Exhibit 10.13
FIFTH AMENDMENT TO DEVELOPMENT AND LOAN AGREEMENT
BETWEEN
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS
AND
DRY CREEK CASINO, LLC
This Fifth Amendment to the Development and Loan Agreement ("Fifth
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 Fifth 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"), as further amended
by the Third Amendment to Development and Loan Agreement dated May 29, 2003 (the
"Third Amendment"), and as further amended by the Fourth Amendment to
Development and Loan Agreement dated October , 2003 (the "Fourth Amendment").
The First Amendment, Second Amendment, Third Amendment, and Fourth 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 on
four occasions 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 terms of the Buy-Out Option.
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 definition of "Tribal Draw" set forth in the Agreement shall be
deleted and replaced with the following:
"Tribal Draw" means an amount of up to $500,000 (depending on
availability) of Net Revenues to be drawn by the Tribe each month in
accordance with Section 2.11 (a).
(2) The first sentence of Section 6.9 a. of the Agreement shall be
deleted and replaced with the following:
"Following the end of the third full year of the Credit
Enhancement Term, or at any time in the event of a final judgment or
good faith settlement in any action based on a Third-Party Dispute
pursuant to which Tribe is required to grant any third party any Net
Revenue participation rights in any gaming operation on the
Reservation, Tribe may terminate this Agreement with Developer, or it
shall be deemed to do so as provided in
Section 2.3 ("Buy-Out Option"), by paying, and it shall be obligated to
pay (1) all amounts outstanding with respect to the Financing,
including amounts owed to the Lender with respect to the Loan and the
outstanding balance owing by Tribe to Developer under this Agreement,
including outstanding Development Advances and accrued interest, and
(2) an amount equal to the "Base Price" as defined below, adjusted, if
at all, as set forth in subparagraph d (the "Buy-Out Fee"). The Base
Price shall be determined by multiplying the average monthly Credit
Enhancement Fee earned during the 12-month period immediately preceding
the month in which the Buy-Out Option is exercised, adjusted as set
forth in subparagraph d below, by the number of months (including
partial months) remaining in the Credit Enhancement Term ("Month
Multiplier")."
(3) Section 6.9 c. of the Agreement shall be deleted and replaced
with the following:
"c. In the event the Buy-Out Option is exercised prior to the
end of the third full year of operations during the Credit Enhancement
Term, the Buy-Out Fee (subject to the adjustment provided in
subparagraph d below) shall be computed following the completion of the
third full year of operations of the Project or any successor to the
Project to reflect the increased amount, if any, which would have been
due if the Base Fee had been calculated on the basis of operating
results for the Project or any successor Project during said third
year."
(4) Section 6.9 d. of the Agreement shall be deleted and replaced
with the following:
"d. Notwithstanding anything in this Section 6.9 to the
contrary, if the amount of the Financing that is actually funded
exceeds $5,500,000, the Credit Enhancement Fee shall be increased by
multiplying it by 100% plus any percentage by which the Gross Revenues
for the immediately preceding 12-month period ("Base Period") have
increased when compared to the 12-month period immediately preceding
the Base Period (which total percentage multiplier shall be referred to
as the "Adjustment Multiplier"), provided that if the Buy-Out Option is
exercised before the end of the third full year of the Credit
Enhancement Term, the Adjustment Multiplier shall be deemed to be 120%,
and provided further that the Adjustment Multiplier shall not exceed
120% under any circumstances."
(5) 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 Fifth 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 Fifth 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 Fifth Amendment. For the avoidance of doubt, this
shall include, without limitation, Sections 5.3 and 5.4 of the Agreement.
(d) Compete Agreement Amendments. This Fifth 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 Fifth
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 Fifth 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 Fifth
Amendment shall be invalid, illegal, unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal, and enforceable 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 Fifth Amendment and in
either case the validity, legality, and enforceability of the remaining
provisions of this Fifth Amendment shall not be in any way affected or impaired
hereby.
(f) Counterparts. This Fifth 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 Fifth 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 Fifth Amendment, in entering into this Fifth Amendment.
(iii) Both Parties represent and warrant that they have entered
into this Fifth 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 ___ 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
