CASH COLLATERAL AND DISBURSEMENT AGREEMENT
Among
U.S. Bank National Association, as Disbursement Agent,
U.S. Bank National Association, as Trustee,
Professional Associates Construction Services, Inc., as
Independent Construction Consultant,
Inn of the Mountain Gods Resort and Casino
and
The Guarantors named herein
dated
November 3, 2003
TABLE OF CONTENTS
PAGE
1. Definitions..........................................................................2
1.1. Defined Terms................................................................2
1.2. Index of Additional Defined Terms...........................................10
2. Appointment of Disbursement Agent; Establishment of Securities Accounts;
Related Provisions...............................................................11
2.1. Appointment of the Disbursement Agent.......................................11
2.2. Establishment of Collateral Accounts........................................11
2.3. Acknowledgement of Security Interest; Control...............................12
2.4. Control of Securities Accounts..............................................12
2.5. Control of Deposit Account..................................................13
2.6. Issuer's Rights.............................................................14
2.7. Cash Equivalents............................................................14
2.8. Remedies....................................................................14
2.9. Waiver of Set-Off Rights....................................................15
2.10. Cooperation.................................................................15
3. Certain Responsibilities of Disbursement Agent and Independent
Construction Consultant..........................................................16
3.1. Disbursements from the Collateral Accounts..................................16
3.2. Transfer of Funds at Direction of Trustee...................................16
3.3. Payment of Compensation.....................................................16
3.4. Periodic Review.............................................................17
4. Disbursements.......................................................................18
4.1. Initial Disbursements from the Construction Disbursement Account............18
4.2. Subsequent Disbursements from the Construction Disbursement Account.........19
4.3. Other Disbursements from the Construction Disbursement Account..............21
4.4. Interest Reserve Account Disbursements......................................22
4.5. Conditions Precedent to Construction Reserve Account Disbursements..........23
4.6. Retainage Account Disbursements.............................................24
4.7. Final Disbursement of Funds in Pledged Accounts Following the
Project Completion Date................................................24
5. Certain Covenants...................................................................24
5.1. Amendments to Project Budget................................................24
5.2. Construction Contract Amendment Process.....................................26
5.3. Construction Contracts Entered into After the Issue Date....................27
5.4. Updates to Project Budgets and Project Budget Certificate...................27
5.5. Project Cost Schedule Certificate...........................................28
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5.6. Off-Site Materials..........................................................28
5.7. Assignment of Material Construction Contracts...............................28
6. Disbursed Funds Account.............................................................28
6.1. Rights of the Issuer to Disbursed Funds Account.............................28
6.2. Right to Substitute Disbursed Funds Account.................................29
7. Limitation of Liability.............................................................29
7.1. Limitation of Disbursement Agent's Liability................................29
7.2. Limitation of Independent Construction Consultant's Liability...............29
8. Indemnity and Insurance.............................................................30
8.1. Indemnification of Disbursement Agent.......................................30
8.2. Insurance...................................................................30
9. Termination.........................................................................31
10. Substitution or Resignation of the Disbursement Agent...............................32
10.1. Procedure...................................................................32
10.2. Successor Disbursement Agent by Merger, etc.................................33
10.3. Eligibility; Disqualification...............................................33
10.4. Notification of Independent Construction Consultant.........................33
11. Statement of Collateral Accounts....................................................33
12. Miscellaneous.......................................................................33
12.1. Waiver......................................................................33
12.2. Invalidity..................................................................33
12.3. No Authority................................................................34
12.4. Assignment..................................................................34
12.5. Benefit.....................................................................34
12.6. Time 34
12.7. Choice of Law...............................................................34
12.8. Entire Agreement; Amendments................................................34
12.9. Notices.....................................................................34
12.10. Counterparts................................................................35
12.11. Captions....................................................................35
12.12. Right to Consult Counsel....................................................35
12.13. Tribe Authorization.........................................................35
13. Waiver of Sovereign Immunity, Jurisdiction, Consent to Service of
Process; Arbitration and Agent for Services of Process...........................36
13.1. Waiver of Sovereign Immunity; Jurisdiction; Consent to Service of
Process................................................................36
13.2. Arbitration.................................................................37
13.3. Agent for Service of Process................................................37
13.4. Non-Impairment..............................................................38
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TABLE OF EXHIBITS
EXHIBITS
Exhibit A Form of Initial Disbursements Certificate
Exhibit B-1 Form of Issuer's Closing Certificate
Exhibit B-2 Form of Independent Construction Consultant's Closing Certificate
Exhibit B-3 Form of Disbursement Agent's Closing Certificate
Exhibit B-4 Form of Trustee's Closing Certificate
Exhibit C-1 Form of Construction Disbursement Request and Certificate
Exhibit C-2 Form of Advance Disbursement Request and Certificate
Exhibit C-3 Form of Overfunded Amounts Disbursement Request and Certificate
Exhibit D Form of Interest Disbursement Request
Exhibit E-1 Form of Construction Reserve Disbursement Request and Certificate
re: Construction Expenses
Exhibit E-2 Form of Construction Reserve Disbursement Request and Certificate
re: Compact Settlement
Exhibit E-3 Form of Construction Reserve Disbursement Request and Certificate
re: Excess Reserve Amounts
Exhibit F Form of Retainage Account Disbursement Request and Certificate
Exhibit G Form of Final Disbursement Request and Certificate
Exhibit H-1 Form of Project Budget Amendment Certificate
Exhibit H-2 Form of Construction Contract Amendment Certificate
Exhibit H-3 Form of Additional Construction Contract Certificate
Exhibit I Form of Consent to Pledge of Construction Contract
ANNEXES
Annex 1 Initial Project Budget
Annex 2 Collateral Accounts
SCHEDULE
Schedule 1 Guarantors
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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
November 3, 2003, by and among U.S. Bank National Association, as disbursement
agent, securities intermediary and depositary bank (together with any successor
disbursement agent permitted hereunder, the "DISBURSEMENT AGENT"), U.S. Bank
National Association, as trustee under the Indenture (as defined below)
(together with its successors and assigns from time to time under the Indenture,
the "TRUSTEE"), Professional Associates Construction Services, Inc., a
California corporation (the "INDEPENDENT CONSTRUCTION CONSULTANT"), Inn of the
Mountain Gods Resort and Casino (the "ISSUER"), an unincorporated enterprise of
the Apache Tribe of the Mescalero Reservation (the "TRIBE"), and the entities
listed on Schedule 1 hereto, each an unincorporated enterprise of the Tribe (the
"GUARANTORS"). Capitalized terms used herein but not otherwise defined herein
shall have the meaning assigned to such terms in the Indenture.
RECITALS
A. NOTES. Concurrently herewith, the Issuer is issuing $200.0 million
aggregate principal amount of its 12% Senior Notes due 2010 (together with all
notes issued in exchange or replacement therefor, the "INITIAL NOTES"), pursuant
to that certain Indenture among the Issuer, the Guarantors, the Tribe and the
Trustee, dated as of November 3, 2003 (the "INDENTURE"). In addition, the Issuer
may from time to time issue additional Senior Notes due 2010 pursuant to the
Indenture in accordance with the provisions thereof (collectively with the
Initial Notes, the "NOTES"). The Notes will have the benefit of the guarantees
of the Guarantors (the "GUARANTEES" and, together with the Notes, the
"Securities") of the Guarantors provided for in the Indenture.
B. RESORT. The Issuer desires to design, develop, construct, equip and
operate phase II of its two-phase construction project (the "PROJECT"), which is
comprised of the Inn of the Mountain Gods Resort and Casino, including a casino,
hotel and certain related amenities (the "RESORT") on the Tribe's reservation
near Mescalero, New Mexico (the "RESERVATION"). The Issuer has all rights and
decision making authority with respect to the development, construction and
operation of the Resort pursuant to that certain ordinance of the tribal council
of the Tribe adopted on April 2, 2003 (Resolution 03-05).
C. CONSTRUCTION DISBURSEMENT ACCOUNT, INTEREST RESERVE ACCOUNT AND
CONSTRUCTION RESERVE ACCOUNT. Contemporaneously with the execution of this
Agreement, the Issuer will deposit (i) $[ ] million into the Construction
Disbursement Account (as defined below), (ii) $[ ] million into the Interest
Reserve Account (as defined below) and (iii) $[ ] million into the Construction
Reserve Account (as defined below) (in each case, the "INITIAL DEPOSIT"). Assets
maintained in the Construction Disbursement Account, the Interest Reserve
Account and the Construction Reserve Account are owned beneficially by the
Issuer and pledged to the Trustee for the benefit of itself and the holders of
the Notes, subject to the terms and conditions of this Agreement.
D. COLLATERAL. Until the Project Completion Date, as security for its
obligations under the Notes, the Guarantees and the Indenture, pursuant to the
Accounts Security Agreement
(as defined below) the Issuer and the Guarantors have granted security interests
to the Trustee, on behalf of itself and the holders of Notes, in the Collateral
Accounts.
E. PURPOSE. The parties have entered into this Agreement in order to set
forth the conditions upon which, and the manner in which funds will be disbursed
(i) from the Construction Disbursement Account and Retainage Account in order to
finance the design, development and construction of the Resort, including the
furnishing, fixturing and equipping thereof, (ii) from the Interest Reserve
Account for payment of the first three interest payments due on the Notes, (iii)
from the Construction Reserve Account to, subject to the limitations set forth
in this Agreement, fund a Compact Dispute Resolution and, after all funds in the
Construction Disbursement Account have been exhausted, to finance completion of
the Resort, including the furnishing, fixturing and equipping thereof, and (iv)
from the other accounts established hereby for the purposes set forth herein.
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:
"ACCOUNTS SECURITY AGREEMENT" has the meaning ascribed thereto in the
Indenture.
"ADVANCE CONSTRUCTION DISBURSEMENT" means a disbursement from the
Construction Disbursement Account pursuant to Section 4.3.
"AFFILIATE" has the meaning ascribed thereto in the Indenture.
"APPLICABLE PERMITS" means federal, state, tribal and local license
authorizations, certifications, filings, recordings, permits or other approvals
with or of any governmental or quasi-governmental authority, including, without
limitation, environmental, construction, operating, use or occupancy permits and
any agreements, consents, licenses or approvals that are required or that are
otherwise necessary for the performance of the design, construction, operation
or maintenance of the Resort. Without limiting the foregoing, Applicable Permits
also include Construction Period permits for temporary construction utilities
and temporary sanitary facilities, dump permits, road use permits, permits
related to the use, storage and disposal of Hazardous Materials introduced to
the Reservation for or in connection with the performance of the design,
construction, operation or maintenance of the Resort, and permits issued
pursuant to any building, mechanical, electrical, plumbing or similar codes or
permits otherwise required by or in connection with the Transaction Documents.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
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"BUSINESS DAY" has the meaning ascribed thereto in the Indenture.
"CASH EQUIVALENTS" has the meaning ascribed thereto in the Indenture.
"CHANGE IN SCOPE" means a change, alteration, addition or deletion of the
scope of work, quality of work or other aspect of work in any line item in the
Project Budget.
"COLLATERAL" has the meaning ascribed thereto in the Accounts Security
Agreement:
"COLLATERAL DOCUMENTS" has the meaning ascribed thereto in the Indenture.
"COMPACT" has the meaning ascribed thereto in the Indenture.
"COMPACT DISPUTE" has the meaning ascribed thereto in the Indenture.
"COMPACT DISPUTE RESOLUTION" has the meaning ascribed thereto in the
Indenture.
"CONSTRUCTION CONTRACT AMENDMENT" means any material amendment or
modification of a Construction Contract (including, without limitation, any
material change order to a Construction Contract).
"CONSTRUCTION CONTRACTS" means the direct contracts between the Issuer and
any Person pertaining to the construction of the Resort.
"CONSTRUCTION DISBURSEMENT ACCOUNT" means the account entitled "U.S. Bank
National Association as Disbursement Agent FAO Inn of the Mountain Gods Resort
and Casino Construction Disbursement Account" (and as further described in
Recital D and on ANNEX 2 hereto) established pursuant to Section 2.2 of this
Agreement at the Disbursement Agent's office located at 00 Xxxxxxxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000-0000, which account is to be maintained by the
Disbursement Agent and pledged to the Trustee pursuant to the terms of the
Accounts Security Agreement. The Construction Disbursement Account will
initially be funded with approximately $[ ] million.
"CONSTRUCTION EXPENSES" means Project Costs incurred in accordance with the
Project Budget, excluding, however, any Pre-Issuance Expenses.
"CONSTRUCTION PERIOD" means the period from the Issue Date to and including
the Project Completion Date of the Resort.
"CONSTRUCTION RESERVE ACCOUNT" means the account entitled "U.S. Bank
National Association as Disbursement Agent FAO Inn of the Mountain Gods Resort
and Casino Construction Reserve Account" (and as further described in Recital D
and on ANNEX 2 hereto) established pursuant to Section 2.2 of this Agreement at
the Disbursement Agent's office located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000-0000, which account is to be maintained by the Disbursement
Agent and pledged to the Trustee pursuant to the terms of the Accounts Security
Agreement. The Construction Reserve Account will initially be funded with
approximately $[ ] million.
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"CONSTRUCTION SCHEDULE" means a schedule describing the sequencing of the
components of work to be undertaken in connection with the Resort, which
schedule (as the same may be amended) demonstrates the timeline until the
Project Completion Date.
"CONSTRUCTION SERVICES AGREEMENT" means the agreement dated November 3,
2003 among the Independent Construction Consultant, the Trustee and the Issuer.
"CONTRACTOR" means a contractor or supplier of materials or services in
connection with the construction of the Resort pursuant to a direct contract
with the Issuer, including the Design Build Contractor.
"CONTROL AGREEMENTS" has the meaning ascribed thereto in the Accounts
Security Agreement.
"COST OVERRUN" means any event, other than a Change in Scope, which results
in an increase in the Project Costs.
"DESIGN BUILD CONTRACT" has the meaning ascribed thereto in the Indenture.
"DESIGN BUILD CONTRACTOR" means Centex/WorthGroup LLC, a [Delaware] limited
liability company.
"DISBURSED FUNDS ACCOUNT" means the account, entitled "Inn of the Mountain
Gods Resort and Casino Disbursed Funds Account" (and as further described on
ANNEX 2 hereto) established at the Disbursement Agent's office located at 00
Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000 in the name of the Issuer, or
any substitute account selected in accordance with this Agreement, which account
shall be funded from disbursements from the Construction Disbursement Account
and Construction Reserve Account, if any, pursuant to this Agreement and shall
be pledged as collateral to the Trustee, for the benefit of itself and the
holders of the Notes, and from which the Issuer shall have check writing
authority for payments of the amounts for which funds have been disbursed to
this account.
"DISBURSEMENT AGENT'S CLOSING CERTIFICATE" means a closing certificate from
the Trustee in the form of EXHIBIT B-3 attached hereto.
"DISBURSEMENT REQUEST" means a construction Disbursement Request, an
Advance Construction Disbursement Request, an Overfunded Amounts Disbursement
Request, a Construction Reserve Disbursement Request, a Retainage Disbursement
Agreement or a Final Disbursement Request.
"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 Disbursement Agent, after appropriate consultation with the
Issuer and the Independent Construction Consultant, is unable to
approve a Construction Dis-
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bursement Request in excess of $500,000 due to the failure of the
Issuer to satisfy the conditions precedent thereto set forth
herein, including, without limitation, the condition precedent
that the Independent Construction Consultant deliver the
certificates required under this Agreement, and such failure
continues for forty-five (45) days after notice thereof without
being cured.
(c) The Issuer shall fail to perform, observe or comply with any of
its obligations under [Section 5] (and such failure continues for
a period of five (5) days after notice thereof) of this
Agreement.
(d) The Issuer shall fail to deliver any documents required to be
delivered by the Issuer pursuant to this Agreement and, other
than as set forth in clause (b) above, any such failure continues
for twenty (20) calendar days after notice thereof without being
cured.
(f) Any of the Material Construction Contracts shall have terminated,
become invalid or illegal, or otherwise ceased to be in full
force and effect (except in accordance with its terms upon
completion of the respective work or delivery of the respective
materials); PROVIDED that with respect to any Material
Construction Contract, no Event of Default shall be deemed to
have occurred as a result of such event so long as (a) the Issuer
provides written notice to the Independent Construction
Consultant (immediately upon, but in no event more than two (2)
Business Days after, the Issuer's becoming aware of such
Construction Contract's ceasing to be in full force or effect)
that the Issuer intends to replace such Construction Contract (or
that replacement is not necessary), and (b) in each case if, in
the reasonable judgment of the Independent Construction
Consultant, a replacement is necessary, (i) the Issuer obtains a
replacement obligor or obligors reasonably acceptable to the
Independent Construction Consultant for the affected party, (ii)
the Issuer enters into a replacement Construction Contract in
accordance with Section 5.3, on terms no less beneficial to the
Issuer and the Trustee and on then current market terms, within
thirty (30) days of such termination, and, in connection
therewith, the Issuer delivers to Trustee an executed consent
from such replacement contractor substantially in the form of
EXHIBIT I hereto, (iii) in the event the effected Construction
Contract involved the Design Build Contractor, any replacement
for the Design Build Contractor shall be of similar national
standing and reputation and shall have comparable financial
reserves as the Design Build Contractor and (iv) the Independent
Construction Consultant has determined, in its reasonable
judgment, that the Resort can be completed without any increase
in Project Costs, unless accompanied by an amendment to the
Project Budget which is permitted by this Agreement; PROVIDED,
FURTHER, that in making its certifications required pursuant to
this clause (f), the Independent Construction Consultant may rely
on any material or information which it, in its professional
opinion, deems reasonable.
"FINAL PLANS" means, with respect to any particular work or improvement
that constitutes a portion of the Resort, Plans that:
(a) have received final approval from all governmental authorities
required to approve such Plans prior to completion of the work or
improvements, if any;
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(b) contain sufficient specificity to permit the completion of such
work or improvement;
(c) are consistent with constructing the Resort to include the
Minimum Facilities; and
(d) have been signed by an architect licensed to practice
architecture in the State of New Mexico;
PROVIDED, HOWEVER, that the Final Plans may be modified from time to time in
accordance with the terms hereof.
"GAAP" has the meaning ascribed thereto in the Indenture.
"GOVERNMENT SECURITIES" 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 Issuer, any guarantor of the Notes or any other
instrumentality or agency of the Tribe.
"HARD COSTS" means the Contract Sum (as such term is defined in the Design
Build Contract) outstanding under the Design Build Contract.
"HOLDERS" means holders from time to time of the Notes.
"IGRA" means the Indian Gaming Regulatory Act of 1988, PL 100-497, 25
U.S.C. xx.xx. 2701 ET SEQ., as same may, from time to time, be amended.
"INDEBTEDNESS" has the meaning ascribed thereto in the Indenture.
"INDEPENDENT CONSTRUCTION CONSULTANT" means the Independent Construction
Consultant as defined in the preamble hereto, together with its successors and
replacements, as designated by the Trustee.
"INDEPENDENT CONSTRUCTION CONSULTANT'S CLOSING CERTIFICATE" means a closing
certificate from the Trustee in the form of EXHIBIT B-2 attached hereto.
"INITIAL PROJECT BUDGET" means the itemized schedules setting forth on a
line item basis all of the estimated Project Costs attached hereto as ANNEX I.
"INTEREST PAYMENT DATE" has the meaning ascribed thereto in the Indenture.
"INTEREST RESERVE ACCOUNT" means the account entitled "U.S. Bank National
Association as Disbursement Agent FAO Inn of the Mountain Gods Resort and Casino
Interest Reserve Account" (and as further described on ANNEX 2 hereto)
established pursuant to Section 2.2 of this Agreement at the Disbursement
Agent's office located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000,
which account is to be maintained by the Disbursement Agent and pledged
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to the Trustee pursuant to the terms of the Accounts Security Agreement. The
Interest Reserve Account will initially be funded with approximately $[ ]
million.
"ISSUE DATE" means the date of the Indenture.
"ISSUER'S CLOSING CERTIFICATE" means an Officer's Certificate of the Issuer
in the form attached hereto as EXHIBIT B-1.
"LIEN" has the meaning ascribed thereto in the Indenture.
"MATERIAL CONSTRUCTION CONTRACT" means each Construction Contract
identified by the Issuer to be material to the Resort (which the Issuer agrees
shall include all Construction Contracts with a total contract amount in excess
of $2.5 million).
"MINIMUM FACILITIES" means a hotel and casino resort facility which has in
operation a gaming space featuring at least 900 slot machines and 30 table
games, a hotel with at least 180 rooms, at least three restaurants, including a
fine dining/casual restaurant, a buffet and a coffee snack bar, and a parking
area for at least 1,900 vehicles.
"OFFICER'S CERTIFICATE" means a certificate signed by two officers of the
Issuer, one of whom must be the chief operating officer, the principal financial
officer, the treasurer or the principal accounting officer of the Issuer.
"OPERATING" means that:
(1) no Gaming License (as defined in the Indenture) has been revoked
or suspended;
(2) all Liens (other than Permitted Liens), if any, related to the
development, construction and equipping of, and beginning
operations at, the Resort have been discharged or, if payment is
not yet due or if such payment is contested in good faith by the
Issuer, sufficient funds remain in the Construction Disbursement
Account and the Construction Reserve Account to discharge such
Liens;
(3) the Resort is in a condition (including the installation of
furnishings, fixtures and equipment) to receive customers in the
ordinary course of business;
(4) the Resort is open to the general public and operating with the
Minimum Facilities in accordance with applicable law; and
(5) the Resort is open to the general public and operating in
accordance with applicable law in all material respects.
"OVERFUNDED" means that the aggregate amount of cash and Cash Equivalents
in the Construction Disbursement Account exceeds the aggregate of all amounts
then remaining unpaid under the Project Budget, as such may be updated from time
to time in accordance with Section 5.4, after deducting, as "paid," all
Retainage Amounts deposited in the Retainage Accounts.
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"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 Issuer, 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 Resort and the
labor and materials necessary for the construction thereof.
"PRE-ISSUANCE EXPENSES" means, collectively, (a) any expenses paid by the
Issuer, or by the Tribe on behalf of the Issuer, in connection with the Resort
prior to the Issue Date, (b) to the extent not included within clause (a),
amounts payable to the Design Build Contractor as of the Issue Date for work
performed prior thereto and (c) to the extent not included within clause (a),
any expenses paid pursuant to Schedule A of the Initial Disbursements
Certificate.
"PROJECT BUDGET" means the Initial Project Budget as the Initial Project
Budget may be amended from time to time in accordance with this Agreement.
"PROJECT COMPLETION DATE" has the meaning ascribed thereto in the
Indenture.
"PROJECT COST SCHEDULE" means an itemized schedule of all Project Costs set
forth in the Project Budget.
"PROJECT COSTS" means the costs to be incurred in connection with the
acquisition, design, development, construction, equipping and opening of the
Resort.
"PROJECT REPORT" means the project report, dated [ ], 2003, prepared by
Rider Xxxx Xxxxxx & Xxxxxx Ltd. in connection with the Project.
"QUALIFYING SUBORDINATED INDEBTEDNESS" has the meaning ascribed thereto in
the Indenture.
"REALIZED SAVINGS" means, with respect to any line item in the Project
Budget, the excess of the Remaining Budgeted Amount for such line item over the
amount of funds expended or owed by the Issuer after the Issue Date to complete
the tasks set forth in such line item and for the materials and services used to
complete such tasks; PROVIDED, HOWEVER, that Realized Savings for any line item
shall be deemed to be zero unless and until the Issuer has delivered a fully
executed Project Budget Amendment Certificate in the form of EXHIBIT H-1
(together with all exhibits thereto) which includes such Realized Savings.
"REMAINING BUDGETED AMOUNT" for any line item on the Project Budget means
the Total Budgeted Amount for such line item in the Project Budget less the
amount of Pre-Issuance Expenses and any amounts paid (including any Retainage
Amounts deposited in the Retainage Account) with respect to such line item.
"RESORT BUSINESS" has the meaning ascribed thereto in the Indenture.
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"RETAINAGE ACCOUNT" means the account entitled "U.S. Bank National
Association as Disbursement Agent FAO Inn of the Mountain Gods Resort and Casino
Retainage Account" (and as further described on ANNEX 2 hereto) established
pursuant to Section 2.2 of this Agreement at the Disbursement Agent's office
located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000, which account
is to be maintained by the Disbursement Agent and pledged to the Trustee
pursuant to the terms of the Accounts Security Agreement. [The Retainage Account
will initially be funded with approximately $[ ] million.]1
"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
Issuer 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 set forth in such Construction
Contract, which amount shall be deposited into the Retainage Account in
accordance with Section 4.2.1, PROVIDED, HOWEVER, such Retainage Amounts shall
not be less than the amount set forth in such Construction Contract and shall
not be released other than in compliance with the terms of such Construction
Contract. For purposes of this Agreement, any Retainage Amounts actually
deposited in the Retainage Account shall be deemed "paid" when computing the
amount of the Project Budget deemed "unpaid" at the time of such determination.
"SECURED OBLIGATIONS" has the meaning ascribed thereto in the Accounts
Security Agreement.
"SECURED PARTIES" has the meaning ascribed thereto in the Accounts Security
Agreement.
"SOFT COSTS" means all costs and expenses (other than Hard Costs) set forth
in the Project Budget.
"SWEEP TERMINATION DATE" has the meaning ascribed to such term in the
Indenture.
"TOTAL BUDGETED AMOUNT" with respect to any line item in the Project Budget
at any given time means the total amount budgeted for such line item in the
Project Budget at such time.
"TRANSACTION DOCUMENTS" means each of this Agreement, the Indenture, the
Notes, the Guarantees, the Accounts Security Agreement, the Control Agreements
and each other document entered into in connection herewith and therewith.
"TRUSTEE'S CLOSING CERTIFICATE" means a closing certificate from the
Trustee in the form of EXHIBIT B-4 attached hereto.
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1 Discuss if Centex will require Retainage Account to be funded with amounts
previously retained?
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"UCC" means the Uniform Commercial Code as the same may, from time to time,
be in effect in the State of New York.
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
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AAA............................................................... 13.2
Additional Construction Contract Certificate...................... 5.3
Advance Construction Disbursement Request......................... 4.3.1
Agreement......................................................... Introduction
Collateral Accounts............................................... 2.2
Construction Contract Amendment Certificate....................... 5.2
Construction Disbursement Request................................. 4.2.1(a)
Construction Reserve Disbursement Request......................... 4.5
CT................................................................ 13.3
Deposit Account................................................... 2.5
Deposit Account Order............................................. 2.5
Disbursement Agent................................................ Introduction
Entitlement Order................................................. 2.4
Final Disbursement................................................ 4.6
Final Disbursement Request........................................ 4.6
Financial Assets.................................................. 2.4
Indenture......................................................... A of Recitals
Independent Construction Consultant............................... Introduction
Initial Deposit................................................... D of Recitals
Initial Disbursements............................................. 4.1
Initial Disbursements Certificate................................. 4.1
Initial Notes..................................................... A of Recitals
Issuer............................................................ Introduction
Material Construction Contract Amendment.......................... 5.2
Notes............................................................. A of Recitals
Off-Site Stored Material.......................................... 5.6
Overfunded Amounts Disbursement Request........................... 4.3.2
Proceeds.......................................................... C of Recitals
Project Budget Amendment Certificate.............................. 5.1.3
Reservation....................................................... B of Recitals
Resort............................................................ B of Recitals
Securities Account................................................ 2.4
Security Entitlements............................................. 2.4
Tribal Party...................................................... 13.1
Tribe............................................................. Introduction
Trustee........................................................... Introduction
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2. APPOINTMENT OF DISBURSEMENT AGENT; ESTABLISHMENT OF SECURITIES
ACCOUNTS; RELATED PROVISIONS.
2.1. APPOINTMENT OF THE DISBURSEMENT AGENT. The Disbursement Agent is
hereby appointed by the Issuer and the Trustee as disbursement
agent hereunder, and the 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. The Disbursement Agent
shall hold and safeguard the 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 Issuer to the
Trustee for the ratable benefit of the Holders to be held in
accordance with the provisions hereof. In connection with its
appointment as Disbursement Agent, the Disbursement Agent hereby
represents and warrants that (i) with respect to Deposit
Accounts, it is a "bank," as such term is defined in the UCC and
(ii) with respect to Securities Accounts, it is a "securities
intermediary" as defined in Section 8-102(a)(14) of the UCC.
2.2. ESTABLISHMENT OF COLLATERAL ACCOUNTS. The Disbursement Agent
hereby establishes at its offices located at 00 Xxxxxxxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000 the following accounts,
which shall be maintained as special, segregated deposit accounts
or securities accounts, as applicable, at all times until such
accounts are closed as set forth in Section 4.6, unless earlier
termination is otherwise provided for herein:
ACCOUNT: ACCOUNT NUMBER:
Construction Disbursement Account 33616201
Construction Reserve Account 33616202
Interest Reserve Account 33616203
Disbursed Funds Account 33616204
Retainage Account 33616205
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 Interest
Reserve Account, the Construction Reserve Account, the Retainage Account and the
Disbursed Funds Account are sometimes referred to
collectively herein as the "COLLATERAL ACCOUNTS."
All moneys, investments and securities at any time on deposit in any of the
above accounts shall constitute trust funds to be held in the custody of the
Disbursement Agent for the purposes and on the terms set forth in this
Agreement.
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2.3. ACKNOWLEDGEMENT OF SECURITY INTEREST; CONTROL. Pursuant to the
Accounts Security Agreement and subject to the terms thereof, the
parties hereto acknowledge that in order to secure the payment
and performance in full of all the Secured Obligations, the
Issuer and the Guarantors have pledged to and created in favor of
the Trustee a lien on and first priority security interest in and
to the Collateral, including the Collateral Accounts, on the
terms set forth in the Accounts Security Agreement. The
Collateral shall constitute collateral security for the payment
and performance in full of all the Secured Obligations by the
Issuer and the Guarantors and shall be subject to the control of
the Trustee and shall be held in the custody of the Disbursement
Agent in trust for the purposes of, and on the terms set forth
in, the Accounts Security Agreement and this Agreement.
2.4. CONTROL OF SECURITIES ACCOUNTS. The Disbursement Agent hereby
agrees and confirms that it has established the Collateral
Accounts as set forth and defined in this Agreement. The
Disbursement Agent and the Issuer agree that (a) the Disbursement
Agent is acting as a "securities intermediary" (within the
meaning of Section 8-102(a)(14) of the UCC) with respect to any
Collateral Accounts that are "securities accounts" (within the
meaning of Section 8-501 of the UCC, each a "SECURITIES ACCOUNT")
and the "financial assets" (within the meaning of Section
8-102(a)(9) of the UCC, the "FINANCIAL ASSETS") credited to such
Securities Accounts; (b) each such Securities Account established
by the Disbursement Agent is and will be maintained as a
"securities account"; (c) the Issuer 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 Securities Accounts and
with respect to such Securities Accounts and the Disbursement
Agent shall so note in its records pertaining to such Financial
Assets and Securities Accounts; and (d) all Financial Assets in
registered form or payable to or to the order of and credited to
any such Securities Account shall be registered in the name of,
payable to or to the order of, or specially endorsed to, the
Disbursement Agent, or in blank, or credited to another
securities account maintained in the name of the Disbursement
Agent, as applicable, and in no case will any Financial Asset
credited to any such Securities Account be registered in the name
of, payable to or to the order of, or endorsed to, the Issuer or
any other Person except to the extent the foregoing have been
subsequently endorsed by the Issuer or such Person to the
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 Securities 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 Issuer's "security entitlements" (within the meaning of
Section 8-102(a)(17) of the UCC, "SECURITY ENTITLEMENTS") with
respect to the Securities Accounts and the Financial Assets
credited to the Securities Accounts. All property delivered to
the Disbursement Agent by or on behalf of the Issuer pursuant to
this Agreement will be promptly credited to the Securities
Accounts and shall be treated as Financial Assets. If at any time
the Disbursement Agent shall receive from the Trustee any
"entitlement order" (within the meaning of Section 8-102(a)(8) of
the UCC, an "ENTITLEMENT ORDER") relating to the Securities
Accounts or Financial Assets credited to the Securities Accounts,
the Disbursement Agent shall comply with such Entitlement Order
without further consent by the Issuer or any other Person. In the
event that the Disbursement Agent receives conflicting
Entitlement Orders relating to the Securities Accounts or
Financial Assets credited to the Securities Accounts from the
Trustee and any other Person (including, without limitation, the
Issuer), the Disbursement Agent shall comply with the Entitlement
Orders
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originated by the Trustee. Each of the Issuer and the
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 (and, to
the extent provided herein, the Issuer) to comply with
Entitlement Orders originated by such Person relating to the
Securities Accounts or Financial Assets credited to the
Securities Accounts. Except for the claims and interests of the
Trustee and the Issuer in the Securities Accounts and the
Financial Assets credited to the Securities Accounts, neither the
Disbursement Agent nor the Issuer knows of any claim to, or
interest in, any Securities Account or Financial Assets credited
to the Securities Accounts. If the Disbursement Agent or the
Issuer obtains actual knowledge that any Person has asserted a
lien, encumbrance or adverse claim against any of the Securities
Accounts or Financial Assets credited to the Securities Accounts,
such party will promptly notify the Trustee thereof. In the event
that the Disbursement Agent has or subsequently obtains by
agreement, operation of law or otherwise a lien or security
interest in any Securities Account, any Security Entitlement
carried therein or credited thereto or any Financial Asset that
is the subject of any such Security Entitlement, the 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 Securities
Accounts will not be subject to deduction, set-off, banker's lien
or any other right, and the Disbursement Agent shall not grant,
permit or consent to any other right or interest in such
Financial Assets, in favor of any Person (including the
Disbursement Agent) 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 Agent's
jurisdiction (within the meaning of Section 8-110 of the UCC).
The Securities Accounts shall be governed by the laws of the
State of New York.
2.5. CONTROL OF DEPOSIT ACCOUNT. The Disbursement Agent hereby agrees
and confirms that it has established the Collateral Accounts as
set forth and defined in this Agreement. For so long as this
Agreement remains in effect, the 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 any Collateral Accounts that are "deposit accounts"
(within the meaning of Section 9-102 of the UCC, each a "DEPOSIT
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 each Deposit Account. If
at any time the Disbursement Agent shall receive from the Trustee
any instruction directing disposition of any funds in the Deposit
Account (a "DEPOSIT ACCOUNT ORDER"), the Disbursement Agent shall
comply with such Deposit Account Order without further consent by
the Issuer or any other Person. In the event that the
Disbursement Agent receives conflicting Deposit Account Orders
relating to the Deposit Account, the Disbursement Agent shall
comply with the Deposit Account Orders originated by the Trustee.
Each of the Issuer and the 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 Deposit Account Orders originated
by such Person relating to the Deposit Account. If the
Disbursement Agent or the Issuer obtains knowledge that any
Person has asserted a lien, encumbrance or adverse claim against
the Deposit Account, such party will promptly notify the Trustee
thereof. In the event that the Disbursement Agent has or
subsequently obtains by agreement, operation of law or otherwise
a lien or security interest in the Deposit Account, the
Disbursement Agent agrees that such lien or security interest
shall be subordinate to the lien and security interest of the
Trustee. Regardless of any provision in any other
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agreement, for purposes of the UCC, the State of New York shall
be deemed to be the Disbursement Agent's jurisdiction (within the
meaning of Section 9-304 of the UCC). The Deposit Account shall
be governed by the laws of the State of New York.
2.6. ISSUER'S RIGHTS. During the term of this Agreement, the Issuer
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 hereof.
2.7. CASH EQUIVALENTS. Subject to the last sentence of this Section
2.7, the Disbursement Agent shall invest any money held in any
Collateral Account other than in the Interest Reserve Account, in
such Cash Equivalents, and in the case of the Interest Reserve
Account, in such Government Securities, in each case, as directed
in writing by the Issuer from time to time; PROVIDED that the
Issuer shall direct the Disbursement Agent to invest any money
held in the Interest Reserve Account only in such non callable
Government Securities that will mature approximately on, but not
later than, any of the first three Payment Dates, and with
respect to each Payment Date, that will mature in such amounts as
will be sufficient to pay the interest that is due on the Notes
on such Interest Payment Date. In the event that the Disbursement
Agent has not received any such written directions, the
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 Securities
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 Issuer. The Disbursement Agent 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 Disbursement Agent as directed in writing by the Issuer to
make any distribution required by this Agreement. In addition, if
a an Event of Default has occurred and is continuing, the
Disbursement Agent shall liquidate and sell any investment if so
directed in writing by the Trustee, and shall invest any money
held in any Securities Account only as directed by the Trustee.
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 Agent shall disburse funds
from the Collateral Accounts only as directed by the Trustee, 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 this Section 2.8;
(b) Any cash that is Collateral held by the Disbursement Agent
and all cash proceeds received by the 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 the
Disbursement Agent pursuant to the Collateral Documents), in
the sole discretion of Trustee, against the Obligations for
the benefit of
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the Trustee. Any surplus of such cash or cash proceeds held
by the Disbursement Agent and remaining after payment in
full of all the Obligations shall be paid over to the Issuer
or to whosoever may be lawfully entitled to receive such
surplus or as a court of competent jurisdiction may direct;
(c) The Issuer 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 Issuer is obligated hereby to do, to
exercise such rights as the Issuer might exercise with
respect to the Collateral and to execute and file in the
Issuer'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;
(d) to withhold any further disbursements under any pending or
future Disbursement Request;
(e) to reallocate, without the consent of the Issuer or the
Tribe, any or all Project Costs shown on any line item of
the Project Budget, and Trustee, in connection with such
reallocation or otherwise, may apply any amounts shown on
any line item of the Project Budget (and any cash
Collateral) to the Project Costs necessary to complete the
Resort; or
(f) to enforce any rights the Trustee may have under any Consent
to Collateral Assignment of Contract given by any Contractor
for the benefit of the Trustee.
2.9. WAIVER OF SET-OFF RIGHTS. The 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 Issuer. The waivers set forth in this Section
2.9 are of rights which may exist now or hereafter in favor of
the Disbursement Agent in its individual capacity, and not of any
such rights which may exist now or hereafter in favor of the
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 Issuer.
2.10. COOPERATION. The 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 Issuer
and the 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 AGENT AND INDEPENDENT
CONSTRUCTION Consultant.
3.1. DISBURSEMENTS FROM THE COLLATERAL ACCOUNTS. The 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, the 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 the Disbursement Agent receives notice from the Trustee or
the Issuer that an Event of Default exists until such time as the
Disbursement Agent receives notice from the Trustee that such
Event of Default no longer exists, the Disbursement Agent shall
only withdraw or transfer amounts in any Securities Account or
any Collateral Account at the direction of the Trustee.
3.3. PAYMENT OF COMPENSATION.
3.3.1 DISBURSEMENT AGENT'S COMPENSATION. On the first Business
Day of each month during the Construction Period (except for
the initial payment, which shall be disbursed as set forth
in Section 4.1 below), the Disbursement Agent shall disburse
from the Construction Disbursement Account, or the
Construction Reserve Account if the Construction
Disbursement Account has been fully depleted, $[ ] to
Disbursement Agent, which amount shall constitute
compensation for services to be performed by Disbursement
Agent under this Agreement during such month.
3.3.2 INDEPENDENT CONSTRUCTION CONSULTANT'S COMPENSATION. The
Independent Construction Consultant is hereby appointed by
the Trustee and shall act at the behest of and owe a
fiduciary duty to the Trustee and the Holders and shall have
no fiduciary or other duty or responsibility to the Issuer,
the Tribe or any other party. The Independent Construction
Consultant shall deliver to the Disbursement Agent, on or
prior to the third Business Day of each month during the
Construction Period, an invoice setting forth the amounts
owed to it as compensation for its services during the
immediately preceding month and documentation of its
reimbursable expenses permitted under the Construction
Services Agreement on the fifth Business Day of each month
during the Construction Period (except for the initial
payment, which shall be disbursed as set forth below), the
Disbursement Agent shall disburse funds to the Independent
Construction Consultant from the Construction Disbursement
Account, or the Construction Reserve Account if the
Construction Disbursement Account has been fully depleted,
as compensation for services performed by the Independent
Construction Consultant during the previous month, in an
amount equal to $125 for each hour of the Independent
Construction Consultant's services as set forth on such
invoice (which amount shall not exceed a total of $12,000
during any calendar quarter, unless otherwise agreed), plus
the total amount of its reimbursable expenses permitted
under the Construction Services Agreement incurred in
connection with the performance of its duties hereunder
during such month, unless the Trustee or the Issuer notifies
the Disbursement Agent and the Independent Construction
Consultant that the Independent Construction Consultant is
in default, at which time the Disbursement Agent may, at its
sole discretion, cease all such payments. Until such time as
the Trustee provides written notice to the con-
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trary to the Disbursement Agent and the Independent
Construction Consultant in accordance with the terms hereof,
all amounts payable to the Independent Construction
Consultant shall be applied to the [insert appropriate line
item] line item in the Project Budget.
3.3.3 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 Issuer 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.
3.4. PERIODIC REVIEW.
3.4.1 REVIEW BY DISBURSEMENT AGENT. The 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 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 Issuer, the Independent
Construction Consultant and such other employees,
consultants or agents as the Disbursement Agent shall
reasonably request to be present for such meetings. In
addition, the 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 Construction Disbursement Request
and any certificates in support of any of the foregoing. The
Disbursement Agent shall be entitled to examine, copy and
make extracts of the books, records, accounting data and
other documents of the Issuer 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
Resort. The rights of the Disbursement Agent under this
Section 3.4 shall not be construed as an obligation, it
being understood that the Disbursement Agent's duty is
limited to act upon certificates and draw requests submitted
by the Issuer and the Trustee hereunder.
3.4.2 REVIEW BY INDEPENDENT CONSTRUCTION CONSULTANT. The
Independent Construction Consultant shall exercise its best
professional judgment and utilize standard industry
practices in the performance of its duties hereunder
consistent with those of similar institutions disbursing
disbursement control funds and reviewing construction
progress; PROVIDED, that in exercising such professional
judgment the Independent Construction Consultant may rely on
any material or information it, in its professional opinion,
deems reasonable. 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 Issuer, the Design Build Contractor
and such other employees, consultants or agents of the
foregoing as the Inde-
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pendent Construction Consultant shall reasonably request to
be present for meetings. The Independent Construction
Consultant may perform such inspections of the Reservation
and the Resort as it deems reasonably necessary 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 any amendments to the Project Budget or any
Construction Contracts, any Disbursement Request and any
certificates in support of any of the foregoing, to inspect
materials stored on the Reservation and the Resort, at off
site facilities where materials designated for use in the
Resort 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 Resort. 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 Issuer and the
Design Build Contractor relating to the construction of the
Resort, 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
Resort. From time to time, at the request of the Independent
Construction Consultant, but no less often than monthly, the
Issuer shall make available to the Independent Construction
Consultant a Project Cost Schedule and the Construction
Schedule for the Resort and such other documents,
instruments, plans, specifications, shop drawings or other
information relating to the Resort as the Independent
Construction Consultant shall require. The Issuer 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 in order to facilitate the
Independent Construction Consultant's performance of its
obligations hereunder.
4. DISBURSEMENTS.
4.1. INITIAL DISBURSEMENTS FROM THE CONSTRUCTION DISBURSEMENT ACCOUNT.
Upon satisfaction of the conditions described below in this
Section 4.1, the 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, including, but not limited to,
disbursements of outstanding Retainage Amounts, if any, into the
Retainage Account. The conditions to the Initial Disbursements
shall consist of the following:
(a) the Initial Deposit with respect to each Collateral Account
shall have been deposited into each such Collateral Account;
(b) the Disbursement Agent shall have received executed
counterparts of the Initial Disbursements Certificate, the
Closing Certificate from the Issuer in the form attached
hereto as EXHIBIT B-1, the Closing Certificate from the
Independent Construction Consultant in the form attached
hereto as EXHIBIT B-2 and the Closing Certificate from the
Trustee in the form attached hereto as EXHIBIT B-4, in each
case together with all exhibits thereto. Each such document
on its face shall have been completed as to the in-
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formation required therein, and the required exhibits and
attachments, if any, shall be attached; and
(c) the Disbursement Agent shall have received confirmation from
the Trustee that it has received executed counterparts of
the Initial Disbursement Certificate, the Closing
Certificate from the Issuer in the form attached hereto as
EXHIBIT B-1, the Closing Certificate from the Independent
Construction Consultant in the form attached hereto as
EXHIBIT B-2 and the Closing Certificate on from the
Disbursement Agent in the form attached hereto as EXHIBIT
B-3, in each case together with all exhibits and attachments
thereto.
4.2. SUBSEQUENT DISBURSEMENTS FROM THE CONSTRUCTION DISBURSEMENT
ACCOUNT.
4.2.1 CONSTRUCTION DISBURSEMENT REQUESTS.
(a) The Issuer shall have the right from time to time
during the Construction Period to submit to the
Disbursement Agent a request for the disbursement of
funds from the Construction Disbursement Account
substantially in the form attached hereto as EXHIBIT
C-1 (each a "CONSTRUCTION DISBURSEMENT REQUEST"),
together with the exhibits attached thereto, as further
described below. The 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 satisfied as of such time. The Disbursement Agent
shall notify the Issuer and the Trustee in writing as
soon as reasonably possible (and in any event within
two (2) Business Days after the Disbursement Agent
receives any Construction Disbursement Request) if any
Construction Disbursement Request is disapproved and
the reason(s) therefor. The Issuer may submit
Construction Disbursement Requests no more often than
monthly.
(b) Provided that a Construction Disbursement Request
satisfies the requirements of Section 4.2.2, within two
(2) Business Days following submission of a
Construction Disbursement Request, the Disbursement
Agent shall disburse to the Disbursed Funds Account the
funds requested in such Construction Disbursement
Request and shall disburse to the Retainage Account,
the Retainage Amounts, if any, set forth in the
Construction Disbursement Request. The Issuer shall
withdraw funds from and write checks on the Disbursed
Funds Account solely for the purpose of paying
Construction Expenses specifically identified in such
Construction Disbursement Request.
(c) The Trustee, in its sole discretion, may waive any
condition to a disbursement requested in a Construction
Disbursement Request.
4.2.2 ADDITIONAL CONDITIONS TO SUBSEQUENT DISBURSEMENTS FROM THE
CONSTRUCTION DISBURSEMENT ACCOUNT. The 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, the
Disbursement Agent shall make the disbursements described in
the corresponding Construction Disbursement Request from the
Construction Disbursement Account to the Disbursed Funds
Account, the Retainage Account or as otherwise herein
described or as directed in such Construction Disbursement
Request:
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(a) The Issuer shall have submitted to the Disbursement
Agent, the Trustee and the Independent Construction
Consultant, a Construction Disbursement Request in the
form set forth in EXHIBIT C-1 attached hereto
pertaining to the amounts requested for disbursement,
together with a completed Schedule in the form
contemplated thereby and the certifications of the
Independent Construction Consultant in the form of
Annex 1 attached thereto and the certifications of the
Design Build Contractor, in the form of Annex 2
attached thereto, as applicable.
(b) The Disbursement Agent and the Independent Construction
Consultant shall have received copies of all
Construction Contracts 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: (i) a consent substantially in the form
attached hereto as EXHIBIT I signed by the counterparty
to such Material Construction Contract; and (ii) copies
of such performance and payment bonds as the Issuer may
require to be provided to the Issuer pursuant to such
Material Construction Contract. Such bonds shall name
the Issuer and the Trustee as co-obligees and shall be
in full force and effect. The Disbursement Agent may
rely upon the certification of the Issuer set forth in
the Disbursement Request in order to establish
satisfaction of this condition.
(c) The Disbursement Request on its face shall have been
completed as to the information required therein and
the required exhibits and attachments, if any, are
attached.
(d) The Disbursement Agent shall not be aware of any
material error, inaccuracy, misstatement or omission of
fact in any Disbursement Request or an exhibit or
attachment thereto or information provided by the
Issuer upon the request of the Disbursement Agent.
(e) The Disbursement Agent is not aware (solely from the
facts set forth in any Disbursement Request or any
certificate from the Design Build Contractor or the
Independent Construction Consultant or any notice from
any party hereto) that an Event of Default exists and
is continuing hereunder.
(f) The Issuer certifies that any amounts released to it
and/or deposited into the Disbursed Funds Account
pursuant to any previous Construction Disbursement
Requests (other than Advance Construction Disbursements
permitted to be outstanding under this Agreement) shall
have been paid to the respective parties identified on
the Schedule A of each such previously approved
Disbursement Request, except for such limited payments
as the Independent Construction Consultant reasonably
determines to have been withheld for good cause.
4.2.3 NON-SATISFACTION OF CONDITIONS. In the event that the
Disbursement Agent determines that any condition of (x)
Section 4.2.2 described above is not satisfied in respect of
any Construction Disbursement Request or (y) Sections
4.2.2(b) through (e) described above is not satisfied in
respect of any Construction Reserve Disbursement Request in
the form of EXHIBIT E-1 and so long as any such condition is
not satisfied, the Disbursement Agent shall
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not authorize any disbursement of funds from the
Construction Disbursement Account or Construction Reserve
Account, as applicable, pursuant to a Disbursement Request;
PROVIDED, HOWEVER, that (notwithstanding the provisions of
Sections 2.8 and 3.2) if all applicable conditions set forth
in Section 4.2.2 other than clauses (e) and (f) thereof have
been met, the Disbursement Agent shall make distributions
directly to the Design Build Contractor in an amount equal
to the amount due and payable under the Design Build
Contract for work completed prior to the date of such Event
of Default; PROVIDED FURTHER, that the following payments
may be made by the Disbursement Agent (notwithstanding the
provisions of Sections 2.8 and 3.2) if all applicable
conditions set forth in Section 4.2.2 other than clause (e)
thereof have been met:
(a) with the consent of the Trustee, if all other
conditions in Section 4.1 hereof are met, payments for
work completed or materials purchased on or prior to
the date that the Disbursement Agent determined that
condition (e) of Section 4.2.2 was not satisfied and
has so notified the Issuer in writing, PROVIDED such
payment has been approved by the Independent
Construction Consultant;
(b) with the consent of the Trustee (i) payments not to
exceed $5,000,000 in the aggregate to prevent the
condition of the Resort from deteriorating or to
preserve any work completed as certified in writing to
the Disbursement Agent and if the Trustee to be
reasonably necessary or advisable by the Issuer and the
Independent Construction Consultant and (ii) if the
Trustee determines it is in the best interest of the
holders of the Notes to continue construction to the
final completion of the Project, other payments
required to complete the Project; and
(c) with the consent of the Trustee, if such condition
continues for a period of three (3) consecutive months
or more, at the written request of the Issuer,
Retainage Amounts for the portion of the Resort
completed, PROVIDED that the Issuer and the Independent
Construction Consultant each certifies in writing to
the Disbursement Agent and the Trustee the amount
required to be paid for such Retainage Amounts and that
the conditions for paying such Retainage Amounts (other
than completion of the Resort) are met.
4.3. OTHER DISBURSEMENTS FROM THE CONSTRUCTION DISBURSEMENT ACCOUNT.
4.3.1 ADVANCE CONSTRUCTION DISBURSEMENTS. The Issuer shall have
the right from time to time (but no more frequently than
once per calendar month, unless otherwise permitted by the
Disbursement Agent) to deliver to the Disbursement Agent an
Advance Construction Disbursement Request in the form of
EXHIBIT C-2, together with the certification of the
Independent Construction Consultant in the form of Annex 1
attached thereto (an "ADVANCE CONSTRUCTION DISBURSEMENT
REQUEST"), which Advance Construction Disbursement Request
shall not be required to include or attach the supporting
documentation required for all other Construction
Disbursement Requests; PROVIDED, HOWEVER, that (i) within
thirty (30) days after any such Advance Construction
Disbursement is made (or, if earlier, promptly following the
occurrence of or Event of Default, in addition to any other
rights and remedies hereunder or permitted by law), the
Issuer shall provide all supporting documentation with
respect to such Advance Construction Disbursement that would
otherwise be required for a Construction Disbursement
Request and (ii) in no event shall the aggregate of all
outstanding balances of undocumented Advance Construction
Disbursements from the Construction Disbursement Account at
any one exceed $2.5
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million. The Disbursement Agent shall approve any Advance
Construction Disbursement Request, so long as (a) the
Advance Construction Disbursement Request on its face has
been completed as to the information required therein and
(b) the Disbursement Agent shall not have received written
notice by any party hereto that an Event of Default exists
and is continuing.
4.3.2 DISBURSEMENTS OF OVERFUNDED AMOUNTS. In the event the
Construction Disbursement Account shall become Overfunded,
the Issuer shall have the right from time to time (but not
more frequently than once per calendar month, unless
otherwise permitted by the Disbursement Agent) to deliver to
the Disbursement Agent an Overfunded Amounts Disbursement
Request in the form of EXHIBIT C-3, together with the
Certification of the Independent Construction Consultant in
the form of Annex 1 attached thereto and the Certification
of the Trustee in the form of Annex 2 attached thereto (an
"OVERFUNDED AMOUNTS DISBURSEMENT REQUEST"). The Disbursement
Agent shall approve any Overfunded Amounts Disbursement
Request and shall disburse the requested funds as directed,
so long as (1) such Overfunded Amounts Disbursement Request
has been completed in full, (2) the amount of funds
requested to be disbursed does not exceed the amount by
which the Construction Disbursement Account is Overfunded,
based on the Project Budget and a Project Budget Certificate
dated as of a date not more than 30 days prior to the date
of the Overfunded Amounts Disbursement Request and (3) the
Disbursement Agent shall not have received written notice by
any party hereto that an Event of Default exists and is
continuing.
4.4. INTEREST RESERVE ACCOUNT DISBURSEMENTS.
(a) At least ten (10) Business Days prior to each Interest
Payment Date during the Construction Period, the Issuer
shall deliver to the Disbursement Agent a certificate in the
form of EXHIBIT D certifying as to the amount required to be
paid with respect to the Notes under the Indenture on such
Interest Payment Date and the calculation of such amount. On
each such Interest Payment Date, Disbursement Agent shall
liquidate securities held in the Interest Reserve Account
(to the extent required) and disburse to the Trustee the
amounts due on such Interest Payment Date with respect to
the Notes, as specified in such certificate, from the
Interest Reserve Account. In the event that the Issuer fails
to deliver the certificate required by the first sentence of
this paragraph, the Trustee may direct the Disbursement
Agent to liquidate such securities (to the extent required),
and disburse to the Trustee the amounts necessary to pay the
amounts due with respect to the Notes. In the event there
are insufficient funds in the Interest Reserve Account to
pay any amount due pursuant to a certificate or direction so
given by the Issuer or the Trustee, the Issuer shall, not
less than three (3) Business Days prior to the applicable
Interest Payment Date, deposit in cash into the Interest
Reserve Account an amount equal to such deficiency;
PROVIDED, HOWEVER, that the Trustee shall direct the
Disbursement Agent to disburse an amount equal to such
deficiency, or the unsatisfied portion thereof, from the
Construction Disbursement Account or the Construction
Reserve Account, if there are not sufficient funds in the
Construction Disbursement Account to make such payment, to
the Interest Reserve Account in the event such amounts are
not received from the Issuer prior to one (1) Business Day
prior to the applicable Interest Payment Date. The Issuer
acknowledges that any failure by the Issuer to provide
notice or deposit funds referenced
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in this Section 4.4 shall not in any way exonerate or
diminish its obligation to make all payments under the
Indenture and the Notes as and when due.
(b) Upon payment in full in cash of the first three interest
payments on the Notes, the Disbursement Agent shall transfer
any excess funds remaining in the Interest Reserve Account
to the Construction Disbursement Account.
4.5. CONDITIONS PRECEDENT TO CONSTRUCTION RESERVE ACCOUNT
DISBURSEMENTS. The Disbursement Agent shall disburse funds from
the Construction Reserve Account to the Construction Disbursement
Account, the Retainage Account, the Disbursed Funds Account or as
otherwise directed in the respective Construction Reserve
Disbursement Request (as applicable) in an amount equal to that
specified in such Construction Reserve Disbursement Request upon
satisfaction of the following conditions:
(a) The Issuer shall have submitted to the Disbursement Agent,
the Trustee and the Independent Construction Consultant a
Construction Reserve Disbursement Request (a "CONSTRUCTION
RESERVE DISBURSEMENT REQUEST") in the form set forth in (i)
EXHIBIT E-1 attached hereto pertaining to the amounts
requested for disbursement, together with the certifications
of the Independent Construction Consultant in the form of
Annex 1 attached thereto and the certifications of the
Design Build Contractor in the form of Annex 2 attached
thereto for Disbursements related to Construction Expenses,
(II) EXHIBIT E-2 attached hereto pertaining to the amounts
requested for disbursement, together with a copy of the
applicable documents relating to a Compact Dispute
Resolution and (iii) EXHIBIT E-3 attached hereto pertaining
to the amounts requested for disbursement which shall be in
an amount equal to the difference between the aggregate
amount of cash and Cash Equivalents in the Construction
Reserve Account and 10% of the amount of Hard Costs
remaining unpaid under the Project Budget LESS either (a) if
a Compact Dispute Resolution has occurred and payments
thereunder are to be made over time, the sum of all amounts
remaining to be paid pursuant to the terms of the Compact
Dispute Resolution relating to the period prior to the date
of the Indenture or (b) if a Compact Dispute Resolution has
not occurred, an amount equal to the full amount then
accrued but unpaid to the State of New Mexico pursuant to
the Compact and the revenue sharing agreement entered into
in connection therewith attributable to periods prior to the
date of the Indenture together with the certifications of
the Independent Construction Consultant in the form of Annex
1 attached thereto, the certifications of the Trustee in the
form of Annex 2 attached thereto and a copy of the Project
Budget attached as Schedule A thereto, together with a
Project Budget Certificate which shall be dated as of a date
not more than 30 days prior to the date of the applicable
Construction Reserve Disbursement Request;
(b) the conditions set forth in Sections 4.1 and, subject to the
provisions of Section 4.2.3, 4.2.2(b) through (e) have been
satisfied;
(c) for a Disbursement related to Construction Expenses, the
Disbursement Agent and the Trustee have confirmed that no
funds remain in the Construction Disbursement Account; and
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(d) the Disbursement Agent has determined that after giving
effect to the proposed Disbursement, the aggregate value of
cash and Cash Equivalents in the Construction Reserve
Account is equal to or greater than the sum of (a) 10% of
the amount of Hard Costs remaining unpaid under the Project
Budget as of the date of the Indenture and (b) the
Additional Reserve Amount or, in the case of a distribution
pursuant to clause (a)(iii) above, as of the date of the
Project Budget and a Project Budget Certificate dated as of
a date not more than 30 days prior to the date of the
Construction Reserve Disbursement Request;
PROVIDED, that immediately following a Compact Dispute Resolution and a
distribution pursuant to clause (a)(ii) above, an amount, if any, equal to $35.7
million LESS the aggregate value of all disbursements to be made after the date
of the distribution made pursuant to clause (a)(ii) above pursuant to the terms
of the Compact Dispute Resolution LESS 10% of the Original Hard Costs shall be
disbursed from the Construction Reserve Account and deposited by the
Disbursement Agent in the Construction Disbursement Account; PROVIDED, FURTHER,
that after the Construction Disbursement Account has been fully depleted, the
Issuer shall have the right to have Advance Construction Disbursements made so
long as the Issuer complies with the terms of Section 4.3.1 (substituting
references to the Construction Disbursement Account therein for the Construction
Reserve Account).
4.6. RETAINAGE ACCOUNT DISBURSEMENTS. If any Retainage Amounts become
payable under a Construction Contract, the Issuer may submit to
the Disbursement Agent, the Trustee and the Independent
Construction Consultant a Retainage Account Disbursement Request
(a "RETAINAGE ACCOUNT DISBURSEMENT REQUEST"), in the form set
forth in EXHIBIT F attached hereto, pertaining to the amounts
requested for disbursement, together with a completed Schedule A
in the form contemplated thereby and the certifications of the
Independent Construction Consultant in the form of Annex 1
attached thereto, and the Disbursement Agent shall, upon the
direction of the Issuer pursuant to the Officers' Certificate
delivered pursuant to the Retainage Account Disbursement Request,
disburse the amount indicated in the Retainage Account
Disbursement Request to the account specified therein.
4.7. FINAL DISBURSEMENT OF FUNDS IN PLEDGED ACCOUNTS FOLLOWING THE
PROJECT COMPLETION Date. So long as no Event of Default shall
have occurred and be continuing, if the Issuer submits to the
Disbursement Agent, the Trustee and the Independent Construction
Consultant a Final Disbursement Request (a "FINAL DISBURSEMENT
REQUEST"), in the form set forth in EXHIBIT G attached hereto,
pertaining to the amounts requested for disbursement, together
with a completed Schedule A in the form contemplated thereby and
the certifications of the Independent Construction Consultant in
the form of Annex 1 attached thereto and the certifications of
the Design Build Contractor, in the form of Annex 2 attached
thereto, then the Disbursement Agent shall, upon the direction of
the Issuer pursuant to the Officer's Certificate delivered
pursuant to the Final Disbursement Request, disburse all
remaining funds in the Pledged Accounts, if any (the "FINAL
DISBURSEMENT"), to the account specified in such Officer's
Certificate.
5. CERTAIN COVENANTS.
5.1. AMENDMENTS TO PROJECT BUDGET. The Project Budget for the Resort
may only be amended in the manner and subject to the limitations
set forth in this Section 5. The Is-
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xxxx shall have the right from time to time to amend the Project
Budget to change the amounts allocated for specific line item
components of the Resort; PROVIDED that, in any such amendment,
the Issuer may neither modify the description of any line item
nor modify the Pre-Issuance Expense amount set forth for any such
line item and, for each line item, the Remaining Budgeted Amount
must equal the difference of the Total Budgeted Amount for such
line item less (a) the amount of Pre-Issuance Expenses for such
line item and (b) any amounts paid (including any Retainage
Amounts (deposited in the Retainage Accounts).
5.1.1 SOURCES OF FUNDS FOR CHANGES IN SCOPE. A line item in the
Project Budget may be increased in connection with a Change
in Scope only if the funds for such increase are made
available in the Project Budget from:
(a) Realized Savings from the budgeted amount of another
line item and a corresponding reduction relating to the
construction line items related to such Realized
Savings in the Project Budget;
(b) the prior or concurrent deposit of additional funds
into the Construction Disbursement Account, which funds
were received in respect of (x) an equity contribution
received by the Issuer from the Tribe after the date of
the Indenture or the incurrence of Qualifying
Subordinated Indebtedness pursuant to Section 4.09 of
the Indenture or (y) in the case of an increase in a
line item relating to furniture, fixtures, equipment or
other assets used or useful in the Resort Business
only, the incurrence of Indebtedness pursuant to
Section 4.09 of the Indenture; or
(c) the reallocation of reserves in the Project Budget from
line items for which construction is complete (other
than with respect to Retainage Amounts).
5.1.2 SOURCES OF FUNDS FOR COST OVERRUNS. The Issuer covenants to
promptly cure any actual or anticipated Cost Overrun (taking
into account any applicable reserves which have been
allocated to such line item by an amendment to the Project
Budget) from:
(a) previously unallocated funds or funds as described in
Section 5.1.1(b) (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 Project Budget);
(b) with respect to a Cost Overrun as to a particular line
item, effecting an amendment to the Project Budget in
compliance with Section 5.1.1 to dedicate such funds to
the line item in question;
(c) the deposit of additional funds in an amount equal to
the Cost Overrun into the Construction Disbursement
Account, including, but not limited to, funds received
in connection with the incurrence of Indebtedness
pursuant to Section 4.09 of the Indenture; and/or
(d) from funds in the Construction Reserve Account.
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5.1.3 PROJECT BUDGET OFFICER'S CERTIFICATE. Any amendment to the
Project Budget shall be in writing. Any such amendment shall
identify with particularity the line item to be increased or
decreased, if any, the amount of the increase or decrease
(if any), and in the event of an increase in a construction
line item for a Change in Scope, the Realized Savings from
another line item in accordance with Section 5.1.1(a), the
deposit of additional funds deposited in accordance with
Section 5.1.1(b), the reduction in the line item for
"contingency" in the Project Budget and/or the reallocation
of reserves from permitted line items pursuant to Section
5.1.1(c) (other than with respect to Retainage Amounts),
which are proposed to be utilized to pay for the increase
and in the case of a decrease in a construction line item or
the Realized Savings in the amount of such reduction. The
parties acknowledge that a portion of any cost reduction
achieved with respect to the work performed under a
Construction Contract may be payable to the Design Build
Contractor or another contractor under such Construction
Contract and that in such case the entire reduction may not
become Realized Savings. Construction line items may be
reduced only upon obtaining, and up to the amount of,
Realized Savings. The "contingency" line item on the Project
Budget may be reduced by allocation to other line items. Any
amounts of Realized Savings, additional funds deposited in
accordance with Section 5.1.1(b), contingency amounts or
reallocated reserves so identified for use in connection
with a particular line item thenceforth shall be deemed
dedicated to the particular line item, unless and until the
Project Budget is amended to reduce the amounts budgeted for
the line item. Notwithstanding anything to the contrary
contained in this Agreement, construction line items may be
reduced only upon obtaining an amount not to exceed the
Realized Savings with respect to such line items and in no
event shall any amendment to the Project Budget be approved
by the Independent Construction Consultant (A) which reduces
the Minimum Facilities or materially and adversely changes
the nature, character, quality or value of the Facility and
(B) other than in accordance with Section 5.1.4.
5.1.4 PROJECT BUDGET AMENDMENT CERTIFICATE. The Issuer shall
submit the Project Budget amendment to the Disbursement
Agent and the Independent Construction Consultant by an
Officer's Certificate in the form of EXHIBIT H-1 hereto (a
"PROJECT BUDGET AMENDMENT CERTIFICATE") together with the
Independent Construction Consultant's certification, as
provided in Annex 1 thereto. Upon receipt by the
Disbursement Agent of such Project Budget Amendment
Certificate, together with the exhibits, schedules and
annexes thereto, all of which must be properly and
accurately completed as to the information required therein,
such amendment shall become effective hereunder, and the
Project Budget for the Resort shall thereafter be as so
amended. No amendment to the Project Budget shall be
effective except in accordance with the preceding sentence.
5.2. CONSTRUCTION CONTRACT AMENDMENT PROCESS. The Issuer shall not
enter into or approve any Construction Contract Amendment except
as set forth in this Section 5.2. The Issuer shall have the right
from time to time to amend any Construction Contract to change
the scope of work for any portion of the Resort and/or the
Issuer's payment obligations in connection therewith. Any
Construction Contract Amendment that (i) when taken together with
all related Construction Contract Amendments, results in a cost
increase in excess of $25,000 in a Material Construction Contract
(or, with respect to the Construction Contract with the Design
Build Contractor only, in excess of $75,000), or (ii) when taken
together with all related Construction Contract Amendments,
results in a material lessening of the scope or quality of the
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work constituting the design or construction of the Resort, the
value of which is in excess of $25,000 in a Material Construction
Contract (or, with respect to the Construction Contract with the
Design Build Contractor only, in excess of $75,000) or (iii)
results in the likely addition of no less than one week of
construction (or such amendments, in the aggregate, result in the
likely addition of no less than four weeks of construction) (a
"MATERIAL CONSTRUCTION CONTRACT AMENDMENT") shall be in writing
and shall identify with particularity all changes being made.
Each Material Construction Contract Amendment shall be effective
if and only when: (a) the Issuer has, or the Issuer and the
Contractor have, executed and delivered the Material Construction
Contract Amendment (with the effectiveness thereof subject only
to satisfaction of the conditions in clauses (b) through (e)
below, as applicable); (b) the Issuer has submitted the Material
Construction Contract Amendment to the Disbursement Agent and the
Trustee, together with an Officer's Certificate in the form
attached hereto as EXHIBIT H-2 (a "CONSTRUCTION CONTRACT
AMENDMENT CERTIFICATE"), together with all exhibits, attachments
and certificates required thereby (including the Independent
Construction Consultant's Certificate), each duly completed and
executed; (c) the Disbursement Agent has acknowledged its receipt
of the materials referenced in clause (b) above, as contemplated
in the form of the Construction Contract Amendment Certificate;
(d) if entering into such Material Construction Contract
Amendment will result in an amendment to the Project Budget, the
Issuer has complied with the requirements of Section 5.1; and (e)
if entering into such Material Construction Contract Amendment
will cause a Change in Scope, then the Issuer has complied with
the requirements of Section 1.1. Construction Contract Amendments
which are not Material Construction Contract Amendments shall not
require the approval of the Disbursement Agent, Trustee or any
other Person to be effective.
5.3. CONSTRUCTION CONTRACTS ENTERED INTO AFTER THE ISSUE DATE. The
Issuer may from time to time enter into Construction Contracts
consistent with the Final Plans and the Project Budget, as each
is in effect from time to time. Each such Construction Contract
shall be in writing. Each Material Construction Contract shall
become effective if and only when: (a) the Issuer and Contractor
have executed and delivered the Material Construction Contract
(with the effectiveness thereof subject only to satisfaction of
the conditions in clauses (b), (c) and (d) below); (b) the Issuer
has submitted to the Disbursement Agent (i) such Material
Construction Contract together with an Officer's Certificate in
the form attached hereto as EXHIBIT H-3 (an "ADDITIONAL
CONSTRUCTION CONTRACT CERTIFICATE") and all exhibits, attachments
and certificates required thereby (including the Independent
Construction Consultant's Certificate), each duly completed and
executed, and (ii) copies of such performance and payment bonds
as the counterparty to such Construction Contract may be required
to provide to the Issuer pursuant to such Material Construction
Contract (which performance and payment bonds shall name the
Trustee and the Issuer as additional obligees) and a consent
substantially in the form attached hereto as EXHIBIT I signed by
the counterparty to such Material Construction Contract; (c) if
entering into such Material Construction Contract will result in
an amendment to the Project Budget, the Issuer has complied with
the requirements of Section 5.1; and (d) if entering into such
Material Construction Contract will cause a Change of Scope, then
the Issuer has complied with the requirements of Section 1.1.
5.4. PROJECT BUDGET CERTIFICATE. If this Agreement requires delivery
of a Project Budget, the Issuer shall deliver to the Disbursement
Agent and the Independent Construction Contractor, together with
a copy of the Project Budget, a certificate, by both the Issuer
and the Design Build Contractor (a "PROJECT BUDGET CERTIFICATE")
certifying that (a) the Project Budget
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reflects all amendments that have been requested as of the time
of such Project Budget Certificate, (b) it has no knowledge of
any amendment required to be made with respect to the Project
Budget with respect to the Cost Overrun or planned Change in
Scope and (c) all amounts paid under the Project Budget as of
such date and the sum of an amount then remaining under the
Project Budget..
5.5. PROJECT COST SCHEDULE CERTIFICATE. Each Project Cost Schedule
shall set forth (i) the actual investment income (loss), less any
losses or costs associated therewith, earned on the Construction
Disbursement Account and the Construction Reserve Account through
the date of such Project Cost Schedule, and (ii) the additional
amount of investment income which the Issuer reasonably
anticipates will be earned in the Construction Disbursement
Account and the Construction Reserve account from such date
through the earlier of the Project Completion Date and the
anticipated date on which the Resort first will be Operating.
5.6. OFF-SITE MATERIALS. To the extent any amounts disbursed pursuant
to a Disbursement Request are used to purchase materials or
property to be used in the construction or furnishing of the
Resort and such materials or property are to be stored at
locations off the construction site of the Resort prior to their
incorporation into the Resort pursuant to the Plans ("OFF-SITE
STORED MATERIAL"), prior to any such Off-Site Stored Material
being so stored, the Issuer shall ensure that such Off-Site
Stored Materials are covered by the insurance policies insuring
such Off-Site Stored Materials for the replacement cost thereof;
PROVIDED that such aggregate purchase price shall in no event
exceed $5.0 million.
5.7. ASSIGNMENT OF MATERIAL CONSTRUCTION CONTRACTS. The Issuer hereby
assigns all Material Construction Contracts to the Trustee. In
order to effectuate the foregoing, the Issuer agrees to deliver
to the Trustee an executed counterpart or certified copy of each
of the Material Construction Contracts. Each such assignment
shall be evidenced by a written certificate of assignment in form
and substance satisfactory to the Trustee, and the Issuer agrees
to use its reasonable best efforts to cause such certificate of
assignment to be accompanied by a Consent to Pledge of
Construction Contracts substantially in the form of EXHIBIT I
hereto.
6. DISBURSED FUNDS ACCOUNT.
6.1. RIGHTS OF THE ISSUER TO DISBURSED FUNDS ACCOUNT. All amounts
disbursed from the Construction Disbursement Account or
Construction Reserve Account shall either be paid directly to a
Person described in and pursuant to a Disbursement Request or to
the Disbursed Funds Account. All amounts paid into the Disbursed
Funds Account shall be used to pay the applicable Persons
described in the Disbursement Request to which such funds relate,
and all such payments shall be made within 30 days of such amount
being deposited into the Disbursed Funds Account. The Disbursed
Funds Account shall be maintained in the name of the Issuer and
all funds deposited or held in such account shall belong to the
Issuer, against which the Issuer shall draw for payments of
amounts described in the applicable Disbursement Requests. All
funds deposited and held in the Disbursed Funds Account shall,
pending disbursement in accordance with this Agreement, be
invested in cash or Government Securities as directed by the
Issuer, except as otherwise provided herein or in the Accounts
Security Agreement. Pursuant to the Accounts Security Agreement,
the Issuer has granted to the Trustee (for the benefit of itself
and the holders of the Notes) a first priority security interest
in its Disbursed Funds Account.
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Funds in the Disbursed Funds Account shall be disbursed solely in
accordance with the terms and conditions of, and solely for the
purposes permitted under, this Agreement and the Indenture.
Further, the Issuer shall note in its records that all funds and
other assets in the Disbursed Funds Account have been pledged to
the Trustee.
6.2. RIGHT TO SUBSTITUTE DISBURSED FUNDS ACCOUNT. The Issuer from time
to time shall have the right to designate a substitute account to
serve as the Disbursed Funds Account; provided that no such
substitute account shall become the "Disbursed Funds Account"
until (a) the depository financial institution at which the
substitute account is located shall have a control account
agreement satisfactory to the Trustee and otherwise acknowledged
in a manner satisfactory to the Trustee that such institution has
waived its right of set off in such account or any liens thereto,
a statutory or otherwise, and (b) the Trustee shall have received
notice of the location and account number of such new substitute
account.
7. LIMITATION OF LIABILITY.
7.1. LIMITATION OF DISBURSEMENT AGENT'S LIABILITY. The 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 Issuer, the Design Build Contractor, any
Contractor or provider of materials or services in connection
with construction of the Resort; (b) the Issuer shall remain
solely responsible for all aspects of its business and conduct in
connection with its Reservation and the Resort, 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; (c) the Disbursement
Agent is not obligated to supervise, inspect or inform the
Issuer, the Tribe, the Trustee or any third party of any aspect
of the construction of the Resort or any other matter referred to
above; and (d) the Disbursement Agent owes no duty of care to the
Issuer or the Tribe to protect against, or to inform the Issuer
or the Tribe against, any negligent, faulty, inadequate or
defective design or construction of the Resort, PROVIDED that the
Disbursement Agent shall inform the Issuer 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. Notwithstanding anything to the contrary in this
Agreement, in no event shall the Disbursement Agent 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), except in the case of the
Disbursement Agent's own 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 Notes
the performance of the Issuer, the Disburse-
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ment Agent, the Design Build Contractor or any contractor,
subcontractor or provider of materials or services in connection
with construction of the Resort; (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 Resort (except in connection with the
responsibilities of the Independent Construction Consultant set
forth herein); and (c) the Issuer shall remain solely responsible
for all aspects of its business and conduct in connection with
the Resort, 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 or under the Construction Services Agreement, except as
expressly set forth herein or therein, shall be responsible only
for the performance of such duties and obligations and the
exercise of its best professional judgment and standard industry
practice in connection therewith, shall not be required to take
any action otherwise than in accordance with the terms hereof and
the Construction Services Agreement; it being understood that the
Independent Construction Consultant shall be liable for its own
negligence if, based on the scope of the Independent Construction
Consultant's engagement pursuant to the Independent Construction
Consultant Services Agreement dated as of the date hereof, it, in
furtherance of its duties hereunder, knew or should have
reasonably known of any negligent or grossly negligent acts of
the Design Build Contractor or such other related professionals
or any willful misconduct on the part of any such parties and it
fails to promptly disclose the same to the Trustee. 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 Issuer and the Design Build
Contractor; PROVIDED, HOWEVER, any opinion, representation or
certification expressed or given by the Independent Construction
Consultant in any exhibit, schedule or annex to this Agreement
shall be based on its own independent judgment and analysis,
unless otherwise expressly stated therein. 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), except in the case of the Independent Construction
Consultant's own gross negligence or willful misconduct.
8. INDEMNITY AND INSURANCE.
8.1. INDEMNIFICATION OF DISBURSEMENT AGENT. The Issuer hereby
indemnifies, holds harmless and shall defend the 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 the Disbursement
Agent's performance under this Agreement, except to the extent
that such liability, expense or claim is attributable to the
gross negligence, willful misconduct or bad faith of the
Disbursement Agent.
8.2. INSURANCE. The Disbursement Agent, at its sole cost and expense,
shall purchase and maintain throughout the term of this
Agreement, the following insurance policies:
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(a) Comprehensive general liability insurance, with minimum
limits of $2.0 million combined single limit per occurrence,
covering all property damage arising out of its operation
under this Agreement.
(b) Workers' compensation insurance covering all of its
employees and volunteers.
Said policies shall provide for 30 days' prior written notice to the Trustee and
the Issuer of cancellation or material change. If any of such insurance is
written on 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 Issuer or the Tribe under this Agreement.
9. TERMINATION.
(a) This Agreement shall terminate automatically on the earlier of
(A) repayment and performance of all Secured Obligations and (B)
the Project Completion Date; PROVIDED, however, that the
provisions of Section 13 of this Agreement shall survive
termination of this Agreement.
(b) Notwithstanding any foreclosure of any lien of any deed of trust
or security or other agreement relating to any or all of the
personal property secured by such lien, whether by the exercise
of the power of sale contained therein, by an action for judicial
foreclosure or by an acceptance of a deed in lieu of foreclosure,
the Issuer shall remain bound under this Agreement.
(c) The Issuer shall continue to be liable under this Agreement and
the provisions of this Agreement shall remain in full force and
effect notwithstanding:
(i) any modification, agreement, or stipulation between the Issuer,
the Tribe, the Disbursement Agent or the Trustee, on behalf of
itself or the holders of the Notes, or their respective
successors and assigns concerning the Collateral Documents or the
obligations thereunder;
(ii) any modification of or amendments or addenda to the Plans;
(iii) any waiver of or failure to enforce any of the terms, covenants
or conditions contained in the Collateral Documents or in any
modification thereof by any party thereto;
(iv) any discharge or release of the Issuer (or any of its
subsidiaries or Affiliates) from any liability with respect to
the Obligations;
(v) any discharge, release, exchange or subordination of any personal
property then as security for the performance of the Obligations;
-31-
(vi) any additional security taken for the Obligations;
(vii) any foreclosure or other realization on any security for the
Obligations; and
(viii) any additional Obligations of any Issuer of the Tribe.
10. SUBSTITUTION OR RESIGNATION OF THE DISBURSEMENT AGENT.
10.1. PROCEDURE. A resignation or removal of the 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 The Disbursement Agent may resign in writing at any time
and be discharged from all duties hereunder upon thirty (30)
days' written notice to all parties hereto. The Trustee or
the Holders of a majority in principal amount of the then
outstanding Notes may remove the Disbursement Agent as
provided below by so notifying the Disbursement Agent and
the Issuer 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 performing its duties
under this Agreement.
10.1.2 If the 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 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 Issuer. 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 Notes may appoint a successor Disbursement Agent
acceptable to the Issuer 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 Issuer or the Holders of at least 10% in
principal amount of the then outstanding 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 Issuer and the Trustee. There-
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upon, 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.
10.2. SUCCESSOR DISBURSEMENT AGENT BY MERGER, ETC. If the 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. The 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. NOTIFICATION OF INDEPENDENT CONSTRUCTION CONSULTANT. The
Independent Construction Consultant acknowledges and agrees that
the Trustee shall have the right to change the 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 Issuer or
the Trustee from time to time, the Disbursement Agent shall deliver to
the Issuer and the Trustee an account statement prepared by the
Disbursement Agent in a form satisfactory to the Trustee and the
Issuer setting forth with reasonable particularity the balance of
funds then in the Collateral Accounts and the Disbursed Funds Account
and the manner in which such funds are invested; PROVIDED, HOWEVER,
that the Disbursement Agent shall not be required to provide such
statements more often than weekly. The parties hereto irrevocably
instruct the Disbursement Agent that on the first date upon which the
balance in any Collateral Account is reduced to zero, the Disbursement
Agent shall deliver to the Trustee and the Issuer 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.
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12.3. NO AUTHORITY. The 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.
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.
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 Disbursement Agent:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Trustee:
U.S. Bank National Association,
00 Xxxxxxxxxx Xxxxxx Xx.
Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Issuer:
Inn of the Mountain Gods Resort and Casino
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Operating Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To the Independent Construction Consultant:
Professional Associates Construction Services, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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 Agent 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 Agent or the Trustee shall be
entitled to rely upon the advice of its counsel in any action
taken in its capacity as the 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 Issuer agrees to pay all
such reasonable counsel fees.
12.13. TRIBE AUTHORIZATION. The Issuer represents and warrants that
the Tribe has authorized the Issuer 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 Issuer to execute any other document on behalf of
the Tribe as reasonably requested by the Trustee or the
Disbursement Agent in connection with this Agreement.
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13. WAIVER OF SOVEREIGN IMMUNITY, JURISDICTION, CONSENT TO SERVICE OF
PROCESS; ARBITRATION AND AGENT FOR SERVICES OF PROCESS.
13.1. WAIVER OF SOVEREIGN IMMUNITY; JURISDICTION; CONSENT TO SERVICE
OF PROCESS.
(a) NONE OF RESORT AND THE TRIBE (EACH A "TRIBAL PARTY")
CONSENTS TO THE ENTRY, ENFORCEMENT, LEVY OR OTHER EXECUTION
OF ANY JUDGMENT FOR MONEY OR OTHER DAMAGES AGAINST ANY OF
THEIR ASSETS, REAL OR PERSONAL EXCEPTS AS CONTEMPLATED IN
THIS AGREEMENT AND EXCEPT THAT EACH TRIBAL PARTY EXPRESSLY
AND IRREVOCABLY WAIVES ITS SOVEREIGN IMMUNITY (AND ANY
DEFENSE BASED THEREON) FROM UNCONSENTED SUIT, ARBITRATION OR
OTHER LEGAL PROCEEDINGS AS AUTHORIZED IN THIS AGREEMENT,
PROVIDED THAT THE WAIVER CONTAINED IN THIS CLAUSE (a) IS
EXPRESSLY LIMITED TO ACTIONS AGAINST SUCH TRIBAL PARTY TO
(i) INTERPRET OR ENFORCE THE PROVISIONS OF THIS AGREEMENT
AND (ii) ENFORCE AND EXECUTE ANY ORDER, JUDGMENT OR RULING
RESULTING THEREFROM AGAINST THE ASSETS AND REVENUES OF SUCH
TRIBAL PARTY.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive
jurisdiction of the courts of the State of New York sitting
in the City of New York, County of New York, and any
appellate court from which any appeals there from are
available, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be
heard and determined in such court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding may be enforced by any court of competent
jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any state
court referred to in paragraph (a) of this Section 13.1.
Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party hereto irrevocably consents to service of process
in the manner provided for notices in Sections 12.9 and
13.3. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner
permitted by law.
(e) For the purposes of this Section 13.1 and Section 13.2, the
parties hereto agree that a final judgment in any such suit,
action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any
other manner provided by law.
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(f) Notwithstanding any provision of this Section 13.1, nothing
herein shall limit the ability of any party to this
Agreement to move to compel arbitration and/or move to stay
or dismiss a lawsuit in favor of arbitration pursuant to
Section 13.2 hereof.
13.2. ARBITRATION.
(a) MANDATORY ARBITRATION. Notwithstanding the irrevocable
submission of each party hereto to the exclusive
jurisdiction of the courts of the State of New York
contained in Section 13.1, each party hereto hereby
irrevocably and unconditionally agrees that any party hereto
may (i) submit any controversy, claim, suit or other action
between or among the parties hereto arising out of or
relating to this Agreement or the enforcement of rights
hereunder or (ii) remove any such action brought by any
other party in any forum other than as provided in this
Section 13.2 and submit such action to be determined by
binding arbitration. Any such arbitration shall be conducted
in accordance the Commercial Rules of the American
Arbitration Association ("AAA"). Any controversy concerning
whether an issue is arbitrable shall be determined by the
arbitrators in accordance with the AAA Commercial Rules.
Judgment upon the arbitration award may be entered in any
court having jurisdiction. The institution and maintenance
of an action for judicial relief or pursuit of a provisional
or ancillary remedy shall not constitute a waiver of the
right of any party hereto to submit the controversy or claim
to arbitration if any other party contests such action for
judicial relief. Any arbitration undertaken pursuant to this
Section 13.2 shall take place in the City of New York,
County of New York. For the avoidance of doubt, each Tribal
Party expressly and irrevocably waives its sovereign
immunity (and any defense based thereon) from unconsented
suit, arbitration or other legal proceedings to permit to be
brought pursuant to this Section 13.2.
(b) SPECIFIC ENFORCED REPRESENTATION. Each party hereto
represents and warrants to each other party hereto that this
Section 13.2 is specifically enforceable against such party
by any other party hereto.
13.3. AGENT FOR SERVICE OF PROCESS. By the execution and delivery of
this Agreement, for the purpose of this Agreement, the Issuer and
the Tribe (i) acknowledges that it has, or agrees that by the
Closing Date it shall have, by separate written instrument,
irrevocably designated and appointed CT Corporation System ("CT")
(and any successor entity) as its authorized agent upon which
process may be served in any suit or proceeding arising out of or
relating to this Agreement and acknowledges that CT has accepted
such designation and (ii) agrees that service of process upon CT
and written notices of said service to such Issuer or the Tribe
in accordance with Section 12.9 hereof shall be deemed effective
service of process upon such Issuer or the Tribe in any such suit
or proceeding. As expressly contemplated by the preceding
sentence, each Issuer and the Tribe further agrees to take any
reasonable action, including the execution and filing of any and
all such documents and instruments, as may be necessary to
continue such designation and appointment of CT in full force and
effect so long as any of the Securities shall be outstanding;
PROVIDED, HOWEVER, that the Issuer or the Tribe may, by written
notice to the Trustee, designate such additional or alternative
agent for service of process under this Section 13.3 that (i)
maintains an office located in the City of New York, County of
New York in the State of New York and (ii) is a corporate service
company which acts as agent for service of
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process for other persons in the ordinary course of its business.
Such written notice shall identify the name of such agent for
process and the address of the office of such agent for process
in the City of New York, County of New York, State of New York.
Nothing in this Section 13.3 shall affect the right of the Disbursement
Agent, the Trustee or the Independent Construction Consultant to serve legal
process in any other manner permitted by law.
13.4. NON-IMPAIRMENT. Neither any Tribal Party nor any of its Affiliates
will: (a) adopt, enact, promulgate or otherwise place into effect any
law or legal requirement that impairs or interferes, or could impair
or interfere, in any manner, with any right or remedy of another party
hereunder or their successors and assigns (it being understood and
agreed that any such law or legal requirement that is adopted,
enacted, promulgated or otherwise placed into effect without the prior
written consent of any affected party, successor or assign shall be
void and of no effect); or (b) demand, impose or receive any tax,
charge, assessment, fee or other imposition or impose any regulatory
or licensing requirement against a party, their successors or assigns,
except in connection with licensing required by the Compact entered
into between the Tribe and the State of New Mexico, as amended from
time to time.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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
Disbursement Agent
By: /s/ Xxxxx X. Xxxxxx III
---------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxxxx X. Xxxxxx III
---------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Vice President
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC.,
as Independent Construction Consultant
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary/Treasurer
INN OF THE MOUNTAIN GODS RESORT
AND CASINO
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
CASINO APACHE
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
CASINO APACHE TRAVEL CENTER
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
INN OF THE MOUNTAIN GODS
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
SKI APACHE
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer
Acknowledged to as of the date first above
written (solely with respect to Section 13
hereof)
THE APACHE TRIBE OF THE
MESCALERO RESERVATION
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: President
ANNEX I
INITIAL PROJECT BUDGET
ANNEX 2
COLLATERAL ACCOUNTS
Construction Disbursement Account:
Bank Name: US Bank National Association
ABA #: 000000000
Account #: 00000000
Account Name: US Bank National Association as
Disbursement Agent FAO Inn of the Mountain
Gods Resort and Casino Construction
Disbursement Account
Reference: Apache Construction Disbursement Account
Attention: Xxxxx Xxxxxx
Construction Reserve Account:
Bank Name: US Bank National Association
ABA #: 000000000
Account #: 00000000
Account Name: US Bank National Association as
Disbursement Agent FAO Inn of the Mountain
Gods Resort and Casino Construction
Reserve Account
Reference: Apache Construction Reserve Account
Attention: Xxxxx Xxxxxx
Interest Reserve Account:
Bank Name: US Bank National Association
ABA #: 000000000
Account #: 00000000
Account Name: US Bank National Association as
Disbursement Agent FAO Inn of the Mountain
Gods Resort and Casino Interest Reserve
Account
Reference: Apache Interest Reserve Account
Attention: Xxxxx Xxxxxx
Disbursement Account:
Bank Name: US Bank National Association
ABA #: 000000000
A-1
Account #: 00000000
Account Name: US Bank National Association as
Disbursement Agent FAO Inn of the Mountain
Gods Resort and Casino Disbursement Account
Reference: Apache Disbursement Account
Attention: Xxxxx Xxxxxx
Retainage Account:
Bank Name: US Bank National Association
ABA #: 000000000
Account #: 00000000
Account Name: US Bank National Association as
Disbursement Agent FAO Inn of the Mountain
Gods Resort and Casino Retainage Account
Reference: Apache Retainage Account
Attention: Xxxxx Xxxxxx
A-2
SCHEDULE 1
GUARANTORS
Casino Apache, an unincorporated enterprise of the Tribe
Casino Apache Travel Center, an unincorporated enterprise of the Tribe
Inn of the Mountain Gods, an unincorporated enterprise of the Tribe
Ski Apache, an unincorporated enterprise of the Tribe
A-3
EXHIBIT A
FORM OF INITIAL DISBURSEMENTS CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
INITIAL DISBURSEMENTS
Ladies and Gentlemen:
This Initial Disbursements Certificate is delivered to you pursuant to that
certain Cash Collateral and Disbursement Agreement dated as of November 3, 2003
(the "DISBURSEMENT AGREEMENT"), by and among U.S. Bank National Association, a
national banking association, as Disbursement Agent, U.S. Bank National
Association, a national banking association, as Trustee, Professional Associates
Construction Services, Inc., a California corporation, as Independent
Construction Consultant, Inn of the Mountain Gods Resort and Casino (the
"Issuer"), an unincorporated enterprise of the Apache Tribe of the Mescalero
Reservation (the "TRIBE") and the guarantors named therein. Capitalized terms
used and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement.
A-4
The Issuer hereby irrevocably instructs the Disbursement Agent to disburse
funds from the Construction Disbursement Account to the Disbursed Funds Account
or the accounts otherwise indicated for the amounts set forth on SCHEDULE A
attached hereto.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
----------------------------------------
Name:
Title:
A-5
SCHEDULE A
INITIAL DISBURSEMENTS
To: [ ]
For: [ ]
[Insert wire instructions] $[ ]
To: [ ]
For: [ ]
[Insert wire instructions] $[ ]
To: [ ]
For: [ ]
[Insert wire instructions] $[ ]
X-0
XXXXXXX X-0
FORM OF COMPANY'S CLOSING CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
COMPANY'S CLOSING CERTIFICATE
Ladies and Gentlemen:
This Closing Certificate is delivered to you pursuant to that certain Cash
Collateral and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), by and among U.S. Bank National Association, a national banking
association, as Disbursement Agent, U.S. Bank National Association, a national
banking association, as Trustee, Professional Associates Construction Services,
Inc., a California corporation, as Independent Construction Consultant, Inn of
the Mountain Gods Resort and Casino (the "ISSUER"), an unincorporated enterprise
of the Apache Tribe of the Mescalero Reservation (the "TRIBE") and the
guarantors named therein. Capitalized terms used and not otherwise defined
herein shall have the meanings given in the Disbursement Agreement.
The Issuer hereby certifies to each of you as follows:
1. The Initial Project Budget attached hereto as SCHEDULE A constitutes the
Project Budget presently in effect for the Resort.
2. Based upon its review of the Project Budget and the Project Report, in
the Independent Construction Consultant's professional opinion, the Initial
Project Budget accurately and completely sets forth (i) the anticipated Project
Costs through the date that the Resort is Operat-
-43-
ing in a manner consistent with the Construction Schedule and (ii) the various
components of the Resort identified thereon as line items, all within the
respective line item amounts listed.
3. Immediately prior to and upon giving effect to the Initial
Disbursements, there is no and will not be any Event of Default.
4. Attached hereto as SCHEDULE B is (i) a list of all contractors,
subcontractors, suppliers and materialmen that have provided work, supplies
and/or labor the value of which exceeded $1,000,000 in connection with the
Resort to date, (ii) a list of all contractors, subcontractors, suppliers and
materialmen that have provided work, supplies and/or labor in connection with
the Resort that will receive payment pursuant to the Initial Disbursements
Certificate, and (iii) lien releases (unconditional if such contractors,
subcontractors, suppliers and materialmen have been paid to date and conditional
if such contractors, subcontractors, suppliers and materialmen have not been
paid to date) from all such contractors, subcontractors, suppliers and
materialmen described in clause (ii) (except as to Retainage Amounts and such
amounts as the Independent Construction Consultant determines to have been
reasonably withheld) for all disbursements identified in the Initial
Disbursements Certificate. All work performed and materials delivered to date
with respect to the Resort which could result in a lien against the Resort have
been previously paid by the Issuer or will be timely paid with the proceeds of
the Initial Disbursements (in each case subject to withheld Retainage Amounts),
and no lien, notice of lien, or notice of extension of time for filing of lien
has been filed against the Resort in favor of any contractor, subcontractor,
supplier or materialman which has not been removed of record prior to the date
hereof.
5. The Issuer is not and, to the Issuer's knowledge, no other party to any
Transaction Document (other than any Construction Contract not in existence as
of the Issue Date) (but for the passage of time or the giving of notice or both)
will be, in breach of any material obligation thereunder.
6. Each representation and warranty of (a) the Issuer and its Affiliates
set forth in the Disbursement Agreement or in any other Transaction Document, or
in any certificates delivered in connection with any of the foregoing, is true,
correct and complete in all material respects as if made on the date hereof
(except that any representation and warranty that relates expressly to an
earlier date shall be deemed made only as of such earlier date), and (b) to the
Issuer's knowledge, the Design Build Contractor and each other party (other than
the Issuer or its Affiliates) to a Construction Contract set forth in the
applicable Construction Contract is true, correct and complete in all material
respects as if made on the date hereof (except that any representation and
warranty that relates expressly to an earlier date shall be deemed made only as
of such earlier date).
B-1-2
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Initial Disbursements.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
-----------------------------------------
Name:
Title:
B-1-3
SCHEDULE A TO EXHIBIT B-1
INITIAL PROJECT BUDGET FOR THE RESORT
PROJECT BUDGET
See Attached.
B-1-4
SCHEDULE B TO EXHIBIT B-1
MECHANIC'S LIENS FOR THE RESORT
(i) List of contractors, subcontractors, suppliers and materialmen that have
provided work, supplies and/or labor to date
[See attached.]
(ii) List of contractors, subcontractors, suppliers and materialmen to
receive payment pursuant to the Initial Disbursements Certificate
[See attached.]
(iii) Lien releases for parties identified in (ii)
[See attached.]
X-0-0
XXXXX 0 XX XXXXXXX X-0
DESIGN BUILD CONTRACTOR'S CLOSING CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO (THE "ISSUER")
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
DESIGN BUILD CONTRACTOR'S CLOSING CERTIFICATE
Ladies and Gentlemen:
The undersigned (the "DESIGN BUILD CONTRACTOR") hereby certifies to each of
you as follows:
14. The Design Build Contractor has reviewed the closing certificate from
the Issuer (the "ISSUER CLOSING CERTIFICATE") to be delivered pursuant to the
Cash Collateral and Disbursement Agreement dated November 3, 2003, to which the
Issuer is a party (as amended, supplemented or otherwise modified from time to
time, the "DISBURSEMENT AGREEMENT"), to the extent necessary to understand the
defined terms contained herein and in the Issuer Closing Certificate that are
incorporated by reference from the Disbursement Agreement, and to provide the
certification contained herein. Capitalized terms used and not otherwise defined
herein shall have the meanings given in the Disbursement Agreement.
15. The Design Build Contractor hereby certifies and confirms the accuracy
of the certifications in paragraphs 1 and 2 of the Issuer Closing Certificate as
if made by and on behalf of the Design Build Contractor directly.
16. The Design Build Contractor hereby certifies that, to the best of its
knowledge, the work comprising the Resort as described in the Construction
Contract may be completed in accordance with the Initial Project Budget
identified in the Issuer's Closing Certificate, taking
B-1-6
into consideration the possible allocation of Realized Savings in accordance
with the Disbursement Agreement.
17. The Design Build Contractor is not and, to the best of the Design Build
Contractor's knowledge, no other party to any Construction Contract in existence
as of the date hereof is, or (but for the passage of time or the giving of
notice or both) would be, in breach of any material obligation thereunder.
18. The Design Build Contractor hereby certifies that, to the best of its
knowledge and belief, based on its limited visual observation and the
information provided to the Design Build Contractor, the construction to date is
substantially in compliance with the intent of the Plans as prepared by the
Design Build Contractor.
19. The Design Build Contractor hereby certifies that the current Plans for
the Resort comply with all applicable Federal, state, local and tribal building
codes and ordinances.
The foregoing representations, warranties and certifications are true and
correct and each of you is entitled to rely on the foregoing in connection with
the Initial Disbursements.
CENTEX/WORTHGROUP LLC,
as Design Build Contractor
By: ________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF INDEPENDENT CONSTRUCTION CONSULTANT'S CLOSING CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
INDEPENDENT CONSTRUCTION CONSULTANT'S CLOSING
CERTIFICATE
Ladies and Gentlemen:
This Closing Certificate is delivered to you pursuant to that certain Cash
Collateral and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), by and among U.S. Bank National Association, a national banking
association, as Disbursement Agent, U.S. Bank National Association, a national
banking association, as Trustee, Professional Associates Construction Services,
Inc., a California corporation, as Independent Construction Consultant, Inn of
the Mountain Gods Resort and Casino (the "ISSUER"), an unincorporated enterprise
of the Apache Tribe of the Mescalero Reservation (the "TRIBE") and the
guarantors named therein. Capitalized terms used and not otherwise defined
herein shall have the meanings given in the Disbursement Agreement.
The Independent Construction Consultant hereby certifies to each of you as
follows as contemplated by the Disbursement Agreement:
1. The Independent Construction Consultant has received certified copies of
all Plans and Contracts applicable to the construction of the Resort and
described on SCHEDULE A hereto and, in the Independent Construction Consultant's
professional opinion, such Plans and Contracts will permit the Resort to be
substantially completed in all material respects in a manner consistent with the
Construction Schedule.
2. Based upon its review of the Project Budget and the Project Report, in
the Independent Construction Consultant's professional opinion, the Initial
Project Budget accurately sets forth the anticipated costs of constructing the
Resort so that the Resort is substantially com-
B-2
pleted in all material respects in accordance therewith and with the Final
Plans, Contracts and Construction Schedule.
3. The Independent Construction Consultant has received (a) an executed
Initial Disbursements Certificate in the form attached to the Disbursement
Agreement as Exhibit A, together with all attachments thereto, and (b) an
executed the Issuer's Closing Certificate in the form attached to the
Disbursement Agreement as Exhibit B-1, together with all attachments thereto.
4. The Independent Construction Consultant has reviewed the Initial
Disbursements Certificate and the Issuer's Closing Certificate and the
Independent Construction Consultant has no actual knowledge that the
certifications set forth in such certificates are not true, correct and complete
in all material respects.
5. [For Hard Costs Only with Respect to the Initial Disbursements:] The
Independent Construction Consultant has received duly executed and acknowledged
conditional or unconditional (as applicable) lien releases from all contractors,
subcontractors, suppliers and materialmen having provided work, materials and/or
services constituting completed construction or stored materials the value of
which exceeds $1,000,000 relating to the Resort (except as to Retainage Amounts
and such amounts as the Independent Construction Consultant determines to have
been reasonably withheld) for all disbursements identified on the Initial
Disbursements Certificate in excess of $100,000, which releases are in form and
substance satisfactory to the Independent Construction Consultant, and otherwise
comply with applicable law.
6. The Independent Construction Consultant has reviewed the duly executed
acknowledgments of payment and unconditional lien releases from all contractors,
subcontractors, suppliers and materialmen having provided work, materials and/or
services constituting completed construction or stored materials the value of
which exceeds $1,000,000 relating to the Resort (except as to Retainage Amounts
and such amounts as the Independent Construction Consultant determines to have
been reasonably withheld), separately provided by the Issuer prior to the date
hereof (other than those relating to payments to be made with the Initial
Disbursements, if any), which releases are in form and substance reasonably
satisfactory to the Independent Construction Consultant and are in accordance
with payments for construction of the Resort prior to the date hereof.
7. In the Independent Construction Consultant's professional opinion, the
construction performed as of the date hereof is in accordance with the Plans and
the payments made therefor prior to the date hereof, together with the Initial
Disbursements (if any) to be made for work, materials, supplies and/or labor the
value of which exceeds $1,000,000 provided in connection with the Resort to
date, are appropriate in light of the percentage of construction completed and
the amount of stored materials and/or invoices submitted, as applicable.
Further, all disbursements under the Initial Disbursements are for Hard Costs
consistent with the Plans.
8. In connection with all payments made prior to the date hereof for work,
materials, supplies and/or labor provided in connection with the Resort to
contractors, subcontractors, suppliers and materialmen and compared the invoices
or other documentation supporting such payments with the respective Project
Budget category, the Independent Construction Consultant has
B-2-2
reviewed the Project Report and such other information it deems relevant and
confirms that the total payments to date in such category do not exceed the
budgeted amount for such category.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Initial Disbursements.
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
------------------------------------------
Name:
Title:
B-2-3
SCHEDULE A TO EXHIBIT B-2
LIST OF PLANS AND CONTRACTS
[See attached.]
X-0-0
XXXXXXX X-0
FORM OF DISBURSEMENT AGENT'S CLOSING CERTIFICATE
[DATE]
U.S. Bank National Association,
as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
DISBURSEMENT AGENT'S CLOSING CERTIFICATE
Ladies and Gentlemen:
This Closing Certificate is delivered to you pursuant to that certain Cash
Collateral and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), by and among U.S. Bank National Association, a national banking
association, as Disbursement Agent, U.S. Bank National Association, a national
banking association, as Trustee, Professional Associates Construction Services,
Inc., a California corporation, as Independent Construction Consultant, Inn of
the Mountain Gods Resort and Casino (the "ISSUER"), an unincorporated enterprise
of the Apache Tribe of the Mescalero Reservation (the "TRIBE") and the
guarantors named therein. Capitalized terms used and not otherwise defined
herein shall have the meanings given in the Disbursement Agreement.
The Disbursement Agent hereby certifies to you as follows as contemplated
by the Disbursement Agreement:
1. The Pledged Accounts have been established as contemplated by the
Disbursement Agreement.
2. The Disbursement Agent has reviewed (a) an executed Initial
Disbursements Certificate from the Issuer in the form attached to the
Disbursement Agreement as Exhibit A, (b) an executed Closing Certificate from
the Issuer in the form attached to the Disbursement Agreement as Exhibit B-1,
(c) an executed Closing Certificate from the Independent Construction Consultant
in the form attached to the Disbursement Agreement as Exhibit B-2, and (d) an
executed Closing Certificate from the Trustee in the form attached to the
Disbursement Agreement as Exhibit B-4, in each case with any exhibits attached
and executed (as applicable) by the parties thereto.
The foregoing representations, warranties and certifications are true,
complete and correct and you are entitled to rely on the foregoing in connection
with the Initial Disbursements.
B-3-1
X.X.XXXX NATIONAL ASSOCIATION as
Disbursement Agent
By:
---------------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF TRUSTEE'S CLOSING CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
TRUSTEE'S CLOSING CERTIFICATE
Ladies and Gentlemen:
This Closing Certificate is delivered to you pursuant to that certain Cash
Collateral and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), by and among U.S. Bank National Association, a national banking
association, as Disbursement Agent, U.S. Bank National Association, a national
banking association, as Trustee, Professional Associates Construction Services,
Inc., a California corporation, as Independent Construction Consultant, Inn of
the Mountain Gods Resort and Casino (the "ISSUER"), an unincorporated enterprise
of the Apache Tribe of the Mescalero Reservation (the "TRIBE") and the
guarantors named therein. Capitalized terms used and not otherwise defined
herein shall have the meanings given in the Disbursement Agreement.
The Trustee hereby certifies to you as follows as contemplated by the
above-referenced Disbursement Agreement:
1. The Trustee has received (a) an executed Initial Disbursements
Certificate from the Issuer in the form attached to the Disbursement Agreement
as Exhibit A, (b) an executed Closing Certificate from the Issuer in the form
attached to the Disbursement Agreement as Exhibit B-1, (c) an executed closing
certificate from the Independent Construction Consultant attached to the
Disbursement Agreement as Exhibit B-2 and (d) an executed Closing Certificate
from the Disbursement Agent in the form attached to the Disbursement Agreement
as Exhibit B-3, in each case with all exhibits and attachments attached and
executed (as applicable) by the parties thereto.
The foregoing representations, warranties and certifications are true,
complete and correct and you are entitled to rely on the foregoing in connection
with the Initial Disbursements.
B-4-1
X.X.XXXX NATIONAL ASSOCIATION, as
Trustee
By:
--------------------------------------
Name:
Title:
B-4-2
EXHIBIT C-1
FORM OF CONSTRUCTION DISBURSEMENT REQUEST AND CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: CONSTRUCTION DISBURSEMENT REQUEST NO. ___________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
AMOUNT REQUESTED: $
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), hereby submits
this Construction Disbursement Request and Certificate (the "DISBURSEMENT
REQUEST") pursuant to that certain Cash Collateral and Disbursement Agreement
dated as of November 3, 2003 (as amended, supplemented or otherwise modified
from time to time, the "DISBURSEMENT Agreement"), to which each of you are a
party. Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.
The Issuer hereby requests the Disbursement Agent, and requests the
Independent Construction Consultant to authorize the Disbursement Agent, to make
a disbursement of [$_______________ for Hard Costs] [and] [$______________ for
Soft Costs] (collectively, the "[EXPENSE] DISBURSEMENT") from the Construction
Disbursement Account to the Disbursed Funds Account so that the Issuer may
distribute checks or issue wire transfers drawn on the Disbursed Funds Account
to the parties identified on SCHEDULE A attached hereto in the respective
amounts listed for such parties therein (the "PROJECT COST SCHEDULE" [and $ for
Retainage Amounts required pursuant to the Design Build Contract relating to the
Expense Disbursement from the Construction Disbursement Account to fund the
Retainage Account (together with the Expense Disbursement, the
"DISBURSEMENT")]).
C-1-1
In connection with the requested Disbursement, the Issuer represents,
warrants and certifies as follows:
1. [For Hard Cost Disbursements Only:] With respect to Hard Cost
disbursements, SCHEDULE A accurately lists each party for whom payment is
requested and, for each line item and for each party to whom payment is
requested with respect to such line item, the following: (a) the name of the
payee to be paid; (b) the current payment requested; (c) the increase or
decrease in accrued but unpaid Retainage Amount, if any, for such payee since
the last Disbursement Request (after giving effect to the payment contemplated
by this Disbursement Request); (d) the total amount contemplated to be payable
to such payee under the terms of its applicable contract through completion of
all work and delivery of all materials contemplated by such contract (I.E., the
total contract amount); (e) the total payments made to such payee under its
applicable contract as of the Issue Date; (f) the total payments made to such
payee since the Issue Date (after giving effect to the payment contemplated by
this Disbursement Request); (g) the sum of all payments made to such payee
(after giving effect to the payment contemplated by this Disbursement Request)
(I.E., the sum of (e) and (f) above); (h) the aggregate accrued Retainage
Amounts which shall continue to be owed with respect to such contract (after
giving effect to the payment contemplated by this Disbursement Request); and (i)
the percentage of the work actually completed, or the materials actually
delivered, under such contract through the date for which payment is made
hereunder (expressed as a percentage of the total work and materials
contemplated by such contract through completion), or, if payment is to be made
based on invoice, confirmation that a copy of the applicable invoice is
attached, and a description of the purpose of such payment, specifying the line
item relating to each such payment. In the event that any Construction Advance
Disbursements have been made and have not otherwise been documented as required
hereunder and under the Disbursement Agreement, SCHEDULE A also includes each
party to whom payment was made from such Advance Construction Disbursement and a
description of the purpose of such payments, specifying the line item relating
to each such payment. The information set forth in SCHEDULE A is true, correct
and complete.
2. [For Soft Cost Disbursements Only:] With respect to Soft Cost
disbursements, SCHEDULE A accurately lists each party and/or purpose for which
payment is requested and, for each line item and for each party and/or purpose
for which payment is requested with respect to such line item, the following:
(a) the name of the payee to be paid, (b) the current payment requested, and (c)
a description of the purpose of such payment, specifying the line item relating
to each such payment. In the event that any Advance Construction Disbursements
have been made and have not otherwise been documented as required hereunder and
under the Disbursement Agreement, SCHEDULE A also includes each party to whom
payment was made from such Advance Construction Disbursement and a description
of the purpose of such payments specifying the line item relating to each such
payment. The information set forth in SCHEDULE A is true, correct and complete.
3. [For Hard Cost Disbursements Only:] With respect to Hard Cost
disbursements, the Issuer has delivered or caused to be delivered to the
Independent Construction Consultant (a) true and complete invoices, bills and/or
receipts that have been tendered for all Hard Costs for which disbursement is
requested hereunder, (b) duly executed conditional or unconditional (as
applicable) lien releases from all contractors, subcontractors, suppliers and
materialmen having provided work, materials and/or services relating to the
Resort (except as to Retainage Amounts
C-1-2
and such amounts as the Independent Construction Consultant determines to have
been reasonably withheld) for all disbursements identified on this Disbursement
Request, and (c) duly executed acknowledgments of payment and unconditional lien
releases, in form and substance satisfactory to the Independent Construction
Consultant and otherwise in compliance with applicable law, from all payees
identified on the previous Disbursement Request for payment of Hard Costs and
acknowledging the receipt by such payee of all sums payable to such Contractor
from previous Disbursement Requests (except as to Retainage Amounts and such
amounts as the Independent Construction Consultant determines to have been
reasonably withheld).
4. The Project Budget presently in effect for the Resort is dated
_______________ and includes all amendments through Project Budget Amendment No.
___. Said Project Budget accurately sets forth the anticipated costs to complete
the Resort construction through the date that the Resort is operating and in
accordance with the Plans. The total payments by the Issuer with respect to each
line item component described in the Project Budget (plus any Retainage Amounts
held for such line item) after giving effect to the Disbursement shall not
exceed the amount budgeted on the Project Budget for such line item. Further, to
the extent the work or payment required in connection with any line item has not
yet been completed, the cost to complete such work or payment will not exceed
the difference between (a) the amount budgeted for such line item on the Project
Budget and (b) the sum of (i) the total payments theretofore disbursed from the
Disbursed Funds Account with respect to such line item and (ii) any Retainage
Amounts then held with respect to such line item.
5. Immediately prior to and upon giving effect to this Disbursement
Request, there is no and will not be any Event of Default.
6. [Hard Costs Only:] As of the date hereof, the Issuer has submitted to
the Independent Construction Consultant all Plans applicable to the disbursement
requested herein which, as of the date hereof, constitute Final Plans. Further,
all disbursements requested under this Disbursement Request are for the payment
of Construction Costs incurred for work consistent with the Plans which the
Issuer reasonably believes are, or ultimately will become, Final Plans and which
will permit the Issuer to complete construction of the Resort. The construction
performed as of the date hereof is of first quality and in accordance with the
Plans for the Resort and the Disbursement is appropriate in light of the
percentage of construction completed, the amount of stored materials and advance
deposits required for materials provided for in the Project Budget presently in
effect.
7. As of the date hereof, the Issuer reasonably believes that the date on
which the Resort will become operating will occur in a manner consistent with
the Construction Schedule.
8. All disbursements previously requested by the Issuer and made by the
Disbursement Agent into the Disbursed Funds Account prior to the date hereof
(other than Advance Disbursements permitted to be outstanding under the
Disbursement Agreement) have been disbursed by the Issuer in substantially the
manner certified by the Issuer in the applicable Construction Disbursement
Request or Advance Construction Disbursement Request (as applicable).
9. This Disbursement Request, as well as the Disbursement requested, is,
and such Disbursement will be used, in compliance with the Disbursement
Agreement and the Indenture.
C-1-3
10. The Issuer has previously delivered to the Independent Construction
Consultant copies of all Contracts to which the Issuer is a party for the Resort
with payment obligations of at least $[ ] and, with respect to each such
Contract: (a) if it is a Material Construction Document, a Consent to pledge of
the Contract in the form attached as Exhibit H to the Disbursement Agreement,
executed by the third-party Contractor under each such Contract; and (b) copies
of such performance and/or payment bonds (naming the Issuer and the Trustee as
co-obligees), if any, as the Issuer may require to be provided to the Issuer
pursuant to any Contract. Each such bond continues to be enforceable and has not
been terminated or canceled (except in accordance with its terms upon completion
of the respective work or delivery of the respective materials).
11. [For the Final Disbursement Only:] The Resort is substantially complete
in all material respects (other than normal punch-list items) in accordance with
the Final Plans with respect to the Minimum Facilities and all applicable
building and other laws, ordinances and regulations. The Resort has been
Operating for at least the previous thirty (30) days uninterrupted. There is no
ongoing construction in connection with the Resort (other than maintenance and
repairs in the ordinary course of business and normal punch-list items
(exclusive of Retainage Amounts), in an aggregate amount (exclusive of Retainage
Amounts) not to exceed $[ ]). As of the date hereof, the amount necessary to
complete the Resort in accordance with the Final Plans, including all punch list
items, is $_______ (the "RESERVED CONSTRUCTION AMOUNT"). The Issuer represents,
warrants and covenants that an amount equal to the Reserved Construction Amount
shall be deposited in the Disbursed Funds Account from the proceeds of the Final
Disbursement and the Issuer shall use such funds to pay Construction Costs to
complete the Resort in accordance with the Final Plans and with the Construction
Schedule, including all punch list items.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
[For Hard Cost Disbursements Only:] Attached to this Disbursement Request
is the certificate of the Design Build Contractor.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
---------------------------------------
Name:
Title:
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION
SERVICES, INC., as Independent Construction Consultant
C-1-5
SCHEDULE A TO EXHIBIT C-1
PROJECT COST SCHEDULE FOR CONSTRUCTION DISBURSEMENT REQUEST NO. ____
[To be attached]
C-1-6
ANNEX 1 TO EXHIBIT C-1
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
FOR DISBURSEMENT REQUEST FOR CONSTRUCTION COSTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: DISBURSEMENT REQUEST NO. __________ UNDER
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the disbursement
request made as of the date hereof (the "DISBURSEMENT REQUEST") by Inn of the
Mountain Gods Resort and Casino (the "ISSUER") pursuant to the Cash Collateral
and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), to which the Issuer is a party. All capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement.
2. The Independent Construction Consultant has received from the Issuer all
Plans applicable to the Disbursement requested pursuant to (and as defined in)
the Disbursement Request and such other certificates as it deems appropriate
and, in the Independent Construction Consultant's professional opinion, based,
in part, on its review and in reliance on the Project Report and based on its
inspections, the construction performed as of the date hereof is in general
accordance with the Plans, and the Disbursement is appropriate in light of the
percentage of construction completed and the amount of stored materials, and/or
invoices submitted, as applicable. Further, all disbursements requested under
this Disbursement Request that are for the payment of Hard Costs have been
incurred for work consistent with the Plans, which will permit the Issuer to
complete construction of the Resort in a manner consistent with the Construction
Schedule.
3. The Independent Construction Consultant has reviewed all disbursements
made prior to the date hereof from the Construction Disbursement Account and
compared the invoices or other documentation supporting such disbursements with
the respective Project Budget category presently in effect and confirms that the
total disbursements to date in such category do not exceed the budgeted amount
for such category.
C-1-7
4. The Independent Construction Consultant does not dispute the
appropriateness of any item or items the value of which exceeds $10,000 funded
with the proceeds of a previous Construction Disbursement Request.
5. Based upon its review of the Project Budget and the Project Report, in
the Independent Construction Consultant's professional opinion, the Project
Budget accurately sets forth the anticipated costs of completion of the Resort
through the date that the Resort is operating and in accordance with the Plans
and with the Construction Schedule.
6. The Independent Construction Consultant is not aware of any expenses
other than as set forth in the Project Budget that will be needed to be paid or
incurred by the Issuer in order to complete the Resort to be Operating in a
manner consistent with the Construction Schedule. The Independent Construction
Consultant reasonably believes that the Resort will be Operating in a manner
consistent with the Construction Schedule; PROVIDED that the Independent
Construction Consultant makes no certification or confirmation relating to the
status of gaming licenses or compliance with gaming laws with respect to whether
the Resort will be Operating in a manner consistent with the Construction
Schedule.
7. [For Post-Operating Disbursements Prior To The Final Disbursement:]
After giving effect to the requested disbursement from the Construction
Disbursement Account and the payments contemplated from the Disbursed Funds
Account in connection therewith, there will be sufficient funds to pay for the
anticipated costs to complete construction of the Resort (and component parts
thereof) in accordance with the aggregate amounts (and line items) set forth in
the Project Budget presently in effect, and the Independent Construction
Consultant is not aware of any expenses other than as set forth in the Project
Budget that will be needed to be paid or incurred by the Issuer in order to
complete the Resort in accordance with the Final Plans and the Construction
Schedule.
8. Pursuant to its duties under the Disbursement Agreement, the Independent
Construction Consultant has inspected the Resort within the previous four weeks
of the date of this certificate.
9. [For The Final Disbursement Only:] The Resort is substantially complete
in all material respects in accordance with the Final Plans with respect to the
Minimum Facilities. The Resort has been operating for at least the previous
thirty (30) days uninterrupted; PROVIDED that no certification is made herein
with respect to any matters relating to the status of gaming licenses or
compliance with gaming laws. To the Independent Construction Consultant's actual
knowledge, (a) immediately prior to and after giving effect to this requested
Disbursement, there is no and will not be any Event of Default, and (b) there
are no material errors, inaccuracies, misstatements or omissions of fact in the
Disbursement Request or any exhibit or attachment thereto. There is no ongoing
construction in connection with the Resort (other than maintenance and repairs
in the ordinary course of business and completion of punch-list items, in an
aggregate amount not to exceed $250,000). The Independent Construction
Consultant reasonably believes that the amount necessary as of the date hereof
to complete the Resort in accordance with the Final Plans and the Construction
Schedule, including all punch list items (exclusive of Retainage Amounts),
should not exceed the Reserved Construction Amount as set forth and defined in
the above-referenced Disbursement Request of the Issuer.
C-1-8
10. [For Hard Costs Only:] The Independent Construction Consultant has
received (a) duly executed and acknowledged conditional or unconditional (as
applicable) lien releases from all contractors, subcontractors, suppliers and
materialmen having provided work, materials and/or services constituting
completed construction or stored materials, the value of which exceeds
$1,000,000 relating to the Resort (except as to Retainage Amounts and such
amounts as the Independent Construction Consultant determines to have been
reasonably withheld) for all disbursements identified on the Disbursement
Request in excess of $100,000, which releases are in form and substance
satisfactory to the Independent Construction Consultant and otherwise comply
with applicable law, and (b) duly executed acknowledgments of payment and
unconditional lien releases, in form and substance satisfactory to the
Independent Construction Consultant, and otherwise comply with applicable law
(if applicable)from all payees identified on the previous Disbursement Request
for payment of Hard Costs and acknowledging the receipt by such payee of all
sums payable to such Contractor from previous Disbursement Requests (except as
to Retainage Amounts and such amounts as the Independent Construction Consultant
determines to have been reasonably withheld).
11. [For Soft Costs Only:] With respect to Soft Cost disbursements, the
Independent Construction Consultant has reviewed SCHEDULE A to the Disbursement
Request and hereby certifies that there is adequate availability in the
applicable line item under the Project Budget presently in effect with respect
to each Soft Cost disbursement requested under the Disbursement Request.
12. The Independent Construction Consultant has previously received from
the Issuer copies of all Contracts to which the Issuer is a party for the Resort
with payment obligations of at least $10,000 and, with respect to each such
Contract: (a) if it is a Material Construction Contract, a Consent to the pledge
of the Contract in the form attached as Exhibit H to the Disbursement Agreement,
executed by the third-party Contractor under each such Contract; and (b) copies
of such performance and/or payment bonds (naming the Issuer and the Trustee
asco-obligees), if any, as the Issuer may require to be provided to the Issuer
pursuant to any Contract. To the knowledge of the Independent Construction
Consultant, each such bond continues to be enforceable and has not been
terminated or canceled (except in accordance with its terms upon completion of
the respective work or delivery of the respective materials).
13. The Independent Construction Consultant has reviewed all disbursements
made from the Construction Disbursement Account (including those for work,
materials, supplies and/or labor provided to the Resort supplied by contractors,
subcontractors, suppliers and materialmen), and has reviewed the Project Budget
presently in effect to confirm that (i) the total disbursements to date in the
Project Budget categories do not exceed the budgeted amount for such category
and (ii) the Remaining Costs are sufficient to complete construction of the
Resort in a manner consistent with the Construction Schedule.
C-1-9
The foregoing representations warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
PROFESSIONAL ASSOCIATES CONSTRUCTION
SERVICES, INC., as Independent Construction
Consultant
By:
----------------------------------------
Name:
Title:
C-1-10
ANNEX 2 TO EXHIBIT C-1
FORM OF CERTIFICATE OF DESIGN BUILD CONTRACTOR
FOR DISBURSEMENT REQUEST FOR CONSTRUCTION COSTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: DISBURSEMENT REQUEST NO. ________________UNDER
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "DESIGN BUILD CONTRACTOR") hereby certifies as
follows:
1. The Design Build Contractor has reviewed the disbursement request
made as of the date hereof (the "DISBURSEMENT REQUEST") by Inn of the Mountain
Gods Resort and Casino (the "ISSUER") pursuant to the Cash Collateral and
Disbursement Agreement dated as of November 3, 2003 (as amended, supplemented or
otherwise modified from time to time, the "DISBURSEMENT AGREEMENT") to which the
Issuer is a party, to the extent necessary to understand the defined terms
contained herein and in the Disbursement Request that are incorporated by
reference from the Disbursement Agreement and to provide the certification
contained herein. Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
2. The Design Build Contractor hereby certifies and confirms the
accuracy of the certifications in paragraphs [1, 3, 4 and 6] of the
above-referenced Disbursement Request as if made by and on behalf of the Design
Build Contractor directly; PROVIDED that the Design Build Contractor makes no
certification or confirmation relating to the status of gaming licenses or
compliance with gaming laws with respect to whether the Resort will be Operating
in a manner consistent with the Construction Schedule.
3. The Design Build Contractor has inspected the Resort within the
preceding week and hereby certifies that, to the best of its knowledge and
belief, based on its limited visual observation at the time of such inspection
and the information provided to the Design Build Con-
C-1-11
tractor, the construction as of such date is substantially in compliance with
the Plans as prepared by the Design Build Contractor.
4. The Design Build Contractor hereby certifies that, to the best of its
knowledge, the Resort will be completed in a manner consistent with the
Construction Schedule and in accordance with the Project Budget presently in
effect.
C-1-12
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
CENTEX/WORTHGROUP LLC,
as Design Build Contractor
By:
---------------------------------
Name:
Title:
C-1-13
EXHIBIT C-2
FORM OF ADVANCE DISBURSEMENT REQUEST AND CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: ADVANCE DISBURSEMENT REQUEST NO. _____________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
AMOUNT REQUESTED: $ _________
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), hereby submits
this Advance Disbursement Request and Certificate (the "ADVANCE DISBURSEMENT
REQUEST") pursuant to that certain Cash Collateral and Disbursement Agreement
dated as of November 3, 2003 (as amended, supplemented or otherwise modified
from time to time, the "DISBURSEMENT Agreement"), to which each of you is a
party. Capitalized terms used and not otherwise defined herein without
definition shall have the meanings given in the Disbursement Agreement.
The Issuer hereby requests that the Disbursement Agent make a disbursement
of $___________ [aggregate of all Advance Disbursements not to exceed $2.5
million] from the Construction Disbursement Account to the Disbursed Funds
Account.
The Issuer hereby represents, warrants and certifies as follows:
1. Amounts disbursed pursuant to this Advance Disbursement Request shall be
used solely for the following purposes in connection with the Resort:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
2. Prior to and after giving effect to this Advance Disbursement Request,
there is and there will be no Event of Default.
C-2-1
3. In the event that any Advance Disbursements have previously been made,
the Issuer has provided (or will provide within the period specified under the
Disbursement Agreement) the same supporting documentation as is required under
the Disbursement Agreement with respect to Construction Disbursement Requests
within thirty (30) days after each such Advance Disbursement was made.
4. The amount of the Advance Disbursement requested hereunder, together
with Advance Disbursements previously made to the Issuer which have not
otherwise been documented as required in the Disbursement Agreement, do not
exceed the amount of $2.5 million.
5. The Project Budget presently in effect for the Resort is dated
____________and includes all amendments through Project Budget Amendment No.
_____. The Project Budget accurately sets forth the anticipated costs to
complete the Resort construction through the date that the Resort is operating
and in accordance with the Plans.
6. As of the date hereof, the Issuer reasonably believes that the Resort
will be Operating in a manner consistent with the Construction Schedule.
7. The total payments by the Issuer with respect to each line item
component described on the Project Budget (plus any Retainage Amounts held for
such line item), after giving effect to the requested Advance Disbursement,
shall not exceed the amount budgeted on the Project Budget for such line item.
Further, to the extent the work or payment required in connection with any line
item has not yet been completed, the Issuer reasonably believes that the
estimated cost to complete such work or payment will not exceed the difference
between: (a) the amount budgeted for such line item on the Project Budget and
(b) the sum of (i) the total payments theretofore disbursed from the Disbursed
Funds Account with respect to such line item and (ii) any Retainage Amounts then
held with respect to such line item.
8. The Construction Schedule would be hindered or delayed if the Advance
Disbursement Request is not approved and is necessary for the critical path of
construction of the Resort.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the disbursement requested hereunder.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
-----------------------------------------
Name:
Title:
C-2-2
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION
SERVICES, INC., as Independent Construction
Consultant
By:
---------------------------------------
Name:
Title:
C-2-3
ANNEX 1 TO EXHIBIT C-2
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
FOR ADVANCE DISBURSEMENT REQUEST FOR CONSTRUCTION COSTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: ADVANCE DISBURSEMENT REQUEST NO. _________________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the advance
disbursement request made as of the date hereof (the "ADVANCE DISBURSEMENT
REQUEST") by Inn of the Mountain Gods Resort and Casino (the "ISSUER") pursuant
to the Cash Collateral and Disbursement Agreement dated as of November 3, 2003
(as amended, supplemented or otherwise modified from time to time, the
"DISBURSEMENT AGREEMENT"), to which the Issuer is a party. All capitalized terms
used and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement.
2. The Independent Construction Consultant has no actual knowledge (from
the facts set forth in any Disbursement Request or any certificate, exhibit or
attachment attached thereto or any other notice) that an Event of Default under
the Indenture or the Disbursement Agreement exists and is continuing. The
Independent Construction Consultant has no actual knowledge of any material
errors, misstatements or omissions of fact in the above-referenced Advance
Disbursement Request or any certificate, exhibit or attachment thereto, or
information otherwise provided by the Issuer.
3. Based upon its review of the Project Budget and the Project Report, in
the Independent Construction Consultant's professional opinion, the Project
Budget presently in effect accurately sets forth the anticipated costs to
complete the Resort through the date that the Resort is Operating.
4. The Independent Construction Consultant is not aware of any expenses
other than as forth in the Project Budget that will be needed to be paid or
incurred by the Issuer in order to cause the Resort to be Operating in a manner
consistent with the Construction Schedule.
5. The Independent Construction Consultant reasonably believes that the
Resort will be operating in a manner consistent with the Construction Schedule.
C-2-4
6. Pursuant to its duties under the Disbursement Agreement, the Independent
Construction Consultant has inspected the Resort within the previous four weeks
of the date of this certificate.
7. The Construction Schedule would be hindered or delayed if the Advance
Disbursement Request is not approved and the Advance Disbursement Request is
necessary for the critical path of the construction of the Resort.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
C-2-5
EXHIBIT C-3
FORM OF OVERFUNDED AMOUNTS DISBURSEMENT REQUEST AND CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: OVERFUNDED AMOUNTS DISBURSEMENT REQUEST NO. _____________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
AMOUNT REQUESTED: $
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), hereby submits
this Overfunded Amounts Disbursement Request and Certificate (the "OVERFUNDED
AMOUNTS DISBURSEMENT REQUEST") pursuant to that certain Cash Collateral and
Disbursement Agreement dated as of November 3, 2003 (as amended, supplemented or
otherwise modified from time to time, the "DISBURSEMENT AGREEMENT"), to which
each of you are a party. Capitalized terms used and not otherwise defined herein
without definition shall have the meanings given in the Disbursement Agreement.
The Issuer hereby requests that the Disbursement Agent make a disbursement
of $___________ [amount of funds requested shall not exceed the amount by which
the Construction Disbursement Account is Overfunded] from the Construction
Disbursement Account to the Disbursed Funds Account.
The Issuer hereby represents, warrants and certifies as follows:
C-3-1
1. Attached hereto as SCHEDULE A is a true and correct copy of the updated
Project Budget delivered, pursuant to Section 5.5 of the Disbursement Agreement,
which updated Project Budget is as of a date not more than 30 days prior to the
date hereof. The updated Projected Budget indicates that an aggregate amount
equal to $______ remains unpaid thereunder.
2. As of the date hereof, the aggregate amount of cash and Cash Equivalents
in the Construction Disbursement Account is equal to or greater than $_____.
3. Based on the amounts set forth in paragraphs 1 and 2 above, the amount
of the Overfunded Amounts Disbursement requested hereunder does not exceed the
amount by which the Construction Disbursement Account is Overfunded.
4. Prior to and after giving effect to this Overfunded Amounts Disbursement
Request, there is and there will be no Event of Default.
5. As of the date hereof, the Issuer reasonably believes that the Resort
will be Operating in a manner consistent with the Construction Schedule.
6. The Construction Schedule will not be hindered or delayed as a result of
any disbursement made pursuant to this Overfunded Amounts Disbursement Request.
Attached to this Overfunded Amounts Disbursement Request is (i) a copy of
the updated Project Budget, (ii) a certificate from the Independent Construction
Consultant and (iii) a certificate from the Trustee.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the disbursement requested hereunder.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
-----------------------------------------
Name:
Title:
C-3-2
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
------------------------------------------
Name:
Title:
C-3-3
SCHEDULE A TO EXHIBIT C-3
Updated Project Budget
See attached.
C-3-4
ANNEX 1 TO EXHIBIT C-3
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
FOR OVERFUNDED AMOUNTS DISBURSEMENT REQUEST FOR CONSTRUCTION COSTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: OVERFUNDED AMOUNTS DISBURSEMENT REQUEST NO. _________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the Overfunded
Amounts Disbursement Request made as of the date hereof (the "OVERFUNDED AMOUNTS
DISBURSEMENT Request") by Inn of the Mountain Gods Resort and Casino (the
"ISSUER") pursuant to the Cash Collateral and Disbursement Agreement dated as of
November 3, 2003 (as amended, supplemented or otherwise modified from time to
time, the "DISBURSEMENT AGREEMENT"), to which the Issuer is a party. All
capitalized terms used and not otherwise defined herein shall have the meanings
given in the Disbursement Agreement.
2. The Independent Construction Consultant has no actual knowledge (from
the facts set forth in any Disbursement Request or any certificate, exhibit or
attachment attached thereto or any other notice) that an Event of Default under
the Indenture or the Disbursement Agreement exists and is continuing. The
Independent Construction Consultant has no actual knowledge of any material
errors, misstatements or omissions of fact in the above-referenced Overfunded
Amounts Disbursement Request or any certificate, exhibit or attachment thereto,
or information otherwise provided by the Issuer.
3. The Project Budget attached as SCHEDULE A to the Overfunded Amounts
Disbursement Request if the Project Budget as presently in effect and the amount
included in paragraph 1 of the Overfunded Amounts Disbursement Request
accurately set forth the anticipated costs to complete the Resort through the
date that the Resort is Operating.
4. After giving effect to the Overfunded Amounts Disbursement Request from
the Construction Disbursement Account, there will be sufficient funds in the
Construction
C-3-5
Disbursement Account to pay for the anticipated costs to complete construction
of the Resort (and the component parts thereof) in accordance with the aggregate
amounts (and line items) set forth in the Project Budget and the Independent
Construction Consultant is not aware of any expenses other than as set forth in
the Project Budget that will be needed to be paid or incurred by the Issuer in
order to cause the Resort to be Operating in a manner consistent with the
Construction Schedule.
5. The Independent Construction Consultant reasonably believes that the
Resort will be Operating in a manner consistent with the Construction Schedule.
6. Pursuant to its duties under the Disbursement Agreement, the Independent
Construction Consultant has inspected the Resort within the previous four weeks
of the date of this certificate.
7. The Construction Schedule will not be hindered or delayed as a result of
any disbursement made pursuant to the Overfunded Amounts Disbursement Request.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
--------------------------------------------
Name:
Title:
C-3-6
ANNEX 2 TO EXHIBIT C-3
TRUSTEE'S CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
TRUSTEE'S CLOSING CERTIFICATE
Ladies and Gentlemen:
U.S. Bank National Association, a national banking association, as Trustee,
has, pursuant to that certain Cash Collateral and Disbursement Agreement dated
as of November 3, 2003 (as amended, supplemented or otherwise modified from time
to time, the "DISBURSEMENT AGREEMENT"), by and among U.S. Bank National
Association, a national banking association, as Disbursement Agent, the Trustee,
Professional Associates Construction Services, Inc., a California corporation,
as Independent Construction Consultant, Inn of the Mountain Gods Resort and
Casino (the "ISSUER"), an unincorporated enterprise of the Apache Tribe of the
Mescalero Reservation (the "TRIBE") and the guarantors named therein
(capitalized terms used and not otherwise defined herein shall have the meanings
given in the Disbursement Agreement), reviewed the Overfunded Amounts
Disbursement Request made as of the date hereof.
The Trustee hereby certifies to you as follows as:
1. To the Trustee's knowledge, the representation and warranty provided in
paragraph 2 of the Overfunded Amounts Disbursement Request is true and correct
in all respects.
The foregoing certification is true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing in authorizing and
making the Disbursements.
C-3-7
X.X.XXXX NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------------
Name:
Title:
C-3-8
EXHIBIT D
FORM OF INTEREST DISBURSEMENT REQUEST
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
TRUSTEE'S CLOSING CERTIFICATE
Ladies and Gentlemen:
This Interest Disbursement Request is delivered to you pursuant to that
certain Cash Collateral and Disbursement Agreement dated as of November 3, 2003
(as amended, supplemented or otherwise modified from time to time, the
"DISBURSEMENT AGREEMENT"),by and among U.S. Bank National Association, a
national banking association, as Disbursement Agent, U.S. Bank National
Association, a national banking association, as Trustee, Professional Associates
Construction Services, Inc., a California corporation, as Independent
Construction Consultant, Inn of the Mountain Gods Resort and Casino (the
"ISSUER"), an unincorporated enterprise of the Apache Tribe of the Mescalero
Reservation (the "TRIBE") and the guarantors named therein. Capitalized terms
used and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement.
Pursuant to Section 4.4 of the Disbursement Agreement, the Disbursement
Agent is hereby directed to liquidate Government Securities (to the extent
required) in the Interest Reserve Account and to pay to the Trustee as set forth
below on _________________ (the "INTEREST PAYMENT DATE") $______________ of
funds from the Interest Reserve Account. The undersigned hereby certifies that
payments in an amount equal to such sums will be due and payable on the Notes on
the Interest Payment Date.
Payment instructions for Trustee:
-------------------------------
1 To be delivered no less than ten (10) Business Days prior to the
respective Interest Payment Date.
D-1
Please confirm the transfer described above by returning a notice of
confirmation to the undersigned at the address set forth above.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
----------------------------------------
Name:
Title:
D-2
EXHIBIT E-1
FORM OF CONSTRUCTION RESERVE DISBURSEMENT REQUEST AND CERTIFICATE
FOR DISBURSEMENTS RE: CONSTRUCTION COSTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: CONSTRUCTION RESERVE DISBURSEMENT REQUEST NO. ______
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
AMOUNT REQUESTED: $ __________
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), hereby submits
this Construction Reserve Disbursement Request and Certificate (this
"DISBURSEMENT REQUEST") pursuant to that certain Cash Collateral and
Disbursement Agreement dated as of November 3, 2003 (as amended, supplemented or
otherwise modified from time to time, the "DISBURSEMENT AGREEMENT"), to which
you are a party. Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
The Issuer hereby requests that you, in your capacity under the
Disbursement Agreement, disburse $__________________ (the "DISBURSEMENT") from
the Construction Reserve Account to the Construction Disbursement Account to
permit the Issuer to use the funds so disbursed to complete the construction of
the Resort so that it may be Operating in a manner consistent with the
Construction Schedule.
In connection with the requested Disbursement, the Issuer represents,
warrants and certifies as follows:
1. The funds disbursed pursuant to this Disbursement Request will be used
in accordance with the terms of the Indenture, the Disbursement Agreement and
the other Collateral Documents.
2. There are no funds remaining in the Construction Disbursement Account
and all funds disbursed from the Construction Disbursement Account have been
applied in accordance with the terms of this Agreement and the other Transaction
Documents.
E-1-1
3. The funds disbursed pursuant to this Disbursement Request shall be used,
upon disbursement from the Construction Disbursement Account, solely for the
payment of approved Hard Costs and Soft Costs (as applicable) relating to the
design, development, engineering, construction, installation, completion of
construction and commencement of operations of the Resort, such funds are
reasonably necessary to permit completion of construction and commencement of
operations of the Resort in accordance with the Final Plans so that it may be
Operating in a manner consistent with the Construction Schedule and, after
giving effect to the Disbursement pursuant to this Disbursement Request, the
aggregate value of cash and Cash Equivalents in the Construction Reserve Account
is equal to or greater than the sum of (x) the Remaining Costs and (y) 10% of
the amount of Hard Costs remaining outstanding under the Project Budget.
4. [For Post-Operating Disbursements Prior to and including the Final
Disbursement:] The Resort has previously commenced Operating. The funds
disbursed pursuant to this Disbursement Request shall be used, upon disbursement
from the Construction Disbursement Account, solely for the payment of approved
Hard Costs and Soft Costs (as applicable) relating to the completion of
construction, commencement of operations and the operation of the Resort and
working capital or other construction purposes permitted under the Indenture,
and such funds are reasonably necessary to permit completion of construction in
accordance with the Final Plans and with the Construction Schedule, commencement
of operations and/or operation of the Resort.
5. The following circumstances resulted in the cost to [complete] [commence
operations of] the Resort to exceed (as applicable) the Initial Project Budget
or, if the Initial Project Budget has previously been amended, the Project
Budget:
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
6. The circumstances described in the preceding paragraph were not
reasonably anticipated by the Issuer in preparing (as applicable) the Initial
Project Budget or, if the Initial Project Budget has been amended, in preparing
the latest amendment to the Project Budget, for the following reasons:
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
7. After giving effect to the above-requested Disbursement, there will be
sufficient funds available to pay for the anticipated costs to complete the
Resort in accordance with the Project Budget and in a manner consistent with the
Construction Schedule, and the Issuer does not believe that any expenses other
than as set forth in the Project Budget will need to be incurred by the Issuer
in order to cause the Resort to be Operating in a manner consistent with the
Construction Schedule.
8. The Issuer reasonably believes that the Resort will be Operating in a
manner consistent with the Construction Schedule.
E-1-2
9. Immediately prior and upon giving effect to the above-requested
Disbursement, there is no and will not be any Event of Default.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in making the Disbursement.
Attached to this Disbursement Request is (i) a certificate from the
Independent Construction Consultant, (ii) a certificate from the Design Build
Contractor and (iii) a Project Budget Amendment Certificate.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
-------------------------------------------
Name:
Title:
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
-------------------------------------------
Name:
Title:
E-1-3
ANNEX 1 TO EXHIBIT E-1
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
CONSTRUCTION RESERVE DISBURSEMENT REQUEST FOR DISBURSEMENTS
RE: CONSTRUCTION COSTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: CONSTRUCTION RESERVE DISBURSEMENT REQUEST NO. __________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Construction Reserve Disbursement Request (the "DISBURSEMENT
REQUEST") and the Cash Collateral and Disbursement Agreement dated as of
November 3, 2003 (as amended, supplemented or otherwise modified from time to
time, the "DISBURSEMENT AGREEMENT"), to which Inn of the Mountain Gods Resort
and Casino (the "ISSUER") is a party. Capitalized terms used and not otherwise
defined herein shall have the same meanings given in the Request.
2. The Independent Construction Consultant represents, warrants and
certifies that (a) the funds requested to fund both Hard Costs and Soft Costs
(as applicable) under the Request are reasonably necessary to permit completion
of construction of the Resort in accordance with the Final Plans so that it may
be Operating in a manner consistent with the Construction Schedule, (b) the
Independent Construction Consultant is not aware at this time of any expenses
other than as set forth in the Project Budget that the Issuer will need to incur
in order to cause the Resort to be Operating in a manner consistent with the
Construction Schedule, (c) nothing has come to the attention of the Independent
Construction Consultant that would cause it to reasonably believe the Resort
will not be Operating in a manner consistent with the Construction Schedule and
(d) the Independent Construction Consultant has no actual knowledge of (i) any
Event of Default that exists or which may occur as a result of the making of the
disbursement to be made, or (ii) any material errors, inaccuracies,
misstatements or omissions of fact in the Disbursement Request or any exhibit or
attachment thereto.
E-1-4
3. [For Post-Operating Disbursements Other than the Final Disbursement:]
The Independent Construction Consultant represents, warrants and certifies that
(a) the funds requested to fund both Hard Costs and Soft Costs (as applicable)
under the Disbursement Request are reasonably necessary to permit completion of
construction of the Resort in accordance with the Final Plans, (b) after giving
effect to the disbursement to be made, there will be sufficient funds to pay for
the anticipated costs to complete the Resort in accordance with the Project
Budget, as amended to date (after giving effect to the Project Budget Amendment
Certificate delivered in connection with the Request), and the Independent
Construction Consultant is not aware at this time of any expenses other than as
set forth in the Project Budget that the Issuer will need to incur in order to
complete the Resort in accordance with the Final Plans, and (c) the Independent
Construction Consultant has no actual knowledge of (i) any Event of Default that
exists or which may occur as a result of the making of the Disbursement, or (ii)
any material errors, inaccuracies, misstatements or omissions of fact in the
Disbursement Request or any exhibit or attachment thereto; PROVIDED that no
certification is made herein with respect to any matters relating to the status
of gaming licenses or compliance with gaming laws.
4. Pursuant to its duties under the Disbursement Agreement, the Independent
Constructor Consultant has inspected the Resort within the previous four weeks
of the date of this certificate.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
E-1-5
ANNEX 2 TO EXHIBIT E-1
FORM OF CERTIFICATE OF DESIGN BUILD CONTRACTOR
CONSTRUCTION RESERVE DISBURSEMENT REQUEST FOR
DISBURSEMENTS RE: CONSTRUCTION COSTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: CONSTRUCTION RESERVE DISBURSEMENT REQUEST NO. __________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "DESIGN BUILD CONTRACTOR") hereby certifies as
follows:
1. The Design Build Contractor has reviewed the above-referenced
Construction Reserve Disbursement Request (the "DISBURSEMENT REQUEST") and the
Cash Collateral and Disbursement Agreement dated as of November 3, 2003 (as
amended, supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), to which Inn of the Mountain Gods Resort and Casino (the "ISSUER"),
is a party, to the extent necessary to understand the defined terms contained
herein and in the Disbursement Request that are incorporated by reference from
the Disbursement Agreement and to provide the certification contained herein.
Capitalized terms used and not otherwise defined herein shall have the meanings
given in the Disbursement Agreement
2. The Design Build Contractor hereby represents, warrants and certifies
that (a) the funds requested under the Disbursement Request are reasonably
necessary to permit completion of construction of the Resort in accordance with
the Final Plans so that it will be Operating in a manner consistent with the
Construction Schedule, (b) the Design Build Contractor is not aware at this time
of any expenses other than as set forth in the Project Budget that the Issuer
will need to incur in order to cause the Resort to be Operat-
D-1-6
ing in a manner consistent with the Construction Schedule, and (c) the Design
Build Contractor reasonably believes that the Resort will be Operating in a
manner consistent with the Construction Schedule; PROVIDED that the foregoing
representations, warranties and certifications do not include any matters
relating to the status of gaming licenses or compliance with gaming laws with
respect to whether the Resort will be so Operating.
3. [For Post-Operating Disbursements Other than the Final Disbursement:]
The Design Build Contractor hereby represents, warrants and certifies that (a)
the funds requested under the Disbursement Request are reasonably necessary to
permit completion of construction of the Resort in accordance with the Final
Plans and (b) after giving effect to the Disbursement, there will be sufficient
funds to pay for the anticipated costs to complete the Resort in accordance with
the Project Budget, as amended to date (after giving effect to the Project
Budget Amendment Certificate delivered in connection with the Disbursement
Request), and the Design Build Contractor is not aware at this time of any
expenses other than as set forth in the Project Budget that the Issuer will need
to incur in order to complete the Resort in accordance with the Final Plans and
with the Construction Schedule.
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
CENTEX/WORTHGROUP LLC,
as Design Build Contractor
By:
-----------------------------------------
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX X-0
PROJECT BUDGET AMENDMENT CERTIFICATE
[To be attached]
E-1-8
EXHIBIT E-2
FORM OF CONSTRUCTION RESERVE DISBURSEMENT REQUEST AND
CERTIFICATE RE: COMPACT SETTLEMENT
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: CONSTRUCTION RESERVE DISBURSEMENT REQUEST NO. __________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
AMOUNT REQUESTED: $
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), hereby submits
this Construction Reserve Disbursement Request and Certificate (this
"DISBURSEMENT REQUEST") pursuant to that certain Cash Collateral and
Disbursement Agreement dated as of November 3, 2003 (as amended, supplemented or
otherwise modified from time to time, the "DISBURSEMENT AGREEMENT"), to which
you are a party. Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
The Issuer hereby requests that you, in your capacity under the
Disbursement Agreement, disburse $__________________ (the "DISBURSEMENT") from
the Construction Reserve Account to the Construction Disbursement Account to
permit the Issuer to use the funds so disbursed to fund a Compact Dispute
Resolution.
In connection with the requested Disbursement, the Issuer represents,
warrants and certifies as follows:
1. The Tribe has entered into a Compact Dispute Resolution, a true and
complete copy of the Compact Dispute Resolution is attached hereto as SCHEDULE
A, pursuant to which:
[Describe settlement]
--------------------------------------------
--------------------------------------------
--------------------------------------------
E-2-1
2. After giving effect to the Disbursement pursuant to this Disbursement
Request, the aggregate value of cash and Cash Equivalents in the Construction
Reserve Account is equal to or greater than sum of (x) the Remaining Costs and
(y) 10% of the amount of Hard Costs remaining outstanding under the Project
Budget.
3. After giving effect to the Disbursement pursuant to this Disbursement
Request, the aggregate value of cash and Cash Equivalents in the Construction
Reserve Account is equal to or greater than 10% of the amount of Hard Costs
remaining unpaid under the Project Budget as of the date of the Indenture PLUS
the sum of (x) the Additional Reserve Amount, (x) the Remaining Costs and (y)
10% of the amount of Hard Costs remaining outstanding under the Project Budget.
4. Immediately prior and upon giving effect to the above-requested
Disbursement, there is no and will not be any Event of Default.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in making the Disbursement.
Attached to this Disbursement Request is a copy of the Compact Dispute
Resolution.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
---------------------------------------------
Name:
Title:
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
E-2-2
SCHEDULE A TO EXHIBIT E-2
COPY OF COMPACT DISPUTE RESOLUTION
[To be attached]
E-2-3
EXHIBIT E-3
FORM OF CONSTRUCTION RESERVE DISBURSEMENT REQUEST AND
CERTIFICATE RE: EXCESS RESERVE AMOUNTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: CONSTRUCTION RESERVE DISBURSEMENT REQUEST NO. -----------
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
AMOUNT REQUESTED: $
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), hereby submits
this Construction Reserve Disbursement Request and Certificate (this
"DISBURSEMENT REQUEST") pursuant to that certain Cash Collateral and
Disbursement Agreement dated as of November 3, 2003 (as amended, supplemented or
otherwise modified from time to time, the "DISBURSEMENT AGREEMENT"), to which
each of you are a party. Capitalized terms used and not otherwise defined herein
shall have the meanings given in the Disbursement Agreement.
The Issuer hereby requests that you, in your capacity under the
Disbursement Agreement, disburse $__________________ (the "DISBURSEMENT") from
the Construction Reserve Account to the Issuer as excess reserve amounts.
In connection with the requested Disbursement, the Issuer represents,
warrants and certifies as follows:
E-3-1
1. As of the date hereof, the Construction Disbursement Account is Fully
Funded.
2. Attached hereto as SCHEDULE A is a true and correct copy of the updated
Project Budget delivered by the Issuer on or prior to the date hereof pursuant
to Section 5.5 of the Disbursement Agreement, which updated Project Budget is as
of a date not more than 30 days prior to the date hereof. There is $_____ of
Hard Costs remaining unpaid under the updated Project Budget. Accordingly, 10%
of such Hard Costs remaining unpaid is equal to $_____ (the "REQUIRED HARD COST
RESERVE").
3. As of the date hereof, the amount in the Construction Reserve Account
which is available for payment of Construction Costs (the "EXISTING HARD COST
RESERVE") is equal to the amount set forth in line C below:
A. aggregate amount of cash and Cash Equivalents in the
Construction Reserve Account:
$_________
LESS
B. amounts required to fund the Compact Dispute Settlement(1):
$_________
EQUALS
C. Existing Hard Cost Reserve:
$_________
4. Based on the amounts set forth in paragraphs 2 and 3 above, the Existing
Hard Cost Reserve exceeds the Required Hard Cost Reserve by an amount equal to
at least $_____, which amount may be distributed to the Issuer pursuant to
Section 4.5(a) of the Disbursement Agreement.
5. Prior to and after giving effect to this Construction Reserve
Disbursement Request, there is and there will be no Event of Default.
6. As of the date hereof, the Issuer reasonably believes that the Resort
will be Operating in a manner consistent with the Construction Schedule.
-------------------
1 The amount in line B shall be equal to either (x) if a Compact Dispute
Resolution has occurred, the Outstanding Resolution Amount (as defined in
the Indenture) or (y) if a Compact Dispute Resolution has not occurred, an
amount equal to the full amount then accrued but unpaid to the State of New
Mexico pursuant to the Compact and the revenue sharing agreement entered
into in connection therewith attributable to periods prior to the date of
the Indenture.
E-3-2
7. The Construction Schedule will not be hindered or delayed as a result of
any disbursement made pursuant to this Construction Reserve Disbursement
Request.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in making the Disbursement.
Attached to this Construction Reserve Disbursement Request is (i) a copy of
the updated Project Budget, (ii) a certificate from the Independent Construction
Consultant and (iii) a certificate from the Trustee.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
---------------------------------------------
Name:
Title:
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
E-3-3
SCHEDULE A TO EXHIBIT E-3
Updated Project Budget
See attached.
E-3-4
ANNEX 1 TO EXHIBIT E-3
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
CONSTRUCTION RESERVE DISBURSEMENT REQUEST FOR DISBURSEMENTS
RE: EXCESS RESERVE AMOUNTS
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: CONSTRUCTION RESERVE DISBURSEMENT REQUEST NO. __________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Construction Reserve Disbursement Request (the "DISBURSEMENT
REQUEST") and the Cash Collateral and Disbursement Agreement dated as of
November 3, 2003 (as amended, supplemented or otherwise modified from time to
time, the "DISBURSEMENT AGREEMENT"), to which Inn of the Mountain Gods Resort
and Casino (the "ISSUER") is a party. Capitalized terms used and not otherwise
defined herein shall have the same meanings given in the Request.
2. The Independent Construction Consultant has no actual knowledge (from
the facts set forth in any Disbursement Request or any certificate, exhibit or
attachment attached thereto or any other notice) that an Event of Default under
the Indenture or the Disbursement Agreement exists and is continuing. The
Independent Construction Consultant has no actual knowledge of any material
errors, misstatements or omissions of fact in the above-referenced Construction
Reserve Disbursement Request or any certificate, exhibit or attachment thereto,
or information otherwise provided by the Issuer.
3. The Project Budget attached as SCHEDULE A to the Disbursement Request
presently in effect and the amount included in the first sentence of paragraph 2
of the Construction
E-3-5
Reserve Disbursement Request accurately set forth the amount of Hard Costs
remaining unpaid under the updated Project Budget.
4. After giving effect to the Construction Reserve Disbursement Request
from the Construction Disbursement Account, there will be sufficient Available
Construction Funds to pay for the anticipated costs to complete construction of
the Resort (and the component parts thereof) in accordance with the aggregate
amounts (and line items) set forth in the Project Budget and the Independent
Construction Consultant is not aware of any expenses other than as set forth in
the Project Budget that will be needed to be paid or incurred by the Issuer in
order to cause the Resort to be Operating in a manner consistent with the
Construction Schedule; PROVIDED that the Independent Construction Consultant
makes no certification or confirmation relating to the status of gaming licenses
or compliance with gaming laws with respect to whether the Resort will be so
Operating.
5. Pursuant to its duties under the Disbursement Agreement, the Independent
Construction Consultant has inspected the Resort within the previous four weeks
of the date of this certificate.
6. The Construction Schedule will not be hindered or delayed as a result of
any disbursement made pursuant to the Construction Reserve Disbursement Request.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
--------------------------------------------
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX X-0
TRUSTEE'S CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
TRUSTEE'S CLOSING CERTIFICATE
Ladies and Gentlemen:
U.S. Bank National Association, a national banking association, as Trustee,
has pursuant to that certain Cash Collateral and Disbursement Agreement dated as
of November 3, 2003 (as amended, supplemented or otherwise modified from time to
time, the "DISBURSEMENT AGREEMENT"), by and among U.S. Bank National
Association, a national banking association, as Disbursement Agent, the Trustee,
Professional Associates Construction Services, Inc., a California corporation,
as Independent Construction Consultant, Inn of the Mountain Gods Resort and
Casino (the "ISSUER"), an unincorporated enterprise of the Apache Tribe of the
Mescalero Reservation, the guarantors named therein and the Tribe (capitalized
terms used and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement), reviewed the Construction Reserve Disbursement Request
made as of the date hereof.
The Trustee hereby certifies to you as follows as:
1. To the Trustee's knowledge, the representation and warranty provided in
line A of paragraph 3 of the Construction Reserve Disbursement Request is true
and correct in all respects.
The foregoing certification is true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing in authorizing and
making the Initial Disbursements.
E-3-7
X.X.XXXX NATIONAL ASSOCIATION, as
Trustee
By:
--------------------------------
Name:
Title:
E-3-8
EXHIBIT F
FORM OF RETAINAGE ACCOUNT DISBURSEMENT REQUEST AND CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: RETAINAGE DISBURSEMENT REQUEST NO. __________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
AMOUNT REQUESTED: $ _____________
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), hereby submits
this Retainage Disbursement Request and Certificate (this "RETAINAGE
DISBURSEMENT REQUEST") pursuant to that certain Cash Collateral and Disbursement
Agreement dated as of November 3, 2003 (as amended, supplemented or otherwise
modified from time to time, the "DISBURSEMENT AGREEMENT"), to which you are a
party. Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.
In connection with the construction of the Resort, the Issuer hereby
requests that you, in your capacity under the Disbursement Agreement, make a
disbursement of $______________ (the "RETAINAGE DISBURSEMENT") from the
Retainage Account in order pay Retainage Amounts that are now due and payable to
[Name of Payee] (the "PAYEE") pursuant to the terms of [Describe relevant
Construction Contract] (the "CONTRACT"), as further identified and described on
SCHEDULE A attached hereto (the "PROJECT COST SCHEDULE").
In connection with the Disbursement, the Issuer represents, warrants and
certifies as follows:
1. The Resort has been completed in accordance with the Final Plans and
all applicable building and other laws, ordinances and regulations.
All amounts required to be paid to Contractors in connection with
causing the Resort to become Operating have been paid and no lien,
notice of lien, or notice of extension of time for filing of lien has
been filed against the Resort or any portion thereof in favor of any
contractor, subcontractor, supplier, materialman or any other party
which has not been released or removed of record prior to the date
hereof, other than Permitted Liens.
F-1
2. The funds disbursed pursuant to this Disbursement Request will be used
in accordance with the terms of the Indenture, the Disbursement
Agreement and the other Collateral Documents.
3. All disbursements previously requested by the Issuer and made by the
Disbursement Agent into the Disbursed Funds Account prior to the date
hereof (other than Advance Disbursements permitted to be outstanding
under the Disbursement Agreement) have been disbursed by the Issuer in
the manner certified by the Issuer in the applicable Disbursement
Request.
4. The Issuer has previously delivered to the Independent Construction
Consultant copies of all Contracts to which the Issuer is a party for
the Resort with payment obligations of at least $250,000 and, with
respect to each such Contract: (a) if it is a Material Construction
Contract, a Consent to pledge of the Contract in the form attached as
Exhibit H to the Disbursement Agreement, executed by the third-party
Contractor under each such Contract; and (b) copies of such
performance and/or payment bonds (naming the Issuer and the Trustee as
co-obligees), if any, as the Issuer may require to be provided to the
Issuer pursuant to any Contract. Each such bond continues to be
enforceable and has not been terminated or canceled (except in
accordance with its terms upon completion of the respective work or
delivery of the respective materials).
5. Immediately prior and upon giving effect to the above-requested
Disbursement, there is no and will not be any Event of Default.
The foregoing representations, warranties and certifications are true
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in making the Disbursement.
Attached to this Request is a certificate from the Independent Construction
Consultant.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
-------------------------------------------
Name:
Title:
F-2
SCHEDULE A TO EXHIBIT F
PROJECT COST SCHEDULE FOR RETAINAGE DISBURSEMENT REQUEST NO. __
[To be attached]
F-3
ANNEX 1 TO EXHIBIT F
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
RETAINAGE DISBURSEMENT REQUEST
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: RETAINAGE DISBURSEMENT REQUEST NO. _______________
UNDER CASH COLLATERAL AND DISBURSEMENT AGREEMENT
OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the retainage
disbursement request (the "RETAINAGE DISBURSEMENT REQUEST") made by Inn of the
Mountain Gods Resort and Casino (the "ISSUER") pursuant to the Cash Collateral
and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT") to which the Issuer is a party. Capitalized terms used and not
otherwise defined herein shall have the same meanings given in the Retainage
Disbursement Request.
2. The Independent Construction Consultant has reviewed all disbursements
made prior to the date hereof from the Construction Disbursement Account and the
Construction Reserve Account, if any, and compared the invoices or other
documentation supporting such disbursements with the respective Project Budget
category presently in effect and confirms that the total disbursements to date
in each such respective category does not exceed the budgeted amount for such
category.
3. The Independent Construction Consultant does not dispute the
appropriateness of any item or items the value of which exceeds $10,000 funded
with the proceeds of a previous Disbursement Request.
F-4
4. Pursuant to its duties under the Disbursement Agreement, the Independent
Constructor Consultant has inspected the Resort within the previous four weeks
of the date of this certificate.
5. The Independent Construction Consultant has received (a) duly executed
and acknowledged conditional or unconditional (as applicable) lien releases from
all contractors, subcontractors, suppliers and materialmen having provided work,
materials and/or services constituting completed construction or stored
materials relating to the Resort (except as to Retainage Amounts and such
amounts as the Independent Construction Consultant determines to have been
reasonably withheld) for all disbursements identified on the Disbursement
Request, which releases are in form and substance satisfactory to the
Independent Construction Consultant, and otherwise complies with applicable law,
and (b) duly executed acknowledgments of payment and unconditional lien
releases, in form and substance satisfactory to the Independent Construction
Consultant and otherwise in compliance with applicable law, from all payees
identified on the previous disbursement requests for payment of Hard Costs and
acknowledging the receipt by such payee of all sums payable to such Contractor
from previous Disbursement Requests (except as to Retainage Amounts and such
amounts as the Independent Construction Consultant determines to have been
reasonably withheld).
6. The Independent Construction Consultant has previously received from the
Issuer copies of all Contracts to which the Issuer is a party for the Resort
with payment obligations of at least $250,000 and, with respect to each such
Contract: (a) if it is a Material Construction Contract, a Consent to pledge of
the Contract in the form attached as Exhibit H to the Disbursement Agreement,
executed by the third-party Contractor under each such Contract; and (b) copies
of such performance and/or payment bonds (naming the Issuer and the Trustee as
co-obligees), if any, as the Issuer may require to be provided to the Issuer
pursuant to any Contract. To the knowledge of the Independent Construction
Consultant, each such bond continues to be enforceable and has not been
terminated or canceled (except in accordance with its terms upon completion of
the respective work or delivery of the respective materials).
7. The Independent Construction Consultant has reviewed all disbursements
made from the Construction Disbursement Account (including those for work,
materials, supplies and/or labor provided to the Resort by contractors,
subcontractors, supplies, and materialmen) and has compared the documentation
supporting such disbursements with the respective Project Budget category
presently in effect to confirm that the total disbursements to date in such
category do not exceed the budgeted amount for such category.
8. The Resort is complete in accordance with the Final Plans and with the
Construction Schedule. No lien, notice of lien, or notice of extension of time
for filing of lien has been filed against the Resort by any contractor,
subcontractor, supplier or materialman which have not otherwise been released or
removed of record prior to the date hereof; PROVIDED that no certification is
made herein with respect to any matters relating to the status of gaming
licenses or compliance with gaming laws. To the Independent Construction
Consultant's actual knowledge, (i) immediately prior to and after giving ef-
F-6
fect to the Disbursement, there is no and will not be any Event of Default, and
(ii) there are no material errors, inaccuracies, misstatements or omissions of
fact in the Disbursement Request or any exhibit or attachment thereto. There is
no ongoing construction in connection with the Resort (other than maintenance
and repairs in the ordinary course of business).
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
F-6
ANNEX 2 TO EXHIBIT F
FORM OF CERTIFICATE OF DESIGN BUILD CONTRACTOR
[CONSTRUCTION DISBURSEMENT ACCOUNT]/[CONSTRUCTION RESERVE ACCOUNT]
DISBURSEMENT REQUEST
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
U.S. Bank National Association, as Trustee
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: [CONSTRUCTION DISBURSEMENT ACCOUNT]/[CONSTRUCTION RESERVE ACCOUNT]
DISBURSEMENT REQUEST NO. ___________UNDER CASH COLLATERAL AND
DISBURSEMENT AGREEMENT OF INN OF THE MOUNTAIN GODS RESORT AND CASINO
Ladies and Gentlemen:
The undersigned (the "DESIGN BUILD CONTRACTOR") hereby certifies as
follows:
1. The Design Build Contractor has reviewed the final disbursement request
(the "FINAL DISBURSEMENT REQUEST") made as of the date hereof by Inn of the
Mountain Gods Resort and Casino (the "ISSUER") pursuant to the Cash Collateral
and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT") to which the Issuer is a party, to the extent necessary to
understand the defined terms contained herein and in the Disbursement Request
that are incorporated by reference from the Disbursement Agreement and to
provide the certification contained herein. Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement.
2. The Design Build Contractor hereby certifies and confirms the accuracy
of the certifications in paragraph 1 of the above-referenced Final Disbursement
Request as if made by and on behalf of the Design Build Contractor directly;
PROVIDED that the Design Build Contractor makes no certification or confirmation
relating to the status of gaming licenses or compliance
F-7
with gaming laws with respect to whether the Resort is or has been Operating in
a manner consistent with the Construction Schedule.
3. The Design Build Contractor has inspected the Resort within the
preceding week and hereby certifies that, to the best of its knowledge and
belief, based on its limited visual observation at the time of such inspection
and the information provided to the Design Build Contractor, the construction as
of such date is substantially in compliance with the Final Plans as prepared by
the Design Build Contractor.
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
CENTEX/WORTHGROUP LLC,
as Design Build Contractor
By:
---------------------------------
Name:
Title:
F-8
EXHIBIT G
FORM OF PROJECT BUDGET AMENDMENT CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO, AMENDMENT NO. ______
TO PROJECT BUDGET FOR THE RESORT
Ladies and Gentlemen:
Inn of the Mountain Gods Resort and Casino (the "ISSUER"), requests that
the Project Budget for the Resort (the "PROJECT BUDGET") be amended as set forth
on SCHEDULE A to this certificate. This certificate is delivered pursuant to
that certain Cash Collateral and Disbursement Agreement dated as of November 3,
2003 (as amended supplemented or otherwise modified from time to time, the
"DISBURSEMENT AGREEMENT"), to which you are a party. Capitalized terms used and
otherwise not defined herein shall have the meanings given in the Disbursement
Agreement. In connection with the requested Project Budget amendment, the Issuer
hereby represents, warrants and certifies as follows:
1. The proposed amendment is set forth in SCHEDULE A hereto. The proposed
amendment is reasonably necessary in order to complete the work
represented by any line item or line items in the Project Budget
presently in effect (prior to giving effect to the proposed amendment)
and will not result in a material lessening of the scope or quality of
the work constituting the design or construction of the Resort.
2. The following circumstances resulted in the reasonable necessity of
the proposed amendment:
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
3. The circumstances described in paragraph 2 above were not reasonably
anticipated by the Issuer in preparing the Initial Project Budget, and
if the Initial Project Budget has been previously amended, as of the
date of the last such amendment, for the following reasons:
---------------------------------------------------------------
G-1
---------------------------------------------------------------
---------------------------------------------------------------
4. The Project Budget in effect immediately prior to the proposed
amendment is attached to this Project Budget Amendment Certificate as
SCHEDULE B, and the Project Budget which will be in effect upon the
effectiveness of the proposed amendment is attached to this Project
Budget Amendment as SCHEDULE C.
5. Immediately following the proposed amendment: the Project Budget will
include all costs to be incurred in causing the Resort to be Operating
in a manner consistent with the Construction Schedule and] completed
in accordance with the Plans and (ii) the Project Budget will continue
to reasonably establish the line item components of the work required
to be undertaken in order to complete construction of the Resort, and
will continue to reasonably establish the cost of completing each line
item component of such work.
6. After giving effect to the proposed amendment, the Project Budget
accurately sets forth in all material respects the anticipated
Construction Costs through completion of the construction of the
Resort and the various line item components thereof identified on the
Project Budget, all within the line item allocations established for
those components set forth in the Project Budget.
7. [If Any Line Item On The Project Budget Is Reduced:] The Issuer
reasonably expects that the work represented by the line item entitled
________ will be completed for a total cost of $________ which amount
is less than $________ [should correspond to $ amount set forth in the
Project Budget prior to proposed amendment] and such savings will be
reallocated, pursuant to the amendment, to another line item in the
Project Budget, whether Hard Costs or Soft Costs.
8. The construction performed as of the date hereof is of first quality
and in accordance with the Plans. The Issuer reasonably believes that
the date on which the Resort will become Operating will occur in a
manner consistent with the Construction Schedule.
9. Immediately prior to and upon giving effect to the Project Budget
Amendment, there is no and will not be any Event of Default.
The undersigned certifies that the Project Budget Amendment contemplated
hereby is permitted pursuant to the Disbursement Agreement and the Indenture,
and all conditions precedent thereto have been met.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent and the Independent Construction
Consultant are entitled to rely on the foregoing.
G-2
Attached to this Project Budget Amendment Certificate is a certificate from
the Independent Construction Consultant.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
---------------------------------------------
Name:
Title:
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
G-3
SCHEDULE A TO EXHIBIT G
PROPOSED PROJECT BUDGET AMENDMENT
Amendment No. ____ to Project Budget.
I. Increases To Line Items:
The Following Line Item Is Increased: -------------------------------
Old Amount of Line Item: -------------------------------
Amount of Increase: -------------------------------
New Total For Line Item: -------------------------------
Source of Funds For Increase:
Source Amount
Realized Savings(1) -------------------------------
Reduction in "contingency" line item -------------------------------
Reduction of allocated reserves -------------------------------
Total -------------------------------
--------------------------------
1. Source and documentation (E.G., receipts for purchased goods or
invoices for services) for Realized Savings are attached.
II. Decreases To Line Items:
The Following Line Item Is Decreased: -------------------------------
Old Amount of Line Item: -------------------------------
Amount of Decrease: -------------------------------
New Amount of Line Item: -------------------------------
Reason For Decrease of Line Item: -------------------------------
----------------------------
1 Source and documentation (E.G., receipts for purchased goods or invoices
for services) for REalized Savings are attached.
G-4
Source Amount
Realized Savings(1) -------------------------------
III. New Project Budget Totals
a. The total Project Budget for
for the Resort is now: $______________________________
b. The amount disbursed to date
for the Resort is: $______________________________
c. Remaining amounts to be
spent: $______________________________
d. Available Construction Funds
or the Resort: $______________________________
--------------------------------
1 Source and documentation (E.G., receipts for purchased goods or invoices
for services) for Realized Savings are attached.
2 Item III.d should be greater than or equal to item III.c.
G-5
SCHEDULE B TO EXHIBIT G
EXISTING PROJECT BUDGET(1)
[To be attached by the Issuer]
------------------------
1 Or portion thereof being amended.
G-6
SCHEDULE C TO EXHIBIT G
PROPOSED REVISED PROJECT BUDGET
[To be attached by the Issuer]
G-7
ANNEX 1 TO EXHIBIT G
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
PROJECT BUDGET AMENDMENT
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: AMENDMENT NO. ____________TO CONSTRUCTION
DISBURSEMENT BUDGET FOR THE RESORT
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the Project Budget
Amendment Certificate (the "PROJECT BUDGET AMENDMENT CERTIFICATE") dated as of
the date hereof, made by Inn of the Mountain Gods Resort and Casino (the
"ISSUER") pursuant to the Cash Collateral and Disbursement Agreement dated as of
November 3, 2003 (as amended, supplemented or otherwise modified from time to
time, the "DISBURSEMENT AGREEMENT") to which the Issuer is a party, and such
other budgets, documents, schedules, shop drawings, plans, specifications and
other information as it deems necessary in order to provide this letter.
Capitalized terms used and not otherwise defined herein shall have the meanings
given in the Disbursement Agreement.
2. Pursuant to its duties under the Disbursement Agreement, the Independent
Construction Consultant has inspected the Resort within the previous two weeks
of the date of this certificate.
3. The Independent Construction Consultant hereby certifies and
independently confirms the accuracy of the certifications contained in the
above-referenced Project Budget Amendment Certificate; PROVIDED that the
Independent Construction Consultant makes no certification or confirmation
relating to the status of Gaming Licenses or compliance with Gaming Laws with
respect to whether the Resort will be Operating in a manner consistent with the
Construction Schedule.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the amendment to the Project Budget.
G-8
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
G-9
EXHIBIT H-1
FORM OF CONSTRUCTION CONTRACT AMENDMENT CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: AMENDMENT NO. ____ TO CONTRACT DATED __________, ____
(THE "CONTRACT"), BETWEEN INN OF THE MOUNTAIN GODS RESORT AND
CASINO (THE "ISSUER"), AND ____________________ ("CONTRACTOR")
Ladies and Gentlemen:
The Issuer requests that the above-referenced Contract be amended as set
forth on SCHEDULE A to this certificate. This certificate is delivered pursuant
to that certain Cash Collateral and Disbursement Agreement dated as of November
3, 2003 (as amended, supplemented or otherwise modified from time to time, the
"DISBURSEMENT AGREEMENT"), to which you are a party. Capitalized terms used and
not otherwise defined herein shall have the meanings given in the Disbursement
Agreement. In connection with the requested Contract amendment, the Issuer
hereby represents, warrants and certifies as follows:
1. The proposed Contract amendment is attached as SCHEDULE A hereto. The
amendment is reasonably necessary in order to complete the development,
construction, equipping and operation of the Resort so that it is Operating in a
manner consistent with the Construction Schedule.
2. The following circumstances resulted in the necessity of the proposed
amendment:
--------------------------------------------
--------------------------------------------
--------------------------------------------
3. After giving effect to such amendment (and any related amendment to the
Project Budget for the Resort):
H-1-1
(a) The Project Budget will continue to call for construction of
improvements constituting the Resort;
(b) The amendment will not materially affect the scope, quality, character
or value of the Resort for the following reasons:
--------------------------------------------
--------------------------------------------
--------------------------------------------
(c) If the amendment will effect a reduction in the scope of the work to
be performed by Contractor, then the work eliminated from the scope of
work either (i) is not necessary to complete the Resort as a first
quality improvement in accordance with the Plans and all applicable
building laws, ordinances and regulations, or (ii) to the extent
necessary for the completion of the Resort as a first quality
improvement in accordance with the Plans and all applicable building
laws, ordinances and regulations, will be completed by the contractors
set forth below under the new or amended contracts described below.
Each such contractor is competent to perform the work called for by
the new or amended contract in exchange for the payments contemplated
thereby, and each such contract or amendment thereto complies with all
applicable provisions of Article 5.1 of the Disbursement Agreement.
Work Contractor Contract
------------------------- ----------------------- -------------------------
------------------------- ----------------------- -------------------------
------------------------- ----------------------- -------------------------
------------------------- ----------------------- -------------------------
------------------------- ----------------------- -------------------------
(d) The Issuer will continue to be able to complete the work within the
line items pertaining to the Contract: (i) in a timely manner so as to
permit the date on which the Resort becomes Operating in a manner
consistent with the Construction Schedule; and (ii) within the
aggregate amounts specified for the line items on the Project Budget.
4. After giving effect to the proposed amendment (and any related amendment
to the Project Budget), the Project Budget accurately sets forth the anticipated
Construction Costs through completion of the construction of the Resort and the
various components of the Resort, all within the line item allocations
established for those components set forth in the Project Budget.
5. Prior to and after giving effect to the amendment, there is no and will
not be any Event of Default.
The undersigned certifies that this Contract Amendment Certificate is
authorized hereby and is permitted pursuant to the Disbursement Agreement and
the Indenture, and all conditions precedent thereto have been met.
H-1-2
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing.
Attached to this Contract Amendment Certificate is a certificate from the
Independent Construction Consultant [for Contracts relating to Hard Costs only:]
and a certificate from the Design Build Contractor.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
---------------------------------------------
Name:
Title:
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
H-1-3
SCHEDULE A TO EXHIBIT H-1
COPY OF EXECUTED CONSTRUCTION CONTRACT AMENDMENT
[To be attached by the Issuer]
H-1-4
ANNEX 1 TO EXHIBIT H-1
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
CONSTRUCTION CONTRACT AMENDMENT
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: AMENDMENT NO. ________ TO CONTRACT DATED ______________
(THE "CONTRACT") BETWEEN INN OF THE MOUNTAIN GODS RESORT AND
CASINO (THE "ISSUER") AND __________________ ("CONTRACTOR")
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the Cash Collateral
and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), to which the Issuer is a party, the above-referenced Contract, as
well as the Issuer's contract amendment certificate dated as of the date hereof
and made pursuant to the Disbursement Agreement (the "CONTRACT AMENDMENT
CERTIFICATE"). Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
2. The Independent Construction Consultant hereby certifies and
independently confirms the accuracy of the certifications in the
above-referenced Contract Amendment Certificate; PROVIDED that the Independent
Construction Consultant makes no certification or confirmation relating to the
status of gaming licenses or compliance with gaming laws with respect to whether
the Resort will be Operating in a manner consistent with the Construction
Schedule.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing relative to the amendment to the Contract.
H-1-5
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX H-1
FORM OF CERTIFICATE OF DESIGN BUILD CONTRACTOR
CONSTRUCTION CONTRACT AMENDMENT
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: AMENDMENT NO. ________ TO CONTRACT DATED __________________
(THE "CONTRACT") BETWEEN INN OF THE MOUNTAIN GODS RESORT AND CASINO,
(THE "ISSUER") AND _______________________ ("CONTRACTOR")
Ladies and Gentlemen:
The undersigned (the "DESIGN BUILD CONTRACTOR") hereby certifies as
follows:
1. The Design Build Contractor has reviewed the Cash Collateral and
Disbursement Agreement dated as of November 3, 2003 (as amended, supplemented or
otherwise modified from time to time, the "DISBURSEMENT AGREEMENT"), to which
the Issuer is a party, the above-referenced Contract, as well as the Issuer's
contract amendment certificate dated as of the date hereof and made pursuant to
the Disbursement Agreement (the "CONTRACT AMENDMENT CERTIFICATE") to the extent
necessary to understand the defined terms contained herein and in the Contract
Amendment Certificate that are incorporated by reference from the Disbursement
Agreement, and to provide the certification contained herein.
2. The Design Build Contractor hereby certifies and independently confirms
the accuracy of the certifications in the above-referenced Contract Amendment
Certificate, as such certifications relate to Hard Costs; PROVIDED that the
Design Build Contractor makes no certification or confirmation relating to the
status of Gaming Licenses or compliance with Gaming Laws with respect to whether
the Resort will be Operating in a manner consistent with the Construction
Schedule.
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Independent Construction Consultant and the
Disbursement Agent is entitled to rely on the foregoing relative to the
amendment to the Contract.
H-1-7
CENTEX/WORTHGROUP LLC,
as Design Build Contractor
By:
-------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF ADDITIONAL CONSTRUCTION CONTRACT CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: INN OF THE MOUNTAIN GODS RESORT AND CASINO, [NAME OF CONTRACT]
DATED ______________ (THE "CONTRACT"), BETWEEN INN OF THE
MOUNTAIN GODS RESORT AND CASINO (THE "ISSUER"), AND
_____________________________ ("CONTRACTOR")
Ladies and Gentlemen:
The Issuer requests that the above-referenced Contract, a copy of which is
attached hereto as SCHEDULE A (together with a Consent to pledge of the Contract
in the form of Exhibit H to the Disbursement Agreement duly executed by
Contractor, a copy of which is attached hereto as SCHEDULE B), be approved and
made effective. This certificate is delivered pursuant to that certain Cash
Collateral and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), to which you are a party. Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.
In connection with entering into the Contract, the Issuer hereby
represents, warrants and certifies as follows:
1. The work to be performed under the Contract relates to the following
line item under the Project Budget presently in effect and consists of the
following:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
Such work conforms to the Plans.
2. The Contract will permit the Issuer to complete the work within the line
items of the Project Budget presently in effect pertaining to the Contract: (i)
in a timely manner so as to
H-2-1
permit the date on which the Resort (and its various components) becomes
Operating in a manner consistent with the Construction Schedule and (ii) within
the aggregate amounts specified for the line item in the Project Budget
presently in effect. The Contractor is competent to perform the work called for
by the Contract.
3. Prior to and after giving effect to the Contract, there is no and will
not be any Event of Default.
4. The entering into the Contract and the performance of the work
thereunder [will/will not] require an amendment to the Project Budget. [if it
will, add: Attached hereto is a duly completed and executed Project Budget
Amendment Certificate accurately describing such amendment].
5. After giving effect to the Contract (and any related amendment to the
Project Budget) and the performance of the work under the Contract the funds in
the Construction Disbursement Account (together with any actual or anticipated
Purchase Money Financing to the extent permitted under the Indenture) will be
sufficient to cause the Resort to become Operating in a manner consistent with
the Construction Schedule.
6. The Issuer's entering into the proposed Contract is permitted under
Section 5.3 of the Disbursement Agreement and all conditions precedent thereto
have been met.
The undersigned certifies that this Additional Contract Certificate is
authorized hereby and is permitted pursuant to the Disbursement Agreement and
the Indenture, and all conditions precedent thereto have been met.
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing.
Attached to this Contract Amendment Certificate is a certificate from the
Independent Construction Consultant [for Contracts relating to Hard Costs only:]
and a certificate from the Design Build Contractor.
INN OF THE MOUNTAIN GODS RESORT AND CASINO
By:
---------------------------------------------
Name:
Title:
H-2-2
Received and Reviewed:
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
H-2-3
SCHEDULE A TO EXHIBIT H-2
COPY OF EXECUTED CONSTRUCTION CONTRACT
[To be attached by the Issuer]
H-2-4
SCHEDULE B TO EXHIBIT H-2
COPY OF EXECUTED CONSENT TO PLEDGE OF CONSTRUCTION CONTRACT
[To be attached by the Issuer]
H-2-5
ANNEX 1 TO EXHIBIT H-2
FORM OF CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
ADDITIONAL CONSTRUCTION CONTRACT CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Re: ADDITIONAL CONTRACT CERTIFICATE DATED __________________
RELATING TO [NAME OF CONTRACT] DATED _________________
(THE "CONTRACT") BETWEEN INN OF THE MOUNTAIN GODS RESORT
AND CASINO (THE "ISSUER"), AND ________________________
("CONTRACTOR")
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the Cash Collateral
and Disbursement Agreement dated as of November 3, 2003 (as amended,
supplemented or otherwise modified from time to time, the "DISBURSEMENT
AGREEMENT"), to which the Issuer is a party, the above-referenced Contract, as
well as the Issuer's additional contract certificate dated as of the date hereof
and made pursuant to the Disbursement Agreement (the "ADDITIONAL CONTRACT
CERTIFICATE"). Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
2. The Independent Construction Consultant hereby certifies and
independently confirms the accuracy of the certifications in paragraphs 1 and 2
of the Additional Contract Certificate. The Independent Construction Consultant
is not aware of any material errors in the information contained in any other
paragraph of the Additional Contract Certificate.
3. The Independent Construction Consultant concurs with the Issuer's
certification that entering into the Contract and the performance of work
thereunder will not cause the Available Construction Funds to be less than the
amount required to cause the Resort to become Operating in a manner consistent
with the Construction Schedule; PROVIDED that the Independent Construction
Consultant makes no certification or confirmation relating to the status of
gaming licenses or compliance with gaming laws with respect to whether the
Resort will be Operating in a manner consistent with the Construction Schedule.
H-2-6
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing relative to authorizing the Issuer to enter into the Contract.
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES,
INC., as Independent Construction Consultant
By:
---------------------------------------------
Name:
Title:
X-0-0
XXXXX 0 XX XXXXXXX H-2
FORM OF CERTIFICATE OF DESIGN BUILD CONTRACTOR
ADDITIONAL CONSTRUCTION CONTRACT CERTIFICATE
[DATE]
U.S. Bank National Association,
as Disbursement Agent
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Professional Associates Construction Services, Inc.,
as Independent Construction Consultant
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Re: ADDITIONAL CONTRACT CERTIFICATE DATED _________________, ____,
RELATING TO [NAME OF CONTRACT DATED ________________, ____ ]
(THE "CONTRACT") BETWEEN INN OF THE MOUNTAIN GODS RESORT AND
CASINO (THE "ISSUER") AND ________________________ ("CONTRACTOR")
Ladies and Gentlemen:
The undersigned (the "DESIGN BUILD CONTRACTOR") hereby certifies as
follows:
1. The Design Build Contractor has reviewed the above-referenced Contract,
as well as the Cash Collateral and Disbursement Agreement dated as of November
3, 2003 (as amended, supplemented or otherwise modified from time to time, the
"DISBURSEMENT Agreement"), to which the Issuer is a party, the above-referenced
Contract, as well as the Issuer's additional contract certificate dated as of
the date hereof and made pursuant to the Distribution Agreement (the "ADDITIONAL
CONTRACT CERTIFICATE") to the extent necessary to understand the defined terms
contained herein and in the Additional Contract Certificate that are
incorporated by reference from the Disbursement Agreement, and to provide the
certification contained herein.
2. The Design Build Contractor hereby certifies and independently confirms
the accuracy of the certifications in paragraphs 1 and 2 of the above-referenced
Additional Contract Certificate, as such certifications relate to the Hard
Costs; PROVIDED that the Design Build Contractor makes no certification or
confirmation relating to the status of Gaming Licenses or compliance with Gaming
Laws with respect to whether the Resort will be Operating in a manner consistent
with the Construction Schedule.
The foregoing representations, warranties and certifications are true,
complete and correct and the Independent Construction Consultant and the
Disbursement Agent are entitled to rely on the foregoing relative to authorizing
the Issuer to enter into the Contract.
H-2-8
CENTEX/WORTHGROUP LLC,
as Design Build Contractor
By:
---------------------------------------
Name:
Title:
H-2-9
EXHIBIT I
FORM OF CONSENT TO PLEDGE OF CONSTRUCTION CONTRACT
THIS CONTRACTING PARTY'S CONSENT TO THE PLEDGE OF CONTRACT (the "CONSENT")
is made as of _________________, ____, by __________________, a
______________________ [corporation] ("CONTRACTING PARTY"), whose address is
_______________________, for the benefit of U.S. Bank National Association, a
national banking association, having an office at 00 Xxxxxxxxxx Xxxxxx, Xx.
Xxxx, Xxxxxxxxx 00000-0000, as trustee for the benefit of the holders of the
Notes (the "TRUSTEE") .
RECITALS
A. NOTES. Pursuant to that certain Indenture dated as of November 3, 2003
(as amended, supplemented or otherwise modified from time to time, the
"INDENTURE"), by and between Inn of the Mountain Gods Resort and Casino, as
issuer (the "ISSUER"), the Trustee, and certain other parties named therein, the
Issuer has issued $185.0 million principal amount of its 12% Senior Notes due
2010 (the "ORIGINAL NOTES" and, together with any new notes issued in exchange
therefor, the "NOTES"). All defined terms used and not otherwise defined herein
shall have the meanings given in the Indenture. The proceeds of the Notes, minus
certain debt financing costs, have been deposited into an escrow account
pursuant to a Cash Collateral and Disbursement Agreement (the "DISBURSEMENT
AGREEMENT") of even date with the Indenture among the Issuer, U.S. Bank National
Association, as disbursement agent (the "DISBURSEMENT AGENT"), the Trustee,
Professional Associates Construction Services, Inc., as Independent Construction
Consultant, and certain other parties named therein.
B. SECURITY. The Issuer must use the proceeds of the Notes disbursed
pursuant to the Disbursement Agreement for the construction of the Resort (as
defined in the Disbursement Agreement). Contracting Party and the Issuer are
parties to that certain [name of contract] dated as of _____________, ________
(the "CONTRACT") relating to the design, construction and/or operation of the
Resort. [The Issuer has executed an Accounts Security Agreement dated of even
date with the Indenture (as amended, supplemented or otherwise modified from
time to time, the "ACCOUNTS SECURITY AGREEMENT"), in favor of the Trustee, to
collaterally assigning all of the Issuer's right, title and interest in and to,
among other things, the Contract, in order to secure the obligations of the
Issuer under, among other documents, the Notes and the Indenture (the
"OBLIGATIONS") and execute and deliver all other document required to perfect
the lien in the Contract and other collateral.]
CONSENT
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Contracting Party agrees as follows:
CONSENT TO ASSIGNMENT. Pursuant to the Contract, Contracting Party has
performed or supplied, or agreed to perform or supply, certain services,
materials or documents in connection with the Resort. Contracting Party hereby
consents to the assignment thereof by the Issuer to the Trustee as provided in
the Pledge and Security Agreement and this Consent.
20. ISSUER'S DEFAULT UNDER CONTRACT. If the Issuer defaults under the
Contract, before exercising any remedy, Contracting Party shall deliver to the
Trustee at its address set forth above with a copy to the Independent
Construction Consultant at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxxx (or such other address provided
thereby in writing to the Issuer), by registered or certified mail, postage
prepaid, return receipt requested, written notice of such default, specifying
the nature of the default and the steps necessary to cure the same, and clearly
marked as a notice of default pursuant to this Paragraph 2. If the Issuer fails
to cure the default within the time permitted under the Contract, then the
Trustee shall have an additional forty five (45) days after the expiration of
the time permitted under the Contract (but in no event less than an additional
forty five (45) days after the receipt by the Trustee of said notice from
Contracting Party) within which the Trustee shall have the right, but not the
obligation, to cure such default; PROVIDED, HOWEVER, that, with respect to
payment defaults only, the Trustee shall have thirty (30) days from receipt of
notice of such default within which the Trustee shall have the right, but not
the obligation, to cure such default. Contracting Party's delivery of such a
notice of default to the Trustee and the Trustee's failure to cure the same
within the said additional period shall be conditions precedent to the exercise
of any right or remedy of Contracting Party arising by reason of such default,
except that Contracting Party shall not be required to continue performance
under the Contract for the said additional period, unless and until the Trustee
agrees to pay Contracting Party for that portion of the work, labor and
materials rendered during the said additional period. Trustee shall provide
Contracting Party upon Contracting Party's request a Statement of the Collateral
Accounts as evidence of Trustee's ability to pay sums owed under the Contract.
21. CERTIFICATE OF DEFAULT STATUS. Upon the written request of the Trustee
at any time and from time to time, Contracting Party shall furnish to the
Trustee, within five (5) days of receipt of such request, a certificate stating
whether, as of such request receipt date, the Issuer is in default on the
Contract and, if so, the nature of the default and the steps necessary to cure
the same. Such certificate shall not constitute a written notice of default
pursuant to Paragraph 2 hereof unless clearly marked as such.
22. ISSUER'S DEFAULT UNDER OBLIGATIONS. If the Trustee gives written notice
to Contracting Party that the Issuer has defaulted under the Obligations and
requests that Contracting Party continue its performance under the Contract,
Contracting Party shall thereafter perform for the Trustee under the Contract in
accordance with its terms, so long as Contracting Party shall be paid pursuant
to the Contract for all work, labor and materials rendered or supplied
thereunder, including payment of any sums due to Contracting Party for work
performed or materials supplied up to and including the date of the Issuer's
default.
23. PERFORMANCE FOR THE TRUSTEE. If the Trustee (a) cures any default by
the Issuer pursuant to Paragraph 2 above, (b) gives written notice to
Contracting Party that the Issuer has defaulted under the Collateral Documents
pursuant to Paragraph 4 above, (c) becomes the owner of the Resort, (d)
undertakes to complete the construction of the Resort pursuant to its rights
under the Collateral Documents, or (e) following an Event of Default under (and
as defined in) either the Indenture or the Cash Collateral and Disbursement
Agreement, otherwise requires the performance of Contracting Party's obligations
under the Contract or the use of any plans and specifications, drawings, surveys
or other materials or documents previously prepared or provided by Contracting
Party pursuant to the Contract, then in any such event, so long as
-2-
Contracting Party has received and continues to receive the compensation
required under the Contract related thereto, the Trustee shall have the right to
obtain performance from Contracting Party of all of its obligations under the
Contract, and to use all such plans and specifications, drawings, surveys and
other materials and documents, and the ideas, designs and concepts contained
therein, in connection with the completion of the Resort, without the payment of
any additional fees or charges to Contracting Party. Whether Contracting Party
continues to perform its obligations under the Contract at the election of the
Trustee under Paragraphs 4 and 5 of this Consent, Trustee agrees to pay the
Contracting Party all sums due and payable under the Contract for work completed
prior to the date of such election in accordance with the Contract and to pay
Retainage Amounts for the portion of the Resort completed in accordance with the
Contract.
24. AMENDMENTS AND CHANGE ORDERS. Contracting Party agrees that it will not
modify, amend, supplement or in any way join in the release or discharge of
Contracting Party's obligations under the Contract unless (a) such change is
commercially reasonable, and (b) the Independent Construction Consultant
consents to such change in writing, or such change is otherwise expressly
permitted by the Disbursement Agreement, and Contracting Party agrees that it
will not perform any work pursuant to any change order, directive or amendment
to the Contract unless the same is issued and executed in accordance with the
foregoing and the terms and conditions of the Contract.
25. LIST OF SUBCONTRACTING PARTIES. Upon the written request of the Trustee
at any time and from time to time, Contracting Party shall furnish to the
Trustee a current list of all Persons with whom Contracting Party has entered
into subcontracts or other agreements related to the rendering of work, labor or
materials under the Contract, together with a statement as to the status of each
such subcontract or agreement, and the respective amounts, if any, owed by
Contracting Party related thereto.
26. COMPLIANCE WITH LAWS. Contracting Party shall comply with, and shall
report to the Trustee any failure known to Contracting Party of the Issuer, the
Resort or any Person or entity furnishing materials or services in connection
with the construction of the Resort to comply, with all applicable laws,
ordinances, regulations and governmental requirements relating to the
construction of the Resort.
27. CONTRACTING PARTY'S RECORDS. At the Trustee's or the Independent
Construction Consultant's request, Contracting Party shall promptly submit to
the Trustee or the Independent Construction Consultant's, as applicable, such
payroll vouchers, receipts, lien releases and waivers, progress surveys,
inspection reports and other documents and papers relating to construction of
the Resort as the Trustee or the Independent Construction Consultant may
request.
28. TRUSTEE INSPECTIONS. The Trustee and its agents and representatives
(including, without limitation, the Independent Construction Consultant) shall
have the right at any time to enter the site of the Resort and inspect the work
of construction and all materials, plans, specifications, shop drawings and
other matters relating to the Resort or the construction thereof. From time to
time, at Contracting Party's place of business during customary business hours
and upon reasonable prior notice, the Trustee and its agents and representatives
(including, without
-3-
limitation, the Independent Construction Consultant) shall also have the right
to examine, copy and audit the books, records and accounting data and other
documents of Contracting Party relating to the Resort. Any inspection of the
Resort by the Trustee or its agent or representatives (including, without
limitation, the Independent Construction Consultant) or any examination,
acceptance or approval by the Trustee or such other parties of documents
relating to the Resort, including, but not limited to, plans, specifications,
shop drawings, books, records and vouchers, is for the sole purpose of
protecting the Trustee's rights under the Disbursement Agreement and the other
Collateral Documents and its security for the Obligations. Contracting Party
shall not rely on any such inspection, examination, acceptance or approval by
the Trustee or its agents or representatives (including, without limitation, the
Independent Construction Consultant). In no event shall the Trustee or any of
such agents or representatives be obligated to disclose to Contracting Party or
to the Issuer the results of any such inspection or examination.
29. SECURITY OF RESORT AND EQUIPMENT. Contracting Party agrees to cooperate
with the Issuer and the Trustee in preserving their respective ownership and
security interests in all personal Resort relating to the Resort, including
without limitation building materials, machinery and appliances acquired by
Contracting Party with the proceeds of the Notes and held or stockpiled on or
off the site of the Resort for incorporation into or use in connection with the
Resort.
30. REPRESENTATIONS AND WARRANTIES. Contracting Party represents and
warrants to the Trustee that (a) it is duly licensed to conduct its business in
the jurisdiction contemplated by the Contract, and will at all times maintain
its license in full force and effect throughout the term thereof, (b) the
Contract has not been amended, modified or supplemented except as set forth
therein, (c) the Contract constitutes a valid and binding obligation of
Contracting Party and is enforceable against Contracting Party in accordance
with its terms, (d) there have been no prior assignments of the Contract, and
(e) all covenants, conditions and agreements of the Issuer and Contracting Party
contained in the Contract have been performed as required therein, except for
those that are not due to be performed until after the date hereof.
31. APPLICATION OF FUNDS. Nothing herein imposes or shall be construed to
impose upon the Trustee any duty to direct the application of any proceeds of
the Notes, and Contracting Party acknowledges that the Trustee is not obligated
to Contracting Party or any of its subcontracting parties, materialmen,
suppliers or laborers.
32. ACKNOWLEDGMENT OF INDUCEMENT. Contracting Party is executing this
Consent to induce the purchasers of the Notes to purchase the Notes. Contracting
Party understands that the purchasers of the Notes would not advance such funds
and make such purchases but for Contracting Party's execution and delivery
hereof.
33. IRREVOCABILITY. The provisions hereof shall be irrevocable and remain
in full force and effect until the Issuer has fully paid and performed all of
the obligations.
34. NOTICES. Except for notices sent pursuant to Paragraph 2 above, any
notices to the Trustee hereunder shall be sent to its address set forth above,
by U.S. Mail, postage prepaid.
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35. GOVERNING LAW. This Consent shall be governed by the laws of the State
of New York.
-5-
IN WITNESS WHEREOF, Contracting Party has executed this Consent as of the
date first above written.
CONTRACTING PARTY:
By:
---------------------------------------------
Name:
Title:
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