EXHIBIT 10.10
SECOND AMENDMENT TO DEVELOPMENT AND LOAN AGREEMENT
BETWEEN
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS
AND
DRY CREEK CASINO, LLC
This Second Amendment to the Development and Loan Agreement ("Second
Amendment") is made and entered into this 19th day of February, 2003, by and
between the Dry Creek Rancheria Band of Pomo Indians, a federally recognized
Indian tribe (the "Tribe"), and Dry Creek Casino, LLC, a Texas limited liability
company ("Developer," and together with the Tribe, the "Parties"). Each
capitalized term used in this Second Amendment and not otherwise defined herein
shall have the meaning ascribed to it in the Development and Loan Agreement
between the Parties dated August 26, 2001 (the "Agreement"), as amended by the
Amendment to Development and Loan Agreement dated April 29, 2002 (the "First
Amendment").
WHEREAS, the Parties executed the Agreement on August 26, 2001;
WHEREAS, subsequent to the execution of the Agreement, the Parties
determined that the Agreement should be revised to reflect changed circumstances
and executed the First Amendment dated April 29, 2002;
WHEREAS, pursuant to the Agreement and the First Amendment, Developer
has committed to loan the Tribe Fifteen Million and no/00 Dollars
($15,000,000.00) to assist in the development and construction of a temporary
casino facility;
WHEREAS, Developer wishes to loan the Tribe an additional Eight Million
and no/00 Dollars ($8,000,000.00) for the completion of the temporary casino
facility in consideration for the Tribe's agreement to amend the definition of
"Final Completion Date" in the First Amendment and for other valuable
consideration;
WHEREAS, as further consideration for the Tribe's agreement to amend
the aforementioned defined term, Developer has agreed to waive that portion of
the Credit Enhancement Fee (as that term is defined in the Agreement) that the
Tribe is obligated to pay to Developer pursuant to Section 2.6.1 of the
Agreement during the period of time between the Commencement Date and the Final
Completion Date;
WHEREAS, the Tribe has changed the name of the temporary gaming
facility from "Dry Creek Ridge Casino" to "River Rock Casino;"
WHEREAS, the National Indian Gaming Commission ("NIGC") has expressed
concerns that the right of first refusal provision in Subsection 3.3(b) of the
Agreement may be indicia of control by Developer over the Tribe's gaming
activities; and
WHEREAS, the Parties desire to comply with all applicable NIGC
regulatory requirements and processes.
NOW THEREFORE, the Parties hereby agree to the following amendments to
the Agreement, as amended by the First Amendment:
(1) The definition of "Project" in Article I of the Agreement, and all
references to the Dry Creek Ridge Casino appearing elsewhere in the Agreement,
shall be amended to change the name of the temporary gaming facility from "Dry
Creek Ridge Casino" to "River Rock Casino."
(2) The definition of "Final Completion Date" in the Agreement as
amended by Section 2(b) of the First Amendment shall be deleted and replaced
with the following:
"Final Completion Date" means June 1, 2003.
(3) Section 2.1 of the Agreement is amended by adding the following
sentence immediately before the final sentence of Section 2.1:
"For purposes of this Agreement, Development Advances shall also be
deemed to include all such amounts incurred and paid by Developer in connection
with Sonoma Falls Developer, LLC, Sonoma Falls Manager, LLC, and Sonoma Falls
Lender, LLC v. Nevada Gold & Casinos, Inc., the Dry Creek Casino, LLC, Xxxx
Xxxxxxx, Wintun Lodge, LLC, Xxxxx Xxxxxx, Pathways Consulting, Xxxxxxx
Entertainment Group, LLC, and Does 1-10 inclusive, (San Francisco Super. Ct. No.
CGC-03-416610)."
(4) The phrase "Fifteen Million and No/00 Dollars ($15,000,000)" in
Section 2.2 of the Agreement as amended by the First Amendment shall be deleted
and replaced with the phrase "Twenty Three Million and No/00 Dollars
($23,000,000)."
(5) Subsection 2.6.1 shall be deleted and replaced with the following
Section 2.6.1:
2.6.1 In addition to all other payments paid to the Developer under the
Financing Documents, Tribe shall pay to Developer from Available
Cash Flow the Credit Enhancement Fee. Payment to Developer of the
Credit Enhancement Fee is in consideration of Developer providing
the Credit Enhancer and all other services under this Agreement,
and shall be paid to Developer during the entire Credit
Enhancement Term, unless Tribe exercises the Buy-Out Option. The
Credit Enhancement Fee is considered due and payable on the 15th
day of each month of the Credit Enhancement Term.
(6) Subsection 3.3(b) of the Agreement shall be deleted.
(7) The phrase "Subject to the preceding subparagraph," shall be
deleted and the remainder of Subsection 3.3(c) of the Agreement shall be
renumbered as Subsection 3.3(b).
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(8) The Developer waives its right under Section 4.5 of the Agreement
to seek immediate payment from the Tribe for costs incurred and paid by
Developer in connection with Sonoma Falls Developer, LLC, Sonoma Falls Manager,
LLC, and Sonoma Falls Lender, LLC v. Nevada Gold & Casinos, Inc., the Dry Creek
Casino, LLC, Xxxx Xxxxxxx, Wintun Lodge, LLC, Xxxxx Xxxxxx, Pathways Consulting,
Xxxxxxx Entertainment Group, LLC and Does 1-10 inclusive, (San Francisco Super.
Ct. No. CGC-03-416610).
(9) Miscellaneous
(a) Authority. The Tribe represents and warrants that it has taken all
action required by the Tribe's laws, its Articles of Association and the laws of
the United States and all other applicable laws to authorize the execution,
delivery and performance of this Second Amendment.
(b) Agreement and First Amendment Otherwise Not Affected. Except as
expressly amended hereto, the Agreement and the First Amendment shall remain
unchanged, and in full force and effect (including, without limitation,
Sections,5.3 and 5.4 of the Agreement, which is applicable to this Second
Amendment) and is hereby ratified and confirmed in all respects.
(c) Reference Within the Agreement. Each reference in the Agreement to
"this Agreement" and the words "hereof," "herein," "hereunder," or other words
of like import, shall mean and be a reference to the Agreement as amended by the
First and Second Amendments. For the avoidance of doubt, this shall include,
without limitation, Sections 5.3 and 5.4 of the Agreement.
(d) Complete Agreement, Amendments. This Second Amendment together with
the Agreement and the First Amendment and any attachments thereto (including the
schedules, exhibits and annexes hereto and thereto), and the documents delivered
pursuant to the Agreement and First and Second Amendments constitute the entire
agreement and understanding among the parties and supersede any prior written
agreement and understanding relating to the subject matter thereto. This Second
Amendment may not be modified, amended or otherwise altered except in accordance
with the terms of the Agreement.
(e) Reformation and Severability. In case any provision of this Second
Amendment shall be invalid, illegal, unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal, and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such revision shall be severed from this Amendment and in
either case the validity, legality, and enforceability of the remaining
provisions of this Amendment shall not be in any way affected or impaired
hereby.
(f) Counterparts. This Second Amendment may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
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(g) Additional Representations and Warranties.
(i) Both Parties represent and warrant that neither party has made
any representations to the other party concerning the matters addressed in the
Agreement, the First Amendment and this Second Amendment, except as expressly
set forth in such documents.
(ii) Both Parties represent and warrant that neither party has
relied upon any statements not expressly set forth in the Agreement and the
First and Second Amendment, in entering into this Second Amendment.
(iii) Both Parties represent and warrant that they have entered
into this Second Amendment on their own free will, without compulsion or duress,
and after consultation with their legal counsel.
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IN WITNESS WHEREOF, the Parties have executed this Second Amendment as
of this ___ day of February, 2003, effective as of the date first written above.
THE DRY CREEK RANCHERIA BAND
OF POMO INDIANS, a federally-recognized
Indian tribe
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
-----------------------------
Xxxxxxxxx Xxxxx XxXxxxx
Chairperson
DRY CREEK CASINO, LLC, a Texas limited
liability company
By: /s/ H. Xxxxxx Xxxx
--------------------------
H. Xxxxxx Xxxx
Manager
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