CASH COLLATERAL AND DISBURSEMENT AGREEMENT
among
IBJ WHITEHALL BANK & TRUST COMPANY,
as the Disbursement Agent,
IBJ WHITEHALL BANK & TRUST COMPANY,
as the Trustee,
CRSS CONSTRUCTORS, INC.,
as the Independent Construction Consultant,
and
RIVIERA BLACK HAWK, INC.,
as the Company and Issuer
Dated as of June 3, 1999
TABLE OF CONTENTS
Page
1. Definitions....................................................................................................2
1.1 Defined Terms........................................................................................2
1.2 Additional Defined Terms.............................................................................9
1.3 Rules of Interpretation.............................................................................10
2. Establishment of Accounts.....................................................................................10
2.1 Appointment of Disbursement Agent...................................................................10
2.2 Establishment of Accounts...........................................................................10
2.3 Pledge Agreement....................................................................................11
2.4 Investment of Funds in Accounts.....................................................................11
2.5 Agency..............................................................................................11
2.6 Waiver of Setoff Rights.............................................................................12
3. Disbursements from Accounts...................................................................................12
3.1 Conditions to Disbursement..........................................................................12
3.2 Method of Disbursement..............................................................................12
3.3 Disbursement of Compensation........................................................................12
3.4 Transfer of Funds to the Trustee....................................................................13
4. Agreements of the Company, the Independent Construction Consultant, the Disbursement Agent and the Trustee....13
4.1 Disbursement Requests and Disbursements.............................................................13
4.2 Periodic Review of Riviera Black Hawk...............................................................14
4.3 Insufficient Available Funds........................................................................15
5. Interest Reserve..............................................................................................15
5.1 Interest Disbursements..............................................................................15
5.2 Interest Reserve Account Amounts....................................................................16
6. Completion Reserve............................................................................................16
6.1 Conditions Precedent to Completion Reserve Disbursements............................................16
6.2 Disbursement to the Interest Reserve Account........................................................16
7. Construction Disbursement Account.............................................................................16
7.1 Conditions to Initial Disbursements.................................................................16
7.2 Conditions to Subsequent Disbursements..............................................................16
7.3 Advance Disbursements...............................................................................17
7.4 Disbursements After Event of Default................................................................17
7.5 Final Disbursement of Funds Following Operating Date................................................18
8. Amendments to Construction Disbursement Budget; Entering into Amendments to Contracts; Amendments to Project Cost
Schedule and Cost Overruns..............................................................................20
8.1 Construction Disbursement Budget Amendment Process..................................................20
8.2 Contract Amendment Process..........................................................................20
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8.3 Contracts Entered into after the Issuance Date......................................................21
8.4 Project Cost Schedule and Cost Overruns.............................................................21
9. Events of Default.............................................................................................22
9.1 Indenture...........................................................................................22
9.2 Failure to Approve Disbursement Request.............................................................22
9.3 Exception to Prior Disbursement.....................................................................22
9.4 Insufficent Funds...................................................................................22
9.5 Performance of Certain Obligations..................................................................22
9.6 Failure to Deliver Collaterral Documents............................................................22
9.7 Abandonment of Project..............................................................................22
9.8 Termination or Invalidity of Construction Documents.................................................23
9.9 Schedule of Operations..............................................................................23
10. Disbursed Funds Account......................................................................................23
10.1 Rights of the Company to Disbursed Funds Account...................................................23
10.2 Right to Substitute Disbursed Funds Account........................................................23
11. Limitation of Liability......................................................................................24
11.1 Disbursement Agent's Limitation of Liability.......................................................24
11.2 Independent Construction Consultant's Limitation of Liability......................................24
12. Indemnity and Insurance......................................................................................25
12.1 Indemnity..........................................................................................25
12.2 Insurance..........................................................................................25
13. Termination..................................................................................................25
14. Substitution or Resignation..................................................................................26
15. Account Statement............................................................................................26
16. Notice.......................................................................................................27
17. Miscellaneous................................................................................................27
17.1 Waiver.............................................................................................27
17.2 Invalidity.........................................................................................27
17.3 No Authority.......................................................................................27
17.4 Assignment.........................................................................................27
17.5 Benefit............................................................................................27
17.6 Time...............................................................................................27
17.7 Choice of Law......................................................................................27
17.8 Entire Agreement; Amendments.......................................................................27
17.9 Notices............................................................................................28
17.10 Counterparts......................................................................................28
17.11 Captions..........................................................................................28
17.12 Arbitration.......................................................................................29
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EXHIBITS
Exhibit A Form of Initial Disbursements Certificate
Exhibit B-1 Form of Company's Closing Certificate
Exhibit B-2 Form of Independent Construction Consultant's Closing
Certification
Exhibit B-3 Form of Disbursement Agent's Closing Certification
Exhibit B-4 Form of Trustee's Closing Certification
Exhibit C Form of Interest Disbursement Request
Exhibit D-1 Form of Completion Reserve Disbursement Request and
Certificate
Exhibit D-2 Form of Post-Final CDA Disbursement Completion Reserve
Disbursement Request and Certificate
Exhibit E-1 Form of Construction Disbursement Request and Certificate
Exhibit E-2 Form of Advance Disbursement Request and Certificate
Exhibit F Form of Construction Disbursement Budget Amendment Certificate
Exhibit G-1 Form of Contract Amendment Certificate
Exhibit G-2 Form of Additional Contract Certificate
Exhibit H Form of Consent to Collateral Assignment of Contract
Exhibit I Form of Pro Forma Title Policy
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CASH COLLATERAL AND DISBURSEMENT AGREEMENT
THIS CASH COLLATERAL AND DISBURSEMENT AGREEMENT (as amended, supplemented
or otherwise modified from time to time, the "Agreement") is dated as of June 3,
1999, by and among IBJ WHITEHALL BANK & TRUST COMPANY, a New York banking
association, having an office at One State Street, New York, New York 10004, as
trustee (together with its successors and assigns, the "Trustee") under the
Indenture (as defined below), IBJ WHITEHALL BANK & TRUST COMPANY, a New York
banking association, as disbursement agent (together with its successors and
assigns, the "Disbursement Agent"), CRSS CONSTRUCTORS, INC., a Delaware
corporation, as independent construction consultant under the Indenture
(together with its successors and assigns, the "Independent Construction
Consultant"), and RIVIERA BLACK HAWK, INC., a Colorado corporation (the
"Company" or the "Issuer").
RECITALS
A. Notes. The Issuer has issued Forty-Five Million Dollars ($45,000,000) in
aggregate principal amount of its 13% First Mortgage Notes due 2005 With
Contingent Interest (the "Original Notes" and, together with any new notes
issued in exchange therefor, the "Notes") concurrently herewith. The Notes have
been issued pursuant to the provisions of an Indenture (as amended, supplemented
or otherwise modified from time to time, the "Indenture") dated the date hereof,
between the Issuer and the Trustee, on behalf of itself and the holders of the
Notes. Proceeds from the issuance of Notes in the amount of Thirty One Million
Nine Hundred Thousand Dollars ($31,900,000) (the "Construction Proceeds") will
be deposited contemporaneously with the execution of this Agreement into Account
No. 630000038.1 ("Riviera Black Hawk, Inc. Construction Disbursement Account")
held at the Disbursement Agent (said account, or any substitute account selected
in accordance with the terms of this Agreement, is sometimes referred to herein
as the "Construction Disbursement Account"), to be maintained by the
Disbursement Agent pursuant to Section 2 of this Agreement. Proceeds from the
issuance of Notes in the amount of Five Million One Hundred Thousand Dollars
($5,100,000) (the "Interest Reserve Proceeds"), will be deposited
contemporaneously with the execution of this Agreement into Account No.
630000038.2 ("Riviera Black Hawk, Inc. Interest Reserve Account"), held at the
Disbursement Agent (said account, or any substitute account selected in
accordance with the terms of this Agreement, is sometimes referred to herein as
the "Interest Reserve Account"), to be maintained by the Disbursement Agent
pursuant to Section 2 of this Agreement. Proceeds from the issuance of Notes in
the amount of Five Million Dollars ($5,000,000.00) (the "Completion Reserve
Proceeds," which, together with the Construction Proceeds and the Interest
Reserve Proceeds, shall be referred to herein as the "Proceeds"), will be
deposited contemporaneously with the execution of this Agreement into Account
No. 630000038.3 ("Riviera Black Hawk, Inc. Completion Reserve Account"), held at
the Disbursement Agent (said account, or any substitute account selected in
accordance with the terms of this Agreement, is sometimes referred to herein as
the "Completion Reserve Account"), to be maintained by the Disbursement Agent
pursuant to Section 2 of this Agreement.
B. Collateral and Collateral Assignment. As security for its
obligations under the Notes and the Indenture, the Issuer has granted security
interests to the Trustee, on behalf of itself and the holders of Notes, in
certain assets and has collaterally assigned certain contracts to the Trustee.
As further security for its obligations under the Notes and the Indenture, the
Issuer also has granted, and hereby grants, a security interest to the Trustee,
on behalf of itself and the holders of the Notes, in all of the Issuer's right,
1
title and interest in the Construction Disbursement Account, the Completion
Reserve Account, the Interest Reserve Account, the Disbursed Funds Account (as
defined herein) and any Proceeds or other amounts held in any such accounts.
C. Purpose. The parties intend that portions of the Proceeds and the other
amounts deposited from time to time in the Construction Disbursement Account
(including without limitation pursuant to the Completion Capital Commitment, as
defined herein) be used to develop, design, construct, equip and operate the
Riviera Black Hawk (as defined herein) and provide for working capital and
operating funds for the Company, all in accordance with the Indenture. The
parties have entered into this Agreement in order to set forth the conditions
upon which, and the manner in which, funds will be disbursed in order to permit
the Company to develop, design, construct, equip and operate the Riviera Black
Hawk (as defined herein), and to permit the Company to conduct its operations.
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. In this Agreement, the terms defined in this Section
1 shall have the meanings herein specified, such definitions to be equally
applicable to both the singular and plural forms of any of the terms defined:
"Account Agreement" means that certain Account Agreement dated as
of even date herewith by and among the Trustee, the Company, and IBJ
Whitehall Bank & Trust Company, as securities intermediary.
"Accounts" means the Interest Reserve Account, the Completion
Reserve Account and the Construction Disbursement Account.
"Additional Contract Certificate" means an Additional Contract
Certificate in the form of Exhibit G-2 attached hereto.
"Additional Revenue" means revenue (including, without limitation,
investment income (loss), less any losses or costs associated
therewith, earned on amounts in the Construction Disbursement Account
and the Completion Reserve Account) generated by the Company (other
than from disposition of its assets), but only to the extent that such
revenue is held by the Company, free and clear of any claims of any
other parties whatsoever, other than claims of the Trustee and holders
of the Notes; provided, however, that as of any date of measurement,
Additional Revenue also shall include investment income (loss), less
any losses or costs associated therewith, which the Company reasonably
determines (with the reasonable concurrence of the Disbursement Agent
(acting in its sole discretion exercised in good faith)) will be earned
on funds in the Construction Disbursement Account and the Completion
Reserve Account through the anticipated date that the Riviera Black
Hawk becomes Operating, taking into account the current and future
anticipated rates of return on Government Securities in the
Construction Disbursement Account and the Completion Reserve Account
and the anticipated times and amounts of draws therefrom for the
payment of Construction Expenses or in connection with permitted
amendments to the Construction Disbursement Budget (as applicable).
2
"Advance Disbursements" means a disbursement from the Construction
Disbursement Account to the Company in accordance with the Construction
Disbursement Budget, notwithstanding the fact that not all
certifications and lien releases have been obtained nor other
disbursement conditions have been satisfied; provided that the
aggregate amount of Advance Disbursements outstanding at any time shall
not exceed an amount greater than One Million Five Hundred Thousand
Dollars ($1,500,000).
"Affiliate" has the meaning given in the Indenture.
"Architect" means Melick Associates, Inc., and its successors
identified by notice from the Company to the Disbursement Agent.
"Architect Agreement" means the Standard Form of Agreement Between
Owner and Architect for the design of the Riviera Black Hawk executed
by the Architect and the Company dated July 29, 1998 (as amended,
modified or supplemented from time to time).
"Available Funds" means, at any given time, (a) the Proceeds
deposited in the Construction Disbursement Account and the Completion
Reserve Account, together with all amounts previously deposited in the
Construction Disbursement Account pursuant to the Completion Capital
Commitment, less disbursements theretofore made from the Construction
Disbursement Account, (b) so long as there is no Default or Event of
Default, Additional Revenue, and (c) actual or anticipated FF&E
Financing to the extent permitted under the Indenture.
"Business Day" means any day other than Saturday, Sunday or any day
on which banking institutions in New York, New York, are authorized or
required by law or other government action to close.
"Collateral" has the meaning given in the Indenture.
"Collateral Documents" has the meaning given in the Indenture.
"Company's Closing Certificate" means an Officers' Certificate in
the form attached hereto as Exhibit B-1.
"Completion Capital Commitment" has the meaning given in the
Indenture.
"Construction Contract" means the Standard Form of Agreement
Between Owner and Contractor for the construction of the Riviera Black
Hawk executed by the General Contractor and the Company, dated December
29, 1997 (as amended, modified or supplemented from time to time).
"Construction Disbursement Budget" means the Initial Construction
Disbursement Budget, as the same may be amended from time to time
pursuant to this Agreement.
"Construction Disbursement Budget Amendment Certificate" means a
Construction Disbursement Budget Amendment Certificate in the form of
Exhibit F attached hereto.
"Construction Documents" means the Construction Contract, the
Architect Agreement, and any other Contract entered into on, prior to
or after the Issuance Date (other than the Financing
3
Agreements), as the same may be amended from time to time as permitted
thereunder and in accordance with this Agreement.
"Construction Expenses" means expenses incurred in connection with
the design, development, engineering, construction, installation,
equipping, commencement of operations and operating of the Riviera
Black Hawk in accordance with the Construction Disbursement Budget,
excluding, however (a) any such expenses paid on or prior to the Issue
Date, (b) any Debt Financing Costs and (c) any Issuance Fees and
Expenses.
"Construction Schedules" mean, collectively, schedules describing
the sequencing of the components of work to be undertaken in connection
with the Riviera Black Hawk, which schedules (as the same may be
amended to the extent permitted herein) demonstrate that the Riviera
Black Hawk will be Operating prior to the Operating Deadline.
"Contract" means a contract pertaining to the design, development,
engineering, installation or construction of the Riviera Black Hawk to
which the Company is a party, including, without limitation, any
contract, license and performance and payment bond or guarantee, if
any.
"Contractor" means a party to a Contract other than the Company.
"Debt Financing Costs" means all principal, interest, premium fees
and other amounts payable or accrued from time to time under the Notes.
"Deed of Trust" means the Deed of Trust to Public Trustee, Security
Agreement, Fixture Filing and Assignment of Rents, Leases and Leasehold
Interests and Assignment of Leases and Rents dated as of even date
herewith made by the Issuer in favor of the Trustee, on behalf of
itself and the holders of the Notes.
"Default" means any event, omission or failure of a condition that
is, or with the passage of time or the giving of notice or both could
be, an Event of Default herein.
"Dewatering Well Easement" means that certain Non-Exclusive
Dewatering Well Easement Agreement dated as of May 1, 1999, between the
City of Black Hawk and the Company.
"Disbursed Funds Account" means Account No. 630000038.4 ("Riviera
Black Hawk, Inc. Disbursed Funds Account"), held at IBJ Whitehall Bank
& Trust Company in the name of the Company, or any substitute account
selected in accordance with this Agreement, which account shall be
funded from disbursements from the Construction Disbursement Account
pursuant to this Agreement and shall be pledged as collateral to the
Trustee, for the benefit of itself and the holders of the Notes, and
from which the Company shall have general check writing authority.
"Disbursement Request" means any Initial Disbursement Request,
Construction Disbursement Request, Completion Reserve Disbursement
Request, Interest Disbursement Request, Advance Disbursement Request
and any other request for disbursement from the Accounts made pursuant
to this Agreement.
"Drainage Line Easement" means that certain Drainage Line Easement
dated as of December 29, 1997, made by the Company in favor of the City
of Black Hawk.
4
"FF&E Financing" has the meaning given in the Indenture.
"Final Plans" means Plans which (i) have received final approval
from all Governmental Instrumentalities required to approve such Plans
prior to completion of the work or improvements and (ii) contain
sufficient specificity to permit the completion of the Riviera Black
Hawk.
"Financing Agreements" means, collectively, this Agreement, the
Indenture, the Collateral Documents, the Notes, the Completion Capital
Commitment, the Keep-Well Agreement and any other loan or security
agreement entered into on, prior to or after the Issue Date with or for
the benefit of the Trustee to finance the Riviera Black Hawk, as each
of the same may be amended from time to time as permitted thereunder
and in accordance with the terms and conditions of this Agreement.
"Gaming Authorities" has the meaning given in the Indenture.
"Gaming Licenses" has the meaning given in the Indenture.
"General Contractor" means The Weitz Company, Inc., and its
successors identified by notice from the Company to the Disbursement
Agent.
"Government Securities" has the meaning given in the Indenture.
"Governmental Instrumentality" means any national, state or local
government (whether domestic or foreign), any political subdivision
thereof or any other governmental, quasi-governmental, judicial, public
or statutory instrumentality, authority, body, agency, bureau or entity
(including any Gaming Authority, any zoning authority, the FDIC, the
Comptroller of the Currency or the Federal Reserve Board, any central
bank or any comparable authority) or any arbitrator with authority to
bind a party at law.
"Hard Costs" means the costs and expenses in respect of supplying
goods, materials and labor for the construction of improvements
relating to the Riviera Black Hawk or other amounts payable pursuant to
the Construction Contract.
"Independent Construction Consultant" means CRSS Constructors,
Inc., and its successors, or any substitute Independent Construction
Consultant appointed by the Trustee in accordance with the terms of
this Agreement.
"Initial Construction Disbursement Budget" means, collectively, the
itemized schedule setting forth on a line item-basis all of the costs
which the Company anticipates to expend from and after the Issue Date
in connection with the design, development, engineering, construction,
installation, equipping and commencement of operations of the Riviera
Black Hawk and the conduct of the business of the Company, attached as
Exhibit 1 to the Company's Closing Certificate, which costs in the
aggregate, to the extent they are anticipated to be funded from the
Accounts (other than the Interest Reserve Account), shall not exceed
the Construction Proceeds (together with the proceeds of all actual or
anticipated FF&E Financing to the extent permitted under the
Indenture).
"Initial Disbursements Certificate" means an Officers' Certificate
from the Company in the form attached hereto as Exhibit A, together
with the schedules attached thereto.
5
"Interest Payment Date" means each of November 1, 1999, and May 1,
2000.
"Issuance Fees and Expenses" means fees and expenses incurred on or
before the Issue Date by the Company or for which the Company is liable
in connection with the offering of the Notes.
"Issue Date" means the date of the closing of the offering of the
Notes.
"Keep-Well Agreement" has the meaning given in the Indenture.
"Lien" has the meaning given in the Indenture.
"Material Construction Document" means any of the Construction
Contract, the Architect Agreement, and without duplication, any other
Construction Document with a total contract amount in excess of
$100,000.
"Minimum Facilities" means, with respect to the Riviera Black Hawk,
a casino which has in operation at least 900 slot machines and 12 table
games, related amenities (including a restaurant, a bar and an
entertainment area) and has parking for at least 442 vehicles.
"Net Loss Proceeds" has the meaning given in the Indenture.
"Obligations" means (a) all loans, advances, debts, liabilities and
obligations, howsoever arising, owed by the Company and its direct and
indirect Subsidiaries under the Indenture or otherwise to the Trustee
or any holder of the Notes of every kind and description (whether or
not evidenced by any note or instrument and whether or not for the
payment of money), direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising, pursuant to the terms
of this Agreement, any of the other Financing Agreements or any of the
other Operative Documents, including all interest, fees, charges,
expenses, attorney's fees and accountants fees chargeable to the
Company in connection with its dealings with the Company and payable by
the Company hereunder or thereunder; (b) any and all sums advanced by
the Disbursement Agent or the Trustee in order to preserve the
Collateral or preserve the Disbursement Agent's or the Trustee's
security interest in the Collateral, including all advances pursuant to
Section 7.4(ii) of this Agreement; and (c) in the event of any
proceeding for the collection or enforcement of the Obligations after
an Event of Default shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, or of
any exercise by the Disbursement Agent or the Trustee of its respective
rights under the Collateral Documents, together with reasonable
attorney's fees and court costs.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Executive Vice
President or Vice President of such Person.
"Officers' Certificate" means a certificate signed by one of the
following Officers of the Company on whose behalf or for whose benefit
the certificate is being executed or delivered: the Chairman of the
Board, Chief Executive Officer, President, Chief Financial Officer,
Executive Vice President, Vice President, Treasurer or Assistant
Treasurer.
6
"Operating" means, with respect to the Riviera Black Hawk, the
first time that: (i) all Gaming Licenses have been granted and have not
been revoked or suspended; (ii) all Liens (other than Liens created by
the Collateral Documents or Permitted Liens) related to the
development, construction and equipping of, and beginning operations
at, the Riviera Black Hawk have been discharged or, if payment is not
yet due or if such payment is contested in good faith by the Company,
sufficient funds remain in the Construction Disbursement Account to
discharge such Liens and the Company has taken any action (including
the institution of legal proceedings) necessary to prevent the sale of
any or all of the Riviera Black Hawk or the real property on which the
Riviera Black Hawk shall be constructed; (iii) the Independent
Construction Consultant shall deliver a certificate to the Trustee
certifying that the Riviera Black Hawk is substantially complete in all
material respects in accordance with the Final Plans with respect to
the Minimum Facilities; (iv) the Riviera Black Hawk is in a condition
(including installation of furnishings, fixtures and equipment) to
receive customers in the ordinary course of business; (v) the Minimum
Facilities are open to the general public and operating in accordance
with applicable law; and (vi) a permanent or temporary certificate of
occupancy has been issued for the Riviera Black Hawk by the appropriate
governmental authorities.
"Operating Deadline" means May 31, 2000.
"Operative Documents" means the Financing Agreements and the
Construction Documents.
"Permits" means all authorizations, consents, decrees, permits,
waivers, privileges, approvals from and filings with all Governmental
Instrumentalities necessary for the construction and operation of the
Riviera Black Hawk in accordance with the Operative Documents.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Plans" means the plans, specifications, working drawings, design
documents, change orders, correspondence and related items, which may
be amended by the Company as necessary or appropriate, that
collectively: (a) provide for and detail the manner of construction of
improvements for the Riviera Black Hawk; (b) call for construction
which will permit the Riviera Black Hawk to be Operating on or prior to
the Operating Deadline; (c) call for construction which will cause the
Riviera Black Hawk to be completed for a total cost consistent with the
Construction Disbursement Budget and the line items set forth therein,
taking into consideration the availability of Available Funds,
including Realized Savings; and (d) to the extent such Plans are
amended, such Plans continue to represent a logical evolution
consistent with previous Plans, as the same may be amended or
supplemented form time to time.
"Pledge and Assignment Agreement" means that certain Pledge and
Assignment Agreement dated as of even date herewith, made by the
Company in favor of the Trustee.
"Pledge Agreement" means each of the Pledge and Assignment
Agreement and/or Account Agreement among any of the Disbursement Agent,
the Trustee and the Issuer relating to the Trustee's security interest
in the Accounts and the Disbursed Funds Account and the proceeds
thereof.
7
"Project Cost Schedule" means an itemized schedule in the form of
Schedule 1 to a Disbursement Request, a form of which is attached
hereto as Schedule 1 to Exhibit E.
"Property" means the real property located in Black Hawk, Colorado,
on which the Company will construct the Riviera Black Hawk.
"Property Documents" means each of the Subdivision Agreement, the
Subterranean Easement, the Drainage Line Easement, the Dewatering Well
Easement, the Shoring and Tie-Back Easement and each other easement or
material agreement affecting the Property or the Company's use thereof.
"Realized Savings" means the excess of the amount budgeted in the
Construction Disbursement Budget for a line item over the amount of
funds expended or owed by the Company to complete the tasks set forth
in such line item and for the materials and services used to complete
such tasks, so long as the terms for such tasks are final and
unconditional (other than the satisfactory completion of such tasks),
including without limitation the execution of fixed price purchase
orders to acquire the materials that are the subject of such line item
(as applicable); provided, however, that Realized Savings for any line
item shall be (i) deemed to be zero if such savings are obtained in a
manner that materially detracts from the overall value, quality and
amenities of the Riviera Black Hawk and (ii) reduced to the extent
previously reallocated in the Construction Disbursement Budget.
"Reserved Construction Amount" means the amount (exclusive of any
Retainage Amounts) necessary as of the date of the Final CDA
Disbursement to complete the Riviera Black Hawk in accordance with the
Final Plans, including punch list items.
"Retainage Amounts" means, at any given time, amounts which have
accrued and are owing under the terms of a Contract for work or
services already provided but which at such time (and in accordance
with the terms of the Contract) are being withheld from payment to the
respective Contractor until certain subsequent events (e.g., completion
benchmarks) have been achieved under the Contract.
"Riviera Black Hawk" means the pending project to develop,
construct, equip and operate the Riviera Black Hawk Casino and related
amenities, which are required to be Operating as of the Operating
Deadline.
"Sanitation District Easement" means that certain Easement
Agreement dated as of December 29, 1997, granted by the Company in
favor of the Black Hawk/Central City Sanitation District.
"Shoring and Tie-Back Easement" means that certain Non-Exclusive
Shoring and Tie Back Easement Agreement dated as of May 1, 1998, by the
City of Black Hawk, the Company and the Isle of Capri Black Hawk, LLC.
"Soft Costs" means all costs and expenses (other than Hard Costs,
but including Working Capital Expenses) set forth in the Construction
Disbursement Budget, including without limitation pre-opening costs.
8
"Subdivision Agreement" means that certain Subdivision dated as of
December 29, 1997, by and between the City of Black Hawk and the
Company (as the same may be amended, supplemented or otherwise modified
from time to time).
"Subterranean Easement" means that certain Permanent Subterranean
Easement Agreement dated as of December 29, 1997, and re-recorded May
26, 1999, made by the City of Black Hawk in favor of the Company.
"Title Insurer" means First American Title Insurance Company.
"Title Policy" means the lender's policy or policies of title
insurance to be provided by the Title Insurer to the Trustee with
respect to the Property, together with all endorsements thereto, in the
form attached as Exhibit I.
"Working Capital Expenses" means operating expenses and other
working capital requirements of the Company in connection with the
Riviera Black Hawk, limited, prior to when the Riviera Black Hawk is
first Operating, as contemplated in and to the extent permitted by the
Construction Disbursement Budget.
1.2 Additional Defined Terms. In addition, the terms listed below in
the left column below shall have the respective meanings assigned to such terms
in the Section of this Agreement listed opposite such terms in the right column
below. All other capitalized terms not defined herein, but defined in the
Indenture, shall have the meanings ascribed to them in the Indenture.
Defined Terms Section
------------- -------
Advance Disbursement Request..................... 4.1
Agreement........................................ Introduction
Company.......................................... Introduction
Completion Reserve Account....................... A of Recitals
Completion Reserve Disbursement Request.......... 4.1
Completion Reserve Proceeds...................... A of Recitals
Construction Disbursement Account................ A of Recitals
Construction Disbursement Request................ 4.1
Construction Proceeds............................ A of Recitals
Disbursement Agent............................... Introduction
Event of Default................................. 9
Final CDA Disbursement........................... 7.5.1
Final CRA Disbursement........................... 7.5.2
Indenture........................................ A of Recitals
Independent Construction Consultant.............. Introduction
Initial Disbursements............................ 7.1
Interest Disbursement Request.................... 4.1
Interest Reserve Account......................... A of Recitals
Interest Reserve Proceeds........................ A of Recitals
Issuer........................................... Introduction
Notes............................................ A of Recitals
Original Notes................................... A of Recitals
Proceeds......................................... A of Recitals
Trustee.......................................... Introduction
9
1.3 Rules of Interpretation. The following rules of interpretation
shall apply herein.
1.3.1 The singular includes the plural and the plural includes the
singular.
1.3.2 The word "or" is not exclusive.
1.3.3 A reference to a Person includes its permitted successors and
permitted assigns.
1.3.4 Accounting terms have the meanings assigned to them by U.S.
GAAP (as defined in the Indenture), as applied by the accounting entity to which
they refer.
1.3.5 The words "include," "includes" and "including" are not
limiting.
1.3.6 A reference in a document to an Article, Section, Exhibit,
Schedule is to the Article, Section, Exhibit, Schedule, Annex or Appendix of
such document unless otherwise indicated. Exhibits, Schedules, Annexes or
Appendices to any document shall be deemed incorporated by reference in such
document.
1.3.7 References to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall include
all documents, instruments or agreements issued or executed in replacement
thereof, and (c) shall mean such document, instrument or agreement, or
replacement or predecessor thereto, as amended, modified and supplemented from
time to time and in effect at any given time.
1.3.8 The words "hereof," "herein" and "hereunder" and words of
similar import when used in any document shall refer to such document as a whole
and not to any particular provision of such document.
1.3.9 References to "days" shall mean calendar days, unless the
term "Business Days" shall be used.
2. Establishment of Accounts.
2.1 Appointment of Disbursement Agent. The Trustee and the Company
hereby appoint the Disbursement Agent, and the Disbursement Agent hereby accepts
appointment, as disbursement agent hereunder upon the terms and conditions set
forth in this Agreement. The Disbursement Agent agrees to act in good faith at
all times herein.
2.2 Establishment of Accounts. Concurrently with the execution and
delivery hereof, the Disbursement Agent shall establish the Accounts at the
Disbursement Agent and credit thereto, in accordance with the provisions of
Recital A hereof, the Proceeds. All funds in the Accounts shall be held in trust
and not commingled with any deposit or commercial bank account. The Disbursement
Agent hereby waives any and all liens, claims, encumbrances and rights of set
off which it may have in the Accounts, including all rights of offset,
deductions and liens, whether statutory or otherwise afforded by law, agreement
or otherwise set forth herein. All funds accepted by the Disbursement Agent
pursuant to this Agreement shall be held in the appropriate Account for the
benefit of the Company subject to the terms and conditions of this Agreement and
any Pledge Agreement (including, without limitation, the rights of the Trustee
hereunder and thereunder). The Disbursement Agent may, upon the request of the
Company,
10
establish sub-accounts for accounting purposes within the Accounts, it being
understood and agreed that the creation of such sub-accounts shall in no way
affect the pledge in favor of the Trustee in the accounts hereunder.
2.3 Pledge Agreement. Pursuant to the Pledge and Assignment Agreement,
the Company has granted to the Trustee, for the benefit of the holders of the
Notes, a first priority security interest in the Accounts and all funds and
assets from time to time deposited therein, and all products and proceeds
thereof. The Disbursement Agent shall note in its records that all funds and
other assets in the Accounts have been pledged to the Trustee and that the
Disbursement Agent is holding such items as agent for the Trustee, as secured
party. The Disbursement Agent shall maintain dominion and control over the
Accounts and the funds and assets therein solely for the benefit of the Trustee,
as secured party, and for no other parties or Persons; provided, however, that
the Company shall be able to obtain disbursements from the Accounts in
accordance with the terms hereof. Accordingly, it is the intention of the
parties that all such funds and assets shall not be within the bankruptcy
"estate" (as such term is used in 11 U.S.C. ss 541, as amended) of the
Disbursement Agent. All such funds and all earnings accruing from time to time
thereon shall be held in the applicable Account until disbursed or transferred
in accordance with the terms hereof or until transferred to such other account
as the Trustee and the Company may direct the Disbursement Agent to establish.
2.4 Investment of Funds in Accounts. All funds from time to time
credited to and contained in each of the Construction Disbursement Account
(other than those to be disbursed pursuant to the Initial Disbursement Request,
which shall be so disbursed on the Issue Date), the Completion Reserve Account
and the Interest Reserve Account shall be invested only in Government Securities
from time to time by written instructions by the Company delivered to the
Disbursement Agent, pending disbursement of such funds pursuant to this
Agreement; provided, however, that the Disbursement Agent shall have concluded
that such investments conform with the requirements of the Indenture and each
Pledge Agreement and that appropriate steps have been taken with respect to each
such investment so as to assure the continuing perfection of the Trustee's first
priority security interest in such investment. For purposes of determining the
steps to be taken in order to achieve and maintain such perfection, the
Disbursement Agent shall have the right to require the delivery of, and to rely
upon, an opinion of counsel to the Company or the Disbursement Agent (the
expense of which shall be paid by the Company) specifying (A) that the counsel
is familiar with the laws applicable to the perfection of security interests in
said investments and (B) the steps required to perfect and maintain a first
priority security interest in favor of the Trustee in such investments. If no
such investment instructions are received by the Disbursement Agent after
request or after the occurrence of a Default or Event of Default, such funds
shall be invested in Government Securities selected by the Disbursement Agent in
conformity with the requirements of the Indenture and the Pledge Agreement.
Subject to Section 4.2(a) hereof, the Disbursement Agent shall not be liable for
any investment or similar losses or for the availability or liquidity of funds
in the Accounts as a result of any investments made or reduced to cash in
accordance with this Agreement, and the Disbursement Agent is hereby authorized
to direct the Securities Intermediary (as defined in the Pledge and Assignment
Agreement) in writing (i) to purchase Government Securities in accordance
herewith and (ii) to reduce to cash any Government Securities (without regard to
maturity) in any Account in order to make any application or disbursement
required hereunder.
2.5 Agency. The Disbursement Agent shall act solely as the Trustee's
agent in connection with its duties under this Agreement, notwithstanding any
other provision contained herein, without any authority to obligate the Trustee
or to compromise or pledge its security interest hereunder; provided, however,
that the Disbursement Agent is authorized to make disbursements from the
Accounts on behalf of the Trustee pursuant to the terms of this Agreement. The
Company acknowledges and agrees that in no
11
event shall the Trustee or the holders of the Notes be liable for, nor shall the
obligations of the Company under the Indenture, the Notes or the other
Collateral Documents be affected or diminished as a consequence of, any action
or inaction of the Disbursement Agent with respect to the Accounts or any funds
or other assets credited thereto or deposited herein.
2.6 Waiver of Setoff Rights. The Disbursement Agent hereby acknowledges
the Trustee's security interest as set forth herein and waives any security
interest or other lien in the Accounts or any funds or other assets credited
thereto or deposited herein and further waives any right to set off said funds,
assets or investments now or in the future against any indebtedness of the
Company to the Disbursement Agent. The waivers set forth in this Section are of
rights which may exist now or hereafter in favor of the Disbursement Agent in
its individual capacity, and not of any such rights which may exist now or
hereafter in favor of the Disbursement Agent in its capacity as agent for the
Trustee. Nothing in this Section shall be construed as waiving, limiting or
diminishing any rights of the Trustee vis-a-vis the Company.
3. Disbursements from Accounts.
3.1 Conditions to Disbursement. The Disbursement Agent shall disburse
funds from the Accounts only upon satisfaction of the applicable conditions to
disbursement set forth herein.
3.2 Method of Disbursement. Upon satisfaction of the applicable
conditions to disbursement set forth herein, the Disbursement Agent shall
disburse funds from the applicable Account as specified in the applicable
Disbursement Request.
3.3 Disbursement of Compensation.
3.3.1 Disbursement Agent's Compensation. So long as the Trustee
also serves as Disbursement Agent hereunder, the Disbursement Agent shall not,
except as otherwise provided in Section 13, be entitled to an additional fee for
its services hereunder, but shall be entitled to reimbursement for its
reasonable expenses (including, without limitation, the reasonable fees and
expenses of the Disbursement Agent's counsel) as compensation for services to
performed under this Agreement, unless the Company or the Trustee has sent
written notice to the Disbursement Agent that it is in default under this
Agreement. The Disbursement Agent shall receive such payments without the
requirement of obtaining any further consent or action on the part of the
Company with respect to the payment; provided, however, that, without limiting
the foregoing, the Disbursement Agent shall provide written itemization of
requested reimbursement of such expenses within thirty (30) days of receiving a
written request therefor from the Company. Disbursements for each calendar month
shall be made on the first day of the subsequent calendar month. Until such time
as the Company provides written notice to the contrary to the Disbursement Agent
and the Independent Construction Consultant in accordance with the terms hereof,
all amounts payable to the Disbursement Agent shall be deducted from the
applicable working capital line item in the Construction Disbursement Budget.
3.3.2 Independent Construction Consultant's Compensation. The
Company covenants and agrees to pay to the Independent Construction Consultant
from time to time, and the Independent Construction Consultant shall be entitled
to, the fees and reimbursements set forth in that certain letter agreement
between the Company and the Independent Construction Consultant dated as of June
2, 1999, such amounts to be paid in accordance with and at the times set forth
in such letter. Until such time as the Company provides written notice to the
contrary to the Disbursement Agent and the Independent Construction Consultant
in accordance with the terms hereof, all amounts payable to the Independent
12
Construction Consultant shall be deducted from the applicable working capital
line item in the Construction Disbursement Budget.
3.4 Transfer of Funds to the Trustee. Upon the receipt of written
notice executed by the Trustee, which certifies that an Event of Default
hereunder has occurred and is continuing and that the Trustee is entitled to the
funds in the Accounts, the Disbursement Agent shall, without need for further
authorization or notice to the Company, deliver to the Trustee all funds in the
Accounts, other than amounts then permitted to be disbursed under clauses (i),
(ii), (iii) and (iv) of Section 7.4 hereof.
4. Agreements of the Company, the Independent Construction Consultant, the
Disbursement Agent and the Trustee. The Company, the Independent Construction
Consultant, the Disbursement Agent and the Trustee severally agree as follows:
4.1 Disbursement Requests and Disbursements.
(a) The Company shall concurrently with the execution and delivery
of this Agreement submit or cause to be submitted to the Disbursement Agent with
a copy to the Trustee and the Independent Construction Consultant, a request for
the disbursement of funds from the Construction Disbursement Account for the
Initial Disbursements to be made as of the date hereof, in the form of Exhibit A
attached hereto (an "Initial Disbursement Request"), together with all documents
necessary for the making of the Initial Disbursements.
(b) The Company or, as set forth in Article 5, the Trustee, shall
have the right to submit to the Disbursement Agent, with a copy to the Trustee,
a request for the disbursement of funds from the Interest Reserve Account to pay
the interest due on the Notes, each in the form of Exhibit C attached hereto (an
"Interest Disbursement Request").
(c) The Company shall have the right from time to time during the
course of this Agreement (but no more often than semi-monthly, unless otherwise
permitted by the Disbursement Agent), to submit to the Disbursement Agent, with
a copy to Trustee and the Independent Construction Consultant, a request for the
disbursement of funds (i) up to and including the Final CDA Disbursement, from
the Completion Reserve Account to the Construction Disbursement Account, each in
the form of Exhibit D-1 attached hereto and (ii) after the Final CDA
Disbursement, from the Completion Reserve Account to the Disbursed Funds Account
or as otherwise directed in such Disbursement Request, in the form of Exhibit
D-2 attached hereto (each a "Completion Reserve Disbursement Request"), in each
case together with the exhibits attached thereto.
(d) The Company shall have the right from time to time during the
course of this Agreement (but no more often than semi-monthly (other than
disbursements related to the Initial Disbursements Certificate), unless
otherwise permitted by the Disbursement Agent), to submit to the Disbursement
Agent, with a copy to the Trustee and the Independent Construction Consultant, a
request for the disbursement of funds from the Construction Disbursement Account
to the Disbursed Funds Account or as otherwise directed in such Disbursement
Request, in the form of Exhibit E-1 attached hereto (a "Construction
Disbursement Request"), or in the form of Exhibit E-2 attached hereto (an
"Advance Disbursement Request"), in each case together with the exhibits
attached thereto.
(e) The Disbursement Agent shall (i) review each Disbursement
Request submitted pursuant to Sections 4.1(a) through (d) above to determine
that they conform in form to the requirements of Exhibits A through E-2,
respectively, including all attachments, exhibits and certificates required
13
thereby (as the case may be), and (ii) have no actual knowledge of any material
error, inaccuracy, misstatement or omission of fact in such Disbursement Request
or an attachment, exhibit or certificate attached thereto or information
provided by the Company upon the request of the Disbursement Agent. Except as to
the Initial Disbursement, which shall be made on the Issue Date, the
Disbursement Agent shall notify the Company as soon as reasonably possible (and
in any event within two (2) Business Days after the Disbursement Agent receives
the required documents) if any Disbursement Request, or any portion thereof, is
disapproved and the reason(s) therefor.
(f) Provided that a Disbursement Request submitted pursuant to
Sections 4.1(a) through (d) above is not disapproved by the Disbursement Agent,
then, within two (2) Business Days following submission of such Disbursement
Request, the Disbursement Agent shall disburse the funds requested in such
Disbursement Request (other than those to be disbursed pursuant to (i) the
Initial Disbursement Request, which shall be disbursed on the Issue Date, or
(ii) an Interest Disbursement Request, which shall be disbursed on the
respective Interest Payment Date), or such portion thereof as is approved by the
Disbursement Agent.
4.2 Periodic Review of Riviera Black Hawk.
(a) Subject to the limitations in Section 11.1, the Disbursement
Agent shall exercise commercially reasonable efforts and utilize commercially
prudent practices in the performance of its duties hereunder consistent with
those of similar institutions holding similar collateral, administering similar
construction loans and disbursing similar disbursement control funds. Commencing
upon execution and delivery hereof, the Disbursement Agent shall have the right,
but shall have no obligation, to meet periodically at reasonable times upon
reasonable advance notice with representatives of the Company, the Independent
Construction Consultant and such other employees, consultants or agents as the
Disbursement Agent shall reasonably request to be present for such meetings. In
addition, the Disbursement Agent shall have the right, but shall have no
obligation, at reasonable times during customary business hours and at
reasonable intervals upon prior notice to review, to the extent it deems
reasonably necessary or appropriate to permit it to perform its duties
hereunder, all information (including Contracts) supporting the Disbursement
Requests and any certificates in support of any of the foregoing. The
Disbursement Agent shall be entitled to examine, copy and make extracts of the
books, records, accounting data and other documents of the Company which are
reasonably necessary or appropriate to permit it to perform its duties
hereunder, including, without limitation, bills of sale, statements, receipts,
contracts or agreements, which relate to any materials, fixtures or articles
incorporated into the Riviera Black Hawk. The rights of the Disbursement Agent
under this Section shall not be construed as an obligation, it being understood
that the Disbursement Agent's duty is limited to act upon certificates and draw
requests submitted by the Company and the Trustee hereunder.
(b) Subject to the limitations in Section 11.2, the Independent
Construction Consultant shall exercise commercially reasonable efforts and
utilize commercially prudent practices in the performance of its duties
hereunder consistent with those of similar institutions disbursing disbursement
control funds and reviewing construction progress. Commencing upon execution and
delivery hereof, the Independent Construction Consultant shall have the right to
meet periodically at reasonable times during customary business hours and at
reasonable intervals, however no less frequently than monthly, with
representatives of the Company, the General Contractor, the Architect and such
other employees, consultants or agents as the Independent Construction
Consultant shall reasonably request to be present for such meetings. The
Independent Construction Consultant may perform such inspections of the Property
then owned by the Company and the Riviera Black Hawk as it deems reasonably
necessary or appropriate in the performance of its duties hereunder, however no
less frequently than monthly. In addition, the
14
Independent Construction Consultant shall have the right at reasonable times
during customary business hours upon prior notice to review, to the extent it
deems reasonably necessary or appropriate to permit it to perform its duties
hereunder, all information (including Contracts) supporting the amendments to
the Construction Disbursement Budget, amendments to any Contracts, the
Disbursement Requests and any certificates in support of any of the foregoing,
to inspect materials stored on the Property then owned by the Company and at
off-site facilities where materials designated for use in the Riviera Black Hawk
are stored, to review the insurance required pursuant to the terms of the
Indenture, and to examine the Plans and all shop drawings relating to the
Riviera Black Hawk. Upon and during the continuance of a Default or an Event of
Default, or otherwise with the Company's prior written consent (which shall not
be unreasonably withheld or delayed), the Independent Construction Consultant is
authorized to contact any payee for purposes of confirming receipt of progress
payments. The Independent Construction Consultant shall be entitled to examine,
copy and make extracts of the books, records, accounting data and other
documents of the Company relating to the construction of the Riviera Black Hawk,
including, without limitation, bills of sale, statements, receipts, conditional
and unconditional lien releases, contracts or agreements, which relate to any
materials, fixtures or articles incorporated into the Riviera Black Hawk. From
time to time, at the request of the Independent Construction Consultant, the
Company shall make available to the Independent Construction Consultant a
Riviera Black Hawk Cost Schedule and/or a Construction Schedule for the Riviera
Black Hawk. The Company agrees to reasonably cooperate with the Independent
Construction Consultant in assisting the Independent Construction Consultant to
perform its duties hereunder and to take such further steps as the Independent
Construction Consultant reasonably may request in order to facilitate the
Independent Construction Consultant's performance of its obligations hereunder.
4.3 Insufficient Available Funds. The Company shall promptly, and in no
event later than two (2) Business Days following knowledge thereof, notify the
Trustee, the Disbursement Agent and the Independent Construction Consultant in
writing if at any time the Company reasonably believes that there are
insufficient Available Funds (a) to permit the Riviera Black Hawk to be
Operating on or before the Operating Deadline or (b) to complete construction of
the Riviera Black Hawk in accordance with the Plans and/or the Construction
Disbursement Budget (as in effect at such time). Such notice shall specify in
reasonable detail (i) the amount of such deficiency and (ii) the steps which the
Company intends to take to cure such deficiency and the anticipated timing
thereof.
5. Interest Reserve.
5.1 Interest Disbursements. Ten (10) days prior to each Interest
Payment Date, the Company shall deliver to the Disbursement Agent an Interest
Disbursement Request in the form of Exhibit C attached hereto, describing the
amount required to be paid and the Interest Payment Date upon which such payment
is due and payable. On the Interest Payment Date, the Disbursement Agent shall
liquidate Government Securities (to the extent required) held in the Interest
Reserve Account and disburse to the Trustee the amounts described in the
Interest Disbursement Request as due and payable on that date; provided,
however, that the Trustee may direct the Disbursement Agent to liquidate the
Government Securities (to the extent required) and disburse to the Trustee the
amounts necessary to pay the amounts required to be paid on the Notes in the
event that the Company fails to timely deliver the Interest Disbursement
Request. In the event there are insufficient funds in the Interest Reserve
Account to pay any amount due pursuant to an Interest Disbursement Request or
direction so given by the Trustee, the Company shall, not less than three (3)
Business Days prior to the applicable Interest Payment Date, deposit in cash
into the Interest Reserve Account an amount equal to such deficiency; provided,
however, that the Trustee shall direct the Disbursement Agent to disburse an
amount equal to such deficiency, or the unsatisfied portion thereof, from the
Completion Reserve Account to the Interest Reserve Account one (1) Business Day
prior to the applicable Interest Payment Date in the event such amounts are not
timely
15
received from the Company. The Company acknowledges that the Company's failure
to provide notice or deposit funds referenced in this Section shall not in any
way exonerate or diminish the Company's obligation to make all payments under
the Notes as and when due.
5.2 Interest Reserve Account Amounts. Upon payment in full of all
interest payments due on the Notes on the final Interest Payment Date, the
Disbursement Agent shall transfer any funds and/or Government Securities in the
Interest Reserve Account to the Construction Disbursement Account and such funds
and/or Government Securities shall be deemed Additional Revenue.
6. Completion Reserve.
6.1 Conditions Precedent to Completion Reserve Disbursements. The
Disbursement Agent shall disburse funds from the Completion Reserve Account to
the Construction Disbursement Account, the Disbursed Funds Account or as
otherwise directed in the respective Completion Reserve Disbursement Request (as
applicable) in an amount equal to that specified in such Disbursement Request
upon satisfaction of the following conditions:
(a) The Completion Reserve Disbursement Request on its face has
been completed as to the information required therein, and the required exhibits
and attachments, if any, are attached; and
(b) The Disbursement Agent shall not have received written notice
from any parties hereto that a Default or Event of Default exists.
6.2 Disbursement to the Interest Reserve Account. Notwithstanding the
foregoing, disbursements may be made from the Completion Reserve Account
pursuant to Sections 5.1, 7.4 and 7.5 hereof.
7. Construction Disbursement Account.
7.1 Conditions to Initial Disbursements. Upon satisfaction of the
conditions described below in this Section, on the Issue Date the Disbursement
Agent shall make the disbursements described in the Initial Disbursements
Certificate in the form of Exhibit A attached hereto (the "Initial
Disbursements"). The conditions to the Initial Disbursements shall consist of
the following:
(a) The Disbursement Agent shall have received the Proceeds;
(b) The Disbursement Agent shall have received the Initial
Disbursements Certificate, Closing Certification from the Company in the form of
Exhibit B-1 attached hereto, the Closing Certification from the Independent
Construction Consultant in the form of Exhibit B-2 attached hereto and the
Closing Certification from the Trustee in the form of Exhibit B-4 attached
hereto, in each case together with all exhibits thereto. Each such document on
its face shall have been completed as to the information required therein, and
the required exhibits and attachments, if any, shall be attached; and
(c) The Disbursement Agent shall have received confirmation from
the Trustee that it has received the Initial Disbursement Certificate, the
Closing Certification from the Company in the form of Exhibit B-1 attached
hereto, the Closing Certification from the Independent Construction Consultant
in the form of Exhibit B-2 attached hereto and the Closing Certification from
the Disbursement Agent in the form of Exhibit B-3 attached hereto, in each case
together with all exhibits and attachments thereto.
16
7.2 Conditions to Subsequent Disbursements. Upon satisfaction of the
conditions described below in this Section, the Disbursement Agent shall make
the disbursements described in the corresponding Construction Disbursement
Request (provided that the conditions set forth in Section 7.1 above shall have
previously been satisfied) from the Construction Disbursement Account to the
Disbursed Funds Account or as otherwise directed in such Construction
Disbursement Request:
(a) The Company shall have submitted to the Disbursement Agent, the
Trustee, and the Independent Construction Consultant, a Construction
Disbursement Request in the form set forth in Exhibit E-1 attached hereto
pertaining to the amounts requested for disbursement, together with a completed
Schedule 1 in the form contemplated thereby and the certifications of the
Independent Construction Consultant in the form of Exhibit 1 attached thereto,
and in the event that the requested disbursement includes Hard Costs, the
certifications of the General Contractor, in the form of Exhibit 2 attached
thereto.
(b) The Construction Disbursement Request on its face shall have
been completed as to the information required therein, and the required exhibits
and attachments, if any, shall be attached.
(c) The Disbursement Agent shall not have received written notice
from any party hereto that a Default or Event of Default exists.
(d) The Company certifies that any amounts deposited into the
Disbursed Funds Account pursuant to any previous Construction Disbursement
Requests (other than Advance Disbursements permitted to be outstanding under
this Agreement) shall have been paid to the respective parties identified on the
Schedule 1 of each such previous Disbursement Request, except for such limited
payments as the Independent Construction Consultant reasonably determines to
have been withheld for good cause.
(e) With respect to a Disbursement Request immediately following
completion of any foundation for any building within the Riviera Black Hawk, the
Independent Construction Consultant shall have received from the Title Insurer
and certified to the Disbursement Agent, on a building-by-building basis, its
foundation endorsement insuring that such foundation is constructed wholly
within the boundaries of the Property then owned in fee simple or leased by the
Company, and does not encroach on any easement or violate any covenants,
conditions or restrictions of record.
7.3 Advance Disbursements. The Company shall have the right from time
to time (but no more frequently than once per calendar month, unless otherwise
permitted by the Disbursement Agent) to deliver to the Disbursement Agent an
Advance Disbursement Request in the form of Exhibit E-2 attached hereto,
together with the certification of the Independent Construction Consultant in
the form of Exhibit 1 attached thereto, which Disbursement Request shall not be
required to include or attach the supporting documentation required for all
other Disbursement Requests; provided, however, that (i) within thirty (30) days
after any Advance Disbursement is made (or, if earlier, promptly following the
occurrence of a Default or an Event of Default), the Company shall, with respect
to such Advance Disbursement, provide the same supporting documentation as is
required under the Agreement with respect to other Construction Disbursement
Requests (which documentation may be included in a subsequent Construction
Disbursement Request) and (ii) in no event shall the outstanding balance of
undocumented Advance Disbursements from the Construction Disbursement Account at
any one time exceed the sum of $1,500,000. The Disbursement Agent shall approve
any Advance Disbursement Request, so long as:
17
(a) The Advance Disbursement Request on its face has been completed
as to the information required therein.
(b) The Disbursement Agent shall not have received written notice
by any party hereto that a Default or an Event of Default exists and is
continuing.
7.4 Disbursements after an Event of Default. In the event that the
Disbursement Agent receives notice from any party hereto (which notice has not
been revoked or cancelled by the Trustee) that a Default or Event of Default
exists and is continuing, the Disbursement Agent shall not approve any
disbursement of funds for the Riviera Black Hawk from the Construction
Disbursement Account or the Completion Reserve Account; provided, however, that,
with the consent of the Trustee, the following payments can be made at the
discretion of the Trustee:
(i) if all other conditions in Section 7.2 (including those
stated in Section 7.1 hereof) are met, funds from the
Construction Disbursement Account, as approved by the
Independent Construction Consultant in writing, for work
completed or materials purchased on or prior to the date
that such Default or Event of Default first occurred;
(ii) payments not to exceed One Million Five Hundred Dollars
($1,500,000) in the aggregate to prevent the condition of
the Riviera Black Hawk from deteriorating or to preserve any
work completed on the Riviera Black Hawk, certified to the
Disbursement Agent and the Trustee in writing by the
Independent Construction Consultant to be reasonably
necessary or advisable; provided, however, that the
foregoing limitation may be increased or decreased by the
Trustee by written notice to the Disbursement Agent;
(iii) if such condition continues for a period of three (3)
consecutive months or more, at the written request of the
Company, Retainage Amounts for work completed; provided that
the Company and the Independent Construction Consultant
certify to the Disbursement Agent and the Trustee in writing
the amount required to be paid for such Retainage Amounts
and that the conditions for paying such amounts (other than
that the Riviera Black Hawk will be Operating) are met; and
(iv) at the direction of the Trustee, disbursements from the
Completion Reserve Account in accordance with Section 5.1.
7.5 Final Disbursement of Funds Following Operating Date.
7.5.1 Construction Disbursement Account. If any funds remain in the
Construction Disbursement Account and (a) the Riviera Black Hawk is Operating
and has been Operating for at least the preceding thirty (30) days
uninterrupted, (b) there is no ongoing construction in connection with the
Riviera Black Hawk (other than maintenance and repairs in the ordinary course of
business and other than construction associated with the Riviera Black Hawk,
including all punch list items, in an aggregate amount (excluding Retainage
Amounts) not to exceed $250,000), and (c) there exists no Default or Event of
Default, then the Company shall have the right to request that the Disbursement
Agent disburse to the Company all remaining funds in the Construction
Disbursement Account. Upon receipt by the Disbursement Agent of (i) a written
certification from the Company that (A) the Riviera Black Hawk is Operating and
has been Operating for at least the preceding thirty (30) days uninterrupted,
(B) there is no
18
ongoing construction in connection with the Riviera Black Hawk (other than
maintenance and repairs in the ordinary course of business and other than
construction associated with the Riviera Black Hawk, including all punch list
items, in an aggregate amount (excluding Retainage Amounts) not to exceed
$250,000), and (C) the Disbursement Agent has not received written notice by any
party hereto that a Default or Event of Default exists, and (ii) a written
certification from the Independent Construction Consultant concurring with the
certifications set forth in subsections (i)(A) and (B) hereof, then the
Disbursement Agent shall disburse all remaining funds in the Construction
Disbursement Account as directed by the Company (the "Final CDA Disbursement");
provided, however, that the Disbursement Agent shall first disburse funds to the
Disbursed Funds Account in amounts certified in writing by the Independent
Construction Consultant as sufficient to pay any then unpaid Retainage Amounts
due and owing as of the date of such disbursement (which shall be applied
accordingly) or thereafter (and the Company shall disburse such funds to pay
such Retainage Amounts as the same became due an payable), and no additional
sums shall be distributed until the Disbursement Agent shall have received a
certificate from the Independent Construction Consultant certifying that it has
received (x) unconditional lien waivers from all contractors, subcontractors,
materialmen or suppliers relating to construction of the Riviera Black Hawk to
the extent each has been paid in accordance with its respective Contract prior
to the date of such Final CDA Disbursement, and (y) conditional lien waivers
from all such parties to be paid with the proceeds of the Final CDA Disbursement
(if any); provided, further, that an amount representing the Reserved
Construction Amount shall also be deposited in the Disbursed Funds Account from
the proceeds of the Final CDA Disbursement and the Company shall disburse such
funds to pay Construction Expenses to complete the Riviera Black Hawk in
accordance with the Final Plans; and provided, further, that all funds disbursed
to the Company pursuant to this Section shall be used by the Company as required
pursuant to the Indenture and this Agreement, including without limitation
Section 7.5.3 hereof.
7.5.2 Completion Reserve Account. If any funds remain in the
Completion Reserve Account and (a) (i) the Riviera Black Hawk is Operating and
has been Operating for at least the preceding one-hundred-eighty (180) days
uninterrupted and (ii) no filings of any notice of mechanic's lien or notice of
extension of time for filing of mechanic's lien have been made against the
Property during or prior to such 180-day period which have not otherwise been
released of record, (b) there is no ongoing construction in connection with the
Riviera Black Hawk (other than maintenance and repairs in the ordinary course of
business), and (c) there exists no Default or Event of Default, then the Company
shall have the right to request that the Disbursement Agent disburse to the
Company all remaining funds in the Completion Reserve Account. Upon receipt by
the Disbursement Agent of (i) a written certification from the Company that (A)
(1) the Riviera Black Hawk is Operating and has been Operating for at least the
preceding one-hundred-eighty (180) days uninterrupted and (2) no filings of any
notice of mechanic's lien or notice of extension of time for filing of
mechanic's lien have been made against the Property during or prior to such
180-day period which have not otherwise been released of record, (B) there is no
ongoing construction in connection with the Riviera Black Hawk (other than
maintenance and repairs in the ordinary course of business), and (C) the
Disbursement Agent has not received written notice by any party hereto that a
Default or Event of Default exists, and (ii) a written certification from the
Independent Construction Consultant concurring with the certifications set forth
in subsections (i)(A)(1) and (B) hereof, then the Disbursement Agent shall
disburse all remaining funds in the Completion Reserve Account, as directed by
the Company (the "Final CRA Disbursement"); provided, however, that no sums
shall be distributed to the Company pursuant to this Section until the
Disbursement Agent shall have received a certificate from the Independent
Construction Consultant certifying that it has received unconditional lien
waivers from all contractors, subcontractors, materialmen or suppliers relating
to construction of the Riviera Black Hawk; provided, further, that all funds
disbursed to the Company pursuant to this Section shall be used by the Company
as required pursuant to the Indenture and this Agreement, including without
limitation Section 7.5.3 hereof.
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7.5.3 Use of Funds. To the extent that any work performed, services
rendered or materials provided in connection with the Riviera Black Hawk as
contemplated under the Construction Disbursement Budget then in effect remain
unpaid on or after the date of the Final CDA Disbursement, the Company shall
apply all funds disbursed to the Company pursuant to, first, Section 7.5.1
(including without limitation amounts representing the Reserved Construction
Amount) and, second, Section 7.5.2, to pay all amounts due and owing under any
Contracts in accordance therewith prior to utilizing any other funds otherwise
available to the Company for such purposes, including without limitation
pursuant to the Completion Capital Commitment (as applicable); provided that
after the Riviera Black Hawk is Operating (but prior to the making of the Final
CRA Disbursement), the Company shall have the right to use funds in the
Completion Reserve Account for working capital or other construction purposes in
connection with the Riviera Black Hawk (to the extent permitted under the
Indenture) by submitting a Completion Reserve Disbursement Request to the
Disbursement Agent in accordance with Section 4.1(c) hereof, and the
Disbursement Agent shall disburse funds from the Completion Reserve Account to
the Disbursed Funds Account or as otherwise directed in the respective
Completion Reserve Disbursement Request in an amount equal to that specified in
such Disbursement Request upon satisfaction of the conditions set forth in
Section 6.1(a) and (b) hereof; provided further that, after the Riviera Black
Hawk is Operating, the Company may replenish the Completion Reserve Account on a
revolving basis by depositing excess cash flow of the Company in the Completion
Reserve Account for all such amounts thereafter disbursed for Working Capital
Expenses.
8. Amendments to Construction Disbursement Budget; Entering into, Amendments to
Contracts; Amendments to Project Cost Schedule and Cost Overruns.
8.1 Construction Disbursement Budget Amendment Process. The
Construction Disbursement Budget may be amended from time to time in the manner
set forth herein. Subject to Section 8.2 below, the Company shall have the right
from time to time to amend the Construction Disbursement Budget to change the
amounts allocated for specific line item components of the work required to
complete the Riviera Black Hawk, including Soft Costs, and to reallocate
Realized Savings from one line item to another. Any such amendment shall be in
writing and shall identify with particularity the line items to be changed and
the amount of such change, and shall be submitted to the Disbursement Agent and
the Independent Construction Consultant by an Officers' Certificate in the form
of Exhibit F attached hereto, together with the Independent Construction
Consultant's certification, as provided in Exhibit 1 to the Construction
Disbursement Budget Amendment Certificate, and (if and to the extent such
amendment relates to Hard Costs) the General Contractor's certification, as
provided in Exhibit 2 to the Construction Disbursement Budget Amendment
Certificate, and the Architect's certification, as provided in Exhibit 3 to the
Construction Disbursement Budget Amendment Certificate. Upon receipt by the
Disbursement Agent of an Officers' Certificate in the form of Exhibit F and the
attachments, all of which must be completed as to the information required
therein, such amendment shall become effective hereunder and the Construction
Disbursement Budget shall thereafter be as so amended.
8.2 Contract Amendment Process. The Company shall have the right from
time to time to amend any Contract to which it is a party to change the scope of
the work and the Company's payment obligations thereunder. Any such amendment
that (i) results in a cost increase in excess of Twenty-Five Thousand Dollars
($25,000) in a Material Construction Document (or, with respect to the
Construction Contract only, in excess of Seventy-Five Thousand Dollars
($75,000)), (ii) results in a material lessening of the scope or quality of the
work constituting the design or construction of the Riviera Black Hawk, the
value of which is in excess of Twenty-Five Thousand Dollars ($25,000) in a
Material Construction Document (or, with respect to the Construction Contract
only, in excess of Seventy-Five Thousand Dollars ($75,000)), or (iii) results in
the likely addition of no less than one week of construction (or such
20
amendments, in the aggregate, result in the likely addition of no less than four
weeks of construction), shall be in writing and shall identify with
particularity all changes being made. The Company shall deliver to the
Disbursement Agent (a) an executed copy of the Contract amendment (the
effectiveness of which will be subject only to satisfaction of the conditions in
this Section 8.2); and (b) an Officers' Certificate in the form attached hereto
as Exhibit G-1, together with the Independent Construction Consultant's
certification as provided in Exhibit 1 to the Contract Amendment Certificate,
and in the event that such Contract relates to Hard Costs, the General
Contractor's certification as provided in Exhibit 2 to the Contract Amendment
Certificate and the Architect's certification as provided in Exhibit 3 to the
Contract Amendment Certificate, in each case completed as to the information
required therein. The Contract Amendment shall be deemed approved upon receipt
by the Company of the Disbursement Agent's acknowledgment of receipt of items
required under this Section 8.2.
8.3 Contracts Entered into after the Issuance Date. The Company may
from time to time enter into Contracts constituting Construction Documents
consistent with the Plans and Specifications and the Construction Disbursement
Budget, as each is in effect from time to time. Each such Contract shall be in
writing and, if a Material Construction Document, shall become effective when
and only when: (i) the Company and the Contractor have executed and delivered
the Contract (with the effectiveness thereof subject only to satisfaction of the
conditions in clauses (ii), (iii) and (iv) below); (ii) the Company has
submitted to the Disbursement Agent an Additional Contract Certificate, together
with all exhibits, attachments and certificates required thereby (including the
Independent Construction Consultant's Certificate), each duly completed and
executed; (iii) if entering into such Contract will result in an amendment to
the Construction Disbursement Budget, the Company has complied with the
requirements of Section 8.1; and (iv) if entering into such Contract will cause
the Available Funds to be less than the amount required to cause the Riviera
Black Hawk to become Operating on or before the Operating Deadline, the Company,
treating such difference as a cost overrun, has complied with the requirements
of Section 8.4.
8.4 Project Cost Schedule and Cost Overruns.
(a) The Company covenants to promptly (and in any event within ten
(10) days of notice or knowledge thereof) cure any cost overrun for any line
item (taking into account any applicable reserves) by (i) providing sufficient
funds to cover in full such cost overrun from (A) previously unallocated
Available Funds or other Additional Revenue as permitted in this Agreement (but
in each case only to the extent that the same have not previously been expended
or dedicated (including Retainage Amounts) to the payment of line items
contained in the Construction Disbursement Budget) or (B) if the conditions
precedent to a disbursement from the Completion Reserve Account are satisfied,
from funds in the Completion Reserve Account; and/or (ii) effecting a
Construction Disbursement Budget Amendment.
(b) Each Project Cost Schedule shall set forth (i) the actual
investment income (loss), less any losses or costs associated therewith, earned
on the Construction Disbursement Account and the Completion Reserve Account
through the date of such Project Cost Schedule, and (ii) the additional amount
of investment income which the Company reasonably anticipates will be earned in
the Construction Disbursement Account and the Completion Reserve Account from
such date through the earlier of the Operating Deadline and the anticipated date
on which the Riviera Black Hawk first will be Operating. If at any time the
Company submits a Project Cost Schedule pursuant to this Section and the Company
can no longer reasonably anticipate that the Additional Revenue earned (and
anticipated to be earned as determined above) from investments of funds in the
Construction Disbursement Account and the Completion Reserve Account will equal
the amount of such Additional Revenue anticipated as set forth in
21
the Construction Disbursement Budget then in effect, then, so long as the
Disbursement Agent has no actual knowledge that a Default or Event of Default
exists and is continuing:
(i) if the total amount of such Additional Revenue at such date
earned or anticipated to be earned is less than the total
amount of such Additional Revenue anticipated as of the date
of the most recent disbursement from the Construction
Disbursement Account, then the Available Funds shall be
deemed reduced by the amount of such deficiency and the
Company (as a condition to the next Construction
Disbursement Request) shall provide or allocate additional
Available Funds or, if necessary, disburse funds from the
Completion Reserve Account (so long as the conditions
precedent are satisfied), and/or otherwise amend the
Construction Disbursement Budget, if necessary, so that the
total costs to cause the Riviera Black Hawk to be Operating
prior to the Operating Deadline do not exceed the total
Available Funds; or
(ii) if the total amount of such Additional Revenue at such date
earned or anticipated to be earned is greater than the total
amount of such Additional Revenue anticipated as of the date
of the most recent disbursement from the Construction
Disbursement Account, then the Available Funds shall be
deemed increased by the amount of such excess.
9. Events of Default. The occurrence of any of the following specified events
shall be an "Event of Default" hereunder:
9.1 Indenture. A default or an event of default under the Indenture (as
such terms are defined therein) has occurred and is continuing.
9.2 Failure to Approve Disbursement Request. The Disbursement Agent,
after appropriate consultation with the Company and the Independent Construction
Consultant, is unable to approve a Disbursement Request in excess of $50,000 or
an amendment to the Construction Disbursement Budget where the aggregate amount
that is the subject of such amendment exceeds $50,000 due to the failure of the
Company to satisfy the conditions precedent thereto set forth herein, including,
without limitation, the condition precedent that the Independent Construction
Consultant, the General Contractor and/or the Architect (in each case after
appropriate consultation with the Company) deliver the respective certificates
required under this Agreement, and such failure continues for thirty (30) days.
9.3 Exception to Prior Disbursement. The Independent Construction
Consultant reports to the Disbursement Agent, the Trustee and the Company an
exception to a prior disbursement relating to the Riviera Black Hawk in excess
of $50,000 which is not remedied within ten (10) days.
9.4 Insufficient Funds. Any time that the amount of Available Funds is
less than the amount required in the Construction Disbursement Budget to cause
the Riviera Black Hawk to become Operating on or before the Operating Deadline,
and such deficiency continues for a period of thirty (30) days after notice of
such deficiency.
9.5 Performance of Certain Obligations. The Company shall fail to
perform, observe or comply with any of its obligations under Sections 10.1 (and
such failure continues for a period of five (5) days after notice thereof) or
10.2 of this Agreement.
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9.6 Failure to Deliver Collateral Documents. The failure of the Company
to deliver any documents as and when required by the Pledge Agreement and such
failure continues for a period of five (5) days.
9.7 Abandonment of Project.
(a) Except as and to the extent permitted under the Indenture, the
Company shall cease to own the Property and all parcels and subdivisions
comprising any portion thereof or located thereon or the buildings, fixtures and
other improvements to be situated on the Property for the purpose of owning,
constructing, maintaining and operating the Project in the manner contemplated
by the Operative Documents; or
(b) Except as and to the extent permitted under the Indenture, the
Company shall abandon the Riviera Black Hawk or otherwise cease to pursue the
operations of the Riviera Black Hawk in accordance with standard industry
practice or shall sell or otherwise dispose of its interest in the Riviera Black
Hawk.
9.8 Termination or Invalidity of Construction Documents. Any of the
Material Construction Documents shall have terminated, become invalid or
illegal, or otherwise ceased to be in full force and effect (except in
accordance with its terms upon completion of the respective work or delivery of
the respective materials); provided that with respect to any Material
Construction Document other than the Construction Contract and the Architect
Agreement, no Event of Default shall be deemed to have occurred as a result of
such termination so long as (a) the Company provides written notice to the
Independent Construction Consultant (immediately upon, but in no event more than
two (2) Business Days after, the Company's becoming aware of such Construction
Document's ceasing to be in full force or effect) that the Company intends to
replace such Construction Document (or that replacement is not necessary), and
(b) in each case if, in the reasonable judgment of the Independent Construction
Consultant, a replacement is necessary, the Company (i) obtains a replacement
obligor or obligors reasonably acceptable to the Independent Construction
Consultant) for the affected party and (ii) enters into a replacement
Construction Document in accordance with Section 8.3, on terms no less
beneficial to the Company and the Trustee than then current market terms, within
sixty (60) days of such termination.
9.9 Schedule of Operations. The Independent Construction Consultant, if
it becomes so aware, reasonably determines (based on its experience, familiarity
and review of the Riviera Black Hawk and the information and schedule provided
by the Company and the General Contractor) that the Riviera Black Hawk is likely
to first be Operating no earlier than sixty (60) days after the Operating
Deadline, which determination the Independent Construction Consultant may make
at any time after the date hereof.
10. Disbursed Funds Account.
10.1 Rights of the Company to Disbursed Funds Account. All amounts
disbursed from the Construction Disbursement Account shall either be paid
directly to a Person described in and pursuant to a Construction Disbursement
Request or to the Disbursed Funds Account. After the Final CDA Disbursement, all
amounts disbursed from the Completion Reserve Account pursuant to Section 7.5.3
of this Agreement shall either be paid directly to a Person described in and
pursuant to the respective Completion Reserve Disbursement Request or to the
Disbursed Funds Account. The Disbursed Funds Account shall be maintained in the
name of the Company and all funds deposited or held in such account shall belong
to the Company, against which the Company may draw for permitted expenditures
from time to time. All funds deposited and held in the Disbursed Funds Account
shall, pending disbursement in
23
accordance with this Agreement, be invested in cash or Government Securities as
directed by the Company, except as otherwise provided herein or in the Pledge
Agreement. Pursuant to the Pledge and Assignment Agreement, the Company has
granted to the Trustee (for the benefit of itself and the holders of the Notes)
a first priority security interest in its Disbursed Funds Account. Funds in the
Disbursed Funds Account shall be disbursed solely in accordance with the terms
and conditions of, and solely for the purposes permitted under, this Agreement
and the Indenture. Further, the Company shall note in its records that all funds
and other assets in the Disbursed Funds Account have been pledged to the
Trustee.
10.2 Right to Substitute Disbursed Funds Account. The Company from time
to time shall have the right to designate a substitute account to serve as the
Disbursed Funds Account; provided that no such substitute account shall become
the "Disbursed Funds Account" until (a) the depository financial institution at
which the substitute account is located shall have acknowledged in a manner
satisfactory to the Trustee that such institution has waived its right of set
off in such account or any liens thereto, statutory or otherwise, and will have
entered into an agreement substantially similar to a Pledge Agreement, and (b)
the Trustee shall have received notice of the location and account number of
such new substitute account.
11. Limitation of Liability.
11.1 Disbursement Agent's Limitation of Liability. The Disbursement
Agent's responsibility and liability under this Agreement shall be limited as
follows: (a) the Disbursement Agent does not represent, warrant or guaranty to
the Trustee or the holders of the Notes the performance of the Company, the
Independent Construction Consultant, the General Contractor, the Architect or
any contractor, subcontractor or provider of materials or services in connection
with construction of the Riviera Black Hawk; (b) the Disbursement Agent shall
have no responsibility to the Company, the Trustee or the holders of the Notes
as a consequence of performance by the Disbursement Agent hereunder, except for
any gross negligence or willful misconduct of the Disbursement Agent; (c) the
Company shall remain solely responsible for all aspects of its business and
conduct in connection with its Property and the Riviera Black Hawk, the accuracy
of all applications for payment, and the proper application of all
disbursements; (d) the Disbursement Agent is not obligated to supervise, inspect
or inform the Company, the Trustee or any third party of any aspect of the
construction of the Riviera Black Hawk or any other matter referred to above;
and (e) the Disbursement Agent owes no duty of care to the Company, to protect
against, or to inform the Company of, any negligent, faulty, inadequate or
defective design or construction of the Riviera Black Hawk or otherwise. The
Disbursement Agent shall have no duties or obligations hereunder, except as
expressly set forth herein, shall be responsible only for the performance of
such duties and obligations, shall not be required to take any action otherwise
than in accordance with the terms hereof and shall not be in any manner liable
or responsible for any loss or damage arising by reason of any act or omission
to act by it hereunder or in connection with any of the transactions
contemplated hereby, including, but not limited to, any loss that may occur by
reason of forgery, false representations, the exercise of its discretion, or any
other reason, except for its gross negligence or willful misconduct.
11.2 Independent Construction Consultant's Limitation of Liability. The
Independent Construction Consultant's responsibility and liability under this
Agreement shall be limited as follows: (a) the Independent Construction
Consultant does not represent, warrant or guaranty to the Trustee or the holders
of the Notes the performance of the Company, the Disbursement Agent, the General
Contractor, the Architect or any contractor, subcontractor or provider of
materials or services in connection with construction of the Riviera Black Hawk;
(b) except to the extent the Independent Construction Consultant has actual
knowledge, the Independent Construction Consultant shall not be responsible for,
and shall not be obligated to make any specific inquiry with respect to, matters
pertaining to: historical architecture review, Gaming Authorities, Gaming
Licenses, Liens against the Riviera Black Hawk (except in connection
24
with the responsibilities of the Independent Construction Consultant set forth
herein), and whether the Riviera Black Hawk is in a condition to receive
customers in the ordinary course of business; (c) in connection with a request
for disbursement to pay Soft Costs, the Independent Construction Consultant
shall only be responsible for certifying that there is adequate availability in
the applicable line item under the Construction Disbursement Budget with respect
to such Soft Cost Disbursement Request and the other certifications contained in
the Certificate of Independent Construction Consultant for Disbursement Request
for Construction Expenses, substantially as set forth in Exhibit 1 to Exhibit
E-1 attached hereto; and (d) the Company shall remain solely responsible for all
aspects of its business and conduct in connection with its Property and the
Riviera Black Hawk, the accuracy of all applications for payment, and the proper
application of all disbursements. The Independent Construction Consultant shall
have no duties or obligations hereunder, except as expressly set forth herein,
shall be responsible only for the performance of such duties and obligations,
shall not be required to take any action otherwise than in accordance with the
terms hereof and shall not be in any manner liable or responsible for any loss
or damage arising by reason of any act or omission to act by it hereunder or in
connection with any of the transactions contemplated hereby, including, but not
limited to, any loss that may occur by reason of forgery, false representations,
the exercise of its discretion, or any other reason, except for its gross
negligence or willful misconduct. The Independent Construction Consultant shall
have the right to rely (so long as such reliance is reasonable and in good
faith) on certificates received from the Company, the Architect and the General
Contractor. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Independent Construction Consultant be liable to any party
hereto for any form of special, indirect or consequential damages, including,
without limitation, damages for economic loss (such as business interruption or
loss of profits, however the same may be caused).
12. Indemnity and Insurance.
12.1 Indemnity. The Company indemnifies, protects, holds harmless and
agrees to defend each of the Independent Construction Consultant and the
Disbursement Agent and each of their respective officers, directors, agents and
employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including defense costs, investigative fees and costs,
legal fees, and claims for damages, arising from the performance by the
Independent Construction Consultant or the Disbursement Agent, as applicable,
under this Agreement, except to the extent that such liability, expense or claim
is attributable to the gross negligence or willful misconduct of the Independent
Construction Consultant or the Disbursement Agent, as applicable.
12.2. Insurance. The Disbursement Agent, at its sole cost and expense,
shall purchase and maintain throughout the term of this Agreement, the following
insurance policies:
(a) Comprehensive general liability insurance, with minimum limits
of Two Million Dollars ($2,000,000) combined single limit per occurrence,
covering all property damage arising out of its operation under this Agreement.
(b) Workers' compensation insurance covering all of its employees
and volunteers.
Said policies shall provide for thirty (30) days' prior written notice to the
Trustee and the Company of cancellation or material change. If any of such
insurance is written on a claims made form, following termination of this
Agreement, coverage shall survive for the maximum reporting period available at
each anniversary date of such insurance, or not less than five (5) years,
whichever is greater. The limits of coverage required under subparagraph (a)
above shall not in any way limit the liability of the Company under this
Agreement.
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13. Termination. This Agreement shall terminate automatically thirty (30) days
following such time as all amounts in the Accounts have been distributed
pursuant to and in accordance with the terms hereof and the Riviera Black Hawk
is Operating; provided, however, that (a) the obligations of the Company under
Section 12 of this Agreement shall survive termination of this Agreement and (b)
if, following an Event of Loss, there exist Net Loss Proceeds that (in
accordance with the Indenture) are deliverable to the Trustee and are eligible
for distribution to the Company for rebuilding, repair, replacement or
construction, then the Company, the Disbursement Agent and the Independent
Construction Consultant shall execute and deliver to the Trustee such
documentation as the Trustee reasonably deems appropriate in order to cause (i)
the Trustee to possess a first priority perfected security interest in said
funds, and (ii) the Disbursement Agent and the Independent Construction
Contractor to administer the disbursement of said funds for such rebuilding,
repair, replacement or construction pursuant to disbursement control procedures
substantially akin to those set forth herein. In the event that the Net Loss
Proceeds are so distributed, the Disbursement Agent shall be paid a sum not to
exceed $1,000.00 per month until all such funds are disbursed.
14. Substitution or Resignation.
14.1 The Trustee shall have the right, upon the expiration of thirty
(30) days following delivery of written notice of substitution to the
Disbursement Agent, the Independent Construction Consultant, and the Company, to
cause the Disbursement Agent to be relieved of its duties hereunder and to
select a substitute disbursement agent to serve hereunder. The Disbursement
Agent may resign at any time upon thirty (30) days' written notice to all
parties hereto. Such resignation shall take effect upon receipt by the
Disbursement Agent of an instrument of acceptance executed by a successor
disbursement agent and consented to by the other parties hereto. Upon selection
of such substitute disbursement agent, the Trustee, the Company (so long as
there is no Default or Event of Default) and the substitute disbursement agent
shall enter into an agreement substantially identical to this Agreement and,
thereafter, the Disbursement Agent shall be relieved of its duties and
obligations to perform hereunder, except that at the Company's expense the
Disbursement Agent shall transfer to the substitute disbursement agent upon
request therefor originals of all books, records, and other documents in the
Disbursement Agent's possession relating to this Agreement. The Independent
Construction Consultant acknowledges and agrees that the Trustee and the Company
(so long as there is no Default or Event of Default) shall have the right to
change the party acting as the "Disbursement Agent" pursuant to this Agreement,
and the Trustee and the Company agree to provide written notice to the
Independent Construction Consultant of any such change.
14.2 The Trustee shall have the right, upon the expiration of thirty
(30) days following delivery of written notice of substitution to the
Disbursement Agent, the Independent Construction Consultant, and the Trustee, to
cause the Independent Construction Consultant to be relieved of its duties
hereunder and to select a substitute independent construction consultant to
serve hereunder. The Independent Construction Consultant may resign at any time
upon thirty (30) days' written notice to all parties hereto. Such resignation
shall take effect upon receipt by the Independent Construction Consultant of an
instrument of acceptance executed by a successor independent construction
consultant and consented to by the other parties hereto. Upon selection of such
substitute independent construction consultant, the Trustee, the Disbursement
Agent and the substitute independent construction consultant shall enter into a
side letter wherein the substitute independent construction consultant agrees to
perform the duties of the independent construction consultant pursuant to the
terms hereof and for the benefit of the Trustee and the holders of the Notes
and, thereafter, the Independent Construction Consultant shall be relieved of
its duties and obligations to perform hereunder, except that the Independent
Construction Consultant shall transfer to the substitute independent
construction consultant upon request therefor originals of all books, records,
and other documents in the Independent Construction Consultant's possession
relating to this Agreement. The substitute independent construction consultant
selected by the Trustee shall be recognized nationally or in
26
Colorado as an expert in connection with the oversight of construction practices
and construction disbursement procedures for construction projects of similar
size and scope. The Disbursement Agent and the Company acknowledge and agree
that the Trustee shall have the right to change the party acting as the
"Independent Construction Consultant" pursuant to this Agreement, and the
Trustee agrees to provide written notice to the Disbursement Agent and the
Company of any such change.
15. Account Statement. Upon the request of the Trustee, the Company or the
Independent Construction Consultant, the Disbursement Agent shall deliver to the
Company, the Independent Construction Consultant and Trustee a statement
prepared by the Disbursement Agent in a form reasonably satisfactory to the
Independent Construction Consultant, the Trustee and the Company, setting forth
with reasonable particularity the balance of funds then in the Interest Reserve
Account, the Completion Reserve Account, the Construction Disbursement Account
and/or the Disbursed Funds Account and the manner in which such funds are
invested; provided, however, that the Disbursement Agent shall not be required
to provide such statements more often than weekly.
16. Notice. The parties hereto irrevocably instruct the Disbursement Agent that
on the first date upon which the balance in any of the Completion Reserve
Account and/or the Construction Disbursement Account is reduced to zero, the
Disbursement Agent shall deliver to the Trustee, the Independent Construction
Consultant and the Company a notice that the balance in such account(s) has been
reduced to zero.
17. Miscellaneous.
17.1 Waiver. Any party hereto may specifically waive any breach of this
Agreement by any other party, but no such waiver shall be deemed to have been
given unless such waiver is in writing, signed by the waiving party and
specifically designates the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
17.2 Invalidity. If, for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
17.3 No Authority. Neither the Disbursement Agent nor the Independent
Construction Consultant shall have any authority to, and neither shall, make any
warranty or representation or incur any obligation on behalf of, or in the name
of, the Trustee.
17.4 Assignment. This Agreement is personal to the parties hereto, and
the rights and duties of any party hereunder shall not be assignable except with
the prior written consent of the other parties. In any event, this Agreement
shall inure to and be binding upon the parties and their successors and
permitted assigns.
17.5 Benefit. The parties hereto, the holders from time to time of the
Notes, and their respective successors and assigns, but no others, shall be
bound hereby and entitled to the benefits hereof.
17.6 Time. Time is of the essence of each provision of this Agreement.
27
17.7 Choice of Law. The existence, validity, construction, operation
and effect of any and all terms and provisions of this Agreement shall be
determined in accordance with and governed by the substantive laws of the State
of New York, without giving effect to its conflicts of law principles.
17.8 Entire Agreement; Amendments. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any and all prior agreements, understandings and commitments, whether
oral or written. This Agreement may be amended only by a writing signed by duly
authorized representatives of all parties.
17.9 Notices. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed to have been duly given and received, regardless of when and whether
received, either (a) on the day of hand delivery; (b) on the date of
confirmation of receipt of electronic facsimile transmission; or (c) on the
third day after sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as follows:
To the Disbursement Agent:
IBJ Whitehall Bank & Trust Company
One State Street
New York, New York, 10004
Attention: Thomas S. Moser
Telecopier No.: 212-858-2956
To the Trustee:
IBJ Whitehall Bank & Trust Company
One State Street
New York, New York 10004
Attention: Thomas S. Moser
Telecopier No.: 212-858-2956
To the Company:
Riviera Black Hawk, Inc.
c/o Riviera Holdings Corp.
2901 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: President
Telecopier No.: 702-794-9277
To the Independent Construction Consultant:
CRSS Constructors, Inc.
1670 Broadway, Suite 3200
Denver, Colorado 80202
Attention: Richter J. Schneider
Telecopier No.: 303-830-6887
or at such other address as the specified entity most recently may have
designated in writing in accordance with this paragraph to the others. Any
notice to the Disbursement Agent or the Trustee under this Agreement shall be
deemed effective only upon receipt.
28
17.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
17.11 Captions. Captions in this Agreement are for convenience only and
shall not be considered or referred to in resolving questions of interpretation
of this Agreement.
17.12 Arbitration. (a) Any disagreement with respect to the release of
funds from the Completion Reserve Account or the Construction Disbursement
Account, or any related disagreement with respect to the construction, meaning
or effect of this Agreement, or any other controversy between the parties hereto
arising out of this Agreement or concerning the rights or obligations of the
parties hereunder (including matters relating to any certificates required to be
delivered under this Agreement) shall be submitted to arbitration, one
arbitrator to be chosen by the Company, one by the Trustee, and a third to be
chosen by the first two arbitrators before they enter into arbitration. The
arbitrators shall be impartial and shall be active or retired persons with
experience in construction, development and /or construction lending.
(b) In the event that either party should fail to choose an
arbitrator within fifteen (15) days following a written request by the other
party to enter into arbitration, the requesting party may choose two arbitrators
who shall, in turn, choose the third arbitrator. If the first two arbitrators
have not chosen a third arbitrator at the end of fifteen (15) days following the
last day of the selection of the first two arbitrators, each of the first two
arbitrators shall name three candidates, of whom the other arbitrator shall
eliminate two, and the determination of the third arbitrator shall be made from
the remaining two candidates by drawing lots. Each party shall present its case
to the arbitrators within fifteen (15) days following the date of the
appointment of the third arbitrator. The decision of a majority of the three
arbitrators shall be final and binding upon both parties. Judgment may be
entered upon the arbitration award in any court having jurisdiction. Any such
arbitration shall take place in New York, unless some other location is mutually
agreed upon by the parties. The arbitrators shall resolve any dispute arising
hereunder in a manner consistent with the intent of the parties as expressed in
this Agreement. The arbitrators shall not award any punitive, consequential or
exemplary damages or any amount in excess of the amount to be released from the
relevant Account.
(c) The parties shall use their best efforts to resolve the
dispute as soon as practicable and to comply, if available, with the fast track
procedures specified in the American Arbitration Association's Construction
Industry Arbitration Rules. Judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof.
(d) Notwithstanding any provisions contained herein to the
contrary, the provisions contained in this Section shall not prohibit the
Trustee from exercising any of its rights or remedies set forth in the
Indenture, the Notes or the other Collateral Documents.
29
IN WITNESS WHEREOF, the parties have executed and delivered this Cash
Collateral and Disbursement Agreement as of the day first above written.
DISBURSEMENT AGENT IBJ WHITEHALL BANK & TRUST COMPANY
By:
--------------------------------
Name:
-----------------------------
Title:
-----------------------------
TRUSTEE IBJ WHITEHALL BANK & TRUST COMPANY
By:
--------------------------------
Name:
-----------------------------
Title:
-----------------------------
INDEPENDENT CONSTRUCTION CRSS CONSTRUCTORS, INC.
CONSULTANT
By:
--------------------------------
Name:
-----------------------------
Title:
-----------------------------
COMPANY RIVIERA BLACK HAWK, INC.
By:
--------------------------------
Name:
-----------------------------
Title:
-----------------------------
[Signature Page to Cash Collateral and Disbursement Agreement]
IBJ Whitehall Bank & Trust Company, acting in its capacity as Securities
Intermediary under (and as defined in) the Pledge and Assignment Agreement,
hereby acknowledges its agreement to be bound by the provisions set forth in
Section 2.4 of this Agreement to the extent any written direction of the
Disbursement Agent delivered to the Securities Intermediary pursuant thereto is
not inconsistent with any written direction of the Trustee delivered to the
Securities Intermediary pursuant to the Pledge and Assignment Agreement.
IBJ WHITEHALL BANK & TRUST COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
[Signature Page to Cash Collateral and Disbursement Agreement]
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT A
Form of Initial Disbursements Certificate
June 3, 1999
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
IBJ Whitehall Bank & Trust Company,
as Trustee
One State Street,
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Riviera Black Hawk, Inc., a Colorado corporation
Cash Collateral and Disbursement Agreement
Initial Disbursements
------------------------------------------------
Ladies and Gentlemen:
This Initial Disbursements Certificate is delivered to you pursuant to
that certain Cash Collateral and Disbursement Agreement dated as of June 3, 1999
(the "Disbursement Agreement"), by and among IBJ Whitehall Bank & Trust Company,
a New York banking association, as Disbursement Agent, IBJ Whitehall Bank &
Trust Company, a New York banking association, as Trustee, CRSS Constructors,
Inc., a Delaware corporation, as Independent Construction Consultant, and
Riviera Black Hawk, Inc., a Colorado corporation, as issuer (the "Company").
Capitalized terms used and not otherwise defined herein shall have the meanings
given in the Disbursement Agreement.
A-1
The Company hereby irrevocably instructs the Disbursement Agent to
disburse funds from the Construction Disbursement Account to the Disbursed Funds
Account or the accounts otherwise indicated for the amounts set forth on
Schedule A attached hereto.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:
--------------------------------
Name:
-----------------------------
Title:
-----------------------------
A-2
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE A
Initial Disbursements
To Riviera Black Hawk, Inc.
for Working Capital Loan Draw #1 $ 500,000
Riviera Holdings Corporation
Bank of America Account for Title Indemnity $5,000,000
Riviera Holdings Corporation
Bank of America Account
for return of loans in
excess of $20 million equity $5,121,526
A-3
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT B-1
Form of Company's Closing Certificate
June 3, 1999
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street,
New York, New York 10004
IBJ Whitehall Bank & Trust Company
as Trustee
One State Street,
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Riviera Black Hawk, Inc., a Colorado corporation
Cash Collateral and Disbursement Agreement
Company's Closing Certificate
Ladies and Gentlemen:
This Closing Certificate is delivered to you pursuant to that certain
Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), by and among IBJ Whitehall Bank & Trust Company, a New York banking
association, as Disbursement Agent, IBJ Whitehall Bank & Trust Company, a New
York banking association, as Trustee, CRSS Constructors, Inc., a Delaware
corporation, as Independent Construction Consultant, and Riviera Black Hawk,
Inc., a Colorado corporation, as issuer (the "Company"). Capitalized terms used
and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement.
The Company hereby certifies to each of you as follows:
1. As of the date hereof, the Company reasonably believes that the date
on which the Riviera Black Hawk will become Operating will occur on or prior to
the Operating Deadline.
2. The Initial Construction Disbursement Budget attached hereto as
Exhibit 1 constitutes the Construction Disbursement Budget presently in effect
for the Riviera Black Hawk.
B-1
3. The Initial Construction Disbursement Budget accurately and
completely sets forth (i) the anticipated Construction Expenses through the date
that the Riviera Black Hawk is Operating and (ii) the various components of the
Riviera Black Hawk identified thereon as line items, all within the respective
line item amounts listed.
4. As of the date hereof, there are sufficient Available Funds to pay
for (i) the anticipated costs described in paragraph 3 above in accordance with
the Disbursement Agreement and (ii) any other expenses that the Company believes
will need to be incurred in order to cause the Riviera Black Hawk to be
Operating on or before its Operating Deadline (in each case after giving effect
to the Initial Disbursements and excluding interest to be paid on each of the
Interest Payment Dates).
5. Immediately prior to and upon giving effect to the Initial
Disbursements, there is no and will not be any Default or Event of Default.
6. Attached hereto as Exhibit 2 is (i) a list of all contractors,
subcontractors, suppliers and materialmen that have provided work, supplies
and/or labor in connection with the Riviera Black Hawk to date, (ii) a list of
all contractors, subcontractors, suppliers and materialmen that have provided
work, supplies and/or labor in connection with the Riviera Black Hawk that will
receive payment pursuant to the Initial Disbursements Certificate, and (iii)
lien releases (unconditional if such contractors, subcontractors, suppliers and
materialmen have been paid to date and conditional if such contractors,
subcontractors, suppliers and materialmen have not been paid to date) from all
such contractors, subcontractors, suppliers and materialmen described in clause
(ii) (except as to Retainage Amounts and such amounts as the Independent
Construction Consultant determines to have been reasonably withheld) for all
disbursements identified in the Initial Disbursements Certificate. All work
performed and materials delivered to date with respect to the Riviera Black Hawk
which could result in a lien against the Property have been previously paid by
the Company or will be timely paid with the proceeds of the Initial
Disbursements (in each case subject to withheld Retainage Amounts), and no lien,
notice of lien, or notice of extension of time for filing of lien has been filed
against the Property in favor of any contractor, subcontractor, supplier or
materialman which has not been removed of record prior to the date hereof.
7. The Company is not and, to the Company's knowledge, no other party
to any Operative Document (other than any Construction Document not in existence
as of the Issuance Date) or any Property Document is, or (but for the passage of
time or the giving of notice or both) will be, in breach of any material
obligation thereunder.
8. With respect to the Shoring and Tie Back Easement, based on the
present placement of the shoring and tie-backs for the Riviera Black Hawk
covered by such easement, if the City of Black Hawk were to excavate for access
to existing utilities in Main Street, Black Hawk, as permitted under the Shoring
and Tie-Back Easement Agreement, such excavation would have no impact on the
improvements constituting the Riviera Black Hawk but would only limit vehicle
access to the building for delivery of materials. It is currently anticipated
that the General Contractor will follow normal de-tensioning of the tie-backs
and the related piles and lagging will be removed below grade in accordance with
the Shoring and Tie Back Easement and the construction schedule for the Riviera
Black Hawk.
9. Each representation and warranty of (a) the Company and its
Affiliates set forth in the Disbursement Agreement or in any of the other
Operative Documents, or in any certificates delivered in connection with any of
the foregoing, is true, correct and complete in all material respects as if made
on the date hereof (except that any representation and warranty that relates
expressly to an earlier date shall be deemed made only as of such earlier date),
and (b) to the Company's knowledge, the General Contractor,
B-2
the Architect and each other party (other than the Company or its Affiliates) to
a Material Construction Document set forth in any of the Operative Documents is
true, correct and complete in all material respects as if made on the date
hereof (except that any representation and warranty that relates expressly to an
earlier date shall be deemed made only as of such earlier date).
10. As of the date hereof, the estimated date on which the Riviera
Black Hawk will become Operating is on or prior to May 31, 2000.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Initial Disbursements.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
B-3
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 to EXHIBIT B-1
Initial Construction Disbursement Budget for Riviera Black Hawk
CONSTRUCTION DISBURSEMENT BUDGET
See Attached.
B-4
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 2 to EXHIBIT B-1
Mechanic's Liens for Riviera Black Hawk
(i)
List of contractors, subcontractors, suppliers and materialmen
that have provided work, supplies and/or labor to date
See attached.
(ii)
List of contractors, subcontractors, suppliers and materialmen
to receive payment pursuant to the Initial Disbursements Certificate
None.
(iii)
Lien releases for parties identified in (ii)
None.
B-5
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 3 to EXHIBIT B-1
General Contractor's Closing Certification
June 3, 1999
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
IBJ Whitehall Bank & Trust Company,
as Trustee
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Riviera Black Hawk, Inc., a Colorado corporation (the "Company")
Cash Collateral and Disbursement Agreement
General Contractor's Closing Certificate
Ladies and Gentlemen:
The undersigned (the "General Contractor") hereby certifies to each of
you as follows:
1. The General Contractor has reviewed the above referenced Closing
Certification from the Company and the Cash Collateral and Disbursement
Agreement dated June 3, 1999, to which the Company is a party (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to the extent necessary to understand the defined terms contained
herein and in the Company's Closing Certificate that are incorporated by
reference from the Disbursement Agreement, and to provide the certification
contained herein. Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
2. The General Contractor hereby certifies and confirms the accuracy of
the certifications in paragraphs 1, 2 and 3 of the above-referenced Closing
Certificate as if made by and on behalf of the General Contractor directly;
provided that the General Contractor makes no certification or confirmation
relating to the status of Gaming Licenses or compliance with Gaming Laws with
respect to whether the Riviera Black Hawk will be Operating on or prior to the
Operating Deadline.
3. The General Contractor hereby certifies that, to the best of its
knowledge, the work comprising the Riviera Black Hawk as described in the
Construction Contract may be completed in accordance with the line item
breakdown in the Initial Construction Disbursement Budget identified in the
Company's Closing Certificate, taking into consideration the possible allocation
of Realized Savings and other Available Funds in accordance with the
Disbursement Agreement.
B-6
4. The General Contractor is not and, to the best of the General
Contractor's knowledge, no other party to any Construction Document in existence
as of the date hereof is, or (but for the passage of time or the giving of
notice or both) will be, in breach of any material obligation thereunder.
5. The General Contractor hereby certifies that the dewatering wells
constructed in connection with the Riviera Black Hawk pursuant to that certain
Non-Exclusive Dewatering Well Easement Agreement dated as of May 1, 1998 (the
"Dewatering Easement") by and among the City of Black Hawk, Colorado, the
Company and Isle of Capri Black Hawk, LLC, and recorded in Gilpin County Records
at Reception No. 627998 in Book 642, page 372, have been abandoned and are no
longer in use in connection with the Riviera Black Hawk, and the pumps from the
well casing and the piping, controls and wiring from well to well have been
removed prior to the date hereof. The General Contractor acknowledges that the
well casings have not yet been removed but confirms that such well casings shall
be removed in accordance with the requirements of the Dewatering Easement.
6. With respect to the Shoring and Tie Back Easement, the General
Contractor confirms that it will follow normal de-tensioning of the tie-backs
covered by such easement, and the related piles and lagging will be removed
below grade in accordance with the Shoring and Tie Back Easement and the
construction schedule for the Riviera Black Hawk.
The foregoing representations, warranties and certifications are true
and correct and each of you is entitled to rely on the foregoing in connection
with the Initial Disbursements.
THE WEITZ COMPANY, INC.,
as General Contractor
By:--------------------------
Name:------------------------
Title:-----------------------
B-7
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 4 to EXHIBIT B-1
Architect's Closing Certification
June 3, 1999
IBJ Whitehall Bank & Trust Company
as Disbursement Agent
One State Street
New York, New York 10004
IBJ Whitehall Bank & Trust Company
as Trustee
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Riviera Black Hawk, Inc., a Colorado corporation (the "Company")
Cash Collateral and Disbursement Agreement
Architect's Closing Certificate
Ladies and Gentlemen:
The undersigned (the "Architect") hereby certifies to each of you as
follows:
1. The Architect has reviewed the above referenced Closing
Certification from the Company and the Cash Collateral and Disbursement
Agreement dated June 3, 1999, to which the Company is a party (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to the extent necessary to understand the defined terms contained
herein and in the Company's Closing Certificate that are incorporated by
reference from the Disbursement Agreement, and to provide the certification
contained herein. Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
2. The Architect hereby certifies that, to the best of its knowledge
and belief, based on its limited visual observation and the information provided
to the Architect, the construction to date is substantially in compliance with
the intent of the Plans as prepared by the Architect.
3. The Architect hereby certifies that the current Plans for the
Riviera Black Hawk comport with the Subdivision Agreement with respect to the
setback and sidewalk requirements set forth therein applicable to the Riviera
Black Hawk.
B-8
The foregoing representations, warranties and certifications are true
and correct and each of you is entitled to rely on the foregoing in connection
with the Initial Disbursements.
MELICK ASSOCIATES, INC.,
as Architect
By:--------------------------
Name:------------------------
Title:-----------------------
B-9
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT B-2
Form of Independent Construction Consultant's Closing Certification
June 3, 1999
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York, 10004
IBJ Whitehall Bank & Trust Company,
as Trustee
One State Street
New York, New York, 10004
Re: Riviera Black Hawk, Inc., a Colorado corporation
Cash Collateral and Disbursement Agreement
Independent Construction Consultant's Closing Certification
Ladies and Gentlemen:
This Closing Certification is delivered to you pursuant to that certain
Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), by and among IBJ Whitehall Bank & Trust Company, a New York banking
association, as Disbursement Agent, IBJ Whitehall Bank & Trust Company, a New
York banking association, as Trustee, CRSS Constructors, Inc., a Delaware
corporation, as Independent Construction Consultant, and Riviera Black Hawk,
Inc., a Colorado corporation (the "Company"). Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement.
The Independent Construction Consultant hereby certifies to each of you
as follows as contemplated by the Disbursement Agreement:
1. The Independent Construction Consultant has received certified
copies of all Plans and Contracts applicable to the construction of the Riviera
Black Hawk and described on Schedule A hereto and, in the Independent
Construction Consultant's professional opinion, such Plans and Contracts will
permit the Riviera Black Hawk to be substantially completed in all material
respects in accordance therewith on or prior to the Operating Deadline.
B-10
2. The Initial Construction Disbursement Budget accurately sets forth
the anticipated costs of constructing the Riviera Black Hawk so that the Riviera
Black Hawk is substantially completed in all material respects in accordance
therewith and with the Plans and Contracts prior to the Operating Deadline.
3. The Independent Construction Consultant has received (a) an executed
Initial Disbursements Certificate in the form attached to the Disbursement
Agreement as Exhibit A, together with all attachments thereto, and (b) an
executed Company's Closing Certificate in the form attached to the Disbursement
Agreement as Exhibit B-1, together with all attachments thereto.
4. The Independent Construction Consultant has reviewed the Initial
Disbursements Certificate and the Company's Closing Certificate and the
Independent Construction Consultant has no actual knowledge that the
certifications set forth in such certificates are not true, correct and complete
in all material respects; provided that the Independent Construction Consultant
makes no certification or confirmation relating to the status of Gaming Licenses
or compliance with Gaming Laws with respect to whether the Riviera Black Hawk
will be Operating on or prior to the Operating Deadline.
5. [For Hard Costs Only With Respect to the Initial Disbursements:] The
Independent Construction Consultant has received duly executed conditional or
unconditional (as applicable) lien releases from all contractors,
subcontractors, suppliers and materialmen having provided work, materials and/or
services constituting completed construction or stored materials relating to the
Riviera Black Hawk (except as to Retainage Amounts and such amounts as the
Independent Construction Consultant determines to have been reasonably withheld)
for all disbursements identified on the Initial Disbursements Certificate.
6. The Independent Construction Consultant has reviewed the duly
executed acknowledgments of payment and unconditional lien releases from all
contractors, subcontractors, suppliers and materialmen having provided work,
materials and/or services constituting completed construction or stored
materials relating to the Riviera Black Hawk (except as to Retainage Amounts and
such amounts as the Independent Construction Consultant determines to have been
reasonably withheld), separately provided by the Company prior to the date
hereof (other than those relating to payments to be made with the Initial
Disbursements, if any), which releases are in form and substance reasonably
satisfactory to the Independent Construction Consultant and are in accordance
with payments for construction of the Riviera Black Hawk prior to the date
hereof.
7. In the Independent Construction Consultant's professional opinion,
the construction performed as of the date hereof is in accordance with the Plans
and the payments made therefor prior to the date hereof, together with the
Initial Disbursements (if any) to be made for work, supplies and/or labor
provided in connection with the Riviera Black Hawk to date, are appropriate in
light of the percentage of construction completed and the amount of stored
materials and/or invoices submitted, as applicable. Further, all disbursements
under the Initial Disbursements that are for Hard Costs have been incurred for
work consistent with the Plans.
8. The Independent Construction Consultant has reviewed all payments
made prior to the date hereof for work, supplies and/or labor provided in
connection with the Riviera Black Hawk to contractors, subcontractors, suppliers
and materialmen and compared the invoices or other documentation supporting such
payments with the respective Construction Disbursement Budget category and
confirms that the total payments to date in such category do not exceed the
budgeted amount for such category.
B-11
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Initial Disbursements.
CRSS Constructors, Inc.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
B-12
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE A TO EXHIBIT B-2
List of Plans and Contracts
See attached.
B-13
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT B-3
Form of Disbursement Agent's Closing Certification
June 3, 1999
IBJ Whitehall Bank & Trust Company,
as Trustee
One State Street
New York, New York, 10004
Re: Riviera Black Hawk, Inc., a Colorado corporation
Cash Collateral and Disbursement Agreement
Disbursement Agent's Closing Certification
Ladies and Gentlemen:
This Closing Certification is delivered to you pursuant to that certain
Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), by and among IBJ Whitehall Bank & Trust Company, a New York banking
association, as Disbursement Agent, IBJ Whitehall Bank & Trust Company, a New
York banking association, as Trustee, CRSS Constructors, Inc., as Independent
Construction Consultant, a Delaware corporation, and Riviera Black Hawk, Inc., a
Colorado corporation, (the "Company"). Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.
The Disbursement Agent hereby certifies to you as follows as
contemplated by the Disbursement Agreement:
1. The Accounts and the Disbursed Funds Account have been established
as contemplated by the Disbursement Agreement.
2. The Disbursement Agent has reviewed (a) an executed Initial
Disbursements Certificate from the Company in the form attached to the
Disbursement Agreement as Exhibit A, (b) an executed Closing Certificate from
the Company in the form attached to the Disbursement Agreement as Exhibit B-1,
(c) an executed Closing Certificate from the Independent Construction Consultant
in the form attached to the Disbursement Agreement as Exhibit B-2, and (d) an
executed Closing Certificate from the Trustee in the form attached to the
Disbursement Agreement as Exhibit B-4, in each case with any exhibits attached
and executed (as applicable) by the parties thereto.
B-14
The foregoing representations, warranties and certifications are true,
complete and correct and you are entitled to rely on the foregoing in connection
with the Initial Disbursements.
IBJ WHITEHALL BANK & TRUST COMPANY,
as Disbursement Agent
By:--------------------------
Name:------------------------
Title:-----------------------
B-15
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT B-4
Form of Trustee's Closing Certification
June 3, 1999
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Riviera Black Hawk, Inc., a Colorado corporation
Cash Collateral and Disbursement Agreement
Trustee's Closing Certification
Ladies and Gentlemen:
This Closing Certification is delivered to you pursuant to that certain
Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), by and among IBJ Whitehall Bank & Trust Company, a New York banking
association, as Disbursement Agent, IBJ Whitehall Bank & Trust Company, a New
York banking association, as Trustee, CRSS Constructors, Inc., a Delaware
corporation, as Independent Construction Consultant, and Riviera Black Hawk,
Inc., a Colorado corporation, as an issuer (the "Company"). Capitalized terms
used and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement.
The Trustee hereby certifies to you as follows as contemplated by the
above-referenced Disbursement Agreement:
1. The Trustee has received (a) an executed Initial Disbursements
Certificate from the Company in the form attached to the Disbursement Agreement
as Exhibit A, (b) an executed Closing Certification from the Company in the form
attached to the Disbursement Agreement as Exhibit B-1 and (c) an executed
Closing Certification from the Disbursement Agent in the form attached to the
Disbursement Agreement as Exhibit B-3, in each case with all exhibits and
attachments attached and executed (as applicable) by the parties thereto.
2. The Trustee has received from the Title Insurer the Title Policy, or
a pro forma of the Title Policy with a letter agreement from the Title Insurer
agreeing to issue title in the form of such pro forma.
B-16
The foregoing representations, warranties and certifications are true,
complete and correct and you are entitled to rely on the foregoing in connection
with the Initial Disbursements.
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By:--------------------------
Name:------------------------
Title:-----------------------
B-17
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT C
Form of Interest Disbursement Request
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
IBJ Whitehall Bank & Trust Company,
as Trustee
One State Street
New York, New York 10004
Re: Riviera Black Hawk, Inc., a Colorado corporation
Cash Collateral and Disbursement Agreement
Interest Disbursement Request
Date: ----------------1
Ladies and Gentlemen:
This Interest Disbursement Request is delivered to you pursuant to that
certain Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), among IBJ Whitehall Bank & Trust Company, a New York banking
association, as Disbursement Agent, IBJ Whitehall Bank & Trust Company, a New
York banking association, as Trustee, CRSS Constructors, Inc., a Delaware
corporation, as Independent Construction Consultant, and Riviera Black Hawk,
Inc., a Colorado corporation, (the "Company"). Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement.
Pursuant to Sections 4.1 and 5.1 of the Disbursement Agreement, the
Disbursement Agent is hereby directed to liquidate Government Securities (to the
extent required) in the Interest Reserve Account and to pay to the Trustee on
_____________ (the "Interest Payment Date") $_____________ of funds from the
Interest Reserve Account. The undersigned hereby certifies that payments in an
amount equal to such sums will be due and payable on the Notes on the Interest
Payment Date.
- -----------------
1 To be delivered no less than ten (10) days prior to the respective Interest
Payment Date.
C-1
Please confirm the transfer described above by returning a notice of
confirmation to the undersigned at the address set forth above.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
[address for purposes of notice of confirmation]
C-2
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT D-1
Form of Completion Reserve Disbursement Request and Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Completion Reserve Disbursement Request No. _____________ under
Cash Collateral and Disbursement Agreement
Amount Requested: $
Ladies and Gentlemen:
Riviera Black Hawk, Inc., a Colorado corporation (the "Company"),
hereby submits this Completion Reserve Disbursement Request and Certificate
(this "Request") pursuant to that certain Cash Collateral and Disbursement
Agreement dated as of June 3, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Disbursement Agreement"), to which you are a
party. Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.
The Company hereby requests that you, in your capacity under the
Disbursement Agreement, disburse $___________________ (the "Disbursement") from
the Completion Reserve Account to the Construction Disbursement Account to
permit the Company to use the funds so disbursed to complete the construction of
the Riviera Black Hawk so that it may be Operating prior to the Operating
Deadline and/or to commence or continue operations thereof.
In connection with the requested Disbursement, the Company represents,
warrants and certifies as follows:
1. The funds disbursed pursuant to this requested Disbursement will be
used in accordance with the terms of the Indenture, the Disbursement Agreement
and the other Collateral Documents.
2. [For Disbursements Prior to Operating:] The funds disbursed pursuant
to this Request shall be used, upon disbursement from the Construction
Disbursement Account, solely for the payment of approved Hard Costs and Soft
Costs (as applicable) relating to the design, development, engineering,
construction, installation, completion of construction and commencement of
operations of the Riviera Black Hawk, and such funds are reasonably necessary to
permit completion of construction and commencement of operations of the Riviera
Black Hawk in accordance with the Final Plans so that it may be Operating on or
prior to the Operating Deadline.
3. [For Post-Operating Disbursements Prior To And Including The Final
CDA Disbursement:] The Riviera Black Hawk has previously commenced Operating.
The funds disbursed
D-1
pursuant to this Request shall be used, upon disbursement from the Construction
Disbursement Account, solely for the payment of approved Hard Costs and Soft
Costs (as applicable) relating to the completion of construction, commencement
of operations and the operation of the Riviera Black Hawk and working capital or
other construction purposes permitted under the Indenture, and such funds are
reasonably necessary to permit completion of construction in accordance with the
Final Plans, commencement of operations and/or operation of the Riviera Black
Hawk.
4. The following circumstances resulted in the cost to [complete]
[commence operations of] [operate] the Riviera Black Hawk to exceed (as
applicable) the Initial Construction Disbursement Budget or, if the Initial
Construction Disbursement Budget has previously been amended, the Construction
Disbursement Budget:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
5. The circumstances described in the preceding paragraph were not
reasonably anticipated by the Company in preparing (as applicable) the Initial
Construction Disbursement Budget or, if the Initial Construction Disbursement
Budget has been amended, in preparing the latest amendment to the Construction
Disbursement Budget, for the following reasons:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
6. [For Disbursements Prior to Operating:] After giving effect to the
above requested Disbursement, there will be sufficient Available Funds to pay
for the anticipated costs to complete the Riviera Black Hawk in accordance with
the Construction Disbursement Budget, as amended pursuant to the attached
Construction Disbursement Budget Amendment Certificate, on or prior to the
Operating Deadline, and the Company does not believe that any other expenses
will need to be incurred by the Company in order to cause the Riviera Black Hawk
to be Operating on or prior to the Operating Deadline.
7. [For Disbursements Prior to Operating:] The Company reasonably
believes that the Riviera Black Hawk will be Operating on or prior to the
Operating Deadline.
8. Immediately prior and upon giving effect to the above requested
Disbursement, there is no Default or Event of Default.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in making the Disbursement.
D-2
Attached to this Request is (i) a certificate from the Independent
Construction Consultant, (ii) a certificate from the General Contractor and
(iii) a Construction Disbursement Budget Amendment Certificate.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
Received and Reviewed:
RIVIERA HOLDINGS CORP.
By:--------------------------
Name:------------------------
Title:-----------------------
CRSS CONSTRUCTORS, INC.,
as the Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
D-3
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 TO EXHIBIT D-1
Form of Certificate of Independent Construction Consultant
Completion Reserve Disbursement Request
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Completion Reserve Disbursement Request No. _________________ under
Cash Collateral and Disbursement Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "Independent Construction Consultant") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Completion Reserve Disbursement Request (the "Request") and the
Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to which Riviera Black Hawk, Inc., a Colorado corporation (the
"Company"), is a party. Capitalized terms used and not otherwise defined herein
shall have the same meanings given in the Request.
2. [For Disbursements Prior to Operating:] The Independent Construction
Consultant represents, warrants and certifies that (a) the funds requested to
fund both Hard Costs and Soft Costs (as applicable) under the Request are
reasonably necessary to permit completion of construction of the Riviera Black
Hawk in accordance with the Final Plans so that it may be Operating prior to the
Operating Deadline, (b) after giving effect to the requested Disbursement, there
will be sufficient Available Funds to pay for the anticipated costs to complete
the Riviera Black Hawk in accordance with the Construction Disbursement Budget,
as amended to date (after giving effect to the Construction Disbursement Budget
Amendment Certificate delivered in connection with the Request), on or prior to
the Operating Deadline, and the Independent Construction Consultant is not aware
at this time of any other expenses that the Company will need to incur in order
to cause the Riviera Black Hawk to be Operating prior to the Operating Deadline,
(c) nothing has come to the attention of the Independent Construction Consultant
that would cause it to reasonably believe the Riviera Black Hawk will not be
Operating on or prior to the Operating Deadline, and (d) the Independent
Construction Consultant has no actual knowledge of (i) any Default or Event of
Default that exists or which may occur as a result of the making of the
Disbursement, or (ii) any material errors, inaccuracies, misstatements or
omissions of fact in the Request or any exhibit or attachment thereto.
D-4
3. [For Post-Operating Disbursements Other Than The Final CRA
Disbursement:] The Independent Construction Consultant represents, warrants and
certifies that (a) the funds requested to fund both Hard Costs and Soft Costs
(as applicable) under the Request are reasonably necessary to permit completion
of construction of the Riviera Black Hawk in accordance with the Final Plans,
(b) after giving effect to the requested Disbursement, there will be sufficient
Available Funds to pay for the anticipated costs to complete the Riviera Black
Hawk in accordance with the Construction Disbursement Budget, as amended to date
(after giving effect to the Construction Disbursement Budget Amendment
Certificate delivered in connection with the Request), and the Independent
Construction Consultant is not aware at this time of any other expenses that the
Company will need to incur in order to complete the Riviera Black Hawk in
accordance with the Final Plans, and (c) the Independent Construction Consultant
has no actual knowledge of (i) any Default or Event of Default that exists or
which may occur as a result of the making of the Disbursement, or (ii) any
material errors, inaccuracies, misstatements or omissions of fact in the Request
or any exhibit or attachment thereto; provided that no certification is made
herein with respect to any matters relating to the status of Gaming Licenses or
compliance with Gaming Laws.
4. Pursuant to its duties under the Disbursement Agreement, the
Independent Constructor Consultant has inspected the Riviera Black Hawk within
the previous four weeks of the date of this certificate.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
D-5
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 2 TO EXHIBIT D-1
Form of Certificate of General Contractor
Completion Reserve Disbursement Request
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Completion Reserve Disbursement Request No. _______________ under Cash
Collateral and Disbursement Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "General Contractor") hereby certifies as follows:
1. The General Contractor has reviewed the above referenced Completion
Reserve Disbursement Request (the "Request") and the Cash Collateral and
Disbursement Agreement dated as of June 3, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Disbursement Agreement"), to which
Riviera Black Hawk, Inc., a Colorado corporation (the "Company"), is a party, to
the extent necessary to understand the defined terms contained herein and in the
Request that are incorporated by reference from the Disbursement Agreement and
to provide the certification contained herein. Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement
2. [For Disbursements Prior To Operating:] The General Contractor
hereby represents, warrants and certifies that (a) the funds requested under the
Request are reasonably necessary to permit completion of construction of the
Riviera Black Hawk in accordance with the Final Plans so that it will be
Operating on or prior to the Operating Deadline, (b) after giving effect to the
requested Disbursement (as defined in the Request), there will be sufficient
Available Funds to pay for the anticipated costs to complete the Riviera Black
Hawk in accordance with the Construction Disbursement Budget, as amended to date
(after giving effect to the Construction Disbursement Budget Amendment
Certificate delivered in connection with the Request), on or prior to the
Operating Deadline, and the General Contractor is not aware at this time of any
other expenses that the Company will need to incur in order to cause the Riviera
Black Hawk to be Operating on or before the Operating Deadline, and (c) the
General Contractor reasonably believes that the Riviera Black Hawk will be
Operating on or prior to the Operating Deadline;
D-6
provided that the foregoing representations, warranties and certifications do
not include any matters relating to the status of Gaming Licenses or compliance
with Gaming Laws with respect to whether the Riviera Black Hawk will be
Operating on or prior to the Operating Deadline.
3. [For Post-Operating Disbursements Other Than The Final CRA
Disbursement:] The General Contractor hereby represents, warrants and certifies
that (a) the funds requested under the Request are reasonably necessary to
permit completion of construction of the Riviera Black Hawk in accordance with
the Final Plans and (b) after giving effect to the requested Disbursement (as
defined in the Request), there will be sufficient Available Funds to pay for the
anticipated costs to complete the Riviera Black Hawk in accordance with the
Construction Disbursement Budget, as amended to date (after giving effect to the
Construction Disbursement Budget Amendment Certificate delivered in connection
with the Request), and the General Contractor is not aware at this time of any
other expenses that the Company will need to incur in order to complete the
Riviera Black Hawk in accordance with the Final Plans.
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
THE WEITZ COMPANY, INC.,
as General Contractor
By:--------------------------
Name:------------------------
Title:-----------------------
D-7
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 3 TO EXHIBIT D-1
Construction Disbursement Budget Amendment Certificate
[To be attached]
D-8
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT D-2
Form of Post-Final CDA Disbursement
Completion Reserve Disbursement Request and Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Completion Reserve Disbursement Request No. _____________ under
Cash Collateral and Disbursement Agreement
Amount Requested: $
Ladies and Gentlemen:
Riviera Black Hawk, Inc., a Colorado corporation (the "Company"),
hereby submits this Completion Reserve Disbursement Request and Certificate
(this "Request") pursuant to that certain Cash Collateral and Disbursement
Agreement dated as of June 3, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Disbursement Agreement"), to which you are a
party. Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.
The Company hereby requests that you, in your capacity under the
Disbursement Agreement, make a disbursement of [$______________ for Hard Costs]
[and] [$____________ for Soft Costs] (collectively, the "Disbursement") from the
Completion Reserve Account to the Disbursed Funds Account so that the Company
may distribute checks or issue wire transfers drawn on the Disbursed Funds
Account to the parties identified on Schedule 1 attached hereto in the
respective amounts listed for such parties therein (the "Project Cost Schedule")
to permit the Company to use the funds so disbursed for working capital and
other permitted construction purposes in connection with the Riviera Black Hawk.
In connection with the requested Disbursement, the Company represents,
warrants and certifies as follows:
1. The funds disbursed pursuant to this requested Disbursement will be
used in accordance with the terms of the Indenture, the Disbursement Agreement
and the other Collateral Documents.
2. [For Hard Cost Disbursements Only:] With respect to Hard Cost
disbursements, Schedule 1 accurately lists each party for whom payment is
requested and, for each line item and for each party to whom payment is
requested with respect to such line item, the following: (a) the name of the
payee to be paid; (b) the current payment requested; (c) the increase or
decrease in accrued but unpaid Retainage
D-9
Amount, if any, for such payee since the last Disbursement Request (after giving
effect to the payment contemplated by this Disbursement Request); (d) the total
amount contemplated to be payable to such payee under the terms of its
applicable Contract through completion of all work and delivery of all materials
contemplated by the Contract (i.e., the total contract amount); (e) the total
payments made to such payee under its applicable Contract as of the Issue Date;
(f) the total payments made to such payee since the Issue Date (after giving
effect to the payment contemplated by this Disbursement Request); (g) the sum of
all payments made to such payee (after giving effect to the payment contemplated
by this Disbursement Request) (i.e., the sum of (e) and (f) above); (h) the
aggregate accrued Retainage Amounts which shall continue to be owed with respect
to such Contract (after giving effect to the payment contemplated by this
Disbursement Request); and (i) the percentage of the work actually completed, or
the materials actually delivered, under the Contract through the date for which
payment is made hereunder (expressed as a percentage of the total work and
materials contemplated by the Contract through completion), or, if payment is to
be made based on invoice, confirmation that a copy of the applicable invoice is
attached, and a description of the purpose of such payment, specifying the line
item relating to each such payment. In the event that any Advance Disbursements
have been made and have not otherwise been documented as required hereunder and
under the Disbursement Agreement, Schedule 1 also includes each party to whom
payment was made from such Advance Disbursement and a description of the purpose
of such payments, specifying the line item relating to each such payment. The
information set forth in Schedule 1 is true, correct and complete.
3. [For Soft Cost Disbursements Only:] With respect to Soft Cost
disbursements, Schedule 1 accurately lists each party and/or purpose for which
payment is requested and, for each line item and for each party and/or purpose
for which payment is requested with respect to such line item, the following:
(a) the name of the payee to be paid or if it is for Working Capital Expenses,
(b) the current payment requested, and (c) a description of the purpose of such
payment, specifying the line item relating to each such payment. In the event
that any Advance Disbursements have been made and have not otherwise been
documented as required hereunder and under the Disbursement Agreement, Schedule
1 also includes each party to whom payment was made from such Advance
Disbursement and a description of the purpose of such payments specifying the
line item relating to each such payment. The information set forth in Schedule 1
is true, correct and complete.
4. [For Hard Cost Disbursements Only:] With respect to Hard Cost
disbursements, the Company has delivered or caused to be delivered to the
Independent Construction Consultant (a) true and complete invoices that have
been tendered for all Hard Costs for which disbursement is requested hereunder,
(b) duly executed conditional or unconditional (as applicable) lien releases
from all contractors, subcontractors, suppliers and materialmen having provided
work, materials and/or services relating to the Riviera Black Hawk (except as to
Retainage Amounts and such amounts as the Independent Construction Consultant
determines to have been reasonably withheld) for all disbursements identified on
this Disbursement Request, and (c) duly executed acknowledgments of payment and
unconditional lien releases, in form and substance satisfactory to the
Independent Construction Consultant, from all payees identified on the previous
Disbursement Request for payment of Hard Costs and acknowledging the receipt by
such payee of all sums payable to such Contractor from previous Disbursement
Requests (except as to Retainage Amounts and such amounts as the Independent
Construction Consultant determines to have been reasonably withheld).
5. The Construction Disbursement Budget presently in effect for the
Riviera Black Hawk is dated _________________ and includes all amendments
through Construction Disbursement Budget Amendment No. ____. Said Construction
Disbursement Budget accurately sets forth the anticipated costs to complete the
Riviera Black Hawk construction in accordance with the Final Plans. The total
payments
D-10
by the Company with respect to each line item component described in the
Construction Disbursement Budget (plus any Retainage Amounts held for such line
item) after giving effect to the requested Disbursement shall not exceed the
amount budgeted on the Construction Disbursement Budget for such line item.
Further, to the extent the work or payment required in connection with any line
item has not yet been completed, the Company reasonably believes that the
estimated cost to complete such work or payment will not exceed the difference
between (a) the amount budgeted for such line item on the Construction
Disbursement Budget and (b) the sum of (i) the total payments theretofore
disbursed from the Disbursed Funds Account with respect to such line item and
(ii) any Retainage Amounts then held with respect to such line item.
6. After giving effect to the requested disbursement from the
Completion Reserve Account and the payments contemplated from the Disbursed
Funds Account in connection therewith, there will be sufficient Available Funds
to pay for the anticipated costs described in paragraph 5 above (and the
component parts thereof) in accordance with the aggregate amounts (and line
items) set forth in the Construction Disbursement Budget, and the Company does
not believe that any other expenses will need to be paid or incurred by the
Company in order to cause the Riviera Black Hawk to be completed in accordance
with the Final Plans.
7. [For Disbursements Other Than The Final CRA Disbursement:] The
Riviera Black Hawk has previously commenced Operating. The funds disbursed
pursuant to this Request shall be used, upon disbursement from the Completion
Reserve Account, solely for the payment of approved Hard Costs and Soft Costs
(as applicable) relating to the completion of construction, commencement of
operations and the operation of the Riviera Black Hawk, and such funds are
reasonably necessary to permit completion of construction in accordance with the
Final Plans, commencement of operations and operation of the Riviera Black Hawk.
8. [If Amending The Construction Disbursement Budget:] The following
circumstances resulted in the cost to [complete] [commence operations of] the
Riviera Black Hawk to exceed (as applicable) the Initial Construction
Disbursement Budget or, if the Initial Construction Disbursement Budget has
previously been amended, the Construction Disbursement Budget:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
9. [If Amending The Construction Disbursement Budget:] The
circumstances described in the preceding paragraph were not reasonably
anticipated by the Company in preparing (as applicable) the Initial Construction
Disbursement Budget or, if the Initial Construction Disbursement Budget has been
amended, in preparing the latest amendment to the Construction Disbursement
Budget, for the following reasons:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
10. [Hard Costs Only:] As of the date hereof, the Company has submitted
to the Independent Construction Consultant all Plans applicable to the
Disbursement requested herein which, as of the date hereof, constitute Final
Plans. Further, all disbursements requested under this Disbursement Request are
for the payment of Construction Expenses incurred for work consistent with the
Plans which the Company reasonably believes are, or ultimately will become,
Final Plans. The construction performed as of the date
D-11
hereof is of first quality and in accordance with the Plans for the Riviera
Black Hawk and the Disbursement is appropriate in light of the percentage of
construction completed, the amount of stored materials and advance deposits
required for materials provided for in the Construction Disbursement Budget
presently in effect.
11. All disbursements previously requested by the Company and made by
the Disbursement Agent into the Disbursed Funds Account prior to the date hereof
(other than Advance Disbursements permitted to be outstanding under the
Disbursement Agreement) have been disbursed by the Company in substantially the
manner certified by the Company in the applicable Disbursement Request.
12. The Company has previously delivered to the Independent
Construction Consultant copies of all Contracts to which the Company is a party
for the Riviera Black Hawk with payment obligations of at least Thirty Thousand
Dollars ($30,000) and, with respect to each such Contract: (a) if it is a
Material Construction Document, a Consent to Collateral Assignment of Contract
in the form attached as Exhibit H to the Disbursement Agreement, executed by the
third-party Contractor under each such Contract; and (b) copies of such
performance and/or payment bonds (naming the Company and the Trustee as
additional insureds), if any, as the Company may require to be provided to the
Company pursuant to any Contract. Each such bond continues to be enforceable and
has not been terminated or canceled (except in accordance with its terms upon
completion of the respective work or delivery of the respective materials).
13. Immediately prior and upon giving effect to the above requested
Disbursement, there is no Default or Event of Default.
14. [For the Final CRA Disbursement:] The Riviera Black Hawk is
completed in accordance with the Final Plans and all applicable building and
other laws, ordinances and regulations. The Riviera Black Hawk has been
Operating for at least the previous one-hundred-eighty (180) days uninterrupted,
and no lien, notice of lien, or notice of extension of time for filing of lien
has been filed against the Property in favor of any contractor, subcontractor,
supplier or materialman which have not been released or removed of record prior
to the date hereof. There is no ongoing construction in connection with the
Riviera Black Hawk (other than maintenance and repairs in the ordinary course of
business).
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in making the Disbursement.
D-12
Attached to this Request is (i) [For Hard Cost Disbursements, Soft Cost
Disbursements (Other Than Working Capital) And/Or The Final CRA Disbursement
Only:] a certificate from the Independent Construction Consultant, (ii) [For
Hard Cost Disbursements Or Construction Disbursement Budget Amendments Only:] a
certificate from the General Contractor, (iii) [For Hard Cost Disbursements Or
Construction Disbursement Budget Amendments Only:] a certificate from the
Architect and (iv) [For Construction Disbursement Budget Amendments Only:] if
applicable, a Construction Disbursement Budget Amendment Certificate.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
Received and Reviewed:
RIVIERA HOLDINGS CORP.
By:--------------------------
Name:------------------------
Title:-----------------------
D-13
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 1 TO EXHIBIT D-2
Project Cost Schedule for Completion Reserve Disbursement Request No. ______
[To be attached]
D-14
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 TO EXHIBIT D-2
Form of Certificate of Independent Construction Consultant
Post-Final CDA Disbursement Completion Reserve Disbursement Request
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Completion Reserve Disbursement Request No. _________________ under
Cash Collateral and Disbursement Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "Independent Construction Consultant") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Completion Reserve Disbursement Request (the "Request") and the
Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to which Riviera Black Hawk, Inc., a Colorado corporation (the
"Company"), is a party. Capitalized terms used and not otherwise defined herein
shall have the same meanings given in the Request.
2. The Independent Construction Consultant represents, warrants and
certifies that (a) the funds requested to fund Hard Costs and Soft Costs other
than Working Capital Expenses (as applicable) under the Request are reasonably
necessary to permit completion of construction of the Riviera Black Hawk in
accordance with the Final Plans, (b) after giving effect to the requested
Disbursement and the payments contemplated from the Disbursed Funds Account in
connection therewith, there will be sufficient Available Funds to pay for the
anticipated costs to complete the Riviera Black Hawk in accordance with the
Construction Disbursement Budget, as amended to date (after giving effect to the
Construction Disbursement Budget Amendment Certificate delivered in connection
with the Request, if any), and the Independent Construction Consultant is not
aware at this time of any other expenses that the Company will need to incur in
order to complete the Riviera Black Hawk in accordance with the Final Plans, and
(c) the Independent Construction Consultant has no actual knowledge of (i) any
Default or Event of Default that exists or which may occur as a result of the
making of the Disbursement, or (ii) any material errors, inaccuracies,
misstatements or omissions of fact in the Request or any exhibit or attachment
thereto; provided that no certification is made herein with respect to any
matters relating to the status of Gaming Licenses or compliance with Gaming
Laws.
D-15
3. [For Hard Costs Only:] The Independent Construction Consultant has
received from the Company all Plans applicable to the Disbursement requested
pursuant to (and as defined in) the Disbursement Request and, in the Independent
Construction Consultant's professional opinion, the construction performed as of
the date hereof is in accordance with the Plans, and the Disbursement is
appropriate in light of the percentage of construction completed and the amount
of stored materials, and/or invoices submitted, as applicable. Further, all
disbursements requested under this Disbursement Request that are for the payment
of Hard Costs have been incurred for work consistent with the Plans.
4. The Independent Construction Consultant has reviewed all
disbursements made prior to the date hereof from the Construction Disbursement
Account and, after the Final CDA Disbursement, the Completion Reserve Account
(other than disbursements for Working Capital Expenses), and compared the
invoices or other documentation supporting such disbursements with the
respective Construction Disbursement Budget category presently in effect and
confirms that the total disbursements to date in such category do not exceed the
budgeted amount for such category, taking into account amounts reimbursed by the
Company to the Completion Reserve Account after the Final CDA Disbursement for
Working Capital Expenses.
5. The Independent Construction Consultant does not dispute the
appropriateness of any item or items the value of which exceeds Fifty Thousand
Dollars ($50,000) funded with the proceeds of a previous Disbursement Request.
6. The Construction Disbursement Budget accurately sets forth the
anticipated costs of completion of the Riviera Black Hawk in accordance with the
Final Plans.
7. Pursuant to its duties under the Disbursement Agreement, the
Independent Constructor Consultant has inspected the Riviera Black Hawk within
the previous four weeks of the date of this certificate.
8. [For Hard Costs Only] The Independent Construction Consultant has
received (a) duly executed conditional or unconditional (as applicable) lien
releases from all contractors, subcontractors, suppliers and materialmen having
provided work, materials and/or services constituting completed construction or
stored materials relating to the Riviera Black Hawk (except as to Retainage
Amounts and such amounts as the Independent Construction Consultant determines
to have been reasonably withheld) for all disbursements identified on the
Disbursement Request, and (b) duly executed acknowledgments of payment and
unconditional lien releases, in form and substance satisfactory to the
Independent Construction Consultant, from all payees identified on the previous
Disbursement Request for payment of Hard Costs and acknowledging the receipt by
such payee of all sums payable to such Contractor from previous Disbursement
Requests (except as to Retainage Amounts and such amounts as the Independent
Construction Consultant determines to have been reasonably withheld).
9. [For Soft Costs Only] With respect to Soft Cost disbursements (other
than for Working Capital Expenses), the Independent Construction Consultant has
reviewed Schedule 1 to the Disbursement Request and hereby certifies that there
is adequate availability in the applicable line item under the Construction
Disbursement Budget presently in effect with respect to each such Soft Cost
disbursement requested under the Disbursement Request.
10. The Independent Construction Consultant has previously received
from the Company copies of all Contracts to which the Company is a party for the
Riviera Black Hawk with payment obligations of at least Thirty Thousand Dollars
($30,000) and, with respect to each such Contract: (a) if it
D-16
is a Material Construction Document, a Consent to Collateral Assignment of
Contract in the form attached as Exhibit H to the Disbursement Agreement,
executed by the third-party Contractor under each such Contract; and (b) copies
of such performance and/or payment bonds (naming the Company and the Trustee as
additional insureds), if any, as the Company may require to be provided to the
Company pursuant to any Contract. To the knowledge of the Independent
Construction Consultant, each such bond continues to be enforceable and has not
been terminated or canceled (except in accordance with its terms upon completion
of the respective work or delivery of the respective materials).
11. The Independent Construction Consultant has reviewed (a) all
disbursements (other than disbursements for Working Capital Expenses) made from
the Completion Reserve Account in excess of $100,000 and (b) a sampling of at
least twenty percent (20%) of those disbursements from the Completion Reserve
Account individually less than $100,000, and has compared the documentation
supporting such disbursements with the respective Construction Disbursement
Budget category presently in effect to confirm that the total disbursements to
date in such category do not exceed the budgeted amount for such category.
12. [For the Final CRA Disbursement:] The Riviera Black Hawk is
complete in accordance with the Final Plans. The Riviera Black Hawk has been
Operating for at least the previous one-hundred-eighty (180) days uninterrupted,
and no lien, notice of lien, or notice of extension of time for filing of lien
has been filed against the Property by any contractor, subcontractor, supplier
or materialman which have not otherwise been released or removed of record prior
to the date hereof; provided that no certification is made herein with respect
to any matters relating to the status of Gaming Licenses or compliance with
Gaming Laws. To the Independent Construction Consultant's actual knowledge, (i)
immediately prior to and after giving effect to the Disbursement, there is no
and will not be any Default or Event of Default, and (ii) there are no material
errors, inaccuracies, misstatements or omissions of fact in the Request or any
exhibit or attachment thereto. There is no ongoing construction in connection
with the Riviera Black Hawk (other than maintenance and repairs in the ordinary
course of business).
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
D-17
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 2 TO EXHIBIT D-2
Form of Certificate of General Contractor
Post-Final CDA Disbursement Completion Reserve Disbursement Request
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Completion Reserve Disbursement Request No. _______________ under Cash
Collateral and Disbursement Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "General Contractor") hereby certifies as follows:
1. The General Contractor has reviewed the above referenced Completion
Reserve Disbursement Request (the "Request") and the Cash Collateral and
Disbursement Agreement dated as of June 3, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Disbursement Agreement"), to which
Riviera Black Hawk, Inc., a Colorado corporation (the "Company"), is a party, to
the extent necessary to understand the defined terms contained herein and in the
Request that are incorporated by reference from the Disbursement Agreement and
to provide the certification contained herein. Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement
2. The General Contractor hereby certifies and confirms the accuracy of
the certifications in paragraphs 2, 4, 5, 6, 9 and 10 of the above-referenced
Disbursement Request as if made by and on behalf of the General Contractor
directly; provided that the General Contractor makes no certification or
confirmation relating to the status of Gaming Licenses or compliance with Gaming
Laws with respect to whether the Riviera Black Hawk is or has been Operating.
D-18
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
THE WEITZ COMPANY, INC.,
as General Contractor
By:--------------------------
Name:------------------------
Title:-----------------------
D-19
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 3 TO EXHIBIT D-2
Form of Certificate of Architect
Post-Final CDA Disbursement Completion Reserve Disbursement Request
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Completion Reserve Disbursement Request No. _______________ under Cash
Collateral and Disbursement Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "Architect") hereby certifies as follows:
1. The Architect has reviewed the above referenced Completion Reserve
Disbursement Request (the "Request") and the Cash Collateral and Disbursement
Agreement dated as of June 3, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Disbursement Agreement"), to which Riviera
Black Hawk, Inc., a Colorado corporation (the "Company"), is a party, to the
extent necessary to understand the defined terms contained herein and in the
Request that are incorporated by reference from the Disbursement Agreement and
to provide the certification contained herein. Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement
2. The Architect has inspected the Riviera Black Hawk within the
preceding week and hereby certifies that, to the best of its knowledge and
belief, based on its limited visual observation at the time of such inspection
and the information provided to the Architect, the construction as of such date
is substantially in compliance with the intent of the Plans as prepared by the
Architect.
D-20
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
MELICK ASSOCIATES, INC.,
as Architect
By:--------------------------
Name:------------------------
Title:-----------------------
D-21
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 4 TO EXHIBIT D-2
Construction Disbursement Budget Amendment Certificate
[To be attached]
D-22
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT E-1
Form of Construction Disbursement Request and Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
IBJ Whitehall Bank & Trust Company,
as Trustee
One State Street
New York, New York, 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Construction Disbursement Request No. ____________ under
Cash Collateral and Disbursement Agreement
Amount Requested: $
Ladies and Gentlemen:
Riviera Black Hawk, Inc., a Colorado corporation (the "Company"),
hereby submits this Construction Disbursement Request and Certificate (the
"Disbursement Request") pursuant to that certain Cash Collateral and
Disbursement Agreement dated as of June 3, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Disbursement Agreement"), to which
each of you are a party. Capitalized terms used and not otherwise defined herein
shall have the meanings given in the Disbursement Agreement.
The Company hereby requests the Disbursement Agent, and requests the
Independent Construction Consultant to authorize the Disbursement Agent, to make
a disbursement of [$______________ for Hard Costs] [and] [$____________ for Soft
Costs] (collectively, the "Disbursement") from the Construction Disbursement
Account to the Disbursed Funds Account so that the Company may distribute checks
or issue wire transfers drawn on the Disbursed Funds Account to the parties
identified on Schedule 1 attached hereto in the respective amounts listed for
such parties therein (the "Project Cost Schedule").
In connection with the requested Disbursement, the Company represents,
warrants and certifies as follows:
E-1
1. [For Hard Cost Disbursements Only:] With respect to Hard Cost
disbursements, Schedule 1 accurately lists each party for whom payment is
requested and, for each line item and for each party to whom payment is
requested with respect to such line item, the following: (a) the name of the
payee to be paid; (b) the current payment requested; (c) the increase or
decrease in accrued but unpaid Retainage Amount, if any, for such payee since
the last Disbursement Request (after giving effect to the payment contemplated
by this Disbursement Request); (d) the total amount contemplated to be payable
to such payee under the terms of its applicable Contract through completion of
all work and delivery of all materials contemplated by the Contract (i.e., the
total contract amount); (e) the total payments made to such payee under its
applicable Contract as of the Issue Date; (f) the total payments made to such
payee since the Issue Date (after giving effect to the payment contemplated by
this Disbursement Request); (g) the sum of all payments made to such payee
(after giving effect to the payment contemplated by this Disbursement Request)
(i.e., the sum of (e) and (f) above); (h) the aggregate accrued Retainage
Amounts which shall continue to be owed with respect to such Contract (after
giving effect to the payment contemplated by this Disbursement Request); and (i)
the percentage of the work actually completed, or the materials actually
delivered, under the Contract through the date for which payment is made
hereunder (expressed as a percentage of the total work and materials
contemplated by the Contract through completion), or, if payment is to be made
based on invoice, confirmation that a copy of the applicable invoice is
attached, and a description of the purpose of such payment, specifying the line
item relating to each such payment. In the event that any Advance Disbursements
have been made and have not otherwise been documented as required hereunder and
under the Disbursement Agreement, Schedule 1 also includes each party to whom
payment was made from such Advance Disbursement and a description of the purpose
of such payments, specifying the line item relating to each such payment. The
information set forth in Schedule 1 is true, correct and complete.
2. [For Soft Cost Disbursements Only:] With respect to Soft Cost
disbursements, Schedule 1 accurately lists each party and/or purpose for which
payment is requested and, for each line item and for each party and/or purpose
for which payment is requested with respect to such line item, the following:
(a) the name of the payee to be paid or if it is for Working Capital Expenses,
(b) the current payment requested, and (c) a description of the purpose of such
payment, specifying the line item relating to each such payment. In the event
that any Advance Disbursements have been made and have not otherwise been
documented as required hereunder and under the Disbursement Agreement, Schedule
1 also includes each party to whom payment was made from such Advance
Disbursement and a description of the purpose of such payments specifying the
line item relating to each such payment. The information set forth in Schedule 1
is true, correct and complete.
3. [For Hard Cost Disbursements Only:] With respect to Hard Cost
disbursements, the Company has delivered or caused to be delivered to the
Independent Construction Consultant (a) true and complete invoices that have
been tendered for all Hard Costs for which disbursement is requested hereunder,
(b) duly executed conditional or unconditional (as applicable) lien releases
from all contractors, subcontractors, suppliers and materialmen having provided
work, materials and/or services relating to the Riviera Black Hawk (except as to
Retainage Amounts and such amounts as the Independent Construction Consultant
determines to have been reasonably withheld) for all disbursements identified on
this Disbursement Request, and (c) duly executed acknowledgments of payment and
unconditional lien releases, in form and substance satisfactory to the
Independent Construction Consultant, from all payees identified on the previous
Disbursement Request for payment of Hard Costs and acknowledging the receipt by
such payee of all sums payable to such Contractor from previous Disbursement
Requests (except as to
E-2
Retainage Amounts and such amounts as the Independent Construction Consultant
determines to have been reasonably withheld).
4. The Construction Disbursement Budget presently in effect for the
Riviera Black Hawk is dated _________________ and includes all amendments
through Construction Disbursement Budget Amendment No. ____. Said Construction
Disbursement Budget accurately sets forth the anticipated costs to complete the
Riviera Black Hawk construction [[For Disbursements Prior To Operating:] through
the date that the Riviera Black Hawk is Operating and] in accordance with the
Plans. The total payments by the Company with respect to each line item
component described in the Construction Disbursement Budget (plus any Retainage
Amounts held for such line item) after giving effect to the requested
Disbursement shall not exceed the amount budgeted on the Construction
Disbursement Budget for such line item. Further, to the extent the work or
payment required in connection with any line item has not yet been completed,
the Company reasonably believes that the estimated cost to complete such work or
payment will not exceed the difference between (a) the amount budgeted for such
line item on the Construction Disbursement Budget and (b) the sum of (i) the
total payments theretofore disbursed from the Disbursed Funds Account with
respect to such line item and (ii) any Retainage Amounts then held with respect
to such line item.
5. After giving effect to the requested disbursement from the
Construction Disbursement Account and the payments contemplated from the
Disbursed Funds Account in connection therewith, together with, in the event any
Advance Disbursements have been made on or prior to the date hereof and have not
otherwise been documented as required under the Disbursement Agreement, each
such Advance Disbursement from the Construction Disbursement Account, there will
be sufficient Available Funds to pay for the anticipated costs described in
paragraph 4 above (and the component parts thereof) in accordance with the
aggregate amounts (and line items) set forth in the Construction Disbursement
Budget, and the Company does not believe that any other expenses will need to be
paid or incurred by the Company in order to cause the Riviera Black Hawk to be
[[For Disbursements Prior To Operating:] Operating on or prior to the Operating
Deadline and] completed in accordance with the Plans.
6. Immediately prior to and upon giving effect to this Disbursement
Request, there is no and will not be any Default or Event of Default.
7. [Hard Costs Only:] As of the date hereof, the Company has submitted
to the Independent Construction Consultant all Plans applicable to the
Disbursement requested herein which, as of the date hereof, constitute Final
Plans. Further, all disbursements requested under this Disbursement Request are
for the payment of Construction Expenses incurred for work consistent with the
Plans which the Company reasonably believes are, or ultimately will become,
Final Plans [[For Disbursements Prior To Operating:] and which will permit the
Company to complete construction of the Riviera Black Hawk on or prior to the
Operating Deadline]. The construction performed as of the date hereof is of
first quality and in accordance with the Plans for the Riviera Black Hawk and
the Disbursement is appropriate in light of the percentage of construction
completed, the amount of stored materials and advance deposits required for
materials provided for in the Construction Disbursement Budget presently in
effect.
8. [For Disbursements Prior To Operating:] As of the date hereof, the
Company reasonably believes that the date on which the Riviera Black Hawk will
become Operating will occur on or prior to the Operating Deadline.
9. All disbursements previously requested by the Company and made by
the Disbursement Agent into the Disbursed Funds Account prior to the date hereof
(other than Advance Disbursements
E-3
permitted to be outstanding under the Disbursement Agreement) have been
disbursed by the Company in substantially the manner certified by the Company in
the applicable Construction Disbursement Request or Advance Request (as
applicable).
10. This Disbursement Request, as well as the Disbursement requested,
is, and such Disbursement will be used, in compliance with the Disbursement
Agreement and the Indenture.
11. The Company has previously delivered to the Independent
Construction Consultant copies of all Contracts to which the Company is a party
for the Riviera Black Hawk with payment obligations of at least Thirty Thousand
Dollars ($30,000) and, with respect to each such Contract: (a) if it is a
Material Construction Document, a Consent to Collateral Assignment of Contract
in the form attached as Exhibit H to the Disbursement Agreement, executed by the
third-party Contractor under each such Contract; and (b) copies of such
performance and/or payment bonds (naming the Company and the Trustee as
additional insureds), if any, as the Company may require to be provided to the
Company pursuant to any Contract. Each such bond continues to be enforceable and
has not been terminated or canceled (except in accordance with its terms upon
completion of the respective work or delivery of the respective materials).
12. [For Disbursements Immediately Following Completion Of Any
Foundation For Any Building Within The Riviera Black Hawk:] The Company has
delivered to the Independent Construction Consultant, on a building-by-building
basis, a foundation endorsement from the Title Company insuring that the
foundations for each building within the Riviera Black Hawk are constructed
wholly within the boundaries of the Property then owned in fee simple by the
Company and does not encroach on any easements or violate any covenants,
conditions or restrictions of record.
13. [For the Final CDA Disbursement Only:] The Riviera Black Hawk is
substantially complete in all material respects in accordance with the Final
Plans with respect to the Minimum Facilities and all applicable building and
other laws, ordinances and regulations. The Riviera Black Hawk has been
Operating for at least the previous thirty (30) days uninterrupted. There is no
ongoing construction in connection with the Riviera Black Hawk (other than
maintenance and repairs in the ordinary course of business and other than
construction associated with the Riviera Black Hawk, including all punch list
items (exclusive of Retainage Amounts), in an aggregate amount (exclusive of
Retainage Amounts) not to exceed $250,000). As of the date hereof, the amount
necessary to complete the Riviera Black Hawk in accordance with the Final Plans,
including all punch list items, is $_______ (the "Reserved Construction
Amount"). The Company represents, warrants and covenants that an amount equal to
the sum of (i) the Reserved Construction Amount and (ii) any unpaid Retainage
Amounts due and owing as of the date hereof or hereafter shall be deposited in
the Disbursed Funds Account from the proceeds of the Final CDA Disbursement and
the Company shall use such funds to pay Construction Expenses (including such
Retainage Amounts as the same become due and payable) to complete the Riviera
Black Hawk in accordance with the Final Plans, including all punch list items.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
E-4
[For Hard Cost Disbursements Only:] Attached to this Disbursement
Request are certificates of the General Contractor and the Architect.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
Received and Reviewed:
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
E-5
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 1 TO EXHIBIT E-1
Project Cost Schedule for Construction Disbursement Request No. ______
[To be attached]
E-6
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 TO EXHIBIT E-1
Form of Certificate of Independent Construction Consultant for
Disbursement Request for Construction Expenses
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Disbursement Request No. __________ under
Cash Collateral and Disbursement
Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "Independent Construction Consultant") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Disbursement Request and the Cash Collateral and Disbursement
Agreement dated as of June 3, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Disbursement Agreement"), to which Riviera
Black Hawk, Inc., a Colorado corporation (the "Company"), is a party. All
capitalized terms used and not otherwise defined herein shall have the meanings
given in the Disbursement Agreement.
2. The Independent Construction Consultant has received from the
Company all Plans applicable to the Disbursement requested pursuant to (and as
defined in) the Disbursement Request and, in the Independent Construction
Consultant's professional opinion, the construction performed as of the date
hereof is in accordance with the Plans, and the Disbursement is appropriate in
light of the percentage of construction completed and the amount of stored
materials, and/or invoices submitted, as applicable. Further, all disbursements
requested under this Disbursement Request that are for the payment of Hard Costs
have been incurred for work consistent with the Plans[[For Disbursements Prior
To Operating:], which will permit the Company to complete construction of the
Riviera Black Hawk on or prior to the Operating Deadline].
3. The Independent Construction Consultant has reviewed all
disbursements made prior to the date hereof from the Construction Disbursement
Account and compared the invoices or other documentation supporting such
disbursements with the respective Construction Disbursement Budget category
presently in effect and confirms that the total disbursements to date in such
category do not exceed the budgeted amount for such category.
E-7
4. The Independent Construction Consultant does not dispute the
appropriateness of any item or items the value of which exceeds Fifty Thousand
Dollars ($50,000) funded with the proceeds of a previous Construction
Disbursement Request.
5. The Construction Disbursement Budget accurately sets forth the
anticipated costs of completion of the Riviera Black Hawk [For Disbursements
Prior To Operating:] [through the date that the Riviera Black Hawk is Operating
and] in accordance with the Plans.
6. [For Disbursements Prior To Operating:] After giving effect to the
requested disbursement from the Construction Disbursement Account and the
payments contemplated from the Disbursed Funds Account in connection therewith,
there will be sufficient Available Funds to pay for the anticipated costs to
complete construction of the Riviera Black Hawk (and component parts thereof) in
accordance with the aggregate amounts (and line items) set forth in the
Construction Disbursement Budget presently in effect, and the Independent
Construction Consultant is not aware of any other expenses that will be needed
to be paid or incurred by the Company in order to cause the Riviera Black Hawk
to be Operating prior to the Operating Deadline. The Independent Construction
Consultant reasonably believes that the Riviera Black Hawk will be Operating
prior to the Operating Deadline; provided that the Independent Construction
Consultant makes no certification or confirmation relating to the status of
Gaming Laws with respect to whether the Riviera Black Hawk will be Operating on
or prior to the Operating Deadline.
7. [For Post-Operating Disbursements Prior To The Final CDA
Disbursement:] After giving effect to the requested disbursement from the
Construction Disbursement Account and the payments contemplated from the
Disbursed Funds Account in connection therewith, there will be sufficient
Available Funds to pay for the anticipated costs to complete construction of the
Riviera Black Hawk (and component parts thereof) in accordance with the
aggregate amounts (and line items) set forth in the Construction Disbursement
Budget presently in effect, and the Independent Construction Consultant is not
aware of any other expenses that will be needed to be paid or incurred by the
Company in order to complete the Riviera Black in accordance with the Final
Plans.
8. Pursuant to its duties under the Disbursement Agreement, the
Independent Construction Consultant has inspected the Riviera Black Hawk within
the previous four weeks of the date of this certificate.
9. [For The Final CDA Disbursement Only:] The Riviera Black Hawk is
substantially complete in all material respects in accordance with the Final
Plans with respect to the Minimum Facilities. The Riviera Black Hawk has been
Operating for at least the previous thirty (30) days uninterrupted; provided
that no certification is made herein with respect to any matters relating to the
status of Gaming Licenses or compliance with Gaming Laws. To the Independent
Construction Consultant's actual knowledge, (a) immediately prior to and after
giving effect to this requested Disbursement, there is no and will not be any
Default or Event of Default, and (b) there are no material errors, inaccuracies,
misstatements or omissions of fact in the Disbursement Request or any exhibit or
attachment thereto. There is no ongoing construction in connection with the
Riviera Black Hawk (other than maintenance and repairs in the ordinary course of
business and other than construction associated with the Riviera Black Hawk,
including all punch list items, in an aggregate amount not to exceed $250,000).
The Independent Construction Consultant reasonably believes that the amount
necessary as of the date hereof to complete the Riviera Black Hawk in accordance
with the Final Plans, including all punch list items (exclusive of Retainage
Amounts), should not exceed the Reserved Construction Amount as set forth and
defined in the above-referenced Disbursement Request of the Company.
E-8
10. [For Hard Costs Only] The Independent Construction Consultant has
received (a) duly executed conditional or unconditional (as applicable) lien
releases from all contractors, subcontractors, suppliers and materialmen having
provided work, materials and/or services constituting completed construction or
stored materials relating to the Riviera Black Hawk (except as to Retainage
Amounts and such amounts as the Independent Construction Consultant determines
to have been reasonably withheld) for all disbursements identified on the
Disbursement Request, and (b) duly executed acknowledgments of payment and
unconditional lien releases, in form and substance satisfactory to the
Independent Construction Consultant, from all payees identified on the previous
Disbursement Request for payment of Hard Costs and acknowledging the receipt by
such payee of all sums payable to such Contractor from previous Disbursement
Requests (except as to Retainage Amounts and such amounts as the Independent
Construction Consultant determines to have been reasonably withheld).
11. [For Soft Costs Only] With respect to Soft Cost disbursements, the
Independent Construction Consultant has reviewed Schedule 1 to the Disbursement
Request and hereby certifies that there is adequate availability in the
applicable line item under the Construction Disbursement Budget presently in
effect with respect to each Soft Cost disbursement requested under the
Disbursement Request.
12. The Independent Construction Consultant has previously received
from the Company copies of all Contracts to which the Company is a party for the
Riviera Black Hawk with payment obligations of at least Thirty Thousand Dollars
($30,000) and, with respect to each such Contract: (a) if it is a Material
Construction Document, a Consent to Collateral Assignment of Contract in the
form attached as Exhibit H to the Disbursement Agreement, executed by the
third-party Contractor under each such Contract; and (b) copies of such
performance and/or payment bonds (naming the Company and the Trustee as
additional insureds), if any, as the Company may require to be provided to the
Company pursuant to any Contract. To the knowledge of the Independent
Construction Consultant, each such bond continues to be enforceable and has not
been terminated or canceled (except in accordance with its terms upon completion
of the respective work or delivery of the respective materials).
13. The Independent Construction Consultant has reviewed (a) all
disbursements made from the Construction Disbursement Account in excess of
$100,000 and (b) a sampling of at least twenty percent (20%) of those
disbursements from the Construction Disbursement Account individually less than
$100,000, and has compared the documentation supporting such disbursements with
the respective Construction Disbursement Budget category presently in effect to
confirm that the total disbursements to date in such category do not exceed the
budgeted amount for such category.
14. [For Disbursements Immediately Following Completion Of Any
Foundation For Any Building Within The Riviera Black Hawk:] The Independent
Construction Consultant has received a copy of a foundation endorsement, on a
building-by-building basis, from the Title Company insuring that the foundations
for each building within the Riviera Black Hawk are constructed wholly within
the boundaries of the Property then owned in fee simple by the Company and that
such foundation(s) does not encroach on any easements or violate any covenants,
conditions or restrictions of record.
E-9
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
E-10
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 2 TO EXHIBIT E-1
Form of Certificate of General Contractor for
Disbursement Request for Construction Expenses
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Disbursement Request No. ____________ under
Cash Collateral and Disbursement
Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "General Contractor") hereby certifies as follows:
1. The General Contractor has reviewed the above referenced
Disbursement Request and the Cash Collateral and Disbursement Agreement dated as
of June 3, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Disbursement Agreement"), to which Riviera Black Hawk, Inc., a
Colorado corporation (the "Company") is a party, to the extent necessary to
understand the defined terms contained herein and in the Disbursement Request
that are incorporated by reference from the Disbursement Agreement and to
provide the certification contained herein. Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement.
2. The General Contractor hereby certifies and confirms the accuracy of
the certifications in paragraphs 1, 3, 4, 5 and 7 of the above-referenced
Disbursement Request as if made by and on behalf of the General Contractor
directly; provided that the General Contractor makes no certification or
confirmation relating to the status of Gaming Licenses or compliance with Gaming
Laws with respect to whether the Riviera Black Hawk will be Operating on or
prior to the Operating Date.
3. [For Disbursements Prior To Operating:] The General Contractor
hereby certifies that, to the best of its knowledge, the Riviera Black Hawk may
be constructed prior to the Operating Deadline in accordance with the
Construction Disbursement Budget presently in effect.
E-11
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
THE WEITZ COMPANY, INC.,
as General Contractor
By:--------------------------
Name:------------------------
Title:-----------------------
E-12
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 3 TO EXHIBIT E-1
Form of Certificate of Architect for
Disbursement Request for Construction Expenses
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Disbursement Request No. _____________ under
Cash Collateral and Disbursement
Agreement of Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "Architect") hereby certifies as follows:
1. The Architect has reviewed the above referenced Disbursement Request
and the Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to which Riviera Black Hawk, Inc., a Colorado corporation (the
"Company") is a party, to the extent necessary to understand the defined terms
contained herein and in the Disbursement Request that are incorporated by
reference from the Disbursement Agreement and to provide the certification
contained herein. Capitalized terms used and not otherwise defined herein shall
have the meanings given in the Disbursement Agreement.
2. The Architect has inspected the Riviera Black Hawk within the
preceding week and hereby certifies that, to the best of its knowledge and
belief, based on its limited visual observation at the time of such inspection
and the information provided to the Architect, the construction as of such date
is substantially in compliance with the intent of the Plans as prepared by the
Architect.
E-13
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing in authorizing and
making the Disbursement.
MELICK ASSOCIATES, INC.,
as Architect
By:--------------------------
Name:------------------------
Title:-----------------------
E-14
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT E-2
Form of Advance Disbursement Request and Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Advance Disbursement Request No. __________
under Cash Collateral and Disbursement Agreement
Amount Requested: $
Ladies and Gentlemen:
Riviera Black Hawk, Inc., a Colorado corporation (the "Company"),
hereby submits this Advance Disbursement Request and Certificate (the
"Disbursement Request") pursuant to that certain Cash Collateral and
Disbursement Agreement dated as of June 3, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Disbursement Agreement"), to which
each of you is a party. Capitalized terms used and not otherwise defined herein
without definition shall have the meanings given in the Disbursement Agreement.
The Company hereby requests that the Disbursement Agent make a
disbursement of $_________ [aggregate Advance Disbursements not to exceed
$1,500,000] from the Construction Disbursement Account to the Disbursed Funds
Account.
The Company hereby represents, warrants and certifies as follows:
1. Amounts disbursed pursuant to this Disbursement Request shall be
used solely for the following purposes in connection with the Riviera Black
Hawk:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
2. Prior to and after giving effect to this disbursement, there is and
there will be no Default or Event of Default.
E-15
3. In the event that any Advance Disbursements have previously been
made, the Company has provided (or will provide within the period specified
under the Disbursement Agreement) the same supporting documentation as is
required under the Disbursement Agreement with respect to Construction
Disbursement Requests within thirty (30) days after each such Advance
Disbursement was made.
4. The amount of the requested Disbursement hereunder, together with
Advance Disbursements previously made to the Company which have not otherwise
been documented as required in the Disbursement Agreement, do not exceed the
amount of One Million Five Hundred Thousand Dollars ($1,500,000).
5. The Construction Disbursement Budget presently in effect for the
Riviera Black Hawk is dated _____________ and includes all amendments through
Construction Disbursement Budget Amendment No. _____. Said Construction
Disbursement Budget accurately sets forth the anticipated costs to complete the
Riviera Black Hawk construction [[For Disbursements Prior To Operating:] through
the date that the Riviera Black Hawk is Operating and] in accordance with the
Plans.
6. [For Disbursements Prior To Operating:] As of the date hereof, the
Company reasonably believes that the Riviera Black Hawk will be Operating on or
prior to the Operating Deadline.
7. The total payments by the Company with respect to each line item
component described on the Construction Disbursement Budget (plus any Retainage
Amounts held for such line item), after giving effect to the requested Advance
Disbursement, shall not exceed the amount budgeted on the Construction
Disbursement Budget for such line item. Further, to the extent the work or
payment required in connection with any line item has not yet been completed,
the Company reasonably believes that the estimated cost to complete such work or
payment will not exceed the difference between: (a) the amount budgeted for such
line item on the Construction Disbursement Budget and (b) the sum of (i) the
total payments theretofore disbursed from the Disbursed Funds Account with
respect to such line item and (ii) any Retainage Amounts then held with respect
to such line item.
E-16
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the disbursement requested hereunder.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
Received and Reviewed:
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
E-17
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 TO EXHIBIT E-2
Form of Certificate of Independent Construction Consultant for
Advance Disbursement Request for Construction Expenses
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Advance Disbursement Request No. __________ under
Cash Collateral and Disbursement Agreement of
Riviera Black Hawk, Inc.
Ladies and Gentlemen:
The undersigned (the "Independent Construction Consultant") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Advance Disbursement Request and the Cash Collateral and
Disbursement Agreement dated as of June 3, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Disbursement Agreement"), to which
Riviera Black Hawk, Inc., a Colorado corporation (the "Company"), is a party.
All capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.
2. The Independent Construction Consultant has no actual knowledge
(from the facts set forth in any Disbursement Request or any certificate,
exhibit or attachment attached thereto or any other notice) that a Default or an
Event of Default under the Indenture or the Disbursement Agreement exists and is
continuing. The Independent Construction Consultant has no actual knowledge of
any material errors, misstatements or omissions of fact in the above-referenced
Advance Disbursement Request or any certificate, exhibit or attachment thereto,
or information otherwise provided by the Company.
3. [For Disbursements Prior To Operating:] The Construction
Disbursement Budget presently in effect accurately sets forth the anticipated
costs to complete the Riviera Black Hawk through the date that the Riviera Black
Hawk is Operating.
4. After giving effect to the requested disbursement from the
Construction Disbursement Account and the payments contemplated from the
Disbursed Funds Account in connection therewith, there will be sufficient
Available Funds to pay for the anticipated costs to complete construction of the
Riviera Black Hawk (and the component parts thereof) in accordance with the
aggregate amounts (and line items) set forth in the Construction Disbursement
Budget [[For Disbursements Prior To Operating:] and the Independent Construction
Consultant is not aware of any other expenses that will be needed to be paid or
incurred by the Company in order to cause the Riviera Black Hawk to be Operating
on or prior to the
E-18
Operating Deadline; provided that the Independent Construction Consultant makes
no certification or confirmation relating to the status of Gaming Licenses or
compliance with Gaming Laws with respect to whether the Riviera Black Hawk will
be Operating on or prior to the Operating Deadline].
5. [For Disbursements Prior To Operating:] The Independent Construction
Consultant reasonably believes that the Riviera Black Hawk will be Operating on
or prior to the Operating Deadline; provided that the Independent Construction
Consultant makes no certification or confirmation relating to the status of
Gaming Licenses or compliance with Gaming Laws with respect to whether the
Riviera Black Hawk will be Operating on or prior to the Operating Deadline.
5. Pursuant to its duties under the Disbursement Agreement, the
Independent Construction Consultant has inspected the Riviera Black Hawk within
the previous four weeks of the date of this certificate.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the Disbursement.
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
E-19
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT F
Form of Construction Disbursement Budget Amendment Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Riviera Black Hawk, Inc., Amendment No. ___________
to Construction Disbursement Budget for the Riviera Black Hawk
Ladies and Gentlemen:
Riviera Black Hawk, Inc., a Colorado corporation ("the Company"),
requests that the Construction Disbursement Budget for the Riviera Black Hawk
(the "Construction Disbursement Budget") be amended as set forth on Schedule 1
to this certificate. This certificate is delivered pursuant to that certain Cash
Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to which you are a party. Capitalized terms used and otherwise not
defined herein shall have the meanings given in the Disbursement Agreement. In
connection with the requested Construction Disbursement Budget amendment, the
Company hereby represents, warrants and certifies as follows:
1. The proposed amendment is set forth in Schedule 1 hereto. The
proposed amendment is reasonably necessary in order to complete
the work represented by any line item or line items in the
Construction Disbursement Budget presently in effect (prior to
giving effect to the proposed amendment) and will not result in a
material lessening of the scope or quality of the work
constituting the design or construction of the Riviera Black
Hawk.
2. The following circumstances resulted in the reasonable necessity
of the proposed amendment:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
F-1
3. The circumstances described in paragraph 2 above were not
reasonably anticipated by the Company in preparing the Initial
Construction Disbursement Budget, and if the Initial Construction
Disbursement Budget has been previously amended, as of the date
of the last such amendment, for the following reasons:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
4. The Construction Disbursement Budget in effect immediately prior
to the proposed amendment is attached to this Construction
Disbursement Budget Amendment Certificate as Schedule 2, and the
Construction Disbursement Budget which will be in effect upon the
effectiveness of the proposed amendment is attached to this
Construction Disbursement Budget Amendment as Schedule 3.
5. Immediately following the proposed amendment: (i) the
Construction Disbursement Budget will include all costs to be
incurred in causing the Riviera Black Hawk to be [[For Amendments
Prior To Operating:] Operating on or prior to the Operating
Deadline and] completed in accordance with the Plans; (ii) the
Available Funds will be sufficient to cause the Riviera Black
Hawk (and the component parts thereof) to be [[For Amendments
Prior To Operating:] Operating on or prior to the Operating
Deadline and] completed in accordance with the Plans in
accordance with the aggregate amounts (and line items) set forth
in the Construction Disbursement Budget; and (iii) the
Construction Disbursement Budget will continue to reasonably
establish the line item components of the work required to be
undertaken in order to complete construction of the Riviera Black
Hawk, and will continue to reasonably establish the cost of
completing each line item component of such work.
6. After giving effect to the proposed amendment, the Construction
Disbursement Budget accurately sets forth in all material
respects the anticipated Construction Expenses through completion
of the construction of the Riviera Black Hawk and the various
line item components thereof identified on the Construction
Disbursement Budget, all within the line item allocations
established for those components set forth in the Construction
Disbursement Budget.
7. [If Any Line Item On The Construction Disbursement Budget Is
Reduced:] The Company reasonably expects that the work
represented by the line item entitled ______________ will be
completed for a total cost of $________, which amount is less
than $___________ [should correspond to $ amount set forth in the
Construction Disbursement Budget prior to proposed amendment] and
such savings will be reallocated, pursuant to the amendment, to
another line item in the Construction Disbursement Budget,
whether Hard Costs or Soft Costs.
8. The construction performed as of the date hereof is of first
quality and in accordance with the Plans. [For Amendments Prior
To Operating:] The Company reasonably believes that the date on
which the Riviera Black Hawk will become Operating will occur on
or prior to the Operating Deadline.
F-2
9. Immediately prior to and upon giving effect to the Construction
Disbursement Budget Amendment, there is and will be no Default or
Event of Default.
The undersigned certifies that the Construction Disbursement Budget
Amendment contemplated hereby is permitted pursuant to the Disbursement
Agreement and the Indenture, and all conditions precedent thereto have been met.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent and the Independent Construction
Consultant are entitled to rely on the foregoing.
Attached to this Construction Disbursement Budget Amendment Certificate
is a certificate from the Independent Construction Consultant.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
F-3
Received and Reviewed:
RIVIERA HOLDINGS CORP.
By:--------------------------
Name:------------------------
Title:-----------------------
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
F-4
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 1 TO EXHIBIT F
Proposed Construction Disbursement Budget Amendment
Amendment No. __ to Construction Disbursement Budget.
I. Increases To Line Items:
The Following Line Item Is Increased: _______________________________
Old Amount of Line Item: _______________________________
Amount of Increase: _______________________________
New Total For Line Item: _______________________________
Source of Funds For Increase:
Source Amount
Realized Savings _______________1
Additional Revenue _______________
Allocation of Funds from
Completion Reserve Account _______________
Total _______________
- --------------------
1 Source and documentation (e.g., receipts for purchased goods or invoices
for services) for Realized Savings are attached.
F-5
II. Decreases To Line Items:
The Following Line Item Is
Decreased: _______________________________
Old Amount of Line Item: _______________________________
Amount of Decrease: _______________________________
New Amount of Line Item: _______________________________
Reason For Decrease of Line Item:
Source Amount
Realized Savings _______________1
III. New Construction Disbursement Budget Totals
a. The total Construction Disbursement Budget
for the Riviera Black Hawk is now: $_____________
b. The amount disbursed to date for the
Riviera Black Hawk is: $_____________
c. Remaining amounts to be spent: $_____________
d. Available Funds for the Riviera Black Hawk: $_____________2
- --------------------
1 Source and documentation (e.g., receipts for purchased goods or invoices
for services) for Realized Savings are attached.
2 Item III.d should be greater than or equal to item III.c.
F-6
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 2 TO EXHIBIT F
Existing Construction Disbursement Budget1
[To be attached by the Company]
- --------------------
1 (or portion thereof being amended)
F-7
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 3 TO EXHIBIT F
Proposed Revised Construction Disbursement Budget
[To be attached by the Company]
F-8
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 TO EXHIBIT F
Form of Certificate of Independent Construction Consultant
Construction Disbursement Budget Amendment
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Amendment No. _________ to Construction Disbursement Budget
for the Riviera Black Hawk
Ladies and Gentlemen:
The undersigned (the "Independent Construction Consultant"), hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Construction Disbursement Budget Amendment Certificate and the
Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement") to which Riviera Black Hawk, Inc., a Colorado corporation (the
"Company"), is a party. Capitalized terms used and not otherwise defined herein
shall have the meanings given in the Disbursement Agreement.
2. Pursuant to its duties under the Disbursement Agreement, the
Independent Construction Consultant has inspected the Riviera Black Hawk within
the previous four weeks of the date of this certificate.
3. The Independent Construction Consultant hereby certifies and
confirms the accuracy of the certifications contained in the above-referenced
Construction Disbursement Budget Amendment Certificate; provided that the
Independent Construction Consultant makes no certification or confirmation
relating to the status of Gaming Licenses or compliance with Gaming Laws with
respect to whether the Riviera Black Hawk will be Operating on or prior to the
Operating Deadline.
F-9
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing in authorizing and making the amendment to the Construction
Disbursement Budget.
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
F-10
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT G-1
Form of Contract Amendment Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway,, Suite 3200
Denver, Colorado 80202
Re: Amendment No. ___ to Contract dated ________, ____ (the "Contract"),
between Riviera Black Hawk, Inc., a Colorado corporation (the
"Company"), and ("Contractor")
Ladies and Gentlemen:
The Company requests that the above-referenced Contract be amended as
set forth on Schedule 1 to this certificate. This certificate is delivered
pursuant to that certain Cash Collateral and Disbursement Agreement dated as of
June 3, 1999 (as amended, supplemented or otherwise modified from time to time,
the "Disbursement Agreement"), to which you are a party. Capitalized terms used
and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement. In connection with the requested Contract amendment, the
Company hereby represents, warrants and certifies as follows:
1. The proposed Contract amendment is attached as Schedule 1 hereto.
The amendment is reasonably necessary in order to complete the development,
construction, equipping and operation of the Riviera Black Hawk so that it is
Operating prior to the Operating Deadline.
2. The following circumstances resulted in the necessity of the
proposed amendment:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
3. After giving effect to such amendment (and any related amendment to
the Construction Disbursement Budget for the Riviera Black Hawk):
(a) The Construction Disbursement Budget will continue to call
for construction of improvements constituting the Riviera Black Hawk;
G-1
(b) The amendment will not materially affect the scope,
quality or value of the Riviera Black Hawk for the following reasons:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
(c) If the amendment will effect a reduction in the scope of
the work to be performed by Contractor, then the work eliminated from the scope
of work either (i) is not necessary to complete the Riviera Black Hawk as a
first quality improvement in accordance with the Plans and all applicable
building laws, ordinances and regulations, or (ii) to the extent necessary for
the completion of the Riviera Black Hawk as a first quality improvement in
accordance with the Plans and all applicable building laws, ordinances and
regulations, will be completed by the contractors set forth below under the new
or amended contracts described below. Each such contractor is competent to
perform the work called for by the new or amended contract in exchange for the
payments contemplated thereby, and each such contract or amendment thereto
complies with all applicable provisions of Article 8 of the Disbursement
Agreement.
Work Contractor Contract
----------------- ----------------- -----------------
----------------- ----------------- -----------------
(d) The Company will continue to be able to complete the work
within the line items pertaining to the Contract: (i) in a timely manner so as
to permit the date on which the Riviera Black Hawk becomes Operating to occur on
or prior to the Operating Deadline; and (ii) within the aggregate amounts
specified for the line items on the Construction Disbursement Budget.
4. After giving effect to the proposed amendment (and any related
amendment to the Construction Disbursement Budget), the Construction
Disbursement Budget accurately sets forth the anticipated Construction Expenses
through completion of the construction of the Riviera Black Hawk and the various
components of the Riviera Black Hawk, all within the line item allocations
established for those components set forth in the Construction Disbursement
Budget.
5. Prior to and after giving effect to the amendment, there is and will
be no Default or Event of Default.
The undersigned certifies that this Contract Amendment Certificate is
authorized hereby and is permitted pursuant to the Disbursement Agreement and
the Indenture, and all conditions precedent thereto have been met.
G-2
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing.
Attached to this Contract Amendment Certificate is a certificate from
the Independent Construction Consultant [for Contracts relating to Hard Costs
only:] and a certificate from the General Contractor.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:
Name:
Title:
Received and Reviewed:
RIVIERA HOLDINGS CORP.
By:--------------------------
Name:------------------------
Title:-----------------------
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
G-3
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 1 TO EXHIBIT G-1
Copy of Executed Contract Amendment
[To be attached by the Company]
G-4
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 TO EXHIBIT G-1
Form of Certificate of Independent Construction Consultant
Contract Amendment
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Amendment No. ___ to Contract dated __________ (the "Contract")
between Riviera Black Hawk, Inc., a Colorado corporation
and _____________________ ("Contractor")
Ladies and Gentlemen:
The undersigned (the "Independent Construction Consultant") hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Contract, as well as the above-referenced Contract Amendment
Certificate and the Cash Collateral and Disbursement Agreement dated as of June
3, 1999 (as amended, supplemented or otherwise modified from time to time, the
"Disbursement Agreement"), to which the Company is a party. Capitalized terms
used and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement.
2. The Independent Construction Consultant hereby certifies and
confirms the accuracy of the certifications in the above-referenced Contract
Amendment Certificate; provided that the Independent Construction Consultant
makes no certification or confirmation relating to the status of Gaming Licenses
or compliance with Gaming Laws with respect to whether the Riviera Black Hawk
will be Operating on or prior to the Operating Deadline.
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing relative to the amendment to the Contract.
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
G-5
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 2 TO EXHIBIT G-1
Form of Certificate of General Contractor
Contract Amendment
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Amendment No. ___ to Contract dated __________ (the "Contract")
between Riviera Black Hawk, Inc., a Colorado corporation,
and _____________________ ("Contractor")
Ladies and Gentlemen:
The undersigned (the "General Contractor") hereby certifies as follows:
1. The General Contractor has reviewed the above-referenced Contract,
as well as the above-referenced Contract Amendment Certificate and the Cash
Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to which the Company is a party, to the extent necessary to
understand the defined terms contained herein and in the Contract Amendment
Certificate that are incorporated by reference from the Disbursement Agreement,
and to provide the certification contained herein.
2. The General Contractor hereby certifies and confirms the accuracy of
the certifications in the above-referenced Contract Amendment Certificate, as
such certifications relate to Hard Costs; provided that the General Contractor
makes no certification or confirmation relating to the status of Gaming Licenses
or compliance with Gaming Laws with respect to whether the Riviera Black Hawk
will be Operating on or prior to the Operating Date.
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Independent Construction Consultant and the
Disbursement Agent is entitled to rely on the foregoing relative to the
amendment to the Contract.
G-6
THE WEITZ COMPANY, INC.,
as General Contractor
By:--------------------------
Name:------------------------
Title:-----------------------
G-7
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT G-2
Form of Additional Contract Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Riviera Black Hawk, Inc., [name of contract] dated ________ (the
"Contract"), between Riviera Black Hawk, Inc., a Colorado corporation
(the "Company"), and __________________("Contractor")
Ladies and Gentlemen:
The Company requests that the above-referenced Contract, a copy of
which is attached hereto as Schedule 1 (together with a Consent to Collateral
Assignment of Contract in the form of Exhibit H to the Disbursement Agreement
duly executed by Contractor, a copy of which is attached hereto as Schedule 2),
be approved and made effective. This certificate is delivered pursuant to that
certain Cash Collateral and Disbursement Agreement dated as of June 3, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to which you are a party. Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.
In connection with entering into the Contract, the Company hereby
represents, warrants and certifies as follows:
1. The work to be performed under the Contract relates to the following
line item under the Construction Disbursement Budget presently in effect and
consists of the following:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
Such work conforms to the Plans.
2. The Contract will permit the Company to complete the work within the
line items of the Construction Disbursement Budget presently in effect
pertaining to the Contract: (i) in a timely manner so as to permit the date on
which the Riviera Black Hawk (and its various components) becomes Operating to
occur on or prior to the Operating Deadline; and (ii) within the aggregate
amounts specified for the line
G-8
item in the Construction Disbursement Budget presently in effect. The Contractor
is competent to perform the work called for by the Contract.
3. Prior to and after giving effect to the Contract, there is and will
be no Default or Event of Default.
4. The entering into the Contract and the performance of the work
thereunder [will/will not] require an amendment to the Construction Disbursement
Budget. [if it will, add: Attached hereto is a duly completed and executed
Construction Disbursement Budget Amendment Certificate accurately describing
such amendment].
5. After giving effect to the Contract (and any related amendment to
the Construction Disbursement Budget) and the performance of the work under the
Contract the funds in the Construction Disbursement Account (together with any
actual or anticipated FF&E Financing to the extent permitted under the
Indenture) will be sufficient to cause the Riviera Black Hawk to become
Operating on or prior to the Operating Deadline.
6. The Company's entering into the proposed Contract is permitted under
Section 8.3 of the Disbursement Agreement and all conditions precedent thereto
have been met.
The undersigned certifies that this Additional Contract Certificate is
authorized hereby and is permitted pursuant to the Disbursement Agreement and
the Indenture, and all conditions precedent thereto have been met.
G-9
The foregoing representations, warranties and certifications are true,
complete and correct and each of the Disbursement Agent and the Independent
Construction Consultant is entitled to rely on the foregoing.
Attached to this Contract Amendment Certificate is a certificate from
the Independent Construction Consultant [for Contracts relating to Hard Costs
only:] and a certificate from the General Contractor.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:--------------------------
Name:------------------------
Title:-----------------------
Received and Reviewed:
RIVIERA HOLDINGS CORP.
By:--------------------------
Name:------------------------
Title:-----------------------
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
G-10
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 1 TO EXHIBIT G-2
Copy of Executed Contract
[To be attached by the Company]
G-11
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SCHEDULE 2 TO EXHIBIT G-2
Copy of Executed Consent to Collateral Assignment of Contract
[To be attached by the Company]
G-12
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 1 TO EXHIBIT G
Form of Certificate of Independent Construction Consultant
Additional Contract Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
Re: Additional Contract Certificate dated ________, ____, relating to
[name of contract] dated __________, _____ (the "Contract") between
Riviera Black Hawk, Inc., a Colorado corporation, and
_____________________ ("Contractor")
Ladies and Gentlemen:
The undersigned (the "Independent Construction Consultant"), hereby
certifies as follows:
1. The Independent Construction Consultant has reviewed the
above-referenced Contract, as well as the above-referenced Additional Contract
Certificate and the Cash Collateral and Disbursement Agreement dated as of June
3, 1999 (as amended, supplemented or otherwise modified from time to time, the
"Disbursement Agreement"), to which the Company is a party. Capitalized terms
used and not otherwise defined herein shall have the meanings given in the
Disbursement Agreement.
2. The Independent Construction Consultant hereby certifies and
confirms the accuracy of the certifications in paragraphs 1 and 2 of the
above-referenced Additional Contract Certificate. The Independent Construction
Consultant is not aware of any material errors in the information contained in
any other paragraph of the Additional Contract Certificate.
3. The Independent Construction Consultant [concurs/does not concur]
with the Company's certification that the entering into the Contract and the
performance of work thereunder [will/will not] cause the Available Funds to be
less than the amount required to cause the Riviera Black Hawk to become
Operating on or before the Operating Deadline; provided that the Independent
Construction Consultant makes no certification or confirmation relating to the
status of Gaming Licenses or compliance with Gaming Laws with respect to whether
the Riviera Black Hawk will be Operating on or prior to the Operating Deadline.
G-13
The foregoing representations, warranties and certifications are true,
complete and correct and the Disbursement Agent is entitled to rely on the
foregoing relative to authorizing the Company to enter into the Contract.
CRSS CONSTRUCTORS, INC.,
as Independent Construction Consultant
By:--------------------------
Name:------------------------
Title:-----------------------
G-14
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT 2 TO EXHIBIT G-2
Form of Certificate of General Contractor
Additional Contract Certificate
[Date]
IBJ Whitehall Bank & Trust Company,
as Disbursement Agent
One State Street
New York, New York 10004
CRSS Constructors, Inc.,
as Independent Construction Consultant
1670 Broadway, Suite 3200
Denver, Colorado 80202
Re: Additional Contract Certificate dated ________, ____, relating to
[name of contract] dated __________, _____ (the "Contract")
between Riviera Black Hawk, Inc., a Colorado corporation,
and _____________________ ("Contractor")
Ladies and Gentlemen:
The undersigned (the "General Contractor") hereby certifies as follows:
1. The General Contractor has reviewed the above-referenced Contract,
as well as the above-referenced Additional Contract Certificate and the Cash
Collateral and Disbursement Agreement dated as of June 3, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Disbursement
Agreement"), to which the Company is a party, to the extent necessary to
understand the defined terms contained herein and in the Additional Contract
Certificate that are incorporated by reference from the Disbursement Agreement,
and to provide the certification contained herein.
2. The General Contractor hereby certifies and confirms the accuracy of
the certifications in paragraphs 1 and 2 of the above-referenced Additional
Contract Certificate, as such certifications relate to the Hard Costs; provided
that the General Contractor makes no certification or confirmation relating to
the status of Gaming Licenses or compliance with Gaming Laws with respect to
whether the Riviera Black Hawk will be Operating on or prior to the Operating
Date.
G-15
The foregoing representations, warranties and certifications are true,
complete and correct and the Independent Construction Consultant and the
Disbursement Agent are entitled to rely on the foregoing relative to authorizing
the Company to enter into the Contract.
THE WEITZ COMPANY, INC.,
as General Contractor
By:--------------------------
Name:------------------------
Title:-----------------------
G-16
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
EXHIBIT H
Form of Consent to Collateral Assignment of Contract
THIS CONTRACTING PARTY'S CONSENT TO COLLATERAL ASSIGNMENT OF CONTRACT
(the "Consent") is made as of ____________, ____, by _________________________,
a ________________ [corporation] ("Contracting Party"), whose address is
____________________________, for the benefit of IBJ Whitehall Bank & Trust
Company, a New York banking association, having an office at One State Street,
New York, New York 10004, as trustee for the benefit of the holders of the Notes
(the "Trustee").
RECITALS
A. Notes. Pursuant to that certain Indenture dated as of June 3, 1999
(as amended, supplemented or otherwise modified from time to time, the
"Indenture"), by and between Riviera Black Hawk, Inc., a Colorado corporation,
as issuer (the "Company"), and the Trustee, as trustee, the Company has issued
$45,000,000 principal amount of its 13% First Mortgage Notes due 2005 With
Contingent Interest (the "Original Notes" and, together with any new notes
issued in exchange therefor, the "Notes"). All defined terms used and not
otherwise defined herein shall have the meanings given in the Indenture. The
proceeds of the Notes, minus certain debt financing costs, have been deposited
into an escrow account pursuant to a Cash Collateral and Disbursement Agreement
(the "Disbursement Agreement") of even date with the Indenture among IBJ
Whitehall Bank & Trust Company, as disbursement agent (the "Disbursement
Agent"), the Trustee, CRSS Constructors, Inc., as independent construction
consultant, and the Company.
B. Security. The Company must use the proceeds of the Notes disbursed
pursuant to the Disbursement Agreement for the construction of the Riviera Black
Hawk (as defined in the Disbursement Agreement). Contracting Party and the
Company are parties to that certain [name of contract] dated as of
______________, ____ (the "Contract") relating to the design, construction
and/or operation of the Riviera Black Hawk. The Company has executed a
Collateral Assignment dated of even date with the Indenture (as amended,
supplemented or otherwise modified from time to time, the "Collateral
Assignment"), in favor of the Trustee, collaterally assigning all of the
Company's right, title and interest in and to, among other things, the Contract,
in order to secure the obligations of the Company under, among other documents,
the Notes and the Indenture (the "Obligations").
CONSENT
NOW THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Contracting Party agrees as follows:
1. Consent to Assignment. Pursuant to the Contract, Contracting Party
has performed or supplied, or agreed to perform or supply, certain services,
materials or documents in connection with the Riviera Black Hawk. Contracting
Party hereby consents to the assignment thereof by the Company to the Trustee as
provided in the Collateral Assignment and this Consent.
H-1
2. The Company's Default under Contract. If the Company defaults under
the Contract, before exercising any remedy, Contracting Party shall deliver to
the Trustee at its address set forth above with a copy to the Independent
Construction Consultant at 1670 Broadway, Suite 3200, Denver, CO 80202,
Attention: Richter J. Schneider (or such other address provided thereby in
writing to the Company), by registered or certified mail, postage prepaid,
return receipt requested, written notice of such default, specifying the nature
of the default and the steps necessary to cure the same, and clearly marked as a
notice of default pursuant to this Paragraph 2. If the Company fails to cure the
default within the time permitted under the Contract, then the Trustee shall
have an additional thirty (30) days after the expiration of the time permitted
under the Contract (but in no event less than an additional thirty (30) days
after the receipt by the Trustee of said notice from Contracting Party) within
which the Trustee shall have the right, but not the obligation, to cure such
default; provided, however, that, with respect to payment defaults only, the
Trustee shall have thirty (30) days from receipt of notice of such default
within which the Trustee shall have the right, but not the obligation, to cure
such default. Contracting Party's delivery of such a notice of default to the
Trustee and the Trustee's failure to cure the same within the said additional
period shall be conditions precedent to the exercise of any right or remedy of
Contracting Party arising by reason of such default, except that Contracting
Party shall not be required to continue performance under the Contract for the
said additional period, unless and until the Trustee agrees to pay Contracting
Party for that portion of the work, labor and materials rendered during the said
additional period.
3. Certificate of Default Status. Upon the written request of the
Trustee at any time and from time to time, Contracting Party shall furnish to
the Trustee, within five (5) days of receipt of such request, a certificate
stating whether, as of such request receipt date, the Company is in default on
the Contract and, if so, the nature of the default and the steps necessary to
cure the same. Such certificate shall not constitute a written notice of default
pursuant to Paragraph 2 hereof unless clearly marked as such.
4. Company's Default under Obligations. If the Trustee gives written
notice to Contracting Party that the Company has defaulted under the Obligations
and requests that Contracting Party continue its performance under the Contract,
Contracting Party shall thereafter perform for the Trustee under the Contract in
accordance with its terms, so long as Contracting Party shall be paid pursuant
to the Contract for all work, labor and materials rendered or supplied
thereunder, including payment of any sums due to Contracting Party for work
performed or materials supplied up to and including the date of the Company's
default.
5. Performance for the Trustee. If the Trustee (a) cures any default
by the Company pursuant to Paragraph 2 above, (b) gives written notice to
Contracting Party that the Company has defaulted under the Collateral Documents
pursuant to Paragraph 4 above, (c) becomes the owner of the Riviera Black Hawk,
(d) undertakes to complete the construction of the Riviera Black Hawk pursuant
to its rights under the Collateral Documents, or (e) following a Default or an
Event of Default under (and as defined in) either the Indenture or the Cash
Collateral and Disbursement Agreement, otherwise requires the performance of
Contracting Party's obligations under the Contract or the use of any plans and
specifications, drawings, surveys or other materials or documents previously
prepared or provided by Contracting Party pursuant to the Contract, then in any
such event, so long as Contracting Party has received and continues to receive
the compensation required under the Contract related thereto, the Trustee shall
have the right to obtain performance from Contracting Party of all of its
obligations under the Contract, and to use all such plans and specifications,
drawings, surveys and other materials and documents, and the ideas, designs and
concepts contained therein, in connection with the completion of the Riviera
Black Hawk, without the payment of any additional fees or charges to Contracting
Party.
H-2
6. Amendments and Change Orders. Contracting Party agrees that it will
not modify, amend, supplement or in any way join in the release or discharge of
Contracting Party's obligations under the Contract unless (a) such change is
commercially reasonable, and (b) the Independent Construction Consultant
consents to such change in writing, or such change is otherwise expressly
permitted by the Disbursement Agreement, and Contracting Party agrees that it
will not perform any work pursuant to any change order or directive unless the
same is issued and executed in accordance with the foregoing and the terms and
conditions of the Contract.
7. List of Subcontracting Parties. Upon the written request of the
Trustee at any time and from time to time, Contracting Party shall furnish to
the Trustee a current list of all Persons with whom Contracting Party has
entered into subcontracts or other agreements related to the rendering of work,
labor or materials under the Contract, together with a statement as to the
status of each such subcontract or agreement, and the respective amounts, if
any, owed by Contracting Party related thereto.
8. Compliance with Laws. Contracting Party shall comply with, and
shall report to the Trustee any failure known to the Contracting Party of the
Company, the Riviera Black Hawk or any Person or entity furnishing materials or
services in connection with the construction of the Riviera Black Hawk to
comply, with all applicable laws, ordinances, regulations and governmental
requirements relating to the construction of the Riviera Black Hawk.
9. Contracting Party's Records. At the Trustee's request, Contracting
Party shall promptly submit to the Trustee such payroll vouchers, receipts, lien
releases and waivers, progress surveys, inspection reports and other documents
and papers relating to construction of the Riviera Black Hawk as the Trustee may
require to protect the priority of the Deed of Trust in favor of the Trustee on
the real property constituting the Riviera Black Hawk or to verify compliance
with the provisions of this Consent and the Cash Collateral and Disbursement
Agreement.
10. Trustee Inspections. The Trustee and its agents and
representatives shall have the right at any time to enter the site of the
Riviera Black Hawk and inspect the work of construction and all materials,
plans, specifications and other matters relating to the Riviera Black Hawk or
the construction thereof. From time to time, at Contracting Party's place of
business during customary business hours and upon reasonable prior notice, the
Trustee and its agents and representatives shall also have the right to examine,
copy and audit the books, records and accounting data and other documents of
Contracting Party relating to the Riviera Black Hawk. Any inspection of the
Riviera Black Hawk by the Trustee or any examination, acceptance or approval by
the Trustee of documents relating to the Riviera Black Hawk, including, but not
limited to, plans, specifications, books, records and vouchers, is for the sole
purpose of protecting the Trustee's rights under the Cash Collateral and
Disbursement Agreement and the other Collateral Documents and its security for
the Obligations. Contracting Party shall not rely on any such inspection,
examination, acceptance or approval by the Trustee. In no event shall the
Trustee or any of its agents be obligated to disclose to Contracting Party or to
the Company the results of any such inspection or examination.
11. Security of Property and Equipment. Contracting Party agrees to
cooperate with the Company and the Trustee in preserving their respective
ownership and security interests in all personal property relating to the
Riviera Black Hawk, including without limitation building materials, machinery
and appliances acquired by Contracting Party with the proceeds of the Notes and
held or stockpiled on or off the site of the Riviera Black Hawk for
incorporation into or use in connection with the Riviera Black Hawk.
H-3
12. Representations and Warranties. Contracting Party represents and
warrants to the Trustee that (a) it is duly licensed to conduct its business in
the jurisdiction contemplated by the Contract, and will at all times maintain
its license in full force and effect throughout the term thereof, (b) the
Contract has not been amended, modified or supplemented except as set forth
therein, (c) the Contract constitutes a valid and binding obligation of
Contracting Party and is enforceable against Contracting Party in accordance
with its terms, (d) there have been no prior assignments of the Contract, and
(e) all covenants, conditions and agreements of the Company and Contracting
Party contained in the Contract have been performed as required therein, except
for those that are not due to be performed until after the date hereof.
13. Application of Funds. Nothing herein imposes or shall be construed
to impose upon the Trustee any duty to direct the application of any proceeds of
the Notes, and Contracting Party acknowledges that the Trustee is not obligated
to Contracting Party or any of its subcontracting parties, materialmen,
suppliers or laborers.
14. Acknowledgment of Inducement. Contracting Party is executing this
Consent to induce the purchasers of the Notes to purchase the Notes. Contracting
Party understands that the purchasers of the Notes would not advance such funds
and make such purchases but for Contracting Party's execution and delivery
hereof.
15. Irrevocability. The provisions hereof shall be irrevocable and
remain in full force and effect until the Company has fully paid and performed
all of the Obligations.
16. Notices. Except for notices sent pursuant to Paragraph 2 above,
any notices to the Trustee hereunder shall be sent to its address set forth
above, by U.S. Mail, postage prepaid.
17. Governing Law. This Consent shall be governed by the laws of the
State of New York.
IN WITNESS WHEREOF, Contracting Party has executed this Consent as of
the date first above written.
CONTRACTING PARTY:
-------------------------------
By:----------------------------
Name:--------------------------
Title:-------------------------
H-4
CASH COLLATERAL AND DISBURSEMENT ACCOUNT
EXHIBIT I
Form of Pro Forma Title Policy
See Attached.
I-1