Time...........................................................................................27
12.7 Choice of Law..................................................................................27
12.8 Entire Agreement; Amendments...................................................................27
12.9 Notices........................................................................................27
12.10 Counterparts...................................................................................28
12.11 Captions.......................................................................................28
12.12 Right to Consult Counsel.......................................................................28
12.13 Tribe Authorization............................................................................28
12.14 Authority Authorization........................................................................28
13. Governing Law; Jurisdiction; Governing Law Provisions...................................................29
13.1 Governing Law Provisions.......................................................................29
13.2 Waiver of Sovereign Immunity...................................................................29
13.3 Waiver of Tribal Court.........................................................................29
13.4 Jurisdiction...................................................................................29
13.5 Arbitration....................................................................................30
13.6 Service of Process.............................................................................30
13.7 Non-Impairment.................................................................................30
13.8 IGRA Savings Provisions........................................................................30
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TABLE OF EXHIBITS
Exhibit
A Initial Disbursements Certificate
B Form of Authority's Closing Certificate
C Form of Trustee's Closing Certificate
D Form of Construction Disbursement Request
E Form of Available Construction Funds Certificate
F Form of Project Cost Schedule Certificate
G Form of Authority Budget Amendment Certificate
H Initial Authority Budget
I Form of Final Plans Amendment Certificate
J-1 Form of Officer's Certificate (First Phase)
J-2 Form of Officer's Certificate (Second Phase)
J-3 Form of Substantial Completion Certificate (Project)
J-4 Form of Officer's Certificate (▇▇▇▇▇ Project)
K-1 Form of Control Agreement (Construction Accounts)
K-2 Control Agreement (Operating Accounts)
L Form of Land Development Disbursement Request
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CASH COLLATERAL AND DISBURSEMENT AGREEMENT
THIS CASH COLLATERAL AND DISBURSEMENT AGREEMENT (as amended,
supplemented, restated or otherwise modified from time to time, this
"Agreement") is dated as of November 7, 2003, by and among U.S. Bank National
Association, a national banking association, as disbursement agent, securities
intermediary and depositary bank (the "USB Disbursement Agent"), ▇▇▇▇▇ Fargo
Bank, N.A., a national banking association, as disbursement agent, securities
intermediary and depositary bank (the "WFB Disbursement Agent"), (the USB
Disbursement Agent and the WFB Disbursement Agent, together with any successor
disbursement agent permitted hereunder, being sometimes referred to herein
individually or collectively as the "Disbursement Agent"), U.S. Bank National
Association, a national banking association, as trustee under the Indenture (as
defined herein) (together with its successors and assigns from time to time
under the Indenture, the "Trustee"), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. (the "Independent
Construction Consultant"), the River Rock Entertainment Authority (the
"Authority"), an unincorporated instrumentality of The Dry Creek Rancheria Band
of Pomo Indians of California (the "Tribe") and the Tribe (solely with respect
to its obligations under Section 13).
RECITALS
A. 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").
B. 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 near Geyserville, California (the
"Rancheria") and an access road upon certain property adjacent to the Rancheria
(the "▇▇▇▇▇ Property") to support the existing gaming facility of the Authority
(such gaming facility and the Project collectively the "Facility"). 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 Authority Ordinance (as defined below).
C. Use of Proceeds. The net proceeds from the issuance of the Initial
Senior Notes (the "Proceeds") will be used (among other things) to repay 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 the ▇▇▇▇▇ Property and
to repay outstanding indebtedness of the Tribe.
D. Collateral Accounts. Contemporaneously with the execution of this
Agreement, $64,600,000 of the Proceeds will be deposited into the Construction
Disbursement Account (as defined below), $5,000,000 of the Proceeds will be
deposited into the ▇▇▇▇▇ Property Improvements Account (as defined below) and
$10,000,000 of the Proceeds will be deposited into the Construction Escrow
Account (as defined below). In addition, Pledged Revenues (as defined below)
will be deposited as they are received by the Authority into the Operating
Account (as defined below). Assets maintained in the Construction Escrow
Account, the Construction Disbursement Account, the ▇▇▇▇▇ Property Improvements
Account and the Operating Account are owned beneficially by the Authority,
subject to the terms and conditions of this Agreement.
E. Purpose. The parties have entered into this Agreement to set forth
the conditions upon which, and the manner in which, funds will be disbursed from
(a) the Construction Disbursement Account to fund the Project, (b) the ▇▇▇▇▇
Property Improvements Account to fund the development of an access road and
certain related improvements to the ▇▇▇▇▇ Property (the "▇▇▇▇▇ Project"), (c)
the Construction Escrow Account to permit the Authority to fund cost overruns
with respect to the Project, and (d) all of the accounts established hereby for
the further purposes set forth herein.
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AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions.
1.1 Defined Terms. The terms defined in this Section
1 shall have the meanings herein specified:
"Additional Operating Revenue" means revenue generated by the
Authority, other than from disposition of its assets, but only to the extent
that such revenue has been deposited in the Collateral Accounts and is held by
the Authority, free and clear of any claims of any other Person whatsoever;
provided, however, that as of any date of measurement, Additional Operating
Revenue shall also include investment income which the Authority reasonably
determines will accrue on funds in the Collateral Accounts through the date that
the Authority reasonably anticipates that Substantial Completion will occur.
"Affiliate" has the meaning ascribed thereto in the Indenture.
"Authority Budget" means the Initial Authority Budget as the
Initial Authority Budget may be amended from time to time in accordance with
this Agreement.
"Authority's Closing Certificate" means an Officers'
Certificate of the Authority in the form attached hereto as Exhibit B.
"Authority Ordinance" means The River Rock Entertainment
Authority Act of 2003 duly and validly adopted by the Tribe.
"Available Construction Funds" means, with respect to the
Authority at any given time, the Original Allocation less the amount of
disbursements theretofore made from the Construction Disbursement Account.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Business Day" has the meaning ascribed thereto in the
Indenture.
"Cash Equivalents" has the meaning ascribed thereto in the
Indenture.
"Collateral" means all of the following:
(a) the Collateral Accounts;
(b) all cash, Cash Equivalents, instruments,
investments and other securities or Financial Assets at any time on deposit in
or credited to the Collateral Accounts;
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(c) the Pledged Revenues, whether now or hereafter
owned, existing, arising or acquired, wherever held or located, and whenever
received;
(d) each Operating Account and each other operating
account of the Authority in each Collection Bank;
(e) any other collateral under any of the Collateral
Documents; and
(f) all proceeds of any of the foregoing;
excluding, however, any Pledged Revenues and all proceeds therefrom released to
the Authority or the Tribe or to its order in accordance with the terms hereof
or pursuant to the terms of the Indenture.
"Collateral Documents" has the meaning ascribed thereto in the
Indenture.
"Collection Bank" means each bank into which the Authority
initially deposits Pledged Revenues upon receipt thereof.
"Construction Contracts" means the direct contracts between
the Authority and any Person pertaining to the construction of the Project or
the ▇▇▇▇▇ Project.
"Construction Expenses" means Project Costs incurred in
accordance with the Authority Budget, excluding, however, (a) any Pre-Issuance
Expenses, and (b) any Debt Financing Costs.
"Construction Period" means the period from the Issuance Date
to and including Substantial Completion.
"Construction Schedule" means a schedule describing the
sequencing of the components of work to be undertaken in connection with the
Project, which schedule (as the same may be amended) demonstrates that
Substantial Completion will occur on or before the Operating Deadline.
"Contractor" means a contractor or supplier of materials or
services in connection with the construction of the Project pursuant to a direct
contract with the Authority or contract assigned by the Tribe to the Authority.
"Control Agreement" means an agreement substantially in the
form of Exhibits K-1 or K-2 attached hereto.
"Debt Financing Costs" means all payments of principal,
interest and other amounts payable by the Authority from time to time under the
Indenture, and any other senior debt or subordinated debt, if any, incurred as
permitted by the terms of the Indenture.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Event of Default" means the occurrence of any of the
following specified events:
(a) The occurrence and continuance of an Event of
Default under the Indenture.
(b) The USB Disbursement Agent, after appropriate
consultation with the Authority, is unable to approve a Construction
Disbursement Request in excess of $100,000 due to the failure of the Authority
to satisfy the conditions precedent thereto set forth herein, including, without
limitation, the condition precedent that the Authority deliver the certificates
required under this Agreement, and such failure continues for thirty (30) days
after notice thereof without being cured.
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(c) Any time that the Available Construction Funds
are less than the Remaining Costs and such deficiency continues for a period of
thirty (30) days without being cured.
(d) The failure of the Authority to deliver any
material documents required to be delivered by the Authority pursuant to this
Agreement and any such failure continues for thirty (30) days after notice
thereof without being cured.
"Final Plans" means, with respect to any particular component
of the Project:
(a) the Plans for such component, if any, that have
been submitted to and approved by the Independent Construction Consultant; and
(b) to the extent Plans for such component have not
been submitted to and approved by the Independent Construction Consultant or to
the extent such Plans do not contain sufficient specificity to permit the
completion of such component, the Plans for such component to the extent such
Plans:
(i) have received final approval from all
governmental authorities required to approve such Plans prior to completion of
the component, if any;
(ii) contain sufficient specificity to
permit the completion of such component;
(iii) are consistent with constructing the
Project to include the Minimum Project;
(iv) have been signed by an architect
licensed to practice architecture in the State of California;
(v) call for construction of the Project
which will permit Substantial Completion to occur on or prior to the Operating
Deadline;
provided, however, that the Final Plans may be modified from time to time in
accordance with the terms hereof.
"Final Plans Amendment Certificate" means an Officers'
Certificate from the Authority in the form attached hereto as Exhibit I.
"GAAP" has the meaning ascribed thereto in the Indenture.
"Gaming Assets" has the meaning ascribed thereto in the
Indenture.
"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.
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"Hard Costs" means the costs and expenses in respect of
supplying goods, materials and labor for the construction of improvements
relating to the Project or other amounts payable pursuant to a Construction
Contract.
"Holders" means holders from time to time of the Senior Notes.
"IGRA" means the Indian Gaming Regulatory Act of 1988, PL
100-497, 25 U.S.C. ▇▇.▇▇. 2701 et seq., as same may, from time to time, be
amended.
"Indenture" means the Indenture dated as of the date hereof,
among the Authority, the Tribe and the Trustee, relating to the Senior Notes.
"Independent Construction Consultant" means ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc. and its successors and replacements, as designated by the Trustee.
"Initial Authority Budget" means the itemized schedules
setting forth on a line-item basis all of the estimated Project Costs attached
hereto as Exhibit H (except that the Initial Authority Budget shall not include
the Issuance Fees and Expenses).
"Initial Disbursements Certificate" means the Certificate
signed by the Disbursement Agent in the form attached hereto as Exhibit A.
"Intercreditor Agreement" has the meaning ascribed thereto in
the Indenture.
"Issuance Date" means the date of the Indenture.
"Issuance Fees and Expenses" means fees and expenses (a)
incurred by the Authority or the Tribe in connection with the issuance of the
Initial Senior Notes and (b) paid on or before the Issuance Date. The Issuance
Fees and Expenses are identified on Exhibit 1 to the Authority's Closing
Certificate as "Fees and Expenses."
"Knowledge" of the Authority means the actual knowledge of any
officer, director or management employee of the Authority, without duty of
inquiry.
"Land Development Expenses" means costs of constructing the
access road on the ▇▇▇▇▇ Property.
"Liquidity Requirement" means the amount of cash or Cash
Equivalents that is reasonably necessary at any date of determination to be
available in the Collateral Accounts to fund the Remaining Costs and other known
or reasonably anticipated contingencies.
"Material Construction Contract" means each Construction
Contract identified by the Authority to be material to the Project (which the
Authority agrees shall include each Construction Contract with a total contract
amount in excess of $100,000).
"Minimum Project" means three parking structures containing an
aggregate of not less than 1,350 parking spaces.
"Net Loss Proceeds" has the meaning ascribed thereto in the
Indenture.
"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.
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"Officers' Certificate" means a certificate signed by two
officers of the Authority, one of whom must be the chairperson, the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Authority.
"Operating Deadline" means fifteen (15) months from the date
of the Indenture.
"Operating Period" means the period commencing on Substantial
Completion of the Project and continuing until the date of termination of this
Agreement.
"Original Allocation" means the total amount of the Proceeds
deposited in the Construction Disbursement Account and the Construction Escrow
Account less (x) the Initial Disbursements listed in the Initial Disbursements
Certificate and (y) the Issuance Fees and Expenses.
"Permitted Investments" has the meaning ascribed thereto in
the Indenture.
"Permitted Liens" has the meaning ascribed thereto in the
Indenture.
"Person" has the meaning ascribed thereto in the Indenture.
"Plans" means all drawings, plans and specifications prepared
by or on behalf of the Authority, as amended or supplemented from time to time
in accordance with this Agreement, and, if required, submitted to and approved
by the appropriate regulatory authorities, which describe and show the Project
and the labor and materials necessary for the construction thereof.
"Pledge and Security Agreement" has the meaning ascribed
thereto in the Indenture.
"Pledged Revenues" means, whether now existing or hereafter
arising, and wherever located, all receipts, revenues, rents and Pledged
Revenues (as defined in the Tribal UCC) from:
(a) the operation of any portion of the Gaming
Business or Gaming Assets, including without limitation the Facility, including:
(i) receipts from (A) class II gaming and
class III gaming (as such terms are used in IGRA), (B) food, beverage,
restaurant and other concessions derived from the Facility, (C) parking derived
from the Facility, (D) the lease or sublease of space or equipment within, on or
at the Facility, (E) the disposition of all or any portion of the Facility, and
(F) any other activities carried on within the Facility; and
(ii) the net proceeds of business
interruption or delay in opening insurance (or its equivalent) obtained by or on
behalf of the Authority with respect to the Facility; and
(b) any other receipts from class II gaming and class
III gaming (as such terms are used in IGRA) that are conducted by or for the
Authority or the Tribe, or any Affiliates of either of them or on the Rancheria
or any other trust lands of the Tribe; and
(c) Net Loss Proceeds;
provided that in no event shall Pledged Revenues include (I) amounts collected
and paid out for a sales or excise tax imposed by a governmental authority
(other than the Tribe or any Affiliate of the Tribe) where such tax is billed to
the purchaser as a separate item and remitted by the Tribe or the Authority to
such governmental authority, (II) credits for the exchange of goods or
merchandise, (III) uncollected credit transactions written off as bad debt in
accordance with GAAP, (IV) any casualty insurance proceeds related to the
Facility (except for business interruption or delay in opening insurance or its
equivalent), any trust or rancheria lands or trust assets of the Tribe or the
Authority or (V) any revenues or receipts of any Person other than the
Authority, including revenues and receipts of subtenants that are not related
entities.
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"Preliminary Plans" means, with respect to any particular work
or improvement, the Plans for such work or improvement, if any, that are
described on Schedule 1 to the Authority's Closing Certificate.
"Project Cost Schedule" means an itemized schedule in the form
attached as Schedule 1 to Exhibit F hereto.
"Project Costs" means the costs to be incurred in connection
with the design, development and construction of the Project, including all
Construction Expenses and Debt Financing Costs.
"Remaining Costs" means, at any given time, the amount of
Construction Expenses (including Retainage Amounts) set forth in the Authority
Budget that remain unpaid at such time (including amounts that have not yet
accrued at such time).
"Retainage Amounts" means, at any given time, amounts that
have accrued and are owing under the terms of a Construction Contract for work
or services to the Authority already provided but which at such time (in
accordance with the terms of the Construction Contract) are being withheld from
payment to the Contractor thereunder until certain subsequent events (e.g.,
completion benchmarks) have been achieved.
"Senior Note Obligations" means any principal, interest,
premium (if any), penalties, fees, indemnification, reimbursements, damages and
other liabilities payable with respect to the Senior Notes pursuant to the
Indenture and any other obligations of the Authority pursuant to the Indenture
or the Collateral Documents.
"Soft Costs" means all costs and expenses (other than Hard
Costs) set forth in the Authority Budget.
"Subordinated Note" has the meaning ascribed thereto in the
Intercreditor Agreement.
"Substantial Completion" means, with respect to the Project
(or a specified component thereof) or the ▇▇▇▇▇ Project, as appropriate, that:
(a) all Liens (other than Permitted Liens) related to
the development, construction and equipping of, and beginning operations at, the
Project (or such component) or the ▇▇▇▇▇ Project, as appropriate, have been
discharged or, if payment is not yet due or if such payment is contested in good
faith by the Authority, sufficient funds remain in the Construction Disbursement
Account (as to the Project) or the ▇▇▇▇▇ Project Improvements Account (as to the
▇▇▇▇▇ Project) to discharge such Liens; and
(b) the Independent Construction Consultant shall
have delivered a certificate to the Authority and the Trustee certifying that
the Project (or such component) is substantially complete in all material
respects in accordance with the Final Plans and all applicable building laws,
ordinances and regulations.
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"Suspended Covenant" has the meaning ascribed thereto in the
Indenture.
"Total Budgeted Amount" with respect to any line item in the
Authority Budget at any given time means the total amount budgeted for such line
item in the Authority Budget at such time.
"Transaction Documents" means each of this Agreement, the
Indenture, the Senior Notes, the Pledge and Security Agreement and the Control
Agreements.
"Tribal UCC" means the Uniform Commercial Code as the same
may, from time to time, be in effect on the Rancheria.
"Trustee's Closing Certificate" means a closing certificate
from the Trustee in the form of Exhibit C attached hereto.
"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 assigned to such terms
in the Section of this Agreement listed opposite such terms in the right column
below:
Defined Term Section
------------ -------
AAA............................................................................................................13.5
▇▇▇▇▇ Property........................................................................................B of Recitals
Agreement..............................................................................................Introduction
Applicable Courts..............................................................................................13.4
Authority..............................................................................................Introduction
Authority Extraordinary Item Disbursement Certificate...........................................................4.3
Available Construction Funds Certificate........................................................................5.1
Cage Cash.....................................................................................................2.2.1
Construction Account Order....................................................................................2.5.2
Construction Accounts.........................................................................................2.5.2
Construction Cost Overruns....................................................................................4.2.4
Construction Disbursement Account.............................................................................2.2.1
Construction Disbursement Request .........................................................................4.2.1(a)
Construction Escrow Account...................................................................................2.2.1
Disbursement Agent.....................................................................................Introduction
▇▇▇▇▇ Project.........................................................................................E of Recitals
▇▇▇▇▇ Property........................................................................................B of Recitals
▇▇▇▇▇ Property Improvements Account...........................................................................2.2.1
Entitlement Order...............................................................................................2.4
Facility..............................................................................................B of Recitals
Financial Assets................................................................................................2.4
Indenture.............................................................................................A of Recitals
Independent Construction Consultant....................................................................Introduction
Initial Disbursements...........................................................................................4.1
Initial Senior Notes..................................................................................A of Recitals
Land Development Disbursement Request.........................................................................4.3.1
Obligations.....................................................................................................2.3
Operating Account.............................................................................................2.2.1
Operating Account Order.........................................................................................2.5
Permitted Claims...............................................................................................13.2
Proceeds..............................................................................................C of Recitals
Project...............................................................................................C of Recitals
Project Cost Schedule Certificate...............................................................................5.3
Rancheria.............................................................................................B of Recitals
Security Entitlements ..........................................................................................2.4
Senior Notes..........................................................................................A of Recitals
Substantial Completion Certificate (▇▇▇▇▇ Project)..............................................................4.3
Tribe..................................................................................................Introduction
Trustee................................................................................................Introduction
USB Disbursement Agent.................................................................................Introduction
WFB Disbursement Agent.................................................................................Introduction
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2. Appointment of Disbursement Agents; Establishment of Collateral
Accounts; Related Provisions.
2.1. Appointment of the Disbursement Agents. Each of the USB
Disbursement Agent and the WFB Disbursement Agent is hereby appointed by the
Authority and the Trustee as disbursement agent hereunder, and each Disbursement
Agent hereby agrees to act as such and to accept all cash, payments, other
amounts and Cash Equivalents to be delivered to or held by the Disbursement
Agent pursuant to the terms of this Agreement. Each Disbursement Agent shall
hold and safeguard the respective Collateral Accounts (and the cash, instruments
and securities on deposit therein) during the term of this Agreement and shall
treat the Collateral Accounts and the cash, instruments, and securities in the
Collateral Accounts as funds, instruments and securities pledged by the
Authority to the Trustee for the ratable benefit of the Holders to be held in
accordance with the provisions hereof.
2.2. Establishment of Collateral Accounts.
2.2.1 Establishment of Collateral Accounts. The USB
Disbursement Agent hereby establishes at its offices located at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ the following accounts, which shall be
maintained as special, segregated securities accounts at all times until such
accounts are closed as set forth in Section 4.4, unless earlier termination is
otherwise provided for herein:
---------------------------------------------------------------- -----------------------------------------------------
Account: Account Number:
---------------------------------------------------------------- -----------------------------------------------------
Construction Disbursement Account 743811001
---------------------------------------------------------------- -----------------------------------------------------
Construction Escrow Account 743811002
---------------------------------------------------------------- -----------------------------------------------------
▇▇▇▇▇ Property Improvements Account 743811003
---------------------------------------------------------------- -----------------------------------------------------
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The WFB Disbursement Agent hereby establishes at its
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, the
following account, which shall be maintained as a special, segregated securities
account at all times until such account is closed as set forth in Section 4.4,
unless earlier termination is otherwise provided for herein:
---------------------------------------------------------------- -----------------------------------------------------
Account: Account Number:
---------------------------------------------------------------- -----------------------------------------------------
Operating Account 4945092500
---------------------------------------------------------------- -----------------------------------------------------
The terms set forth in the left column above, as used in this Agreement, shall
be deemed to refer to the accounts having the account numbers listed in the
right column above or any substitute account selected in accordance with the
terms of this Agreement. The Construction Disbursement Account, the ▇▇▇▇▇
Property Improvements Account, the Construction Escrow Account and the Operating
Account are sometimes referred to collectively herein as the "Collateral
Accounts." Notwithstanding the foregoing, the Operating Account shall be
maintained at all times until the termination of this Agreement unless earlier
termination is otherwise provided for herein, and notwithstanding anything
contained in the Collateral Documents to the contrary, the Operating Account
shall contain at all times all cash and Cash Equivalents of the Authority (other
than an amount ("Cage Cash") not to exceed $5,000,000 which may be maintained at
the Facility), subject to the obligation of the Authority to deposit Pledged
Revenues as set forth in Section 6.1.1.
2.2.2 General. All moneys, investments and securities
at any time on deposit in any of the above-referenced Collateral Accounts shall
constitute trust funds to be held in the custody of the respective Disbursement
Agent for the purposes and on the terms set forth in this Agreement.
2.2.3 Net Loss Proceeds. Any Net Loss Proceeds
otherwise payable to the Authority shall be deposited into the Operating Account
for disposition in accordance with Section 4.19 of the Indenture.
2.3. Acknowledgement of Security Interest; Control. Pursuant
to the Pledge and Security Agreement and in reliance on the UCC and the Tribal
UCC, to secure the payment and performance of all covenants, agreements and
payment and other obligations of the Authority or the Tribe under the Indenture
and the Collateral Documents (the "Obligations"), the Authority has pledged to
create and has created in favor of the Trustee a security interest in and to the
Collateral Accounts, all cash, Cash Equivalents, instruments, investments and
securities at any time on deposit in the Collateral Accounts and all proceeds of
any of the foregoing. All cash, Cash Equivalents, instruments, investments and
securities at any time on deposit in any of the Collateral Accounts shall
constitute collateral security for the payment and performance by the Authority
of its obligations and shall at all times be subject to the control of the
Trustee, and shall be held in the custody of the respective Disbursement Agent
in trust for the purposes of, and on the terms set forth in, the Indenture and
this Agreement.
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2.4. Control of Collateral Accounts. Each Disbursement Agent
hereby agrees and confirms that it has established the Collateral Accounts as
set forth and defined in this Agreement. Each Disbursement Agent and the
Authority agree that (a) such Disbursement Agent is acting as a "securities
intermediary" (within the meaning of Section 8-102(14) of the UCC) with respect
to the Collateral Accounts and the "financial assets" (within the meaning of
Section 8-102(a)(9) of the UCC, the "Financial Assets") credited to the
Collateral Accounts; (b) each such Collateral Account established by the
respective Disbursement Agent is and will be maintained as a "securities
account" (within the meaning of Section 8-501 of the UCC); (c) the Authority is
an "entitlement holder" (within the meaning of Section 8-102(a)(7) of the UCC)
in respect of the Financial Assets credited to such Collateral Accounts and with
respect to such Collateral Account and the respective Disbursement Agent shall
so note in its records pertaining to such Financial Assets and Collateral
Accounts; and (d) all Financial Assets in registered form or payable to or to
the order of and credited to any such Collateral Account shall be registered in
the name of, payable to or to the order of, or specially endorsed to, the
respective Disbursement Agent, or in blank, or credited to another securities
account maintained in the name of the respective Disbursement Agent, as
applicable, and in no case will any Financial Asset credited to any such
Collateral Account be registered in the name of, payable to or to the order of,
or endorsed to, the Authority except to the extent the foregoing have been
subsequently endorsed by the Authority to the respective Disbursement Agent or
in blank. Each item of property (including a security, security entitlement,
investment property, instrument or obligation, share, participation, interest or
other property whatsoever) credited to any Collateral Account shall be treated
as a Financial Asset. Until this Agreement terminates in accordance with the
terms hereof, the Trustee shall have "control" (within the meaning of Section
8-106(d)(2)of the UCC) of the Authority's "security entitlements" (within the
meaning of Section 8-102(a)(17) of the UCC, "Security Entitlements") with
respect to the Collateral Accounts and the Financial Assets credited to the
Collateral Accounts. All property delivered to a Disbursement Agent by or on
behalf of the Authority pursuant to this Agreement will be promptly credited to
the respective Collateral Account and shall be treated as Financial Assets. If
at any time a Disbursement Agent shall receive from the Trustee any "entitlement
order" (within the meaning of Section 8-102(8) of the UCC, an "Entitlement
Order") relating to the Collateral Accounts or Financial Assets credited to the
Collateral Accounts, such Disbursement Agent shall comply with such Entitlement
Order without further consent by the Authority or any other Person. In the event
that a Disbursement Agent receives conflicting Entitlement Orders relating to
the Collateral Accounts or Financial Assets credited to the Collateral Accounts
from the Trustee and any other Person (including, without limitation, the
Authority), such Disbursement Agent shall comply with the Entitlement Orders
originated by the Trustee. Each of the Authority and the Disbursement Agents
agrees that it has not and will not execute and deliver, or otherwise become
bound by, any agreement under which it agrees with any Person other than the
Trustee (and, to the extent provided herein, the Authority) to comply with
Entitlement Orders originated by such Person relating to the Collateral Accounts
or Financial Assets credited to the Collateral Accounts. Except for the claims
and interests of the Trustee and the Authority in the Collateral Accounts and
the Financial Assets credited to the Collateral Accounts, neither the
Disbursement Agents nor the Authority knows of any claim to, or interest in, any
Collateral Account or Financial Assets credited to the Collateral Accounts. If
the Disbursement Agents or the Authority obtains actual knowledge that any
Person has asserted a lien, encumbrance or adverse claim against any of the
Collateral Accounts or Financial Assets credited to the Collateral Accounts,
such party will promptly notify the Trustee thereof. In the event that either of
the Disbursement Agents has or subsequently obtains by agreement, operation of
law or otherwise a lien or security interest in any Collateral Account, any
Security Entitlement carried therein or credited thereto or any Financial Asset
that is the subject of any such Security Entitlement, such Disbursement Agent
agrees that such lien or security interest shall be subordinate to the lien and
security interest of the Trustee. The Financial Assets standing to the credit of
the Collateral Accounts will not be subject to deduction, set-off, banker's lien
or any other right, and the Disbursement Agents shall not grant, permit or
consent to any other right or interest in such Financial Assets, in favor of any
Person (including the Disbursement Agents) other than the Trustee. Regardless of
any provision in any other agreement, for purposes of the UCC, the State of New
York shall be deemed to be the Disbursement Agents' jurisdiction (within the
meaning of Section 8-110 of the UCC). The Collateral Accounts held by the
Disbursement Agents shall be subject to the internal laws of the State of New
York except as specified in Section 12.7.
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2.5. Control of Specific Collateral Accounts.
2.5.1 Control of Operating Account. For so long as
this Agreement remains in effect, the WFB Disbursement Agent waives its rights
of chargeback, setoff (including such right of setoff as set forth in Section
9-340 of the UCC) and/or banker's lien against the Operating Account. Until this
Agreement terminates in accordance with the terms hereof, the Trustee shall have
"control" (within the meaning of Section 9-104 of the UCC) of the Operating
Account. If at any time the WFB Disbursement Agent shall receive from the
Trustee any instruction directing disposition of any funds in the Operating
Account (an "Operating Account Order"), the WFB Disbursement Agent shall comply
with such Operating Account Order without further consent by the Authority or
any other Person. In the event that the WFB Disbursement Agent receives
conflicting Operating Account Orders relating to the Operating Account, the WFB
Disbursement Agent shall comply with the Operating Account Orders originated by
the Trustee. Each of the Authority and the WFB Disbursement Agent agrees that it
has not and will not execute and deliver, or otherwise become bound by, any
agreement under which it agrees with any Person other than the Trustee to comply
with Operating Account Orders originated by such Person relating to the
Operating Account.
2.5.2 Control of Construction Disbursement Account,
▇▇▇▇▇ Property Improvements Account and Construction Escrow Account. The USB
Disbursement Agent hereby agrees and confirms that it has established the
Construction Disbursement Account, the ▇▇▇▇▇ Property Improvements Account and
the Construction Escrow Account (collectively, the "Construction Accounts") as
set forth and defined in this Agreement. For so long as this Agreement remains
in effect, the USB Disbursement Agent waives its rights of chargeback, setoff
(including such right of setoff as set forth in Section 9-340 of the UCC) and/or
banker's lien against the Construction Accounts. Until this Agreement terminates
in accordance with the terms hereof, the Trustee shall have "control" (within
the meaning of Section 9-104 of the UCC) of the Construction Accounts. If at any
time the USB Disbursement Agent shall receive from the Trustee any instruction
directing disposition of any funds in the Construction Accounts (a "Construction
Account Order"), the USB Disbursement Agent shall comply with such Construction
Account Order without further consent by the Authority or any other Person. In
the event that the USB Disbursement Agent receives conflicting Construction
Account Orders relating to the Construction Accounts, the USB Disbursement Agent
shall comply with the Construction Account Orders originated by the Trustee.
Each of the Authority and the USB Disbursement Agent agrees that it has not and
will not execute and deliver, or otherwise become bound by, any agreement under
which it agrees with any Person other than the Trustee to comply with
Construction Account Orders originated by such Person relating to the
Construction Accounts.
2.6 The Authority's Rights. The Authority shall not have any
rights or powers with respect to any amounts in the Collateral Accounts or any
part thereof except (a) as provided in Section 2.7 and (b) the right to have
such amounts applied in accordance with the provisions of this Agreement, the
Indenture, the Control Agreement (Operating Account) and the Control Agreement
(Construction Accounts).
2.7 Cash Equivalents. The Disbursement Agent shall invest any
money held in any Collateral Account in such Permitted Investments as may be
directed in writing by the Authority from time to time. In the event that a
Disbursement Agent has not received any such written directions, such
Disbursement Agent shall be under no obligation to invest any such money. Any
income or gain realized as a result of any such investment shall be held as part
of the applicable Collateral Account and reinvested as provided in this
Agreement until released in compliance with the terms of this Agreement. Any
income tax payable on account of any such income or gain shall be paid by the
Authority. The Disbursement Agents shall have no liability for any loss
resulting from any such investment other than solely by reason of its willful
misconduct or gross negligence or bad faith or from failure to exercise such
care in the custody of any such investments as it does for accounts held by
other customers or in the custody of its own investments. Any such investment
may be sold (without regard to maturity date) by the respective Disbursement
Agent as directed in writing by the Authority to make any distribution required
by this Agreement. In addition, if an Event of Default has occurred and is
continuing, the respective Disbursement Agent shall liquidate and sell any
investment if so directed in writing by the Trustee, and shall invest any money
held in any Collateral Account only as directed by the Trustee.
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2.8 Remedies. Notwithstanding any other provision of this
Agreement, in addition to the rights provided hereunder and at law or in equity
and to any rights and remedies provided in the Collateral Documents, upon an
Event of Default and for so long as such Event of Default continues, the
Disbursement Agents shall disburse funds from the Collateral Accounts only as
directed by the Trustee pursuant to Entitlement Orders or Operating Account
Orders, as the case may be, and the Trustee may exercise any or all of the
following remedies, successively or concurrently and in such order as the
Trustee elects:
(a) The Trustee may deliver some or all of the
notices contemplated by Section 2.4, 2.5, 2.7 or 2.8.
(b) Any cash that is Collateral held by a
Disbursement Agent and all cash proceeds received by such Disbursement Agent in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral shall be applied (after payment of any and all amounts
payable to such Disbursement Agent pursuant to the Collateral Documents) against
the Obligations for the benefit of the Trustee. Any surplus of such cash or cash
proceeds held by a Disbursement Agent and remaining after payment in full of all
the Obligations shall be paid over to the Authority or to whomsoever may be
lawfully entitled to receive such surplus or as a court of competent
jurisdiction may direct.
(c) The Authority hereby irrevocably appoints the
Trustee as its attorney-in-fact effective upon and during the continuance of an
Event of Default with full power of substitution to do any act which the
Authority is obligated hereby to do, to exercise such rights as the Authority
might exercise with respect to the Collateral and to execute and file in the
Authority's name any financing statements and amendments thereto required or
advisable to protect the Trustee's rights or security interest hereunder and
under any other Collateral Documents. Such appointment and power of attorney
shall be irrevocable and coupled with an interest. The Trustee shall exercise
all remedies under this Section 2.8 in accordance with the terms of the
Indenture.
2.9 Waiver of Set-Off Rights. Each Disbursement Agent hereby
acknowledges the Trustee's security interests as set forth above and under any
other Collateral Documents and waives any security interest or other lien in the
Collateral and further waives any right to set off the Collateral now or in the
future against any indebtedness of the Authority. The waivers set forth in this
Section 2.9 are of rights which may exist now or hereafter in favor of each
Disbursement Agent in its individual capacity, and not of any such rights which
may exist now or hereafter in favor of such Disbursement Agent in its capacity
as Disbursement Agent for the Trustee. Nothing in this Section 2.9 shall be
construed as waiving, limiting or diminishing any rights of the Trustee
vis-a-vis the Authority.
2.10 Cooperation. Each Disbursement Agent is hereby directed
to cooperate with the Trustee in the exercise of its rights in the Collateral
provided for herein. The Trustee may take all necessary action to preserve and
protect the security interests created hereby and by the other Collateral
Documents as a lien and encumbrance upon such Collateral and, upon demand, the
Authority and each Disbursement Agent will execute and deliver to the Trustee
such instruments and documents as the Trustee may reasonably deem necessary or
advisable to confirm or perfect the rights of the Trustee under this Agreement
and the Trustee's interest in the Collateral.
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3. Certain Responsibilities of Disbursement Agents and Independent
Construction Consultant.
3.1 Disbursements from the Collateral Accounts. Each
Disbursement Agent shall disburse funds from the Collateral Accounts only upon
satisfaction of the applicable conditions to disbursement set forth herein. Upon
satisfaction of the applicable conditions to disbursement set forth herein, each
Disbursement Agent shall disburse funds from the applicable Collateral Account
as specified in the applicable disbursement request or certificate.
3.2 Transfer of Funds at Direction of Trustee. Notwithstanding
anything to the contrary in this Agreement, from and after the date on which a
Disbursement Agent receives notice from the Trustee or the Authority that an
Event of Default (as defined in the Indenture) exists until such time as such
Disbursement Agent receives notice from the Trustee that such Event of Default
no longer exists, such Disbursement Agent shall only withdraw or transfer
amounts in any Collateral Account at the direction of the Trustee pursuant to
Entitlement Orders or Operating Account Orders, as the case may be; provided,
however, that during the pendency of any Event of Default, the Trustee shall
continue to authorize disbursements from the Operating Account at the request of
the Authority to pay Operating Expenses (as defined in the Indenture), unless
the holders of 25% or more in aggregate principal amount of the Senior Notes
direct the Trustee not to authorize such disbursements.
3.3 Payment of Compensation.
3.3.1 Independent Construction Consultant's
Compensation. The Independent Construction Consultant shall deliver to the USB
Disbursement Agent, on or prior to the last Business Day of each month up
through and including the month following Substantial Completion, an invoice
setting forth the amounts owed to it as compensation for its services during
such month and reasonable documentation of its out-of-pocket expenses incurred
in connection with such services. On the first Business Day of each month
following the month in which such invoice was received (except for the initial
payment, which shall be disbursed as set forth below), the USB Disbursement
Agent shall disburse funds to the Independent Construction Consultant from the
Construction Disbursement Account as compensation for services performed by the
Independent Construction Consultant during the previous month, in a reasonable
and customary amount for each hour of the Independent Construction Consultant's
services as set forth on such invoice (which amount shall not exceed a
reasonable and customary amount for such services during any calendar quarter),
plus the total amount of all reasonable out-of-pocket expenses of the
Independent Construction Consultant incurred in connection with the performance
of its duties hereunder during such month, unless the Trustee notifies the USB
Disbursement Agent and the Independent Construction Consultant that the
Independent Construction Consultant is in default.
3.3.2 Procedure. The payments contemplated by this
Section 3.3 shall be made without the requirement of obtaining any further
consent or action on the part of the Authority with respect to such payments.
The initial payments pursuant to this Section 3.3 shall be made as promptly as
practicable following the initial deposits into the Construction Disbursement
Account but prorated for the partial month. Disbursements for each subsequent
calendar month shall be made on the first day of each such subsequent calendar
month. The final payments pursuant to this Section 3.3 shall also be prorated if
for a partial month.
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3.4 Periodic Review.
3.4.1 Review by USB Disbursement Agent. The USB
Disbursement Agent shall exercise commercially reasonable efforts and utilize
commercially prudent practices in the performance of its duties hereunder
consistent with those of similar institutions holding similar collateral,
administering similar construction loans and disbursing similar disbursement
control funds. Commencing upon execution and delivery hereof, the USB
Disbursement Agent shall have the right, but shall have no obligation, to meet
periodically at reasonable times upon reasonable advance notice with
representatives of the Trustee, the Authority, the Independent Construction
Consultant and such other employees, consultants or agents as the USB
Disbursement Agent shall reasonably request to be present for such meetings. In
addition, the USB Disbursement Agent shall have the right, but shall have no
obligation, at reasonable times during customary business hours and at
reasonable intervals upon prior notice to review, to the extent it deems
reasonably necessary or appropriate to permit it to perform its duties
hereunder, all information (including Construction Contracts) supporting any
Disbursement Request and any certificates in support of any of the foregoing.
The USB Disbursement Agent shall be entitled to examine, copy and make extracts
of the books, records, accounting data and other documents of the Authority
which are reasonably necessary or appropriate to permit it to perform its duties
hereunder, including, without limitation, bills of sale, statements, receipts,
contracts or agreements, which relate to any materials, fixtures or articles
incorporated into the Project. The rights of the USB Disbursement Agent under
this Section 3.4.1 shall not be construed as an obligation, it being understood
that the USB Disbursement Agent's duty is limited to act upon certificates and
draw requests submitted by the Authority and the Trustee hereunder.
3.4.2 Review by Independent Construction Consultant.
The Independent Construction Consultant shall exercise commercially reasonable
efforts and utilize commercially prudent practices in the performance of its
duties hereunder consistent with those of similar institutions disbursing
disbursement control funds and reviewing construction progress. Commencing upon
execution and delivery hereof, the Independent Construction Consultant shall
have the right to meet periodically at reasonable times during customary
business hours and at reasonable intervals, however no less frequently than
monthly, with representatives of the Authority, the Architect and such other
employees, consultants or agents as the Independent Construction Consultant
shall reasonably request to be present for such meetings. The Independent
Construction Consultant may perform such inspections of the Rancheria, the
Facility and the Project as it deems reasonably necessary or appropriate in the
performance of its duties hereunder, however no less frequently than monthly. In
addition, the Independent Construction Consultant shall have the right at
reasonable times during customary business hours upon prior notice to review, to
the extent it deems reasonably necessary or appropriate to permit it to perform
its duties hereunder, all information (including Construction Contracts)
supporting the amendments to the Authority Budget, amendments to any
Construction Contracts, any Construction Disbursement Request and any
certificates in support of any of the foregoing, to inspect materials stored on
the Rancheria, the Facility and the Project, at off-site facilities where
materials designated for use in the Project are stored, to review the insurance
required pursuant to the terms of the Indenture, and to examine the Plans and
all shop drawings relating to the Project. The Independent Construction
Consultant is authorized to contact any payee for purposes of confirming receipt
of progress payments. The Independent Construction Consultant shall be entitled
to examine, copy and make extracts of the books, records, accounting data and
other documents of the Authority relating to the construction of the Project,
including, without limitation, bills of sale, statements, receipts, conditional
and unconditional lien releases, contracts or agreements, which relate to any
materials, fixtures or articles incorporated into the Project. From time to
time, at the request of the Independent Construction Consultant, the Authority
shall make available to the Independent Construction Consultant a Project Cost
Schedule and/or the Construction Schedule for the Project. The Authority agrees
to reasonably cooperate with the Independent Construction Consultant in
assisting the Independent Construction Consultant to perform its duties
hereunder and to take such further steps as the Independent Construction
Consultant reasonably may request to facilitate the Independent Construction
Consultant's performance of its obligations hereunder. Notwithstanding anything
contained herein to the contrary, the Independent Construction Consultant shall
have no obligations or responsibilities with respect to the development of the
access road on the ▇▇▇▇▇ Property.
-15-
4. Disbursements During Construction Period.
4.1 Initial Disbursements from the Construction Disbursement
Account. Upon satisfaction of the conditions described below in this Section
4.1, the USB Disbursement Agent shall make the disbursements (the "Initial
Disbursements") described in the Initial Disbursements Certificate attached
hereto as Exhibit A (the "Initial Disbursements Certificate") from the
Construction Disbursement Account. The conditions to the Initial Disbursements
shall consist of the following:
(a) the USB Disbursement Agent shall have received
the Original Allocation;
(b) the USB Disbursement Agent shall have received
the Initial Disbursements Certificate; and
(c) the USB Disbursement Agent shall have received
the Authority's Closing Certificate and the Trustee's Closing Certificate; and
(d) no Default or Event of Default shall be then
pending.
4.2 Subsequent Disbursements from the Construction
Disbursement Account and Construction Escrow Account.
4.2.1 Disbursement Requests.
(a) The Authority shall have the right from
time to time during the Construction Period to submit to the USB Disbursement
Agent a request for the disbursement of funds from the Construction Disbursement
Account substantially in the form of Exhibit D hereto (a "Construction
Disbursement Request"), together with the exhibits attached thereto, as further
described below. The USB Disbursement Agent shall approve any Construction
Disbursement Request that satisfies each of the conditions set forth in Section
4.2.2, provided that each of the conditions in Section 4.1 has been and
continues to be satisfied as of such time. The USB Disbursement Agent shall
notify the Authority and the Trustee in writing as soon as reasonably possible
(and in any event within two Business Days after the USB Disbursement Agent
receives any Construction Disbursement Request) if any Construction Disbursement
Request is disapproved and the reason(s) therefor. The Authority may submit
Construction Disbursement Requests no more often than weekly.
(b) Provided that a Construction
Disbursement Request satisfies the requirements of Section 4.2.2, within two
Business Days following submission of a Construction Disbursement Request, the
USB Disbursement Agent shall disburse to the Operating Account the funds
requested in such Construction Disbursement Request. The Authority shall
withdraw funds from the Construction Disbursement Account and write checks
against such funds from the Operating Account solely for the purpose of paying
Construction Expenses identified on such Construction Disbursement Request.
-16-
(c) The Trustee may waive any condition to a
disbursement requested in a Construction Disbursement Request unless the Trustee
has been directed not to waive such condition by the holders of at least 25% in
principal amount of the Senior Notes then outstanding.
4.2.2 Additional Conditions to Subsequent
Disbursements from the Construction Disbursement Account. The USB Disbursement
Agent's approval of any disbursements from the Construction Disbursement
Account, other than the Initial Disbursements, shall be subject to the following
conditions in addition to the conditions set forth in Section 4.2.1 above. Upon
satisfaction of the conditions described below and in Section 4.2.1 above, the
USB Disbursement Agent shall make the disbursements described in the
corresponding Construction Disbursement Request:
(a) The Authority shall have submitted to
the USB Disbursement Agent a Construction Disbursement Request as provided for
herein pertaining to the amounts requested for disbursement, together with a
completed Exhibit 1 thereto substantially in the form contemplated thereby and
the certification of the Independent Construction Consultant substantially in
the form of Exhibit 2 to the Construction Disbursement Request to the extent
required pursuant to the terms of the Construction Disbursement Request;
(b) Each of the Authority and the
Independent Construction Consultant shall have submitted to the USB Disbursement
Agent a certification that the Liquidity Requirement shall have been satisfied
through the date of the Construction Disbursement Request.
(c) The USB Disbursement Agent and the
Independent Construction Consultant shall have received copies of all
Construction Contracts (and all amendments thereto) executed as of the date of
any Construction Disbursement Request and, with respect to each Material
Construction Contract executed on or before the date of such Construction
Disbursement Request, copies of such performance and payment bonds as the
Authority may require to be provided to the Authority pursuant to such Material
Construction Contract. Such bonds shall name the Authority and the Trustee as
co-obligees and shall be in full force and effect. The USB Disbursement Agent
shall rely upon the certification of the Authority set forth in the Construction
Disbursement Request to establish satisfaction of this condition;
(d) The Construction Disbursement Request on
its face has been completed as to the information required therein and the
required attachments, if any, are attached;
(e) The USB Disbursement Agent shall not be
aware of any material error, inaccuracy, misstatement or omission of fact in any
Construction Disbursement Request or an exhibit or attachment thereto or
information provided by the Authority upon the request of the USB Disbursement
Agent; and
(f) The USB Disbursement Agent is not aware
(solely from the facts set forth in any Disbursement Request or any certificate
from the Independent Construction Consultant or any notice from the Trustee or
the Authority) that an Event of Default exists and is continuing hereunder.
4.2.3 Non-Satisfaction of Conditions. In the event
that the USB Disbursement Agent determines that condition (f) of Section 4.2.2
described above is not satisfied in respect of any Construction Disbursement
Request and so long as such condition is not satisfied, the USB Disbursement
Agent shall not authorize any disbursement of funds from the Construction
Disbursement Account pursuant to a Construction Disbursement Request; provided,
however, that the following payments may be made by the USB Disbursement Agent:
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(a) if all other conditions in Section 4.1
and Section 4.2.2 hereof are met, payments for work completed or materials
purchased on or prior to the date that the USB Disbursement Agent determined
that condition (f) of Section 4.2.2 was not satisfied and has so notified the
Authority in writing;
(b) payments not to exceed $1,000,000 in the
aggregate to prevent the condition of the Project from deteriorating or to
preserve any work completed as certified to be reasonably necessary or advisable
by the Independent Construction Consultant and the Authority; and
(c) if such condition continues for a period
of three consecutive months or more, at the request of the Authority, Retainage
Amounts for the portion of the Project completed; provided, however, that the
Authority and the Independent Construction Consultant certify that the
conditions for paying such amounts (other than completion of the Project) are
met.
4.2.4 Disbursements from Construction Escrow Account.
In the event all of the funds in the Construction Disbursement Account have been
disbursed in accordance with the provisions of Sections 4.2.1 and 4.2.2 above,
but subject to the provisions of Section 4.2.3 above, the Authority shall have
the right from time to time during the Construction Period to submit to the USB
Disbursement Agent a request for the disbursement of funds from the Construction
Escrow Account to fund Construction Expenses that exceed the amounts set forth
in the Authority Budget for such Construction Expenses ("Construction Cost
Overruns"), together with the exhibits attached thereto. Such request shall be
supported by a certificate from the Independent Construction Consultant stating
the amount of the Construction Cost Overruns and confirming that the amount
requested has been incurred for legitimate Construction Expenses and that
following disbursement pursuant to such request the Available Construction Funds
will exceed the Remaining Costs. In addition to the foregoing:
(a) If no Default or Event of Default has
occurred and is then continuing or if the Authority shall neither have requested
nor received funds for Construction Cost Overruns from the Construction Escrow
Account on or before the 45th day (or such later date upon which all pending
Defaults or Events of Default have been cured) following Substantial Completion
of the first parking structure comprising a portion of the Project, the
Authority shall, pursuant to an Officers' Certificate (First Phase) in the form
of Exhibit J-1 hereto, instruct the USB Disbursement Agent to disburse an amount
equal to $5,000,000 to the holder of the Subordinated Note for application
against the then-outstanding principal balance thereof in accordance with the
terms of the Intercreditor Agreement; and
(b) If no Default or Event of Default has
occurred and is then continuing and if any funds remain in the Construction
Escrow Account on the 75th day (or such later date upon which all pending
Defaults or Events of Default have been cured) following Substantial Completion
of the Project, the Authority shall, pursuant to an Officers' Certificate
(Second Phase) in the form of Exhibit J-2 hereto, instruct the USB Disbursement
Agent to disburse an amount equal to the lesser of $10,000,000 or the balance of
the funds remaining in the Construction Escrow Account to the holder of the
Subordinated Note for application against the then-outstanding principal balance
thereof in accordance with the terms of the Intercreditor Agreement, in either
case reduced by any disbursement made pursuant to the preceding paragraph (a);
provided, however, that in no event shall the holder of the Subordinated Note be
entitled to receive any amount in excess of the balance of the Subordinated Note
after reduction by payment from any and all sources and provided further that
such excess, if any, shall be transferred to the Operating Account.
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4.2.5 Final Disbursement from Construction Escrow
Account. In the event any balance remains in the Construction Escrow Account
(after payment to the holder of the Subordinated Note in accordance with Section
4.2.4(b) above) on the 90th day following Substantial Completion of the Project,
the Authority shall have the right to submit to the USB Disbursement Agent a
request for the disbursement of funds from the Construction Escrow Account equal
to the balance then remaining therein, together with (a) an Officers'
Certificate in the form of Exhibit J-3 hereto (a "Substantial Completion
Certificate") to the effect that (i) Substantial Completion of the Project has
occurred at least 90 days prior to the date of the certification, (ii) all
amounts required to be paid to Contractors in connection with achieving
Substantial Completion of the Project have been paid, and (iii) there are no
mechanic's liens or other liens, charges or orders filed against the Facility or
the Project or any portion thereof by any Contractor or any other party that
have not been discharged of record or bonded other than Permitted Liens; and (b)
a certificate of the Independent Construction Consultant confirming the factual
certifications described in clause (a) above. The Disbursement Agent shall,
after receiving such request but subject to the payments to the holder of the
Subordinated Note required under Section 4.2.4, transfer the balance in the
Construction Escrow Account to the Operating Account.
4.3 Disbursements from ▇▇▇▇▇ Property Improvements Account.
4.3.1 Land Development Disbursement Requests.
(a) The Authority shall have the right from
time to time during the Construction Period to submit to the USB Disbursement
Agent a request for the disbursement of funds from the Land Development
Disbursement Account substantially in the form of Exhibit L hereto (a "Land
Development Disbursement Request"), together with the exhibits attached thereto,
as further described below. The USB Disbursement Agent shall approve any Land
Development Disbursement Request that satisfies each of the conditions set forth
in Section 4.3.2, provided that each of the conditions in Section 4.1 has been
and continues to be satisfied as of such time. The USB Disbursement Agent shall
notify the Authority and the Trustee in writing as soon as reasonably possible
(and in any event within two Business Days after the USB Disbursement Agent
receives any Land Development Disbursement Request) if any Land Development
Disbursement Request is disapproved and the reason(s) therefor. The Authority
may submit Land Development Disbursement Requests no more often than weekly.
(b) Provided that a Land Development
Disbursement Request satisfies the requirements of Section 4.3.2, within two
Business Days following submission of a Land Development Disbursement Request,
the USB Disbursement Agent shall disburse to the Operating Account the funds
requested in such Land Development Disbursement Request. The Authority shall
withdraw funds from the Land Development Disbursement Account and write checks
against such funds from the Operating Account solely for the purpose of paying
Land Development Expenses identified on such Land Development Disbursement
Request.
(c) The Trustee may waive any condition to a
disbursement requested in a Land Development Disbursement Request unless the
Trustee has been directed not to waive such condition by the holders of at least
25% in principal amount of the Senior Notes then outstanding.
4.3.2 Additional Conditions to Disbursements from the
Land Development Disbursement Account. The USB Disbursement Agent's approval of
any disbursements from the Land Development Disbursement Account shall be
subject to the following conditions in addition to the conditions set forth in
Section 4.3.1 above. Upon satisfaction of the conditions described below and in
Section 4.3.1 above, the USB Disbursement Agent shall make the disbursements
described in the corresponding Land Development Disbursement Request:
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(a) The Authority shall have submitted to
the USB Disbursement Agent a Land Development Disbursement Request as provided
for herein pertaining to the amounts requested for disbursement, together with a
completed Exhibit 1 thereto substantially in the form contemplated thereby, to
the extent required pursuant to the terms of the Land Development Disbursement
Request;
(b) The USB Disbursement Agent shall have
received copies of all Construction Contracts (and all amendments thereto)
executed as of the date of any Land Development Disbursement Request and, with
respect to each Material Construction Contract executed on or before the date of
such Land Development Disbursement Request, copies of such performance and
payment bonds as the Authority may require to be provided to the Authority
pursuant to such Material Construction Contract. Such bonds shall name the
Authority and the Trustee as co-obligees and shall be in full force and effect.
The USB Disbursement Agent shall rely upon the certification of the Authority
set forth in the Land Development Disbursement Request to establish satisfaction
of this condition;
(c) The Land Development Disbursement
Request on its face has been completed as to the information required therein
and the required attachments, if any, are attached;
(d) The USB Disbursement Agent shall not be
aware of any material error, inaccuracy, misstatement or omission of fact in any
Land Development Disbursement Request or an exhibit or attachment thereto or
information provided by the Authority upon the request of the USB Disbursement
Agent; and
(e) The USB Disbursement Agent is not aware
(solely from the facts set forth in any Land Development Disbursement Request or
any notice from the Trustee or the Authority) that an Event of Default exists
and is continuing hereunder.
4.3.3 Non-Satisfaction of Conditions. In the event
that the USB Disbursement Agent determines that condition (e) of Section 4.3.2
described above is not satisfied in respect of any Land Development Disbursement
Request and so long as such condition is not satisfied, the USB Disbursement
Agent shall not authorize any disbursement of funds from the Land Development
Disbursement Account pursuant to a Land Development Disbursement Request;
provided, however, that the following payments may be made by the USB
Disbursement Agent:
(a) if all other conditions in Section 4.1
and Section 4.3.2 hereof are met, payments for work completed or materials
purchased on or prior to the date that the USB Disbursement Agent determined
that condition (e) of Section 4.3.2 was not satisfied and has so notified the
Authority in writing;
(b) Payments not to exceed $100,000 in the
aggregate to prevent the condition of the access road from deteriorating or to
preserve any work completed as certified to be reasonably necessary or advisable
by the Authority; and
(c) if such condition continues for a period
of three consecutive months or more, at the request of the Authority, Retainage
Amounts for the portion of the access road completed; provided, however, that
the Authority certifies that the conditions for paying such amounts (other than
completion of the access road) are met.
4.3.4 Final Disbursement from Land Development
Disbursement Account. In the event any balance remains in the Land Development
Disbursement Account on the 90th day following Substantial Completion of the
▇▇▇▇▇ Project, the Authority shall have the right to submit to the USB
Disbursement Agent a request for the disbursement of funds from the Land
Development Disbursement Account equal to the balance then remaining therein,
together with (a) an Officers' Certificate in the form of Exhibit J-4 hereto (a
"Substantial Completion Certificate (▇▇▇▇▇ Project)") to the effect that (i)
Substantial Completion of the ▇▇▇▇▇ Project has occurred at least 90 days prior
to the date of the certification, (ii) all amounts required to be paid to
Contractors in connection with achieving Substantial Completion of the ▇▇▇▇▇
Project have been paid, and (iii) there are no mechanic's liens or other liens,
charges or orders filed against the Facility or the ▇▇▇▇▇ Property or any
portion thereof by any Contractor or any other party that have not been
discharged of record or bonded other than Permitted Liens. The Disbursement
Agent shall, after receiving such request transfer the balance in the Land
Development Disbursement Account to the Operating Account.
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5. Certain Construction Period Covenants.
5.1 Available Construction Funds Certificate. Concurrently
with the submission of any Construction Disbursement Request, the Authority
shall submit an Officers' Certificate in the form of Exhibit E hereto (an
"Available Construction Funds Certificate"), to the USB Disbursement Agent and
the Trustee showing the amount of Available Construction Funds.
5.2 Construction Cost Overruns. The Authority covenants to
cure any anticipated Construction Cost Overrun for any line item on the
Authority Budget (taking into account any applicable reserves which have been
allocated to such line item by an amendment to the Authority Budget) or for the
Project as a whole within ten days after the Authority becomes aware of any such
anticipated Construction Cost Overrun by:
(a) providing sufficient funds to cover in full such
Construction Cost Overrun from previously unallocated Available Construction
Funds or Additional Operating Revenue (but in each case only to the extent that
the same have not previously been expended or dedicated (including Retainage
Amounts) to the payment of items contained in the Authority Budget); and/or
(b) with respect to a Construction Cost Overrun as to
a particular line item, effecting an amendment to the Authority Budget to
dedicate such funds to the line item in question; and, following the
disbursement of all funds in the Construction Escrow Account, by complying with
the requirements of Section 4.2.4 above.
5.3 Project Cost Schedule Certificate. The Authority shall
submit an Officers' Certificate in the form of Exhibit F (a "Project Cost
Schedule Certificate") to the Independent Construction Consultant within five
(5) Business Days following the delivery of a written request for the same by
the Independent Construction Consultant (but no more frequently than once per
calendar month). Each Project Cost Schedule Certificate shall include a Project
Cost Schedule dated as of the first Business Day of the month in which such
Project Cost Schedule Certificate is delivered and shall set forth a calculation
certified by the Authority of the Remaining Costs and the Available Construction
Funds as of such date. In addition, the Authority shall deliver to the
Independent Construction Consultant any backup documentation or other
information with respect to the items on the Project Cost Schedule from time to
time as reasonably requested by the Independent Construction Consultant.
5.4 Final Plans. The Authority shall not construct or permit
to be constructed any portion of the Project except in substantial conformance
with the Final Plans. The Authority may modify the Final Plans, or cause
Preliminary Plans to become Final Plans, only if such Final Plans, as amended,
or Preliminary Plans which will become Final Plans have been delivered to the
Independent Construction Consultant together with a Final Plans Amendment
Certificate in the form of Exhibit I delivered to the USB Disbursement Agent.
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5.5 Amendment to Authority Budget. The Authority shall not
exceed the Authority Budget without the prior written consent of the USB
Disbursement Agent and the Independent Construction Consultant, which consent
shall not be unreasonably withheld, conditioned or delayed. The Authority may
modify the Authority Budget only if the Authority Budget as so modified shall
have been delivered to the Independent Construction Consultant together with an
Authority Budget Amendment Certificate in the form of Exhibit G delivered to the
USB Disbursement Agent.
6. Certain Operating Period Covenants.
6.1 Deposit of Pledged Revenues Other Than Cage Cash.
6.1.1 Transfer to WFB Disbursement Agent. The
Authority at its own expense shall cause all Pledged Revenues other than Cage
Cash received from the operation of the Facility and all Net Loss Proceeds to be
transferred to the Operating Account on the next business day following receipt.
6.1.2 Control Agreement. The Authority shall ensure
that the Collateral Accounts are maintained at one or more banks that are
chartered by the State of California or the Government of the United States of
America and not an Affiliate of the Authority, the Tribe or any member of the
Tribe. To effect the foregoing transfers, and to perfect the Trustee's security
interest in the Pledged Revenues held by the WFB Disbursement Agent, before
depositing any Pledged Revenues in the Operating Account, the Authority shall
deliver to WFB Disbursement Agent a completed and fully executed Control
Agreement among the Authority, the Trustee and the WFB Disbursement Agent
substantially in the form attached hereto as Exhibit K-2 (or in such other form
as may be reasonably acceptable to the Trustee). If the Authority receives any
amount that should have been deposited in the Operating Account as provided in
this Agreement, the Authority shall hold such amount in trust for the benefit of
the WFB Disbursement Agent, shall not commingle any such amounts with any of its
funds or other property and shall immediately transfer such amounts to the WFB
Disbursement Agent. The Authority shall cause all Pledged Revenues other than
Cage Cash to be deposited in the Operating Account as described in the Control
Agreement for the WFB Disbursement Agent.
6.1.3 Discretionary Deposits. The Authority may, at
any time, (a) elect to deposit directly with the WFB Disbursement Agent, for
deposit into the Operating Account (as requested by the Authority in writing)
all amounts not otherwise required to be deposited into the Operating Account,
or (b) direct any other bank to transfer any amounts deposited with such other
bank to the WFB Disbursement Agent, for deposit into the Operating Account. The
Authority agrees that the WFB Disbursement Agent's officers and employees are
irrevocably authorized to endorse for payment to the WFB Disbursement Agent any
instruments received by WFB Disbursement Agent for deposit into the Operating
Account.
6.2 Funds in Accounts. The Authority agrees that all funds
deposited with a bank other than the WFB Disbursement Agent pursuant to Section
6.1 shall be disbursed and paid out only in accordance with the provisions of
the Indenture.
6.3 Notice of Substantial Completion. Promptly after (but in
any event within seven days after) Substantial Completion, the Authority shall
deliver an Officers' Certificate to the WFB Disbursement Agent and the Trustee
to the effect that Substantial Completion has occurred, together with a
certificate from the Independent Construction Consultant concurring with such
certificate of the Authority (except that a certificate from the Independent
Construction Consultant shall not be required with respect to Substantial
Completion of the ▇▇▇▇▇ Project.
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7. Limitation of Liability.
7.1 Limitation of a Disbursement Agent's Liability. A
Disbursement Agent's responsibility and liability under this Agreement shall be
limited as follows: (a) the Disbursement Agent does not represent, warrant or
guaranty to the Trustee or the Holders the performance of the Authority, any
Contractor or provider of materials or services in connection with construction
of the Project or the ▇▇▇▇▇ Project; (b) the Disbursement Agent shall have no
responsibility to the Authority, the Trustee or the Holders as a consequence of
performance by the Disbursement Agent hereunder except for any gross negligence
or willful misconduct of the Disbursement Agent; (c) the Authority shall remain
solely responsible for all aspects of its business and conduct in connection
with the Facility and the Project and the ▇▇▇▇▇ Project, including, but not
limited to, the quality and suitability of the Plans, the supervision of the
work of construction, the qualifications, financial condition and performance of
all architects, engineers, contractors, subcontractors, suppliers, consultants
and property managers, the accuracy of all applications for payment, and the
proper application of all disbursements; (d) the Disbursement Agent is not
obligated to supervise, inspect or inform the Authority, the Tribe, the Trustee
or any third party of any aspect of the construction of the Project or the ▇▇▇▇▇
Project or any other matter referred to above; and (e) the Disbursement Agent
owes no duty of care to the Authority or the Tribe to protect against, or to
inform the Authority or the Tribe against, any negligent, faulty, inadequate or
defective design or construction of the Project or the ▇▇▇▇▇ Project, provided
that the Disbursement Agent shall inform the Authority if the Disbursement Agent
has knowledge of such condition. The Disbursement Agent shall have no duties or
obligations hereunder except as expressly set forth herein (including with
respect to review of the substantive terms and conditions of any contracts
delivered to the Disbursement Agent), shall be responsible only for the
performance of such duties and obligations, shall not be required to take any
action otherwise than in accordance with the terms hereof and shall not be in
any manner liable or responsible for any loss or damage arising by reason of any
act or omission to act by it hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss that
may occur by reason of forgery, false representations, the exercise of its
discretion, or any other reason, except for its gross negligence or willful
misconduct.
7.2 Limitation of Independent Construction Consultant's
Liability. The Independent Construction Consultant's responsibility and
liability under this Agreement shall be limited as follows: (a) the Independent
Construction Consultant does not represent, warrant or guaranty to the Trustee
or the holders of the Senior Notes the performance of the Authority, the
Disbursement Agent or any contractor, subcontractor or provider of materials or
services in connection with construction of the Project or the ▇▇▇▇▇ Project;
(b) except to the extent the Independent Construction Consultant has actual
knowledge, the Independent Construction Consultant shall not be responsible for,
and shall not be obligated to make any specific inquiry with respect to, matters
pertaining to: historical architecture review, gaming regulatory authorities,
gaming licenses, liens against the Facility or the Project (except in connection
with the responsibilities of the Independent Construction Consultant set forth
herein) or the ▇▇▇▇▇ Project; and (c) the Authority shall remain solely
responsible for all aspects of its business and conduct in connection with the
Facility, and the Project and the ▇▇▇▇▇ Project, the accuracy of all
applications for payment, and the proper application of all disbursements. The
Independent Construction Consultant shall have no duties or obligations
hereunder, except as expressly set forth herein, shall be responsible only for
the performance of such duties and obligations, shall not be required to take
any action otherwise than in accordance with the terms hereof and shall not be
in any manner liable or responsible for any loss or damage arising by reason of
any act or omission to act by it hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss that
may occur by reason of forgery, false representations, the exercise of its
discretion, or any other reason, except for its gross negligence or willful
misconduct. The Independent Construction Consultant shall have the right to rely
(so long as such reliance is reasonable and in good faith) on certificates
received from the Authority. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Independent Construction Consultant be
liable to any party hereto for any form of special, indirect or consequential
damages, including, without limitation, damages for economic loss (such as
business interruption or loss of profits, however the same may be caused).
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8. Indemnity and Insurance.
8.1 Indemnification of Disbursement Agent. The Authority
hereby indemnifies, holds harmless and defends each Disbursement Agent and its
officers, directors, agents and employees from and against any and all claims,
actions, obligations, liabilities and expenses, including defense costs,
investigative fees and costs, legal fees, and claims for damages, arising from
such Disbursement Agent's performance under this Agreement, except to the extent
that such liability, expense or claim is attributable to the gross negligence or
willful misconduct of such Disbursement Agent.
8.2 Insurance. The Authority shall, at its sole cost and
expense, maintain insurance with responsible carriers against such risks and in
such amounts as is customarily carried by similar businesses with such
deductibles, retentions, self insured amounts and coinsurance provisions as are
customarily carried by similar businesses of similar size, including, without
limitation, property and casualty. Customary insurance coverage will be deemed
to include, without limitation, the following:
(1) workers' compensation insurance to the extent required to
comply with all applicable state, territorial or United States laws and
regulations, or the laws and regulations of any other applicable
jurisdiction;
(2) comprehensive general liability insurance with minimum
limits of one million dollars ($1,000,000);
(3) umbrella or excess liability insurance providing excess
liability coverages over and above the foregoing underlying insurance
policies up to a minimum limit of fourteen million dollars
($14,000,000);
(4) business interruption insurance; provided that such
business interruption insurance will have a minimum limit of at least
thirty-six million five hundred thousand ($36,500,000); and
(5) property insurance protecting the property against losses
or damages as is customarily covered by an "all-risk" policy or a
property policy covering "special" causes of loss for a business of
similar type and size; provided, however, that such insurance will
provide coverage of not less than 100.0% of actual replacement value
(as determined at each policy renewal based on the ▇.▇. ▇▇▇▇▇ Building
Index or some other recognized means) of any improvements customarily
insured consistent with industry standards and with a deductible no
greater than 2% of the insured value of the Project or such greater
amount as is available on commercially reasonable terms (other than
earthquake or flood insurance, for which the deductible may be up to 5%
of such replacement value).
All such insurance policies will be issued by carriers having an A.M. Best &
Company, Inc. rating of A or higher and a financial size category of not less
than VII, in each case on the date each such policy is issued to the Authority,
or if such carrier is not rated by A.M. Best & Company, Inc., having the
financial stability and size deemed appropriate by an opinion from a reputable
insurance broker. Such policies shall provide for 30 days' prior written notice
to the Trustee (and during the Construction Period to the Independent
Construction Consultant) of cancellation or material change. If any of such
insurance is written on a claims made form, following termination of this
Agreement, coverage shall survive for the maximum reporting period available at
each anniversary date of such insurance, or not less than five years, whichever
is greater. The limits of coverage required under subparagraph (a) above shall
not in any way limit the liability of the Authority or the Tribe under this
Agreement.
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9. Termination. This Agreement shall terminate automatically on the
later of (a) repayment and performance of all Senior Note Obligations and (b) 30
days following disbursement of all funds remaining in the Collateral Accounts;
provided, however, that the obligations of the Authority under Section 8 of this
Agreement shall survive termination of this Agreement.
10. Substitution or Resignation of Disbursement Agent.
10.1 Procedure. A resignation or removal of a Disbursement
Agent and appointment of a successor Disbursement Agent shall become effective
only upon the successor Disbursement Agent's acceptance of appointment as
provided in this Section 10.
10.1.1 A Disbursement Agent may resign in writing at
any time and be discharged from all duties hereunder upon 30 days' written
notice to all parties hereto. The Trustee or the Holders of a majority in
principal amount of the then outstanding Senior Notes may remove a Disbursement
Agent as provided below by so notifying such Disbursement Agent and the
Authority in writing, if:
(a) the Disbursement Agent fails to comply
with Section 10.3 hereof;
(b) the Disbursement Agent is adjudged a
bankrupt or an insolvent or an order for relief is entered with respect to the
Disbursement Agent under any Bankruptcy Law;
(c) a custodian or public officer takes
charge of the Disbursement Agent or its property; or
(d) the Disbursement Agent becomes incapable
of acting.
10.1.2 If a Disbursement Agent resigns or is removed
or if a vacancy exists in the office of Disbursement Agent for any reason, the
Trustee shall, and the Holders of a majority in principal amount of the then
outstanding Senior Notes (if such Holders provided a notice pursuant to Section
10.1.1 or if there is no Trustee capable of acting at such time) may, promptly
appoint a successor Disbursement Agent acceptable to the Authority. Within one
year after any successor Disbursement Agent appointed by the Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Senior Notes may appoint a successor Disbursement Agent acceptable to the
Authority to replace the successor Disbursement Agent appointed by the Trustee.
10.1.3 If a successor Disbursement Agent does not
take office within sixty (60) days after the retiring Disbursement Agent resigns
or is removed, the retiring Disbursement Agent, the Trustee, the Authority or
the Holders of at least 10% in principal amount of the then outstanding Senior
Notes may petition any court of competent jurisdiction for the appointment of a
successor Disbursement Agent.
10.1.4 A successor Disbursement Agent shall deliver a
written acceptance of its appointment to the retiring Disbursement Agent, the
Authority and the Trustee. Thereupon, the resignation or removal of the retiring
Disbursement Agent shall become effective, and the successor Disbursement Agent
shall have all the rights, powers and duties of the Disbursement Agent under
this Agreement. The retiring Disbursement Agent shall promptly transfer all
property held by it as Disbursement Agent to the successor Disbursement Agent.
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10.2 Successor Disbursement Agent. If a Disbursement Agent
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Disbursement Agent.
10.3 Eligibility; Disqualification. A Disbursement Agent shall
at all times be a bank chartered under the laws of the United States of America
or of any state thereof that is authorized under such laws to exercise corporate
trust power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition and a
Thomson's Bank Watch rating of B or better.
10.4 Consent of Independent Construction Consultant. The
Independent Construction Consultant acknowledges and agrees that the Trustee
shall have the right to change any party acting as the "Disbursement Agent"
pursuant to this Agreement, and the Trustee agrees to provide written notice to
the Independent Construction Consultant of any such change.
11. Statement of Collateral Accounts. Upon the request of the Authority
or the Trustee from time to time, a Disbursement Agent shall deliver to the
Authority and the Trustee an account statement prepared by such Disbursement
Agent in a form satisfactory to the Trustee and the Authority setting forth with
reasonable particularity the balance of funds then in the respective Collateral
Account for which such Disbursement Agent is responsible and the manner in which
such funds are invested; provided, however, that such Disbursement Agent shall
not be required to provide such statements more often than weekly. The parties
hereto irrevocably instruct the Disbursement Agents that on the first date upon
which the balance in any Collateral Account is reduced to zero, the respective
Disbursement Agent shall deliver to the Trustee and the Authority a notice that
the balance in such Collateral Account has been reduced to zero.
12. Miscellaneous.
12.1 Waiver. Any party hereto may specifically waive any
breach of this Agreement by any other party, but no such waiver shall be deemed
to have been given unless such waiver is in writing, signed by the waiving party
and specifically designates the breach waived, nor shall any such waiver
constitute a continuing waiver of similar or other breaches.
12.2 Invalidity. If, for any reason whatsoever, any one or
more of the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
12.3 No Authority. Each Disbursement Agent shall not have any
authority to, and shall not make any warranty or representation or incur any
obligation on behalf of, or in the name of, the Trustee.
12.4 Assignment. This Agreement is personal to the parties
hereto, and the rights and duties of any party hereunder shall not be assignable
except with the prior written consent of the other parties. In any event, this
Agreement shall inure to and be binding upon the parties and their successors
and permitted assigns.
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12.5 Benefit. The parties hereto and their respective
successors and assigns, but no others, shall be bound hereby and entitled to the
benefits hereof.
12.6 Time. Time is of the essence of each provision of this
Agreement.
12.7 Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York; 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."
12.8 Entire Agreement; Amendments. This Agreement (together
with the Indenture and the Collateral Documents) contains the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior agreements, understandings and commitments, whether
oral or written. This Agreement may be amended only by a writing signed by duly
authorized representatives of all parties.
12.9 Notices. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed to have been duly given and received, regardless of when and whether
received, either: (a) on the day of hand delivery; or (b) on the day sent, when
sent by United States certified mail, postage and certification fee prepaid,
return receipt requested; or by facsimile transmission, in each case, addressed
as follows:
To the USB Disbursement Agent:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the WFB Disbursement Agent:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Trustee:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-27-
To the Authority and the Tribe:
River Rock Entertainment Authority
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairperson
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Independent Construction Consultant:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Los Angeles Branch Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section 12.9 to the others.
12.10 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
12.11 Captions. Captions in this Agreement are for convenience
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
12.12 Right to Consult Counsel. Each of the Disbursement
Agents and the Trustee may, if any of them deems necessary or appropriate,
consult with and be advised by counsel in respect of their duties hereunder.
Each of the Disbursement Agents or the Trustee shall be entitled to rely upon
the advice of its counsel in any action taken in its capacity as a Disbursement
Agent or the Trustee, as the case may be, hereunder and shall be protected from
any liability of any kind for actions taken in reasonable reliance upon such
opinion of its counsel. The Authority agrees to pay all such reasonable counsel
fees.
12.13 Tribe Authorization. The Authority represents and
warrants that the Tribe has authorized the Authority to execute any and all
certificates, consents or other documents required by this Agreement on behalf
of the Tribe, and that the Tribe has authorized the Authority to execute any
other document on behalf of the Tribe as reasonably requested by the Trustee or
a Disbursement Agent in connection with this Agreement.
12.14 Authority Authorization. The Authority shall authorize
and empower one or more individuals (which individuals shall be identified to
the Trustee and the Disbursement Agents in writing) to execute any and all
certificates, consents or other documents required by this Agreement on behalf
of the Authority and any other document on behalf of the Authority requested by
the Trustee or a Disbursement Agent in connection with this Agreement. In each
case, the Authority acknowledges that such document, once executed, shall be
binding on the Authority as if such document had been, in fact, executed by the
Authority.
-28-
13. Governing Law; Jurisdiction; Governing Law Provisions.
13.1 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. 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.
13.2 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
13; 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.
13.3 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.
13.4 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).
-29-
13.5 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.
13.6 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.
13.7 Non-Impairment. Neither the Authority nor the Tribe nor
any of their 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.
13.8 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-30-
[PAGE INTENTIONALLY LEFT BLANK]
-31-
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
U.S. BANK NATIONAL ASSOCIATION,
as USB Disbursement Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, N.A.,
as WFB Disbursement Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
RIVER ROCK ENTERTAINMENT AUTHORITY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS
(solely with respect to its obligations under Section 13)
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President & CEO
-32-
INITIAL DISBURSEMENTS CERTIFICATE
U.S. Bank National Association, a national banking association, in its
capacity as Disbursement Agent under that certain Cash Collateral and
Disbursement Agreement (the "Agreement") among U.S. Bank National Association,
as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as WFB Disbursement Agent,
U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., as
Independent Construction Consultant, River Rock Entertainment Authority and Dry
Creek Rancheria Band of Pomo Indians of California dated as of November 7, 2003,
hereby certifies that the conditions to payment contained in Section 4.1 of the
Agreement have been satisfied and that it has made the following payments
concurrently herewith from the Construction Disbursement Account:
See attached Schedule 1.
Dated: November 7, 2003.
U.S. BANK NATIONAL ASSOCIATION
By: _____________________________
Name: ________________________
Title: Vice President
EXHIBIT A
SCHEDULE 1
FORM OF AUTHORITY'S CLOSING CERTIFICATE
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Band of Pomo Indians of California, under that
certain Cash Collateral and Disbursement Agreement (the "Agreement") among U.S.
Bank National Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as
WFB Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the Trustee and the USB Disbursement Agent
that all conditions to disbursement of the Initial Disbursements contained in
Sections 4.1(a) and 4.1(b) of the Agreement have been satisfied and that the
Preliminary Plans are described on Schedule 1 attached hereto.
Dated: November 7, 2003.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authority Chairperson
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary-Treasurer
EXHIBIT B
SCHEDULE OF PRELIMINARY PLANS
SCHEDULE 1
PROJECT # LA21-184
PROJECT NAME: RIVER ROCK CASINO GARAGE
ARCHITECT'S NAME: FFKR ARCHITECT
RECEIVED FROM: OWNER
PROJECT MANAGER: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
1st Submission Received Up to and including the 1st Submission
1st Submission 8/18/03
8/18/03 8/18/03
-------------------------------------------------------------------------------------------------------------------------------
Sheet Title Original Date Revision Revision Subm. Revision Date
Date Date Number
-------------------------------------------------------------------------------------------------------------------------------
1 of 2 Record of Survey 1/0/00 7/27/00 7/27/00 1st 7/27/00
-------------------------------------------------------------------------------------------------------------------------------
1 of 2 Record of Survey 1/0/00 7/27/00 7/27/00 1st 7/27/00
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Access Road Curve #1 and #2
Improvements
-------------------------------------------------------------------------------------------------------------------------------
CO1 Title Sheet 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
CO2 Abbreviations 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C10 Existing Topography 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C20 Roadway Plan Curve #1 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C21 Roadway Plan Curve #2 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C22 Grading & Drainage Plan 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C23 Grading & Drainage Plan 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C24 Signage & Striping 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C30 Roadway Profile Curve #1 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C31 Roadway Profile Curve #2 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C40 Sections Sheet 1 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C41 Sections Sheet 2 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C42 Details Sheet 1 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
S10 Retaining Wall West 1 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
S11 Retaining Wall West 2 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
S12 Retaining Wall East 1 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Dry Creek Rancheria Infrastructure-
North Loop Road Bid Package #2
-------------------------------------------------------------------------------------------------------------------------------
C1 Cover Sheet/Lists of Drawings 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C1 Vicinity Map Notes & Abbreviations 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C2 Rough Grading Plan 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C3 Details 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C4 Details 7/3/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
G11 Grading & MSE Wall Details 6/20/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
SW1 Soldier Pile Wall 1 6/16/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
SW1 Soldier Pile Wall 1 7/29/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
SE30 Soldier Pile Wall 3 & 4 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
SW50 Soldier Pile Wall 6 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Dry Creek Rancheria Infrastructure-
North Loop Road Bid Package #2
-------------------------------------------------------------------------------------------------------------------------------
Cover Sheet/List of Drawings 7/2/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
U1 Utility Plan 6/19/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Dry Creek Rancheria Infrastructure-
South Loop Road Bid Package #3
-------------------------------------------------------------------------------------------------------------------------------
Cover Sheet/List of Drawings 6/30/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C1 Vicinity Map Notes & Abbreviations 7/8/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C2 Rough Grading & Drainage Plan 7/8/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C3 Rough Grading & Drainage Plan 7/8/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C4 Loop Road Profile 7/8/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C5 Loop Road Profile 7/8/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C6 Loop Road Profile 7/8/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
C7 Details 7/8/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
G1 Grading & MSE Wall Details 6/27/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
SW2.1 Soldier Pile Wall #2 7/15/03 7/16/03 7/16/03 1st 7/16/03
-------------------------------------------------------------------------------------------------------------------------------
SW22 Soldier Pile Wall #2 7/15/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
SW23 Soldier Pile Wall #2 7/2/03 7/18/03 7/18/03 1st 7/18/03
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Parking Structure
-------------------------------------------------------------------------------------------------------------------------------
Cover Sheet/List of Drawings 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
G101 Vicinity Map Project Data 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
G102 Fir & Exit Analysis Floor Plan 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
Site Plan UNDATED UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A100 Overall Floor Plans 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A101 A ▇▇▇▇▇ ▇ & 2 Floors 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A102 A ▇▇▇▇▇ ▇ & 4 Floors 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A103 A ▇▇▇▇▇ ▇ & 6 Floors 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A108 A Level 1 & 2 Ceiling Plans 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A109 A Level 3 & 4 Ceiling Plans 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A110 A Level 5 Ceiling Plan 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A111 C Level 1 & 2 Ceiling Plans 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A112 C Level 3 & 4 Ceiling Plans 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A113 C Level 5 & 6 Ceiling Plans 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A201 A Exterior Elevators 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A202 B Exterior Elevators 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A203 Exterior Elevations 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A301 A Bldg. Sections 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A401 Large Scale Floor Plans Stair A2, 7/31/03 UNDATED UNDATED 1st UNDATED
B2 Elevators 1,2,3 & 4
-------------------------------------------------------------------------------------------------------------------------------
A402 Large Scale Sections Stair A2 7/31/03 UNDATED UNDATED 1st UNDATED
Elevators 1 & 2
-------------------------------------------------------------------------------------------------------------------------------
A403 Large Scale Sections Stair B2 7/31/03 UNDATED UNDATED 1st UNDATED
Elevators 3 & 4
-------------------------------------------------------------------------------------------------------------------------------
A404 Interior Stair Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A405 Large Scale Plans Sections Stair A1 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A406 Large Scale Sections Stair A3 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A407 Large Scale Plans Sections Stair B3 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A408 Large Scale Plans Section Stair C1 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A409 Exterior Stair Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A410 Enlarged Spandrel Plans & Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A415 Enlarged Spandrel Plans & Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
A416 Enlarged Spandrel Plans & Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A417 Enlarged Spandrel Plans & Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A418 Enlarged Spandrel Plans & Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A419 Enlarged Spandrel Plans & Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A502 Prefab. Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
A503 Prefab. Details 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
S001 General Notes & Abbreviations 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
S101 Level 1 & 3 Foundation Plan 7/31/03 UNDATED UNDATED 1st UNDATED
-------------------------------------------------------------------------------------------------------------------------------
S102 A Level 1 & 2 Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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S103 A Level 3 & 4 Plans 7/31/03 UNDATED UNDATED 1st UNDATED
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S104 A Level 5 & 6 Plans 7/31/03 UNDATED UNDATED 1st UNDATED
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S105 B & C Levels 1 & 2 Foundation/ 7/31/03 UNDATED UNDATED 1st UNDATED
Floor Plans
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▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇/ ▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
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S107 B & C Levels 1 & 2 Plans 7/31/03 UNDATED UNDATED 1st UNDATED
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S108 B & C Levels 3 & 4 Plans 7/31/03 UNDATED UNDATED 1st UNDATED
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S109 B & C Levels 5 & 6 Plans 7/31/03 UNDATED UNDATED 1st UNDATED
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S110 B & C Levels 7 & 7/31/03 UNDATED UNDATED 1st UNDATED
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S151 A Levels 2 & 4 Floor Plans 7/31/03 UNDATED UNDATED 1st UNDATED
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S152 A Levels 5 & 6 Floor Plans 7/31/03 UNDATED UNDATED 1st UNDATED
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▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
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▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇ ▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
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▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇ ▇ & ▇ ▇▇▇▇ ▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
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S201 Precast Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S202 Pecast Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S203 Stair Tower Plans & Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S204 Stair Tower Plans & Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S301 Precast Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S351 Precast Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S252 Precast Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S353 Precast Details 7/29/03 UNDATED UNDATED 1st UNDATED
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S401 A Shear Wall Elevations Along Lines 7/30/03 UNDATED UNDATED 1st UNDATED
D & G
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S402 A Shear Wall Elevations Lines A1 - 7/29/03 UNDATED UNDATED 1st UNDATED
12
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S403 B Shear Wall Elevations Along Lines 7/29/03 UNDATED UNDATED 1st UNDATED
L & P
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S404 B Shear Wall Elevations Along Lines 7/29/03 UNDATED UNDATED 1st UNDATED
B1 - B9
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S405 C Shear Wall Elevations Along Lines 7/29/03 UNDATED UNDATED 1st UNDATED
T & W
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S406 C Shear Wall Elevations Along Lines 7/29/03 UNDATED UNDATED 1st UNDATED
C1 - C9
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S451 A,B, & C Slab on Grade Typical 7/25/03 UNDATED UNDATED 1st UNDATED
Details
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▇▇▇▇ ▇, ▇ & ▇ ▇▇▇▇ ▇▇▇ Details Sheet 1 7/31/03 UNDATED UNDATED 1st UNDATED
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▇▇▇▇ ▇, ▇ & ▇ ▇▇▇▇ ▇▇▇ Details & 7/28/03 UNDATED UNDATED 1st UNDATED
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S454 A Drilled Pier Details & Schedules 7/28/03 UNDATED UNDATED 1st UNDATED
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S455 A & B Typical Tieback Details 7/31/03 UNDATED UNDATED 1st UNDATED
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S456 A, B, C Shear Key & Wall Details & 7/31/03 UNDATED UNDATED 1st UNDATED
Sections
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S457 A, B & C Typical Reinforcement 7/31/03 UNDATED UNDATED 1st UNDATED
Details
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S458 A Collector Details 7/31/03 UNDATED UNDATED 1st UNDATED
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S459 B Collector Details 7/31/03 UNDATED UNDATED 1st UNDATED
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S460 C Collector Details 7/31/03 UNDATED UNDATED 1st UNDATED
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MP0 Mechanical & Plumbing General 8/4/03 UNDATED UNDATED 1st UNDATED
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MP1 A ▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
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MP2 A ▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
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MP3 A ▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 7/31/03 UNDATED UNDATED 1st UNDATED
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MP4 B & C Level 1 & 2 Mechanical & 7/31/03 UNDATED UNDATED 1st UNDATED
Plumbing Plan
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MP5 B & C Level 3 & 4 Mechanical & 7/31/03 UNDATED UNDATED 1st UNDATED
Plumbing Plan
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MP6 B & C Level 5 & 6 Mechanical & 7/31/03 UNDATED UNDATED 1st UNDATED
Plumbing Plan
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MP7 B & C Level 7 & 8 Mechanical & 7/31/03 UNDATED UNDATED 1st UNDATED
Plumbing Plan
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P0 Plumbing General Details 7/21/03 UNDATED UNDATED 1st UNDATED
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P1 A Level 1 & 2 Plumbing Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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P2 A Level 3 & 4 Plumbing Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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P3 A Level 5 & 6 Plumbing Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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P4 B & C Level 1 & 2 Plumbing Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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P5 B & C Level 3 & 4 Plumbing Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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P6 B & C Level 5 & 6 Plumbing Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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P7 B & C Level 7 & 8 Plumbing Plan 7/31/03 UNDATED UNDATED 1st UNDATED
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1 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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2 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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3 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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4 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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5 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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6 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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7 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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8 of 8 Topographic Map 8/8/03 UNDATED UNDATED 1st UNDATED
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TRUSTEE'S CLOSING CERTIFICATE
U.S. Bank National Association, a national banking association, in its
capacity as Trustee under that certain Cash Collateral and Disbursement
Agreement (the "Agreement") among U.S. Bank National Association, as USB
Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as WFB Disbursement Agent, U.S. Bank
National Association, as Trustee, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., as Independent
Construction Consultant, River Rock Entertainment Authority and Dry Creek
Rancheria Band of Pomo Indians of California dated as of November 7, 2003,
hereby certifies that all conditions to disbursement of the Initial
Disbursements contained in Sections 4.1(a) and (b) of the Agreement have been
satisfied.
Dated: November 7, 2003.
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT C
CONSTRUCTION DISBURSEMENT REQUEST
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Band of Pomo Indians of California, under that
certain Cash Collateral and Disbursement Agreement (the "Agreement") among U.S.
Bank National Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as
WFB Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby requests disbursement of $____________ from the
Construction Disbursement Account by the USB Disbursement Agent and certifies to
the USB Disbursement Agent and the Trustee each of the following:
(a) Exhibit 1 attached hereto sets forth the parties to whom,
the contracts under which and the line items of the Authority Budget for which
payment is being requested.
(b) Exhibit 2 attached hereto contains the certification of
the Independent Construction Consultant that each of the items set forth in
Exhibit 1 attached hereto are legitimate Construction Expenses.
(c) The Disbursement Agent has received a Certification from
each of the Authority and the Independent Construction Consultant that the
Liquidity Requirement shall have been satisfied through the date hereof.
(d) The Disbursement Agent and the Independent Construction
Consultant have received copies of all Construction Contracts (and all
amendments thereto) executed as of the date hereof and, with respect to each
Material Construction Contract executed on or before the date hereof, copies of
such performance and payment bonds as the Authority may require to be provided
to the Authority pursuant to such Material Construction Contract.
Dated: ___________, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT D
Exhibit 1
to
Construction Disbursement Request
Dated ___________, 200_
Line Item of Authority
Party To Whom Payment Contract Under Which Budget For Which
Amount of Payment Will Be Made Payment Will Be Made Payment Is Being Made
----------------- ------------ -------------------- ---------------------
-2-
Exhibit 2
to
Construction Disbursement Request
Dated ___________, 200_
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. hereby certifies that each of the items set
forth in Exhibit 1 to the Construction Disbursement Request dated ___________,
200_, are legitimate Construction Expenses under the Contract referenced in the
Construction Disbursement Request.
Dated: ______________, 200__.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By: ________________________
Name: _____________________________
Title: ____________________________
-3-
FORM OF AVAILABLE CONSTRUCTION FUNDS CERTIFICATE
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Band of Pomo Indians of California, under that
certain Cash Collateral and Disbursement Agreement (the "Agreement") among U.S.
Bank National Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as
WFB Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the USB Disbursement Agent and to the
Trustee that the Available Construction Funds are in the amount of $_________ as
of the date set forth below.
Dated: ___________ __, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT E
FORM OF PROJECT COST SCHEDULE CERTIFICATE
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Band of Pomo Indians of California, under that
certain Cash Collateral and Disbursement Agreement among U.S. Bank National
Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as WFB
Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the Independent Construction Consultant
that the Project Cost Schedule attached hereto as Schedule 1 is true, complete
and correct as of the date hereof.
Dated: November 7, 2003.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authority Chairperson
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary-Treasurer
EXHIBIT F
PROJECT COST SCHEDULE
Swinerton Budget $ 61,845,152.00*
FFKR & Subcontractors Budget 2,788,281.00
Total Construction Budget 61,146,257.69
===============
* $3,487,175.31 represents the amount prepaid by the Authority to Swinerton
which shall be reimbursed to the Authority at closing.
-2-
FORM OF AUTHORITY BUDGET AMENDMENT CERTIFICATE
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Band of Pomo Indians of California, under that
certain Cash Collateral and Disbursement Agreement (the "Agreement') among U.S.
Bank National Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as
WFB Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the Independent Construction Consultant
that the Authority Budget should be increased in the aggregate by $___________
and in the following specific respects:
Increase Reason
-------- ------
(a)
(b)
etc.
Dated: ________ __, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT G
INITIAL AUTHORITY BUDGET
EXHIBIT H
River Rock Casino
Budget 2003
JAN FEB MAR APR MAY JUN JUL
1-10 Slots 10,371,164 10,587,807 11,000,000 34,876,754 43,495,227 45,209,074 49,084,076
11 Games - - - 2,835,360 3,515,846 3,402,432 3,808,834
20 Restaurant - - - 197,220 243,953 286,698 326,776
22 Lounge - - - - 239,895 259,010 68,036
24 Gift Shop - - - 11,250 12,400 13,500 15,500
50 Misc. Index 10,189 13,082 11,750 24,547 27,967 29,648 47,500
2-10 Slot Revenues 8,534,091 8,870,974 9,000,000 29,809,192 37,496,749 38,973,339 42,313,857
11 Games Payouts - - - 2,334,720 2,887,293 2,794,154 3,123,697
Total Gaming Revenue 1,847,262 1,729,915 2,011,750 5,801,219 7,152,336 7,432,889 7,913,168
20 Restaurant 48,650 45,806 47,000 157,777 166,997 189,470 218,676
22 Lounge - - - - 83,995 90,653 68,036
24 Gift Shop - - - 6,750 7,440 8,100 9,300
50 Misc. Index - - - - - - -
Total Cost of Sales 48,650 45,806 47,000 164,627 258,432 288,223 296,012
Gross Profit 1,798,612 1,684,109 1,964,750 6,636,692 6,893,904 7,144,646 7,617,156
Salaries & Wages
3-10 Slots 66,796 62,671 55,000 256,100 264,636 260,788 264,636
11 Games 55,502 26,465 29,000 199,302 217,450 216,436 262,043
20 Restaurants 21,722 17,440 18,300 285,656 295,178 287,062 295,178
22 Lounge - - - 79,590 82,243 80,996 82,243
24 Gift Shop - - - 13,657 14,113 13,657 14,113
50 Misc. Index - - - - - - -
60 Administr 146,889 196,505 96,300 99,009 109,099 157,505 109,099
61 Accounting 5,135 12,513 12,980 38,650 39,833 43,905 44,934
63 IT 9,696 11,574 11,900 19,307 19,951 21,867 19,951
65 Count Team 19,808 16,060 16,500 78,771 81,398 78,771 81,396
66 Cage 65,322 50,323 52,000 254,077 256,330 257,881 256,330
67 Warehouse - - - - - - -
68 Purchasing - - - 1,192 4,926 4,768 4,928
69 HR 58,125 16,383 17,000 34,359 35,400 45,970 35,713
72 Marketing 26,269 24,719 26,000 70,603 72,957 80,321 72,957
74 Security 98,872 78,727 83,800 164,902 169,241 163,781 169,241
76 Surveillance - - - - - - -
78 Housekeeping 27,078 28,909 31,000 90,565 93,585 90,565 93,585
79 Maintenance 17,960 12,716 13,000 40,075 41,412 43,416 41,412
80 Tribal - - - - - - -
86 Capital Ex - - - - - - -
Total Salaries & Wages 619,164 545,008 482,780 1,725,815 1,797,750 1,847,659 1,847,759
AUG SEP OCT NOV DEC TOTAL
1-10 Slots 52,859,773 55,284,082 57,495,138 56,947,957 59,214,476 486,426,528
11 Games 3,808,834 3,685,968 3,808,834 3,402,432 3,515,846 31,784,386
20 Restaurant 346,141 348,491 358,428 348,490 323,741 2,789,939
22 Lounge 293,022 290,615 300,523 290,615 269,345 2,011,161
24 Gift Shop 18,600 21,000 21,700 21,000 21,700 156,650
50 Misc. Index 47,500 47,500 47,500 47,500 47,500 402,183
2-10 Slot Revenues 45,568,770 47,658,690 49,564,776 49,093,066 51,046,954 417,930,468
11 Games Payouts 3,123,697 3,022,933 3,123,697 2,794,154 2,887,293 26,091,638
Total Gaming Revenue 8,681,403 8,996,033 9,353,650 9,170,775 9,458,351 79,548,731
20 Restaurant 218,449 220,094 233,255 220,094 201,974 1,968,242
22 Lounge 146,781 144,512 149,405 144,512 138,494 966,389
24 Gift Shop 11,150 12,600 13,020 12,600 13,020 93,990
50 Misc. Index - - - - - -
Total Cost of Sales 378,390 377,206 395,681 377,206 353,488 3,028,621
Gross Profit 8,305,013 8,618,827 8,957,969 8,793,569 9,104,863 76,520,110
Salaries & Wages
3-10 Slots 256,153 261,367 265,235 256,679 311,851 2,571,912
11 Games 254,067 258,754 262,043 254,067 350,015 2,385,144
20 Restaurants 285,656 293,844 295,440 285,911 369,514 2,750,901
22 Lounge 79,590 81,010 82,257 79,604 107,237 754,770
24 Gift Shop 13,657 13,657 14,113 13,857 16,613 127,237
50 Misc. Index - - - - - -
60 Administr 105,768 155,213 109,293 105,206 161,138 1,551,027
61 Accounting 43,471 50,917 45,448 44,167 63,558 445,781
63 IT 19,307 19,373 20,019 19,373 24,579 216,887
65 Count Team 78,771 78,771 81,640 79,006 95,640 786,530
66 Cage 255,348 257,748 256,868 255,821 285,768 2,503,796
67 Warehouse - 24,649 25,471 24,649 28,034 102,803
68 Purchasing 4,770 4,771 4,931 4,771 7,081 42,140
69 HR 39,113 43,697 40,620 39,309 54,760 460,449
72 Marketing 70,717 78,155 73,074 70,831 94,682 759,285
74 Security 163,781 166,327 169,912 164,430 197,850 1,790,884
76 Surveillance - - - - - -
78 Housekeeping 90,565 92,328 93,844 90,816 112,607 936,447
79 Maintenance 40,137 42,762 41,539 40,198 49,380 424,007
80 Tribal - - - - - -
86 Capital Ex - - - - - -
Total Salaries & Wages 1,601,141 1,921,343 1,881,747 1,828,497 2,330,307 18,608,880
River Rock Casino
Budget 2003
JAN FEB MAR APR MAY JUN JUL
PR & Emp Benefits
4-10 Slots 4,302 4,013 4,000 75,691 74,080 72,308 96,717
11 Games 1,648 2,119 2,000 57,855 61,862 60,595 104,610
20 Restaurants 1,385 1,302 1,400 85,018 87,697 85,158 128,582
22 Lounge - - - 29,297 30,118 29,437 63,564
24 Gift Shop - - - 2,854 2,818 2,726 4,658
50 Misc. Index - - - - - - -
60 Administr 129,674 99,919 87,000 19,228 19,828 22,440 20,185
61 Accounting 516 849 900 7,665 7,358 7,626 9,034
63 IT 598 861 900 5,756 5,899 5,955 6,257
65 Count Team 1,103 1,103 1,200 19,830 19,648 19,095 24,164
66 Cage 4,295 3,969 4,000 64,770 62,957 62,977 79,567
67 Warehouse - - - - - - -
68 Purchasing - - - 209 809 794 809
69 HR 4,163 1,126 1,200 6,400 6,899 7,607 6,899
72 Marketing 1,657 1,785 2,000 14,244 14,056 14,742 19,179
74 Security 6,133 6,021 5,500 47,152 48,121 46,933 51,413
76 Surveillance - - - - - - -
78 Housekeeping 1,657 2,147 2,500 25,749 25,553 24,902 33,482
79 Maintenance 1,153 944 1,000 9,762 9,650 9,667 12,539
80 Tribal - - - - - - -
86 Capital Ex - - - - - - -
Total PR Expense & 158,284 126,158 114,600 471,380 477,373 472,932 861,639
Benefits
5-10 Slots 127,102 151,046 148,680 315,969 350,263 356,747 880,387
11 Games 1,974 8,088 5,490 51,685 49,611 48,592 52,371
20 Restaurants 4,284 4,294 3,950 43,915 35,971 36,050 52,280
22 Lounge - - - 9,012 8,315 8,678 4,495
24 Gift Shop - - - 1,480 1,053 1,072 1,110
50 Misc. Index - - - 1,000 1,000 1,000 1,000
60 Administr 105,011 121,560 110,646 297,040 267,040 267,040 287,040
61 Accounting 1,862 2,245 1,825 3,517 2,717 2,717 12,217
63 IT 30,495 3,717 1,770 25,075 24,875 19,875 30,875
65 Count Team 3,694 1,450 2,600 4,850 1,550 1,550 1,850
66 Cage 1,460 1,934 - 5,230 2,430 2,430 2,880
67 Warehouse - - - - - - -
68 Purchasing - - - 250 350 350 350
69 HR 7,807 265 2,700 5,139 5,139 30,039 7,539
72 Marketing 176,018 194,485 202,850 728,115 691,447 713,081 715,580
74 Security 676 1,727 550 1,450 2,550 2,550 1,450
76 Surveillance 63,277 38,694 60,000 75,000 75,000 75,000 -
78 Housekeeping 2,779 3,159 3,280 12,261 9,616 9,616 14,058
79 Maintenance 165,130 109,038 97,260 142,160 115,170 116,370 215,170
80 Tribal - - - - - - -
88 Capital Ex 57,799 57,795 57,795 824,846 915,345 907,597 1,192,000
Total Other Expenses 749,268 699,497 699,596 2,547,993 2,559,442 2,600,354 3,452,652
Net Profit 271,896 313,446 487,774 891,604 2,059,339 2,223,891 1,655,106
AUG SEP OCT NOV DEC TOTAL
PR & Emp Benefits
4-10 Slots 95,778 96,892 99,936 97,566 103,903 825,186
11 Games 103,998 107,994 109,974 107,574 117,848 838,097
20 Restaurants 127,721 129,963 132,158 129,151 139,521 1,049,056
22 Lounge 84,802 66,372 67,140 66,232 69,623 486,588
24 Gift Shop 4,553 4,911 5,016 4,991 5,220 37,887
50 Misc. Index - - - - - -
60 Administr 19,442 22,636 20,185 19,422 23,593 503,532
61 Accounting 8,883 9,412 9,034 8,883 10,454 80,514
63 IT 6,114 6,114 6,257 6,114 6,613 57,438
65 Count Team 23,904 24,261 24,879 24,261 26,135 209,583
66 Cage 80,406 81,697 82,788 82,552 85,419 695,395
67 Warehouse - 2,344 2,780 2,702 4,786 12,612
68 Purchasing 794 794 1,038 1,015 1,214 7,476
69 HR 7,312 7,631 7,472 7,312 8,499 72,520
72 Marketing 19,005 19,610 20,252 19,721 22,021 168,472
74 Security 51,601 53,600 55,779 54,510 58,193 485,932
76 Surveillance - - - - - -
78 Housekeeping 33,093 33,621 33,820 33,099 35,567 285,176
79 Maintenance 12,583 13,172 13,254 12,941 13,944 110,609
80 Tribal - - - - - -
86 Capital Ex - - - - - -
Total PR Expense & 658,975 681,224 691,760 677,966 732,559 5,925,850
Benefits
5-10 Slots 881,641 882,447 883,166 882,985 883,737 6,744,380
11 Games 52,371 53,304 54,370 50,522 51,538 479,905
20 Restaurants 52,175 52,210 53,105 52,245 52,442 442,921
22 Lounge 9,558 9,554 9,652 9,481 8,961 77,706
24 Gift Shop 1,168 1,213 1,226 1,213 1,226 10,761
50 Misc. Index 1,000 1,000 1,000 1,000 1,000 9,000
60 Administr 266,950 297,750 297,750 297,750 297,750 2,893,327
61 Accounting 12,217 12,217 12,217 12,217 12,217 88,185
63 IT 27,875 27,875 23,875 23,875 23,875 264,057
65 Count Team 1,850 1,850 1,850 1,850 1,850 26,694
66 Cage 2,880 2,880 2,880 2,880 2,880 30,764
67 Warehouse - 5,650 5,550 5,550 5,550 22,200
68 Purchasing 350 350 350 350 350 3,050
69 HR 7,539 15,539 7,539 7,539 7,639 104,423
72 Marketing 683,438 744,840 669,718 676,707 691,072 6,687,351
74 Security 2,550 2,550 1,450 2,550 2,550 22,603
76 Surveillance - - - - - 386,971
78 Housekeeping 14,108 14,108 14,108 14,108 14,108 125,309
79 Maintenance 215,170 217,245 214,720 214,620 215,820 2,037,873
80 Tribal - - - - - -
88 Capital Ex 1,192,000 1,202,000 1,202,000 1,202,000 1,202,000 10,013,177
Total Other Expenses 3,424,840 3,644,482 3,456,526 3,469,442 3,476,566 30,670,667
Net Profit 2,419,057 2,471,776 2,927,936 2,827,684 2,566,432 21,314,623
FORM OF FINAL PLANS AMENDMENT CERTIFICATE
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Band of Pomo Indians of California, under that
certain Cash Collateral and Disbursement Agreement (the "Agreement") among U.S.
Bank National Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as
WFB Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the USB Disbursement Agent and to the
Independent Construction Consultant that the Final Plans should be amended in
the following specific respects:
Modification Reason
------------ ------
(a)
(b)
etc.
Dated: _______ __, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT I
FORM OF OFFICER'S CERTIFICATE (FIRST PHASE)
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Bank of Pomo Indians of California, and ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, under that certain Cash
Collateral and Disbursement Agreement (the "Agreement") among U.S. Bank National
Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as WFB
Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the USB Disbursement Agent that each of
the following have occurred:
(a) Substantial Completion of the first parking structure comprising a
portion of the Project has occurred at least forty-five (45) days prior to the
date hereof.
(b) All amounts required to be paid to Contractors in connection with
achieving Substantial Compliance of the first parking structure comprising a
portion of the Project have been paid.
(c) There are no mechanic's liens or other liens, charges or orders
filed against the Facility or the Project or any portion thereof by any
Contractor or any other party that have not been discharged of record or bonded
other than Permitted Liens.
Date: ________ __, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
[INDEPENDENT CONSTRUCTION CONSULTANT]
-----------------------------------
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT J-1
FORM OF OFFICER'S CERTIFICATE (SECOND PHASE)
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Bank of Pomo Indians of California, and ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, under that certain Cash
Collateral and Disbursement Agreement (the "Agreement") among U.S. Bank National
Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as WFB
Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the USB Disbursement Agent that each of
the following have occurred:
(a) Substantial Completion of the Project has occurred at least
seventy-five (75) days prior to the date hereof.
(b) All amounts required to be paid to Contractors in connection with
achieving Substantial Compliance of the Project have been paid.
(c) There are no mechanic's liens or other liens, charges or orders
filed against the Facility or the Project or any portion thereof by any
Contractor or any other party that have not been discharged of record or bonded
other than Permitted Liens.
Date: ________ __, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
[INDEPENDENT CONSTRUCTION CONSULTANT]
-----------------------------------
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT J-2
FORM OF SUBSTANTIAL COMPLETION CERTIFICATE (PROJECT)
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Bank of Pomo Indians of California, and ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, under that certain Cash
Collateral and Disbursement Agreement (the "Agreement") among U.S. Bank National
Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as WFB
Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the USB Disbursement Agent that each of
the following have occurred:
(a) Substantial Completion of the Project has occurred at least ninety
(90) days prior to the date hereof.
(b) All amounts required to be paid to Contractors in connection with
achieving Substantial Compliance of the Project have been paid.
(c) There are no mechanic's liens or other liens, charges or orders
filed against the Facility or the Project or any portion thereof by any
Contractor or any other party that have not been discharged of record or bonded
other than Permitted Liens.
Date: ________ __, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
[INDEPENDENT CONSTRUCTION CONSULTANT]
-----------------------------------
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT J-3
FORM OF SUBSTANTIAL COMPLETION CERTIFICATE (▇▇▇▇▇ PROJECT)
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Bank of Pomo Indians of California, and ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, under that certain Cash
Collateral and Disbursement Agreement (the "Agreement") among U.S. Bank National
Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as WFB
Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby certifies to the USB Disbursement Agent that each of
the following have occurred:
(a) Substantial Completion of the ▇▇▇▇▇ Project has occurred at least
ninety (90) days prior to the date hereof.
(b) All amounts required to be paid to Contractors in connection with
achieving Substantial Compliance of the ▇▇▇▇▇ Project have been paid.
(c) There are no mechanic's liens or other liens, charges or orders
filed against the ▇▇▇▇▇ Project or any portion thereof by any Contractor or any
other party that have not been discharged of record or bonded other than
Permitted Liens.
Date: ________ __, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT J-4
FORM OF OPERATING ACCOUNT CONTROL AGREEMENT
EXHIBIT K
FORM OF CONTROL AGREEMENT
(U.S. National Bank Association)
THIS CONTROL AGREEMENT (the "Agreement") dated as of November 7, 2003,
by and among U.S. Bank National Association, a national banking association, as
trustee under the Indenture (as defined below) (together with its successors and
assigns from time to time under the Indenture, the "Trustee"), U.S. Bank
National Association, a national banking association, as disbursement agent,
securities intermediary and depositary bank (together with any successor
depositary bank permitted hereunder, the "Clearing Bank"), the River Rock
Entertainment Authority (the "Authority"), an unincorporated instrumentality of
The Dry Creek Rancheria Band of Pomo Indians of California (the "Tribe") and the
Tribe (solely with respect to its obligations under Section 15). All capitalized
terms not expressly defined herein shall have the meanings ascribed to them in
that certain Cash Collateral and Disbursement Agreement dated as of the date
hereof (the "Cash Collateral Agreement") by and among the Trustee, the
Disbursement Agent, the Authority, the Tribe and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., unless
the context requires otherwise.
RECITALS
A. Concurrently herewith, the Authority is issuing $200,000,000
aggregate principal amount of its 9.75% Initial Senior Notes due 2011 (together
with all notes issued in exchange or replacement therefor, the "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").
B. The Authority and the Tribe desire to design, develop and construct
three parking structures and certain related infrastructure improvements (the
"Project") upon the Tribe's reservation near Geyserville, California, to support
the existing gaming facility of the Authority (the gaming facility and the
Project collectively the "Facility"). The Tribe has delegated to the Authority
all rights and decision-making authority with respect to the development,
construction and operation of the Facility pursuant to the Authority Ordinance.
C. The net proceeds from the issuance of the Initial Senior Notes (the
"Proceeds") will be used (among other things) to repay a majority of outstanding
indebtedness of the Authority, 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. Contemporaneously with the execution of the Cash Collateral
Agreement, $64,600,000 of the Proceeds will be deposited into the Construction
Disbursement Account, $5,000,000 of the Proceeds will be deposited into the
▇▇▇▇▇ Property Improvements Account and $10,000,000 of the Proceeds will be
deposited into the Construction Escrow Account.
E. The parties have entered into the Cash Collateral Agreement to set
forth the conditions upon which, and the manner in which, funds will be
disbursed (a) from the Construction Disbursement Account to fund the Project,
(b) from the ▇▇▇▇▇ Property Improvements Account to fund the ▇▇▇▇▇ Project, (c)
from the Construction Escrow Account to permit the Authority to fund cost
overruns with respect to the Project to the extent that such cost overruns
cannot be satisfied from the Construction Disbursement Account, and (d) from all
of the accounts established thereby for the further purposes set forth therein.
EXHIBIT K-1
F. Assets maintained in the Construction Escrow Account, the ▇▇▇▇▇
Property Improvements Account, and the Construction Disbursement Account and are
owned beneficially by the Authority, subject to the terms and conditions of the
Cash Collateral Agreement.
G. As provided in the Cash Collateral Agreement, the Authority has
selected the ▇▇▇▇▇ Fargo Bank, N.A. to maintain the account of the Authority in
respect of the operation and management of the Facility (together with all
substitutes, renewals and replacements therefor or thereof and any and all
interest earned on funds therein, the "Operating Account").
H. The Trustee and the Authority have agreed that during certain
periods (the "Cash Collateral Periods") commenced by delivery of a Cash
Collateral Period Notice (hereinafter defined) and terminated by delivery of a
Cash Collateral Period Termination Notice (hereinafter defined), the Trustee
shall have the right to cause the funds in the Construction Accounts to be
transferred and/or otherwise handled as directed by the Trustee.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for ten dollars ($10.00) and other good and valuable consideration,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1.1 Construction Disbursement Account. The Construction
Disbursement Account is designated as follows:
Name: River Rock Entertainment Authority, an unincorporated
instrumentality of The Dry Creek Rancheria Band of Pomo
Indians of California
Account No.: 743811001
The Trustee shall have the option to change the name of such account in its sole
discretion by giving notice to the Authority and the Clearing Bank.
1.2 ▇▇▇▇▇ Property Improvements Account. The ▇▇▇▇▇ Property
Improvements Account is designated as follows:
Name: River Rock Entertainment Authority, an unincorporated
instrumentality of The Dry Creek Rancheria Band of Pomo
Indians of California
Account No.: 743811002
The Trustee shall have the option to change the name of such account in its sole
discretion by giving notice to the Authority and the Clearing Bank.
1.3 Construction Escrow Account. The Construction Escrow
Account is designated as follows:
Name: River Rock Entertainment Authority, an unincorporated
instrumentality of The Dry Creek Rancheria Band of Pomo
Indians of California
Account No.: 743811003
The Trustee shall have the option to change the name of such account in its sole
discretion by giving notice to the Authority and the Clearing Bank.
2
2. Control of Construction Accounts. Subject to the Authority's
limited rights of withdrawal as specified in Paragraph 6, below, the
Construction Accounts are under the sole dominion, control and discretion of the
Trustee. The Construction Accounts have been assigned the federal tax
identification number of the Authority, which number is ▇▇-▇▇▇▇▇▇▇. The Clearing
Bank shall not commingle amounts on deposit in the Construction Accounts with
any other amounts held by the Clearing Bank on behalf of the Trustee, the
Authority or any other person or entity.
3. Deposits of Proceeds. From and after the date hereof,
$64,600,000 of the Proceeds shall be deposited in the Construction Disbursement
Account, $5,000,000 of the Proceeds shall be deposited in the ▇▇▇▇▇ Property
Improvements Account and $10,000,000 of the Proceeds shall be deposited in the
Construction Escrow Account.
4. Transfer of Funds. The Authority hereby irrevocably instructs
and authorizes the Clearing Bank upon and following written direction from the
Trustee (as amended from time to time by the Trustee, the "Cash Collateral
Period Notice") to disburse via the ACH System, if available, or otherwise by
wire transfer, to a bank and account as shall be designated by the Trustee, all
amounts constituting available funds on deposit in the Construction Accounts.
The then existing Cash Collateral Period Notice shall remain effective until
revoked or modified from time to time by the Trustee. The Trustee retains the
right to provide additional or different directions in the Cash Collateral
Period Notice, including but not limited to amendments thereof. If transferring
such amounts by the ACH System and if required by the Clearing Bank, each such
transfer shall be initiated by the Trustee. If the Clearing Bank provides
electronic data transfer services, the Clearing Bank shall provide the Trustee
access to the Clearing Bank's electronic data transfer system for purposes of
effecting such transfers. At any time that funds may not be transferred as
described above in this paragraph, the Clearing Bank shall transfer amounts by
wire transfer of immediately available funds.
5. Reporting Requirements. Following the Clearing Bank's receipt
of the Cash Collateral Period Notice, the Clearing Bank shall send a credit
advice to the Authority, which credit advice shall specify the amount in the
Construction Accounts on such date. The Clearing Bank shall also send a monthly
report to the Authority which monthly report shall specify the credits and
changes to the Construction Accounts for the previous calendar month and shall
immediately establish the Trustee as user of the Clearing Bank's electronic data
transfer system in accordance with the Clearing Bank's standard procedures. Upon
request of the Trustee, (a) the Clearing Bank shall send to the Trustee either
(x) copies of any daily and/or monthly credit advices and any other advices or
reports furnished by the Clearing Bank to the Authority hereunder or (y)
information on balances in the Construction Accounts, the aggregate amount of
withdrawals from the Construction Accounts and other similar information via the
electronic data transfer system on a daily basis, and (b) the Clearing Bank
shall advise the Trustee of the amount of funds in the Construction Accounts
available for withdrawal and shall deliver to the Trustee copies of all
statements and other information concerning the Construction Accounts as the
Trustee shall reasonably request from time to time.
6. Control of Funds in Construction Accounts. The Authority
hereby notifies the Clearing Bank, and the Clearing Bank acknowledges, that, in
accordance with the Cash Collateral Agreement and the Pledge and Security
Agreement and in reliance on the UCC and the Tribal UCC, (a) all amounts held in
the Construction Accounts by the Clearing Bank from time to time have been
irrevocably pledged, transferred and assigned to the Trustee as additional
security for the Senior Notes, (b) the Trustee has a first security interest
therein and a first lien thereon, and (c) without limiting the foregoing, the
Trustee has all of the remedies of a secured party under the UCC, including
without limitation the right and power to take immediate and exclusive
possession of the Construction Accounts and to direct the disposition thereof,
without any additional consent or authorization of the Authority. Prior to the
Clearing Bank's receipt of a Cash Collateral Period Notice and again following
receipt by the Clearing Bank from the Trustee of written notice from the Trustee
that the Cash Collateral Period corresponding to the Cash Collateral Period
Notice has ended (the "Cash Collateral Period Termination Notice"), the
Authority has the right to make withdrawals from the Construction Accounts
pursuant to the Cash Collateral Agreement. Effective immediately following the
Clearing Bank's receipt from time to time of a Cash Collateral Period Notice
(until the Clearing Bank receives a Cash Collateral Period Termination Notice,
which the Trustee shall deliver in a timely manner after the conditions for such
delivery shall have been satisfied), (x) the Authority irrevocably waives all
rights of withdrawal from the Construction Accounts and (y) the Clearing Bank is
hereby irrevocably authorized and directed, without any additional consent or
authorization of the Authority, to deliver all sums in the Construction Accounts
and/or as shall thereafter be placed therein, as directed by the Trustee or
otherwise handle same, upon and in accordance with the Trustee's instructions as
provided herein and/or in subsequent instructions from the Trustee, and to
otherwise follow the Trustee's instructions delivered from time to time as to
the disposition of the Construction Accounts and such sums. The Clearing Bank
agrees to notify the Trustee immediately in the event that any other party makes
a claim to or with respect to the Construction Accounts or the amounts therein
or earnings thereon.
3
7. Permitted Investments.
7.1 The Clearing Bank and the Authority each covenants for the
benefit of the Trustee that funds on deposit in the Construction Accounts shall
be insured by the Federal Deposit Insurance Corporation up to $100,000 or other
maximum limit under applicable law.
7.2 Funds in the Construction Accounts shall be invested in
cash, Cash Equivalents and/or Permitted Investments. Permitted Investments are
described on Exhibit A attached hereto and made a part hereof. Except as
otherwise expressly provided herein or as the Trustee otherwise advises the
Clearing Bank in writing, all earnings on Permitted Investments shall be for the
benefit of the Authority. Any proceeds from a liquidation of a Permitted
Investment shall be deposited immediately in the Construction Accounts by the
Clearing Bank, but in no event later than one business day following such
liquidation.
8. Fees and Costs. To compensate the Clearing Bank for performing the
services required hereunder, the Authority hereby agrees to pay all such
reasonable fees, costs and expenses as shall be charged by the Clearing Bank in
connection with the Clearing Bank's obligations hereunder. Without limiting the
foregoing, the Authority shall be liable to the Clearing Bank for the amount of
any exchange, collection, processing, transfer, wire, postage or other
out-of-pocket expenses incurred by the Clearing Bank, as determined by the
Clearing Bank from time to time. During a Cash Collateral Period, the Clearing
Bank shall debit the Construction Accounts by the amount of its fees on a
monthly basis or shall include its fees in an account analysis statement.
9. Resignation of Clearing Bank; Termination of Agreement.
9.1 The Clearing Bank may resign from its obligations under
this Agreement at any time after prior written notice of not less than sixty
(60) days to the Trustee and the Authority. The Authority shall designate a
successor to the Clearing Bank promptly after receipt of notice of resignation
by the Clearing Bank, which successor shall be subject to the approval of the
Trustee (such approval to be granted or withheld in the Trustee's sole and
absolute discretion), and shall cause such designated successor promptly to
assume the oblations of the Clearing Bank hereunder. It shall be an Event of
Default under the Pledge and Security Agreement and the other documents
evidencing, securing or otherwise relating to the Senior Notes, if a successor
to the Clearing Bank acceptable to the Trustee shall not have been designated
and has not assumed the obligations of the Clearing Bank prior to the effective
date of the Clearing Bank's resignation.
4
9.2 The Trustee may terminate this Agreement for any reason or
no reason whatsoever, at any time upon five (5) days' prior written notice to
the other parties hereto. The Trustee shall terminate this Agreement by notice
to the Clearing Bank after repayment of the Senior Notes to the Trustee.
9.3 The Authority may not unilaterally terminate this
Agreement or close any of the accounts established hereunder. The Clearing Bank
shall not cause or permit any such accounts to be closed unless it has received
the prior written approval of the Trustee.
10. No Right of Offset. The Clearing Bank waives any right to offset
any claim against the Authority which it might have against any account
maintained hereunder; provided, however, that the Clearing Bank retains the
right to (a) charge the Construction Accounts for any of the Clearing Bank's
fees provided for herein for which the Authority is responsible as provided
above and (b) charge the Construction Accounts for all items deposited in and
credited to the Construction Accounts and subsequently returned unpaid or with
respect to which the Clearing Bank fails to receive final settlement.
11. Irrevocability of Instructions. The instructions set forth herein
are irrevocable and are not subject to modification in any manner, except that
the Trustee may, by written notice to the Clearing Bank, amend the instructions
contained herein.
12. Governing Effect; Assignment. Matters not covered by this Agreement
shall be determined in accordance with the customary procedures of the Clearing
Bank, and in the event of a conflict between the terms of this Agreement and the
customary procedures of the Clearing Bank, the terms of this Agreement shall
govern. The Clearing Bank shall have the right to assign or transfer its rights
and obligations hereunder in connection with a merger, consolidation or sale of
all or substantially all of the assets of the Clearing Bank, provided that the
transferee thereof agrees in writing to be bound by the terms of this Agreement.
13. Governing Law. Except as otherwise provided in Section 15 of this
Agreement, this Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
14. Liability of Clearing Bank. The Clearing Bank may rely, and shall
be protected in acting, or refraining from acting, upon any notice (including,
but not limited to, electronically confirmed facsimiles of such notice) believed
by it to be genuine and to have been signed or presented by the proper party or
parties. The duties and obligations of the Clearing Bank hereunder shall be
determined solely by the express provisions of this Agreement. The Clearing Bank
shall not be liable except for the performance of its duties and obligations as
are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Clearing Bank.
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. THE AUTHORITY, THE TRIBE, AND THE INITIAL PURCHASER 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.
5
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.
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
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.
6
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 their 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.
15.8 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.
16. Notices. All notices and other communications required or permitted
to be given or made under this Agreement shall be in writing and shall be deemed
to have been duly given and received, regardless of when and whether received,
either: (a) on the day of hand delivery; or (b) on the day sent, when sent by
United States certified mail, postage and certification fee prepaid, return
receipt requested; or by facsimile transmission, in each case, addressed as
follows:
To the Clearing Bank:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7
To the Trustee:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Authority and the Tribe:
River Rock Entertainment Authority
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairperson
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section 16 to the others.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument for the same effect as if all parties hereto signed the same
signature page. A facsimile signature shall have the same force and effect as an
original.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _____________________
Name: _______________
Title: Vice President
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS
(solely with respect to its obligations under Section 15)
By: ________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
CLEARING BANK:
U.S. BANK NATIONAL ASSOCIATION
By: _____________________
Name: _______________
Title: ______________
9
CONTROL AGREEMENT
(▇▇▇▇▇ Fargo Bank, N.A.)
THIS CONTROL AGREEMENT (the "Agreement") dated as of November 7, 2003,
by and among U.S. Bank National Association, a national banking association, as
trustee under the Indenture (as defined below) (together with its successors and
assigns from time to time under the Indenture, the "Trustee"), ▇▇▇▇▇ Fargo Bank,
N.A., a national banking association, as disbursement agent, securities
intermediary and depositary bank (together with any successor depositary bank
permitted hereunder, the "Clearing Bank"), the River Rock Entertainment
Authority (the "Authority"), an unincorporated instrumentality of The Dry Creek
Rancheria Band of Pomo Indians of California (the "Tribe") and the Tribe (solely
with respect to its obligations under Section 15). All capitalized terms not
expressly defined herein shall have the meanings ascribed to them in that
certain Cash Collateral and Disbursement Agreement dated as of the date hereof
(the "Cash Collateral Agreement") by and among the Trustee, the Disbursement
Agent, the Authority, the Tribe and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., unless the context
otherwise requires.
RECITALS
A. 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").
B. The Authority and the Tribe desire to design, develop and
construct three parking structures and certain related infrastructure
improvements (the "Project") upon the Tribe's reservation near Geyserville,
California, to support the existing gaming facility of the Authority (the gaming
facility and the Project collectively the "Facility"). The Tribe has delegated
to the Authority all rights and decision-making authority with respect to the
development, construction and operation of the Facility pursuant to the
Authority Ordinance.
C. The net proceeds from the issuance of the Initial Senior Notes
(the "Proceeds") will be used (among other things) to repay a majority of the
outstanding indebtedness of the Authority, 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 the outstanding indebtedness of
the Tribe.
D. Contemporaneously with the execution of the Cash Collateral
Agreement, $64,600,000 of the Proceeds will be deposited into the Construction
Disbursement Account, $5,000,000 of the Proceeds will be deposited into the
▇▇▇▇▇ Property Improvements Account and $10,000,000 of the Proceeds will be
deposited into the Construction Escrow Account.
E. The parties have entered into the Cash Collateral Agreement to
set forth the conditions upon which, and the manner in which, funds will be
disbursed (a) from the Construction Disbursement Account to fund the Project,
(b) from the ▇▇▇▇▇ Property Improvements Account to fund the ▇▇▇▇▇ Project, (c)
from the Construction Escrow Account to permit the Authority to fund cost
overruns with respect to the Project to the extent such cost overruns cannot be
satisfied from the Construction Disbursement Account, and (d) from all of the
accounts established thereby for the further purposes set forth therein.
EXHIBIT K-2
F. As provided in the Cash Collateral Agreement, the Authority has
selected the Clearing Bank to maintain the account of the Authority in respect
of the operation and management of the Facility (together with all substitutes,
renewals and replacements therefor or thereof and any and all interest earned on
funds therein, the "Operating Account").
G. This Agreement sets forth the terms and conditions pursuant to which
the Clearing Bank will implement certain automatic clearing and processing
functions and otherwise handle the revenues generated in connection with the
Facility and pledged by the Authority in favor of the Trustee (the "Pledged
Revenues"; provided, however, that for purposes of this Agreement, Pledged
Revenues shall exclude Cage Cash). The Pledged Revenues will be deposited as
they are received by the Authority into the Operating Account.
H. Assets maintained in the Operating Account are owned beneficially by
the Authority, subject only to the terms and conditions of the Cash Collateral
Agreement.
I. The Trustee and the Authority have agreed that during certain
periods (the "Cash Collateral Periods") commenced by delivery of a Cash
Collateral Period Notice (hereinafter defined) and terminated by delivery of a
Cash Collateral Period Termination Notice (hereinafter defined), the Trustee
shall have the right to cause the Pledged Revenues to be transferred and/or
otherwise handled as directed by the Trustee.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for ten dollars ($10.00) and other good and valuable consideration,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Operating Account. The Operating Account is designated as follows:
Name: River Rock Entertainment Authority, an unincorporated
instrumentality of The Dry Creek Rancheria Band of Pomo Indians of California
Account No.: 4945092500.
The Trustee shall have the option to change the name of such account in its sole
discretion by giving notice to the Authority and the Clearing Bank.
2. Control of Operating Account. Subject to the Authority's
limited rights of withdrawal as specified in Paragraph 6, below, the Operating
Account is under the sole dominion, control and discretion of the Trustee. The
Operating Account has been assigned the federal tax identification number of the
Authority, which number is ▇▇-▇▇▇▇▇▇▇. The Clearing Bank shall not commingle
amounts on deposit in the Operating Account with any other amounts held by the
Clearing Bank on behalf of the Trustee, the Authority or any other person or
entity.
3. Deposits of Pledged Revenues.
3.1 From and after the date hereof, all Pledged Revenues
shall be deposited in the Operating Account. In addition, the Clearing Bank has
established the following address (the "Cash Collateral Address") to which the
Authority shall forward, or cause to be directly forwarded, all Pledged Revenues
not otherwise delivered to the Clearing Bank:
2
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
3.2 The Clearing Bank shall receive and process all
Pledged Revenues, including, but not limited to, any and all deposits presented
by or on behalf of the Authority. The Clearing Bank shall receive and process
all mail sent to the Cash Collateral Address and open such mail daily in order
to examine same and remove instruments of payment of money contained therein.
Checks, money orders or other instruments for the payment of money which may be
handled as cash items by Federal Reserve Banks, if found by the Clearing Bank in
its discretion to be in proper order, shall be endorsed by Clearing Bank for
deposit in the Operating Account. Mail received by the Clearing Bank that
contains cash will be processed by creating a deposit ticket listing the cash
received for deposit into the Operating Account.
3.3 Within one business day following receipt, the Clearing
Bank shall deposit any and all other Pledged Revenues, received by the Clearing
Bank from whatever source, into the Operating Account. Items deposited with or
forwarded to Clearing Bank that are returned for insufficient or uncollected
funds will be redeposited the first time. Items returned unpaid a second time
shall be debited to the Operating Account and returned to the Authority.
3.4 Any other items received by the Clearing Bank as Pledged
Revenues, including but not limited to items not denominated in U.S. dollars,
instruments which are not made payable to the name of the Facility, the
Authority or a reasonable abbreviation or version thereof, or which are
otherwise not in proper order or which should receive the Authority's special
attention, shall, prior to a Trigger Event, be forwarded immediately by the
Clearing Bank to the Authority, without processing.
4. Transfer of Funds. The Authority hereby irrevocably instructs and
authorizes the Clearing Bank upon and following written direction from the
Trustee (as amended from time to time by the Trustee, the "Cash Collateral
Period Notice") to disburse on the each business day via the ACH System, if
available, or otherwise by wire transfer, to a bank and account as shall be
designated by the Trustee, all amounts constituting available funds on deposit
in the Operating Account. The then existing Cash Collateral Period Notice shall
remain effective until revoked or modified from time to time by the Trustee. The
Trustee retains the right to provide additional or different directions in the
Cash Collateral Period Notice, including but not limited to amendments thereof.
If transferring such amounts by the ACH System and if required by the Clearing
Bank, each such transfer shall be initiated by the Trustee. If the Clearing Bank
provides electronic data transfer services, the Clearing Bank shall provide the
Trustee access to the Clearing Bank's electronic data transfer system for
purposes of effecting such transfers. At any time that funds may not be
transferred as described above in this paragraph, the Clearing Bank shall
transfer amounts by wire transfer of immediately available funds.
5. Reporting Requirements. Following the Clearing Bank's receipt of the
Cash Collateral Period Notice, the Clearing Bank shall send a daily credit
advice to the Authority, which credit advice shall specify the amount deposited
into the Operating Account on such date. The Clearing Bank shall also send a
monthly report to the Authority, which monthly report shall specify the credits
and changes to the Operating Account for the previous calendar month and shall
immediately establish the Trustee as user of the Clearing Bank's electronic data
transfer system in accordance with the Clearing Bank's standard procedures. Upon
request of the Trustee, (a) the Clearing Bank shall send to the Trustee either
(x) copies of any daily and/or monthly credit advices and any other advices or
reports furnished by the Clearing Bank to the Authority hereunder or (y)
information on Operating Account balances, the aggregate amount of withdrawals
from the Operating Account and other similar information via the electronic data
transfer system on a daily basis, and (b) the Clearing Bank shall advise the
Trustee of the amount of funds in the Operating Account available for withdrawal
and shall deliver to the Trustee copies of all statements and other information
concerning the Operating Account as the Trustee shall reasonably request from
time to time.
3
6. Control of Pledged Revenues. The Authority hereby notifies the
Clearing Bank, and the Clearing Bank acknowledges, that, in accordance with the
Cash Collateral Agreement and the Pledge and Security Agreement and in reliance
on the UCC and the Tribal UCC, (a) all amounts held in the Operating Account by
the Clearing Bank from time to time have been irrevocably pledged, transferred
and assigned to the Trustee as additional security for the Senior Notes, (b) the
Trustee has a first security interest therein and a first lien thereon, and (c)
without limiting the foregoing, the Trustee has all of the remedies of a secured
party under the UCC, including without limitation the right and power to take
immediate and exclusive possession of the Operating Account and to direct the
disposition thereof, without any additional consent or authorization of the
Authority. Prior to the Clearing Bank's receipt of a Cash Collateral Period
Notice and again following receipt by the Clearing Bank from the Trustee of
written notice from the Trustee that the Cash Collateral Period corresponding to
the Cash Collateral Period Notice has ended (the "Cash Collateral Period
Termination Notice"), the Authority has the right to make withdrawals from the
Operating Account. Effective immediately following the Clearing Bank's receipt
from time to time of a Cash Collateral Period Notice (until the Clearing Bank
receives a Cash Collateral Period Termination Notice, which the Trustee shall
deliver in a timely manner after the conditions for such delivery shall have
been satisfied), (x) the Authority irrevocably waives all rights of withdrawal
from the Operating Account and (y) the Clearing Bank is hereby irrevocably
authorized and directed, without any additional consent or authorization of the
Authority, to deliver all sums in the Operating Account and/or as shall
thereafter be placed therein, as directed by the Trustee or otherwise handle
same, upon and in accordance with the Trustee's instructions as provided herein
and/or in subsequent instructions from the Trustee, and to otherwise follow the
Trustee's instructions delivered from time to time as to the disposition of the
Operating Account and such sums. The Clearing Bank agrees to notify the Trustee
immediately in the event that any other party makes a claim to or with respect
to the Operating Account or the amounts therein or earnings thereon.
7. Permitted Investments.
7.1 The Clearing Bank and the Authority each covenants for the
benefit of the Trustee that funds on deposit in the Operating Account shall be
insured by the Federal Deposit Insurance Corporation up to $100,000 or other
maximum limit under applicable law.
7.2 Funds in the Operating Account shall be invested in cash,
Cash Equivalents and/or Permitted Investments. Permitted Investments are
described on Exhibit A attached hereto and made a part hereof. Except as
otherwise expressly provided herein or the Trustee otherwise advises the
Clearing Bank in writing, all earnings on Permitted Investments shall be for the
benefit of the Authority. Any proceeds from a liquidation of a Permitted
Investment shall be deposited immediately in the Operating Account by the
Clearing Bank, but in no event later than one business day following such
liquidation.
8. Fees and Costs. To compensate the Clearing Bank for performing the
services required hereunder, the Authority hereby agrees to pay all such
reasonable fees, costs and expenses as shall be charged by the Clearing Bank in
connection with the Clearing Bank's obligations hereunder. Without limiting the
foregoing, the Authority shall be liable to the Clearing Bank for the amount of
any exchange, collection, processing, transfer, wire, postage or other
out-of-pocket expenses incurred by the Clearing Bank, as determined by the
Clearing Bank from time to time. During a Cash Collateral Period, the Clearing
Bank shall debit the Operating Account by the amount of its fees on a monthly
basis or shall include its fees in an account analysis statement.
4
9. Resignation of Clearing Bank; Termination of Agreement.
9.1 The Clearing Bank may resign from its obligations under
this Agreement at any time after prior written notice of not less than sixty
(60) days to the Trustee and the Authority. The Authority shall designate a
successor to the Clearing Bank promptly after receipt of notice of resignation
by the Clearing Bank, which successor shall be subject to the approval of the
Trustee (such approval to be granted or withheld in the Trustee's sole and
absolute discretion), and shall cause such designated successor promptly to
assume the oblations of the Clearing Bank hereunder. It shall be an Event of
Default under the Pledge and Security Agreement and the other documents
evidencing, securing or otherwise relating to the Senior Notes, if a successor
to the Clearing Bank acceptable to the Trustee shall not have been designated
and has not assumed the obligations of the Clearing Bank prior to the effective
date of the Clearing Bank's resignation.
9.2 The Trustee may terminate this Agreement for any reason or
no reason whatsoever, at any time upon five (5) days' prior written notice to
the other parties hereto. The Trustee shall terminate this Agreement by notice
to the Clearing Bank after repayment of the Senior Notes to the Trustee.
9.3 The Authority may not unilaterally terminate this
Agreement or close any of the accounts established hereunder. The Clearing Bank
shall not cause or permit any such accounts to be closed unless it has received
the prior written approval of the Trustee.
10. No Right of Offset. The Clearing Bank waives any right to offset
any claim against the Authority which it might have against any account
maintained hereunder; provided, however, that the Clearing Bank retains the
right to (a) charge the Operating Account for any of the Clearing Bank's fees
provided for herein for which the Authority is responsible as provided above and
(b) charge the Operating Account for all items deposited in and credited to the
Operating Account and subsequently returned unpaid or with respect to which the
Clearing Bank fails to receive final settlement.
11. Irrevocability of Instructions. The instructions set forth herein
are irrevocable and are not subject to modification in any manner, except that
the Trustee may, by written notice to the Clearing Bank, amend the instructions
contained herein.
12. Governing Effect; Assignment. Matters not covered by this Agreement
shall be determined in accordance with the customary procedures of the Clearing
Bank, and in the event of a conflict between the terms of this Agreement and the
customary procedures of the Clearing Bank, the terms of this Agreement shall
govern. The Clearing Bank shall have the right to assign or transfer its rights
and obligations hereunder in connection with a merger, consolidation or sale of
all or substantially all of the assets of the Clearing Bank, provided that the
transferee thereof agrees in writing to be bound by the terms of this Agreement.
13. Governing Law. Except as otherwise provided in Section 15 of this
Agreement, this Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
14. Liability of Clearing Bank. The Clearing Bank may rely, and shall
be protected in acting, or refraining from acting, upon any notice (including,
but not limited to, electronically confirmed facsimiles of such notice) believed
by it to be genuine and to have been signed or presented by the proper party or
parties. The duties and obligations of the Clearing Bank hereunder shall be
determined solely by the express provisions of this Agreement. The Clearing Bank
shall not be liable except for the performance of its duties and obligations as
are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Clearing Bank.
5
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. THE AUTHORITY, THE TRIBE, AND THE INITIAL PURCHASER 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.
15.4 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.
15.5 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).
6
15.6 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
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 their 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.
15.8 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.
7
16. Notices. All notices and other communications required or permitted
to be given or made under this Agreement shall be in writing and shall be deemed
to have been duly given and received, regardless of when and whether received,
either: (a) on the day of hand delivery; or (b) on the day sent, when sent by
United States certified mail, postage and certification fee prepaid, return
receipt requested; or by facsimile transmission, in each case, addressed as
follows:
To the Clearing Bank:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Trustee:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Authority and the Tribe:
River Rock Entertainment Authority
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairperson
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section 16 to the others.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument for the same effect as if all parties hereto signed the same
signature page. A facsimile signature shall have the same force and effect as an
original.
[Remainder of Page Intentionally Left Blank]
8
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: ______________________
Name: ________________
Title: Vice President
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS (solely with respect to its
obligations under Section 15)
By: ________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairperson
CLEARING BANK:
▇▇▇▇▇ FARGO BANK, N.A.
By: ______________________
Name: ________________
Title: Vice President
9
EXHIBIT A
Permitted Investments
"Permitted Investments" means:
(1) any Investment in the Authority;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Authority in a Person, if as a
result of that Investment the Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Authority;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant in the Indenture described under
"Repurchase at the Option of Holders -- Asset Sales";
(5) payroll advances to employees of the Authority for travel,
entertainment and relocation expenses in the ordinary course of
business;
(6) any Investments in any Persons engaged in the Gaming
Business in an aggregate amount of up to $2.5 million;
(7) accounts and notes receivable if created or acquired in
the ordinary course of business and which are payable or dischargeable
in accordance with customary trade terms; and
(8) Investments related to Hedging Obligations, so long as
such Hedging Obligations are not used for speculative purposes.
Any capitalized term in this Exhibit A not otherwise defined in the Control
Agreement has the meaning ascribed thereto in the Indenture.
EXHIBIT A
Permitted Investments
"Permitted Investments" means:
(1) any Investment in the Authority;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Authority in a Person, if as a
result of that Investment the Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Authority;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant in the Indenture described under
"Repurchase at the Option of Holders -- Asset Sales";
(5) payroll advances to employees of the Authority for travel,
entertainment and relocation expenses in the ordinary course of
business;
(6) any Investments in any Persons engaged in the Gaming
Business in an aggregate amount of up to $2.5 million;
(7) accounts and notes receivable if created or acquired in
the ordinary course of business and which are payable or dischargeable
in accordance with customary trade terms; and
(8) Investments related to Hedging Obligations, so long as
such Hedging Obligations are not used for speculative purposes.
Any capitalized term in this Exhibit A not otherwise defined in the Control
Agreement has the meaning ascribed thereto in the Indenture.
LAND DEVELOPMENT DISBURSEMENT REQUEST
River Rock Entertainment Authority, an unincorporated instrumentality
of The Dry Creek Rancheria Band of Pomo Indians of California, under that
certain Cash Collateral and Disbursement Agreement (the "Agreement") among U.S.
Bank National Association, as USB Disbursement Agent, ▇▇▇▇▇ Fargo Bank, N.A., as
WFB Disbursement Agent, U.S. Bank National Association, as Trustee, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., as Independent Construction Consultant, River Rock Entertainment
Authority and Dry Creek Rancheria Band of Pomo Indians of California dated as of
November 7, 2003, hereby requests disbursement of $____________ from the Land
Development Disbursement Account by the USB Disbursement Agent and certifies to
the USB Disbursement Agent and the Trustee each of the following:
(a) Exhibit 1 attached hereto sets forth the parties to whom,
the contracts under which and the line items of the Authority Budget for which
payment is being requested.
(b) The Disbursement Agent has received copies of all
Construction Contracts (and all amendments thereto) executed as of the date
hereof and, with respect to each Material Construction Contract executed on or
before the date hereof, copies of such performance and payment bonds as the
Authority may require to be provided to the Authority pursuant to such Material
Construction Contract.
Dated: ___________, 200__.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: ________________________
Name: _____________________________
Title: ____________________________
By: ________________________
Name: _____________________________
Title: ____________________________
EXHIBIT L
Exhibit 1
to
Land Development Disbursement Request
Dated ___________, 200_
Line Item of Authority
Party To Whom Payment Contract Under Which Budget For Which
Amount of Payment Will Be Made Payment Will Be Made Payment Is Being Made
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