SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of June 3, 1999 (as the same may be
amended, supplemented or otherwise modified from time to time, this
"Agreement"), is made by RIVIERA BLACK HAWK, INC., a Colorado corporation
("Grantor" or the "Company"), having an office 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.
RECITALS
A. Grantor and the Trustee are, contemporaneously with the execution
and delivery of this Agreement, entering into that certain Indenture dated as of
even date herewith (as the same may be amended, supplemented or otherwise
modified from time to time, the "Indenture"), pursuant to which Grantor 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 "Securities"), in the original aggregate principal amount of
$45,000,000.
B. It is a condition precedent to the purchase of the Securities that
Grantor 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
Securities (the "Holders" and, together with the Trustee, the "Secured Parties")
to secure the payment and performance of the Obligations (as hereinafter
defined).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and in order
to induce the Trustee to enter into the Indenture and to induce the Holders to
purchase the Securities, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Grantor hereby agrees,
for the benefit of the Trustee and for the ratable benefit of the Holders as
follows:
SECTION 1. Definitions.
1.1. Defined Terms. (a) Capitalized terms used but not other-
wise defined herein shall have the meanings given in the Indenture.
Unless the context indicates otherwise or the terms are otherwise
defined herein or in the Indenture, definitions in the UCC apply to
words and phrases in this Agreement. The term "Grantor," as used with
respect to any Person, includes without limitation such Person, such
Person's heirs, successors and assigns, such Person as a
debtor-in-possession, and any receiver, trustee, liquidator,
conservator, custodian or similar party appointed for such Person or
all or substantially all of its assets under any law.
(b) The following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined:
Accounts, Chattel Paper, Documents, Fixtures, Instruments, Inventory
and Proceeds.
(c) The following terms shall have the following
meanings:
"Collateral" has the meaning set forth in Section 2
hereof.
"Completion Capital Commitment" means the Completion
Capital Commitment dated s of the date hereof by Riviera Holdings
Corporation in favor of the Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Contracts" means (i) any and all contracts and
agreements relating to gaming including without limitation any
agreement in which a Person does business with or on the premises of an
entity licensed pursuant to applicable Gaming Laws and any resource or
product used or useful in the business of Grantor, and (ii) any and all
other contracts and agreements of Grantor, in each case as such may be
amended, modified or otherwise supplemented from time to time, and in
each case including without limitation (x) all rights to receive monies
due and to become due to Grantor thereunder or in connection therewith,
(y) all rights to damages arising out of or for breach or default in
respect thereof, and (z) all rights to perform and exercise all
remedies thereunder.
"Copyrights" means (i) all copyrights in all works,
whether published or unpublished, registered or unregistered, all
registrations and recordings thereof, and all applications in
connection therewith, including without limitation registrations,
recordings and applications in the United States Copyright Office or in
any other country, including without limitation those listed on Exhibit
A, and (ii) all renewals of the foregoing.
"Copyright License" means any and all agreements,
whether written or oral, providing for the grant by or to Grantor of
any right to reproduce, copy, publish or otherwise use any Copyright,
including without limitation the agreements set forth on Exhibit A, but
excluding any such agreement that prohibits the granting of a security
interest therein.
"Default Rate" shall have the meaning set forth in
Section 6.15 hereof.
"Equipment" means "equipment" as defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof, including without limitation all machinery (including without
limitation any and all equipment and machinery used for or in
connection with maintaining and operating gaming facilities, lodging
and restaurants), apparatus, implements, office machinery, computers,
furniture, furnaces, conveyors, tools, parts, accessories, automobiles,
trailers, tractors, trucks, forklifts, other motor vehicles and all
other equipment of any kind or nature, wherever located, and all
modifications, alterations, repairs, substitutions, additions and
accessions thereto and all replacements and all other parts therefor.
2
"General Intangibles" means "general intangibles" as
defined in the Uniform Commercial Code in effect in the State of New
York on the date hereof, including without limitation claims of Grantor
in respect of litigation and claims for tax and other refunds from,
inter alia, any city, county, state, or federal government or any
agency or authority or other subdivision thereof.
"Governmental Authority" means any nation or
government, any state, municipality or other political subdivision
thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including without limitation the Colorado Division of Gaming and the
Colorado Limited Gaming Control Commission.
"Investment Property" means "investment property" as
defined in the Uniform Commercial Code in effect in the State of New
York on the date hereof.
"Intellectual Property" means, collectively, Copy-
rights, Patents, Trademarks, Trade Secrets and Licenses.
"Licenses" means, collectively, Copyright Licenses,
Patent Licenses and Trademark Licenses.
"Material Adverse Effect" means a material adverse
effect on (i) the business, operations, property, condition (financial
or otherwise) of Grantor and its respective Subsidiaries, taken as a
whole, (ii) the Collateral, or (iii) the validity or enforceability of
(x) this Agreement, any of the Securities, the Indenture, the
Completion Capital Commitment, the Keep-Well Agreement or any
Collateral Document, or (y) the rights or remedies of the Trustee (or
any other trustee) hereunder or thereunder.
"Obligations" has the meaning set forth in Section 3
hereof.
"Patents" means all patents and patent applications,
and the inventions and improvements described and claimed therein, and
patentable inventions and the reissues, divisions, continuations,
renewals, extensions and continuations-in-part of any of the foregoing,
including without limitation those set forth on Exhibit B.
"Patent Licenses" means any and all agreements,
whether written or oral, providing for the grant by or to Grantor of
any right to manufacture, use or sell any invention covered by a
Patent, including, without limitation, those set forth on Exhibit B,
but excluding any such agreement that prohibits the granting of a
security interest therein.
"Project" has the meaning given in Section 2(m).
"Trademarks" means (i) all registered and
unregistered trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
logos, slogans and other source or business identifiers, and the
goodwill and general intangibles associated therewith, all
registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent
3
and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including without limitation those
set forth on Exhibit C, and (ii) all renewals of the foregoing.
"Trademark License" means any and all agreements,
whether written or oral, providing for the grant by or to Grantor of
any right to use any Trademark, including without limitation those set
forth on Exhibit C, but excluding any such agreement that prohibits the
granting of a security interest therein.
"Trade Secret" means any proprietary technology,
process or system which is owned or licensed by the Grantor, including
without limitation manufacturing processes or methods, all formulae,
processes, procedures, compounds, drawings, designs, blueprints,
surveys, reports, manuals and operating standards relating to or used
in the operation of Grantor's business.
"Transaction Documents" has the meaning given in
Section 3.
"UCC" means the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Works" means any work which is or may be subject to
copyright protection pursuant to Title 17 of the U.S. Code.
1.2. Other Definitional Provisions.
(a) The words "hereof," "herein," "hereto" and
"hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection and Exhibit
references are to this Agreement, unless otherwise specified.
(b) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such
terms.
SECTION 2. Grant of Security Interest. To the fullest extent permitted by
applicable law, Grantor hereby grants, pledges, assigns and transfers to the
Trustee, for the Trustee's individual benefit and the ratable benefit of the
Holders, as security for the prompt and complete payment and performance when
due (whether at stated maturity, upon redemption or required repurchase, by
acceleration or otherwise) of all the Obligations of Grantor, a continuing first
priority security interest in and lien on all of the right, title and interest
of Grantor in, to and under the following property, in each case wherever
located, whether now owned or at any time hereafter acquired by Grantor, whether
now existing or hereafter coming into existence, or in which Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"):
(a) the Cash Collateral Accounts, the Interest
Reserve Account, the Completion Reserve Account, the Construction
Disbursement Account, the Disbursed Funds Account (in each case, as
defined in the Disbursement Agreement), any other
4
related accounts and all Trust Monies, other monies, securities,
certificates, items and other property on deposit therein;
(b) all Accounts;
(c) all Chattel Paper;
(d) all Contracts;
(e) all Documents;
(f) all Equipment;
(g) all Fixtures;
(h) all General Intangibles;
(i) all Instruments;
(j) all Intellectual Property;
(k) all Inventory;
(l) all Investment Property;
(m) to the extent not otherwise included in the
foregoing, all of Grantor's personal property, goods, furnishings,
fixtures and equipment, supplies, building and other materials of every
nature whatsoever and all other personal property, including, but not
limited to, communication systems, visual and electronic surveillance
systems and transportation systems and including all property and
materials stored therein in which Grantor has an interest, and all
tools, utensils, food and beverage, liquor, uniforms, linens,
housekeeping and maintenance supplies, vehicles, fuel, advertising and
promotional material, blueprints, surveys, plans and other documents
relating to the Riviera Black Hawk (the "Project"), all gaming and
general equipment and devices which are or are to be installed and used
in connection with the operation of the Project, all computer
equipment, calculators, adding machines, and gaming tables, video game
and slot machines and any other electronic equipment, all furniture,
fixtures, equipment, gaming equipment, appurtenances and personal
property now or in the future contained in, used in connection with,
attached to, or otherwise useful or convenient to the use, operation,
or occupancy of, or placed on, but unattached to, any part of the
Project or the land upon which the Project will be constructed,
including without limitation all removable window and floor coverings,
all furniture and furnishings, heating, lighting, plumbing,
ventilating, air conditioning, refrigerating, incinerating and elevator
and escalator plants, cooking facilities, vacuum cleaning systems,
public address and communications systems, sprinkler systems and other
fire prevention and extinguishing apparatus and materials, motors,
machinery, pipes, appliances, equipment, fittings, fixtures, and
building materials, together with all venetian blinds, shades,
draperies, drapery and curtain rods, brackets, bulbs,
5
cleaning apparatus, mirrors, lamps, ornaments, cooling apparatus and
equipment, ranges and ovens, garbage disposals, dishwashers, mantels,
and any and all such property which is at any time installed in affixed
to or placed upon the land upon which the Project will be constructed,
all fixtures for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating or
sanitary purposes, or for the exclusion of vermin or insects, or for
the removal of dust, refuse or garbage, all specifically designed
installations and furnishings, and all other personal property,
furniture, fixtures and equipment of every nature used or located at
the Project;
(n) to the extent not otherwise included in the
foregoing, all of Grantor's accounts and accounts receivable, including
without limitation all rights to payment for goods sold or leased or
for services rendered which are not evidenced by an instrument or
chattel paper, all other present or future rights for money due or to
become due, all of Grantor's chattel paper, instruments, promissory
notes (including without limitation all inter-company notes), markers
and general intangibles for money due or to become due of any kind, in
each case whether now existing or hereafter arising and wherever
arising and whether or not earned by performance, and all royalties,
earnings, income, proceeds, products, rents, revenues, reversions,
remainders, issues, profits, avails, and other benefits directly or
indirectly derived or otherwise arising from any of the foregoing,
other general intangibles, documents of title, warehouse receipts,
leases, money, tax refund claims, partnership interests,
indemnification and other similar claims and contract rights, permits
and licenses, including without limitation any licenses held or to be
held by Grantor necessary to operate the Project (including without
limitation licenses in favor of Grantor granted pursuant to the
Management Agreement or otherwise), franchises, variances, special
permits, rulings, validations, exemptions, filings, registrations,
authorizations, consents, approvals, waivers, orders, rights and
agreements (including without limitation options, option rights and
contract rights) certificates, stock, any and all books, records,
customer lists, concession agreements, supply or service contracts,
documents, unearned premiums, rebates, deposits, refunds, including,
but not limited to, income tax refunds, prepaid expenses, rebates, tax
and insurance escrow and impound accounts, if any, and all rights in,
to and under all, leases and other agreements or contracts relating to
any of the foregoing or now or hereafter obtained by Grantor from any
Person or from any Governmental Authority having or claiming
jurisdiction over the Project, and all things in action, rights
represented by judgments, awards of damages, settlements and claims
arising out of tort, warranty or contract (including without limitation
the right to assert and otherwise be the proper party of interest to
commence, control, prosecute and/or settle such actions, whether as
claims, counterclaims or otherwise, and whether involving matters
arising from casualty, condemnation, indemnification, negligence,
strict liability, other tort, contract, warranty or in any other
manner), and all securities of any Subsidiary, whether now in existence
or hereafter incorporated or formed;
(o) to the extent not otherwise included in the
foregoing, all computer programs of Grantor and all intellectual
property rights therein and all other proprietary information owned by
Grantor, or in which Grantor has an interest, including but not limited
to Trade Secrets;
6
(p) all of Grantor's right, title and interest in,
and to and under any and all maps, plans, preliminary plans,
specifications, surveys, studies, tests, reports, data and drawings
relating to the development of the Project, including without
limitation all marketing plans, feasibility studies, soils tests,
design contracts and all contracts and agreements of Grantor relating
thereto including, without limitation, architectural, structural,
mechanical and engineering plans and specifications, studies, data and
drawings prepared for or relating to the development of the Project or
the construction, renovation or restoration of the Project each as
finalized, amended, supplemented or otherwise modified from time to
time, or the extraction of minerals, sand, gravel or other valuable
substances from the land upon which the Project will be constructed and
purchase contracts or any agreement granting Grantor a right to acquire
any land situated within Gilpin County, Colorado;
(q) to the extent not otherwise included in the
foregoing, (i) all other rights to the payment of money, including
subsidy, reserve and deficiency payments, rents (including room rents)
and other sums payable to Grantor under leases, rental agreements and
insurance proceeds; (ii) all books, ledgers, files, correspondence,
credit files, records, invoices, bills of lading, and other documents
relating to any of the foregoing, including without limitation all
tapes, cards, disks, computer software, computer runs, and other papers
and documents in the possession or control of Grantor or any computer
bureau from time to time acting for Grantor; (iii) all rights and
rights to use or access any resource or product used or useful in the
business of Grantor; and (iv) all accessions and additions to, parts
and appurtenances of, substitutions for and replacements of any of the
foregoing; and
(r) to the extent not otherwise included in the
foregoing, all Net Loss Proceeds, Net Proceeds, Proceeds and products
of any and all of the foregoing and all collateral security, guarantees
and other credit enhancements given by any person with respect to any
of the foregoing, and in any event, including without limitation any
and all (i) proceeds of any insurance (including without limitation all
Net Insurance Proceeds), surety bonds, tax and other refunds
(including, without limitation, any city, county, state, or federal
government or any agency or authority or other subdivision thereof),
indemnity, warranty or guarantee payable to the Trustee or to Grantor
from time to time with respect to any of the Collateral, (ii) payments
(in any form whatsoever) made or due and payable to Grantor from time
to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any person acting under color of a
Governmental Authority), (iii) payments made or due and payable to
Grantor in respect of litigation and other claims, (iv) products of the
Collateral, (v) subject to the provisions and limitations contained in
the Indenture, whatever is now or hereafter receivable or received by
Grantor upon the sale, exchange, collection or other disposition of any
item of Collateral, whether voluntary or involuntary including, without
limitation, the proceeds of a permitted Asset Sale in accordance with
the Indenture, (vi) to the extent permitted by law, whatever is now or
hereafter receivable or received by Grantor upon the sale, exchange,
collection or other disposition of any Gaming License, regardless of
whether such Gaming License is
7
Collateral or an Excluded Asset, and (vii) other amounts from time to
time paid or payable under or in connection with any of the Collateral.
Notwithstanding the foregoing, the Collateral shall not include any of
the following assets (the "Excluded Assets"): (i) Gaming Licenses and Liquor
Licenses, (ii) any other governmental approval or permit to the extent that,
under the terms and conditions of such approval or under applicable law, it
cannot be subjected to a Lien in favor of the Trustee without the approval of
the relevant Governmental Authority, but only to the extent that such approval
has not been obtained; (iii) any Collateral that is exclusively subject to any
agreement with a third party that, pursuant to its terms, prohibits the grant of
a lien on such Collateral; provided that Grantor shall use its reasonable best
efforts to obtain such third party's consent to assignment of all such
agreements; (iv) FF&E to the extent financed or refinanced by, or the proceeds
of, an FF&E Financing to the extent that (A) the purchase or lease of such FF&E
was not financed with the proceeds of the Notes but with the proceeds of an FF&E
Financing and (B) Grantor is permitted to enter into such FF&E Financing for
such FF&E under the Indenture; and (v) any Collateral sold pursuant to a sale
and leaseback transaction permitted under the Indenture, but will include the
Grantor's leasehold interest in such property; provided that the Trustee shall,
if requested by Grantor, execute and deliver, at Grantor's sole expense, any
instruments reasonably necessary or appropriate to release the lien of this
Agreement with respect to or otherwise confirm that the lien of this Agreement
does not apply to any of such Excluded Assets; provided further that any such
FF&E Financing shall encumber only that FF&E specifically subject to such FF&E
Financing; and provided further that any such Excluded Asset now or hereafter
acquired by Grantor shall automatically become part of the Collateral when and
to the extent it may subsequently be made subject to such a lien and/or such
approval is obtained and/or such FF&E Financing has been repaid, satisfied or
terminated (as applicable) and/or such Collateral sold pursuant to a sale and
leaseback transaction has been released.
SECTION 3. Obligations. This Agreement secures with respect to Grantor, and
the Collateral of Grantor is collateral security for, the payment and
performance in full when due (whether at stated maturity, upon redemption or
required repurchase, by acceleration or otherwise) of all obligations of every
type and nature of Grantor to the Trustee, any other trustee under the Deed of
Trust, or any Holder (including without limitation any and all amounts which may
at any time be or become due and payable and any and all interest accruing after
the maturity of the Securities and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to Grantor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and interest, to the extent
permitted by law, on the unpaid interest), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of or in connection with the Indenture, the
Securities, the Completion Capital Commitment, the Keep-Well Agreement, this
Agreement, the other Collateral Documents, or any other document made, delivered
or given by Grantor in connection with any of the foregoing (collectively, the
"Transaction Documents"), in each case whether on account of principal, premium,
interest, fees, Liquidated Damages, indemnities, costs, expenses or otherwise
(including without limitation all reasonable fees and disbursements of counsel
(including without limitation in-house counsel) to the Trustee or to the Holders
that are required to be paid by Grantor pursuant to the terms of the Indenture,
the Securities, the Completion Capital Commitment, the
8
Keep-Well Agreement, this Agreement or any other Transaction Document) (the
foregoing, collectively, the "Obligations").
SECTION 4. Special Provisions Relating to Contracts
4.1 Grantor Remains Liable under Contracts. Anything herein
to the contrary notwithstanding, Grantor shall remain liable under each
of the Contracts to which it is a party to observe and perform all the
conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms and provisions of each
such Contract, except as otherwise provided herein. Neither the Trustee
(nor any other trustee under the Deed of Trust) nor any Holder shall
have any obligation or liability under any such Contract by reason of
or arising out of this Agreement or the receipt by the Trustee (or any
such other trustee) or any such Holder of any payment relating to any
such Contract pursuant hereto, nor shall the Trustee (or any such other
trustee) or any Holder be obligated in any manner to perform any of the
obligations of Grantor under or pursuant to any Contract, to make any
payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by
any party under any Contract, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be
entitled at any time or times.
4.2. Communication with Contracting Parties. The Trustee, in
its own name or in the name of others, may, (i) after the occurrence
and continuance of an Event of Default, (ii) with the prior written
consent of Grantor (which shall not be unreasonably withheld or
delayed) or (iii) as otherwise permitted under the Collateral
Documents, communicate with parties to the Contracts to verify with
them to the Trustee's satisfaction the existence, amount and terms of
any Contract.
SECTION 5. Maintenance of Perfected Security Interests; Further Assurances.
5.1. Perfection Maintenance. Grantor agrees that it shall
maintain the security interests created by this Agreement as perfected
first priority security interests, except with respect to (i) Permitted
Liens and (ii) Collateral exclusively subject to a certificate of title
statute and listed on Schedule A hereto, and shall defend such security
interests against the claims and demands of all Persons whomsoever.
5.2. Further Assurances. At the Trustee's request, Grantor
agrees that at any time and from time to time, at the sole cost and
expense of Grantor, Grantor shall promptly, and in any event, in no
less than ten (10) days, execute, deliver and, where applicable, file
all further instruments and documents, including without limitation all
financing, continuation or amendment statements under the Uniform
Commercial Code in effect in any applicable jurisdiction with respect
to the security interests created hereby, and take all further action
that may be necessary or that the Trustee may reasonably request for
the purpose of obtaining, maintaining or preserving the full benefits
of this Agreement and the rights and powers herein granted, or for the
purpose of creating, preserving, perfecting or otherwise protecting the
liens and security interests created or
9
purported to be created hereby and the priority thereof. Without
limiting Grantor's obligation to make such filings, Grantor hereby
authorizes the Trustee (subject to the following sentence) to take all
action (including without limitation the filing of any UCC financing
statements or continuation statements or amendments thereto without the
signature of Grantor as set forth in Section 15.4 hereof) which the
Trustee may deem necessary or desirable to perfect or otherwise protect
the liens and security interests created or purported to be created
hereunder and to obtain the benefits of this Agreement. Subject to the
Trustee's obligations under the Indenture during the continuance of an
Event of Default, the Trustee shall not be responsible for perfecting
or maintaining the perfection of any security interest granted to it
under this Agreement or for filing, refiling, recording or re-recording
any document, financing statement, notice or instrument in any public
office at any time or times and shall not be responsible for seeing to
the provision of insurance on or the payment of any taxes with respect
to any property subject to this Agreement. In accordance with the
Indenture, in the event of an Asset Sale or an Event of Loss, the Net
Proceeds or the Net Loss Proceeds thereof shall be deposited into an
account, if reasonably requested, in which, at the time of such
deposit, the Trustee shall have a perfected first priority security
interest and in respect of which account the Trustee shall have
received an Opinion of Counsel to Grantor, in form and substance
satisfactory to the Trustee, stating that the Trustee has a perfected
first priority security interest in such account.
SECTION 6. Representations, Warranties and Covenants. Grantor hereby
represents and warrants to, and covenants and agrees with, the Trustee (for the
benefit of the Trustee and the ratable benefit of the Holders), as follows:
6.1. Title; No Other Liens. Grantor is as of the date hereof
and, as to Collateral acquired by it from time to time after the date
hereof, Grantor shall be, the owner of each item of Collateral of
Grantor (or in the case of Collateral held by Grantor as lessee under a
lease or licensee under a license, Grantor has and will have a valid
and subsisting leasehold interest or license, as applicable, in such
Collateral), in each case free and clear from any and all Liens, claims
or other right, title or interest of any Person other than Permitted
Liens. No financing statement or other public notice with respect to
all or any part of the Collateral is on file or of record in any public
office, except (a) financing statements related to Permitted Liens and
(b) financing statements which have been filed in favor of the Secured
Parties pursuant to this Agreement. Without the prior written consent
of the Trustee or as otherwise expressly permitted by the Indenture,
Grantor will not in any way encumber, or hypothecate, or create or
permit to exist, any lien, security interest, charge or encumbrance or
adverse claim upon or other interest in the collateral, except for
Permitted Liens, including without limitation encumbrances permitted by
the Indenture and the liens created by this Agreement, and Grantor will
defend the Collateral against all claims and demands of all Persons at
any time claiming the same or any interest therein (other than holders
of Permitted Liens), except as expressly provided herein. Grantor will
not permit any notices of Lien to exist or be on file in any public
office with respect to all or any portion of the Collateral except, in
each case, for notices of Lien of holders of Permitted Liens or except
as may have been filed by or for the benefit of the Secured Parties
relating to this Agreement or the other Transaction Documents. Grantor
shall
10
promptly notify the Trustee of any attachment or other legal process
levied against any of the Collateral and any information received by
Grantor relative to the Collateral, which may in any material way
affect the value of the Collateral or the rights and remedies of the
Secured Parties in respect thereof. Except as expressly permitted by
the Indenture, Grantor will pay and discharge all taxes, assessments
and governmental charges or levies against the Collateral prior to
delinquency thereof and will keep the Collateral free of all unpaid
claims and charges (including claims for labor, materials and supplies)
whatsoever.
6.2. Perfected First Priority Liens. The security interests
granted pursuant to this Agreement (a) constitute perfected security
interests in the Collateral in favor of the Trustee, as collateral
security for the Obligations (other than Collateral exclusively subject
to a certificate of title statute and listed on Schedule A hereto), and
(b) are prior to all other Liens on the Collateral in existence on the
date hereof, other than Permitted Liens.
6.3. Necessary Filings. The filings, registrations and
recordings described on Schedule B hereto constitute the only filings,
registrations and recordings necessary or appropriate to create,
preserve, protect and perfect the security interests granted by Grantor
to the Trustee pursuant to this Agreement in respect of the Collateral.
All such filings, registrations and recordings have been accomplished
as of the date hereof.
6.4. Other Financing Statements. Grantor shall not execute or
authorize or permit to be filed in any public office or elsewhere any
financing statement (or similar statement or instrument of registration
under the law of any jurisdiction) relating to the Collateral, except
financing statements filed or to be filed (a) in respect of Permitted
Liens and (b) in favor of the Secured Parties pursuant to this
Agreement.
6.5. Chief Executive Office; Location of Collateral and
Records. Grantor's chief executive office is located at the address set
forth for Grantor on Schedule C. Grantor represents and warrants that
it has no place of business, offices where Grantor's books of account
and records are kept, or places where the Collateral is used, stored or
located, and all Collateral is in its sole possession and control,
except (i) as set forth on Schedule C hereto, and (ii) except as set
forth in Section 6.9. Grantor further covenants that it will not store,
use or locate any of the Collateral at any place other than as set
forth on Schedule C (or, upon forty-five (45) days' prior written
notice to the Trustee, at such other location in a jurisdiction where
all action required by Sections 5 and 6.6 (if applicable) shall have
been taken).
6.6. Changes in Locations, Name, etc. Grantor represents and
warrants that it currently uses no business or trade names, except as
set forth on Schedule C hereto. Grantor shall not (a) change the
location of its chief executive office from that specified in Schedule
C, (b) change its name, identity or corporate structure or (c) change
the location where it maintains its books and records from the
addresses set forth on Schedule C, unless (i) it shall have given the
Trustee not less than forty-five (45) days' prior written notice of its
intention to do so, clearly describing such new location, name,
identity or corporate structure and providing such other information in
connection therewith as the Trustee may reasonably request, and (ii)
with respect to such new location, name, identity
11
or corporate structure, Grantor shall have taken all action which is
necessary or appropriate or which is reasonably requested by the
Trustee to maintain the perfection and proof of the security interest
of the Trustee for the benefit of the Secured Parties in the Collateral
intended to be granted hereby and shall have delivered to the Trustee
an Officer's Certificate as to compliance with this clause (ii).
6.7. Delivery of Instruments, Investment Property and Chattel
Paper. If any amount payable under or in connection with any of the
Collateral, or any Collateral itself, shall be or become evidenced by
any Instrument, Investment Property or Chattel Paper, such Instrument,
Investment Property or Chattel Paper shall be promptly delivered to the
Trustee, duly endorsed in a manner satisfactory to the Trustee, to be
held as Collateral pursuant to this Agreement (except as otherwise
specifically provided in the Pledge and Assignment Agreement and the
Cash Collateral and Disbursement Agreement).
6.8. Information and Inspection. Upon reasonable notice to
Grantor, Grantor shall (a) allow the Trustee to inspect and copy all
records relating to the Collateral and the Obligations and (b) furnish
to the Trustee such information as the Trustee may reasonably request
from time to time with respect to the Collateral, any distributions
thereon and any proceeds thereof.
6.9. Location of Equipment. All Equipment held on the date
hereof by Grantor is located at one of the locations shown for Grantor
on Schedule C. All Equipment now held or subsequently acquired by
Grantor shall be kept at one or more of the locations shown for Grantor
on Schedule C hereto, or such new location as Grantor may establish if
(a) it shall have given to the Trustee at least forty-five (45) days'
prior written notice of its intention to do so, clearly describing such
new location and providing such other information in connection
therewith as the Trustee may reasonably request, and (b) with respect
to such new location, Grantor shall have taken all action which is
necessary or appropriate or which is reasonably requested by the
Trustee to maintain the perfection and priority of the security
interest of the Trustee for the benefit of the Secured Parties in the
Collateral granted or purported to be granted hereby and shall have
delivered to the Trustee an Officer's Certificate as to compliance with
this clause (b). Schedule A contains a true, complete and correct
listing of all of the motor vehicles and other Equipment of Grantor
subject to a certificate of title statute in any jurisdiction and the
jurisdiction in which such Collateral is subject to a certificate of
title statute.
6.10.Copyrights, Patents and Trademarks.
(a) (i) Exhibit A contains a list of all
registrations and applications for Copyrights owned by Grantor in its
own name on the date hereof; (ii) Exhibit B contains a list of all
registrations and applications for Patents owned by Grantor in its own
name on the date hereof; (iii) Exhibit C contains a list of all
registrations and applications for Trademarks owned by Grantor in its
own name on the date hereof; (iv) Exhibit D contains a list of each
Copyright License, Patent License and Trademark License to which
Grantor is a party; (v) each Copyright, Patent and Trademark set forth
on Exhibit A, Exhibit B, and Exhibit C is on the date hereof valid,
subsisting, unexpired, enforceable and has not
12
been cancelled or abandoned; (vi) except as set forth in any of
Exhibit A, Exhibit B or Exhibit C, none of such Copyrights, Patents and
Trademarks set forth therein is on the date hereof the subject of any
licensing or franchise agreement pursuant to which Grantor is the
licensor or franchisor (except as set forth on Exhibit D); (vii) to the
best of Grantor's knowledge after due inquiry, no holding, decision or
judgment has been rendered by any Governmental Authority which would
limit, cancel or question the validity of any Copyright, Patent or
Trademark in any respect that could reasonably be expected to have a
Material Adverse Effect; and (viii) to the best of Grantor's knowledge
after due inquiry, no action or proceeding is pending on the date
hereof (x) seeking to limit, cancel or question the validity of any
Copyright, Patent or Trademark, or (y) which, if adversely determined,
could reasonably be expected have a Material Adverse Effect on the
value of any Copyright, Patent or Trademark.
(b) Grantor (either itself or through licensees or
sublicensees) will (i) continue to use each material Trademark to the
extent it has rights to such Trademark on each and every trademark
class of goods or services applicable to its current line as reflected
in its current catalogs, brochures and price lists, if any, in order to
maintain such Trademark in full force free from any claim of
abandonment for non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark, (iii) employ each
material Trademark with the appropriate notice of registration, (iv)
not adopt or use any mark which is confusingly similar or a colorable
imitation of such Trademark unless the Trustee, for the ratable benefit
of the Holders, shall obtain a perfected first priority security
interest in such mark pursuant to this Agreement, and (v) not do (and
not permit any licensee or sublicensee thereof to do) any act or
knowingly omit to do any act whereby such Trademark may reasonably be
expected to become invalidated unless the Grantor determines in its
prudent business judgment that such Trademark is no longer useful in
the operation of its business.
(c) Grantor will not do any act, or omit to do any
act, whereby any Patent may become abandoned or dedicated if such
abandonment or dedication could reasonably be expected have a Material
Adverse Effect.
(d) Grantor will notify the Trustee immediately if it
knows, or has reason to know, that any application or registration
relating to any material Patent or Trademark may become abandoned or
dedicated, or of any adverse determination or development (including
without limitation the institution of, or any such determination or
development in, any proceeding in the United States Patent and
Trademark Office or any court or tribunal in any country) regarding
Grantor's ownership of any Patent or Trademark material to the business
of Grantor or its right to register the same or to keep and maintain
the same and of any action Grantor is taking in respect of such event.
(e) Whenever Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application for
the registration of any Patent or Trademark with the United States
Patent and Trademark Office or any similar office or agency in any
other country or any political subdivision thereof, Grantor shall
report such filing to the Trustee within thirty (30) days after the
last day of the fiscal quarter in which
13
such filing occurs. Grantor shall execute and deliver any and all
agreements, instruments, documents, and papers as may be necessary or
appropriate or as the Trustee may reasonably request to evidence,
perfect and/or maintain the perfection of the Trustee's and the
Holders' security interest in any Patent or Trademark and the goodwill
and general intangibles of Grantor relating thereto or represented
thereby and shall deliver to the Trustee an Officer's Certificate as to
compliance with this subparagraph (e).
(f) Consistent with Grantor's reasonable business
judgment, Grantor will take all reasonable and necessary steps,
including without limitation in any proceeding before the United States
Patent and Trademark Office, or any similar office or agency in any
other country or any political subdivision thereof, as applicable, to
maintain and pursue each application (and to obtain the relevant
registration) and to maintain each registration of the Patents and
Trademarks material to the business of Grantor, including without
limitation filing of applications for renewal, affidavits of use and
affidavits of incontestability and, as to Patents, the payment of
maintenance fees, except where the failure to take such action could
not have a Material Adverse Effect.
(g) In the event that any Patent or Trademark is
infringed, misappropriated or diluted by a third party, which
infringement, misappropriation or dilution could reasonably be expected
to have a Material Adverse Effect, Grantor shall upon receipt of
knowledge of such infringement, misappropriation or dilution, promptly
(i) take such actions as Grantor shall reasonably deem appropriate
under the circumstances to protect such Patent or Trademark and (ii) if
such Patent or Trademark is of material economic value, promptly notify
the Trustee after it learns thereof and, consistent with Grantor's
reasonable business judgment, sue for infringement, misappropriation or
dilution, seek injunctive relief where appropriate and recover any and
all damages for such infringement, misappropriation or dilution.
(h) Grantor (either itself or through licensees or
sublicensees) will (i) employ the appropriate notice of copyright for
each published Work subject to copyright protection to the extent
necessary to protect the Copyright relating to such Work and (ii) not
do (and not permit any licensee or sublicensee thereof to do) any act
or knowingly omit to do any act whereby any material Copyright may
become invalidated, except where the failure to take any such action
could not reasonably be expected to have a Material Adverse Effect.
(i) Grantor will not (either itself or through
licensees) do any act, or omit to do any act, whereby any material
Copyright may reasonably be expected to become injected into the public
domain, except where the failure to take any such action could not
reasonably be expected to have a Material Adverse Effect.
(j) Grantor will notify the Trustee immediately if it
knows, or has reason to know, that any Copyright may become injected
into the public domain or of any adverse determination or development
(including without limitation the institution of, or any such
determination or development in, any proceeding in any court or
tribunal in any
14
country) regarding Grantor's ownership of any such Copyright or its
validity and of any action Grantor is taking in respect of such event.
(k) Whenever Grantor, either by itself or through any
agent, employee licensee, sublicensee or designee, shall file an
application for the registration of any Copyright with the United
States Copyright Office or any similar office in any other country or
political subdivision thereof, Grantor shall report such filing to the
Trustee within thirty (30) days after the last day of the fiscal
quarter in which such filing occurs. Grantor shall execute and deliver
any and all agreements, instruments, documents and papers as shall be
necessary or appropriate or as the Trustee reasonably may request to
evidence, perfect and/or maintain the perfection of the Trustee's and
the Holders' security interest in such Copyright and shall deliver to
the Trustee an Officer's Certificate as to compliance with this
subparagraph (k).
(l) Consistent with the Grantor's reasonable business
judgment, Grantor will take all reasonable and necessary steps in
accordance with its reasonable business judgment to maintain and pursue
each application (and to obtain the relevant registration) and to
maintain to the extent permitted by law each registration of each
material Copyright owned by Grantor including without limitation filing
of applications for renewal, where necessary.
(m) Grantor will promptly notify the Trustee of any
material infringement of any Copyright owned by it of which Grantor
becomes aware and which infringement could reasonably be expected to
have a Material Adverse Effect, and Grantor shall upon receipt of
knowledge of such infringement take all actions it reasonably deems
appropriate under the circumstances to protect such Copyright,
including, where appropriate, the bringing of suit or the settling of
actual or potential suits for infringement, seeking injunctive relief
and seeking to recover any and all damages for such infringement.
6.11. Authorization, Enforceability. Grantor has the requisite
power, authority and legal right to grant a security interest in all
the Collateral of Grantor pursuant to this Agreement, and this
Agreement has been duly authorized, executed and delivered by, and
constitutes the legal, valid and binding obligation of Grantor,
enforceable against Grantor in accordance with its terms. Each Contract
to which Grantor is a party is in full force and effect and constitutes
a valid and legally enforceable obligation of Grantor, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles (whether considered in a proceeding in equity or
at law).
6.12. No Consents. Except for the filings, registrations and
recordings contemplated in Section 6.3, no consent of any Person
(including without limitation any stockholders or creditors of Grantor)
and no consent, authorization, approval, or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body
or other Person is required (a) for the grant by Grantor of a security
interest in the Collateral pursuant to this Agreement, (b) for the
perfection or maintenance of such
15
security interest created hereby, including the first priority nature
of such security interest, or the exercise of rights and remedies
provided for herein, (c) for the enforceability of such security
interest against third parties, including judgment lien creditors, (d)
for the authorization, execution, delivery or performance of this
Agreement by Grantor, or (e) for the exercise by the Trustee of the
remedies in respect of the Collateral pursuant to this Agreement.
6.13. Collateral. All information set forth herein (including
without limitation the information set forth in the Schedules and
Exhibits annexed hereto, as they may be amended from time to time)
relating to the Collateral is accurate and complete in all material
respects.
6.14. Ownership and Control of Collateral. Except as may
otherwise be permitted by the Indenture, Grantor at all times will be
the sole legal and beneficial owner or lessee of the Collateral of
Grantor.
6.15. [Intentionally Omitted].
6.16. Representations Regarding Contracts.
(a) Each Contract to which Grantor is a party is in
full force and effect and constitutes a valid and legally enforceable
obligation of Grantor, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles (whether considered in a proceeding in equity or at law).
(b) Except as could not reasonably be expected to
have a Material Adverse Effect, Grantor or (to the best of Grantor's
knowledge) any other party to any Contract to which Grantor is a party
is not in default in the performance or observance of any of the terms
thereof and Grantor is not aware of any fact that, with notice or lapse
of time, could reasonably be expected to result in such a default.
(c) Except as could not reasonably be expected to
have a Material Adverse Effect, Grantor has fully performed all of its
obligations required as of the date hereof under each Contract to which
Grantor is a party.
(d) No defense, offset, counterclaim or claim which
could reasonably be expected to (i) materially adversely affect the
value of the Contract to which it relates as Collateral or (ii)
otherwise have a Material Adverse Effect has been asserted or alleged
against Grantor as to any Contract to which Grantor is a party.
(e) No amount constituting Collateral and payable to
Grantor under or in connection with any Contract to which Grantor is a
party is evidenced by any Instrument, Chattel Paper or Investment
Property which has not been delivered to the Trustee.
16
(f) None of the parties to any Contract is a
Governmental Authority except as set forth on Schedule D.
6.17. Covenants Regarding Contracts.
(a) Grantor shall perform and comply in all material
respects with all its obligations under the Contracts to which Grantor
is a party where failure to comply, individually or in the aggregate,
would have a Material Adverse Effect.
(b) Except as expressly permitted by the Indenture,
the Cash Collateral and Disbursement Agreement or any other Collateral
Document, Grantor shall not amend, modify, terminate or waive any
provision of any Contract to which Grantor is a party in any manner
which could reasonably be expected to materially adversely affect the
value of such Contract as Collateral or which could otherwise
reasonably be expected to have a Material Adverse Effect; provided
that, except as otherwise required under the Cash Collateral and
Disbursement Agreement, Grantor may replace a Contract (the "Initial
Contract") so long as the contract entered into to replace the Initial
Contract (the "Replacement Contract") is subject to the security
interest created by this Agreement.
(c) Except as expressly permitted by the Indenture,
Grantor shall exercise promptly and diligently each and every material
right which it may have under each material Contract to which Grantor
is a party; provided that Grantor may amend, modify, terminate or waive
rights subject to Section 6.17(b) above.
(d) Except as expressly permitted by the Indenture or
any other Collateral Document, Grantor shall deliver to the Trustee a
copy of each material demand, notice of default or other written
material notification received by it relating in any way to any
material Contract to which Grantor is a party.
(e) Except as expressly permitted in the Indenture,
in any suit, proceeding or action brought by or on behalf of the
Trustee under any Contract to which Grantor is a party which the
Trustee is entitled to bring after an Event of Default has occurred,
Grantor will defend, save, indemnify and keep the Trustee and the
Holders harmless from and against any and all expenses, losses, claims,
liabilities and damages, as incurred, suffered by reason of any
defense, setoff, counterclaim, recoupment or reduction or liability
whatsoever of the obligor thereunder, arising out of a breach by
Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor
of such obligor or its successors from Grantor; provided that the
indemnity provided under this Section 6.17(e) shall not apply to the
extent such liability arises from the gross negligence or willful
misconduct of the Trustee or Holders.
(f) The covenants set forth at Sections 6.17(a) and
(c) shall terminate on, and be of no further force or effect from and
after, the date that the Riviera Black Hawk (as defined in the
Indenture) is Operating (as defined in the Indenture).
17
6.18. Further Actions and Identification of Collateral. At any
time upon the occurrence of an Event of Default, or otherwise no more
than two times in any twelve-month period, Grantor shall, at its sole
cost and expense, make, execute, endorse, acknowledge, file and/or
deliver to the Trustee from time to time such lists, descriptions and
designations of the Collateral of Grantor, copies of warehouse
receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices and schedules relating
to the Collateral of Grantor, as the Trustee may reasonably request,
all in reasonable detail. Grantor will promptly notify the Trustee in
writing of any event, or change of law, regulation, business practice,
or business condition of which Grantor has knowledge that could
reasonably be expected to materially adversely affect the value of the
Collateral.
6.19. Records of Collateral; Notation on Books and Records.
Grantor shall keep full and accurate books and records relating to the
Collateral of Grantor, and stamp or otherwise mark such books and
records in such manner as may be necessary or as the Trustee may
reasonably require in order to reflect the security interests granted
by this Agreement.
6.20. Notices. Grantor shall promptly notify the Trustee, in
reasonable detail, of any Lien (other than security interests created
hereby or Permitted Liens) or any attachment or other legal process
levied against any of the Collateral and any information received by
the Grantor relative to the Collateral, which may in any material way
affect the value of the Collateral or the rights and remedies of the
Secured Parties in respect thereof.
6.21. Collateral Maintenance. Grantor shall keep and maintain
the Collateral in good operating condition, working order and repair,
ordinary wear and tear excepted, and from time to time will make or
cause to be made all repairs, replacements and other improvements in
connection therewith that are necessary or desirable toward such end.
Grantor shall not misuse or abuse the Collateral, or waste or allow it
to deteriorate, except for the ordinary wear and tear of its normal and
expected use in Grantor's business in accordance with Grantor's
policies as then in effect (provided that no changes are made to
Grantor's policies as in effect on the date hereof that would be
materially adverse to the interests of any of the Secured Parties), and
Grantor shall comply with all laws, statutes and regulations pertaining
to the use or ownership of the Collateral where failure to comply could
reasonably be expected to result in a Material Adverse Effect.
6.22. After-Acquired Intellectual Property. If Grantor shall
(a) obtain any ownership rights to any new invention (whether or not
patentable), know-how, trade secret, design, process, procedure,
formula, diagnostic test, service mark, trademark, trademark
registration, trade name, copyright or license, or (b) become entitled
to the benefit of any patent, service mark or trademark application,
trademark, trademark registration, license renewal, copyright renewal
or extension, or patent for any reissue, division, continuation,
renewal extension, or continuation-in-part of any patent or any
improvement on any patent, excluding as to (a) and (b) any right,
interest or benefit received by Grantor which by the terms of any
agreement exclusively conferring such right, interest or benefit
prohibits the granting by Grantor of a security interest therein, the
18
provisions of this Agreement shall automatically apply thereto and any
item enumerated in clause (a) or (b) of this sentence shall
automatically constitute Collateral and shall be subject to the
assignment, lien and security interest created hereby without further
action by any party. Grantor promptly shall (i) give to the Trustee
written notice of its acquisition of or entitlement to any of the
rights subject to federal registration set forth in clauses (a) or (b)
of the immediately preceding sentence and (ii) confirm the attachment
of the lien and security interest created hereby to any of such rights
by execution of an appropriate instrument delivered to the Trustee
and/or to make such recordings and filings as may be necessary or
appropriate or as the Trustee may reasonably request to evidence,
confirm, perfect and/or maintain the perfection of such security
interest, including without limitation an amendment to Exhibits A, B, C
and D (as applicable) to include any such rights and appropriate
filings with the applicable federal office.
SECTION 7. Special Provisions Relating to Intellectual Property.
7.1. Modifications. Grantor and the Trustee may modify this
Agreement, without the consent of Holders, by amending Exhibits A, B, C
and/or D to include any future Intellectual Property of Grantor in
accordance with Section 6.10 or Section 6.22 or to reflect any
disposition of Intellectual Property made in compliance with the
provisions of this Agreement and the Indenture.
7.2. Applications. Except in the ordinary course of business
consistent with prudent business practice or as Grantor, in its
reasonable business judgment, deems appropriate or as may otherwise be
permitted by the Indenture, Grantor shall not abandon any registration
of any Intellectual Property or any right to file an application with
respect to Intellectual Property or any pending application, unless
refused by the Patent and Trademark Office Examiner where such
abandonment, in each case, could reasonably be expected to have a
Material Adverse Effect, without the prior written consent of the
Trustee.
7.3. Restriction on Licensing Intellectual Property. Grantor
shall not license the Intellectual Property or any portion thereof, or
amend or permit the amendment of any of the Licenses, in either case in
a manner that adversely affects the right to receive any material
amount of payments thereunder or, except as otherwise permitted under
the Indenture, in any manner materially adverse to the interests of the
Trustee in the Intellectual Property, in each case without the prior
written consent of the Trustee.
7.4. Use of Intellectual Property Prior to Event of Default.
Subject to Section 7.3 but notwithstanding any other provision herein
to the contrary, so long as no Event of Default shall have occurred and
be continuing, Grantor shall be permitted to exploit, use, enjoy,
protect, license, sublicense, assign, sell, dispose of or take any
other actions with respect to the Intellectual Property in the ordinary
course of the business of Grantor or in the exercise of Grantor's
reasonable business judgment. In furtherance of the foregoing, unless
an Event of Default shall have occurred and be continuing, the Trustee
shall, from time to time upon the request of Grantor, execute and
deliver to Grantor any instruments, certificates or other documents, in
the form so requested, which Grantor shall have
19
certified are appropriate to allow Grantor to take any action permitted
above (including relinquishment of the license provided as to any
specific Intellectual Property).
SECTION 8. Transfers and Other Liens. Except as permitted by the Indenture,
Grantor shall not sell, convey, assign or otherwise dispose of, or grant any
option with respect to, any of the Collateral. Grantor shall not create or
permit to exist any Lien upon or with respect to any of the Collateral other
than Permitted Liens or Liens in favor of the Secured Parties pursuant to this
Agreement.
SECTION 9. Reasonable Care. Beyond the duties set forth in Section 15.3 and
the exercise of reasonable care in custody thereof, the Trustee shall have no
duty as to the collection of any Collateral in its possession or control or in
the possession or control of any agent or nominee of the Trustee, 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 Collateral in its
possession if such Collateral is accorded treatment substantially equivalent to
that which the Trustee, in its individual capacity, accords its own property, it
being understood that the Trustee shall not have responsibility for taking any
necessary steps to preserve rights against any Person with respect to any
Collateral.
SECTION 10. Remedies Upon Event of Default.
10.1. Notice to Obligors and Contract Parties. At any time
after the occurrence and during the continuance of an Event of
Default, the Trustee may, and, if requested by the Trustee, Grantor
shall, notify parties to the Contracts and account debtors in respect
of any General Intangibles or Accounts constituting Collateral that
such Collateral has been assigned to the Trustee for the ratable
benefit of the Holders and that payments in respect thereof shall be
made directly to the Trustee.
10.2. Proceeds to be Turned Over to Trustee. If an Event of
Default shall have occurred and be continuing, all amounts and proceeds
(including instruments) received by Grantor in respect of any
Collateral shall be held by Grantor in trust for the Trustee and the
Holders, segregated from other funds of Grantor, and shall, forthwith
upon receipt by Grantor, be turned over to the Trustee in the exact
form received by Grantor (duly endorsed by Grantor to the Trustee, if
required or requested) and held by the Trustee in the Collateral
Account, which shall be maintained under the sole dominion and control
of the Trustee. All Proceeds while held by the Trustee in the
Collateral Account (or by Grantor in trust for the Trustee and the
Holders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as
provided in Section 11.
10.3. Obtaining Possession of theCollateral.If an Event
of Default shall have occurred and be continuing, then and in every
such case, the Trustee may, but shall not be obligated to, in addition
to any other action permitted by law (and not limited in any manner to
the remedies contained in the Securities and the Indenture) take one or
more of the following actions:
20
(a) personally, or by agents or attorneys,
immediately take possession of the Collateral or any part thereof, from
Grantor or any other Person who then has possession of any part
thereof, with or without notice or process of law, and for that purpose
may enter upon Grantor's premises where any of the Collateral is
located and remove such Collateral and use in connection with such
removal any and all services, supplies, aids and other facilities of
Grantor;
(b) sell, assign or otherwise liquidate, or direct
Grantor to sell, assign or otherwise liquidate, any or all investments
made in whole or in part with the Collateral or any part thereof, and
take possession of the proceeds of any such sale, assignment or
liquidation; and
(c) take possession of the Collateral or any part
thereof by directing Grantor in writing to deliver the same to the
Trustee at any place or places which the Trustee shall reasonably
select, in which event Grantor shall at its own expense: (i) forthwith
cause the same to be moved to the place or places so designated by the
Trustee and there delivered to the Trustee; (ii) store and keep any
Collateral so delivered to the Trustee at such place or places pending
further action by the Trustee; and (iii) while the Collateral shall be
so stored and kept, provide such guards and maintenance services as
shall be reasonably necessary to protect the same and to preserve and
maintain them in good condition. Grantor's obligation to deliver the
Collateral is of the essence of this Agreement. Upon application to a
court of equity having jurisdiction, the Trustee shall, to the extent
permitted by law, be entitled to a decree requiring specific
performance by Grantor of such obligation.
10.4. Use and Preservation of the Collateral. Upon and during
the existence of an Event of Default, the Trustee may, in its sole
discretion, use or manage the Collateral to preserve the Collateral or
its value, or to pay the Obligations which includes, without
limitation, the right to take possession of Grantor's premises and
property, to exclude Grantor and any third parties (whether or not
claiming under Grantor) from such premises and property, to make
repairs, replacements, alterations, additions and improvements to or
take any acts to preserving the Collateral, and to dispose of all or
any portion of the Collateral.
10.5. Remedies under UCC. In addition to the rights and
remedies provided in this Agreement or otherwise available to it, the
Trustee shall have all the rights and remedies of a secured party under
the UCC or under the Uniform Commercial Code of any other relevant
jurisdiction.
10.6. Additional Remedies. Upon the occurrence and during the
continuance of an Event of Default, the Trustee, without demand of
performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to
below) to or upon Grantor or any other person (all and each of which
demands, defenses, advertisements and notices are, to the extent
permitted by law, hereby waived), may in such circumstances forthwith
collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give
21
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales,
at any exchange, broker's board or office of the Trustee or elsewhere
upon such terms and conditions as the Trustee may deem advisable and at
such prices as it may elect, for cash or on credit or for future
delivery without assumption of any credit risk. The Trustee or any
Holder shall have the right, to the extent permitted by law, upon any
such public sale or sales or upon any such private sale or sales, to
purchase for cash the whole or any part of the Collateral so sold (but
any such purchase may not, in whole or in part, be in the form of
cancellation of indebtedness without the consent of each Holder).
Grantor further agrees, at the Trustee's request, to assemble the
Collateral of Grantor and make it available to the Trustee at places
which the Trustee shall reasonably select, whether at Grantor's
premises or elsewhere. The Trustee shall apply the net proceeds of any
action taken by it pursuant to this Agreement, after deducting all
reasonable costs and expenses of every kind incurred by the Trustee in
connection therewith or incidental to the care or safekeeping of any of
the Collateral or in any way relating to the Collateral or the rights
of the Trustee and the Holders hereunder, including without limitation
reasonable attorneys' fees and disbursements, as provided in Section 11
hereof, and only after such application and after the payment by the
Trustee of any other amount required by any provision of law, including
without limitation Section 9-504(1)(c) of the UCC, need the Trustee
account for the surplus, if any, to Grantor. To the extent permitted by
law, Grantor waives all claims, damages and demands it may acquire
against the Trustee (or any other trustee under the Deed of Trust) or
any Holder arising out of the exercise by any of them of any rights
hereunder. If any notice of proposed sale or other disposition of
Collateral shall be required by law, such notice shall, to the extent
permitted by law, be deemed reasonable and proper if given at least ten
(10) days before such sale or other disposition. Notwithstanding the
foregoing, the Trustee shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. 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 sale or, with respect to a private sale,
after which such sale may take place, and any such sale may, without
further notice, be made at the time and place to which it was so
adjourned or, with respect to a private sale, after which such sale may
take place. Each purchaser at any such sale shall hold the property
sold free from any claim or right on the part of Grantor, and Grantor
hereby waives, to the full extent permitted by law, all rights of
redemption, stay and/or appraisal which Grantor now has or may at any
time in the future have under any rule of law or statute now existing
or hereafter enacted. To the extent permitted by law, Grantor also
hereby waives any claims against the Trustee arising by reason of the
fact that the price at which any Collateral may have been sold at a
private sale was less than the price which might have been obtained at
a public sale, even if the Trustee accepts the first offer received and
does not offer such Collateral to more than one offeree. In case any
sale of all or any part of the Collateral is made on credit or for
future delivery, the Collateral so sold may be retained by the Trustee
until the sale price is paid by the purchaser or purchasers thereof,
and the Trustee shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the
Collateral purchased. In case of any such failure, such Collateral may
be sold again upon like notice. The parties
22
hereto agree that the notice provisions, method, manner and terms of
any sale, transfer or disposition of any Collateral in compliance with
the terms set forth herein or any other provision of this Agreement are
commercially reasonable.
10.7. Certain Sales of Collateral.
(a) Grantor recognizes that, by reason of certain
prohibitions contained in law, rules, regulations or orders of any
Governmental Authority, the Trustee may be compelled, with respect to
any sale of all or any part of the Collateral, to limit purchasers to
those who meet the requirements of such Governmental Authority. Grantor
acknowledges that any such sales may be at prices and on terms less
favorable to the Trustee than those obtainable through a public sale
without such restrictions, and, notwithstanding such circumstances,
agrees that any such restricted sale shall be deemed to have been made
in a commercially reasonable manner.
(b) With respect to the sale of securities
constituting Collateral, to the extent the Trustee deems it advisable
to do so, in its sole discretion or as may be required by applicable
law, the Trustee may restrict the prospective bidders or purchasers to
Persons who, in the Trustee's sole judgment, are sufficiently
sophisticated and who will represent and agree that they are purchasing
the securities constituting Collateral then being sold for their own
account and not with a view to the distribution or resale thereof, and
upon consummation of any such sale, the Trustee shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
securities constituting Collateral so sold.
10.8. Certain Remedies in Respect of Intellectual Property. If
an Event of Default shall have occurred and shall be continuing, in
addition to the other rights and remedies provided for herein or
otherwise available to it, the Trustee may license or sublicense
(whether general, special or otherwise, and whether on an exclusive or
non-exclusive basis) all or any portion of the Intellectual Property
throughout the world for such term or terms, on such conditions and in
such manner as the Trustee shall determine. Upon request by the
Trustee, Grantor shall execute and deliver to the Trustee any powers of
attorney, in form and substance reasonably satisfactory to the Trustee
for the implementation of any assignment, license, sublicense, grant of
option, sale or other disposition of any Intellectual Property. In the
event of any sale, assignment, or other disposition of any of the
Intellectual Property, the goodwill and general intangibles connected
with and symbolized by the Intellectual Property subject to such
disposition shall be included, and Grantor shall supply to the Trustee
or its designee, for inclusion in such sale, assignment or other
disposition, all Intellectual Property relating to such Intellectual
Property. Notwithstanding the foregoing or any other provision hereof,
the provisions of this Security Agreement, including this Section 10.8,
are subject to the Trademark License Agreement, dated as of June 3,
1999, between Riviera Operating Corporation and Grantor, and the use
and enjoyment by the Trustee of the license rights thereunder shall be
subject to the limitations contained therein.
23
10.9. Specific Performance. In addition to any of the other
rights and remedies hereunder, the Trustee shall have the right to
institute a proceeding seeking specific performance in connection with
any of the agreements or obligations hereunder.
10.10. Receivership. Upon and during the continuance of an
Event of Default, the Trustee may, to the fullest extent permitted by
law, have a court having jurisdiction appoint a receiver, which
receiver shall take charge and possession of and protect, preserve,
replace and repair the Collateral or any part thereof, and manage and
operate the same, and receive and collect all rents, income, receipts,
royalties, revenues, issues and profits therefrom. Except to the extent
prohibited by law, Grantor shall irrevocably consent and shall be
deemed to have hereby irrevocably consented to the appointment thereof,
and upon such appointment, Grantor shall immediately deliver possession
of such Collateral to the receiver. Except to the extent prohibited by
law, Grantor also irrevocably consents to the entry of an order
authorizing such receiver to invest interest upon any funds held or
received by the receiver in connection with such receivership. The
Trustee shall be entitled to such appointment as a matter of right, if
it shall so elect, without the giving of notice to any party and
without regard to the adequacy of the security of the Collateral.
SECTION 11. Application of Proceeds. All cash proceeds received by the
Trustee upon any sale of, collection of, or other realization upon, all or any
part of the Collateral shall be applied as follows:
First: To the payment of all reasonable out-of-pocket expenses
incurred by the Trustee in connection with the sale of, collection of
or other realization upon Collateral, including reasonable attorneys'
fees and disbursements and court costs, if applicable;
Second: To the payment of the Obligations in such manner
consistent with applicable law and the Indenture as the Trustee in its
discretion shall decide; and
Third: To the extent of the balance (if any) of such proceeds,
to payment to Grantor or other Person legally entitled thereto.
Non-cash proceeds of any disposition by the Trustee of Collateral
available to satisfy the Obligations shall be applied to the Obligations in such
order and in such manner consistent with applicable law and the Indenture as the
Trustee in its discretion shall decide.
SECTION 12. Expenses. Grantor will immediately upon demand pay to the
Trustee the amount of any and all reasonable expenses, including the reasonable
fees and expenses of the Trustee's counsel and the fees and expenses of any
experts and agents which the Trustee may incur in connection with (a) the
collection of the Obligations, (b) the enforcement and administration of this
Agreement or any other Collateral Document, (c) the custody or preservation of,
or the sale of, collection from, or other realization upon, any of the
Collateral, (d) the exercise or enforcement of any of the rights of the Trustee
or any Secured Party hereunder, (e) the failure by Grantor to perform or observe
any of the provisions hereof, (f) the preparation and filing or recording of
financing statements and other documents (including all taxes in
24
connection therewith) in public offices necessary or desirable to create and
maintain first priority perfected security interests in the Collateral in favor
of the Trustee, (g) the payment or discharge of any taxes, insurance premiums
required or permitted under any Collateral Document or encumbrances with respect
to the Collateral, (h) defending or prosecuting any actions or proceedings
arising out of or related to the transactions to which this Agreement relates
(other than actions by Grantor for breach of the Indenture or any Collateral
Documents determined by a court of competent jurisdiction pursuant to a
non-appealable order), or (i) otherwise protecting, maintaining or preserving
the Collateral and the perfection and priority of the security interests granted
or purported to be granted hereunder, or the enforcing, foreclosing, retaking,
holding, storing, processing, selling or otherwise realizing upon the Collateral
and the Trustee's security interest therein, whether through judicial
proceedings or otherwise. All amounts payable by Grantor under this Section 12
shall be due upon demand and shall be secured hereby and shall be part of the
Obligations. Grantor's obligations under this Section 12 shall survive the
termination of this Agreement and the discharge of Grantor's other obligations
hereunder.
SECTION 13. Amendments in Writing; No Waiver, Cumulative Remedies; Reinstate-
ment; Additional Grantor.
13.1. Amendments Subject to the provisions of Article 9 of the
Indenture, none of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified, except by a
written instrument executed by Grantor (except as otherwise provided in
Section 13.4) and the Trustee; provided that any provision of this
Agreement imposing obligations on Grantor may be waived by the Trustee
in a written instrument executed solely by the Trustee.
13.2. No Waiver; Remedies Cumulative. To the maximum extent
permitted by law, (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, privilege or
remedy hereunder shall operate as a waiver thereof or constitute an
acquiescence to any Default or Event of Default; (b) no single or
partial exercise of any such right, power, privilege or remedy
hereunder nor any taking, exchange, release or non-perfection of any
other collateral, nor any release or amendment of or consent to any
departure from any guarantees for all or any of the Obligations,
preclude any other or future exercise thereof or the exercise of any
other right, power or remedy, and (c) the Trustee's acceptance of
partial payment or performance will not extend or affect any grace
period or constitute a waiver of a Default or Event of Default. A
waiver by the Trustee or any Holder of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy
which the Trustee or such Holder would otherwise have on any future
occasion. To the maximum extent permitted by law, the remedies herein
provided are cumulative and are not exclusive of any remedies provided
by law.
13.3. Reinstatement. In the event the Trustee shall have
instituted any proceeding to enforce any right, power or remedy under
this Agreement by foreclosure, sale, entry or otherwise, 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, Grantor, the Trustee and each Holder shall be restored to
their respective
25
former positions and rights hereunder with respect to the Collateral,
and all rights, remedies and powers of the Trustee and the Secured
Parties shall continue as if no such proceeding had been instituted.
13.4. Additional Grantors. If Grantor shall acquire or create
a Restricted Subsidiary after the date of this Agreement, then such
newly acquired or created Restricted Subsidiary (each such Restricted
Subsidiary, an "Additional Grantor") shall (i) become a party to this
Agreement by executing and delivering to the Trustee an Amendment to
Security Agreement (Additional Grantor) in substantially the form of
Annex I hereto (each, an "Amendment to Security Agreement (Additional
Grantor)"), and (ii) shall enter into such documents as shall be
necessary, in the Trustee's opinion, to create a perfected, first
priority security interest in the capital stock (to the extent
required to be pledged under the Indenture) and all property of such
Restricted Subsidiary (including without limitation any real property
and all personal property of such Restricted Subsidiary) and the
proceeds and products thereof. Upon the execution and delivery to the
Trustee by any Additional Grantor of an Amendment to Security
Agreement (Additional Grantor), which Amendment to Security Agreement
(Additional Grantor) need not be executed by Grantor, and the
acceptance thereof by the Trustee, such Additional Grantor shall be
and become a Grantor hereunder, and each reference in this Agreement
to the "Grantor" shall include such Additional Grantor and each
reference in the Indenture, the Securities and any other Transaction
Document to the "Grantor" shall include such Person.
SECTION 14. Appointment as the Trustee. The actions of the Trustee hereunder
are subject to the provisions of the Indenture. The Trustee shall have the right
hereunder to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking action (including
without limitation the release or substitution of Collateral), in each case in
accordance with this Agreement and the Indenture. The Trustee may resign and a
successor Trustee may be appointed in the manner provided in the Indenture. Upon
the acceptance of any appointment as the Trustee by a successor Trustee, such
successor Trustee shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Trustee under this
Agreement, and the retiring Trustee shall thereupon be discharged from its
duties and obligations under this Agreement. After any retiring Trustee's
resignation, the provisions of this Agreement shall inure to its benefit as to
any actions taken or omitted to be taken by it under this Agreement while it was
the Trustee.
SECTION 15. The Trustee Appointed Attorney-in-Fact; the Trustee May Perform.
15.1. The Trustee Appointed as Attorney-in-Fact. Grantor
hereby irrevocably constitutes and appoints the Trustee and any
officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of Grantor and in the name of Grantor, or in
its own name, for the purpose of carrying out the terms of this
Agreement to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or desirable
to accomplish the purposes of this Agreement. Without limiting the
generality of the foregoing, Grantor hereby gives the Trustee and any
officer or agent of the Trustee the
26
power and right, on behalf of Grantor, without notice to or assent by
Grantor, to do any or all of the following:
(a) in the name of Grantor or its own name, or
otherwise, take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
monies due under any Contract or with respect to any other Collateral
and file any claim or take any other action or proceeding in any court
of law or equity or otherwise deemed appropriate by the Trustee for the
purpose of collecting any and all such monies due under any Contract or
with respect to any other Collateral whenever payable;
(b) in the case of any Copyright, Patent or
Trademark, execute and deliver any and all agreements, instruments,
documents and papers as the Trustee may determine appropriate to
evidence the Trustee's security interest in such Copyright, Patent or
Trademark and the goodwill and general intangibles of Grantor relating
thereto or represented thereby;
(c) pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral, effect any repairs or
any insurance called for by the terms of this Agreement and pay all or
any part of the premiums therefor and the costs thereof;
(d) execute, in connection with any sale provided
for in Sections 10.3, 10.4 or 10.5 or any other sale of Collateral
pursuant to this Agreement, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral;
and
(e) (i) direct any party liable for any payment
under any of the Collateral to make payment of any and all monies due
or to become due thereunder directly to the Trustee or as the Trustee
shall direct; (ii) ask or demand for, collect, receive payment of and
receipt for, any and all monies, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral;
(iii) sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection
with any of the Collateral; (iv) commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any thereof and to enforce
any other right in respect of any Collateral; (v) defend any suit,
action or proceeding brought against Grantor with respect to any
Collateral; (vi) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, to give such discharges or
releases as the Trustee may deem appropriate; and (vii) generally,
sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as
though the Trustee were the absolute owner thereof for all purposes,
and do, at the Trustee's option and Grantor's expense, at any time, or
from time to time, all acts and things which the Trustee deems
necessary to protect, preserve or realize upon the Collateral and the
Trustee's and the Holders' security interests therein and to effect the
intent of this Agreement, all as fully and effectively as Grantor might
do.
27
The foregoing grant of authority is a power of attorney
coupled with an interest and such appointment shall be irrevocable
until this Agreement is terminated and the security interests created
hereby are released. Grantor hereby ratifies all that such attorneys
shall lawfully do or cause to be done by virtue and in accordance with
the terms hereof. Anything in this Section 15.1 to the contrary
notwithstanding, the Trustee agrees that it will not exercise any
rights under the power of attorney provided for in this Section 15.1
unless an Event of Default shall have occurred and be continuing.
15.2. The Trustee May Perform. If Grantor shall fail to do any
act or thing that it has covenanted to do hereunder or under the
Indenture within any applicable grace period with respect thereto or if
any representation or warranty on the part of Grantor contained herein
or under the Indenture shall be breached, the Trustee or any Secured
Party may (but shall not be obligated to), after providing Grantor with
at least ten days' notice, 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 or such Secured Party shall be paid
by Grantor promptly upon demand therefor, with interest at the Default
Rate during the period from and including the date on which such funds
were so expended to the date of repayment. Grantor's obligations under
this Section shall survive the termination of this Agreement and the
discharge of Grantor's other obligations under this Agreement.
15.3. Duty of the Trustee. The Trustee's sole duty with
respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the UCC, Section
9 hereof or otherwise, shall be to deal with it in the same manner as
the Trustee deals with similar property for its own account. Neither
the Trustee, any Holder nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of Grantor or any other person or
to take any other action whatsoever with regard to the Collateral or
any part thereof. The powers conferred on the Trustee and the Holders
hereunder are solely to protect the Trustee's and the Holders'
interests in the Collateral and shall not impose any duty upon the
Trustee or any Holder to exercise any such powers. The Trustee and the
Holders shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they
nor any of their officers, directors, employees or agents shall be
responsible to Grantor for any act or failure to act hereunder, except
for their own gross negligence or willful misconduct. Except for the
safe custody of any Collateral in its possession and the accounting
for monies actually received by it hereunder, the Trustee shall have
no duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not the Trustee has or
is deemed to have knowledge of such matters, or as to the taking of
any necessary steps to preserve rights against prior parties or any
other rights pertaining
28
thereto. Nothing contained in this Agreement shall be
construed as requiring or obligating the Trustee or the Holders, and
neither the Trustee nor the Holders shall be required or obligated, to
(a) present or file any claim or notice or take any action with respect
to any Collateral or in connection therewith or (b) notify Grantor of
any decline in the value of any Collateral.
15.4. Execution of Financing Statements. Pursuant to Section
9-402(2)(e) of the UCC, Grantor authorizes the Trustee (subject to the
last sentence of Section 5.2) to file financing statements and
continuation statements with respect to the Collateral without the
signature of Grantor in such form and in such filing offices as the
Trustee reasonably determines appropriate to perfect, and maintain
perfected, the security interests of the Trustee under this Agreement.
A carbon, photographic or other reproduction of this Agreement shall be
sufficient as a financing statement for filing in any jurisdiction. At
the time the Riviera Black Hawk is first Operating (as such terms are
defined in the Indenture), so long as Grantor's place of business
(within the meaning of the UCC) at such time is located in the State of
Colorado, the Trustee shall, at Grantor's expense, execute such
termination statements prepared by Grantor, and as Grantor may
reasonably request, to terminate any financing statements previously
filed in the State of Nevada in connection with the Collateral
Documents on the basis that Grantor's place of business at the time of
such filings was located in the State of Nevada (and the parties hereto
acknowledge that the financing statement filed in the State of Nevada
in connection with the execution and delivery of the Collateral
Documents was so filed on the theory that Grantor's place of business
at such time was in the State of Nevada); provided that nothing in this
sentence shall prohibit or impair the Trustee's right to file or direct
the filing of any financing statements in future in any jurisdiction in
accordance with the provisions of this Agreement.
15.5. Authority of the Trustee. Grantor acknowledges that the
rights and responsibilities of Grantor under this Agreement with
respect to any action taken by the Trustee or the exercise or
non-exercise by the Trustee of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Trustee and the
Holders, be governed by the Indenture and by such other agreements with
respect thereto as may exist from time to time among them, but, as
between the Trustee and Grantor, the Trustee shall be conclusively
presumed to be acting as agent for the Holders with full and valid
authority so to act or refrain from acting, and Grantor shall be under
no obligation, or entitlement, to make any inquiry respecting such
authority. The Trustee may exercise its rights under this Agreement
through an agent or other designee.
SECTION 16. Notices. All notices, requests, demands and other communication
shall be given in the manner set forth in Section 11.02 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 Grantor, at its address specified pursuant to the
Indenture; (ii) if to the Trustee, at its address specified pursuant to the
Indenture; or (iii) as to any such party, at such other address, facsimile or
telephone number, or to the attention of such other
29
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 17. Continuing Security Interest; Assignment. This Agreement shall
create a continuing security interest in the Collateral and shall (a) be binding
upon Grantor, its successors and assigns, and (b) inure, together with the
rights and remedies of the Trustee hereunder, to the benefit of the Trustee
(and, to the extent provided herein, any other trustee under the Deed of Trust)
and the other Secured Parties and each of their respective successors,
transferees and assigns; and no other Persons (including without limitation any
other creditors of Grantor) shall have any interest herein or any right or
benefit with respect hereto. Without limiting the generality of the foregoing
clause (b), any Secured Party may assign or otherwise transfer any security or
guarantee held by it secured by this Agreement to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Secured Party, herein or otherwise, subject, however, to
the provisions of the Indenture.
SECTION 18. Release of Collateral. Reference is hereby made to Article 10 of
the Indenture for provisions which discuss the release of the Collateral from
the Liens created by this Agreement.
SECTION 19. Termination. When all Obligations have been indefeasibly paid in
full, this Agreement shall terminate (except as to those provisions which it is
provided herein shall survive such termination) and the Trustee shall forthwith
cause to be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral and
money received in respect thereof, to or to the order of Grantor, and to be
released and canceled, all licenses and rights referred to in Section 7.4
hereof; provided, however, that any licenses or sublicenses granted by the
Trustee pursuant to Section 10.8 shall continue to be in full force and effect
in accordance with their terms. The Trustee shall also execute and deliver to
Grantor upon such termination such UCC termination statements and such other
documentation as shall be reasonably requested by Grantor to effect the
termination and release of the security interests in the Collateral.
SECTION 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED 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, EXCEPT TO THE
EXTENT THAT THE PERFECTION AND ENFORCEMENT OF THE SECURITY INTERESTS HEREUNDER
IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF ANOTHER
JURISDICTION.
SECTION 21. 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.
30
SECTION 22. Interaction with Indenture.
(a) Incorporation by Reference. All terms,
covenants, conditions, provisions and requirements of the Indenture are
incorporated by reference in this Agreement.
(b) Conflicts. Notwithstanding any other provision
of this Agreement, the terms and provisions of this Agreement shall be
subject and subordinate to the terms of the Indenture. To the extent
that the Indenture provides Grantor with a particular cure or notice
period, or establishes any limitations or conditions on the Trustee's
actions with regard to a particular set of facts, Grantor shall be
entitled to the same cure periods and notice periods, and the Trustee
shall be subject to the same limitations and conditions, under this
Agreement, as under the Indenture, in place of the cure periods, notice
periods, limitations and conditions provided for under this Agreement;
provided, however, that such cure periods, notice periods, limitations
and conditions shall not be cumulative as between the Indenture and
this Agreement. In the event of any conflict or inconsistency between
the provisions of this Agreement and those of the Indenture, including
without limitation any conflicts or inconsistencies in any definitions
herein or therein, the applicable provisions or definitions of the
Indenture shall govern.
SECTION 23. Other Security. To the extent that the Obligations are now or
hereafter secured by property other than the Collateral or by the guarantee,
endorsement or property of any other Person, then the Trustee shall have the
right in its sole discretion to pursue, relinquish, subordinate, modify or take
any other action with respect thereto, without in any way modifying or affecting
any of the Trustee's or any Holder's rights and remedies hereunder.
SECTION 24. 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 together shall constitute one and the same agreement.
SECTION 25. Headings. The Section and subsection headings used in this
Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
SECTION 26. Additional Grantor Obligations Absolute. All obligations of any
Additional Grantor hereunder shall be absolute and unconditional irrespective
of:
(a) any Bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of the
Company or any Additional Grantor;
(b) any lack of validity or enforceability of the
Indenture, the Completion Capital Commitment, the Securities or any
other Transaction Document;
(c) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations, or
any other amendment or waiver of or any
31
consent to any departure from the Indenture, the Completion Capital
Commitment, the Securities or any other Transaction Document (except to
the extent specified in such change, amendment or waiver);
(d) any taking, exchange, release or non-perfection
of any other collateral, or any release or amendment or waiver of or
consent to any departure from any guarantees, for all or any of the
Obligations;
(e) any exercise or non-exercise, or any waiver of
any right, remedy, power or privilege under or in respect of this
Agreement, the Indenture, the Completion Capital Commitment, the
Securities or any other Transaction Document, except as specifically
set forth in a waiver granted pursuant to the provisions of the
Indenture;
(f) any manner of application of collateral, or
proceeds thereof, to all or any of the Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Obligations or any other obligations of the Company or any Additional
Grantor under the Indenture, the Securities or any other Transaction
Document or any other assets of the Company, any Additional Grantor or
any of their respective Subsidiaries;
(g) any change, restructuring or termination of the
organizational structure or existence of the Company, any Additional
Grantor or any of their respective Subsidiaries;
(j) any failure of the Trustee or any Secured Party
to disclose to Grantor any information relating to the business,
condition (financial or otherwise), operations, properties or prospects
of the Company or any other Additional Grantor now or in the future
known to the Trustee or any other Secured Party (such Additional
Grantor hereby waiving any duty on the part of the Trustee and any
other Secured Party to disclose such information); or
(i) any other circumstance (including without
limitation any statute of limitations) or any existence of or reliance
on any representation by the Trustee or any other Secured Party that
might otherwise constitute a defense available to, or a discharge of,
the Company or any Additional Grantor or any guarantor or surety.
Notwithstanding the foregoing, nothing in this Section 26 shall be
deemed to impair or modify the rights or obligations otherwise expressly given
to or agreed to by the Additional Grantor in any of the Loan Documents.
SECTION 27. Waiver of Marshaling. Grantor, for itself and for all Persons
hereafter claiming through or under it or who may at any time hereafter become
holders of liens junior to the liens granted under this Agreement, hereby
expressly waives and releases all rights to direct the order in which any of the
Collateral shall be sold in the event of any sale or sales pursuant hereto and
to have any of the Collateral and/or any other property now or hereafter
constituting security for any of the obligations secured hereunder marshaled
upon the exercise of any remedies
32
under this Agreement or any other agreement granting security for the
obligations secured hereunder.
SECTION 28. Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of a default if such action is taken or condition
exists.
SECTION 29. Savings Clause. It is the intention of the parties to conform
strictly to the usury laws, whether state or federal, that are applicable to the
transaction of which this Agreement is a part. All agreements between Grantor
and the Trustee, whether now existing or hereafter arising and whether oral or
written, are hereby expressly limited so that in no contingency or event
whatsoever shall the amount paid or agreed to be paid by Grantor for the use,
forbearance or detention of the money to be loaned or advanced under the
Indenture, the Securities, the Completion Capital Commitment, the Keep-Well
Agreement, this Agreement or any other Transaction Document, or for the payment
or performance of any covenant or obligation contained herein or therein, exceed
the maximum amount permissible under applicable federal or state usury laws. If
under any circumstances whatsoever fulfillment of any such provision, at the
time performance of such provision shall be due, shall involve exceeding the
limit of validity prescribed by law, then the obligation to be fulfilled shall
be reduced to the limit of such validity. If under any circumstances Grantor
shall have paid an amount deemed interest by applicable law, which would exceed
the highest lawful rate, such amount that would be excessive interest under
applicable usury laws shall be applied to the reduction of the principal amount
owing in respect of the Obligations and not to the payment of interest, or if
such excessive interest exceeds the unpaid balance of principal and any other
amounts due hereunder, the excess shall be refunded to Grantor. All amounts paid
or agreed to be paid for the use, forbearance or detention of the principal
under any extension of credit or advancement of funds by the Trustee or any
Holder shall, to the extent permitted by law and to the extent necessary to
preclude exceeding the limit of validity prescribed by law, be amortized,
prorated, allocated and spread from the date of this Agreement until payment in
full of the Obligations so that the actual rate of interest on account of such
principal amounts is uniform throughout the term hereof.
SECTION 30. Certain Waivers by Grantor. Grantor waives (a) any claim that,
as to any part of the Collateral, a public sale, should the Trustee elect so to
proceed, is, in and of itself, not a commercially reasonable method of sale for
such Collateral, (b) except as otherwise provided in this Agreement, to the
fullest extent not prohibited by applicable laws, notice or judicial hearing in
connection with the Trustee's disposition of any of the Collateral, including
any and all prior notice and hearing for any pre-judgment remedy or remedies,
and all other requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of the Trustee's rights hereunder,
(c) all rights of redemption, appraisal or valuation, and (d) all rights and
defenses arising out of an election of remedies by any Secured Party, even
though that election of remedies, such as a nonjudicial foreclosure with respect
to security for a guaranteed obligation, has destroyed Grantor's rights of
subrogation and reimbursement against the principal.
33
SECTION 31. WAIVER OF JURY TRIAL. THE TRUSTEE AND GRANTOR HEREBY WAIVE TRIAL
BY JURY IN ANY JUDICIAL PROCEEDINGS INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.
SECTION 32. Gaming Laws. Notwithstanding any provision herein to the
contrary, the grant of security interest and the terms and provisions of this
Agreement, including, but not limited to, all rights and remedies of the Trustee
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 the Trustee 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.
SECTION 33. Entire Agreement. This written agreement represents the final
agreement between the parties with respect to the subject matter hereof and may
not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties with respect to the subject matter hereof. There are
no unwritten oral agreements among the parties with respect to the subject
matter hereof.
34
IN WITNESS WHEREOF, Grantor and the Trustee have caused this Security
Agreement to be duly executed and delivered as of the date first above written.
RIVIERA BLACK HAWK, INC.
a Colorado corporation
By:
-------------------------------------
Name:
Title:
IBJ WHITEHALL BANK & TRUST
COMPANY, a New York banking association,
as Trustee
By:
-------------------------------------
Name:
Title:
[Signature Page to Security Agreement]
EXHIBIT A
TO THE SECURITY AGREEMENT
-------------------------
COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
Title Date Filed Registration No. Effective Date
- ----- ---------- ---------------- --------------
None.
A-1
EXHIBIT B
TO THE SECURITY AGREEMENT
-------------------------
PATENTS AND PATENT APPLICATIONS
File Patent Country Registration No. Date
- ---- ------ ------- ---------------- ----
None.
B-1
EXHIBIT C
TO THE SECURITY AGREEMENT
-------------------------
TRADEMARK AND SERVICE MARK REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS
Under the Trademark License Agreement dated June 3, 1999, Grantor is a licensee
of the marks listed below for use at the Riviera Black Hawk.
Application (A)
Registration (R) Registration
Mark or Series No.(S) or Filing Date
- ---- --------------- --------------
Riviera (R)2,090,347 8/26/97
$40 for $20 (S)75/194,182 11/6/96
Bonus 21 Plus (S)75/152,286 8/19/96
Jack Pots (S)75/567,371 10/8/98
Jack Pots (S)75/567,372 10/8/98
Jack Pots (S)75/367,373 10/8/98
Loosie Slots (S)75/567,368 10/8/98
Loosie Slots (S)75/567/369 10/8/98
Loosie Slots (S)75/567/370 10/8/98
Nickel Heaven (S)75/423,123 1/26/98
Nickel Town (S)75/421,961 1/22/98
Riviera (S)74/646,349 3/13/95
C-1
EXHIBIT D
TO THE SECURITY AGREEMENT
-------------------------
COPYRIGHT LICENSES
Title Date Filed Registration No. Effective Date Owner of Record
- ----- ---------- ---------------- -------------- ---------------
None.
PATENT LICENSES
[For each License Agreement, separately identified]
Title Date Filed Registration No. Effective Date Owner of Record
- ----- ---------- ---------------- -------------- ---------------
None.
TRADE NAME, TRADEMARK AND SERVICE MARK LICENSES
Under the Trademark License Agreement dated June 3, 1999, Grantor is a licensee
of the marks listed below for use at the Riviera Black Hawk.
Application (A)
Registration (R) Registration
Mark or Series No. (S) or Filing Date
- ---- ----------------- --------------
Riviera (R)2,090,347 8/26/97
$40 for $20 (S)75/194,182 11/6/96
Bonus 21 Plus (S)75/152,286 8/19/96
Jack Pots (S)75/567,371 10/8/98
D-1
Jack Pots (S)75/567,372 10/8/98
Jack Pots (S)75/367,373 10/8/98
Loosie Slots (S)75/567,368 10/8/98
Loosie Slots (S)75/567/369 10/8/98
Loosie Slots (S)75/567/370 10/8/98
Nickel Heaven (S)75/423,123 1/26/98
Nickel Town (S)75/421,961 1/22/98
Riviera (S)74/646,349 3/13/95
D-2
SECURITY AGREEMENT
Schedule A
Motor Vehicles and Other Equipment Subject to Certificates of Title
-------------------------------------------------------------------
None
Schedule A-1
SECURITY AGREEMENT
Schedule B
Filings
-------
1. UCC-1 Financing Statements describing the Collateral and naming Grantor
as a debtor and the Trustee as secured party to be filed with:
(a) the Secretary of State of the State of Colorado
(b) the Secretary of State of the State of Nevada
(c) the Secretary of State of the State of New York
2. With respect to the interests granted in Trademark Licenses, (a) a
notice filing with United States Patent and Trademark Office, and (b)
UCC-1 Financing Statements describing the security interest and naming
Grantor as debtor and the Trustee as secured party to be filed with (i)
the Secretary of State of the State of Colorado and (ii) the Secretary
of State of the State of Nevada.
3. With respect to the interests granted in Patent Licenses, (a) a notice
filing with United States Patent and Trademark Office, and (b) UCC-1
Financing Statements describing the security interest and naming the
Grantor as debtor and the Trustee as secured party to be filed with (i)
the Secretary of State of the State of Colorado and (ii) the Secretary
of State of the State of Nevada.
4. With respect to the interests granted in Copyright Licenses, (a) a
notice filing with United States Copyright Office, and (b) UCC-1
Financing Statements describing the security interest and naming the
Grantor as debtor and the Trustee as secured party to be filed with (i)
the Secretary of State of the State of Colorado and (ii) the Secretary
of State of the State of Nevada.
Schedule B-1
SECURITY AGREEMENT
Schedule C
Executive Office; Collateral Location; Trade Names
--------------------------------------------------
1. The chief executive office of Grantor is located at: 444 Main Street,
Black Hawk, Colorado 80422.
2. All Collateral is located at Black Hawk, Colorado.
3. The Company uses, and has used in the previous five (5) years, only the
following business or trade names:
(a) Riviera Black Hawk, Inc.
Schedule C-1
SECURITY AGREEMENT
Schedule D
Governmental Authorities Party to Contracts
-------------------------------------------
Governmental Authority Other Parties Contract Date
- ---------------------- ------------- -------- ----
Black Hawk Business Isle Of Capri Special Improvement July 15, 1998
Improvement District, Black Hawk LLC District No. 1997
Gilpin County, Colorado Special Assessment
Bonds
Schedule D-1
ANNEX I
FORM OF
AMENDMENT TO SECURITY AGREEMENT
(ADDITIONAL GRANTOR)
This Amendment to Security Agreement (Additional Grantor) (this
"Amendment"), dated as of ___________, ____, relates to the Security Agreement
dated as of June 3, 1999, as amended, modified and supplemented to date (as so
amended, supplemented or modified, the "Agreement") executed by Riviera Black
Hawk, Inc., a Colorado corporation ("Grantor") in favor of IBJ Whitehall Bank &
Trust Company, as trustee (in such capacity, together with its successors and
assigns, the "Trustee"), for the benefit of the Secured Parties (as defined in
the Agreement). Capitalized terms used but not otherwise defined herein shall
have the meanings given in the Agreement.
In compliance with Section 4.20 of the Indenture dated as of June 3,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Indenture") between Grantor and the Trustee, [NAME OF RESTRICTED SUBSIDIARY]
("Additional Grantor") and the Trustee hereby agree as follows:
1. Amendment. The Agreement is hereby amended to add as a party, and
more specifically, as a Grantor thereunder, Additional Grantor.
2. Representations and Warranties. Additional Grantor represents and
warrants to the Trustee and each other Secured Party that each of the
representations and warranties of Grantor contained in the Agreement is hereby
made by Additional Grantor on and as of the date hereof and is true and correct
as to Additional Grantor.
3. Grant of Security Interest. Additional Grantor hereby grants,
pledges, assigns and transfers to the Trustee, for the Trustee's individual
benefit and the ratable benefit of the Holders, as security for the prompt and
complete payment and performance when due (whether at stated maturity, upon
redemption or required repurchase, by acceleration or otherwise) of all the
Obligations of Additional Grantor, a continuing first priority perfected
security interest in and lien on all of the right, title and interest of
Additional Grantor in, to and under all types and items of property of
Additional Grantor within the definition of Collateral (as defined in the
Agreement), in each case wherever located, whether now owned or at any time
hereafter acquired by Additional Grantor, whether now existing or hereafter
coming into existence, or in which Additional Grantor now has or at any time in
the future may acquire any right, title or interest.
4. Schedule Supplements. Additional Grantor has attached hereto
supplements to Schedules A through D to the Agreement, and Additional Grantor
hereby represents and warrants that such supplements have been prepared by
Additional Grantor in
Annex I-1
substantially the form of the Schedules to the Agreement and are true, accurate
and complete as of the date first above written.
5. Assumption of Rights, Obligations and Liabilities. Additional
Grantor assumes all of the rights, obligations and liabilities of a Grantor
under the Agreement and agrees to be bound thereby as if Additional Grantor were
an original party to the Agreement. Without limiting the generality of the
foregoing, Additional Grantor waives notice of the creation, advance, increase,
existence, extension, or renewal of, or of any indulgence with respect to, the
Obligations; waives presentment, demand, notice of dishonor, and protest; waives
notice of the amount of the Obligations outstanding at any time, notice of any
change in financial condition of Grantor, notice of any default or Event of
Default, and all other notices respecting the Obligations (except for any such
notices that are required to be given to Additional Grantor pursuant to the
other provisions of this Agreement or the provisions of the Securities, the
Indenture or any other Transaction Document); and agrees that maturity of the
Obligations and any part thereof may be accelerated, extended, or renewed one or
more times by the Holders, in its or their discretion, without notice to
Additional Grantor.
6. Effectiveness. This Amendment shall become effective on the date
hereof upon the execution hereof by Additional Grantor and the Trustee and
delivery hereof to the Trustee.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED 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 LAWS THEREOF,
EXCEPT TO THE EXTENT THAT THE PERFECTION AND ENFORCEMENT OF THE SECURITY
INTERESTS HEREUNDER IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF ANOTHER JURISDICTION.
Annex I-2
IN WITNESS WHEREOF, Additional Grantor and the Trustee have caused this
Amendment to Security Agreement (Additional Grantor) to be duly executed and
delivered as of the date first written above.
[ADDITIONAL GRANTOR]
By:
------------------------------------------
Name:
Title:
Address for Notice:
---------------------------------------------
---------------------------------------------
Attn: ---------------------------------------
Telephone: ----------------------------------
Telecopy: -----------------------------------
IBJ WHITEHALL BANK & TRUST
COMPANY, a New York banking association, as
Trustee
By:
-----------------------------------------
Name:
Title:
Annex I-3