PLEDGE AND ASSIGNMENT AGREEMENT
THIS PLEDGE AND ASSIGNMENT AGREEMENT, dated as of June 3, 1999 (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "Agreement"), is made by RIVIERA BLACK HAWK, INC., a Colorado
corporation, as pledgor ("Pledgor"), having an office at 444 Main Street, Black
Hawk,Colorado 80422, in favor of IBJ Whitehall Bank & Trust Company, a New York
banking association, having an office at One State Street, New York, New York
10004, as trustee (in such capacity, together with its successors and assigns,
the "Trustee") pursuant to the Indenture referred to below, on behalf of the
Secured Parties (as defined below).
RECITALS
A. Pledgor and the Trustee are, contemporaneously with the execution
and delivery of this Agreement, entering into (i) that certain Indenture dated
as of even date herewith (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which
Pledgor is issuing its 13% First Mortgage Notes due 2005 With Contingent
Interest (such notes, together with any notes issued in replacement thereof or
in exchange therefor, the "Notes"), in the original aggregate principal amount
of $45,000,000, and (ii) that certain Cash Collateral and Disbursement Agreement
dated as of even date herewith (as amended, restated, supplemented or otherwise
modified from time to time, the "Disbursement Agreement") pursuant to which the
net proceeds of the Notes (the foregoing, collectively, the "Note Proceeds")
will be administered and maintained, including the investment of certain
portions of such proceeds in Government Securities in accordance with the
Indenture.
B. It is a condition precedent to the purchase of the Notes that
Pledgor shall have executed and delivered this Agreement to the Trustee for
itself and the ratable benefit of the holders from time to time of the Notes
(the "Holders" and, together with the Trustee, the "Secured Parties") to secure
the payment and performance of the Obligations (as hereinafter defined).
C. Pledgor is the legal and beneficial owner of the securities listed
in Schedule I hereto and will be the legal and beneficial owner of all
securities purchased by or on behalf of Pledgor from time to time with the Note
Proceeds and/or other amounts deposited or accruing in the Pledged Collateral
Accounts, as defined below (all of the foregoing securities, collectively, the
"Securities").
AGREEMENT
Pledgor and the Trustee agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Indenture. In addition the
following terms shall have the following meanings when used herein.
"Account Agreement" means that certain Account Agreement dated as of
even date herewith by and among Pledgor, the Trustee, and IBJ Whitehall Bank &
Trust Company, as Securities Intermediary.
"Book-Entry Securities" means securities issued by the United States
of America or any agency or instrumentality thereof maintained through
registration on the books of a Federal Reserve Bank pursuant to applicable
Federal book-entry regulations.
"Governmental Authority" means any federal, state, local or foreign
court, agency, authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever or any governmental or
quasi-governmental unit, whether now or hereafter in existence, or any officer
or official thereof.
"Obligor" means any and all Persons obligated to pay money or to
perform some other act under or in respect of the Pledged Collateral.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, estate, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof and any fiduciary acting in such capacity on behalf of any
of the foregoing.
"Securities Intermediary" means a "securities intermediary" within the
meaning of 31 C.F.R. Section 357.2 and Section 8-102 of the Uniform Commercial
Code as in effect in the State of New York.
"Transaction Documents" means the Indenture, the Notes, the Collateral
Documents and all other documents, instruments, financing statements and other
agreements executed in connection herewith and therewith from time to time, as
each of the same may be amended, restated, supplemented or modified from time to
time.
"Unmatured Surviving Obligation" means, as of any date, an Obligation
(as defined in Section 3 hereof) which is contingent and unliquidated and not
due and owing on such date and which, pursuant to provisions of any Transaction
Document, survives termination of such Transaction Document and the repayment in
full or defeasance of the Notes.
Section 2. Pledge. As collateral security for the payment and
performance when due of the Notes and all other Obligations, Pledgor hereby
pledges, assigns, transfers and grants to the Trustee a continuing first
priority lien on all of the right, title and interest of Pledgor in, to and
under the following property (collectively, the "Pledged Collateral"):
(a) the Securities and the certificates, if any, evidencing
the Securities and any interest of Pledgor in the entries on the books
of any Securities Intermediary pertaining to the Securities;
(b) all Proceeds (as defined under the Uniform Commercial
Code as in effect in any relevant jurisdiction (the "Code") or under
other relevant law) of the Securities, and in any event including,
without limitation, any and all (i) proceeds of any
2
insurance (except payment made to a Person which is not a party to
this Agreement), indemnity, warranty or guarantee payable to Pledgor
from time to time with respect to any of the Securities, (ii) payments
(in any form whatsoever) made or due and payable to Pledgor from time
to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Securities by any Governmental Authority (or any person acting on
behalf of a Governmental Authority), and (iii) other amounts from time
to time paid or payable under or in connection with any of the
Securities; and
(c) any and all (i) funds and assets now or hereafter
deposited in Account Nos.
630000038.1 (Riviera Black Hawk, Inc. Construction Disbursement Account),
630000038.2 (Riviera Black Hawk, Inc. Interest Reserve Account),
630000038.3 (Riviera Black Hawk, Inc. Completion Reserve Account) and
630000038.4 (Riviera Black Hawk, Inc. Disbursed Funds Account)
at IBJ Whitehall Bank & Trust Company (each, a "Pledged Collateral
Account" and, collectively, the "Pledged Collateral Accounts"),
including interest that accrues either before or after the commencement
of any bankruptcy or insolvency proceeding by or against Pledgor, (ii)
present and future accounts, general intangibles, chattel paper,
contract rights, deposit accounts, instruments and documents (as
defined under the Code as in effect in any relevant jurisdiction) now
or hereafter relating or arising with respect to the Pledged Collateral
Accounts and/or the use thereof, and (iii) cash and noncash proceeds
and products of the items described in subparagraphs (i) and (ii)
above.
Section 3. Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including without limitation the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy
(whether or not a claim is allowed against Pledgor for such interest or other
amounts in any such bankruptcy proceeding) or the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss 362(a)), of all
obligations of Pledgor under the Transaction Documents (collectively, the
"Obligations").
Section 4. No Release. Nothing set forth in this Agreement shall
relieve Pledgor from the performance of any term, covenant, condition or
agreement on Pledgor's part to be performed or observed under or in respect of
any of the Pledged Collateral or from any liability to any Person under or in
respect of any of the Pledged Collateral or shall impose any obligation on the
Trustee or any other Secured Party to perform or observe any such term,
covenant, condition or agreement on Pledgor's part to be so performed or
observed or shall impose any liability on the Trustee or any Secured Party for
any act or omission on the part of Pledgor relating thereto or for any breach of
any representation or warranty on the part of Pledgor contained in this
Agreement, under or in respect of the Pledged Collateral or made in connection
herewith or therewith. The provisions set forth in this Section 4 shall survive
the termination of this Agreement and the discharge of Pledgor's obligations
under this Agreement or any other agreement constituting Pledged Collateral.
3
Section 5. Further Assurances. Pledgor agrees that, at any time and
from time to time, it will make, execute, endorse, acknowledge and file and
refile, or permit the Trustee to file and refile, such lists, descriptions and
designations of the Pledged Collateral, copies of documents of title, vouchers,
invoices, schedules, confirmatory assignments, supplements, additional security
agreements, conveyances, financing statements, amendments thereto, continuation
statements, transfer endorsements, powers of attorney and other documents
(including without limitation this Agreement), in form reasonably satisfactory
to the Trustee in such offices as the Trustee may deem reasonably necessary or
appropriate, wherever required or permitted by law in order to perfect, protect
and preserve the rights and interests granted to the Trustee hereunder. Pledgor
hereby authorizes the Trustee and appoints the Trustee as its attorney-in-fact
to file such financing statements, continuation statements, amendments thereto
and other documents, without the signature of Pledgor to the fullest extent
permitted by applicable law, and Pledgor agrees to do such further acts and
things, and to execute and deliver to the Trustee such additional assignments,
agreements, powers and instruments, as the Trustee may reasonably require to
carry into effect the purposes of this Agreement, to preserve or protect the
lien on the Pledged Collateral created by this Agreement or to assure and
confirm unto the Trustee its rights, powers and remedies hereunder. The
foregoing grant of authority is a power of attorney coupled with an interest and
such appointment shall be irrevocable for the term of this Agreement. All of the
foregoing shall be at the sole cost and expense of Pledgor.
Section 6. Representations, Warranties and Covenants. Pledgor
represents, warrants and covenants as follows:
(a) Delivery; Perfection. To the extent that any of the
Pledged Collateral constitutes certificated securities, Pledgor has
delivered to the Trustee all certificates representing the Pledged
Collateral relating to the Securities identified on Schedule I hereto
(and will immediately deliver to the Trustee all certificates
representing such Pledged Collateral acquired after the date hereof),
accompanied in each case by undated bond powers duly executed in
blank, and has caused to be filed with the Secretary of State of the
State of Colorado, the principal place of business of Pledgor, UCC-1
financing statements evidencing the lien or pledge created by this
Agreement, and, together with the book entries described in Section
6(h) below and the execution and delivery of this Agreement, such
delivery, filing, pledge, transfer and control of the Pledged
Collateral pursuant to this Agreement creates a valid and perfected
first priority security interest in the Pledged Collateral pursuant to
the Code in effect in the State of New York securing the payment and
performance in full of the Obligations.
(b) No Liens. Pledgor is as of the date hereof, and, as to
Pledged Collateral acquired by it from time to time after the date
hereof, Pledgor will be, the owner of all of the Pledged Collateral
free and clear of any lien (other than the lien granted to the Trustee
under this Agreement or any other Transaction Document and Permitted
Liens), and Pledgor shall defend the Pledged Collateral against all
claims and demands of all Persons at any time claiming any interest
therein adverse to the Trustee or any Secured Party.
4
(c) Other Financing Statements. There is no financing
statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any
interest of any kind in the Pledged Collateral and, so long as any
Obligations are outstanding, Pledgor shall not execute or authorize to
be filed in any public office any financing statement (or similar
statement or instrument of registration under the law of any
jurisdiction) or statements relating to the Pledged Collateral, except
financing statements filed or to be filed in respect of and covering
the lien granted by Pledgor pursuant to this Agreement or any other
Transaction Document.
(d) Chief Executive Office; Records. The chief executive
office of Pledgor is located at 2901 Las Vegas Boulevard, South Las
Vegas, Nevada 89109, and has been located there for at least four (4)
months preceding the date hereof. In addition, Pledgor's name has not
been changed in the four (4) months preceding the date hereof. Pledgor
shall not establish a new location for such office nor shall it change
its name unless (i) it shall have given the Trustee not less than
thirty (30) days' prior written notice of its intention so to do,
clearly describing such new location or locations or name and
providing such other information in connection therewith as the
Trustee may request, and (ii) with respect to such new location or
name, Pledgor shall have taken all action satisfactory to the Trustee
to maintain the perfection, priority and validity of the lien of the
Trustee in the Pledged Collateral intended to be granted by this
Agreement.
(e) Authorization Enforceability. Pledgor has full power,
authority and legal right to enter into this Agreement and to pledge
and grant a lien on all the Pledged Collateral owned by it pursuant to
this Agreement, and this Agreement has been duly authorized, executed
and delivered by Pledgor and constitutes the legal, valid and binding
obligation of Pledgor, enforceable against Pledgor in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
credits' rights generally and by general principles of equity.
(f) No Consents, Etc. No authorization, consent, approval,
license, qualification or formal exemption from, nor any filing,
declaration or registration with, any court, governmental agency or
regulatory authority, or with any securities exchange or any other
Person, is required in connection with (i) the due execution, delivery
or performance by Pledgor of this Agreement, (ii) the assignment of,
and the grant of a lien on (including the priority thereof), the
Pledged Collateral by Pledgor in the manner and for the purpose
contemplated by this Agreement, or (iii) the exercise of the rights
and remedies of the Trustee created hereby, except those that have
been obtained or made concurrently with the execution hereof or that
shall be obtained or made at the time new collateral is added,
including without limitation filings in the appropriate offices under
the Code and the execution and delivery of the Account Agreement.
(g) No Breach. None of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or
result in a breach of (i) any applicable law or regulation, (ii) any
order, writ, injunction or decree of any court or governmental
authority or agency, (iii) any agreement or instrument to which
Pledgor is a party or by which
5
Pledgor or any of the Pledged Collateral is bound or to which Pledgor
is subject, or (iv) result in the creation or imposition of any Lien
upon Pledgor's earnings or assets pursuant to the terms of any such
agreement or instrument.
(h) Book-Entry Securities. With respect to the Book-Entry
Securities identified in Schedule I hereto and the Book-Entry
Securities acquired by or on behalf of Pledgor from time to time with
the Note Proceeds and/or other amounts deposited or accruing in the
Pledged Collateral Accounts, Pledgor shall promptly cause (i) such
Book-Entry Securities to be credited to a Securities Intermediary's
trust/custody account maintained at the Federal Reserve Bank at which
such Securities Intermediary maintains a Participant's Securities
Account (as such term is defined in 31 C.F.R. ss 357.2) (and to be
identified on the records of such Federal Reserve Bank as being held
for the sole and exclusive account of such Securities Intermediary),
(ii) such Securities Intermediary to credit by book-entry such
Book-Entry Securities as being held for the account of the Trustee and
for the benefit of the Trustee, and (iii) such Securities Intermediary
to send a confirmation to the Trustee that such Securities
Intermediary is holding such Book-Entry Securities for the account of
the Trustee and for the benefit of the Trustee. With respect to the
Pledged Collateral, Pledgor and the Trustee hereby acknowledge and
agree that IBJ Whitehall Bank & Trust Company ("IBJ") is the
Securities Intermediary at which the securities accounts for the
Pledged Collateral is maintained, and IBJ hereby agrees to maintain
each of the Pledge Collateral Accounts as a "securities account"
within the meaning of Article 8 of the Code in effect in the state of
New York. IBJ hereby acknowledges that (i) it has by book-entry
credited the Book-Entry Securities to the Trustee and the Trustee is
the entitlement holder with respect to the security entitlements
therein, (ii) it shall, as Securities Intermediary, comply with all
written entitlement orders originated by the Trustee without the need
for further consent by Pledgor, and (iii) the Trustee shall have
control over the Book-Entry Securities and the security entitlements
and securities accounts relating thereto.
(i) Pledged Collateral. All information set forth herein
(including the exhibits hereto) relating to the Pledged Collateral is
accurate and complete in all material respects.
Section 7. Provisions Concerning the Pledged Collateral.
(a) Protection of the Trustee's Security. Pledgor shall not
take any action that impairs the rights of the Trustee in the Pledged
Collateral.
(b) Payments. So long as no Event of Default shall have
occurred and be continuing, all distributions, cash, interest, return
of capital or other payments made in respect of the Pledged Collateral
shall be deposited in the applicable Pledged Collateral Account and
utilized in accordance with the provisions of the Indenture and the
Disbursement Agreement (which utilization shall include, without
limitation, the payment of any installment due under the Notes). Upon
the occurrence and during the continuation of an Event of Default, all
rights to enforce and collect payments in respect of the Pledged
Collateral or to direct the disposition thereof shall be exercised
exclusively by the Trustee
6
and the proceeds of any such exercise shall be applied to Pledgor's
obligations under and in accordance with the Transaction Documents.
Section 8. Transfers and Other Liens. Pledgor shall not (i) sell,
convey, assign or otherwise dispose of, or grant any option, right or warrant
with respect to, any of the Pledged Collateral except as permitted under the
Indenture, the Disbursement Agreement and this Agreement, or (ii) create or
permit to exist any Lien upon or with respect to any Pledged Collateral, except
for the lien of this Agreement and the other Transaction Documents.
Section 9. Remedies Upon Default; Obtaining the Pledged Collateral
Upon Event of Default.
(a) If an Event of Default shall have occurred and be
continuing, then and in every such case, the Trustee may:
(i) instruct the obligor or obligors on any
agreement, instrument or other obligation constituting
Pledged Collateral to make any payment required by the terms
of such instrument or agreement directly to or as directed
by the Trustee; provided, however, that in the event that
any such payments are made directly to Pledgor prior to
receipt by any such obligor of such instruction or
notwithstanding such instruction, Pledgor shall hold such
amounts as agent and trustee for the Trustee, segregate all
amounts received pursuant thereto in a separate account and
pay such amounts promptly to or as directed by the Trustee;
and
(ii) proceed to exercise all rights, privileges
and remedies of Pledgor under the Pledged Collateral, and
may exercise such rights and remedies either in the name of
the Trustee or in the name of Pledgor for the use and
benefit of the Trustee to the fullest extent permitted by
applicable law.
(b) Upon the occurrence and during the continuance of an
Event of Default, the Trustee may from time to time exercise in
respect of the Pledged Collateral, in addition to the other rights and
remedies provided herein or otherwise available to it, all the rights
and remedies of a secured party under the Code. The proceeds of the
exercise by the Trustee of any remedy hereunder shall be paid to and
applied as follows:
FIRST: to the payment of reasonable costs and
expenses of any suit and of all proper compensation,
expenses, liabilities and advances, including without
limitation reasonable legal expenses and attorneys' fees,
owed to, incurred or made by the Trustee and all taxes,
assessments or liens superior to the lien hereof,
SECOND: to the payment of all amounts due and
owing under the Transaction Documents (including without
limitation the Notes) and all other Obligations; and
7
THIRD: the balance, if any, to Pledgor or to the
Person lawfully entitled thereto as determined by a court of
competent jurisdiction.
(c) Upon the occurrence and during the continuance of an
Event of Default, the Trustee may, upon ten (10) business days' prior
written notice to Pledgor of the time and place, with respect to the
Pledged Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the Trustee
or any of its agents, sell, lease, assign or otherwise dispose of all
or any part of the Pledged Collateral, at such place or places as the
Trustee deems best, and for cash or for credit or for future delivery,
at public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable
statute and cannot be waived), and the Trustee or anyone else may be
the purchaser, lessee, assignee or recipient of any or all of the
Pledged Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the
same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or otherwise),
of Pledgor, any such demand, notice (other than the notice specified
above) and right or equity being hereby expressly waived and released.
The Trustee may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so
adjourned. Notwithstanding the first sentence of this Section 9(c) to
the contrary, with respect to that portion of the Pledged Collateral
consisting of Book-Entry Securities, the parties acknowledge and agree
that such Pledged Collateral is sold on a recognized market and,
accordingly, the Trustee need not furnish Pledgor with notice of its
intention to sell such Pledged Collateral. The proceeds of each
collection, sale or other disposition under this Section 9(c) shall be
applied in accordance with Section 9(b) hereof.
(d) Private Sale. The Trustee shall incur no liability as a
result of the sale of the Pledged Collateral, or any part thereof, at
any private sale pursuant to Section 9(c) hereof conducted in a
commercially reasonably manner. Pledgor hereby waives any claims
against the Trustee arising by reason of the fact that the price at
which the Pledged Collateral may have been sold at such private sale
was less than the price that might have been obtained at a public sale
or was less than the aggregate amount owed by Pledgor under the
Transaction Documents, even if the Trustee accepts, the first offer
received and does not offer the Pledged Collateral to more than one
offeree.
Section 10. No Waiver; Cumulative Remedies.
(a) No failure on the part of the Trustee to exercise, no
course of dealing with respect to, and no delay on the part of the
Trustee in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof. No single or partial exercise of any such
right, power or remedy hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
The remedies provided herein and in the other Transaction Documents
are cumulative and are not exclusive of any remedies provided by law.
8
(b) In the event the Trustee shall have instituted any
proceeding to enforce any right, power or remedy under this Agreement,
and such proceeding shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Trustee, then,
and in every such case, Pledgor, the Trustee and each obligor under
the Notes shall be restored to their respective former positions and
rights hereunder with respect to the Pledged Collateral, and all
rights, remedies and powers of the Trustee shall continue as if no
such proceeding had been instituted.
Section 11. The Trustee May Perform; the Trustee Appointed
Attorney-In-Fact. If Pledgor fails to do any act or thing that it has covenanted
to do hereunder or if any warranty on the part of Pledgor contained herein shall
be breached, the Trustee may (but shall not be obligated to), upon notice to
Pledgor specifying the action to be taken, do the same or cause it to be done or
remedy any such breach, and may expend funds for such purpose. Any and all
amounts so expended by the Trustee (including, but not limited to, reasonable
legal expenses and disbursements) shall be paid by Pledgor promptly upon demand
therefor, with interest at the Default Rate during the period from the date on
which such payment is made to and including the date of repayment. Pledgor
hereby authorizes the Trustee and appoints the Trustee its attorney-in-fact,
with full authority in the place and stead of Pledgor and in the name of
Pledgor, or otherwise, from time to time in the Trustee's reasonable discretion
to take any action and to execute any instrument which is consistent and in
accordance with the terms of this Agreement and the Transaction Documents and
which the Trustee may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement. The foregoing grant of authority is a power of
attorney coupled with an interest and such appointment shall be irrevocable for
the term of this Agreement. Pledgor hereby ratifies all actions that such
attorney shall lawfully take or cause to be taken in accordance with this
Section 11.
Section 12. Modification in Writing. This Agreement, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by an act or failure to act on the part of Pledgor, but
only by an agreement in writing and signed by the Trustee. Any amendment,
modification or supplement of or to any provision of this Agreement, any waiver
of any provision of this Agreement, and any consent to any departure by Pledgor
from the terms of any provision of this Agreement shall be effective only in the
specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Agreement, no notice to or demand
on Pledgor in any case shall entitle Pledgor to any other or further notice or
demand in similar or other circumstances.
Section 13. Termination; Release. When all Obligations of Pledgor
(other than any Unmatured Surviving Obligations) under the Transaction Documents
have been released or performed in full, this Agreement shall terminate. Upon
termination of this Agreement, the Trustee shall upon the request and at the
sole cost and expense of Pledgor forthwith assign, transfer and deliver, and
shall direct IBJ, as Securities Intermediary, to assign, transfer and deliver,
to Pledgor against receipt and without express or implied recourse to or
warranty by the Trustee, such of the Pledged Collateral to be released as may be
in possession of the Trustee or IBJ (as applicable) and as shall not have been
sold or otherwise applied pursuant to the terms hereof, and proper instruments
(including Code termination statements) acknowledging the termination of this
Agreement and the release of such Pledged Collateral, as the case may be.
9
Section 14. Notices. All notices, requests, demands and other
communication shall be given in the manner set forth in Section [13.02] of the
Indenture and shall be given or delivered at the following respective addresses
and facsimile and telephone numbers and to the attention of the following
individuals or departments: (i) if to Pledgor, at its address specified pursuant
to the Indenture; (ii) if to the Trustee, at its address specified pursuant to
the Indenture; (iii) if to the Securities Intermediary, at its address specified
on the signature page hereto; and (iv) as to any such party, at such other
address, facsimile or telephone number, or to the attention of such other
individual or department, as the party to which such information pertains may
hereafter specify for the purpose in a notice to the other specifically
captioned "Notice of Change of Address."
Section 15. Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) be binding upon Pledgor and each of its successors and assigns, and (ii)
inure to the benefit of the Trustee and its successors and assigns. Without
limiting the generality of the foregoing clause (ii), the Trustee may assign or
otherwise transfer any indebtedness or obligations held by it and secured by
this Agreement to any other Person in accordance with the Indenture, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Trustee, herein or otherwise. Pledgor may not assign any
of its rights under this Agreement without the prior written consent of the
Trustee, which consent may be granted or withheld in the Trustee's sole and
absolute discretion, and any attempted assignment in violation of this Section
15 shall be null and void.
Section 16. GOVERNING LAW; TERMS. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO CALIFORNIA'S PRINCIPLES OF CONFLICTS OF LAW), AND EACH
OF THE PARTIES HERETO, TOGETHER WITH THE SECURITIES INTERMEDIARY, EXPRESSLY
AGREES THAT FOR PURPOSES OF SECTION 8-110 OF THE CODE IN EFFECT IN THE STATE OF
NEW YORK, THE SECURITIES INTERMEDIARY'S JURISDICTION IS NEW YORK. THE PARTIES
HERETO IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN THE CITY OF NEW YORK OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 17. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 18. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts shall constitute one and the same Agreement.
Section 19. Headings. The Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
10
Section 20. Entire Agreement. This Agreement, together with those
other agreements referenced herein, constitutes the entire agreement and
understanding of the parties hereto with respect to the matters and transaction
contemplated hereby and supersedes all prior agreements and understandings
whatsoever relating to such matters and transactions.
Section 21. Limitation on Duty of the Trustee in Respect of Collateral.
Beyond the exercise of reasonable care in the custody thereof, the Trustee shall
have no duty as to any Pledged Collateral in its possession or control or in the
possession or control of any agent or bailee or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto. The Trustee shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged Collateral in its possession if such
Pledged Collateral is accorded treatment substantially equal to that which the
Trustee accords its own property, and shall not be liable or responsible for any
loss or damage to any of the Pledged Collateral, or for any diminution in the
value thereof, by reason of the act or omission of any agent or bailee selected
by the Trustee in good faith.
Section 22. Indemnification. Pledgor agrees to indemnify the Trustee
and hold the Trustee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind or nature whatsoever, including without
limitation the reasonable fees and disbursements of counsel, which may be
incurred by the Trustee in connection with its actions hereunder or in
connection with any investigative, administrative or judicial proceeding
(whether or not the Trustee shall be designated a party thereto) relating to or
arising out of this Agreement or the Pledged Collateral (including without
limitation any such proceeding by Pledgor against the Trustee or the Trustee
against Pledgor); provided that the Trustee shall not have the right to be
indemnified hereunder for its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
[Signature Page Follows]
11
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer as of the
date first above written.
PLEDGOR:
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:-----------------------------------
Name:---------------------------------
Title:--------------------------------
THE TRUSTEE:
IBJ WHITEHALL BANK & TRUST COMPANY,
a New York banking association
By:-----------------------------------
Name:---------------------------------
Title:--------------------------------
IBJ Whitehall Bank & Trust Company, acting in its capacity as Securities
Intermediary, hereby acknowledges its agreement to be bound by the provisions
set forth in Sections 6(h) and 16 of this Agreement.
IBJ WHITEHALL BANK & TRUST COMPANY,
a New York banking association
By:-----------------------------------
Name:---------------------------------
Title:--------------------------------
One State Street, 10th Floor
New York, New York 10004
Attention: Thomas S. Moser
Facsimile: (212) 858-2956
[Signature page to Pledge and Assignment Agreement]