EXHIBIT 10.5
CONTROL AGREEMENT
(Xxxxx Fargo Bank, N.A.)
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"), Xxxxx Fargo Bank,
N.A., 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
otherwise requires.
RECITALS
A. Concurrently herewith, the Authority is issuing $200,000,000
aggregate principal amount of its 9.75% Senior Notes due 2011 (together with all
notes issued in exchange or replacement therefor, the "Initial 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 the
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 the 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 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. As provided in the Cash Collateral Agreement, the Authority has
selected the Clearing Bank 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").
G. This Agreement sets forth the terms and conditions pursuant to which
the Clearing Bank will implement certain automatic clearing and processing
functions and otherwise handle the revenues generated in connection with the
Facility and pledged by the Authority in favor of the Trustee (the "Pledged
Revenues"; provided, however, that for purposes of this Agreement, Pledged
Revenues shall exclude Cage Cash). The Pledged Revenues will be deposited as
they are received by the Authority into the Operating Account.
H. Assets maintained in the Operating Account are owned beneficially by
the Authority, subject only to the terms and conditions of the Cash Collateral
Agreement.
I. 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 Pledged Revenues 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. Operating Account. The Operating 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.: 4945092500.
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 Operating Account. Subject to the Authority's limited
rights of withdrawal as specified in Paragraph 6, below, the Operating Account
is under the sole dominion, control and discretion of the Trustee. The Operating
Account has 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 Operating Account 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 Pledged Revenues.
From and after the date hereof, all Pledged Revenues (net of cage cash)
in the Operating Account.
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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 on the each business day 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 Operating Account. 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 provide Trustee, at
Trustee's expense, automated access to standard reports of prior day credits and
debits for the Operating Account, and shall establish the Trustee as a user of
the Clearing Bank's electronic data transfer system in accordance with the
Clearing Bank's standard procedures upon execution of Clearing Bank's required
documents which such access shall be terminated upon receipt of the Cash
Collateral Period Termination Notice.
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6. Control of Pledged Revenues. 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 Operating Account 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 Operating Account 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
Operating Account. 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 Operating Account 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 Operating Account 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
Operating Account and such sums.
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 Operating Account 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 Operating Account may be invested in cash or Cash
Equivalents at the sole discretion of the Authority. Except as otherwise
expressly provided herein or the Trustee otherwise advises the Clearing Bank in
writing, all earnings on cash or Cash Equivalents shall be for the benefit of
the Authority.
7.3 The Authority may further use funds from the Operating Account
for Permitted Investments as described on Exhibit A attached hereto and made a
part hereof. Any proceeds from a liquidation of a Permitted Investment shall be
deposited by the Authority immediately in the Operating Account at the Clearing
Bank, but in no event later than three business days following such liquidation.
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 Operating Account by the amount of its fees on a monthly
basis or shall include its fees in an account analysis statement.
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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 Operating Account for any of the Clearing Bank's fees
provided for herein for which the Authority is responsible as provided above and
(b) charge the Operating Account for all items deposited in and credited to the
Operating Account 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, however, no such modification shall expand or change the
responsibilities of the Clearing Bank without the prior written consent of the
Clearing Bank.
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.
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. 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.
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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.
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).
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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.
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.
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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:
To the Clearing Bank:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attn: Xxxxxxx 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
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:
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
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.
