Recording at the Request of
and when Recorded Mail Original to:
Xxxxxx & Xxxxxxx
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxx, Esq.
ASSIGNMENT OF RENTS, LEASES AND LEASEHOLD INTERESTS
THIS ASSIGNMENT OF RENTS, LEASES AND LEASEHOLD INTERESTS (as the same
may be amended, supplemented or otherwise modified from time to time, this
"Assignment") is made and entered into as of May 29, 1999, by RIVIERA BLACK
HAWK, INC., a Colorado corporation ("Assignor"), whose address is c/o Riviera
Holdings Corporation, 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000,
and whose federal taxation identification number is 00-0000000, for the benefit
of IBJ WHITEHALL BANK & TRUST COMPANY, a New York banking association, having an
office at Xxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, in its
capacity as trustee under the Indenture referred to below (together with its
successors and assigns, "Assignee") for its benefit and the benefit of the
Holders (as defined herein).
RECITALS
A. Assignee and Assignor are the parties to that certain Indenture
dated as of June 3, 1999 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Indenture"). Unless otherwise defined herein,
capitalized terms used in this Assignment shall have the meanings given such
terms in the Indenture.
B. Assignor has, under the Indenture, issued its First Mortgage Notes
Due 2005 in the original principal amount of $45,000,000 (together with any
amendments, supplements, modifications, renewals or extensions thereof and any
notes issued in replacement thereof or exchange therefor from time to time, the
"Notes"). The Notes, the Indenture, the Collateral Documents and all other
documents, agreements and instruments (in each case, as amended, supplemented or
otherwise modified from time to time) now or hereafter executed and delivered in
connection with the Indenture and the transactions described therein are
collectively hereinafter referred to as the "Transaction Documents".
C. The Indenture requires that the obligations of Assignor under the
Notes,
the Indenture and the other Transaction Documents be secured by liens and
security interests covering certain property of Assignor. In connection
therewith, Assignor is executing and delivering, among other things, (i) that
certain Deed of Trust to Public Trustee, Security Agreement, Fixture Filing and
Assignment of Rents, Leases and Leasehold Interests, of even date herewith (as
amended, supplemented or otherwise modified from time to time, the "Deed of
Trust"), from Assignor to the Public Trustee of the County of Xxxxxx, Colorado,
for the benefit of Assignee encumbering the Property (as defined below), and
(ii) this Assignment.
D. Assignor, as landlord, may enter into certain leases or subleases of
portions of the Property. Such leases and subleases, and any other lease,
sublease, leases or subleases or agreement for the use and occupancy of all or
any portion(s) of the Property hereafter entered into by Assignor, together with
any and all guarantees, amendments, modifications, extensions and renewals
thereof, are hereinafter referred to as the "Tenant Leases".
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Assignor agrees as follows:
1. Definitions. As used herein, capitalized terms shall have the
following meanings:
"Improvements" means any and all buildings, constructions, facilities
and fixtures, pipelines and all other improvements now on, or hereafter located
or constructed on or in, the Land or any portion thereof.
"Land" means the real property described in Exhibit A attached hereto
and by this reference incorporated herein, including without limitation all air
rights with respect thereto.
"Property" means collectively the Land and the Improvements.
2. Assignment of Leases and Rents. Assignor hereby irrevocably,
absolutely, presently, unconditionally, and not merely as additional security
for the payment and performance of the Obligations, sells, assigns, sets over
and transfers to Assignee the following property, rights, interests and estates
now or in future owned or held by Assignor (collectively, the "Assigned
Property"):
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(a) any and all rights, title and interest of Assignor in, to and under
the Tenant Leases;
(b) any and all guaranties of the obligations of the tenants, licensees
or other occupants of the Property (the "Tenants") under any of the Tenant
Leases, or any other credit enhancements given to Assignor in connection with
any Tenant's performance under any of the Tenant Leases;
(c) the right to the use and possession of the Property and all of the
income, rents, receipts, security or similar deposits, revenues, issues,
royalties, profits, earnings, products and proceeds from any and all of the Land
or Improvements, now owned or hereafter acquired (collectively, the "Rents,
Issues and Profits") now due or that may become due or to which Assignor may now
or hereafter (whether during any applicable period of redemption, or otherwise)
become entitled or may demand or claim, arising out of or issuing from the
Tenant Leases, or from or out of the Property or any part thereof, including
without limitation liquidated damages following a default under a Tenant Lease,
any termination, cancellation, modification or other fee or premium payable by a
Tenant to Assignor for any reason and the proceeds of rental insurance;
(d) the right to the use and possession of any or all of the furniture,
furnishings, fittings, attachments, appliances, machinery, equipment, devices
and appurtenances of every kind and description now or hereafter affixed to,
located in or on the Property or available for the use of the Tenants or the
operation of the Property and in or to which Assignor has any right, title or
interest; and
(e) all rights or causes of action that Assignor mow of hereafter may
have against any Tenant.
Assignor further assigns, transfers and sets over to Assignee all of
Assignor's right, title and interest in and to all claims and rights to the
payment of money at any time arising in connection with any rejection or breach
of any of the Tenant Leases by a Tenant or trustee of the Tenant under Section
365 of the Bankruptcy Code, 11 U.S.C. Section 365, including without limitation
all rights to recover damages arising out of such breach or rejection, all
rights to charges payable by the Tenant or trustee in respect of the leased
premises following the entry of an order for relief under the Bankruptcy Code in
respect of such lessee and all rentals and other charges outstanding under the
Tenant Lease as of the date of entry of such order for relief.
3. Assignor Limited License. Provided that no Event of Default exists,
Assignor shall have the right under a license granted hereby and Assignee hereby
grants to Assignor a license to collect, but not more than one month in advance,
all of the Rents, Issues and Profits arising from or out of the Tenant Leases or
any renewals or extensions thereof, or from or out of the Property or any part
thereof, but only as trustee for the benefit of Assignee. Thereafter,
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so long as no Event of Default exists, Assignor may use the Rents, Issues and
Profits in any manner not inconsistent with the Indenture. The license granted
hereby shall be revoked automatically upon the occurrence of an Event of
Default. If Assignor nevertheless collects any Rents, Issues and Profits after
the license granted hereby is revoked, Assignor shall hold the same in trust for
Assignee and shall immediately pay the same to Assignee (in the form received,
except for any necessary endorsement), without the necessity of any request or
demand therefor.
4. Limitation. The acceptance by Assignee of the assignment provided
herein, together with all of the rights, powers, privileges and authority
created herein or elsewhere in this Assignment, shall not, prior to entry upon
and taking possession of the Property by Assignee, be deemed or construed to
constitute Assignee a "mortgagee in possession," nor thereafter or at any time
or in any event obligate Assignee to appear in or defend any action or
proceeding relating to the Tenant Leases, the Rents, Issues and Profits or the
Property or to take any action hereunder or to expend any money or incur any
expenses or perform or discharge any obligation or responsibility for any
security deposits or other deposits delivered to Assignor by any Tenant and not
assigned and delivered to Assignee, nor shall Assignee be liable in any way for
any injury or damage to person or property sustained by any person or persons,
firm or corporation in or about the Property.
5. Performance by Assignor. Assignor covenants and agrees that it shall
perform its obligations under the Tenant Leases in accordance with their terms.
Assignor shall not default in the performance of any obligation of Assignor
under any Tenant Lease if, by reason of such default, the Tenant or other party
thereunder has the right to cancel such Tenant Lease or to claim any diminution
or offset against future Rents, Issues or Profits.
6. Remedies. Upon the occurrence of any Event of Default, Assignee may,
at its option (in each case, subject to and in accordance with any applicable
terms of the Indenture):
(a) declare all sums secured hereby and by the Transaction Documents to
be immediately due and payable, and the same shall thereupon become immediately
due and payable without any presentment, demand, protest or notice of any kind;
(b) terminate Assignor's right and license to collect the Rents, Issues
and Profits and either in person or by agent, with or without bringing any
action or proceeding, or by a receiver appointed by a court, and without regard
to the adequacy of its security, enter upon and take possession of the Property
or any part thereof, and do any acts which it deems necessary or desirable to
preserve the value, marketability or rentability of the Property, or any part
thereof, and do any acts which it deems necessary or desirable to preserve the
value, marketability or rentability of the Property, or any part thereof or
interest therein, make, modify, enforce, cancel or accept the surrender of any
Tenant Lease, take actions which may affect the income therefrom or protect the
security hereof, and with or without taking possession of the Property, xxx for
or otherwise collect the Rents, Issues and Profits, including without limitation
those past due and
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unpaid, and apply the same, less costs and expenses of operation and collection,
including without limitation reasonable attorney's fees (including reasonable
charges for in-house counsel), upon any indebtedness evidenced by the Notes or
any other Transaction Documents, all in such order as Assignee may determine.
From and after receipt of prior written notice Assignee to pay Rents, Issues and
Profits directly to Assignee or another party designated by Assignee, each
Tenant shall pay all such payments under its respective Tenant Lease in the
manner instructed by Assignee. The entering upon and taking possession of the
Property or any portion thereof, the collection of the Rents, Issues and Profits
and the application thereof as aforesaid, or any of such acts, shall not cure or
waive any default or notice of default or invalidate any act done in response to
such default or pursuant to such notice, and notwithstanding the continuance in
possession of the Property or the collection, receipt and application of the
Rents, Issues and Profits, Assignee shall be entitled to exercise every right
provided for in any of the Indenture, the Notes, or the other Transaction
Documents or by law upon the occurrence of any Event of Default, including
without limitation the right to exercise the power of sale provided herein;
(c) notwithstanding the availability of legal remedies, obtain specific
performance mandatory or prohibitory injunctive relief, or other equitable
relief requiring Assignor to cure or refrain from repeating any default;
(d) with or without accelerating the maturity of the Obligations, xxx
from time to time for any payment due under any of the Indenture, the Notes or
the other Transaction Documents, or for money damages resulting from Assignor's
default under any of the Indenture, the Notes or the other Transaction
Documents; and/or
(e) exercise all other rights and remedies provided herein, in the
Indenture, the Notes, the other Transaction Documents or in any other document
or agreement now or hereafter securing all or any portion of the Obligations, or
at law or in equity, or any combination of any such rights or remedies, to the
extent permitted by law.
Upon request by Assignee, Assignor shall assemble and make available to
Assignee at the Land any of the Property which is not located on the Land or
which has been removed therefrom.
7. Additional Remedies. If an Event of Default has occurred and is
continuing, in addition to all other rights and remedies of Assignee as set
forth under Section 6 hereof, Assignee shall have the following rights and
remedies (together with the remedies set forth under Section 6 hereof, the
"Assignment Remedies"):
(a) Possession and/or Collection of Rent. Assignee, without first being
required to (i) foreclose, (ii) take any actions to foreclose, (iii) institute
any legal proceedings of any kind whatsoever or (iv) exercise any other actions
or remedies hereunder or at law or in equity, shall have the exclusive right and
power (but not the obligation) (A) to enter upon and
5
take possession of the Property or any part thereof, (B) to rent or re-rent the
same, either in the name of Assignee or Assignor, or either of them, and/or (C)
to receive all Rents, Issues and Profits from the Property. Assignee shall apply
any Rents, Issues and Profits received by Assignee first, to the costs and
expenses incurred by Assignee in protecting and operating the Property, and
next, to the payment of the Obligations in such manner and in such order of
priority as Assignee shall determine consistent with the provisions of the
Indenture. Any such action by Assignee shall not operate as a waiver of the
Event of Default in question, or as an affirmation of any Tenant Leases or of
the rights of any Tenant in the event title to that part of the Property covered
by the Tenant Leases or held by the Tenant should be acquired by Assignee or any
other purchaser at a foreclosure sale. The right of Assignee to receive all
Rents, Issues and Profits from the Property upon the occurrence and during the
continuance of any Event of Default shall be applicable whether or not Assignee
has entered upon, foreclosed, taken any actions to foreclose or taken possession
of the Property, whether or not Assignee has instituted any legal proceedings of
any kind whatsoever, or whether or not Assignee has otherwise attempted to
exercise any other actions or remedies hereunder or at law or in equity. If any
such Rents, Issues and Profits are paid to or received by Assignor, Assignor
shall hold the same in trust for Assignee and immediately pay the same to
Assignee (in the form received, except for any necessary endorsement), without
the necessity of any request or demand therefor. Until receipt from Assignee of
notice of the occurrence of an Event of Default hereunder and during the
continuance thereof, all Tenants of the Tenant Leases and any successors to the
leasehold interest of such Tenants may pay Rents, Issues and Profits directly to
Assignor, but after notice of the occurrence of any Event of Default and during
the continuance of same, Assignor covenants to and shall hold all Rents, Issues
and Profits paid to Assignor in trust for Assignee and shall immediately pay the
same to Assignee (in the form received, except for any necessary endorsement),
without the necessity of any request or demand therefor. Assignor hereby
authorizes and directs all Tenants of the Tenant Leases herein described, and
any successors to the leasehold interest of such Tenants, upon receipt of any
notice from Assignee stating that an Event of Default hereunder has occurred, to
pay to Assignee the Rents, Issues and Profits due and to become due under such
Tenant Leases. Assignor agrees that such Tenants shall have the right to rely
upon any such notice and request by Assignee without any obligation or right to
inquire as to whether an Event of Default actually exists and notwithstanding
any notice from or claim of Assignor to the contrary, and Assignor shall have no
right or claim against such Tenants for any such Rents, Issues and Profits so
paid by the Tenants to Assignee. In such event, receipt by Assignee of Rents,
Issues and Profits from such Tenants or their successors shall be a release of
such Tenants or their successors to the extent of all amounts so received by
Assignee.
(b) Management. Subject to the provisions of Section 14, Assignee, at
its option, may take over and assume the management, operation and maintenance
of the Property and perform all acts necessary and proper and expend such sums
out of the income of the Property as may be needed in connection therewith
including applying for appropriate approvals from the Liquor and Gaming License
Authorities, in the same manner and to the same extent as Assignor theretofore
might do, including without limitation the right to enter into new leases, to
6
cancel or surrender existing Tenant Leases, to alter or amend the terms of
existing Tenant Leases, to renew existing Tenant Leases, or to make concessions
to Tenants. Assignor hereby releases all claims against Assignee arising out of
such management, operation and maintenance, including without limitation such
claims as may arise from the negligence of Assignee, but not the gross
negligence or willful misconduct of Assignee.
(c) Receiver. Upon or at any time after the occurrence of any Event of
Default, Assignee shall at once become entitled to the possession, use and
enjoyment of the Property and the Rents, Issues and Profits from the date of
such occurrence and continuing during the pendency of any proceedings for sale
by the public trustee or foreclosure proceedings and the period of redemption,
if any. Assignee shall be entitled to a receiver for the Property, and of the
Rents, Issues and Profits, after any such Event of Default, including without
limitation the time covered by any proceedings for sale by the public trustee or
foreclosure proceedings and the period of redemption, if any. Assignee shall be
entitled to such receiver as a matter of right, without regard to the solvency
or insolvency of Assignor, or of the then owner of the Property, and without
regard to the value thereof, and such receiver may be appointed by any court of
competent jurisdiction upon ex parte application, and without notice, notice
being hereby expressly waived. All Rents, Issues and Profits, income and revenue
therefrom shall be applied by such receiver to the payment of the Obligations
according to the orders and directions of the court, or in the absence of such
orders or directions, in the manner set forth in Section 8 below.
(d) Attorney-in-Fact. Assignor appoints Assignee as Assignor's
attorney-in-fact, with full authority in the place and stead of Assignor and in
the name of Assignor, Assignee or otherwise, from time to time after the
occurrence of an Event of Default, to perform, at Assignee's election, any
action and to execute and record any instrument deemed necessary, advisable or
incidental to accomplish the purposes of this Assignment, including without
limitation in connection with exercising any Assignment Remedies and
effectuating the actions described in this Section 7 and in Section 6 hereof, in
each instance only to the extent Assignor has failed to comply with the
provisions of this Assignment. Such appointment is irrevocable and coupled with
an interest until payment in full and complete performance of all the
Obligations. Assignee may appoint a substitute attorney-in-fact. Assignor
ratifies all actions taken by the attorney-in-fact but, nevertheless, if
Assignee requests, Assignor will specifically ratify any action taken by the
attorney-in-fact by executing and delivering to the attorney-in-fact or to any
entity designated by the attorney-in-fact all documents necessary to effect such
ratification.
8. General Provision Pertaining to Remedies.
(a) The Assignment Remedies are cumulative and may be pursued
concurrently or otherwise, at such time and in such order as Assignee may
determine, in its sole discretion, and without presentment, demand, protest or
further notice of any kind, all of which are expressly waived by Assignor.
7
(b) The enumeration in the Indenture and the other Transaction
Documents of specific rights and powers will not be construed to limit any
general rights or powers or impair Assignee's rights with respect to the
Assignment Remedies.
(c) If Assignee exercises any of the Assignment Remedies, Assignee will
not be deemed a mortgagee-in-possession.
(d) Assignee will not be liable for any act or omission of Assignee in
connection with the exercise of the Assignment Remedies except as a result of
its gross negligence or willful misconduct.
(e) Assignee's right to exercise any Assignment Remedy will not be
impaired by Assignee's delay in exercising or failure to exercise the Assignment
Remedies and will not be construed as extending any cure period or constitute a
wavier of the default or Event of Default.
(f) If an Event of Default occurs, Assignee's or a receiver's payment
or performance of acceptance of payment or performance will not be deemed a
waiver or cure of the Event of Default.
(g) Assignee's or a receiver's acceptance of partial payment will not
extend or affect any grace period or constitute a waiver of a default or Event
of Default but will be credited against the unpaid Obligations.
(h) If Assignee or a receiver exercises any of the Assignment Remedies,
such action will not cure or waive any default, will not waive, modify or affect
any notice of default under the Transaction Documents and will not invalidate
any act done pursuant to a notice of default under the Transaction Documents.
Once Assignee exercises the Assignment Remedies, Assignee's enforcement will
continue for so long as Assignee elects, notwithstanding that the collection and
application of the Rents, Issues and Profits may have cured the original
default. If Assignee elects to discontinue the exercise of the Assignment
Remedies, the Assignment Remedies may be reasserted at any time and from time to
time following a subsequent Event of Default.
(i) A demand by Assignee or a receiver on any Tenant to pay Rents,
Issues and Profits to Assignee or the receiver by reason of an Event of Default
will be sufficient notice to such Tenant to make future payments of Rents,
Issues and Profits to Assignee or the receiver without the necessity for consent
by Assignor.
9. Application of Income. Assignee shall, after payment of all proper
charges and expenses, including reasonable compensation to any managing agent as
it shall select and employ, and after the accumulation of a reserve to meet
taxes, assessments and insurance as herein required or under the Indenture or
the other Transaction Documents in requisite amounts,
8
credit the net amount of income received by it from the Property by virtue of
this absolute assignment to any amounts due and owing to it by Assignor under
the terms hereof, but the manner of the application of said net income and what
items shall be credited shall be determined pursuant to the Indenture, or
otherwise in the sole discretion of Assignee. Without impairing its rights
hereunder, Assignee may, at its option, at any time and from time to time,
release to Assignor Rents, Issues and Profits received by Assignee, or any
portion of such Rents, Issues and Profits. Assignee shall not be liable for its
failure to collect, or its failure to exercise diligence in the collection of
Rents, Issues and Profits, but shall be accountable only for Rents, Issues and
Profits that Assignee shall actually receive. Assignee shall not be accountable
for more monies than it actually receives from the Property nor shall it be
liable for failure to collect Rents, Issues and Profits.
10. Term. This absolute assignment shall remain in full force and
effect so long as the Obligations or any part thereof to Assignee remains unpaid
or unsatisfied, in whole or in part.
11. Actions of Trustee. All provisions hereof shall inure to the
benefit of and all actions authorized hereunder shall be exercisable by Trustee
or any substitute Trustee at Assignee's request.
12. Duty to Defend. If Assignor or any of its trustees, officers,
participants, employees, agents or affiliates is a party in any proceeding
relating to this Assignment or the Tenant Leases and the Rents Issues and
Profits, Assignor will defend and hold harmless such party with attorneys and
other professionals retained by Assignor and approved by Assignee. At its
option, Assignee may engage its own attorneys and other professionals, at
Assignor's expense, to defend or assist such party. In any event, such
proceeding will be controlled by Assignee.
13. Payment of Expenses. Assignor is obligated to pay all reasonable
expenses incurred by Assignee or any receiver or that are otherwise payable in
connection with this Assignment or the Tenant Leases and the Rents, Issues and
Profits, including without limitation expenses relating to (i) any proceeding or
other claim asserted against Assignee arising under this Assignment and (ii) the
preservation of Assignee's security and the exercise of any Assignment Remedies.
14. Gaming Laws. The grant of, and terms and provisions of, this
Assignment, including, but not limited to, all rights and remedies of Assignee
and powers of attorney and appointment, are expressly subject to all laws,
statutes, regulations and orders affecting limited gaming or the sale of liquor
(collectively, the "Gaming Laws"), in the State of Colorado, which may include,
but not be limited to, the necessity for Assignee to obtain the prior approval
of the regulatory agencies enforcing the Gaming Laws before taking any action
hereunder and to be licensed by such regulatory agencies before exercising
certain rights and remedies hereunder.
15. Supplementary Assignment. This Assignment is intended to be
9
supplementary to and not in substitution for or in derogation of any assignment
of rents contained in the Deed of Trust. Failure of Assignee to avail itself of
any of the terms, covenants or conditions of this Assignment for any period of
time or for any reason shall not constitute a waiver thereof.
16. Notices. All notices and other communications under this Assignment
shall be in writing, except as otherwise provided in this Assignment. A notice,
if in writing, shall be considered as properly given if given in accordance with
the provisions of Section 5.8 of the Deed of Trust.
17. No Waiver of Remedies. By accepting payment of any amount secured
hereby after its due date, or an amount which is less than the amount then due,
or performance of any obligation required hereunder after the date required for
such performance, Assignee does not waive its right to require prompt payment or
performance when due of all other amounts or obligations so secured or to
declare a default by reason of the failure to so pay or perform.
18. Captions. The captions or headings at the beginning of each Section
hereof are for the convenience of the parties and are not to be construed as a
part of this Assignment.
19. Corrections. Assignor shall, upon request of Trustee, promptly
correct any defect, error or omission which may be discovered in the contents of
this Assignment or in the execution or acknowledgement hereof, and will execute,
acknowledge and deliver such further instruments and do such further acts as may
be necessary or as may be reasonably requested by Trustee to carry out more
effectively the purposes of this Assignment, to subject to the lien and security
interest hereby created any of Assignor's properties, rights or interest covered
or intended to be covered hereby, and to perfect and maintain such lien and
security interest.
20. Further Assurances. Assignor will execute, acknowledge and deliver
to Assignee, a receiver or any other entity Assignee designates, any additional
or replacement documents and perform any additional actions that Assignee or
such receiver determines are reasonably necessary to evidence, perfect or
protect Assignee's interest in the Assigned Property or to carry out the intent
or facilitate the performance of the provisions of this Assignment.
21. Attorneys' Fees. All references to "attorneys' fees" in this
Assignment shall include, without limitation, such reasonable amounts as may
then be charged by Assignee for legal services furnished by attorneys in the
employ of Assignee (including reasonable charges for in-house counsel).
22. Amendments. This Assignment cannot be waived, changed, discharged
or terminated orally, but only by an instrument in writing signed by the parties
hereto.
23. No Further Assignment. Assignor will not further assign or
otherwise transfer or encumber its interest in the Assigned Property without
Assignee's prior written consent, which may be withheld in Assignee's sole
discretion.
10
24. GOVERNING LAW. THIS ASSIGNMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCEPT
THAT, FOR PURPOSES OF DETERMINING THE CREATION, VALIDITY, PRIORITY AND
ENFORCEMENT OF THE LIEN CREATED HEREBY AND THE EXERCISE OF REMEDIES HEREUNDER IN
CONNECTION WITH SUCH LIEN, THE LAWS OF THE STATE OF COLORADO SHALL GOVERN.
25. Time of Essence. Time is of the essence of this Assignment and of
every part hereof of which time is an element.
26. Jurisdiction and Venue. At the sole option of Assignee, any action
concerning this Assignment or any other Transaction Document may be brought in
the Colorado District Court for the County in which Assignee is located or in
the United States District Court for the District of Colorado, and Assignor
consents to venue and personal jurisdiction with respect thereto.
27. Waiver of Jury Trial. Assignor hereby waives any right to jury
trial of any claim, cross-claim or counter-claim relating to or arising out of
or in connection with this Assignment and/or any of the other Transaction
Documents.
28. Waiver of Exemptions. To the extent permitted by law, Assignor
hereby waives all rights to any exemption to which Assignor would otherwise be
entitled under any present or future constitutional, statutory, or other
provision of applicable state or federal law.
29. Release. The recording of a full release of the Deed of Trust shall
automatically constitute a full release of this Assignment.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, Assignor has duly executed and delivered this
Assignment of Rents, Leases and Leasehold Interests as of the day and year first
above written.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:______________________________
Name: Xxxxx Xxxxx
Title: Executive Vice President of Finance and Treasurer
