Continuing Guaranty
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Guarantor(s): Borrower(s):
1. RIVIERA HOLDINGS CORPORATION; a. RIVIERA HOLDINGS CORPORATION;
2. RIVIERA OPERATING CORPORATION; b. RIVIERA OPERATING CORPORATION;
3. RIVIERA GAMING MANAGEMENT, INC.; c. RIVIERA BLACK HAWK, INC.;
4. RIVIERA GAMING MANAGEMENT OF COLORADO, and
INC.; d. any other entity hereafter
5. RIVIERA BLACK HAWK, INC.; made a "Borrower" under the
and below-defined Loan Agreement
6. any other entity that is hereafter the manner set forth in Section
made a Borrower or a Guarantor" under 6.19 thereof
the below-defined Loan Agreement in
the manner set forth in Section 6.19
thereof, and executes and delivers
this Guaranty or a joinder hereto as
an additional Guarantor hereunder
Address:
c/o RIVIERA HOLDINGS CORPORATION
0000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Executive Vice President of Finance
Fax No. 000.000.0000
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Date: July __, 2002
This Continuing Guaranty (this "Guaranty") is executed and delivered by the
above-named guarantors (jointly and severally, the "Guarantor"), as of the above
date, in favor of FOOTHILL CAPITAL CORPORATION ("Foothill"), whose address is
0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, in Foothill's capacity as
the Agent under the below-defined Loan Agreement for the benefit of the
below-defined Lender Group, with respect to the Indebtedness of each and all of
the above-named borrowers (jointly and severally, the "Borrower"). This Guaranty
is executed and delivered pursuant to that certain Loan and Security Agreement,
dated as of substantially even date herewith (as the same may be amended,
restated, supplemented, or otherwise modified from time to time, the "Loan
Agreement"), by and among the Borrowers, the other Guarantors, the lenders
identified in the Loan Agreement as the "Lenders", and Foothill Capital
Corporation, as the "Agent" under the Loan Agreement (the Lenders and the Agent
are referred to herein, individually and collectively, as the "Lender Group").
With respect to any entity identified above as both a Borrower and a Guarantor,
the agreements made by such entity in this Guaranty are so made by such entity
in its capacity as a Guarantor in respect of each other Borrower, and not in
such entity's direct capacity as a Borrower.
1. Continuing Guaranty. Guarantor hereby unconditionally guarantees and
promises to pay on demand to the Agent (for the benefit of the Lender Group) in
lawful money of the United States, and to perform for the benefit of the Lender
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Group, all of the Borrower's present and future Indebtedness (as defined below)
to the Lender Group under or in connection with the Loan Agreement or any other
Loan Document (as such term is defined in the Loan Agreement).
2. "Indebtedness." As used in this Guaranty, the term "Indebtedness" is used
in its most comprehensive sense and shall mean and include without limitation,
to the extent arising or incurred under or in connection with the Loan Agreement
or any other Loan Document (as such term is defined in the Loan Agreement): (a)
any and all debts, duties, "Obligations" (as such term is defined in the Loan
Agreement), liabilities, representations, warranties and guaranties of Borrower
or any one or more of them, heretofore, now, or hereafter made, incurred, or
created, whether directly to the Lender Group or acquired by the Lender Group by
assignment or otherwise, or held by the Lender Group on behalf of others,
however arising, whether voluntary or involuntary, due or not due, absolute or
contingent, liquidated or unliquidated, certain or uncertain, determined or
undetermined, monetary or nonmonetary, written or oral, and whether Borrower may
be liable individually or jointly with others, and regardless of whether
recovery thereon may be or hereafter become barred by any statute of
limitations, discharged or uncollectible in any bankruptcy, insolvency or other
proceeding, or otherwise unenforceable; and (b) any and all amendments,
modifications, renewals and extensions of any or all of the foregoing, including
without limitation amendments, modifications, renewals and extensions which are
evidenced by any new or additional instrument, document or agreement; and (c)
any and all attorneys' fees, court costs, and collection charges incurred in
endeavoring to collect or enforce any of the foregoing against Borrower,
Guarantor, or any other person liable thereon (whether or not suit be brought)
and any other expenses of, for or incidental to collection thereof.
3. Waivers. Guarantor hereby waives: (a) presentment for payment, notice of
dishonor, demand, protest, and notice thereof as to any instrument, and all
other notices and demands to which Guarantor might be entitled (except as
expressly provided in the Loan Agreement with respect to Guarantor in its
capacity as a Guarantor (rather than, if applicable, in its direct capacity as a
Borrower)), including without limitation notice of all of the following: the
acceptance hereof; the creation, existence, or acquisition of any Indebtedness;
the amount of the Indebtedness from time to time outstanding; to the maximum
extent permitted by applicable law, any foreclosure sale or other disposition of
any property which secures any or all of the Indebtedness or which secures the
obligations of any other guarantor of any or all of the Indebtedness; any
adverse change in Borrower's financial position; any other fact which might
increase Guarantor's risk; any default, partial payment or non-payment of all or
any part of the Indebtedness; the occurrence and continuation of any other Event
of Default (as hereinafter defined); any and all agreements and arrangements
between the Lender Group and Borrower and any changes, modifications, or
extensions thereof, and any revocation, modification or release of any guaranty
of any or all of the Indebtedness by any person (including without limitation
any other person signing this Guaranty); (b) any right to require the Lender
Group to institute suit against, or to exhaust its rights and remedies against,
Borrower or any other person, or to proceed against any property of any kind
which secures all or any part of the Indebtedness, or to exercise any right of
offset or other right with respect to any reserves, credits or deposit accounts
held by or maintained with the Lender Group or any indebtedness of the Lender
Group to Borrower, or to exercise any other right or power, or pursue any other
remedy the Lender Group may have; (c) any defense arising by reason of any
disability or other defense of Borrower or any other guarantor or any endorser,
co-maker or other person, or by reason of the cessation from any cause
whatsoever of any liability of Borrower or any other guarantor or any endorser,
co-maker or other person, with respect to all or any part of the Indebtedness,
or by reason of any act or omission of the Lender Group or others which directly
or indirectly results in the discharge or release of Borrower or any other
guarantor or any other person or any Indebtedness or any security therefor,
whether by operation of law or otherwise; (d) any defense arising by reason of
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any failure of the Lender Group to obtain, perfect, maintain or keep in force
any security interest in, or lien or encumbrance upon, any property of Borrower
or any other person; (e) to the maximum extent permitted by applicable law, any
defense based upon any failure of the Lender Group to give Guarantor notice of
any sale or other disposition of any property securing any or all of the
Indebtedness, or any defects in any such notice that may be given, or any
failure of the Lender Group to comply with any provision of applicable law in
enforcing any security interest in or lien upon any property securing any or all
of the Indebtedness including, but not limited to, any failure by the Lender
Group to dispose of any property securing any or all of the Indebtedness in a
commercially reasonable manner; (f) any defense based upon or arising out of any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against Borrower or any
other guarantor or any endorser, co-maker or other person, including without
limitation any discharge of, or bar against collecting, any of the Indebtedness
(including without limitation any interest thereon), in or as a result of any
such proceeding; and (g) the benefit of any and all statutes of limitation with
respect to any action based upon, arising out of or related to this Guaranty.
Until all of the Indebtedness has been paid, performed, and discharged in full,
nothing shall discharge or satisfy the liability of Guarantor hereunder except
the full performance and payment of all of the Indebtedness. If any claim is
ever made upon the Lender Group for repayment or recovery of any amount or
amounts received by the Lender Group in payment of or on account of any of the
Indebtedness, because of any claim that any such payment constituted a
preferential transfer or fraudulent conveyance, or for any other reason
whatsoever, and the Lender Group repays all or part of said amount by reason of
any judgment, decree or order of any court or administrative body having
jurisdiction over the Lender Group or any of its property, or by reason of any
settlement or compromise of any such claim effected by the Lender Group with any
such claimant (including without limitation the Borrower), then and in any such
event, Guarantor agrees that any such judgment, decree, order, settlement and
compromise shall be binding upon Guarantor, notwithstanding any revocation or
release of this Guaranty or the cancellation of any note or other instrument
evidencing any of the Indebtedness, or any release of any of the Indebtedness,
and the Guarantor shall be and remain liable to the Lender Group under this
Guaranty for the amount so repaid or recovered, to the same extent as if such
amount had never originally been received by the Lender Group, and the
provisions of this sentence shall survive, and continue in effect,
notwithstanding any revocation or release of this Guaranty. Until all of the
Indebtedness has been irrevocably paid and performed in full, Guarantor hereby
expressly and unconditionally waives (to the maximum extent permitted by
applicable law) all rights of subrogation, reimbursement and indemnity of every
kind against Borrower, and all rights of recourse to any assets or property of
Borrower, and all rights to any collateral or security held for the payment and
performance of any Indebtedness, including (but not limited to) any of the
foregoing rights which Guarantor may have under any present or future document
or agreement with any Borrower or other person, and including (but not limited
to) any of the foregoing rights which Guarantor may have under any equitable
doctrine of subrogation, implied contract, or unjust enrichment, or any other
equitable or legal doctrine. Neither any member of the Lender Group, nor any of
its directors, officers, employees, agents, attorneys or any other person
affiliated with or representing such member of the Lender Group shall be liable,
except in the case of such Person's gross negligence of willful misconduct, for
any claims, demands, losses or damages, of any kind whatsoever, made, claimed,
incurred or suffered by Guarantor or any other party.
4. Consents. Guarantor hereby consents and agrees that, without notice to or
by Guarantor and without affecting or impairing in any way the obligations or
liability of Guarantor hereunder, the Lender Group may, from time to time before
or after revocation of this Guaranty, do any one or more of the following in the
Lender Group's sole and absolute discretion: (a) accelerate, accept partial
payments of, compromise or settle, renew, extend the time for the payment,
discharge, or performance of, refuse to enforce, and release all or any parties
to, any or all of the Indebtedness; (b) grant any other indulgence to Borrower
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or any other person in respect of any or all of the Indebtedness or any other
matter; (c) accept, release, waive, surrender, enforce, exchange, modify,
impair, or extend the time for the performance, discharge, or payment of, any
and all property of any kind securing any or all of the Indebtedness or any
guaranty of any or all of the Indebtedness, or on which the Lender Group at any
time may have a lien, or refuse to enforce its rights or make any compromise or
settlement or agreement therefor in respect of any or all of such property; (d)
substitute or add, or take any action or omit to take any action which results
in the release of, any one or more endorsers or guarantors of all or any part of
the Indebtedness, including, without limitation one or more parties to this
Guaranty, regardless of any destruction or impairment of any right of
contribution or other right of Guarantor; (e) amend, alter or change in any
respect whatsoever any term or provision relating to any or all of the
Indebtedness, including the rate of interest thereon; (f) apply any sums
received from Borrower, any other guarantor, endorser, or co-signer, or from the
disposition of any collateral or security, to any indebtedness whatsoever owing
from such person or secured by such collateral or security, in such manner and
order as the Lender Group determines in its sole discretion, and regardless of
whether such indebtedness is part of the Indebtedness, is secured, or is due and
payable; (g) apply any sums received from Guarantor or from the disposition of
any collateral or security securing the obligations of Guarantor, to any of the
Indebtedness in such manner and order as the Lender Group determines in its sole
discretion, regardless of whether or not such Indebtedness is secured or is due
and payable. Guarantor consents and agrees that the Lender Group shall be under
no obligation to marshal any assets in favor of Guarantor, or against or in
payment of any or all of the Indebtedness. Guarantor further consents and agrees
that the Lender Group shall have no duties or responsibilities whatsoever with
respect to any property securing any or all of the Indebtedness. Without
limiting the generality of the foregoing, the Lender Group shall have no
obligation to monitor, verify, audit, examine, or obtain or maintain any
insurance with respect to, any property securing any or all of the Indebtedness.
5. No Commitment. Guarantor acknowledges and agrees that the acceptance by
the Lender Group of this Guaranty, in and of itself, shall not constitute a
commitment of any kind by the Lender Group to extend such credit or other
financial accommodation to Borrower or to permit Borrower to incur Indebtedness
to the Lender Group.
6. Exercise of Rights and Remedies; Foreclosure of Trust Deeds. Guarantor
hereby waives all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become available
to the Guarantor or other surety by reason of California Civil Code Sections
2787 to 2855, inclusive. The Guarantor waives all rights and defenses that the
Guarantor may have because the Borrower's Indebtedness is secured by real
property. This means, among other things: (1) the Lender Group may collect from
the Guarantor without first foreclosing on any real or personal property
collateral pledged by the Borrower; and (2) If the Lender Group forecloses on
any real property collateral pledged by the Borrower: (A) The amount of the
Indebtedness may be reduced only by the price for which that collateral is sold
at the foreclosure sale, even if the collateral is worth more than the sale
price; and (B) the Lender Group may collect from the Guarantor even if the
Lender Group, by foreclosing on the real property collateral, has destroyed any
right the Guarantor may have to collect from the Borrower. This is an
unconditional and irrevocable waiver of any rights and defenses the Guarantor
may have because the Borrower's Indebtedness is secured by real property. These
rights and defenses include, but are not limited to, any rights or defenses
based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure. The
Guarantor waives all rights and defenses arising out of an election of remedies
by the Lender Group, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed the Guarantor's rights of subrogation and reimbursement against
the principal by the operation of Section 580d of the Code of Civil Procedure or
otherwise.
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7. Acceleration. Notwithstanding the terms of all or any part of the
Indebtedness, the obligations of the Guarantor hereunder to pay and perform all
of the Indebtedness shall, at the option of the Lender Group, immediately become
due and payable, without notice, and without regard to the expressed maturity of
any of the Indebtedness, in the event: (a) Guarantor shall fail to pay or
perform when due any of its obligations under this Guaranty; or (b) any default
or event of default occurs and is continuing under any present or future loan
agreement or other instrument, document, or agreement between the Lender Group
and Borrower or between the Lender Group and Guarantor. The foregoing are
referred to in this Guaranty as "Events of Default".
8. Indemnity. Guarantor hereby agrees to indemnify the Lender Group and hold
the Lender Group harmless from and against any and all claims, debts,
liabilities, demands, obligations, actions, causes of action, penalties, costs
and expenses (including without limitation attorneys' fees), of every nature,
character and description, which the Lender Group may sustain or incur based
upon or arising out of any of the Indebtedness, any actual or alleged failure to
collect and pay over any withholding or other tax relating to Borrower or its
employees, any relationship or agreement between the Lender Group and Borrower
in respect of the Loan Agreement or any other Loan Document, any actual or
alleged failure of the Lender Group to comply with any writ of attachment or
other legal process relating to Borrower or any of its property, or any other
matter, cause or thing whatsoever occurred, done, omitted or suffered to be done
by the Lender Group relating in any way to Borrower or the Indebtedness (except
that Guarantor need not so indemnify any member of the Lender Group for any such
amounts sustained or incurred as the result of the gross negligence or willful
misconduct of such member of the Lender Group or any of the directors, officers,
employees, agents, attorneys of such member of the Lender Group, or any other
person affiliated with or representing such member of the Lender Group).
Notwithstanding any provision in this Guaranty to the contrary, the indemnity
agreement set forth in this Section shall survive any termination or revocation
of this Guaranty and shall for all purposes continue in full force and effect.
9. Subordination. Any and all rights of Guarantor under any and all debts,
liabilities and obligations owing from Borrower to Guarantor, including any
security for and guaranties of any such obligations, whether now existing or
hereafter arising, are hereby subordinated in right of payment to the prior
payment in full of all of the Indebtedness. No payment in respect of any such
subordinated obligations shall at any time be made to or accepted by Guarantor
if at the time of such payment any Indebtedness is outstanding. If any Event of
Default has occurred and is continuing, Borrower and any assignee, trustee in
bankruptcy, receiver, or any other person having custody or control over any or
all of Borrower's property are hereby authorized and directed to pay to the
Lender Group the entire unpaid balance of the Indebtedness before making any
payments whatsoever to Guarantor, whether as a creditor, shareholder, or
otherwise; and insofar as may be necessary for that purpose, Guarantor hereby
assigns and transfers to the Agent, for the benefit of the Lender Group, all
rights to any and all debts, liabilities and obligations owing from Borrower to
Guarantor, including any security for and guaranties of any such obligations,
whether now existing or hereafter arising, including without limitation any
payments, dividends or distributions out of the business or assets of Borrower.
Any amounts received by Guarantor in violation of the foregoing provisions shall
be received and held as trustee for the benefit of the Lender Group and shall
forthwith be paid over to the Agent, for the benefit of the Lender Group, to be
applied to the Indebtedness in such order and sequence as the Lender Group shall
in its sole discretion determine, without limiting or affecting any other right
or remedy which the Lender Group may have hereunder or otherwise and without
otherwise affecting the liability of Guarantor hereunder. Guarantor hereby
expressly waives any right to set-off or assert any counterclaim against
Borrower.
10. Revocation. This is a Continuing Guaranty relating to all of the
Indebtedness, including Indebtedness arising under successive transactions which
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from time to time continue the Indebtedness or renew it after it has been
satisfied. The obligations of Guarantor hereunder may be terminated only as to
future transactions and only by giving 90 days' advance written notice thereof
to the Agent (for the benefit of the Lender Group) at its address above by
registered first-class U.S. mail, postage prepaid, return receipt requested. No
such revocation shall be effective until 95 days following the date of actual
receipt thereof by the Agent (for the benefit of the Lender Group).
Notwithstanding such revocation, this Guaranty and all consents, waivers and
other provisions hereof shall continue in full force and effect as to any and
all Indebtedness which is outstanding on the effective date of revocation and
all extensions, renewals and modifications of said Indebtedness (including
without limitation amendments, extensions, renewals and modifications which are
evidenced by new or additional instruments, documents or agreements executed
after revocation), and all interest thereon, then and thereafter accruing, and
all attorneys' fees, court costs and collection charges theretofore and
thereafter incurred in endeavoring to collect or enforce any of the foregoing
against Borrower, Guarantor or any other person liable thereon (whether or not
suit be brought) and any other expenses of, for or incidental to collection
thereof.
11. Independent Liability. Guarantor hereby agrees that one or more
successive or concurrent actions may be brought hereon against Guarantor, in the
same action in which Borrower may be sued or in separate actions, as often as
deemed advisable by the Lender Group. The liability of Guarantor hereunder is
exclusive and independent of any other guaranty of any or all of the
Indebtedness whether executed by Guarantor or by any other guarantor (including
without limitation any other persons signing this Guaranty). The liability of
Guarantor hereunder shall not be affected, revoked, impaired, or reduced by any
one or more of the following: (a) the fact that the Indebtedness exceeds the
maximum amount of Guarantor's liability, if any, specified herein or elsewhere
(and no agreement specifying a maximum amount of Guarantor's liability shall be
enforceable unless set forth in a writing signed by the Lender Group or set
forth in this Guaranty); or (b) any direction as to the application of payment
by Borrower or by any other party; or (c) any other continuing or restrictive
guaranty or undertaking or any limitation on the liability of any other
guarantor (whether under this Guaranty or under any other agreement); or (d) any
payment on or reduction of any such other guaranty or undertaking; or (e) any
revocation, amendment, modification or release of any such other guaranty or
undertaking; or (f) any dissolution or termination of, or increase, decrease, or
change in membership of any Guarantor which is a partnership. Guarantor hereby
expressly represents that it was not induced to give this Guaranty by the fact
that there are or may be other guarantors either under this Guaranty or
otherwise, and Guarantor agrees that any release of any one or more of such
other guarantors shall not release Guarantor from its obligations hereunder
either in full or to any lesser extent.
12. Financial Condition of Borrower. Guarantor is fully aware of the
financial condition of Borrower and is executing and delivering this Guaranty at
Borrower's request and based solely upon its own independent investigation of
all matters pertinent hereto, and Guarantor is not relying in any manner upon
any representation or statement of the Lender Group with respect thereto.
Guarantor represents and warrants that it is in a position to obtain, and
Guarantor hereby assumes full responsibility for obtaining, any additional
information concerning Borrower's financial condition and any other matter
pertinent hereto as Guarantor may desire, and Guarantor is not relying upon or
expecting the Lender Group to furnish to Guarantor any information now or
hereafter in the Lender Group's possession concerning the same or any other
matter.
13. Representations and Warranties. Guarantor hereby represents and warrants
that (i) it is in Guarantor's direct interest to assist Borrower in procuring
credit, because Borrower is an affiliate of Guarantor, furnishes goods or
services to Guarantor, purchases or acquires goods or services from Guarantor,
and/or otherwise has a direct or indirect corporate or business relationship
with Guarantor, (ii) this Guaranty has been duly and validly authorized,
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executed and delivered and constitutes the valid and binding obligation of
Guarantor, enforceable in accordance with its terms, and (iii) the execution and
delivery of this Guaranty does not violate or constitute a default under (with
or without the giving of notice, the passage of time, or both) any order,
judgment, decree, instrument or agreement to which Guarantor is a party or by
which it or its assets are affected or bound.
14. Costs; Interest. Whether or not suit be instituted, Guarantor agrees to
reimburse the Lender Group on demand for all reasonable attorneys' fees and all
other reasonable costs and expenses incurred by the Lender Group in enforcing
this Guaranty, or arising out of or relating in any way to this Guaranty, or in
enforcing any of the Indebtedness against Borrower, Guarantor, or any other
person, or in connection with any property of any kind securing all or any part
of the Indebtedness. Without limiting the generality of the foregoing, and in
addition thereto, Guarantor shall reimburse the Lender Group on demand for all
reasonable attorneys' fees and costs the Lender Group incurs in any way relating
to Guarantor, Borrower or the Indebtedness, in order to: obtain legal advice;
enforce or seek to enforce any of its rights; commence, intervene in, respond
to, or defend any action or proceeding; file, prosecute or defend any claim or
cause of action in any action or proceeding (including without limitation any
probate claim, bankruptcy claim, third-party claim, secured creditor claim,
reclamation complaint, and complaint for relief from any stay under the
Bankruptcy Code or otherwise); protect, obtain possession of, sell, lease,
dispose of or otherwise enforce any security interest in or lien on any property
of any kind securing any or all of the Indebtedness; or represent the Lender
Group in any litigation with respect to Borrower's or Guarantor's affairs. In
the event either the Lender Group or Guarantor files any lawsuit against the
other predicated on a breach of this Guaranty, the prevailing party in such
action shall be entitled to recover its attorneys' fees and costs of suit from
the non-prevailing party. All sums due under this Guaranty shall bear interest
from the date due until the date paid at the highest rate charged with respect
to any of the Indebtedness.
15. Notices. Any notice which a party shall be required or shall desire to
give to the other hereunder (except for notice of revocation, which shall be
governed by Section 10 of this Guaranty) shall be given in the manner, to the
address, and with the deemed effectiveness, as set forth in Section 12 of the
Loan Agreement.
16. Claims. To the maximum extent permitted by applicable law, Guarantor
agrees that any claim or cause of action by Guarantor against any member of the
Lender Group, or any of the directors, officers, employees, agents, accountants
or attorneys of such member of the Lender Group, based upon, arising from, or
relating to this Guaranty, or any other present or future agreement between the
Lender Group and Guarantor or between the Lender Group and Borrower, or any
other transaction contemplated hereby or thereby or relating hereto or thereto,
or any other matter, cause or thing whatsoever, whether or not relating hereto
or thereto, occurred, done, omitted or suffered to be done by the Lender Group,
or by the directors, officers, employees, agents, accountants or attorneys of
any member of the Lender Group, whether sounding in contract or in tort or
otherwise, shall be barred unless asserted by Guarantor by the commencement of
an action or proceeding in a court of competent jurisdiction within Los Angeles
County, California, by the filing of a complaint within two years after the
first act, occurrence or omission upon which such claim or cause of action, or
any part thereof, is based and service of a summons and complaint on an officer
of such person or any other person authorized to accept service of process on
behalf of such person, within 30 days thereafter. Guarantor agrees that such
two-year period is a reasonable and sufficient time for Guarantor to investigate
and act upon any such claim or cause of action. The two-year period provided
herein shall not be waived, tolled, or extended except by a specific written
agreement of the Lender Group. This provision shall survive any termination of
this Guaranty or any other agreement.
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17. Construction; Severability. The term "Guarantor" as used herein shall be
deemed to refer to all and any one or more such persons and their obligations
hereunder shall be joint and several. As used in this Guaranty, the term
"property" is used in its most comprehensive sense and shall mean all property
of every kind and nature whatsoever, including without limitation real property,
personal property, mixed property, tangible property and intangible property. If
any provision of this Guaranty or the application thereof to any party or
circumstance is held invalid, void, inoperative or unenforceable, the remainder
of this Guaranty and the application of such provision to other parties or
circumstances shall not be affected thereby, the provisions of this Guaranty
being severable in any such instance.
18. General Provisions. The Lender Group shall have the right to seek
recourse against Guarantor to the full extent provided for herein and in any
other instrument or agreement evidencing obligations of Guarantor to the Lender
Group, and against Borrower to the full extent of the Indebtedness. No election
in one form of action or proceeding, or against any party, or on any obligation,
shall constitute a waiver of the Lender Group's right to proceed in any other
form of action or proceeding or against any other party. The failure of the
Lender Group to enforce any of the provisions of this Guaranty at any time or
for any period of time shall not be construed to be a waiver of any such
provision or the right thereafter to enforce the same. All remedies hereunder
shall be cumulative and shall be in addition to all rights, powers and remedies
given to the Lender Group by law or under any other instrument or agreement.
Time is of the essence in the performance by Guarantor of each and every
obligation under this Guaranty. The Lender Group shall have no obligation to
inquire into the power or authority of Borrower or any of its officers,
directors, employees, or agents acting or purporting to act on its behalf, and
any Indebtedness made or created in reliance upon the professed exercise of any
such power or authority shall be included in the Indebtedness guaranteed hereby.
This Guaranty is the entire and only agreement between Guarantor and the Lender
Group with respect to the guaranty of the Indebtedness of Borrower by Guarantor,
and all representations, warranties, agreements, or undertakings heretofore or
contemporaneously made, which are not set forth herein, are superseded hereby.
No course of dealings between the parties, no usage of the trade, and no parol
or extrinsic evidence of any nature shall be used or be relevant to supplement
or explain or modify any term or provision of this Guaranty. There are no
conditions to the full effectiveness of this Guaranty. The terms and provisions
hereof may not be waived, altered, modified, or amended except in a writing
executed by Guarantor and a duly authorized officer of the Agent. All rights,
benefits and privileges hereunder shall inure to the benefit of and be
enforceable by the Lender Group and its successors and assigns and shall be
binding upon Guarantor and its successors and assigns. Section headings are used
herein for convenience only. Guarantor acknowledges that the same may not
describe completely the subject matter of the applicable Section, and the same
shall not be used in any manner to construe, limit, define or interpret any term
or provision hereof.
19. Governing Law; Venue and Jurisdiction. This instrument and all acts and
transactions pursuant or relating hereto and all rights and obligations of the
parties hereto shall be governed, construed, and interpreted in accordance with
the internal laws of the State of California. In order to induce the Lender
Group to accept this Guaranty, and as a material part of the consideration
therefor, Guarantor (i) agrees that all actions or proceedings relating directly
or indirectly hereto shall, at the option of the Agent (for the benefit of the
Lender Group), be litigated in courts located within Los Angeles County,
California, (ii) consents to the jurisdiction of any such court and consents to
the service of process in any such action or proceeding by personal delivery or
any other method permitted by law; and (iii) waives any and all rights Guarantor
may have to transfer or change the venue of any such action or proceeding.
20. Receipt of Copy. Guarantor acknowledges receipt of a copy of this
Guaranty.
21. Mutual Waiver of Right to Jury Trial. the Lender Group and GUARANTOR
hereby waive the right to trial by jury in any action, claim, lawsuit or
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proceeding based upon, arising out of, or in any way relating to: (i) this
Guarantee or any supplement or amendment thereto; or (ii) any other present or
future instrument or agreement between the Lender Group and GUARANTOR ; or (iii)
any breach, conduct, acts or omissions of the Lender Group or GUARANTOR or any
of their respective directors, officers, employees, agents, attorneys or any
other person affiliated with or representing the Lender Group or GUARANTOR; in
each of the foregoing cases, whether sounding in contract or tort or otherwise.
22. Joinder. By its execution and delivery of this Guaranty or any joinder
hereto, any "New Restricted Subsidiary" (as such term is defined in the Loan
Agreement) that becomes a "Borrower" or a "Guarantor" pursuant to Section 6.19
hereof shall be deemed to have agreed to become a Guarantor hereunder and to be
bound by each provision herein, with the same force and effect as though such
New Restricted Subsidiary were party hereto, mutatis mutandis.
[remainder of column and page intentionally left blank; signature blocks follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be executed
and delivered as of the date first above written.
Guarantors:
RIVIERA GAMING MANAGEMENT, INC., RIVIERA GAMING MANAGEMENT OF COLORADO,
a Nevada corporation. INC., a Colorado corporation
By_______________________________ By_______________________________
Name:____________________________ Name:____________________________
Title: _____________________________ Title: _____________________________
RIVIERA HOLDINGS CORPORATION, RIVIERA BLACK HAWK, INC., a Colorado
a Nevada corporation corporation
By_______________________________ By_______________________________
Name:____________________________ Name:____________________________
Title: _____________________________ Title: _____________________________
RIVIERA OPERATING CORPORATION, a Nevada
corporation
By_______________________________
Name:____________________________
Title: _____________________________
Accepted:
FOOTHILL CAPITAL CORPORATION, a California corporation,
as Agent for the benefit of the Lender Group
By_______________________________
Name:____________________________
Title: _____________________________
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