EXHIBIT 10.3
AMENDMENT NO. 1 TO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
This Amendment No. 1 to Cash Collateral and Disbursement Agreement (the
"Amendment") is made and entered into as of the 17th day of November, 2003 by
and among U.S. Bank National Association, a national banking association, as
disbursement agent, securities intermediary and depositary bank (the "USB
Disbursement Agent"), Xxxxx Fargo Bank, N.A., a national banking association, as
disbursement agent, securities intermediary and depositary bank (the "WFB
Disbursement Agent"), (the USB Disbursement Agent and the WFB Disbursement
Agent, together with any successor disbursement agent permitted hereunder, being
sometimes referred to herein individually or collectively as the "Disbursement
Agent"), U.S. Bank National Association, a national banking association, as
trustee under the Indenture (together with its successors and assigns from time
to time under the indenture, the "Trustee"), Xxxxxxx & Xxxxxx, Inc. (the
"Independent Construction Consultant"), the River Rock Entertainment Authority
(the "Authority"), an unincorporated instrumentality of The Dry Creek Rancheria
Band of Pomo Indians of California (the "Tribe") and the Tribe (collectively,
the "Parties").
WHEREAS the Parties entered into the Cash Collateral and Disbursement
Agreement dated as of the 7th day of November, 2003, (the "Agreement"); and
WHEREAS the Parties wish to amend the Agreement to make technical
amendments thereto,
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Parties, intending to be legally
bound hereby, agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Agreement.
2. Section 2.5.1 of the Agreement is hereby amended by deleting the
first sentence thereof in its entirety and replacing it with the following:
"For so long as this Agreement remains in effect, the WFB
Disbursement Agent waives its rights of chargeback and/or
banker's lien against the Operating Account. In addition, the
WFB Disbursement Agent waives any right to offset any claim
(including such right of setoff as set forth in Section 9-340
of the UCC) against the Authority which it might have against
any account maintained hereunder; provided, however, that the
WFB Disbursement Agent retains the right to charge the
Operating Account for (a) any of the WFB Disbursement Agent's
fees provided for herein for which the Authority is
responsible as provided above and (b) all items deposited in
and credited to the Operating Account and subsequently
returned unpaid or with respect to which the WFB Disbursement
Agent fails to receive final settlement."
3. Section 2.5.2 of the Agreement is hereby amended by deleting the
second sentence thereof in its entirety and replacing it with the following:
"For so long as this Agreement remains in effect, the USB
Disbursement Agent waives its rights of chargeback and/or
banker's lien against the Operating Account. In addition, the
USB Disbursement Agent waives any right to offset any claim
(including such right of setoff as set forth in Section 9-340
of the UCC) against the Authority which it might have against
any account maintained hereunder; provided, however, that the
USB Disbursement Agent retains the right to charge the
Construction Accounts for (a) any of the USB Disbursement
Agent's fees provided for herein for which the Authority is
responsible as provided above and (b) all items deposited in
and credited to the Construction Accounts and subsequently
returned unpaid or with respect to which the USB Disbursement
Agent fails to receive final settlement."
4. Section 2.9 of the Agreement is hereby amended by deleting the first
sentence thereof in its entirety and replacing it with the following:
"Each Disbursement Agent hereby acknowledges the Trustee's
security interests as set forth above and under any other
Collateral Documents and waives any security interest or other
lien in the Collateral and further waives any right to set-off
the Collateral now or in the future against any indebtedness
of the Authority provided, however, that (a) the WFB
Disbursement Agent retains the right to charge the Operating
Account for (1) any of the Disbursement Agent's fees provided
for herein for which the Authority is responsible as provided
herein and (2) all items deposited in and credited to the
Operating Account and subsequently returned unpaid or with
respect to which the WFB Disbursement Agent fails to receive
final settlement and (b) the USB Disbursement Agent retains
the right to charge the Construction Accounts for (1) any of
the USB Disbursement Agent's fees provided for herein for
which the Authority is responsible as provided herein and (2)
all items deposited in and credited to the Construction
Accounts and subsequently returned unpaid or with respect to
which the USB Disbursement Agent fails to receive final
settlement."
5. Section 7.1 of the Agreement is hereby amended by inserting the
following additional sentence at the end of the section:
"In no event shall any party to this Agreement be liable to
any other party to this Agreement for any special, indirect,
incidental, consequential or punitive damages whether the
likelihood of such damages was known to the party against
which the claim is asserted or action brought and regardless
of the form of the claim or action including without
limitation any claim or action alleging gross negligence,
willful misconduct, failure to exercise reasonable care or
failure to act in good faith."
6. Section 10.1 of the Agreement is hereby amended by
(a) deleting from Section 10.1.1 the sentence, "A Disbursement Agent
may resign in writing at any time and be discharged from all duties hereunder
upon 30 days' written notice to all parties hereto" and inserting in lieu
thereof the following:
"A Disbursement Agent may resign from its obligations under
this Agreement at any time after prior written notice of not
less than sixty (60) days to all parties hereto. The Authority
shall designate a successor to the Disbursement Agent promptly
after receipt of notice of resignation by the Disbursement
Agent, which successor shall be subject to the approval of the
Trustee (such approval to be granted or withheld in the
Trustee's sole and absolute discretion), and shall cause such
designated successor promptly to assume the obligations of the
Disbursement Agent hereunder. It shall be an Event of Default
under the Pledge and Security Agreement and the other
documents evidencing, securing or otherwise relating to the
Senior Notes, if a successor to the Disbursement Agent
acceptable to the Trustee shall not have been designated and
has not assumed the obligations of the Disbursement Agent
prior to the effective date of the Disbursement Agent's
resignation."
and
(b) deleting the words "resigns or" from the first sentence of Section
10.1.2
7. Section 11 of the Agreement is hereby amended by deleting the first
sentence thereof in its entirety and replacing it with the following:
"Each Disbursement Agent shall deliver to the Authority and
the Trustee such statements of account and reports relating to
a Collateral Account as required pursuant to Section 5 of its
related Control Agreement."
8. Section 12.8 of the Agreement is hereby amended by adding the
following proviso to the end of the first sentence thereof:
"; provided that, in the event any of the terms or provisions
of this Agreement are inconsistent or contrary to the terms of
either of the Control Agreements, the terms of the Control
Agreement shall be deemed to be the controlling language and
shall supercede any inconsistent or contrary language
contained in this Agreement."
9. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Agreement are and shall remain in full force and effect and
all references therein to such Agreement shall henceforth refer to the Agreement
as amended by this Amendment.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(d) This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original.
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment No.1 to
the Cash Collateral and Disbursement Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
U.S. BANK NATIONAL ASSOCIATION, as USB Disbursement Agent
By: /s/ Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
as WFB Disbursement Agent
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
RIVER ROCK ENTERTAINMENT AUTHORITY
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
-----------------------------
Name: Xxxxxxxxx XxXxxxx
Title: Chairperson
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
-----------------------------
Name: Xxxxxxxxx XxXxxxx
Title: Chairperson
XXXXXXX & XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
