Exhibit 10.12
FOURTH AMENDMENT TO DEVELOPMENT AND LOAN AGREEMENT
BETWEEN
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS
AND
DRY CREEK CASINO, LLC
This Fourth Amendment to the Development and Loan Agreement ("Fourth
Amendment") is made and entered into this 9th day of October, 2003, by and
between the Dry Creek Rancheria Band of Pomo Indians, a federally recognized
Indian tribe (the "Tribe"), and Dry Creek Casino, LLC, a Texas limited liability
company ("Developer," and together with the Tribe, the "Parties"). Each
capitalized term used in this Fourth Amendment and not otherwise defined herein
shall have the meaning ascribed to it in the Development and Loan Agreement
between the Parties dated August 26, 2001 (the "Agreement"), as amended by the
Amendment to Development and Loan Agreement dated April 29, 2002 (the "First
Amendment"), as further amended by the Second Amendment to Development and Loan
Agreement dated February 19, 2003 (the "Second Amendment"), and as further
amended by the Third Amendment to Development and Loan Agreement dated May 29,
2003 (the "Third Amendment"). The First Amendment, Second Amendment, and Third
Amendment are collectively referred to as the "Prior Amendments."
WHEREAS, the Parties executed the Agreement on August 26, 2001;
WHEREAS, subsequent to the execution of the Agreement, the Parties
thrice determined that the Agreement should be revised to reflect changed
circumstances and executed the Prior Amendments; and
WHEREAS, the Tribe and Developer have agreed to modify the terms of the
Agreement in order to modify the amount of the Credit Enhancement Fee to be paid
to Developer by Tribe.
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, the Parties hereby agree to the following amendments to
the Agreement, as amended by the Prior Amendments:
(1) The "Gross Revenues" definition of the Agreement shall be deleted
and replaced with the following:
"Gross Revenues" means all revenues of any nature derived
directly or indirectly from the Project including, without limitation,
all Gaming revenue, all food and beverage sales, all entertainment and
retail sales, all parking fees and all other rental or other receipts
from lessees, sublessees, licensees and concessionaires (but not the
gross receipts of such lessees, sublessees, licensees or
concessionaires, provided that such lessees, sublessees, licensees and
concessionaires are not subsidiaries or affiliates of the Tribe);
provided, however, that all revenues received from the sale of
alcoholic beverages to patrons of the Project shall be excluded from
this definition. The term "alcoholic beverages" as used in this
definition and as used in the definition of "Operating Expenses" shall
have the same meaning as set forth in Section 23004 of the Ca1ifornia
Alcoholic Beverage Control Act."
(2) The first paragraph of the "Operating Expenses" definition of the
Agreement shall be de1eted and replaced with the following:
"Operating Expenses" means expenses incurred in the ordinary course of
operating the interim casino as recognized under GAAP, and including but not
limited to costs associated with and payments due under the MOU, rent (and, with
respect to capital leases, interest expenses) in connection with the rental or
lease of any gaming equipment or device, including but not limited to royalties,
license fees and other costs associated with the play of such equipment or
device, including themed or progressive-style slot machines, interest paid on
the Loan, regulatory fees, costs and assessments imposed under the Legal
Requirements, and payments due under the Compact, but excluding the Credit
Enhancement Fees, principal due under the Loan, any Tribal Draws, any amounts
paid to Indemnitees under Section 4.5 of this Agreement, or any actual costs of
the alcoholic beverages purchased by the Project. For avoidance of doubt,
"Operating Expenses" shall not include (a) the repair and replacement reserve
(or expenses) described in Section 2.11(e) of this Agreement, (b) depreciation,
or (c) any expense which is incurred for some purpose other than the generation
of income or the maintenance or protection of the Project.
(3) Miscellaneous.
(a) Authority. The Tribe represents and warrants that it has taken all
action required by the Tribe's laws, its Articles of Association and the laws of
the United States and all other applicable laws to authorize the execution,
delivery and performance of this Fourth Amendment.
(b) Agreement, and Prior Amendments Otherwise Not Affected. Except as
expressly amended hereto, the Agreement and the Prior Amendments shall remain
unchanged and in full force and effect (including, without limitation, Sections
5.3 and 5.4 of the Agreement, which is applicable to this Fourth Amendment) and
is hereby ratified and confirmed in all respects.
(c) Reference Within the Agreement. Each reference in the Agreement to
"this Agreement" and the words "hereof," "herein," "hereunder," or other words
of like import, shall mean and be a reference to the Agreement as amended by the
Prior Amendments, and this Fourth Amendment. For the avoidance of doubt, this
shall include, without limitation, Sections 5.3 and 5.4 of the Agreement.
(d) Complete Agreement Amendments. This Fourth Amendment together with
the Agreement and the Prior Amendments and any attachments thereto (including
the schedules, exhibits and annexes hereto and thereto), and the documents
delivered pursuant to the Agreement, the Prior Amendments, and this Fourth
Amendment constitute the entire agreement and understanding among the parties
and supersede any prior written agreement and understanding relating to the
subject matter thereto. This Fourth Amendment may not be modified, amended or
otherwise altered except in accordance with the terms of the Agreement.
(e) Reformation and Severability. In case any provision of this Fourth
Amendment shall be invalid, illegal, unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal, and unenforceable
but so as to most nearly retain the intent of the parties, and if such
modification is not possible, such revision shall be severed from this Fourth
Amendment and in either case the validity, legality, and enforceability of the
remaining provisions of this Fourth Amendment shall not be in any way affected
or impaired hereby.
(f) Counterparts. This Fourth Amendment may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
(g) Additional Representations and Warranties.
(i) Both Parties represent and warrant that neither party has made
any representations to the other party concerning the matters addressed in the
Agreement, the Prior Amendments, and this Fourth Amendment, except as expressly
set forth in such documents.
(ii) Both Parties represent and warrant that neither party has
relied upon any statements not expressly set forth in the Agreement, the Prior
Amendments, and this Fourth Amendment, in entering into this Fourth Amendment.
(iii) Both Parties represent and warrant that they have entered
into this Fourth Amendment on their own free will, without compulsion or duress,
and after consultation with their legal counsel.
IN WITNESS WHEREOF, the Parties have executed this Fifth Amendment as
of this ____day of October, 2003, effective as of the date first written above.
THE DRY CREEK RANCHERIA BAND
OF POMO INDIANS, a federally-recognized
Indian tribe
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
---------------------------
Xxxxxxxxx Xxxxx XxXxxxx
Chairperson
DRY CREEK CASINO, LLC, a Texas limited
liability company
By:
---------------------------
H. Xxxxxx Xxxx
Manager
IN WITNESS WHEREOF, the Parties have executed this Fifth Amendment as
of this 9th day of October, 2003, effective as of the date first written above.
THE DRY CREEK RANCHERIA BAND
OF POMO INDIANS, a federally-recognized
Indian tribe
By:
---------------------------
Xxxxxxxxx Xxxxx XxXxxxx
Chairperson
DRY CREEK CASINO, LLC, a Texas limited
liability company
By: /s/ H. Xxxxxx Xxxx
---------------------------
H. Xxxxxx Xxxx
Manager
