EXHIBIT 10.4
CONTROL AGREEMENT
(U.S. Bank National Association)
THIS CONTROL AGREEMENT (the "Agreement") dated as of November 7, 2003,
by and among U.S. Bank National Association, a national banking association, as
trustee under the Indenture (as defined below) (together with its successors and
assigns from time to time under the Indenture, the "Trustee"), U.S. Bank
National Association, a national banking association, as disbursement agent,
securities intermediary and depositary bank (together with any successor
depositary bank permitted hereunder, the "Clearing Bank"), 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 (solely with respect to its obligations under Section 15). All capitalized
terms not expressly defined herein shall have the meanings ascribed to them in
that certain Cash Collateral and Disbursement Agreement dated as of the date
hereof (the "Cash Collateral Agreement") by and among the Trustee, the
Disbursement Agent, the Authority, the Tribe and Xxxxxxx & Xxxxxx, Inc., unless
the context requires otherwise.
RECITALS
A. Concurrently herewith, the Authority is issuing $200,000,000
aggregate principal amount of its 9.75% Initial Senior Notes due 2011 (together
with all notes issued in exchange or replacement therefor, the "Senior Notes"),
pursuant to the Indenture. In addition, the Authority may issue additional
senior notes (other than the Initial Senior Notes) pursuant to the Indenture in
accordance with the provisions thereof (collectively with the Initial Senior
Notes, the "Senior Notes").
B. The Authority and the Tribe desire to design, develop and construct
three parking structures and certain related infrastructure improvements (the
"Project") upon the Tribe's reservation near Geyserville, California, to support
the existing gaming facility of the Authority (the gaming facility and the
Project collectively the "Facility"). The Tribe has delegated to the Authority
all rights and decision-making authority with respect to the development,
construction and operation of the Facility pursuant to the Authority Ordinance.
C. The net proceeds from the issuance of the Initial Senior Notes (the
"Proceeds") will be used (among other things) to repay a majority of outstanding
indebtedness of the Authority, to fund the completion of the Project, to fund
the settlement of litigation involving the Tribe, to fund the acquisition of and
development of an access road on certain real property adjacent to the Tribe's
reservation and to repay outstanding indebtedness of the Tribe.
D. Contemporaneously with the execution of the Cash Collateral
Agreement, $64,600,000 of the Proceeds will be deposited into the Construction
Disbursement Account, $5,000,000 of the Proceeds will be deposited into the
Xxxxx Property Improvements Account and $10,000,000 of the Proceeds will be
deposited into the Construction Escrow Account.
E. The parties have entered into the Cash Collateral Agreement to set
forth the conditions upon which, and the manner in which, funds will be
disbursed (a) from the Construction Disbursement Account to fund the Project,
(b) from the Xxxxx Property Improvements Account to fund the Xxxxx Project, (c)
from the Construction Escrow Account to permit the Authority to fund cost
overruns with respect to the Project to the extent that such cost overruns
cannot be satisfied from the Construction Disbursement Account, and (d) from all
of the accounts established thereby for the further purposes set forth therein.
F. Assets maintained in the Construction Escrow Account, the Xxxxx
Property Improvements Account, and the Construction Disbursement Account and are
owned beneficially by the Authority, subject to the terms and conditions of the
Cash Collateral Agreement.
G. As provided in the Cash Collateral Agreement, the Authority has
selected the Xxxxx Fargo Bank, N.A. to maintain the account of the Authority in
respect of the operation and management of the Facility (together with all
substitutes, renewals and replacements therefor or thereof and any and all
interest earned on funds therein, the "Operating Account").
H. The Trustee and the Authority have agreed that during certain
periods (the "Cash Collateral Periods") commenced by delivery of a Cash
Collateral Period Notice (hereinafter defined) and terminated by delivery of a
Cash Collateral Period Termination Notice (hereinafter defined), the Trustee
shall have the right to cause the funds in the Construction Accounts to be
transferred and/or otherwise handled as directed by the Trustee.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for ten dollars ($10.00) and other good and valuable consideration,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1.1 Construction Disbursement Account. The Construction Disbursement
Account is designated as follows:
Name: River Rock Entertainment Authority, an unincorporated
instrumentality of The Dry Creek Rancheria Band of Pomo Indians of
California
Account No.: 743811001
The Trustee shall have the option to change the name of such account in its sole
discretion by giving notice to the Authority and the Clearing Bank.
1.2 Xxxxx Property Improvements Account. The Xxxxx Property
Improvements Account is designated as follows:
Name: River Rock Entertainment Authority, an unincorporated
instrumentality of The Dry Creek Rancheria Band of Pomo Indians of
California
Account No.: 743811002
The Trustee shall have the option to change the name of such account in its sole
discretion by giving notice to the Authority and the Clearing Bank.
1.3 Construction Escrow Account. The Construction Escrow Account is
designated as follows:
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Name: River Rock Entertainment Authority, an unincorporated
instrumentality of The Dry Creek Rancheria Band of Pomo Indians of
California
Account No.: 743811003
The Trustee shall have the option to change the name of such account in its sole
discretion by giving notice to the Authority and the Clearing Bank.
2. Control of Construction Accounts. Subject to the Authority's limited
rights of withdrawal as specified in Paragraph 6, below, the Construction
Accounts are under the sole dominion, control and discretion of the Trustee. The
Construction Accounts have been assigned the federal tax identification number
of the Authority, which number is 00-0000000. The Clearing Bank shall not
commingle amounts on deposit in the Construction Accounts with any other amounts
held by the Clearing Bank on behalf of the Trustee, the Authority or any other
person or entity.
3. Deposits of Proceeds. From and after the date hereof, $64,600,000 of
the Proceeds shall be deposited in the Construction Disbursement Account,
$5,000,000 of the Proceeds shall be deposited in the Xxxxx Property Improvements
Account and $10,000,000 of the Proceeds shall be deposited in the Construction
Escrow Account.
4. Transfer of Funds. The Authority hereby irrevocably instructs and
authorizes the Clearing Bank upon and following written direction from the
Trustee (as amended from time to time by the Trustee, the "Cash Collateral
Period Notice") to disburse via the ACH System, if available, or otherwise by
wire transfer, to a bank and account as shall be designated by the Trustee, all
amounts constituting available funds on deposit in the Construction Accounts.
The then existing Cash Collateral Period Notice shall remain effective until
revoked or modified from time to time by the Trustee. The Trustee retains the
right to provide additional or different directions in the Cash Collateral
Period Notice, including but not limited to amendments thereof. If transferring
such amounts by the ACH System and if required by the Clearing Bank, each such
transfer shall be initiated by the Trustee. If the Clearing Bank provides
electronic data transfer services, the Clearing Bank shall provide the Trustee
access to the Clearing Bank's electronic data transfer system for purposes of
effecting such transfers. At any time that funds may not be transferred as
described above in this paragraph, the Clearing Bank shall transfer amounts by
wire transfer of immediately available funds.
5. Reporting Requirements. Following the Clearing Bank's receipt of the
Cash Collateral Period Notice, the Clearing Bank shall send a credit advice to
the Authority, which credit advice shall specify the amount in the Construction
Accounts on such date. The Clearing Bank shall also send a monthly report to the
Authority which monthly report shall specify the credits and changes to the
Construction Accounts for the previous calendar month and shall immediately
establish the Trustee as user of the Clearing Bank's electronic data transfer
system in accordance with the Clearing Bank's standard procedures. Upon request
of the Trustee, (a) the Clearing Bank shall send to the Trustee either (x)
copies of any daily and/or monthly credit advices and any other advices or
reports furnished by the Clearing Bank to the Authority hereunder or (y)
information on balances in the Construction Accounts, the aggregate amount of
withdrawals from the Construction Accounts and other similar information via the
electronic data transfer system on a daily basis, and (b) the Clearing Bank
shall advise the Trustee of the amount of funds in the Construction Accounts
available for withdrawal and shall deliver to the Trustee copies of all
statements and other information concerning the Construction Accounts as the
Trustee shall reasonably request from time to time.
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6. Control of Funds in Construction Accounts. The Authority hereby
notifies the Clearing Bank, and the Clearing Bank acknowledges, that, in
accordance with the Cash Collateral Agreement and the Pledge and Security
Agreement and in reliance on the UCC and the Tribal UCC, (a) all amounts held in
the Construction Accounts by the Clearing Bank from time to time have been
irrevocably pledged, transferred and assigned to the Trustee as additional
security for the Senior Notes, (b) the Trustee has a first security interest
therein and a first lien thereon, and (c) without limiting the foregoing, the
Trustee has all of the remedies of a secured party under the UCC, including
without limitation the right and power to take immediate and exclusive
possession of the Construction Accounts and to direct the disposition thereof,
without any additional consent or authorization of the Authority. Prior to the
Clearing Bank's receipt of a Cash Collateral Period Notice and again following
receipt by the Clearing Bank from the Trustee of written notice from the Trustee
that the Cash Collateral Period corresponding to the Cash Collateral Period
Notice has ended (the "Cash Collateral Period Termination Notice"), the
Authority has the right to make withdrawals from the Construction Accounts
pursuant to the Cash Collateral Agreement. Effective immediately following the
Clearing Bank's receipt from time to time of a Cash Collateral Period Notice
(until the Clearing Bank receives a Cash Collateral Period Termination Notice,
which the Trustee shall deliver in a timely manner after the conditions for such
delivery shall have been satisfied), (x) the Authority irrevocably waives all
rights of withdrawal from the Construction Accounts and (y) the Clearing Bank is
hereby irrevocably authorized and directed, without any additional consent or
authorization of the Authority, to deliver all sums in the Construction Accounts
and/or as shall thereafter be placed therein, as directed by the Trustee or
otherwise handle same, upon and in accordance with the Trustee's instructions as
provided herein and/or in subsequent instructions from the Trustee, and to
otherwise follow the Trustee's instructions delivered from time to time as to
the disposition of the Construction Accounts and such sums. The Clearing Bank
agrees to notify the Trustee immediately in the event that any other party makes
a claim to or with respect to the Construction Accounts or the amounts therein
or earnings thereon.
7. Permitted Investments.
7.1 The Clearing Bank and the Authority each covenants for the
benefit of the Trustee that funds on deposit in the Construction Accounts shall
be insured by the Federal Deposit Insurance Corporation up to $100,000 or other
maximum limit under applicable law.
7.2 Funds in the Construction Accounts shall be invested in cash,
Cash Equivalents and/or Permitted Investments. Permitted Investments are
described on Exhibit A attached hereto and made a part hereof. Except as
otherwise expressly provided herein or as the Trustee otherwise advises the
Clearing Bank in writing, all earnings on Permitted Investments shall be for the
benefit of the Authority. Any proceeds from a liquidation of a Permitted
Investment shall be deposited immediately in the Construction Accounts by the
Clearing Bank, but in no event later than one business day following such
liquidation.
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8. Fees and Costs. To compensate the Clearing Bank for performing the
services required hereunder, the Authority hereby agrees to pay all such
reasonable fees, costs and expenses as shall be charged by the Clearing Bank in
connection with the Clearing Bank's obligations hereunder. Without limiting the
foregoing, the Authority shall be liable to the Clearing Bank for the amount of
any exchange, collection, processing, transfer, wire, postage or other
out-of-pocket expenses incurred by the Clearing Bank, as determined by the
Clearing Bank from time to time. During a Cash Collateral Period, the Clearing
Bank shall debit the Construction Accounts by the amount of its fees on a
monthly basis or shall include its fees in an account analysis statement.
9. Resignation of Clearing Bank; Termination of Agreement.
9.1 The Clearing Bank may resign from its obligations under this
Agreement at any time after prior written notice of not less than sixty (60)
days to the Trustee and the Authority. The Authority shall designate a successor
to the Clearing Bank promptly after receipt of notice of resignation by the
Clearing Bank, 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
oblations of the Clearing Bank 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 Clearing Bank
acceptable to the Trustee shall not have been designated and has not assumed the
obligations of the Clearing Bank prior to the effective date of the Clearing
Bank's resignation.
9.2 The Trustee may terminate this Agreement for any reason or no
reason whatsoever, at any time upon five (5) days' prior written notice to the
other parties hereto. The Trustee shall terminate this Agreement by notice to
the Clearing Bank after repayment of the Senior Notes to the Trustee.
9.3 The Authority may not unilaterally terminate this Agreement or
close any of the accounts established hereunder. The Clearing Bank shall not
cause or permit any such accounts to be closed unless it has received the prior
written approval of the Trustee.
10. No Right of Offset. The Clearing Bank waives any right to offset
any claim against the Authority which it might have against any account
maintained hereunder; provided, however, that the Clearing Bank retains the
right to (a) charge the Construction Accounts for any of the Clearing Bank's
fees provided for herein for which the Authority is responsible as provided
above and (b) charge the Construction Accounts for all items deposited in and
credited to the Construction Accounts and subsequently returned unpaid or with
respect to which the Clearing Bank fails to receive final settlement.
11. Irrevocability of Instructions. The instructions set forth herein
are irrevocable and are not subject to modification in any manner, except that
the Trustee may, by written notice to the Clearing Bank, amend the instructions
contained herein.
12. Governing Effect; Assignment. Matters not covered by this Agreement
shall be determined in accordance with the customary procedures of the Clearing
Bank, and in the event of a conflict between the terms of this Agreement and the
customary procedures of the Clearing Bank, the terms of this Agreement shall
govern. The Clearing Bank shall have the right to assign or transfer its rights
and obligations hereunder in connection with a merger, consolidation or sale of
all or substantially all of the assets of the Clearing Bank, provided that the
transferee thereof agrees in writing to be bound by the terms of this Agreement.
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13. Governing Law. Except as otherwise provided in Section 15 of this
Agreement, this Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
14. Liability of Clearing Bank. The Clearing Bank may rely, and shall
be protected in acting, or refraining from acting, upon any notice (including,
but not limited to, electronically confirmed facsimiles of such notice) believed
by it to be genuine and to have been signed or presented by the proper party or
parties. The duties and obligations of the Clearing Bank hereunder shall be
determined solely by the express provisions of this Agreement. The Clearing Bank
shall not be liable except for the performance of its duties and obligations as
are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Clearing Bank.
15. Governing Law; Jurisdiction, Governing Law Provisions
15.1 Governing Law Provisions. THIS AGREEMENT 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. THE AUTHORITY, THE TRIBE, AND
THE INITIAL PURCHASER AGREE THAT THE TRANSACTIONS UNDER THIS AGREEMENT,
INCLUDING THE EXECUTION OF THIS AGREEMENT, THE LENDING OF MONEY AND THE
ISSUANCE OF THE SENIOR NOTES, OCCURRED OUTSIDE THE TRIBE'S RESERVATION,
IN THE STATE OF NEW YORK.
15.2 Waiver of Sovereign Immunity. Each of the Authority and the
Tribe unconditionally and irrevocably waives its sovereign immunity,
and the sovereign immunity of each subdivision, agency, department,
board, committee, commission, instrumentality or entity wholly-owned or
wholly-controlled, directly or indirectly, by the Tribe from any suit,
action, proceeding or legal process of any nature, and any and all
defenses based thereon, with respect to any claim, demand, dispute,
action or cause of action related or incidental to this Agreement, the
Senior Notes or the Collateral Documents including the offer or sale of
the Senior Notes, whether now existing or hereafter arising and whether
sounding in tort, contract, or otherwise (collectively "Permitted
Claims"). Such waiver extends (i) to permit the interpretation,
enforcement and the seeking of legal or equitable relief and remedies
(whether through an award or granting of specific performance,
injunction, mandamus, damages or otherwise) through judicial
proceedings and other legal process as hereinafter provided, and (ii)
to permit judicial actions in any of the Applicable Courts (as defined
below) to compel, enter judgment upon, enforce, modify or vacate any
award or interim injunctive relief related to such arbitration
authorized in this Section 15; provided, however, such waiver shall be
subject to the following limitations: (a) no Person may seek
enforcement or recover any damages as a result of such waiver against
any property or rights of the Authority or the Tribe, except as against
Gaming Assets and Gaming Assets distributed to the Tribe in
contravention of the Indenture; (b) no Person will be entitled to
enforce such waiver except the Trustee, holders of the Senior Notes,
Persons entitled to be indemnified under this Agreement, and the
successors and assigns of the Trustee and such holders and Persons
(each, a "Permitted Party"); (c) no Person shall be entitled to assert
a claim because of such waiver except a Permitted Claim; (d) claims
permitted by such waiver may be brought only in the Applicable Courts
or in arbitration proceedings as described below; and (e) all Permitted
Claims shall be interpreted and subject to the internal law of the
State of New York.
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15.3 Waiver of Tribal Court. Each of the Authority and the Tribe
unconditionally and irrevocably waives the jurisdiction and right of
any tribal court or forum, now or hereafter existing or created, to
hear or resolve any Permitted Claim. Each of the Authority and the
Tribe unconditionally and irrevocably waives the application of any
rule or doctrine relating to the exhaustion of tribal remedies,
abstention or comity that might otherwise require or permit a Permitted
Claim to be heard or resolved (either initially or finally) in a tribal
court or other tribal forum.
15.4 Jurisdiction. Each of the Authority and the Tribe irrevocably
consents to arbitration as described below and for the resolution and
enforcement of Permitted Claims and actions permitted by the waivers
described above, to the following courts (the "Applicable Courts"); (a)
the United States District Court for the Southern District of New York
and all courts to which any appeal therefrom may be available; (b) any
court of the State of New York and all courts to which any appeal
therefrom may be available; and (c) any court or other forum of the
Tribe (to the extent that a Permitted Party has commenced or consented
to an action in such court or forum).
15.5 Arbitration. At the election of the Trustee, any Permitted
Claims must be resolved by binding arbitration under the commercial
arbitration rules of the American Arbitration Association (the "AAA"),
as modified by this Agreement. An arbitration proceeding may be
commenced only by the Trustee, or to the extent remedies may be
enforced directly by a holder of notes, by the holder upon the filing
with the AAA of a Statement of Claim (within the meaning of the AAA
rules) and serving a copy thereof on the Authority and the Tribe. A
single arbitrator shall hear the Permitted Claim, and shall be selected
in accordance with the rules of the AAA. No person shall be eligible to
serve as an arbitrator if the person is related to, affiliated with or
has represented in a legal capacity any party to the arbitration
proceeding or any party to this Agreement. The arbitrator shall be an
attorney admitted to practice and in good standing before the highest
court of a state, who is experienced in advising clients in connection
with commercial borrowings or the issuance of debt securities. Any
party shall be permitted to engage in any discovery permitted under the
rules of the AAA. However, all discovery shall be completed within 90
days following the initial filing of the Statement of Claim. The
hearing on the arbitration must be held in the City of Los Angeles,
California, and commence and be completed no more than 30 days after
the close of discovery, and the arbitrator shall render an award in
writing within 30 days of the completion of the hearing, which shall
contain findings of facts and conclusions of law. Any arbitrator
appointed hereunder may award interim injunctive relief before the
final arbitration award. Any controversy concerning whether an issue is
arbitrable shall be determined by the arbitrator.
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15.6 Service of Process. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be
effective service of process for any suit, action or other proceeding
brought in any proper court.
15.7 Non-Impairment. Neither the Authority nor the Tribe nor any of
their 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 California, as amended from time to
time.
15.8 IGRA Savings Provisions. It is not the intent of the parties
hereto that this Agreement, whether considered alone, or together with any other
one or more documents, constitute a management contract within the meaning of
IGRA. Accordingly, to the extent any reasonable basis exists therefore, each and
every provision hereof shall be interpreted in a manner that does not cause this
Agreement to constitute a management contract, whether considered alone, or
together with any other one or more documents. In no event shall any provision
of this Agreement be applied, or deemed in effect or enforceable, to the extent
such provision allows any action or influence by the Trustee or any other person
that constitutes management of gaming in violation of IGRA. Notwithstanding any
other provision herein, if any term or condition herein should cause this
Agreement, alone, or together with any one or more other documents, to
constitute a management contract within the meaning of IGRA, such provision
shall be null and void without any further force and effect, with all other
provisions not similarly null and void remaining in full force and effect. This
Section shall survive as an agreement separate and apart from the remainder of
this Agreement in the event of any determination that any provision of this
Agreement causes the Agreement to constitute a management contract within the
meaning of IGRA.
16. 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:
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To the Clearing Bank:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Trustee:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Authority and the Tribe:
River Rock Entertainment Authority
0000 Xxxxxxx 000 Xxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chairperson
Telephone: (000) 000-0000
Fax: (000) 000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section 16 to the others.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument for the same effect as if all parties hereto signed the same
signature page. A facsimile signature shall have the same force and effect as an
original.
[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 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 (solely with respect to its
obligations under Section 15)
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
-----------------------------------
Name: Xxxxxxxxx XxXxxxx
Title: Chairperson
CLEARING BANK:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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EXHIBIT A
Permitted Investments
"Permitted Investments" means:
(1) any Investment in the Authority;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Authority in a Person, if as a
result of that Investment the Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Authority;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant in the Indenture described under
"Repurchase at the Option of Holders -- Asset Sales";
(5) payroll advances to employees of the Authority for travel,
entertainment and relocation expenses in the ordinary course of
business;
(6) any Investments in any Persons engaged in the Gaming
Business in an aggregate amount of up to $2.5 million;
(7) accounts and notes receivable if created or acquired in
the ordinary course of business and which are payable or dischargeable
in accordance with customary trade terms; and
(8) Investments related to Hedging Obligations, so long as
such Hedging Obligations are not used for speculative purposes.
Any capitalized term in this Exhibit A not otherwise defined in the Control
Agreement has the meaning ascribed thereto in the Indenture.
