Exhibit 10.11
THIRD AMENDMENT TO DEVELOPMENT AND LOAN AGREEMENT
BETWEEN
THE DRY CREEK RANCHERIA BAND OF POMO INDIANS
AND
DRY CREEK CASINO, LLC
This Third Amendment to the Development and Loan Agreement ("Third
Amendment") is made and entered into this 29th day of May, 2003, by and between
the Dry Creek Rancheria Band of Pomo Indians, a federally recognized Indian
tribe (the "Tribe"), and Dry Creek Casino, LLC, a Texas limited liability
company ("Developer," and together with the Tribe, the "Parties"). Each
capitalized term used in this Third Amendment and not otherwise defined herein
shall have the meaning ascribed to it in the Development and Loan Agreement
between the Parties dated August 26, 2001 (the "Agreement"), as amended by the
Amendment to Development and Loan Agreement dated April 29, 2002 (the "First
Amendment"), and as further amended by the Second Amendment to Development and
Loan Agreement dated February 19, 2003 (the "Second Amendment"). The First
Amendment and Second Amendment are referred to as the "First and Second
Amendment."
WHEREAS, the Parties executed the Agreement on August 26, 2001;
WHEREAS, subsequent to the execution of the Agreement, the Parties
twice determined that the Agreement should be revised to reflect changed
circumstances and executed the First Amendment and the Second Amendment; and
WHEREAS, the Tribe and Developer have agreed to modify the terms of the
Agreement in order to modify the repayment terms of the Development Advances to
be paid to Developer by Tribe.
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, the Parties hereby agree to the following amendments to
the Agreement, as amended by the First and Second Amendments:
(1) Section 2.11(d) of the Agreement shall be deleted and replaced with
the following:
"(d) recoupment payments to Developer for Development Advances
not covered by the Loan, and any other funds advanced to the Project or
the Tribe or expenses incurred by Developer pursuant to Section 2.1 or
referenced in Sections 4.4(b) and 4.5 of this Agreement; provided that
only the following amounts shall be paid between June 2003 and December
2003 (unless the Tribe determines to pay additional monies): (i) June
15, 2003 -- $970,000; (ii) July 15, 2003 -- $965,000; (iii) August 15,
2003 -- $960,000; (iv) September 15, 2003 -- $955,000; (v) October 15,
2003 -- $575,000; (vi) November 15, 2003 -- $4,073,345; and (vii)
December 15, 2003 -- $901,655. In the event sufficient funds are not
available to transfer the foregoing amounts to Deve1oper on the stated
date, the amounts unable to be paid on such date shall be paid on the
15th day of the following month(s), in addition to such funds due in
the following month(s) (the effect of which is that any unpaid amounts
that are carried over to a subsequent month shall continue to
cumulatively carry over until all such amounts are paid in full.)"
(2) Miscellaneous.
(a) Authority. The Tribe represents and warrants that it has taken all
action required by the Tribe's laws, its Articles of Association and the laws of
the United States and all other applicable laws to authorize the execution,
delivery and performance of this Third Amendment.
(b) Agreement, First Amendment, and Second Amendment Otherwise Not
Affected. Except as expressly amended hereto, the Agreement and the First and
Second Amendments shall remain unchanged and in full force and effect
(including, without limitation, Sections 5.3 and 5.4 of the Agreement, which is
applicable to this Third Amendment) and is hereby ratified and confirmed in all
respects.
(c) Reference Within the Agreement. Each reference in the Agreement to
"this Agreement" and the words "hereof," "herein," "hereunder," or other words
of like import, shall mean and be a reference to the Agreement as amended by the
First, Second, and Third Amendments. For the avoidance of doubt, this shall
include, without limitation, Sections 5.3 and 5.4 of the Agreement.
(d) Complete Agreement: Amendments. This Third Amendment together with
the Agreement and the First and Second Amendments and any attachments thereto
(including the schedules, exhibits and annexes hereto and thereto), and the
documents delivered pursuant to the Agreement and First, Second, and Third
Amendments constitute the entire agreement and understanding among the parties
and supersede any prior written agreement and understanding relating to the
subject matter thereto. This Third Amendment may not be modified, amended or
otherwise altered except in accordance with the terms of the Agreement.
(e) Reformation and Severability. In case any provision of this Third
Amendment shall be invalid, illegal, unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal, and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such revision shall be severed from this Third Amendment and in
either case the validity, legality, and enforceability of the remaining
provisions of this Third Amendment shall not be in any way affected or impaired
hereby.
(f) Counterparts. This Third Amendment may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute but one and the same instrument.
(g) Additional Representations and Warranties.
(i) Both Parties represent and warrant that neither party has made
any representations to the other party concerning the matters addressed in the
Agreement, the First Amendment, the Second Amendment, and the Third Amendment,
except as expressly set forth in such documents.
(ii) Both Parties represent and warrant that neither party has
relied upon any statements not expressly set forth in the Agreement and the
First, Second, and Third Amendments, in entering into this Third Amendment.
(iii) Both Parties represent and warrant that they have entered
into this Third Amendment on their own free will, without compulsion or duress,
and after consultation with their legal counsel.
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IN WITNESS WHEREOF, the Parties have executed this Third Amendment as
of this 29th day of May. 2003, effective as of the date first written above.
THE DRY CREEK RANCHERIA BAND
OF POMO INDIANS, a federally-recognized
Indian tribe
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
---------------------------
Xxxxxxxxx Xxxxx XxXxxxx
Chairperson
DRY CREEK CASINO, LLC, a Texas limited
liability company
By: H. Xxxxxx Xxxx
--------------------
H. Xxxxxx Xxxx
Manager
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