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EXHIBIT 4.4
INTERCREDITOR AGREEMENT
dated as of
November 7, 2003
by and among
U.S. Bank National Association, as the Senior Notes Trustee,
Dry Creek Casino, LLC
River Rock Entertainment Authority
and
The Dry Creek Rancheria Band of Pomo Indians
(solely with respect to its obligations under
Section 9)
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TABLE OF CONTENTS
Page
1.
DEFINITIONS...........................................................4
1.1 DEFINED
TERMS.........................................................4
1.2 INDEX OF
ADDITIONAL DEFINED TERMS.....................................6
1.3
INTERPRETATION........................................................6
2. THE
CREDIT
DOCUMENTS..................................................7
2.1 LENDERS'
CONFIRMATIONS................................................7
2.2 LOSS
PROCEEDS.........................................................7
3.
SUBORDINATION
PROVISIONS..............................................7
3.1
SUBORDINATION OF NOTE
CLAIMS..........................................7
3.2
SUBORDINATION OF LIEN
PRIORITY........................................9
4.
CONDITIONS............................................................9
4.1 CONDITIONS
TO SUBORDINATION..........................................10
4.2 CONDITION
TO PAYMENT OF INTEREST UNDER SUBORDINATED NOTE.............10
4.3 CONDITION
TO REPAYMENT OF SUBORDINATED NOTE..........................10
4.4 CREDIT
ENHANCEMENT
FEES..............................................11
4.5 EXCEPTION
TO SUBORDINATION...........................................11
4.6
INDEPENDENT CONSTRUCTION
CONSULTANT..................................12
5.
OWNERSHIP AND ASSIGNMENT OF SUBORDINATED
NOTE........................12
6.
LEGENDS..............................................................12
7.
OBLIGATIONS OF AUTHORITY AND TRIBE
ABSOLUTE..........................12
8.
TERMINATION OF
AGREEMENT.............................................13
9.
GOVERNING LAW; JURISDICTION, GOVERNING LAW
PROVISIONS................13
9.1 GOVERNING
LAW PROVISIONS.............................................13
9.2 WAIVER OF
SOVEREIGN IMMUNITY.........................................14
9.3 WAIVER OF
TRIBAL COURT...............................................14
9.4
JURISDICTION.........................................................14
9.5
ARBITRATION..........................................................14
9.6 SERVICE OF
PROCESS...................................................16
9.7
NON-IMPAIRMENT.......................................................16
9.8 IGRA
SAVINGS
PROVISIONS..............................................16
10.
MISCELLANEOUS........................................................16
10.1 CONDITION
WAIVER.....................................................16
10.2
INVALIDITY...........................................................16
10.3
ASSIGNMENT...........................................................16
10.4
TIME.................................................................16
10.5 CHOICE OF
LAW........................................................16
10.6 ENTIRE
AGREEMENT;
AMENDMENTS.........................................17
10.7
NOTICES..............................................................17
10.8
COUNTERPARTS.........................................................17
10.9 RIGHT TO CONSULT
COUNSEL.............................................18
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INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Agreement") is dated as of
November
7, 2003, by and among U.S. Bank National
Association, a national banking
association, as trustee under the Senior
Notes Indenture (as defined below)
(together with its successors and assigns
from time to time under the Senior
Notes Indenture, the "Senior Notes
Trustee"), Dry Creek Casino, LLC, a Texas
limited liability company ("Dry Creek"),
River Rock Entertainment Authority (the
"Authority"), an unincorporated
instrumentality of the Dry Creek Rancheria Band
of Pomo Indians (the "Tribe"), and the
Tribe (solely with respect to its
obligations under Sections 7 and 9).
RECITALS
A. Senior Notes. 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
Senior Notes 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. Subordinated Note. Dry Creek, as lender, and the Tribe, as
borrower,
have entered into that certain Development
and Loan Agreement dated as of August
26, 2001 (as amended by that certain
Amendment to the Development and Loan
Agreement dated as of April 29, 2002, that
certain Second Amendment to
Development and Loan Agreement between the
Dry Creek Rancheria Band of Pomo
Indians and Dry Creek Casino, LLC dated as
of February 19, 2003, that certain
Third Amendment to Development and Loan
Agreement between the Dry Creek
Rancheria Band of Pomo Indians and Dry
Creek Casino, LLC dated as of May 29,
2003, that certain Fourth Amendment to
Development and Loan Agreement between
The Dry Creek Rancheria Band of Pomo
Indians and Dry Creek Casino, LLC dated as
of October 9, 2003, that certain Fifth
Amendment to Development and Loan
Agreement between The Dry Creek Rancheria
Band of Pomo Indians and Dry Creek
Casino, LLC dated October 9, 2003, and that
certain Sixth Amendment to
Development and Loan Agreement between The
Dry Creek Rancheria Band of Pomo
Indians and Dry Creek Casino, LLC dated
November 7, 2003, the "Loan Agreement"),
pursuant to which Dry Creek and the Tribe
further entered into that certain
Security Agreement (as amended by that
certain Amendment No. 1 to Security
Agreement dated April 29, 2002, that
certain Second Amendment to Security
Agreement dated February 14, 2003, and that
certain Third Amendment to Security
Agreement dated May 29, 2003, the "Dry
Creek Security Agreement") with respect
to the credit enhancement fee contained in
the Loan Agreement (the "Credit
Advancement Fee") and certain Development
Advances (as defined in the Loan
Agreement) and a promissory note (the
"Subordinated Note") issued in favor of
Dry Creek in accordance therewith. The Dry
Creek Security Agreement secured the
prompt and complete payment, observance and
performance when due of all of the
obligations with respect to the Credit
Enhancement Fee, the Development
Advances, the Subordinated Note and the Dry
Creek Security Agreement.
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C. Proceeds of the Senior Notes. The Authority will use the net
proceeds from the sale of the Initial
Senior Notes for (among other things) the
design, development and construction of
three parking structures and certain
infrastructure improvements (the "Project")
to support an existing gaming
facility (the "Facility") located upon the
Tribe's rancheria near Geyserville,
California, and for the repayment of
certain preexisting indebtedness of the
Tribe, including without limitation the
Development Advances and a portion of
principal and accrued but unpaid interest
under the Subordinated Note.
D. Collateral Arrangements. The Senior Notes are secured by all of
the
Collateral (as defined below), as set forth
in the Senior Notes Indenture,
pursuant to the Collateral Documents (as
defined below). The Subordinated Note
Claims are secured by a portion of the
Collateral pursuant to the Dry Creek
Security Agreement.
E. Subordination. The Senior Notes Trustee, on behalf of the
Senior
Note Holders (as defined below), is willing
to fund the proceeds under the
Senior Notes only if Dry Creek shall enter
into this Agreement and subordinate,
to the extent and in the manner hereinafter
set forth, all claims and rights in
respect of the Subordinated Note, Credit
Enhancement Fee and the Subordinated
Note Claims (as defined below) to all
Senior Note Obligations (as defined below)
to the extent set forth in this
Agreement.
F. Purpose. The parties have entered into this Agreement in order
to
(a) provide for the subordination of the
obligations and liabilities in respect
of the Subordinated Note Claims to the
obligations and liabilities in respect of
the Senior Notes in favor of the Senior
Notes Trustee (for the benefit of the
Senior Note Holders) and (b) set forth
certain conditions upon which payments
shall be made on the Subordinated Note.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
1. Definitions.
1.1 Defined Terms. The terms defined in this Section 1 shall
have the meanings herein specified:
"Affiliate" has the meaning ascribed thereto in the Senior
Notes Indenture.
"Bankruptcy Law" has the meaning ascribed thereto in the Cash
Collateral and Disbursement Agreement.
"Business Day" has the meaning ascribed thereto in the Senior
Notes Indenture.
"Cash Collateral and Disbursement Agreement" has the meaning
ascribed thereto in the Senior Notes
Indenture.
"Cash Equivalents" has the meaning ascribed thereto in the
Senior Notes Indenture.
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"Claim" means any claim, demand, action or cause of action
arising under this Agreement or under the
Collateral Documents, as any of the
foregoing may be amended or modified from
time to time, or in any way connected
with or related or incidental to any of the
foregoing, whether now existing or
hereafter arising and whether sounding in
tort, contract or otherwise.
"Collateral" has the meaning ascribed thereto in the Senior
Notes Indenture.
"Collateral Documents" has the meaning ascribed thereto in the
Senior Notes Indenture.
"Credit Enhancement Fee" has the meaning ascribed thereto in
the Loan Agreement.
"Default" has the meaning ascribed thereto in the Senior Notes
Indenture.
"Event of Default" means the occurrence and continuance of an
Event of Default under the Senior Notes
Indenture.
"Gaming Assets" has the meaning ascribed thereto in the Senior
Notes Indenture.
"Governmental Action" means any resolution, ordinance,
statute, regulation, order or decision
regardless of how constituted having the
force of law or legal authorization of the
Tribe, the Authority or any
instrumentality or agency of the Tribe.
"Liquidity Requirement" has the meaning ascribed thereto in
the Cash Collateral and Disbursement
Agreement.
"Operating Account" has the meaning ascribed thereto in the
Cash Collateral and Disbursement
Agreement.
"Person" has the meaning ascribed thereto in the Senior Notes
Indenture.
"Proceeding" means any (a) insolvency, bankruptcy,
receivership, liquidation, reorganization,
readjustment, composition or other
similar proceeding relating to the
Authority, its property or its creditors as
such, (b) proceeding for any liquidation,
dissolution or other winding-up of the
Authority, voluntary or involuntary,
whether or not involving insolvency or
bankruptcy proceedings, (c) assignment for
the benefit of creditors of the
Authority or (d) other marshalling of the
assets of the Authority.
"Senior Note Holders" means the holders from time to time of
the Senior Notes.
"Senior Note Obligations" means any principal, interest,
premium (if any), penalties, fees,
indemnification, reimbursements, damages
(including liquidated damages, if any) and
other liabilities payable with
respect to the Senior Notes pursuant to the
Senior Notes or the Senior Notes
Indenture and any other obligations of the
Authority pursuant to the Senior
Notes Indenture or the Collateral
Documents.
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"Senior Notes Indenture" means the Indenture dated as of the
date hereof, among the Authority, the Tribe
and the Senior Notes Trustee, for
the benefit of the Senior Note Holders.
"Subordinated Note Claims" means (a) all Subordinated Note
Obligations, (b) the Credit Enhancement Fee
(as defined in the Loan Agreement)
and (c) all other indebtedness, obligations
and liabilities of the Authority to
the Subordinated Note Holder, whether now
existing or hereafter incurred or
created, under or with respect to the
Subordinated Note or the documents and
agreements relating thereto.
"Subordinated Note Event of Default" means an "Event of
Default", as such term is defined in the
Dry Creek Security Agreement, or the
failure of the Subordinated Note Holder for
30 days after notice thereof to
perform or comply with any of its
obligations under this Agreement.
"Subordinated Note Holder" means Dry Creek or each of the
holders from time to time of the
Subordinated Note.
"Subordinated Note Obligations" means any principal, fixed
interest, contingent interest, premium (if
any), penalties, fees,
indemnification, reimbursements, damages
and other liabilities payable with
respect to the Subordinated Note pursuant
to the Subordinated Note.
1.2 Index
of Additional Defined Terms. In addition, the terms
listed in the left column below shall have
the respective meanings ascribed to
such terms in the Section of this Agreement
listed opposite such terms in the
right column below:
Defined
Term
Section
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AAA
9.5
Agreement
Introduction
Applicable Courts
9.4
Authority
Introduction
Facility
C of Recitals
Initial Senior Notes
A of Recitals
Permitted Claims
9.2
Senior Note Holders
A of
Recitals
Senior Notes
A of Recitals
Senior Notes Trustee
Introduction
Subordinated Note
B of Recitals
Tribe
Introduction
1.3 Interpretation. Unless otherwise required by the context
in which any term appears, the singular
shall include the plural and the
masculine shall include the feminine and
neuter. All references to "Sections" or
"Exhibits" shall be to Sections of or
Exhibits to this Agreement, and references
to paragraphs shall be to separate
paragraphs of the section or subsection in
which the reference occurs. The titles of
the Sections herein have been inserted
as a matter of convenience of reference
only, and shall not control or affect
the meaning or construction of any of the
terms or provisions hereof.
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2. The
Credit Documents
2.1 Lenders' Confirmations. The Subordinated Note Holder has
reviewed the Senior Notes Indenture, the
Senior Notes and the Collateral
Documents and hereby approves of and
consents to the Senior Notes Indenture, the
Senior Notes and the Collateral Documents
and the related documents executed in
connection therewith. The Senior Notes
Trustee has reviewed the Loan Agreement,
the Subordinated Note and the Dry Creek
Security Agreement and hereby approves
of and consents to the Subordinated Note,
the Credit Enhancement Fee and the
related documents executed in connection
therewith.
2.2 Loss Proceeds. If and to the extent that the Senior Notes
Trustee releases or consents to the release
of insurance or condemnation
proceeds pursuant to the Senior Notes
Indenture for the purpose of restoring the
Facility and/or the Project, the
Subordinated Note Holder shall also release or
authorize the release of such proceeds for
such purpose, to the extent, if any,
that the Subordinated Note Holder's consent
to such release is necessary under
the Subordinated Note, the Loan Agreement
or the Dry Creek Security Agreement.
3.
Subordination Provisions.
3.1 Subordination of Subordinated Note Claims.
3.1.1 Subordination of Claims. The Subordinated Note
Holder agrees that any and all Subordinated
Note Claims shall be subordinate and
subject in right of payment to all Senior
Note Obligations to the extent and in
the manner provided in these subordination
provisions, and each holder of the
Subordinated Note Claims (or of any
instrument evidencing the same) by
acceptance thereof agrees to be bound by
these subordination provisions, until
all of the Senior Note Obligations have
been paid in full in immediately
available funds; provided, however, that
the Authority may make payments to, on
behalf of or for the benefit of the
Subordinated Note Holder in respect of
payments due under the Subordinated Note
Claims only under the circumstances and
in the amounts set forth in Section 4
below. If the Authority fails to pay
principal of or interest on the
Subordinated Note on the respective due date as
a result of its failure to satisfy the
conditions in Sections 4.2 and 4.3, the
failure is still an Event of Default under
the Subordinated Note (subject to the
expiration of any applicable grace period,
in accordance with the terms of the
Subordinated Note) but exercise of their
remedies by the holders of the
Subordinated Note Claims on account of such
Event of Default shall be suspended
as herein provided. If the Authority fails
to pay an installment of the Credit
Enhancement Fee on its respective due date
as a result of a failure to satisfy
the conditions set forth in Section 4.4,
such failure is still an Event of
Default under the Loan Agreement (subject
to the expiration of any applicable
grace period, in accordance with the terms
of the Loan Agreement) but exercise
of their remedies by the holders of the
Subordinated Note Claims on account of
such Event of Default shall be suspended as
herein provided.
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3.1.2 Distribution of Assets. If all or any part of
the assets of the Authority, or the
proceeds thereof, are subject to any
distribution, division or application to
the creditors of the Authority, whether
partial or complete, voluntary or
involuntary, and whether by reason of
liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit
of creditors or any other action or
proceeding, or if the business of the
Authority is dissolved or if (except as
expressly permitted by the Senior Notes
Indenture) all or substantially all of the
assets of the Authority are sold,
then, and in any such event, any payment or
distribution of any kind or
character, whether in cash, securities or
other investment property, or
otherwise, which shall be payable or
deliverable upon or with respect to any
repayment obligations of the Authority or
the Tribe to the Subordinated Note
Holder (including but not limited to
obligations evidenced by the Subordinated
Note) shall be paid or delivered directly
to the Senior Notes Trustee for
application to the Senior Notes, due or to
become due, until all of the Senior
Note Obligations shall have been paid in
full in immediately available funds
except as otherwise provided in Section 4
below, and thereafter any such amounts
shall be paid for application to the
Subordinated Note Claims, due or to become
due, if any, until all of the Subordinated
Note Claims have been paid in full in
immediately available funds. Following the
payment in full of the Senior Note
Obligations, the following shall apply:
(a) any amounts paid to the Senior Notes
Trustee pursuant to the foregoing paragraph
in excess of the amounts required to
pay the Senior Note Obligations in full
shall be transferred to the holders of
the Subordinated Note Claims for
application to the Subordinated Note Claims due
or to become due, if any; and
(b) any amounts in excess of the amounts
required to pay the Subordinated Note
Claims in full, if any,
