EXHIBIT 10.9
Final Execution Copy
AMENDMENT TO THE DEVELOPMENT AND LOAN AGREEMENT
This Amendment to the Development and Loan Agreement (the original
agreement referred to herein as the "Agreement") dated as of April 29, 2002 (the
amendment referred to herein as the "Amendment"), is made 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 (the
"Developer").
RECITALS
A. Tribe and Developer entered into the Agreement pursuant to which
Developer agreed to assist Tribe in the development and financing of a temporary
casino ("Facility") capable of being opened as soon as possible ("Commencement
Date"), on the terms and conditions set forth in the Agreement, as amended
herein.
B. Subsequent to execution of the Agreement, Tribe and Developer
determined that the original Project plan should be revised to reflect certain
changed circumstances.
C. This Amendment modifies the Agreement to reflect the current needs
of Tribe related to development of the Project.
NOW THEREFORE, in consideration of the representations, warranties and
mutual promises contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows
1. Definitions; Terms defined in the Agreement. All capitalized terms
used in this Amendment and not otherwise defined herein shall have the meanings
assigned to them in the Agreement.
2. Amendments to the Agreement. The Agreement shall be amended as
follows:
(a) Exhibit "A" of the Agreement is deleted and replaced with Exhibit
"A-1" to this Amendment, and the definition of "Cost Budget" is deleted and
replaced with the following:
"Cost Budget" means the budget attached hereto as Exhibit "A-1" setting
forth the approximate costs the parties anticipate will be incurred in order
to prepare the Project for the Commencement Date and for Project completion,
and including certain costs incurred by the Tribe in connection with
conducting gaming on the Reservation prior to the execution of this
Agreement. The Cost Budget is to be funded from the Development Advances,
Loan proceeds, purchase money and/or third party financing as contemplated
in the Cost Budget and, to the extent required, cash flow from the Facility.
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(b) The definition of "Final Completion Date" is deleted and replaced
with the following:
"Final Completion Date" means the date on which the Facility is opened
to the public, which date shall be 210 days after execution of this
Agreement (unless the contractor can complete construction sooner within the
approved budget), subject to the terms set forth in Section 2.13 hereof.
(c) The definition of "Lender" is deleted and replaced with the
following:
"Lender" means one or more parties which may be third-party federally
or state regulated banks or savings and loan institutions subject to
exemption from the licensing requirements of the Compact, or any other
individual or entity that is found suitable for licensing by the TGC, that
alone or together, through Developer's efforts and pursuant to the
Commitment, agree to provide the Loan to Tribe for the Project. Developer
may act as Lender.
(d) Exhibit "C" of the Agreement is deleted and replaced with Exhibit
"C-la" to this Amendment.
(e) Exhibit "E" of the Agreement is deleted and replaced with Exhibit
"E-1" to this Amendment. The definition of "Commitment" is deleted and replaced
with the following:
"Commitment" means the Loan placement commitment letter attached as
Exhibit E-1 from Developer, which Developer has obtained on behalf of Tribe
in the amount of $15 million; provided that the Lender (as set forth in
Exhibit E-1) may be Developer or Nevada Gold & Casinos, Inc.
(f) The definition of "Net Revenues" is deleted and replaced with the
following:
"Net Revenues" means the Gross Revenues less Operating Expenses,
provided that in the case of Gross Revenues derived from gaming, such
revenues shall be net of prizes and payouts (including jackpots) so as to
represent the "win" as referred to by accountants familiar with the gaming
industry.
(g) The following definition is added to the Agreement:
"Xxxxxxxxx-Xxxx Matter" means the dispute alleged in the matter
stylized Xxxxxxxx X. Xxxxxxxxx et al. v. United States Of America, U.S.D.C.
(ND Cal), No. 01-2390 SBA, the legal cost of participating in which by the
Tribe, as an intervenor or otherwise, shall be advanced by Developer as
Qualified Costs as incurred, subject to receipt of a written budget and
Developer's prior written approval of same, and
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the meaningful participation of Developer in an advisory role in all legal
strategy and settlement discussions. All reasonable costs of defending this
Third Party Dispute and any liability, damages, demands, losses, costs or
expenses incurred by Developer or Tribe shall not be an Operating Expense
and shall be paid by the Tribe from its share of Net Revenues when
incurred.
(h) The definition of "Third-Party Disputes" is deleted and replaced
with the following:
"Third-Party Disputes" means all disputes or claims relating, directly
or indirectly, to any Gaming on the Reservation, the Sonoma Canyon
Documents, the Sonoma Falls Documents, the Xxxxxxxxx-Xxxx Matter, failure of
tribal members to relocate from the Site, any claimed agreements between the
Tribe and any third party, Gross Revenues, the Facility or any Collateral,
and brought by a person or entity not a party to this Agreement, against the
Tribe, Developer, Lender, or the Credit Enhancer, with respect to a claim
which, if successful, would materially affect Developer's economic rights
under this Agreement.
(i) Sections 2.2 and 2.2.1 are deleted and replaced with the
following Section 2.2:
2.2 Loan Commitment. Developer shall use its best efforts to arrange
for the Tribe to receive Loan proceeds, per the terms and conditions of the
Financing Documents, which shall be executed as soon as practicable, in the
amount of Fifteen Million and No/00 Dollars ($15,000,000), a portion of
which shall be used to pay Developer all amounts advanced as Development
Advances (in total, the "Loan") to be disbursed for the payment of Qualified
Costs to facilitate the immediate commencement of development and
construction activities with respect to the Project. Developer (or one or
more of its LLC Members) may act as lender or guarantor (in either case
referred to as the "Credit Enhancer") of the Loan, in case of a guaranty to
the extent a guaranty is required by the Lender. Lender may substitute a
third party to act as Credit Enhancer provided such party meets all the
Legal Requirements for lending funds to the Project, agrees to the terms and
conditions agreed to by Developer under this Agreement, and does not require
any delay in the commitments made by Developer herein. Tribe and Developer
hereby consent to the terms and conditions of the Commitment. Tribe agrees
to execute the Financing Documents as borrower, provided they conform in
material part to the Commitment and this Agreement and subject to Tribe's
reasonable approval. Developer agrees to execute the Financing Documents as
lender or guarantor, provided they conform in material part to the
Commitment and this Agreement and subject to Credit Enhancer's reasonable
approval.
(j) Section 2.3 is deleted and replaced with the following Section 2.3:
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2.3 Tribe shall execute all Financing Documents reasonably required,
upon commercially reasonable terms and consistent with this Agreement, to
enable Developer to timely meet the Loan funding obligations herein. In the
event that the Tribe has not timely executed the Financing Documents in
accordance with this Agreement by May 1, 2002, or Developer has not caused
the Loan described in Section 2.2 above to fund by such date, either through
the Commitment or otherwise, this Agreement shall thereupon be null and
void, and neither party shall have any further or continuing obligation to
the other, except that (a) Tribe's obligation to repay the Development
Advances in accordance with the provisions of Section 2.1.1, (b) all
provisions herein related to security granted by Tribe to secure repayment
of said Development Advances, and (c) all remedies granted to Developer
hereunder to enforce Tribe's obligations under Section 2.1.1 (including
without limitation Sections 4.5, 5.2, 5.3, and 5.4) shall remain in full
force and effect. Further, in the event that the Loan is available for
funding in accordance with the terms of the Commitment by May 1, 2002, then
any failure of the Tribe to accept such funding, whether as a result of its
failure to execute any of the Financing Documents reasonably required, upon
commercially reasonable terms, and consistent with this Agreement and the
Commitment, or to reasonably satisfy any material condition precedent to
funding set forth in this Agreement or any of the Financing Documents which
is within the control of the Tribe, shall be deemed to be and shall
constitute an exercise by the Tribe of the Buy-Out Option provided for in
Section 6.9 of this Agreement.
(k) Section 2.3.1 (4) is added to the Agreement as follows:
(4) a certificate from the Secretary of the Board of Directors,
duly elected by the Tribal Council that the Tribe has approved
the Agreement, this Amendment, and the Financing Documents, at
a duly authorized meeting conducted in accordance with all
Tribe governing instruments.
(1) Section 2.11(b) is deleted and replaced with the following Section
2.11(b):
(b) current principal, interest (to the extent, if any, not paid
as part of the month's Operating Expenses, which interest will
include interest payments on the amounts received pursuant to
the Financing Documents, and which will paid prior to any
payments under this Section 2.11), and any other payments due
pursuant to the Financing Documents, the Note, and principal
payments on any capital leases.
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(m) Section 2.12 is added to the Agreement as follows:
2.12 Tribe and Developer acknowledge that Developer and/or Lender may
be required to subordinate any security interests it may have in the
Collateral to a third-party, in connection with the Tribe's purchase or
lease of Furnishings and Equipment or in connection with the Tribe's efforts
to obtain alternate financing for the Project in the event the Lender ceases
funding as provided herein and in the Financing Documents. Each of Tribe and
Developer agrees to execute all documentation required to effect such
subordination.
(n) Section 2.13 is added to the Agreement as follows:
2.13 The Final Completion Date, as defined herein, will be tolled for
any period(s) during which construction of the Facility or Project is
prevented through equitable court orders entered in any existing Third Party
Dispute. In addition to the foregoing, the Final Completion Date may be
tolled by mutual agreement of the parties working in a close and cooperative
manner, which agreement shall not be unreasonably withheld, based on a
commercially reasonable conclusion that ingress and egress to the Facility
or the Project will be insufficient to serve the public in a manner that
renders the Project economically feasible. Notwithstanding anything in this
Agreement to the contrary, in the event any tolling period herein exceeds
two (2) years or in the event the parties cannot reach mutual agreement as
discussed above, neither party shall have any further or continuing
obligation to the other except as follows: (a) Tribe's obligations to repay
any outstanding Loan Proceeds as provided hereunder on a pari passu basis
with any other party(ies) that provide financing to the Tribe to complete,
in whole or in part, the Facility or the Project, (b) Tribe's obligations to
repay any outstanding Development Advances in accordance with the provisions
of Section 2.1.1 hereof, the repayment of which shall be made on a pari
passu basis with any other party(ies) that provide financing to the Tribe to
complete, in whole or in part, the Facility or the Project (c) the Tribe's
right to obtain additional financing to complete the Facility or the
Project, (d) the Developer's right to cease funding the Facility or the
Project, and (e) Developer's and Tribe's agreement that Developer's Credit
Enhancement Fee will be reduced to the product resulting from multiplying
the Credit Enhancement Fee by a fraction, the numerator of which will equal
to the total amount of the outstanding Financing plus the amount of any
guaranties made by Developer related to the Project (reduced to the extent
of any release of such guaranties that the Tribe obtains following
Developer's election to cease funding), and the denominator of which will
equal the total cost of the Project per the attached Cost Budget, and that
such Credit Enhancement Fee will be paid on a pari passu basis with any
other party(ies) that provide financing to the Tribe to complete, in
whole or in part, the Facility or the Project. The foregoing (a) - (e) of
the above sentence represents the exclusive rights and remedies of the
parties in the event any tolling period herein exceeds two (2) years or in
the event the parties cannot reach mutual agreement.
(o) Section 4.2(c) is deleted and replaced with the following Section
2.11(b):
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(c) Tribe has duly authorized the execution and delivery of this
Agreement on the terms described herein. No further act or approval of
Tribe, other than the TGC (as required under the Compact), is required as a
condition for entering into or fully performing under this Agreement. This
Agreement, as amended, has been ratified and approved by the Tribe, in
accordance with all applicable laws, rules, or regulations of the Tribe.
(p) Section 4.6 is added to the Agreement as follows:
4.6 It is anticipated that Developer (or one or more of its LLC
Members) will be required to provide guaranties to various vendors and/or
financial institutions related to development of the Project (including,
without limitation, with relation to the Furnishings and Equipment). Tribe
agrees to pay to the guarantor, as described in the preceding sentence, upon
demand, any and all amounts that shall hereafter be paid by such guarantor
to any vendor or financial institution under any guaranties, together with
interest on such amounts at the rate of 12% per annum from the date so paid
by guarantor until such amounts are reimbursed to guarantor hereunder. To
secure its obligations under this section, Tribe agrees that its
obligations under this section are considered "Obligations" secured as set
forth in the Security Agreement dated August 26, 2001, as amended.
(q) Section 4.7 is added to the Agreement as follows:
4.7 Within five (5) business days of execution of this Amendment, Tribe
agrees to submit this Amendment, the Financing Documents, and all exhibits
to such documents (collectively, the "Transaction Documents") to the NIGC
for review and request a letter of declination confirming that the
Transaction Documents will not be deemed to constitute management contracts
as described in 25 U.S.C. ss. 2711. If the NIGC has any comments to such
submission, or any prior submission, both parties agree to work in good
faith to resolve any such comments, on an expedited basis, and to retain, as
nearly as possible, the business terms of this Agreement. In no event shall
Lender's obligations to fund the Loan pursuant to the terms hereof and the
Financing Documents be delayed by the provisions of this Section 4.7. Tribe
represents that it has submitted its request for a letter of declination to
the NIGC in January 2002 and resubmitted same in February 2002 but has not
heard back either orally or in writing from the NIGC other than with respect
to the resubmission.
(r) Section 6.9(b) of the Agreement is deleted and replaced in its
entirety with the following:
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b. In the event the Buy-Out Option is exercised prior to the
Commencement Date, and the Tribe engages in gaming within six years
after the Buy-Out Option is exercised, the Buy-Out Fee shall be
determined and paid from the date such gaming commences, based on the
Credit Enhancement Fee that would have been payable if the Buy-Out
Option had not been exercised, subject to the adjustments provided
below in this subparagraph b and in subparagraph c, and continuing to
the end of the second full year of operation and the recomputation of
the Base Fee in accordance with subparagraph c, provided that in the
event the aggregate amount of the Financing actually funded plus all
guaranties of Developer in respect of the Project are less than the
aggregate of $15,000,000 plus all guaranties of Developer as
contemplated in the approved Cost Budget, attached hereto at Exhibit
A-1, due to (i) a refusal of Lender to fund the Loan solely as a result
of any failure or breach of Developer, or any other reason not under
Tribe's control, that is not cured by Developer within 30 days after
written notice to Developer, or (ii) the development and construction
of the Project being permanently enjoined as a result of a court order
arising from a Third-Party Dispute that is final and non-appealable
(the "Cessation Order"), and all amounts outstanding with respect to
the Financing, including amounts owed to the Lender with respect to the
Loan and the outstanding balance owing by Tribe to Developer under this
Agreement, including outstanding Development Advances and accrued
interest, have been paid in full no later than twelve (12) months
following the entry of the Cessation Order, then in any such event the
Credit Enhancement Fee percentage (20%) shall be reduced proportionally
based on the same ratio set forth in subsection (e) of Section 2.13.
Nothing in this Section shall be construed as granting Developer any
additional rights in the event this Agreement is terminated pursuant to
Section 2.3 hereof.
(s) Section 6.9.f. is added to the Agreement as follows:
f. It is anticipated that Developer (or one or more of its LLC Members)
will be required to provide guaranties to various vendors and/or
financial institutions related to development of the Project
(including, without limitation, with relation to the Furnishings and
Equipment). Tribe agrees that prior to execution of the Buy-Out Option,
it will use its best efforts to negotiate and obtain an unconditional
and absolute release of all guaranties made by Developer (or one or
more of its LLC Members).
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3. Miscellaneous
(a) Authority. Tribe has taken all action required by 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
Amendment. Tribe and Tribe's Board of Directors represent and warrant that
Tribe's resolution, dated August 26, 2001 (Resolution No. 00-00-000-000)
provides the specific authority to enter into this Amendment and the Financing
Documents.
(b) Agreement Otherwise Not Effective. Except as expressly amended
hereto, the Agreement shall remain unchanged and in full force and effect
(including, without limitation, Section 5.4 of the Agreement, which is
applicable to this 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 words of
like import, shall mean and be a reference to the Agreement as amended by this
Amendment. For the avoidance of doubt, this shall include, without limitation,
Section 5.3 of the Agreement.
(d) Complete Agreement; Amendments. This Amendment together with the
Agreement and any attachments hereto (including the schedules, exhibits and
annexes hereto and thereto), and the documents delivered pursuant to the
Agreement or Amendment constitute the entire agreement and understanding among
the parties and supersede any prior written agreement and understanding relating
to the subject matter thereto. This 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
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 Amendment and in
either case the validity, legality, and enforceability of the remaining
provisions of this Amendment shall not be in any way affected or impaired
hereby.
(f) Counterparts. This Amendment may be executed simultaneously in
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
(g) Release of Claims. Tribe has heretofore asserted that Developer
has or may have breached its obligations to Tribe under the Agreement,
including, without limitation, the failure of Developer or its affiliates to
fulfill its obligations under the Commitment. Developer has disputed these
assertions and maintained that the Tribe did not furnish complete and accurate
disclosures concerning access to the Project. Notwithstanding these various
assertions between the parties, Tribe and Developer have determined to resolve
their contentions and assertions by this Amendment, and to describe and limit
the rights and remedies of the parties regarding such
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execution of this Amendment, Tribe has not breached its obligations under the
Agreement (and Developer presently knows of no facts that would or could give
rise to any claim against Tribe), nor has Tribe committed an event of default
pursuant to Section 5.1 of the Agreement (and Developer presently knows of no
facts that would represent such an event of default). Tribe acknowledges and
agrees that as of the date of execution of this Amendment, Developer (including
its affiliates) has not breached its obligations under the Agreement (and Tribe
presently knows of no facts that would or could give rise to any claim against
Developer or its affiliates), nor has Developer (including its affiliates)
committed an event of default pursuant to Section 5.1 of the Agreement (and
Tribe presently knows of no facts that would represent such an event of
default). To the extent that any such claims presently exist between the
parties, Tribe and Developer hereby waive and release one another from all such
claims and causes of action of any type whatsoever, including, without
limitation, those arising out of or relating to the various assertions and
contentions between the parties discussed in this paragraph, whether known or
unknown. The term "affiliates" means the limited liability company members of
Developer.
(h) 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 and this 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
this Amendment, in entering into this Amendment.
(iii) Both parties represent and warrant that they have entered
into this Amendment on their own free will, without compulsion or
duress, and after consultation with their legal counsel.
(i) Exhibit F-1 of the Agreement is deleted and replaced in its
entirety with Exhibit F-la to this Amendment, attached hereto.
(Remainder of this page intentionally left blank)
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Final Execution Copy
IN WITNESS WHEREOF, Developer and Tribe have executed this Agreement as
of this 30th day of April, 2002, effective as of the date first written above
upon approval of the Tribe's Tribal Council, and ratification of such approval
by the Tribe.
DRY CREEK CASINO, LLC DRY CREEK RANCHERIA BAND
OF POMO INDIANS
By: /s/ H. Xxxxxx Xxxx By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
------------------------------- -------------------------------
Title: Manager Title: Chairperson
---------------------------- ----------------------------
[Signature page to Amendment]
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Final Execution Copy Exhibit Index
Cost Budget............................................................. A-1
Expense Budget...........................................................C-1
Commitment Letter........................................................E-1
Disclosures.............................................................F-la
11
EXHIBIT A-1
Cost Budget
River Rock Temporary Casino
Preliminary Conceptual Budget of Development costs & Protection of Costs
through 5/31/2002
Based on Tribal Budget Revision #1a
4/30/2002 Revision 1
Phase 1 Costs Only
------------------
Xxxxx 0x Xxxxx 0x Xxxxx 0x Xxxxx 1a+1b
Incurred Pending Pending Pending
LLC Deferred PDS Total Changes Total Total Total
1.0 Site Construction 1,417,597 200,000 1,130,005 5,447,601 1,500,000 6,941,601 1,000,000 7,947,601
2.0 Permanent Casino
Construction - - - - - - - -
3.0 Site Architecture
& Engineering 770,000 145,000 - 915,000,00 185,000 1,100,000 89,000 1,169,000
4.0 Casino Architecture
& Engineering,
Temp Casino 632,500 76,500 - 711,000 40,000 751,000 - 751,000
5.0 Additional
Development Costs 2,792,988 505,791 - 3,298,777 1,422,423 4,721,200 - 4,721,200
6.0 Temporary Casino
Construction 1,059,267 45,000 2,418,271 6,522,558 1,678,640 8,401,398 931,000 9,332,398
7.0 FF&E, Special
Equipment &
Services 76,500 - 20,746,724 20,823,224 (1,059,274) 18,863,950 1,148,000 20,011,950
8.0 Pro-Opening
Expense 1,100,000 300,000 - 2,400,000 - 2,400,000 - 2,400,000
9.0 Working Capital &
Opening Deficit 400,000 - - 400,000 - 400,000 - 400,000
10.0 Project Contingency 750,000 - - 750,000 - 750,000 - 750,000
-------------------------------------------------------------------------------------------------
Total for
Temporary
Casino 11,999 869 1,274.291 24,905 000 41,268,160 3,066,969 44,335,150 3,146,000 47,483,150
-------------------------------------------------------------------------------------------------
Total
Budget 11,000,000 41,268,160 44,335,150
-------------------------------------------------------------------------------------------------
Phase
1+0.
F. P. Costs 16,273,160
1.0 On & Off Site
Construction
(12 Acres) 1,417,597 200,000 1,830,005 5,447,601 1,500,000 6,947,601 1,000,000 7,947,601
10.7 Marquee & On-Site Signage
Subtotal 1.01-1.09 - -
1.10 Traffic Signaling - -
& Controls - -
Subtotal
1.10 -1.12 - -
Subtotal
1.13-1.15 1,417,597 200,000 1,830,005 5,447,601 1,500,000 6,947,601 1,000,000 7,947,601
-------------------------------------------------------------------------------------------------
Total Site
Development 1,417,597 200,000 1,830,005 5,447,601 1,500,000 6,947,601 1,000,000 7,947,601
(1.01-1.16)
3.0 Architecte, Enginnrs
& Design Services
for Site &
Related Construction
3.01 Land Planning
& Expenses 50,000 - 50,000 50,000 50,000
3.02 Site Engineering
& Expenses 530,000 35,000 565,000 185,000 750,000 39,000 789,000
3.03 Environmental
Revisions 80,000 80,000 80,000 80,000
3.04 SWPP Revision 5,000 5,000 5,000 5,000
3.05 Geotechnical
Consultant 10,000 10,000 5,000 15,000 15,000
3.06 Hydrology &
Well Analysis 15,000 15,000 15,000 15,000
3.07 Municipality
Approvals &
Fees (Deferred) - 100,000 100,000 100,000 100,000
3.08 Landscape
Architecture
& Expenses 60,000 10,000 70,000 (30,000) 40,000 30,000 70,000
3.09 Site Related
Structural &
Engineering 10,000 10,000 25,000 35,000 35,000
3.10 Sight Lighting,
Electrical
Engineering 10,000 - - 10,000 - 10,000 - 10,000
-------------------------------------------------------------------------------------------------
Subtotal
3.01-3.05 770,000 145,000 - 915,000 185,000 1,100,000 69,000 1,160,000
4.0 Architecture,
Engineers &
Casino Design
4.01 Architecture
Engineering &
Expenses,
(MEPS in 477,500 52,500 530,000 530,000 - 530,000
4.02 MEPS Consultant 40,000 11,000 61,000 10,000 61,000 61,000
4.03 Plan Check &
Inspections
Consultant to
Tribe 85,000 15,000 80,000 30,000 110,000 110,000
4.04 Food Service
Design 10,000 10,000 10,000 10,000
4.05 Corporate Identity
& Graphic Design
& Expenses 40,000 40,000 40,000 40,000
4.06 Interior Architecture
& Theme Design
& Expenses - - - - - - - -
-------------------------------------------------------------------------------------------------
Subtotal
4.01-4.04 632,501 78,500 - 711,000 40,000 751,000 - 751,000
5.0 Additional
Development
Costs
5.01 Legal
Contingency 150,007 200,000 350,000 233,000 583,000 583,000
5.02 Accounting - - 200,000 200,000 200.000
5.03 Insurance 25,000 25,000 18,000 43,000 43,000
5.04 Finance
Placement Fees 410,000 170,440 580,440 580,440 580,440
5.05 Construction
Interest
POS Lease
Payments 489,760 489,760 489,760 489,760
5.06 Tribal
Relocation and
G & A Fund 1,693,228 135,351 1,828,577 871,423 2,700,000 2,700,000 2
5.07 Market
Feasibility
Study(s) 25,000 25,000 25,000 25,000
5.08 Environmental
Assessment - - - -
5.09 Traffic Study - - - -
5.10 Generator Deposit - - 100,000 100,000 100,000
5.11 Consulting &
Technical Services
Fee - - - - - - - -
-------------------------------------------------------------------------------------------------
Subtotal
5.01-5.11 7,792,916 505,791 - 3,298,777 1,422,423 4,721,200 - 4,721,200 3
6.0 Temporary
Casino
Construction
6.00 Construction
Management Fee
& Expenses 282,505 45,000 327,595 121,405 449,000 31,000 480,000
6.01 Temp Construction
(See Attached
Detail) 3,776,682 - 2,418,271 6,141,963 1,757,438 7,952,399 900,000 8,852,399
6.02 Architecture &
Engineering,
(See 4.01) - - - - - - - -
-------------------------------------------------------------------------------------------------
Subtotal
6.01-6.10 4,059,207 45,000 2,418,271 6,522,558 1,878,640 8,401,391 931,000 9,332,391
7.0 FF&E, Special
Equipment &
Sarvices
7.01 Testing
Allowance 40,000 40,000 40,000 40,000
7.02 Casino FF&E,
Office Furniture
& Cubicles
(partial Lease) 6,500 645,924 652,424 379,576 1,032,000 213,000 1,245,000
7.03 Computers Lease-Pur Included - 120,000 120,000 120,000
7.04 Slot Repair
Equip Lease-Pur Included - 10,000 10,000 10,000
Min to
5/31/02 Casino
w Cons- Opens
truction Jun Jul Aug Sep Oct Nov Dec
1.0 Silo Construction 716,547 1,677,919 1,888,952 719,911 700,000 600,000 600,000 744,265
2.0 Permanent Casino
Construction - - - - - - - -
3.0 Site Architecture
& Engineering 903,650 45,000 42,500 33,640 22,500 25,060 27,500 -
4.0 Casino Architecture
& Engineering,
Temp Casino 495,407 50,000 125,000 12,500 12,500 20,000 20,000 15,593
5.0 Additional
Development Costs 3,029,163 547,573 274,014 410,619 275,887 164,438 108,000 -
6.0 Temporary Casino
Construction 527,707 575,847 764,319 1,119,261 1,316,364 1,497,948 1,3509,664 1,249,209
7.0 FF&E, Special
Equipment &
Services 505,000 20,000 5,000 1,050,000 400,000 11,115,000 3,753,950 2,015,000
8.0 Pro-Opening
Expense 610,271 200,000 225,000 225,000 265,564 326,584 527,869 -
9.0 Working Capital &
Opening Deficit - - - - - 150,000 250,900 -
10.0 Project Contl - - - - - 300,000 450,000 -
------------------------------------------------------------------------------------------------
Total for
Temporary
Casino 6,787,955 1,116,339 2,624,845 3,571,138 3,012,855 14,185,860 7,087,983 4,024,067
------------------------------------------------------------------------------------------------
Total
Budget
------------------------------------------------------------------------------------------------
Phase 1+0.
F. P. Costs 6,787,955 8,036,721 9,490,052 10,829,231 12,345,615 13,943,615 15,000,000
1.0 On 6 Off Silo
Construction
(12 Acres) 716,547 1,677,919 1,188,952 719,918 700,000 600,000 600,000 600,000
10.7 Subtotal 1.01-1.09
1.10 Traffic Signaling
& Controls
Subtotal
1.10 -1.12
Subtotal
1.13-1.15 716,547 1,677,919 1,188,952 719,918 700,000 600,000 600,000 600,000
------------------------------------------------------------------------------------------------
Total Site
Development 716,547 1,677,919 1,188,952 719,918 700,000 600,000 600,000 600,000
(1.01-1.16)
3.0 Architecte, Enginnrs
& Design Services
for Site &
Related Construction
3.01 Land Planning
& Expenses 28,660 15,000 5.000 1.140
3.02 Site Engineering
& Expenses 700,000 25,000 15,000 10,000
3.03 Environmental
Revisions 80,000
3.04 SWPP Revision 5,000
3.05 Georechnical
Consultant 15,000
3.06 Hydrology &
Well Analysis 15,000
3.07 Municipality
Approvals &
Fees (Deferred) - 20,000 20,000 20,000 20,000 20,000
3.08 Landscape
Architecture
& Expenses 15,000 5,000 2,500 2,500 2,500 5,000 7,600
3.09 Site Related
Structural &
Engineering 35,000
3.10 Sight Lighting,
Electrical
Engineering 10,000 - - - - - - -
------------------------------------------------------------------------------------------------
Subtotal
3.01-3.05 903,660 45,000 42,500 33,640 22,500 25,000 27,500 -
4.0 Architecture,
Engineers &
Casino Design
4.01 Architecture
Engineering &
Expenses,
(MEPS in 434,407 90,000 5,593
4.02 MEPS Consultant 36,000 5,000 5,000 2,500 2,500 5,000 5,000
4.03 Plan Check &
Inspections
Consultant to
Tribe 25,000 15,000 10,000 10,000 10,000 15,000 15,000 10,000
4.04 Food Service
Design 10,000
4.05 Corporate Identity
& Graphic Design
& Expenses 20,000 20,000
4.06 Interior Architecture
& Theme Design
& Expenses - _ - - - - -
------------------------------------------------------------------------------------------------
Subtotal
4.01-4.04 495,407 50,000 125,000 12,500 12,500 20,000 20,000 15,583
5.0 Additional
Development
Costs
5.01 Legal
Contingency 450,000 25,000 25,000 25,000 25,000 25,000 8,000
5.02 Accounting - - 100,000 100.000
5.03 Insurance 43,000
5.04 Finance
Placement Fees 350,000 230,440
5.05 Construction
Interest
POS Lease
Payments 32,000 80,387 94,901 108,292 123,458 139,435.63
5.06 Tribal
Relocation and
G & A Fund 2,129,183 111,766 154,113 177,527 127,431
5.07 Market
Feasibility
Study(s) 25,000
5.08 Environmental
Assessment
5.09 Traffic Study
5.10 Generator Deposit 100,000
5.11 Consulting &
Technical Services
Fee - _ - - - - -
------------------------------------------------------------------------------------------------
Subtotal
5.01-5.11 3,029,163 547,573 274,014 410,619 275,887 164,436 108,000 -
6.0 Temporary
Casino
Construction
6.00 Construction
Management Fee
& Expenses 148,336 35,000 40,000 40,000 40,000 50,000 50,664 45,000
6.01 Temp Construction
(See Attached
Detail) 379,371 540,847 724,379 1,079,261 1,276,364 1,447,948 1,300,000 1,204,209
6.02 Architecture &
Engineering,
(See 4.01) - - - - - - - -
------------------------------------------------------------------------------------------------
Subtotal
6.01-6.10 527,707 575,647 764,379 1,119,261 1,316,384 1,497,948 1,350,664 1,249,209
7.0 FF&E, Special
Equipment &
Sarvices
7.01 Testing
Allowance 25,000 10,000 5,000
7.02 Casino FF&E,
Office Furniture
& Cubicles
(partial Lease) - - - 100,000 200,000 300,000 232,000 200,000
7.03 Computers - - - - - 40,000 40,000 40,000
7.04 Slot Repair
Equip - - - - - 10,000 - -
Total
1.0 Silo Construction 6,947,601 0
2.0 Permanent Casino
Construction - -
3.0 Site Architecture
& Engineering 1,100,000 -
4.0 Casino Architecture
& Engineering,
Temp Casino 751,000 -
5.0 Additional
Development Costs 4,809,892 (88,692)
6.0 Temporary Casino
Construction 8,401,399 (1)
7.0 FF&E, Special
Equipment &
Services 18,863,950 (1)
8.0 Pro-Opening
Expense 2,400,000 -
9.0 Working Capital &
Opening Deficit 400,000 -
10.0 Project Contl 750,000 -
-----------------------
Total for
Temporary
Casino 44,423,842 -
-----------------------
Total
Budget
-----------------------
Phase 1+0.
F. P. Costs
1.0 On 6 Off Silo
Construction
(12 Acres) 744,265 6,947,601
10.7 Subtotal 1.01-1.09
1.10 Traffic Signaling
& Controls
Subtotal
1.10 -1.12
Subtotal
1.13-1.15 744,285 6,347,601
-----------------------
Total Site
Development 744,285 6,347,601
(1.01-1.16)
3.0 Architecte, Enginnrs
& Design Services
for Site &
Related Construction
3.01 Land Planning
& Expenses 50,000
3.02 Site Engineering
& Expenses 750,000
3.03 Environmental
Revisions 80,000
3.04 SWPP Revision 5,000
3.05 Georechnical
Consultant 15,000
3.06 Hydrology &
Well Analysis 15,000
3.07 Municipality
Approvals &
Fees (Deferred) 100,000 -
3.08 Landscape
Architecture
& Expenses 7,500 -
3.09 Site Related
Structural &
Engineering 35,000 -
3.10 Sight Lighting,
Electrical
Engineering 10,000 -
-----------------------
Subtotal
3.01-3.05 1,100,000 -
4.0 Architecture,
Engineers &
Casino Design
4.01 Architecture
Engineering &
Expenses,
(MEPS in 530,000 -
4.02 MEPS Consultant 61,00 -
4.03 Plan Check &
Inspections
Consultant to
Tribe 110,000 -
4.04 Food Service
Design 10,000 -
4.05 Corporate Identity
& Graphic Design
& Expenses 40,000 -
4.06 Interior Architecture
& Theme Design
& Expenses - -
-----------------------
Subtotal
4.01-4.04 751,000 -
5.0 Additional
Development
Costs
5.01 Legal
Contingency 583000 -
5.02 Accounting 200,000 -
5.03 Insurance 43,000 -
5.04 Finance
Placement Fees 580,440 -
5.05 Construction
Interest
POS Lease
Payments 578,452 (88,691)
5.06 Tribal
Relocation and
G & A Fund 2,100,000 -
5.07 Market
Feasibility
Study(s) 25,000 -
5.08 Environmental
Assessment - -
5.09 Traffic Study - -
5.10 Generator Deposit 100,000 -
5.11 Consulting &
Technical Services
Fee - -
-----------------------
Subtotal
5.01-5.11 4,809,892
6.0 Temporary
Casino
Construction
6.00 Construction
Management Fee
& Expenses 449,000 (0)
6.01 Temp Construction
(See Attached
Detail) 7,952,399 (0)
6.02 Architecture &
Engineering,
(See 4.01) - -
-----------------------
Subtotal
6.01-6.10 8 ,401,399
7.0 FF&E, Special
Equipment &
Sarvices
7.01 Testing
Allowance 40,000 -
7.02 Casino FF&E,
Office Furniture
& Cubicles
(partial Lease) 1,032,000 -
7.03 Computers 120.000 -
7.04 Slot Repair
Equip 10,000 -
7.05 Office Equip Lease-Pur Included - 40,000 40,000 40,000
7.00 Cabling & Non-
Leasehold Slot
Machine Items 30,000 30,000 30,000 30,000
7.06 Gaming Devices,
Equipment &
Furniture Lease-Pur. 18,167,000 18,167,000 (4,467,000) 13,700,000 13,700,000
Slot Bases Lease-Pur. 80,000 80,000 80,000
Lease-Pur.
Locks & Parts Lease-Pur. 10,000 10,000 10,000
7.06 Soft & Hard
Count Equip Lease-Pur. included - 75,000 75,000 75,000
7.07 Cage Equip - 205,000 205,000 205,000
7.08 Lockers - 20,000 20,000 20,000
7.09 Kitchen Equip.
Small Wares, China, Lease-Pur. 1,309,800 1,308,800 (1,308,800) - 935,000 935,000
Glass Silver
7.10 Restaurant FF&E 275,000 275,000 (275,000) - -
7.11 First Aid Equip 1,950 1,950 1,950
7.12 SOS Lease-Pur. - 2,400,000 2,400,000 2,400,000
7.13 Surveillance
System/POS/Access Lease-Pur. Included - 954000 950,000 950,000
System/Telephone
interior Signs Lease-Pur. - 150,000 150,000 150,000
7.14 Themed Finishes,
Lighting & Theatrical Lease-Pur. - 350,000 350,000 (350,000) - - -
------------ --------- -------- ---------- ---------- ---------- ---------- ---------
Subtotal 7.01-7.14 76,500 - 20,746,724 20,823,224 (1,959,274) 18,563,950 1,143,000 20,011,950
8.0 Pre-Opening 2,100,000 300,000 - 2,400,000 2,400,000 2,400,000 610,271 200,000
9.0 Working Capital &
Opening Deficit 400,000 - 400,000 400,000 400,000
9.0 Project Contingency 750,000 - 750,000 750,000 150,000
7.05 Office Equip 10,000 20,000
7.00 Cabling & Non-
Leasehold Slot
Machine Items 20,000 10,000
7.06 Gaming Devices,
Equipment &
Furniture 460,000.00 10,000,000 2,240,000
Slot Bases 40,000 40,000
Locks & Parts 10,000
7.06 Soft & Hard
Count Equip 35,000
7.07 Cage Equip 105,000 50,000
7.08 Lockers 20,000
7.09 Kitchen Equip.
Small Wares, China, -
Glass Silver
7.10 Restaurant FF&E -
7.11 First Aid Equip 1,950
7.12 SOS 800,000 400,000 800,000
7.13 Surveillance
System/POS/Access 150,000 200,000 200,000 200,000
System/Telephone
interior Signs 75,000
7.14 Themed Finishes,
Lighting & Theatrical - - - - - - - -
---------- -------- -------- --------- -------- ---------- --------- ---------
Subtotal 7.01-7.14 505,000 20,000 5,000 1,050,000 400,000 11,115,000 3,753,950 2,015,000
8.0 Pre-Opening 225,000 225,000 285,584 326,278 527,869 2,400,000
9.0 Working Capital &
Opening Deficit 150,000 250,000 400,000
9.0 Project Contingency 300,000 450,000 750,000
7.05 Office Equip 10,000 40,000
7.00 Cabling & Non-
Leashold Slot
Machine Items 30,000
7.06 Gaming Devices,
Equipment &
Furniture 1,000,000 13,700,000
Slot Bases 80,000
Locks & Parts 10,000
7.06 Soft & Hard
Count Equip 40,000 75,000
7.07 Cage Equip 50,000 205,000
7.08 Lockers 20,000
7.09 Kitchen Equip.
Small Wares, China,
Glass Silver
7.10 Restaurant FF&E
7.11 First Aid Equip 1,950
7.12 SOS 400,000 2,400,000
7.13 Surveillance
System/POS/Access 200,000 950,000
System/Telephone
interior Signs 75,000 150,000
7.14 Themed Finishes,
Lighting & Theatrical - -
---------- ---------
Subtotal 7.01-7.14 16,663,950
8.0 Pre-Opening
9.0 Working Capital &
Opening Deficit
9.0 Project Contingency
Notes Phase 1 costs include design for the whole Project. Phase 1 does not
include construction for the Kitchen, Bar, Buffet, Restaurant, Wine Room
or Boulevard Lighting. Underground construction only in the Kitchen,
Bar, Buffet, Restaurant and Wine Room is included in Phase 1.
1 The above Budget is conceptual and very preliminary based on limited
documentation and verbal explanations from others.
2 All contracts for services will be contracted directly with N Dry Creek
Rancheria.
3 SWPP mitigation requirements at lower site are assumed XXX.
4 Items indicated as Lease may be leased or secured through alternate
financing.
5 This Conceptual Budget is for Phase 1 only, and includes:
Temp Structure is 40,000 SF +/- with 800 coinless Gaming Machines &
16 Table Games.
A second tent, (the Slot Tent) is used to warehouse a second 300 gaming
machine and public restrooms for the main tent.
Restaurant is in Phase 1b and has 125 seats & Bar has 75.
200 +/- paved Parking Space at upper Site and 3000 +/- enpaved Parking
Spaces at Lower and Peripheral areas.
No Bingo, Poker, Sports Book or Gift Shop.
3,000 SF of executive office are on the Sprung Structure, balance is
in adjacent modular buildings.
Some admin functions may be off-site.
There will be an 8,000 SF +/- separate Warehouse/Receiving Sprung
Structure to be located on site in Phase 1b.
Some off-site roadwork on BIA 93 is included in Phase 1b, but no work on
SR 128 is included.
There is a total of $583,000 for legal costs allowed in this Budget.
6 There are no costs In the 8udget for the following Items, which are
assumed to be due after opening:
Proschold/Cadd issues
MOA, Emergency Services and related costs
County Utility Costs
Advent lawsuit and related issues beyond Legal Contingency.
7 There are no costs in the Budget for the following items, which may be
in a future Phase or not done at all.
Parking Garage
Off-site work on SR 128
Construction at areas which receive run-off to the stream during the
rainy season.
8 This Conceptual Budget Total is the same as the one approved by the
Tribe and forwarded to the LLC 1/12/2002 by X. Xxxxxx.
9 It is the intent of the Dry Creek Casino LLC to guarantee the Sprung
Structures and PDS Leases that are part of the Phase la Budget.
EXHIBIT C-1
Expense Budget
Start-up Budget 8/13/02
Tribal Administration/Relocated Members/Gaming Commission
Exhibit "C" Revision 1a
Relocated Members Budget Aug/Sept Oct Nov Dec Jan Feb March
----------------- ------ ---------- ---------- ---------- ---------- ---------- ---------- ----------
Nine Family's 392,500 122,500 22,500 22,500 22,500 22,500 22,500 22,500
Xxxxx Dollar 27,500 - 7,500 2,500 2,500
Xxxxx Dollar 15,000 - - - -
AnnaLopez 193,500 6,000 10,000 157,500 2,500 2,500
Xxxx Xxxxx 101,006 - 81,006 2,500 2,500
Xxxxx Xxxxx 25,000 - - 2,500 2,500
Xxxxxx Xxxx 20,000 - - 1,000 -
Xxxxxx Xxxxxx 19,750 - - 4,750 -
Xxxxx Xxxxxxxx 20,000 - - - -
Four Prefabricated Homes 484,800
Monthly Totals $ 128,500 $ 22,500 $ 22,500 $ 32,500 $ 268,506 $ 38,250 $ 32,500
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total $1,299,056
==========
Tribal Administration
Staff (wages) 146,900 11,300 11,300 11,300 11,300 11,300 11,300 11,300
Accounts Payable 49,820 16,606 16,606 16,608 -
Payback Funds (BIA
Program) 111,000 27,750 27,750 27,750 27,750 - - -
Past Due Professional
Services 10,000 10,000 -
Consultant 550,000 200,000 200,000
CILS 40,000 10,000 - 20,000 10,000
Past Due Living Expense 11,915 11,915
Property Taxes 15,000 15,000
Phone/Communications 6,500 500 500 500 500 500 500 500
Travel Expense 6,000 1,000 1,000 1,000 1,000 1,000
Replacement Funds (Tribal) 28,956 4,826 4,826 4,826 4,826 4,826 4,826 -
Meeting Expense 9,100 700 700 700 700 700 700 700
Audit Costs 4,552 - 4,552
Monthly Totals $293,597 $61,682 $102,236 $56,076 $ 18,326 $ 18,326 $213,500
----------- ----------- ----------- ----------- ----------- ----------- -----------
Total $ 989,743
=========
Relocated Members April May June July Aug Sept Tot Budget
----------------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Nine Family's 22,500 22,500 22,500 22,500 22,500 22,500
Xxxxx Dollar 2,500 2,500 2,500 2,500 2,500 2,500
Xxxxx Dollar 2,500 2,500 2,500 2,500 2,500 2,500
AnnaLopez 2,500 2,500 2,500 2,500 2,500 2,500
Xxxx Xxxxx 2,500 2,500 2,500 2,500 2,500 2,500
Xxxxx Xxxxx 7,500 2,500 2,500 2,500 2,500 2,500
Xxxxxx Xxxx 6,500 2,500 2,500 2,500 2,500 2,500
Xxxxxx Xxxxxx 2,500 2,500 2,500 2,500 2,500 2,500
Xxxxx Xxxxxxxx 7,500 2,500 2,500 2,500 2,500 2,500
Four Prefabricated Homes 484,800
Monthly Totals $ 541,300 $ 42,500 $ 42,500 $ 42,500 $ 42,500 $ 42,500
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total $1,299,056
==========
Tribal Administration
Staff (wages) 11,300 11,300 11,300 11,300 11,300 11,300
Accounts Payable
Payback Funds (BIA
Program) -
Past Due Professional
Services
Consultant 25,000 25,000 25,000 25,000 25,000 25,000
CILS
Past Due Living Expense
Property Taxes
Phone/Communications 500 500 500 500 500 500
Travel Expense 1,000
Replacement Funds (Tribal) -
Meeting Expense 700 700 700 700 700 700
Audit Costs
Monthly Totals $ 38,500 $ 37,500 $ 37,500 $ 37,500 $37,500 $ 37,500
----------- ----------- ----------- ----------- ----------- ----------- ----------
Total $ 989,743
==========
Start-up Budget 8/13/02
Tribal Administration/Relocated Members/Gaming Commission
Exhibit "C" Revision 1a
Budget Aug/Sept Oct Nov Dec Jan Feb March April
------- -------- ------- -------- -------- -------- -------- --------- ---------
Tribal Gaming Commission
Commissioners (3) 124,937 - 1,965 2,352 3,627 4,111 4,548 10,834 16,250
Secretary(1) 20,412 - - - 2,916 2,916
Investigators (5) 32,076 - -
Compliance Agent (3) 17,500 - -
Auditor(1) 12,498 - -
Administrator (1) 7,500 -
Equipment/Supplies 86,619 319 2,623 377 50,000 500
Consultant 7,000 1,000 1,000
Training/Travel 37,169 704 568 148 1,740 3,000 3,000
Background Investigations 99,995 - 2,000 1,000 500 3,500 1,000
Utilities 8,100 4,500 600
Misc. 10,500 - - - 1,500 1,500
Monthly Totals - 1,965 3,056 6,514 7,882 7,165 77,250 26,766
-------- ------- -------- -------- -------- -------- --------- ---------
Total $ 464,297
==========
Monthly Grand Totals $422,097 $86,147 $127,792 $ 95,090 $294,714 $ 63,741 $ 323,250 $ 606,566
======== ======= ======== ======== ======== ======== ========= =========
Total Budget $2,753,096
==========
Current Funds Available
Dry Creek Casino LLC $ 420,000 $ - $101,000 $ 90,000 $780,000 $ 90,000 $ 90,000 $ 90,000 $ 90,000
Tribe's Contribution $ 200,151
Additional LLC Contributions
Req. $ 68,246
Current Expenditures
Relocated Members $ 128,500 $ 22,500 $ 22,500 $ 32,500 $268,506 $ 38,250 $ 32,500 $ 541,300
Tribal Administration $ 293,597 $ 61,682 $102,236 $ 56,076 $ 18,326 $ 18,326 $ 213,500 $ 38,500
Gaming Commission 1,965 3,056 6,514 7,882 7,165 77,250 26,766
Required C/F from Available
Funds $ (2,097) $ 12,756 $(25,036) $659,874 $455,160 $481,419 $ 248,169 $ -
May June July Aug Sept
--------- -------- -------- -------- --------
Tribal Gaming Commission
Commissioners (3) 16,250 16,250 16,250 16,250 16,250
Secretary(1) 2,916 2,916 2,916 2,916 2,916
Investigators (5) - 2,916 14,580 14,580
Compliance Agent (3) - 2,500 7,500 7,500
Auditor(1) - 4,166 4,166 4,166
Administrator (1) - 3,750 3,750
Equipment/Supplies 500 500 10,600 10,600 10,600
Consultant 1,000 1,000 1,000 1,000 1,000
Training/Travel 3,000 4,000 4,000 7,000 10,000
Background Investigations 4,000 5,000 27,665 27,665 27,665
Utilities 600 600 600 600 600
Misc. 1,500 1,500 1,500 1,500 1,500
Monthly Totals 29,766 31,766 74,113 97,527 100,527
--------- -------- -------- -------- --------
Total $ 464,297
==========
Monthly Grand Totals $ 109,766 $111,766 $154,113 $177,527 $180,527
========= ======== ======== ======== ========
Total Budget Total $2,753,096
==========
Current Funds Available
Dry Creek Casino LLC $ 90,000 $ 90,000 $ 90,000 $ 90,000 $ 90,000
Tribe's Contribution
Additional LLC Contributions
Req. $ 19,766 $ 21,766 $ 64,113 $ 87,527 $ 90,527 $ 351,945
Current Expenditures
Relocated Members $ 42,500 $ 42,500 $ 42,500 $ 42,500 $ 42,500
Tribal Administration $ 37,500 $ 37,500 $ 37,500 $ 37,500 $ 37,500
Gaming Commission 29,766 31,766 74,113 97,527 100,527
Required C/F from Available
Funds $ - $ - $ - $ - $ -
EXHIBIT E-1
Commitment Letter
[NEVADA GOLD & CASINOS, INC. LETTERHEAD]
December 13, 2001
Ms. Liz Xxxxx XxXxxxx, Chairperson
Dry Creek Rancheria Band of Pomo Indians
0000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000
Re: Financing for the Dry Creek Rancheria Band of Pomo Indians
Temporary Casino Project
Dear Madame Chair,
The purpose of this letter is outline the terms to fund the
development and construction of a temporary casino ("Casino"} on the Dry Creek
Rancheria Hand of Pomo Indians reservation. The terms and conditions of the
financing are described as follows:
SUMMARY
Lender: Nevada Gold and Casinos, Inc. on behalf of the Dry
Creek Casino, LLC.
Borrower: The Dry Creek Band of Pomo Indians (the "Borrower").
Amount: $15,000,000 (the "Financing").
Advancer: The Financing will be available to be advanced in
increments of not less than Five Hundred Thousand and
no/100 Dollars ($500,000) upon written request by the
Borrower to the Lender.
Interest Rate: The Financing shall bear an interest rate of 12% per
annum.
Placement Fee: 3.5% of the principal amount of the financing.
Term: Five years.
Payment Terms: Payment of interest only for the first year, payable
monthly, beginning one month following the initial
advance. Thereafter, the
principal amount advanced and accrued interest thereon
shall be payable monthly over a four-year period.
Collateral: The collateral for the Financing will be a security
interest in the revenues of the casino. Additional
collateral will be a security interest in the
furniture, fixtures, equipment and slot machines
utilized in the Casino provided, however, that the
Borrower may incur purchase money loans secured by such
gaming equipment, furniture, fixtures and equipment,
lender shall subordinate its interest to such purchase
money lenders.
Documentation: The Financing will be made pursuant to transaction
documents reasonably satisfactory to the Borrower and
the Lender, which will be drafted by counsel to the
lender, at cost of the Borrower. The documentation
shall include the terms set forth herein and any
additional terms agreed to by Borrower and Lender.
Please confirm your agreement to the foregoing by signing below.
Very truly yours,
/s/ H. Xxxxxx Xxxx
H. Xxxxxx Xxxx
AGREED AND ACCEPTED:
/s/ Liz Xxxxx XxXxxxx
----------------------------------
Ms. Liz Xxxxx XxXxxxx, Chairperson
EXHIBIT F-la
Disclosure
EXHIBIT F-la
DISCLOSURES
1. That certain claim made by the Alexander Valley Association against the Tribe
pursuant to letters dated September 12, 2000, and April 15, 2002, and alleging
certain violations by the Tribe of the federal Endangered Species Act and
correspondence from the National Marine Fisheries Service regarding potential
takings by the Tribe under that Act with respect to the creek bed on the lower
part of the Dry Creek Rancheria, review of which has been acknowledged by
Lender;
2. That certain claim styled Xxxxxxxx X. Xxxxxxxxx et al. v. United States of
America, U.S.D.C. (ND Cal), No. 01-2390 SBA, pursuant to which the claimants
seek declaratory and injunctive relief relating to property held by claimants
and burdened by an access easement to such property, that such access easement
does not permit the use of such access for utilization of the property for
casino use, which claim has been acknowledged by Lender;
3. A dispute by certain voting members of the Tribe who claim they have
successfully recalled the present members of the Tribe's Board of Directors and
replaced them with an "interim board." The Bureau of Indian Affairs continues to
recognize the current board. An appeal of that recognition is pending;
4. A claim by Advent Communications & Entertainment Company and its partners,
affiliates and co-venturers (including each party identified under "Third Party
Disputes" in the Loan Agreement) that the negotiation and execution of the Loan
Agreement is an express breach of the Sonoma Canyon Documents and/or the Sonoma
Falls Documents (as such terms are defined in the Loan Agreement) and documents
related thereto, including an "Exclusive Negotiating Agreement" dated August 7,
1999, all of which claims have been acknowledged by Lender;
5. That certain litigation entitled Artichoke Joe's, et al. x. Xxxxxx, et al.
(No. CV-S-01-248 DFL/GGH. E.D. Calif.) filed on February 7, 2001 challenging the
constitutionality of California Constitution Article IV, Section 19 (f), the
effect of which, if successful, cannot be determined but could limit the Tribe's
ability to offer certain gaming in the Tribe's gaming facility (the "Prop 1 A
Litigation"); and
6. The opinion of the Attorney General of California dated February 23, 2001
that California "Compacts entered into by the State and 62 federally recognized
Tribes contemplate that the Gambling Control Commission ("GCC") will issue the
licenses for gaming devices pursuant to the Compact's provisions;" that the
Tribe purchased gaming device licenses that were issued on or about May 15, 2000
through a process established by the Compact tribes utilizing the Xxxxxxx Xxxxx
Accountancy Corporation and not by the GCC, although the State commended the
tribes on the process at the time; that gaming devices operated pursuant to
those licenses were not placed in commercial operation within 12 months of
issuance as required under the Compact; that further gaming device license
issuance and other compliance procedures may
be necessary to effectuate the Tribe's right to operate more than 350 gaming
devices; and that further licenses may not be available if and when needed.
Members of the GCC have indicated informally that it is possible that new
licenses to replace those issued through the Sides process will be issued by the
GCC and that the one-year deadline will not begin to run until then, but there
has been no formal announcement to that effect.
7. A contention by various parties that, because the Rancheria property
is held in fee by the United States of America in a Deed dated June 1, 1915 that
does not expressly state that it is held "in trust" for the Tribe, the Rancheria
is in fact not held in trust, and does not constitute a reservation or other
"Indian land" that is eligible for gaming activities under the Indian Gaming
Regulatory Act.
