ENVIRONMENTAL INDEMNITY
(Riviera Black Hawk Casino in Black Hawk, Colorado)
This ENVIRONMENTAL INDEMNITY (as amended, modified or otherwise
supplemented from time to time, this "Indemnity") is made and entered into as of
June 8, 2007, by and among RIVIERA HOLDINGS CORPORATION, a Nevada corporation
("RHC") and RIVIERA BLACK HAWK, INC., a Colorado corporation ("RBH"), as
indemnitors (RHC and RBH collectively referred to as "Indemnitors"), and
WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent (the "Agent") for
the benefit of the Lenders referred to below.
RECITALS
A. RBH is a wholly-owned subsidiary of RHC and RBH is the
present owner of the real property located in Black Hawk, Colorado included in
the Collateral and more particularly described on Exhibit A (the "Trust
Property").
B. RHC, RBH, and the Agent are, contemporaneously with the
execution and delivery of this Indemnity, entering into that certain Credit
Agreement, dated as of substantially even date herewith (as amended, restated,
supplemented, or otherwise modified from time to time, the "Credit Agreement"),
by and among RHC (the "Borrower"), the subsidiaries of the Borrower from time to
time party thereto, the lenders from time to time party thereto (individually, a
"Lender" and collectively, the "Lenders"), and Wachovia Bank, National
Association, as administrative agent. As used herein and in the Credit
Agreement, the term "Lenders" means, individually and collectively, the Agent
and the Lenders.
C. The Credit Agreement and the Credit Party Obligations are
secured, in part, by RBH's interest in the Trust Property. The Trust Property is
secured by that certain Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, between RBH and the Agent (for the benefit of the
Lenders), dated as of the date hereof (as the same may be amended, restated,
supplemented, or otherwise modified from time to time, the "Deed of Trust").
D. The Lenders have required, as a condition precedent to
entering into the Credit Agreement, that Indemnitors shall have executed and
delivered this Indemnity in favor of the Agent for the benefit of the Lenders.
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The Recitals are incorporated herein by this reference.
2. Definitions. Capitalized terms used herein but not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement. For
purposes of this Indemnity, the following terms have the meanings set forth
below.
"Adjacent Property" means any property so situated as to pose
a risk that a Hazardous Material could spread onto the Trust Property.
"Environmental Laws" collectively means and includes any
and all applicable present and, other than with respect to Section 3, future
local, state and federal law relating to the environment and environmental
conditions, including, without limitation, the Colorado Air Quality Control Act,
Colo. Rev. Stat. ss.ss. 25-7-101 et seq.; the Colorado Water Quality Control
Act, Colo. Rev. Stat. ss.ss. 25-8-l01 et seq.; the Hazardous Waste Statute,
Colo. Rev. Stat. ss.ss. 25-15-101 et seq.; the Hazardous Waste Sites Cleanup
Statute, Colo. Rev. Stat. ss.ss. 25-16-101 et. seq.; the Petroleum Storage Tank
Statute, Colo. Rev. Stat. ss.ss. 8-20.5-101 et seq.; the Radiation Control Act,
Colo. Rev. Stat. ss.ss. 25-11-101 et seq.; the Colorado Hazardous Substance
Incidents Statute, Colo., Rev. Stat ss.ss. 29-22-101 et seq..; the Colorado
Hazardous Substances Act of 1973, Colo. Rev. Stat. ss.ss. 25-5-501 et seq.; the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U .S.C. ss. 6901 et
seq.; the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. ss.ss. 9601-9657, as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous
Materials Transportation Act, 49 U.S.C. ss. 6901, et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. ss.ss. 1251 et seq.; the Clean Air Act,
42 U.S.C. ss.ss. 741 et seq.; the Clean Water Act, 33 U.S.C. ss. 7401 et seq.;
the Toxic Substances Control Act, 15 U.S.C. ss.ss. 2601-2629, the Safe Drinking
Water Act, 42 U S C. ss.ss. 300f-300j, or any other similar federal, state or
local law of similar effect, each as amended, and any and all regulations,
orders, and decrees now or hereafter promulgated thereunder or any and all
common law requirements, rules and bases of liability regulating, relating to or
imposing liability or standards of conduct concerning pollution or protection of
human health or the environment, as now or may at any time hereafter be in
effect.
"Hazardous Materials" means any substance, material or waste
that is or becomes designated or regulated as "toxic", "hazardous", "pollutant",
or "contaminant" or a similar designation or regulation under any Environmental
Law or other federal, state or local law (whether under common law, statute,
regulation or otherwise) or judicial or administrative interpretation of such,
including, without limitation, asbestos, petroleum products or by-products
(including, without limitation, crude oil or any fraction thereof), the group of
organic compounds known as polychlorinated biphenyls, radon gas, natural gas,
urea formaldehyde, radioactive materials, toxic, infectious, reactive,
corrosive, ignitable or flammable chemicals and chemicals known to cause cancer
or adverse health effects.
"Premises" means the Trust Property, and all improvements now
or hereafter located thereon, and all rights and interests of RBH therein.
"Remedial Work" means any investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial work of any kind or
nature reasonably necessary under any applicable, local, state or federal law or
regulation, any judicial order, or by any governmental or nongovernmental entity
or person because of, or in connection with, the current or future presence,
suspected presence, release or suspected release of Hazardous Materials in or
into the air, soil, groundwater, surface water or soil vapor at, on, about,
under or within the Premises (or any portion thereof).
3. Representations and Warranties. Except as would not constitute a
Material Adverse Effect, each of the Indemnitors represents and warrants that:
(1) no Hazardous Material has been installed, used, generated, manufactured,
treated, handled, refined, produced, processed, stored or disposed of in, on or
under the Trust Property, including, without limitation, the surface and
subsurface waters of the Trust Property, except in compliance in all material
respects with Environmental Laws; (2) no activity has been undertaken on the
Trust Property by Indemnitors, their respective agents, employees, contractors,
licensees, guests or tenants or to their knowledge any other Person, which would
cause, or has caused, (i) the Trust Property to become a hazardous waste
treatment, storage or disposal facility, as such terms are defined and
classified under any currently effective Environmental Law, (ii) a release or
threatened release of Hazardous Materials on, under, about or from the Trust
Property within the meaning of, or otherwise violate, any currently effective
Environmental Law (except as expressly permitted in writing by a Governmental
Authority), or (iii) the discharge or emission of Hazardous Materials which
would require a permit under any currently effective Environmental Law that has
not been obtained and is in full force and effect; (3) no conditions caused by
Indemnitors, their respective agents, employees, contractors, licensees, guests
or tenants or, to their knowledge, any other Person, with respect to the Trust
Property cause a violation or support a claim under any currently effective
Environmental Law; (4) to the best of Indemnitors' knowledge after due inquiry,
no underground storage tanks are located on the Trust Property or have been
located on the Trust Property and subsequently removed or filled; (5) with
respect to the Trust Property, Indemnitors have not received any notice at any
time that it (or any of their tenants or guests) is or was claimed to be in
violation of or in non-compliance with the conditions of any currently effective
Environmental Law; and (6) there is not now pending or threatened any action,
judgment, claim, consent decree, judicial or administrative orders or
agreements, or governmental liens with respect to Indemnitors or the Trust
Property relating to any currently effective Environmental Law.
4. Covenants. Each of the Indemnitors covenants: (i) that no Hazardous
Materials shall be installed, used, generated, manufactured, treated, handled,
refined, produced, processed, stored or disposed of in, on or under the Trust
Property, except in all material respects in compliance with all applicable
rules, regulations and laws; (ii) that no activity shall be undertaken on the
Trust Property which would cause (A) the Trust Property to become a hazardous
waste treatment, storage or disposal facility, as such terms are defined and
classified under any Environmental Law, (B) a release or threatened release of
Hazardous Materials on, under, about or from the Trust Property within the
meaning of, or otherwise violate, any Environmental Law (except as expressly
permitted in writing by a governmental authority), or (C) the discharge or
emission of Hazardous Materials into any watercourse, body of surface or
subsurface water or wetland, or the discharge into the atmosphere of any
Hazardous Materials, that would require a permit under any Environmental Law and
for which no such permit has been issued; (iii) that no activity shall be
undertaken or permitted to be undertaken by Indemnitors on the Trust Property
which would reasonably be expected to result in a violation under any
Environmental Law; (iv) that soils excavated during construction and groundwater
generated during dewatering activities on the Trust Property shall be handled
and disposed of in compliance with Environmental Laws in all material respects;
(v) that if any Remedial Work is required under any applicable Environmental
Laws because of or in connection with current or future presence, suspected
presence, release or suspected release of a Hazardous Material into the air,
soil, ground water, surface water, or soil vapor on, under or about the Premises
or any portion thereof, Indemnitors shall promptly commence and diligently
prosecute to completion all such Remedial Work; provided that the Remedial Work
shall have been approved by any environmental regulatory agency having
jurisdiction over such work; (vi) all Remedial Work shall be performed by
contractors, and under the supervision of a consulting engineer, each approved
in advance by the Agent and any necessary environmental regulatory agencies and
all costs and expenses of such Remedial Work and Agent's or its agents' or
representatives' monitoring or review of such Remedial Work (including
reasonable attorneys' fees, charges and disbursements) shall be paid by
Indemnitors; (vii) if Indemnitors do not timely commence and diligently
prosecute to completion the Remedial Work, Agent and its agents and
representatives may (but shall not be obligated to) cause such Remedial Work to
be performed and Indemnitors agree to bear and shall pay or reimburse Agent (for
the benefit of the Lenders) on demand for all expenses (including reasonable
attorneys' fees, charges and disbursements) relating to or incurred by Agent
(for the benefit of the Lenders) and its agents and representatives in
connection with monitoring, reviewing or performing any Remedial Work; (viii)
Indemnitors shall not commence any Remedial Work or enter into any settlement
agreement, consent decree or other compromise relating to any Hazardous
Materials or Environmental Laws which might impair the value of the Lenders'
security hereunder or under the other Credit Documents, unless such Remedial
Work is required to be performed by an environmental regulatory agency under
applicable law in which case Indemnitors shall use their best efforts not to
impair the value of the Lenders' security under the Credit Documents; and (ix)
promptly following completion of any remedial actions imposed upon Indemnitors
under any Environmental Law by a governmental agency in response to a violation
of Environmental Laws or any environmental permits, licenses, approvals or
authorizations or a release of Hazardous Materials at or from the Trust
Property, Indemnitors shall obtain and deliver to the Agent (for the benefit of
the Lenders), either (x) an environmental report in form and substance
reasonably acceptable to the Agent from an environmental consultant reasonably
acceptable to the Agent, stating that all required action has been taken, and
that upon completion of such action, the Trust Property is, to the knowledge of
such professional, then in compliance with applicable Environmental Laws, or (y)
a statement from the governmental agency that required such action to the effect
that all required action has been taken to its satisfaction.
5. Indemnities. Indemnitors hereby agree to unconditionally indemnify,
defend, and hold the Lenders harmless against: (1) any loss, fines, penalties,
actions, suits, proceedings, liability, damage, expense or claim incurred in
connection with, arising out of, resulting from or incident to the application
of any Environmental Law with respect to the Trust Property; (2) any breach of
any representation or warranty or the inaccuracy of any representation made by
Indemnitors in or pursuant to this Indemnity; (3) any breach of any covenant or
agreement made by Indemnitors in or pursuant to this Indemnity; (4) any
liability or obligation arising out of CERCLA, any equivalent state statute or
any other Environmental Law which may be incurred or asserted against the
Lenders, directly or indirectly, under Environmental Laws, with respect to the
Trust Property; and (5) any other loss, liability, damage, expense or claim
which may be incurred by or asserted against the Lenders, directly or
indirectly, resulting from the presence of Hazardous Material on the Trust
Property, including (A) all foreseeable and unforeseeable consequential damages,
(B) the costs of any required or necessary investigation, repair, cleanup,
remediation or detoxification and (C) the costs of the preparation and
implementation of any closure, remedial or other remedial plans. Notwithstanding
anything herein to the contrary, this Indemnity shall not be construed to impose
liability on Indemnitors for Hazardous Materials placed, released or disposed of
on the Trust Property or any obligation or liability under Environmental Law
(except to the extent caused by the acts or omissions of Indemnitors or their
respective agents, employees, contractors, licensees, guests and tenants) (i)
after the date of foreclosure, assignment (other than an assignment by the Agent
to a successor "Agent" under the Credit Agreement) or sale, (ii) after the
acceptance by the Agent (for the benefit of the Lenders) of a deed in lieu of
foreclosure, (iii) during any period during which a receiver appointed upon the
request or petition of the Agent (for the benefit of the Lenders) is in
possession of the Trust Property or the Agent (for the benefit of the Lenders)
operates the Trust Property as a mortgagee in possession, or (iv) to the extent
such liability arises from the gross negligence or willful misconduct of the
Agent (for the benefit of the Lenders) or any indemnitee hereunder.
6. Duration of Indemnity. The duration of Indemnitors' obligations
hereunder shall cease upon (i) payment in full in cash of all Credit Party
Obligations and the irrevocable termination of all commitments of the Lenders to
extend credit under the Credit Agreement and/or (ii) the release of the Deed of
Trust; provided, however, that Indemnitors' obligations with respect to Sections
5 and 9 shall not cease until the expiration of the statute of limitations
period applicable to the subject matter of the underlying claim.
7. Notices from Indemnitors. Indemnitors shall, promptly after
obtaining knowledge thereof, advise the Agent (for the benefit of the Lenders)
in writing of (i) any governmental or regulatory actions instituted or
threatened in writing under any Environmental Law affecting the Trust Property
or this Indemnity or any requirement by a government or regulatory agency to
take material response action with respect to the presence of Hazardous
Materials on the Trust Property, including, without limitation, any notice of
inspection (other than routine inspections), abatement or noncompliance; (ii)
all claims made or threatened in writing by any third party against Indemnitors
or the Trust Property relating to any Hazardous Material or a violation of an
Environmental Law with respect to the Trust Property; (iii) Indemnitors'
discovery of any occurrence or condition on the Trust Property or any Adjacent
Property that would reasonably be expected to subject Indemnitors or the Trust
Property to (A) a material claim under any Environmental Law or (B) any
restriction on ownership, occupancy, transferability or material change in use
of the Trust Property under any Environmental Law; and (iv) the commencement of
any Remedial Work. Indemnitors shall deliver to the Agent (for the benefit of
the Lenders) such documentation or records as the Agent may reasonably request
and that are susceptible of being obtained by Indemnitors relating to the Trust
Property in relation to any Environmental Law without undue cost or expense and
without the necessity for initiating legal proceedings to obtain the same.
Agent, for the benefit of the Lenders, may join and participate in, as a party
if it so determines, any legal or administrative proceeding or action concerning
the Premises under any Environmental Law. Indemnitors agree to bear and shall
pay or reimburse Agent (for the benefit of the Lenders) on demand for all
reasonable expenses (including reasonable attorneys' fees, charges and
disbursements) relating to or incurred by Agent (for the benefit of the Lenders)
in connection with any such action or proceeding.
8. Notice of Claims Against Indemnitees. The Agent (for the benefit of
the Lenders) agrees that it shall provide Indemnitors with written notice of any
claim or demand that the Agent (for the benefit of the Lenders) has determined
could give rise to a right of indemnification under this Indemnity; provided
that the failure to give any such notice shall not limit Indemnitors'
obligations hereunder. Such notice shall be given a reasonable time after the
Agent (for the benefit of the Lenders) becomes aware of the relevant facts and
shall specify, to the best of the Agent's knowledge, the facts giving rise to
the alleged claim, and the amount, to the extent determinable, of liability for
which indemnity is asserted. Indemnitors agree that in any action, suit or
proceeding brought against the Lenders, the Lenders may be represented by
counsel chosen by the Lenders, without affecting or otherwise impairing this
Indemnity and, to the extent fees and disbursements to such counsel are
reasonably incurred in protecting the Lenders' interests, to pay such fees and
disbursements. The Agent (for the benefit of the Lenders) agrees that, as to any
action, suit or proceeding for which Indemnitors have acknowledged in writing
and undertaken its obligation to indemnify, defend and hold the Lenders harmless
with respect thereto, the Agent (for the benefit of the Lenders) will not settle
or otherwise compromise any such action, suit or proceeding without the prior
written consent of Indemnitors, which consent shall not be unreasonably
withheld, conditioned, or delayed. If, as to any such action, suit or proceeding
for which Indemnitors have acknowledged in writing and undertaken their
obligation to indemnify, defend and hold the Lenders harmless with respect
thereto, without obtaining the prior written consent of Indemnitors, the Agent
(for the benefit of the Lenders) compromises or otherwise settles such action,
suit or proceeding, any such compromise or settlement without the consent of
Indemnitors shall not be binding upon Indemnitors. Each of the Indemnitors
agrees that it will not settle or compromise such action, suit or proceeding
without the prior written consent of Agent (for the benefit of the Lenders),
which consent may be given, conditioned, or withheld by the Lenders in its good
faith business judgment.
9. Payment of the Agent's Expenses. If after notice of claim under
Section 8 the Agent (for the benefit of the Lenders) retains counsel for advice
or other representation in connection with (i) any litigation, contest, dispute,
suit or proceeding (whether instituted by the Lenders, Indemnitors, or any other
party, including any governmental agency charged with enforcement of any
Environmental Law) in any way relating to this Indemnity, or (ii) efforts
initiated in good faith to enforce this Indemnity, then all of the reasonable
attorneys' fees arising from such services and all related expenses and court
costs shall be payable by Indemnitors within thirty (30) days after written
demand.
10. Environmental Inspections. With twenty-four hour advance written
notice (or with such notice and upon such terms as are reasonable in light of
the circumstances), the Agent (and/or its agents, employees and consultants) may
enter the Trust Property to ascertain its environmental condition and with the
reasonable belief that there has been, or could be, a release or threatened
release of Hazardous Materials or a violation of Environmental Laws, may sample
building materials, take soil samples and/or test borings, and otherwise inspect
the Trust Property; provided that the Agent shall be permitted to make such
inspections (a) to the extent no Default or Event of Default has occurred and is
continuing, only once during each fiscal year and (b) to the extent a Default or
Event of Default has occurred and is continuing, as reasonably requested by the
Agent. The Agent (and/or its agents, employees and consultants) shall conduct
such inspection in a reasonable manner so as to not unduly disrupt the operation
of Indemnitors and their guests and tenants.
11. Credit Party Obligations Absolute; Waivers. Except as otherwise
provided in Sections 5, 6, and 8, the obligations of Indemnitors hereunder shall
remain in full force without regard to, and shall not be impaired by the
following, any of which may be taken in such manner, upon such terms and at such
times as the Agent, in accordance with the terms of the Credit Agreement, this
Indemnity, any Credit Document, or any other document entered into by
Indemnitors in connection with the foregoing, deems advisable, without the
consent of or notice to, Indemnitors, nor shall any of the following give
Indemnitors any recourse or right of action against Lenders: (i) any express
amendment, modification, renewal, addition, supplement, extension or
acceleration of or to the Credit Party Obligations or the Credit Agreement, this
Indemnity, any Credit Document, or any other document entered into by
Indemnitors in connection with the foregoing (including, without limitation,
this Indemnity, unless expressly agreed by the parties hereto in writing); (ii)
any exercise or non-exercise by the Lenders of any right or privilege under the
Credit Agreement, this Indemnity, any Credit Document, or any other document
entered into by Indemnitors in connection with the foregoing; (iii) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Indemnitors, or any affiliate
of Indemnitors, or any action taken with respect to this Indemnity by any
trustee or receiver, or by any court, in any such proceeding, whether or not
Indemnitors shall have had notice or knowledge of any of the foregoing; (iv) any
release, waiver or discharge of Indemnitors (other than under this Indemnity) or
any endorser or other guarantor from liability under any of the Credit
Agreement, this Indemnity, any Credit Document, or any other document entered
into by Indemnitors in connection with the foregoing or Indemnitors' grant to
the Agent (for the benefit of the Lenders) of a security interest, Lien or
encumbrance in any of Indenmitors' property; (v) unless expressly agreed by the
parties hereto in writing, any subordination, compromise, settlement, release
(by operation of law or otherwise), discharge, compound, collection, or
liquidation of the Credit Agreement, this Indemnity (unless expressly agreed to
by the parties hereto in writing), any Credit Document, or any other document
entered into by Indemnitors in connection with the foregoing or any collateral
described in the Credit Agreement, this Indemnity, any Credit Document, or any
other document entered into by Indemnitors in connection with the foregoing or
otherwise, or any substitution with respect thereto; (vi) any assignment or
other transfer of the Credit Agreement, this Indemnity, any other Credit
Document, or any other document entered into by Indemnitors in connection with
the foregoing, in whole or in part; (vii) any acceptance of partial performance
of any of the obligations of Indemnitors under the Credit Agreement, this
Indemnity, any other Credit Document, or any other document entered into by
Indemnitors in connection with the foregoing; (viii) any consent to the transfer
of any collateral described in the Credit Agreement, this Indemnity, any Credit
Document, or any other document entered into by Indemnitors in connection with
the foregoing or otherwise; and (ix) any bid or purchase at any sale of the
collateral described in the Credit Agreement, this Indemnity, any Credit
Document, or any other document entered into by Indemnitors in connection with
the foregoing.
Except as otherwise provided in Sections 5, 6, and 8, the Indemnitors
unconditionally waive any defense to the enforcement of this Indemnity,
including, without limitation: (1) all presentments, demands (except as provided
herein and in the Credit Documents), demands for performance, notices of
nonperformance, protests, notices of protest, dishonor, nonpayment, partial
payment or default, notices of acceptance of this Indemnity and all other
notices and formalities to which the Indemnitors may be entitled; (2) any right
to require the Lenders to proceed against any guarantor or to proceed against or
exhaust any collateral described in the Credit Agreement, this Indemnity, any
Credit Document, or any other document entered into by Indemnitors in connection
with the foregoing or to pursue any other remedy whatsoever; (3) the defense of
any statute of limitations affecting the liability of Indemnitors hereunder; the
liability of Indemnitors or any guarantor under the Credit Agreement, any Credit
Document, or any other document entered into by Indemnitors in connection with
the foregoing, or the enforcement hereof, to the extent permitted by law; (4)
any defense arising by reason of any invalidity or unenforceability of the
Credit Agreement, any Credit Document, or any other document entered into by
Indemnitors in connection with the foregoing or any guarantor or of the manner
in which the Lenders have exercised their remedies under the Credit Agreement,
this Indemnity, any Credit Document, or any other document entered into by
Indemnitors in connection with the foregoing; (5) any defense based upon any
election of remedies by the Lenders, including, without limitation, any election
to proceed by judicial or nonjudicial foreclosure of any security, whether real
property or personal property security, or by deed in lieu thereof, and whether
or not every aspect of any foreclosure sale is commercially reasonable, or any
election of remedies (including, but not limited to, remedies relating to real
property or personal property security) that destroys or otherwise impairs the
rights of Indemnitors to proceed against any other Indemnitors or any other
guarantor for reimbursement, or both; (6) any duty of the Lenders to advise
Indemnitors of any information known to the Lenders regarding the financial
condition of any guarantor or of any other circumstance affecting any
guarantor's ability to perform its obligations to the Lenders, it being agreed
that Indemnitors assume the responsibility for being and keeping informed
regarding such condition or any such circumstances; (7) any right of subrogation
and any rights to enforce any remedy that the Lenders now have or may hereafter
have against any guarantor and any benefit of, and any right to participate in,
any security now or hereafter held by the Lenders, until all Credit Party
Obligations under the Credit Agreement, this Indemnity, any Credit Document, or
any other document entered into by Indemnitors in connection with the foregoing
have been fully paid and indefeasibly performed; and (8) to the extent permitted
by law, any right to assert against the Lenders any legal or equitable defense,
counterclaim, set-off or crossclaim that it may now or at any time or times
hereafter have against any other Indemnitors.
12. No Waiver. Indemnitors' obligations hereunder shall in no way be
impaired, reduced or released by reason of the Lenders' omission or delay to
exercise any right described herein or in connection with any notice (except for
notices required of the Agent (for the benefit of the Lenders) pursuant to this
Indemnity), demand, warning or claim regarding violations of any Environmental
Laws governing the Trust Property, except as expressly provided in Section 5
hereof.
13. Recourse.
(a) Each of the Indemnitors agrees that the obligations of
Indemnitors hereunder are separate, independent of and in addition to
Indemnitors' respective obligations under the Credit Agreement or any other
Credit Document.
(b) Indemnitors agree that a separate action may be brought to
enforce the provisions of this Indemnity, which shall in no way be deemed to be
an action on the Credit Party Obligations, whether or not the Lenders would be
entitled to a deficiency judgment following a judicial foreclosure or sale under
any Deed of Trust. Indemnitors waive any right to require that any action be
brought by the Lenders against Indemnitors or any other Person, or that any
other remedy under the Credit Agreement, this Indemnity, any other Credit
Document, or any other document entered into by Indemnitors in connection with
the foregoing be exercised. The Lenders may, at their option, proceed against
Indemnitors in the first instance to collect monies when due or to obtain
performance under this Indemnity, without first proceeding against Indemnitors
or any other indemnitors or any other Person and without first resorting to any
other indemnity, the Credit Agreement, this Indemnity, any Credit Document, or
any other document entered into by Indemnitors in connection with the foregoing
or any other remedy under the Credit Agreement, this Indemnity, any Credit
Document, or any other document entered into by Indemnitors in connection with
the foregoing.
(c) This Indemnity is not given as additional security for the
Credit Party Obligations and is entirely independent of the Credit Party
Obligations (except as provided in Section 5), and shall not be measured or
affected by any amounts at any time owing under the other Credit Documents, the
sufficiency or insufficiency of any collateral (including without limitation the
Premises) given to the Lenders to secure repayment of the Credit Party
Obligations, or the consideration given by the Lenders or any other party in
order to acquire the Premises or any portion thereof. None of the obligations of
Indemnitors hereunder shall be in any way secured by the lien of the Deed of
Trust or any other Credit Document.
14. Successors and Assigns. Subject to the provisions of Sections 5 and
6, this Indemnity shall be continuing, irrevocable and binding on Indemnitors
and their respective successors and assigns, and this Indemnity shall be binding
upon and shall inure to the benefit of each Lender and its respective successors
and assigns. The death or dissolution of Indemnitors shall not affect this
Indemnity or any of Indemnitors' obligations hereunder. It is agreed by
Indemnitors that their liabilities hereunder are not contingent on the signature
of any other indemnitor under any other indemnity.
15. Notices. All notices, demands and other communications under this
Indemnity shall be given in accordance with Section 9.2 of the Credit Agreement.
16. Entire Agreement. This Indemnity constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter contained in this Indemnity.
17. Amendment and Waiver. This Indemnity may not be amended except by a
writing signed by all the parties, nor shall observance of any term of this may
be waived except with the written consent of the Required Lenders or the Agent
(for the benefit of the Required Lenders).
18. Governing Law. THIS INDEMNITY AND ANY CLAIMS OR DISPUTES RELATING
THERETO SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
19. Counterparts. This Indemnity may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page of this Indemnity by telecopy or email shall be
effective as delivery of a manually executed counterpart of this Indemnity.
20. Severability. All provisions contained in this Indemnity are
severable and the invalidity or unenforceability of any provision shall not
affect or impair the validity or enforceability of the remaining provisions of
this Indemnity.
21. Headings. The descriptive headings of the Sections of this
Indemnity are inserted for convenience only and do not constitute a part of this
Indemnity.
22. Joint and Several Liability. Each of the undersigned Indemnitors
shall be jointly and severally liable for all obligations, costs, indemnities,
expenses and other liabilities of Indemnitors under this Agreement.
23. Attorney's Fees. If a Lender, or someone on its behalf, retains the
services of any attorney in connection with this Agreement, Indemnitor shall pay
the costs and reasonable attorneys' fees thereby incurred. The Lenders may
employ an attorney of Agent's own choice.
24. Interest. In the event that any Lender incurs any obligations,
costs or expenses under this Agreement, Indemnitors shall pay such reasonable
costs, obligations and expenses immediately, on demand. If such payment is not
received within twenty (20) days after demand thereof, interest on such amount
shall, after the expiration of such twenty (20) day period, accrue at the
Default Rate or the maximum rate permitted by law, whichever is less, until such
amount, plus interest, is paid in full.
25. Jurisdiction and Venue. Agent (for the benefit of the Lenders) and
Indemnitors irrevocably and unconditionally agree to submit to the exclusive
jurisdiction of the state courts and United States federal courts sitting in the
State of New York for any actions, suits or proceedings arising out of or
relating to this Indemnity. Agent (for the benefit of the Lenders) and
Indemnitors further irrevocably and unconditionally waive any objection to the
laying of venue of any action, suit or proceeding arising out of this Indemnity
in the state courts and United States federal courts sitting in the State of New
York, and hereby further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
26. Waiver of Jury Trial. To the fullest extent permitted by law, Agent
(for the benefit of the Lenders) and Indemnitors each waives any right to have a
jury participate in resolving any dispute whether sounding in contract, tort or
otherwise arising out of; connected with, related to or incidental to the
relationship established between them in connection with this Indemnity. Any
such disputes shall be resolved in a bench trial without a jury.
[Signature Page Follows]
CHAR1\990320v4
IN WITNESS WHEREOF, this Environmental Indemnity has been executed as
of the date first above written.
AGENT (FOR THE BENEFIT
OF THE LENDERS): WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent for the Lenders
By:
--------------------------------------
Name:
Title:
INDEMNITORS: RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
EXHIBIT A
Lot 1, Block 1, Riviera Hotel and Casino Black Hawk, Minor Subdivision, Together
with Permanent Subterranean Easement, as described in Agreement recorded May 7,
1999, in Book 669, Page 355, and re-recorded May 26, 1999, in Book 671, Page 54,
County of Gilpin, State of Colorado
Also known as: 444 Main Street, Black Hawk, Colorado 80422