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EXHIBIT 10.5
CONTROL AGREEMENT
(Wells 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"), Wells 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 Merritt
& Harris, 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
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 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. 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 68-0490898. 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
shal
