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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 Merritt & Harris, 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
Dugan 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 Dugan Property Improvements
Account to fund the Dugan 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.
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F. Assets maintained in the Construction Escrow Account, the
Dugan
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 Wells 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 Dugan Property Improvements Account. The Dugan 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
68-0490898. 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 Dugan 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
i
