TRADEMARK LICENSE AGREEMENT
This is a TRADEMARK LICENSE AGREEMENT (the "Agreement"), dated as of
June 3, 1999 by and between RIVIERA OPERATING CORPORATION, a Nevada corporation
with offices at 2910 Las Vegas Boulevard South, Las Vegas, Nevada 89109
("Licensor"), and RIVIERA BLACK HAWK, INC., a Colorado corporation with offices
at 444 Main Street, Blackhawk, Colorado 80422 ("Licensee").
Background
WHEREAS, Licensee is a wholly owned indirect subsidiary of Licensor.
Licensor is the owner of the mark RIVIERA (the "Riviera Mark") and the other
marks listed on Schedule A (collectively the "Marks");
NOW, THEREFORE, for good and valuable consideration and intending to
be legally bound hereby, the parties agree as follows:
Terms
1. Grant of License. Licensor hereby grants to Licensee, for the
duration of the term of this Agreement, a non-exclusive, non-transferable
royalty-free, worldwide right and license (i) to use the Riviera Mark as part of
the corporate name and tradename "Riviera Blackhawk Inc." (the "Tradename") and
(ii) to use the Marks listed in the attached Schedule A (which may be amended
from time to time) in such logotypes and trade dress as Licensor may from time
to time specify in connection with the operation of a casino, hotel,
restaurants, and meeting and convention facilities at Black Hawk, Colorado and
the distribution and sale of approved merchandise at such location
(collectively, the "Licensed Business"). Licensees will not directly or
indirectly use, or authorize the use of, any Mark or Tradename in connection
with any product, service, or business other than the Licensed Business.
2. Use of the Marks.
(a) Licensee's use of the Marks and Tradename will comply with all
style sheets, corporate identity manuals, and other guidelines for the use of
the Marks and Tradename provided by Licensor to Licensee from time to time.
Licensee will submit to Licensor for Licensor's approval prior to use
representative samples of all merchandise, advertisements, brochures, displays,
and other advertising or promotional materials bearing any Mark or Tradename,
and all merchandise, advertisements, brochures, displays, and other advertising
and promotional materials created and used thereafter will not materially vary
in quality, content, or design from those originally approved by Licensor.
(b) The quality of the goods and services provided by Licensee in
connection with any Mark or Tradename shall equal or exceed the quality of
similar goods and services provided by Licensor or its designees at its
casino/hotel at 2910 Las Vegas Boulevard South and at such other locations as
Licensor or its designees may operate casino or hotel facilities under the
Riviera Mark. Licensee shall submit to Licensor such copies of internal and
external quality control reports as Licensor may request, including without
limitation all reports on the Licensed Business submitted to regulatory
authorities. Licensee will permit duly authorized representatives or agents of
Licensor at any time to visit and inspect Licensee's premises and meet with
Licensee's personnel regarding the quality of goods and services rendered under
the Marks or Tradename, and to inspect all books and records relating to
Licensee's use of the Marks and Tradename, the operation of the Licensed
Business, and the quality of goods and services rendered in connection with the
Marks and Tradename.
(c) Licensee acknowledges that the purpose of the inspections
conducted and quality control standards prescribed by Licensor in this Agreement
is to maintain the reputation and the goodwill of the Marks and Tradename and
the public's perception and awareness of the Marks and Tradename. Licensor shall
not bear or assume any responsibility or liability to third parties or
regulatory authorities as a result of setting or enforcing such standards or for
any failure of the Licensed Business to conform to such standards. Licensee
shall indemnify, defend and hold Licensor harmless against any and all claims,
losses, liabilities, damages, costs and expenses (including attorneys' fees and
expenses) arising from or relating to Licensee's conduct of the Licensed
Business or any other activities conducted by Licensee under any of the Marks or
the Tradename.
3. Ownership and Maintenance of the Marks; Infringement Claims.
(a) Licensee acknowledges that the ownership of all right, title and
interest in and to the Marks and Tradename is vested solely in Licensor.
Licensee agrees not to challenge the validity of this license or of Licensor's
ownership or registration of any Mark or Tradename, and agrees that Licensee's
use of the Marks and Tradename shall inure to the exclusive benefit of Licensor
for all purposes. Licensee shall take no action that would prejudice or
interfere with the validity of or Licensor's ownership of any Mark or Tradename,
and Licensee shall not enter into any agreement with any third party which in
any way alters, diminishes or restricts the rights of Licensor in any Mark or
Tradename or places any restrictions or conditions upon the use or appearance of
any Mark or Tradename.
(b) Licensor shall have the sole responsibility in its sole discretion
for maintaining and defending the validity of the Marks and the Tradename and
Licensor's ownership of the Marks and the Tradename as Licensor deems advisable,
for seeking and maintaining in Licensor's name such registrations of the
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Marks as Licensor deems advisable, and for taking such steps as Licensor deems
advisable to protect the Marks and the Tradename against infringement. Licensee
shall fully cooperate with Licensor at Licensee's expense in the taking of any
such actions. Licensee shall promptly notify Licensor of (i) any unauthorized
use or infringement by any third party of any Mark or Tradename and (ii) any
assertion by any third party that Licensee's use of any Mark or Tradename
constitutes trademark, service mark, trade dress or trade name infringement,
unfair competition or any other tortious act (collectively, "Claims"). If
Licensor chooses to initiate or defend any legal action with regard to any
Claims, Licensee shall cooperate fully with Licensor in the prosecution or
defense of such action. Licensor will bear the expenses of any such action
(including legal fees) and will be entitled to retain all amounts recovered.
Upon Licensor's written request, Licensee shall prosecute or defend any such
action under Licensor's direction at Licensor's expense. Licensee shall not
otherwise prosecute any application for registration, or prosecute or defend any
action involving any Mark or Tradename without the prior written consent of
Licensor. If Licensor notifies Licensee that the use of any Mark or Tradename is
adjudicated infringing or that Licensor has determined in its reasonable
judgment to modify or cease the use of any Mark or Tradename, Licensee will
immediately cease the use of such Mark or Tradename or modify such Mark or
Tradename consistent with Licensor's instructions at Licensee's expense.
4. Representations and Warranties. Licensor represents and warrants
that it is the owner of the federal trademark registrations listed in the
attached Schedule A, that it is the applicant of record in the applications for
federal trademark registration listed in the attached Schedule A, and that to
the best of its knowledge it is entitled to use the registered Marks in commerce
in connection with the Licensed Business. Licensor makes no representations or
warranties concerning the Marks and the Tradename other than the foregoing, and
disclaims any and all other representations and warranties concerning the Marks
and the Tradename. Except as otherwise specifically provided in this Agreement,
Licensor has no obligation to indemnify Licensee (or any assignee or other
person claiming rights through Licensee) in the event that Licensee's use of a
Mark or Tradename infringes, dilutes or otherwise violates, or is claimed to
infringe, dilute, or otherwise violate, the rights of any third party, and in no
event will Licensor be liable to Licensee (or any assignee or other person
claiming rights through Licensee) for incidental, special, or consequential
damages of any kind.
5. Term and Termination.
(a) Unless this Agreement is terminated earlier pursuant to Section
5(b) below, this Agreement shall terminate at such time as the Management
Agreement of even date between Licensee and Riviera Gaming Management of
Colorado, Inc. ("Gaming") terminates in accordance with its terms or at such
time as
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Licensor ceases to have a controlling equity or voting interest in Gaming,
whichever occurs first , provided that in the event that this Agreement has been
assigned to a third party or parties (collectively the "Secured Parties") as
part of the security for indebtedness incurred by Licensee and the Secured
Parties shall request in writing an extension of the term of this Agreement for
a specified period not to exceed six months ("Extended Term") and shall agree in
writing to terminate all use of the Marks by the end of the Extended Term, and
shall abide by the provisions of Section 6(b), the term shall be extended for
the period of the Extended Term.
(b) Licensor may terminate this Agreement at any time in the event of
a material breach of any of its terms by Licensee. In such event, Licensor shall
deliver written notice of such breach to Licensee and allow Licensee sixty (60)
days after the delivery of such notice in which to cure such breach. If the
breach is not cured to the reasonable satisfaction of Licensor, then this
Agreement shall terminate 60 days after the date of delivery of notice.
(c) Licensor's failure to terminate this Agreement for any one or more
acts or instances constituting a breach shall in no way be construed as a
waiver, express or implied, of Licensor's right to terminate for any other act
or instance of like or different nature.
6. Effect of Termination. Upon the termination of this Agreement for
whatever reason:
(a) the license of the Marks and Tradenames to Licensee, all of
Licensee's rights under this Agreement, and the rights under any sublicenses of
the Marks granted by Licensee, shall cease;
(b) Licensee shall (i) immediately cease all use of the Marks and all
materials bearing the Marks, (ii) shall reasonably promptly cease all use of the
Tradename and all materials bearing the Tradename and shall file with the
appropriate state governments to change its corporate name to delete the word
RIVIERA, and (iii) shall not adopt or use any similar marks or tradenames; and
(c) all of the other rights, duties and obligations of the parties
hereunder shall terminate except Licensees' covenants or obligations under
Sections 2(c) and 3.
7. Assignment; Sublicensing. Except for an assignment to the Secured
Parties as contemplated by that certain Collateral Agreement, dated as of June
3, 1999, made by the Licensor in favor of certain secured parties. Licensee may
not, without prior written consent of Licensor which may be granted or withheld
in
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Licensor's discretion, assign, sublicense or transfer to any third party any or
all part of their rights or duties under this Agreement. Licensor may freely
assign any or all of its rights and obligations under this Agreement (and any
successor or assign of Licensor shall enter into a Consent to Collateral
Assignment of License substantially in the form of that certain Consent to
Collateral Assignment of License entered into by Licensor for the benefit of
certain secured parties).
8. Miscellaneous.
(a) Any notice or consent required to be given under this Agreement
shall be in writing and shall be deemed given if personally delivered, sent by
facsimile transmission with confirmation of receipt, sent by overnight courier,
or sent by first class mail to the parties at the following addresses:
If to Licensor:
Riviera Operating Corporation
2910 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Fax: (702) 794-9277
Attention: President
If to Licensee:
Riviera Black Hawk, Inc.
444 Main Street
Black Hawk, Colorado 80422
Fax: (303) 582-5469
Attention: President
or to such other addresses as each party may designate in writing from time to
time.
(b) This Agreement is governed by and shall be construed in accordance
with the law of the state of New York, excluding any conflict-of-laws rule or
principle that might refer the governance or the construction of this Agreement
to the law of another jurisdiction. This Agreement may be amended or modified
only by a writing executed by all parties, and shall be binding upon and inure
to the benefit of the parties and their respective successors and permitted
assigns.
(c) This Agreement sets forth all of the promises and undertakings
between the parties relating to the subject matter hereof and supersedes
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all prior and contemporaneous agreements and understandings, express or implied,
oral or written with respect to the subject matter hereof.
[Signatures continued on the next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
RIVIERA OPERATING CORPORATION
By:________________________________
Name:
Title:
RIVIERA BLACKHAWK, INC.
By:________________________________
Name:
Title:
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SCHEDULE A
REGISTRATIONS
Mark Reg. No. Reg. Date
RIVIERA 2,090,347 8/26/97
APPLICATIONS
Mark Serial No. Filing Date
$40 FOR $20 75/194.182 11/6/96
BONUS 21 PLUS 75/152,286 8/19/96
JACK POTS 75/567,371 10/8/98
JACK POTS 75/567,372 10/8/98
JACK POTS 75/367,373 10/8/98
LOOSIE SLOTS 75/567,368 10/8/98
LOOSIE SLOTS 75/567/369 10/8/98
LOOSIE SLOTS 75/567/370 10/8/98
NICKEL HEAVEN 75/423,123 1/26/98
NICKEL TOWN 75/421,961 1/22/98
RIVIERA 74/646,349 3/13/95