EXECUTION COPY
ENVIRONMENTAL INDEMNITY
(Riviera Black Hawk Casino in Black Hawk, Colorado)
This Environmental Indemnity (as amended, modified or
otherwise supplemented from time to time, this "Indemnity") is made and entered
into as of June 26, 2002, by and among RIVIERA HOLDINGS CORPORATION, a Nevada
corporation ("RHC") and Riviera Black Hawk, Inc., a Colorado corporation
("RBH"), as indemnitors (RHC and RBH collectively referred to as "Indemnitors"),
and THE BANK OF NEW YORK, as trustee (in such capacity, together with its
successors and assigns in such capacity, the "Trustee") under the Indenture
referred to below for the holders from time to time (the "Holders") of the 11%
Senior Secured Notes due 2010 (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"), in the
original aggregate principal amount of $215,000,000, issued by RHC.
RECITALS
A. RBH is a wholly-owned subsidiary of RHC and RBH is the
present owner of the real property located in Black Hawk, Colorado included in
the Collateral and more particularly described on Exhibit A (the "Trust
Property").
B. RHC and the Trustee are, contemporaneously with the
execution and delivery of this Indemnity, entering into a certain Indenture,
dated as of June 26, 2002, by and among RHC, RBH, the other Guarantors named
therein and the Trustee (as the same may be supplemented, amended, restated or
otherwise modified from time to time, the "Indenture") pursuant to which RHC is
issuing the Notes.
C. The Indenture and the Notes are secured, in part, by RBH's
interest in the Trust Property and guaranteed, on a senior secured basis, by
RBH. The Trust Property is secured by that certain Deed of Trust to Public
Trustee, Security Agreement, Fixture Filing and Assignment of Rents, Leases and
Leasehold Interests, between RBH and Trustee, dated as of the date hereof (the
"Deed of Trust").
D. The Holders have required, as a condition precedent to
entering into the Indenture, that Indemnitors shall have executed and delivered
this Indemnity for the benefit of the Trustee and the ratable benefit of the
Holders.
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The Recitals are incorporated herein by this reference.
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2. Definitions. Capitalized terms used herein but not otherwise
defined shall have the meanings assigned to such terms in the Indenture. For
purposes of this Indemnity, the following terms have the meanings set forth
below.
"Adjacent Property" means any property so situated as to pose
a risk that a Hazardous Material could spread onto the Trust Property.
"Environmental Laws" collectively means and includes any and all applicable
present and, other than with respect to Section 3, future local, state and
federal law relating to the environment and environmental conditions, including,
without limitation, the Colorado Air Quality Control Act, Colo. Rev. Xxxx.xx.xx.
25-7-101 et seq.; the Colorado Water Quality Control Act, Colo. Rev. Xxxx.xx.xx.
25-8-101 et seq.; the Hazardous Waste Statute, Colo. Rev. Xxxx.xx.xx. 00-00-000
et seq.; the Hazardous Waste Sites Cleanup Statute, Colo. Rev. Xxxx.xx.xx.
00-00-000 et seq.; the Petroleum Storage Tank Statute, Colo. Rev. Xxxx.xx.xx.
8-20.5-101 et seq.; the Radiation Control Act, Colo. Rev. Xxxx.xx.xx. 00-00-000
et seq.; the Colorado Hazardous Substance Incidents Statute, Colo. Rev. Stat.
xx.xx. 00-00-000 et seq.; the Colorado Hazardous Substances Act of 1973, Colo.
Rev. Xxxx.xx.xx. 25-5-501 et seq.; the Resource Conservation and Recovery Act of
1976 ("RCRA"), 42 X.X.X.xx. 6901 et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 X.X.X.xx.xx.
9601-9657, as amended by the Superfund Amendments and Reauthorization Act of
1986 ("XXXX"), the Hazardous Materials Transportation Act, 49 X.X.X.xx. 6901, et
seq.; the Federal Water Pollution Control Act, 33 X.X.X.xx.xx. 1251 et seq.; the
Clean Air Act, 42 X.X.X.xx.xx. 741 et seq.; the Clean Water Act, 33 X.X.X.xx.
7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. xx.xx. 2601-2629, the
Safe Drinking Water Act, 42 U.S.C.ss.ss.300f-300j, or any other similar federal,
state or local law of similar effect, each as amended, and any and all
regulations, orders, and decrees now or hereafter promulgated thereunder or any
and all common law requirements, rules and bases of liability regulating,
relating to or imposing liability or standards of conduct concerning pollution
or protection of human health or the environment, as now or may at any time
hereafter be in effect.
"Hazardous Materials" means any substance, material or waste
that is or becomes designated or regulate as "toxic", "hazardous", pollutant",
or "contaminant" or a similar designation or regulation under any Environmental
Law or other federal, state or local law (whether under common law, statute,
regulation or otherwise) or judicial or administrative interpretation of such,
including, without limitation, asbestos, petroleum products or by-products
(including, without limitation, crude oil or any fraction thereof), the group of
organic compounds known as polychlorinated biphenyls, radon gas, natural gas,
urea formaldehyde, radioactive materials, toxic, infectious, reactive,
corrosive, ignitable or flammable chemicals and chemicals known to cause cancer
or adverse health effects.
"Material Adverse Effect" means any event, matter, condition
or circumstance which (i) has or would reasonably be expected to have a material
adverse effect on the business, properties, results of operations, or financial
condition of Indemnitors and their Subsidiaries, taken as a whole, or (ii) would
materially impair the ability of Indemnitors or any other Person to perform or
observe their respective obligations under or in respect of the Indenture, this
Indemnity, any Collateral Document, or any other document entered into by
Indemnitors in connection with the foregoing (collectively, the "Transaction
Documents"), in whole or part, or (iii) affects the legality, validity, binding
effect or enforceability of any of the Indenture or any other Transaction
Document, in whole or in part, or the perfection or priority of, or the ability
to exercise remedies with respect to, the Liens granted to the Trustee.
"Premises" means the Trust Property, and all improvements now
or hereafter located thereon, and all rights and interests of RBH therein.
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"Remedial Work" means any investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial work of any kind or
nature reasonably necessary under any applicable, local, state or federal law or
regulation, any judicial order, or by any governmental or nongovernmental entity
or person because of, or in connection with, the current or future presence,
suspected presence, release or suspected release of Hazardous Materials in or
into the air, soil, groundwater, surface water or soil vapor at, on, about,
under or within the Premises (or any portion thereof).
3. Representations and Warranties. Except as would not constitute a
Material Adverse Effect or except as otherwise set forth on Schedule 1, each of
the Indemnitors represents and warrants that: (1) no Hazardous Material has been
installed, used, generated, manufactured, treated, handled, refined, produced,
processed, stored or disposed of in, on or under the Trust Property, including,
without limitation, the surface and subsurface waters of the Trust Property,
except in compliance in all material respects with Environmental Laws; (2) no
activity has been undertaken on the Trust Property by Indemnitors, their
respective agents, employees, contractors, licensees, guests or tenants or to
their knowledge any other Person, which would cause, or has caused, (i) the
Trust Property to become a hazardous waste treatment, storage or disposal
facility, as such terms are defined and classified under any currently effective
Environmental Law, (ii) a release or threatened release of Hazardous Materials
on, under, about or from the Trust Property within the meaning of, or otherwise
violate, any currently effective Environmental Law (except as expressly
permitted in writing by a Governmental Authority), or (iii) the discharge or
emission of Hazardous Materials which would require a permit under any currently
effective Environmental Law hat has not been obtained and is in full force and
effect; (3) no conditions caused by Indemnitors, their respective agents,
employees, contractors, licensees, guests or tenants or, to their knowledge, any
other Person, with respect to the Trust Property cause a violation or support a
claim under any currently effective Environmental Law; (4) to the best of
Indemnitors' knowledge after due inquiry, no underground storage tanks are
located on the Trust Property or have been located on the Trust Property and
subsequently removed or filled; (5) with respect to the Trust Property,
Indemnitors have not received any notice at any time that it (or any of their
tenants or guests) is or was claimed to be in violation of or in non-compliance
with the conditions of any currently effective Environmental Law; and (6) there
is not now pending or threatened any action, judgment, claim, consent decree,
judicial or administrative orders or agreements, or governmental liens with
respect to Indemnitors or the Trust Property relating to any currently effective
Environmental Law.
4. Covenants. Each of the Indemnitors covenants: (i) that no Hazardous
Materials shall be installed, used, generated, manufactured, treated, handled,
refined, produced, processed, stored or disposed of in, on or under the Trust
Property, except in all material respects in compliance with all applicable
rules, regulations and laws; (ii) that no activity shall be undertaken on the
Trust Property which would cause (A) the Trust Property to become a hazardous
waste treatment, storage or disposal facility, as such terms are defined and
classified under any Environmental Law, (B) a release or threatened release of
Hazardous Materials on, under, about or from the Trust Property within the
meaning of, or otherwise violate, any Environmental Law (except as expressly
permitted in writing by a governmental authority), or (C) the discharge or
emission of Hazardous Materials into any watercourse, body of surface or
subsurface water or wetland, or the discharge into the atmosphere of any
Hazardous Materials, that would require a permit under any Environmental Law and
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for which no such permit has been issued; (iii) that no activity shall be
undertaken or permitted to be undertaken by Indemnitors on the Trust Property
which would reasonably be expected to result in a violation under any
Environmental Law; (iv) that soils excavated during construction and groundwater
generated during dewatering activities on the Trust Property shall be handled
and disposed of in compliance with Environmental Laws in all material respects;
(v) that if any Remedial Work is required under any applicable Environmental
Laws because of or in connection with current or future presence, suspected
presence, release or suspected release of a Hazardous Material into the air,
soil, ground water, surface water, or soil vapor on, under or about the Premises
or any portion thereof, Indemnitors shall promptly commence and diligently
prosecute to completion all such Remedial Work; provided that the Remedial Work
shall have been approved by any environmental regulatory agency having
jurisdiction over such work; (vi) all Remedial Work shall be performed by
contractors, and under the supervision of a consulting engineer, each approved
in advance by the Trustee and any necessary environmental regulatory agencies
and all costs and expenses of such Remedial Work and Trustee's or its agents' or
representatives' monitoring or review of such Remedial Work (including
reasonable attorneys' fees, charges and disbursements) shall be paid by
Indemnitors; (vii) if Indemnitors do not timely commence and diligently
prosecute to completion the Remedial Work, Trustee and its agents and
representatives may (but shall not be obligated to) cause such Remedial Work to
be performed and Indemnitors agree to bear and shall pay or reimburse Trustee on
demand for all expenses (including reasonable attorneys' fees, charges and
disbursements) relating to or incurred by Trustee and its agents and
representatives in connection with monitoring, reviewing or performing any
Remedial Work; (viii) Indemnitors shall not commence any Remedial Work or enter
into any settlement agreement, consent decree or other compromise relating to
any Hazardous Materials or Environmental Laws which might impair the value of
the Trustee's or the Holders' security hereunder or under the other Transaction
Documents, unless such Remedial Work is required to be performed by an
environmental regulatory agency under applicable law in which case Indemnitors
shall use their best efforts not to impair the value of the Trustee's or the
Holders' security under the Transaction Documents; and (ix) promptly following
completion of any remedial actions imposed upon Indemnitors under any
Environmental Law by a governmental agency in response to a violation of
Environmental Laws or any environmental permits, licenses, approvals or
authorizations or a release of Hazardous Materials at or from the Trust
Property, Indemnitors shall obtain and deliver to the Trustee, either (x) an
environmental report in form and substance reasonably acceptable to the Trustee
from an environmental consultant reasonably acceptable to the Trustee, stating
that all required action has been taken, and that upon completion of such
action, the Trust Property is, to the knowledge of such professional, then in
compliance with applicable Environmental Laws, or (y) a statement from the
governmental agency that required such action to the effect that all required
action has been taken to its satisfaction.
5. Indemnities. Indemnitors hereby agree to unconditionally indemnify,
defend, and hold the Trustee and the Holders harmless against: (1) any loss,
fines, penalties, actions, suits, proceedings, liability, damage, expense or
claim incurred in connection with, arising out of, resulting from or incident to
the application of any Environmental Law with respect to the Trust Property; (2)
any breach of any representation or warranty or the inaccuracy of any
representation made by Indemnitors in or pursuant to this Indemnity; (3) any
breach of any covenant or agreement made by Indemnitors in or pursuant to this
Indemnity; (4) any liability or obligation arising out of CERCLA, any equivalent
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state statute or any other Environmental Law which may be incurred or asserted
against the Trustee or the Holders, directly or indirectly, under Environmental
Laws, with respect to the Trust Property; and (5) any other loss, liability,
damage, expense or claim which may be incurred by or asserted against the
Trustee or the Holders, directly or indirectly, resulting from the presence of
Hazardous Material on the Trust Property, including (A) all foreseeable and
unforeseeable consequential damages, (B) the costs of any required or necessary
investigation, repair, cleanup, remediation or detoxification and (C) the costs
of the preparation and implementation of any closure, remedial or other remedial
plans. Notwithstanding anything herein to the contrary, this Indemnity shall not
be construed to impose liability on Indemnitors for Hazardous Materials placed,
released or disposed of on the Trust Property or any obligation or liability
under Environmental Law (except to the extent caused by the acts or omissions of
Indemnitors or their respective agents, employees, contractor, licensees, guests
and tenants) (i) after the date of foreclosure, assignment (other than an
assignment by the Trustee to a successor trustee under the Indenture) or sale,
(ii) after the acceptance by the Trustee of a deed in lieu of foreclosure, (iii)
during any period during which a receiver appointed upon the request or petition
of the Trustee is in possession of the Trust Property or the Trustee operates
the Trust Property as a mortgagee in possession, or (iv) to the extent such
liability arises from the gross negligence or willful misconduct of the Trustee
or any indemnitee hereunder.
6. Duration of Indemnity. The duration of Indemnitors' obligations
hereunder shall cease upon repayment of the Notes and/or the release of the Deed
of Trust; provided, however, that Indemnitors' obligations with respect to
Sections 5 and 9 shall not cease until the expiration of the statute of
limitations period applicable to the subject matter of the underlying claim.
7. Notices from Indemnitors. Indemnitors shall, promptly after
obtaining knowledge thereof, advise the Trustee in writing of: (i) any
governmental or regulatory actions instituted or threatened in writing under any
Environmental Law affecting the Trust Property or this Indemnity or any
requirement by a government or regulatory agency to take material response
action with respect to the presence of Hazardous Materials on the Trust
Property, including, without limitation, any notice of inspection (other than
routine inspections), abatement or noncompliance; (ii) all claims made or
threatened in writing by any third party against Indemnitors or the Trust
Property relating to any Hazardous Material or a violation of an Environmental
Law with respect to the Trust Property; (iii) Indemnitors' discovery of any
occurrence or condition on the Trust Property or any Adjacent Property that
would reasonably be expected to subject Indemnitors or the Trust Property to (A)
a material claim under any Environmental Law or (B) any restriction on
ownership, occupancy, transferability or material change in use of the Trust
Property under any Environmental Law; and (iv) the commencement of any Remedial
Work. Indemnitors shall deliver to the Trustee such documentation or records as
the Trustee may reasonably request and that are susceptible of being obtained by
Indemnitors relating to the Trust Property in relation to any Environmental Law
without undue cost or expense and without the necessity for initiating legal
proceedings to obtain the same. Trustee, on behalf of the Holders, may join and
participate in, as a party if it so determines, any legal or administrative
proceeding or action concerning the Premises under any Environmental Law.
Indemnitors agree to bear and shall pay or reimburse Trustee on demand for all
expenses (including reasonable attorneys' fees, charges and disbursements)
relating to or incurred by Trustee in connection with any such action or
proceeding.
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8. Notice of Claims Against Indemnitees. The Trustee agrees that it
shall provide Indemnitors with written notice of any claim or demand that the
Trustee has determined could give rise to a right of indemnification under this
Indemnity; provided that the failure to give any such notice shall not limit
Indemnitors' obligations hereunder. Such notice shall be given a reasonable time
after the Trustee becomes aware of the relevant facts and shall specify, to the
best of the Trustee's knowledge, the facts giving rise to the alleged claim, and
the amount, to the extent determinable, of liability for which indemnity is
asserted. Indemnitors agree that in any action, suit or proceeding brought
against the Trustee or any Holder of a Note, the Trustee or such Holder, as the
case may be, may be represented by counsel chosen by the Trustee or such Holder,
as the case may be, without affecting or otherwise impairing this Indemnity and,
to the extent fees and disbursements to such counsel are reasonably incurred in
protecting the Trustee's or such Holder's interests, to pay such fees and
disbursements. The Trustee agrees that, as to any action, suit or proceeding for
which Indemnitors have acknowledged in writing and undertaken its obligation to
indemnify, defend and hold the Holders harmless with respect thereto, the
Trustee will not settle or otherwise compromise any such action, suit or
proceeding without the prior written consent of Indemnitors, which consent shall
not be unreasonably withheld or delayed. If, as to any such action, suit or
proceeding for which Indemnitors have acknowledged in writing and undertaken
their obligation to indemnify, defend and hold the Holders harmless with respect
thereto, without obtaining the prior written consent in writing of Indemnitors,
the Trustee compromises or otherwise settles such action, suit or proceeding,
any such compromise or settlement without the consent of Indemnitors shall not
be binding upon Indemnitors. Indemnitors agrees that it will not settle or
compromise such action, suit or proceeding without the Trustee's prior written
consent, which consent shall not be unreasonably withheld or delayed.
9. Payment of the Trustee's Expenses. If after notice of claim under
Section 8 the Trustee retains counsel for advice or other representation in
connection with (i) any litigation, contest, dispute, suit or proceeding
(whether instituted by the Trustee, Indemnitors, or any other party, including
any governmental agency charged with enforcement of any Environmental Law) in
any way relating to this Indemnity, or (ii) efforts initiated in good faith to
enforce this Indemnity, then all of the reasonable attorneys' fees arising from
such services and all related expenses and court costs shall be payable by
Indemnitors within thirty (30) days after written demand.
10. Environmental Inspections. With written notice during regular
business hours (or with such notice and upon such terms as are reasonable in
light of the circumstances), the Trustee (and/or its agents, employees and
consultants) may enter the Trust Property to ascertain its environmental
condition and with the reasonable belief that there has been, or could be, a
release or threatened release of Hazardous Materials or a violation of
Environmental Laws, may sample building materials, take soil samples and/or test
borings, and otherwise inspect the Trust Property. The Trustee (and/or its
agents, employees and consultants) shall conduct such inspection in a reasonable
manner so as to not unduly disrupt the operation of Indemnitors and their guests
and tenants.
11. Obligations Absolute; Waivers. Except as otherwise provided in
Sections 5, 6, and 8, the obligations of Indemnitors hereunder shall remain in
full force without regard to, and shall not be impaired by the following, any of
which may be taken in such manner, upon such terms and at such times as the
Trustee, in accordance with the terms of the Indenture, this Indemnity, any
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Collateral Document, or any other document entered into by Indemnitors in
connection with the foregoing, deems advisable, without the consent of, or
notice to, Indemnitors (except to the extent that it may be entitled to consent
or notice, in its capacity as an Issuer or Subsidiary Guarantor, as applicable),
nor shall any of the following give Indemnitors any recourse or right of action
against the Trustee or any holder of a Note: (i) any express amendment,
modification, renewal, addition, supplement, extension or acceleration of or to
the Notes or the Indenture, this Indemnity, any Collateral Document, or any
other document entered into by Indemnitors in connection with the foregoing
(including, without limitation, this Indemnity, unless expressly agreed by the
parties hereto in writing); (ii) any exercise or non-exercise by the Trustee of
any right or privilege under the Indenture, this Indemnity, any Collateral
Document, or any other document entered into by Indemnitors in connection with
the foregoing; (iii) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
Indemnitors, or any affiliate of Indemnitors, or any action taken with respect
to this Indemnity by any trustee or receiver, or by any court, in any such
proceeding, whether or not Indemnitors shall have had notice or knowledge of any
of the foregoing; (iv) any release, waiver or discharge of Indemnitors (other
than under this Indemnity) or any endorser or other guarantor from liability
under any of the Indenture, this Indemnity, any Collateral Document, or any
other document entered into by Indemnitors in connection with the foregoing or
Indemnitors' grant to the Trustee of a security interest, Lien or encumbrance in
any of Indemnitors' property; (v) unless expressly agreed by the parties hereto
in writing, any subordination, compromise, settlement, release (by operation of
law or otherwise), discharge, compound, collection, or liquidation of the
Indenture, this Indemnity (unless expressly agreed to by the parties hereto in
writing), any Collateral Document, or any other document entered into by
Indemnitors in connection with the foregoing or any collateral described in the
Indenture, this Indemnity, any Collateral Document, or any other document
entered into by Indemnitors in connection with the foregoing or otherwise, or
any substitution with respect thereto; (vi) any assignment or other transfer of
the Indenture, this Indemnity, any other Collateral Document, or any other
document entered into by Indemnitors in connection with the foregoing, in whole
or in part; (vii) any acceptance of partial performance of any of the
obligations of Indemnitors under the Indenture, this Indemnity, any other
Collateral Document, or any other document entered into by Indemnitors in
connection with the foregoing; (viii) any consent to the transfer of any
collateral described in the Indenture, this Indemnity, any Collateral Document,
or any other document entered into by Indemnitors in connection with the
foregoing or otherwise; and (ix) any bid or purchase at any sale of the
collateral described in the Indenture, this Indemnity, any Collateral Document,
or any other document entered into by Indemnitors in connection with the
foregoing.
Except as otherwise provided in Sections 5, 6, and 8, the Indemnitors
unconditionally waive any defense to the enforcement of this Indemnity,
including, without limitation: (1) all presentments, demands (except as provided
herein and in the Transaction Documents), demands for performance, notices of
nonperformance, protests, notices of protest, dishonor, nonpayment, partial
payment or default, notices of acceptance of this Indemnity and all other
notices and formalities to which the Indemnitors may be entitled; (2) any right
to require the Trustee to proceed against any guarantor or to proceed against or
exhaust any collateral described in the Indenture, this Indemnity, any
Collateral Document, or any other document entered into by Indemnitors in
connection with the foregoing or to pursue any other remedy whatsoever; (3) the
defense of any statute of limitations affecting the liability of Indemnitors
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hereunder, the liability of Indemnitors or any guarantor under the Indenture,
any Collateral Document, or any other document entered into by Indemnitors in
connection with the foregoing, or the enforcement hereof, to the extent
permitted by law; (4) any defense arising by reason of any invalidity or
unenforceability of the Indenture, any Collateral Document, or any other
document entered into by Indemnitors in connection with the foregoing or any
guarantor or of the manner in which the Trustee has exercised its remedies under
the Indenture, this Indemnity, any Collateral Document, or any other document
entered into by Indemnitors in connection with the foregoing; (5) any defense
based upon any election of remedies by the Trustee, including, without
limitation, any election to proceed by judicial or nonjudicial foreclosure of
any security, whether real property or personal property security, or by deed in
lieu thereof, and whether or not every aspect of any foreclosure sale is
commercially reasonable, or any election of remedies (including, but not limited
to, remedies relating to real property or personal property security) that
destroys or otherwise impairs the rights of Indemnitors to proceed against any
other Indemnitors or any other guarantor for reimbursement, or both; (6) any
duty of the Trustee to advise Indemnitors of any information known to the
Trustee regarding the financial condition of any guarantor or of any other
circumstance affecting any guarantor's ability to perform its obligations to the
Trustee, it being agreed that Indemnitors assume the responsibility for being
and keeping informed regarding such condition or any such circumstances; (7) any
right of subrogation and any rights to enforce any remedy that the Trustee now
has or may hereafter have against any guarantor and any benefit of, and any
right to participate in, any security now or hereafter held by the Holders,
until all obligations under the Indenture, this Indemnity, any Collateral
Document, or any other document entered into by Indemnitors in connection with
the foregoing have been fully paid and indefeasibly performed; and (8) to the
extent permitted by law, any right to assert against the Trustee or any holder
of a Note any legal or equitable defense, counterclaim, set-off or crossclaim
that it may now or at any time or times hereafter have against any other
Indemnitors.
12. No Waiver. Indemnitors' obligations hereunder shall in no way be
impaired, reduced or released by reason of the Trustee's omission or delay to
exercise any right described herein or in connection with any notice (except for
notices required of the Trustee pursuant to this Indemnity), demand, warning or
claim regarding violations of any Environmental Laws governing the Trust
Property, except as expressly provided in Section 5 hereof.
13. Recourse.
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(a) Each of the Indemnitors agrees that the obligations of
Indemnitors hereunder are separate, independent of and in addition to
Indemnitors' respective obligations under the Indenture or any other Transaction
Document.
(b) Indemnitors agree that a separate action may be brought to
enforce the provisions of this Indemnity, which shall in no way be deemed to be
an action on the Notes, whether or not the Trustee would be entitled to a
deficiency judgment following a judicial foreclosure or sale under any Deed of
Trust. Indemnitors waive any right to require that any action be brought by the
Trustee or any holder of a Note against Indemnitors or any other Person, or that
any other remedy under the Indenture, this Indemnity, any other Collateral
Document, or any other document entered into by Indemnitors in connection with
the foregoing be exercised. The Trustee may, at its option, proceed against
Indemnitors in the first instance to collect monies when due or to obtain
performance under this Indemnity, without first proceeding against Indemnitors
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or any other Indemnitors or any other Person and without first resorting to any
other indemnity, the Indenture, this Indemnity, any Collateral Document, or any
other document entered into by Indemnitors in connection with the foregoing or
any other remedy under the Indenture, this Indemnity, any Collateral Document,
or any other document entered into by Indemnitors in connection with the
foregoing.
(c) This Indemnity is not given as additional security for the
Notes and is entirely independent of the Notes (except as provided in Section
5), and shall not be measured or affected by any amounts at any time owing under
the other Transaction Documents, the sufficiency or insufficiency of any
collateral (including without limitation the Premises) given to the Trustee to
secure repayment of the Notes, or the consideration given by the Trustee or any
other party in order to acquire the Premises or any portion thereof. None of the
obligations of Indemnitors hereunder shall be in any way secured by the lien of
the Deed of Trust or any other Transaction Document.
14. Successors and Assigns. Subject to the provisions of Sections 5 and
6, this Indemnity shall be continuing, irrevocable and binding on Indemnitors
and their respective successors and assigns, and this Indemnity shall be binding
upon and shall inure to the benefit of the Trustee and each Holder and their
respective successors and assigns. The death or dissolution of Indemnitors shall
not affect this Indemnity or any of Indemnitors' obligations hereunder. It is
agreed by Indemnitors that their liabilities hereunder are not contingent on the
signature of any other Indemnitor under any other indemnity.
15. Notices. All notices, demands and other communications under this
Indemnity shall be given in accordance with Section 13.02 of the Indenture.
16. Entire Agreement. This Indemnity constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter contained in this Indemnity.
17. Amendment and Waiver. This Indemnity may not be amended except by
a writing signed by all the parties, nor shall observance of any term of this
may be waived except with the written consent of the Trustee.
18. Governing Law. This Indemnity and any claims or disputes relating
thereto shall be governed and construed in accordance with the laws of the State
of New York ((INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW), without regard to the principles of conflict of laws
thereof.
19. Counterparts. This Indemnity may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same agreement.
20. Severability. All provisions contained in this Indemnity are
severable and the invalidity or unenforceability of any provision shall not
affect or impair the validity or enforceability of the remaining provisions of
this Indemnity.
9
21. Headings. The descriptive headings of the Sections of this
Indemnity are inserted for convenience only and do not constitute a part of this
Indemnity.
22. Joint and Several Liability. Each of the undersigned Indemnitors
shall be jointly and severally liable for all obligations, costs, indemnities,
expenses and other liabilities of Indemnitors under this Agreement.
23. Attorney's Fees. If Trustee, or someone on its behalf, retains the
services of any attorney in connection with this Agreement, Indemnitor shall pay
the costs and reasonable attorneys' fees thereby incurred. Trustee may employ an
attorney of Trustee's own choice.
24. Interest. In the event that Trustee or the Holders incur any
obligations, costs or expenses under this Agreement, Indemnitors shall pay such
costs, obligations and expenses immediately, on demand. If such payment is not
received within twenty (20) days after demand thereof, interest on such amount
shall, after the expiration of such twenty (20) day period, accrue at the rate
of eighteen percent (18%), or the maximum rate permitted by law, whichever is
less, until such amount, plus interest, is paid in full.
25. Jurisdiction and Venue. The Trustee and Indemnitors irrevocably and
unconditionally agree to submit to the exclusive jurisdiction of the state
courts and United States federal courts sitting in the State of New York for any
actions, suits or proceedings arising out of or relating to this Indemnity. The
Trustee and Indemnitors further irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Indemnity in the state courts and United States federal courts sitting
in the State of New York, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
26. Waiver of Jury Trial. To the fullest extent permitted by law, the
Trustee and Indemnitors each waives any right to have a jury participate in
resolving any dispute whether sounding in contract, tort or otherwise arising
out of, connected with, related to or incidental to the relationship established
between them in connection with this Indemnity. Any such disputes shall be
resolved in a bench trial without a jury.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Environmental Indemnity has been executed as
of the date first above written.
TRUSTEE: THE BANK OF NEW YORK, as Trustee
By:
-----------------------------------------
Name:
Title:
INDEMNITORS: RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-----------------------------------------
Name:
Title:
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:
-----------------------------------------
Name:
Title:
SCHEDULE 1
Hazardous Materials Disclosure
None.
Schedule 1-1
EXHIBIT A
[Legal Description (Colorado)]
