AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of June __, 2007, is entered into by and among, on the
one hand, RIVIERA HOLDINGS CORPORATION, a Nevada corporation ("Parent"), and
each of the Restricted Subsidiaries identified as a "Borrower" in the
below-referenced Loan Agreement (such Restricted Subsidiaries, together with
Parent, are referred to hereinafter individually and collectively, and jointly
and severally, as the "Borrower"), and, on the other hand, each of the lenders
that is identified as a "Lender" in the below-referenced Loan Agreement (such
lenders, together with their respective successors and assigns, are referred to
hereinafter each individually as a "Lender" and collectively as the "Lenders"),
and WELLS FARGO FOOTHILL, INC., a California corporation formerly known as
Foothill Capital Corporation, as the arranger and administrative agent for the
Lenders (in such capacity, together with its successors, if any, in such
capacity, "Agent" and together with the Lenders, collectively, the "Lender
Group"), in light of the following:
W I T N E S S E T H
WHEREAS, Borrower, each of the other Restricted Subsidiaries
of Parent identified in the Loan Agreement as a "Guarantor" (such other
Restricted Subsidiaries are referred to hereinafter individually and
collectively, and jointly and severally, as a "Guarantor"), and the Lender Group
are parties to that certain Loan and Security Agreement, dated as of July, 26,
2002 (as amended, restated, supplemented, or modified from time to time, the
"Loan Agreement"); and
WHEREAS, Borrower has notified Agent in writing of Borrower's
intention to enter into a new $245,000,000 secured credit facility (the "New
Credit Facility") with a group of lenders that includes Wells Fargo Foothill,
Inc. ("WFF") and Wachovia Bank, National Association ("Wachovia"), of which
group of lenders (the "New Lender Group") Wachovia is the agent ("New Agent"),
and to use the proceeds of the initial loans made under the New Credit Facility
to terminate the Loan Agreement and pay in full in cash the Obligations prior to
the Maturity Date and to prepay in full the Indebtedness under the Senior Note
Documents; and
WHEREAS, in connection with such termination of the Loan
Agreement and the payment in full in cash of all Obligations prior to the
Maturity Date, Borrower and the Lender Group desire to waive payment of the
Applicable Prepayment Premium otherwise required under Section 3.6 of the Loan
Agreement concurrently with the satisfaction of the conditions set forth in
Section 2 of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree to
amend the Loan Agreement as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement, as amended
hereby.
2. AMENDMENT TO LOAN AGREEMENT. Anything in Section 3.6 of the Loan Agreement to
the contrary notwithstanding, Agent, the Lenders, and Borrower hereby agree
that, solely in connection with the termination of the Loan Agreement prior to
the Maturity Date and the payment in full in cash of all Obligations
concurrently therewith from the proceeds of the initial loans made by the New
Lender Group under the New Credit Facility, the payment of the Applicable
Prepayment Premium otherwise required under Section 3.6 of the Loan Agreement
shall be waived, if and only if: (a) WFF is a lender within the New Lender Group
and designated under the New Credit Facility as the "Syndication Agent" of such
New Credit Facility; and (b) WFF, as such a lender within the New Lender Group,
holds not less than $7,000,000 of the total $20,000,000 revolving loan
commitments, and not less than $30,000,000 of the total $225,000,000 funded term
loan, that comprise the New Credit Facility.
3. CONDITIONS PRECEDENT TO THIS AMENDMENT. The satisfaction of each of the
following shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:
(a) The representations and warranties in the Loan Agreement and the
other Loan Documents shall be true and correct in all respects on and as of the
date hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
(b) Agent shall have received: (i) the reaffirmation and consent of
Guarantor, attached hereto as Exhibit A, duly executed and delivered by an
authorized official of Guarantor; and (ii) in connection with Section 2 above, a
payoff letter agreement in form and substance satisfactory to Agent, duly
executed by Agent (for and on behalf of the Lender Group) and all Borrowers and
all Guarantors;
(c) No Default or Event of Default shall have occurred and be
continuing on the date hereof or as of the date of the effectiveness of this
Amendment; and
(d) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against Borrower, Guarantor, or the Lender Group.
4. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF CALIFORNIA.
5. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and
provisions hereof, constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersedes any and all prior or contemporaneous
amendments relating to the subject matter hereof. Except for the amendment(s) to
the Loan Agreement expressly set forth in Section 2 hereof, the Loan Agreement
and other Loan Documents shall remain unchanged and in full force and effect. To
the extent any terms or provisions of this Amendment conflict with those of the
Loan Agreement or other Loan Documents, the terms and provisions of this
Amendment shall control. This Amendment is a Loan Document.
6. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Amendment by
signing any such counterpart. Delivery of an executed counterpart of this
Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
7. MISCELLANEOUS.
(a ) Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of
like import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b ) Upon the effectiveness of this Amendment, each reference in the
Loan Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or
words of like import referring to the Loan Agreement shall mean and refer to the
Loan Agreement as amended by this Amendment.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the date first written above.
Borrowers:
RIVIERA HOLDINGS CORPORATION, RIVIERA BLACK HAWK, INC.,
a Nevada corporation and "Administrative a Colorado corporation
Borrower"
By_______________________________
By_______________________________ Name:____________________________
Name:____________________________ Title: __________________________
Title: _____________________________
RIVIERA OPERATING CORPORATION, a Nevada corporation
By_______________________________
Name:____________________________
Title: _____________________________
Lenders:
WELLS FARGO FOOTHILL, INC., a California corporation formerly known as
Foothill Capital Corporation, as a Lender
By_______________________________
Name:____________________________
Title: _____________________________
Agent:
WELLS FARGO FOOTHILL, INC., a California corporation formerly known as
Foothill Capital Corporation, as Agent
By_______________________________
Name:____________________________
Title: _____________________________
A-1
WF Foothill/Riviera/2007-05 Amend-1.doc
Exhibit A
Exhibit A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to them in that certain Loan and
Security Agreement by and among, on the one hand, RIVIERA HOLDINGS CORPORATION,
a Nevada corporation ("Parent"), and each of the Restricted Subsidiaries
identified as a "Borrower" in the below-referenced Loan Agreement (such
Restricted Subsidiaries, together with Parent, are referred to hereinafter
individually and collectively, and jointly and severally, as the "Borrower"),
and, on the other hand, each of the lenders that is identified as a "Lender" in
the below-referenced Loan Agreement (such lenders, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "Lender" and collectively as the "Lenders"), and WELLS FARGO FOOTHILL,
INC., a California corporation formerly known as Foothill Capital Corporation,
as the arranger and administrative agent for the Lenders (in such capacity,
together with its successors, if any, in such capacity, "Agent" and together
with the Lenders, collectively, the "Lender Group"), dated as of July 26, 2002
(as amended, restated, supplemented or otherwise modified, the "Loan
Agreement"), or in Amendment Number Six to Loan and Security Agreement, dated as
of June __, 2007 (the "Amendment"), among Borrower and the Lender Group, and
reaffirmed and consented to by Guarantor. The undersigned each hereby (a)
represent and warrant to the Lender Group that the execution, delivery, and
performance of this Reaffirmation and Consent are within its powers, have been
duly authorized by all necessary action, and are not in contravention of any
law, rule, or regulation, or any order, judgment, decree, writ, injunction, or
award of any arbitrator, court, or governmental authority, or of the terms of
its charter or bylaws, or of any contract or undertaking to which it is a party
or by which any of its properties may be bound or affected; (b) consents to the
transactions contemplated by the Amendment; (c) acknowledges and reaffirms its
obligations owing to the Lender Group under any Loan Documents to which it is a
party; and (d) agrees that each of the Loan Documents to which it is a party is
and shall remain in full force and effect. Although the undersigned has been
informed of the matters set forth herein and has acknowledged and agreed to
same, it understands that the Lender Group has no obligations to inform it of
such matters in the future or to seek its acknowledgment or agreement to future
amendments, and nothing herein shall create such a duty. Delivery of an executed
counterpart of this Reaffirmation and Consent by telefacsimile shall be equally
as effective as delivery of an original executed counterpart of this
Reaffirmation and Consent. Any party delivering an executed counterpart of this
Reaffirmation and Consent by telefacsimile also shall deliver an original
executed counterpart of this Reaffirmation and Consent but the failure to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Reaffirmation and Consent. This
Reaffirmation and Consent shall be governed by the laws of the State of
California.
[signature page follows]
Exhibit A
IN WITNESS WHEREOF, the undersigned have each caused this
Reaffirmation and Consent to be executed as of the date of the Amendment.
Guarantors:
RIVIERA GAMING MANAGEMENT, INC., a Nevada corporation.
By_______________________________
Name:____________________________
Title: _____________________________
RIVIERA GAMING MANAGEMENT OF COLORADO, INC., a Colorado corporation
By_______________________________
Name:____________________________
Title: _____________________________