Exhibit 10.16
HIGH DESERT GAMING, LLC
000 X. Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
April 16, 2007
Xxxx Xxxxxxx, President
Flag Luxury Riv, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Rivacq LLC
x/x Xxxxxxxxxx, Xxxxxxxxxx & Xxxx XXX
Xxxx.: Xxxxxx Xxxxx
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
RH1, LLC
Torino Companies
Attn.: Xxxxx Torino
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Re: Amended and Restated Joint Bidding Agreement dated as of April 5,
2006, among Flag Luxury Riv, LLC ("Flag"), Rivacq LLC ("Rivacq"),
High Desert Gaming LLC ("High Desert"), and RH1, LLC ("RH1") (the
"Joint Bidding Agreement"; capitalized terms used and not defined
herein have the respective meanings set forth in the Joint Bidding
Agreement)
Gentlemen:
The purpose of this letter is to memorialize our agreement with respect to
the Joint Bidding Agreement and our collective relationship as we move forward.
As we have discussed repeatedly over the past several months, we have
elected not to consent to or participate in the acquisition of Riviera Holdings
Corporation ("Riviera") subsequent to the rejection of our original proposal by
the Riviera shareholders in August 2006. In the course of our discussions with
you (via phone and e-mail) over the past several days, we all agreed that in the
event that we were not able to reach an agreement with you concerning the
disposition of High Desert's shares in Riviera (the "Shares") within a week's
time, those Shares would be free from any and all restrictions and constraints
imposed by the Joint Bidding Agreement.
Inasmuch as more than two weeks have passed and we have not come to such
an agreement, the parties to the Joint Bidding Agreement hereby agree that the
provisions of the Joint Bidding Agreement are no longer in effect with respect
to any of the Shares we hold. High Desert hereby agrees to promptly transfer all
of the shares it holds in Riv Acquisition Holdings Inc. ("RAH") to each of Flag,
Rivacq and RH1, pro rata to the shares currently held by each of Flag, Rivacq
and RH1 in RAH, in each case for aggregate consideration of One Dollar ($1.00).
Immediately upon such transfer, Flag, Rivacq and RH1 hereby agree to cause RAH
to refund to High Desert its pro rata share of the Consultants' Deposit in the
proportions set forth in Section 2.02(a) of the Joint Bidding Agreement (without
giving effect to any revision of such proportions), together with High Desert's
pro rata share of the refund of $29,649.72 made by the Colorado Division of
Gaming in March 2007, and of any other similar refunds or reimbursements due to
or received by or on behalf of RAH to the extent not included in the
Consultants' Deposit as of the date hereof.
Each of Flag, Rivacq and RH1 hereby agrees that in the event that the
Topping Fee (as defined in the Agreement and Plan of Merger, dated as of April
5, 2006, among RAH, Riv Acquisition Inc. and Riviera (the "Merger Agreement"))
is paid to RAH in circumstances where Riviera is acquired (directly or
indirectly, by merger or otherwise) by a party or parties other than RAH, Flag,
Rivacq or RH1, or any of their respective Affiliates, Flag, Rivacq and RH1 shall
cause RAH to promptly pay to High Desert an amount in cash equal to 30.0% of the
Topping Fee.
Each of Flag, Rivacq and RH1 hereby further agrees that in the event that
Riviera is acquired (directly or indirectly, by merger or otherwise) by a party
or parties consisting of RAH, Flag, Rivacq or RH1, or any of their respective
Affiliates, Flag, Rivacq and RH1 shall cause RAH to promptly pay to High Desert
an amount in cash equal to the lesser of (a) the aggregate amount of all costs
and expenses contributed by High Desert prior to the date hereof pursuant to
Sections 3.01 and 3.02 of the Joint Bidding Agreement and (b) Five Hundred
Thousand Dollars ($500,000).
Please signify your agreement with the foregoing by signing where
indicated below.
Sincerely,
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx, Manager
High Desert Gaming, LLC
Accepted and agreed:
FLAG LUXURY RIV, LLC
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: President
RIVACQ LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
RH1, LLC, by its sole member,
ONIROT Living Trust dated 06/20/2000
/s/ Xxxxx Torino
--------------------------------
Name: Xxxxx Torino
Title: Trustee
cc: Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx, Esq.
Xxxx Xxx
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
