Exhibit 10.02
TERMINATION AGREEMENT
TERMINATION AGREEMENT (this "Agreement"), dated as of December 8, 2008, among
Flag Luxury Riv, LLC, a Delaware limited liability company ("Flag"), Rivacq LLC,
a Delaware limited liability company ("Rivacq"), and RH1, LLC, a Nevada limited
liability company ("RH1", and together with Flag and Rivacq, the "Bidders").
WHEREAS, the Bidders and High Desert Gaming LLC, a Delaware limited liability
company ("High Desert"), previously entered into an Amended and Restated Joint
Bidding Agreement, dated as of April 5, 2006 (the "Joint Bidding Agreement");
WHEREAS, the Bidders and High Desert entered into a letter agreement, dated
April 16, 2007, pursuant to which the parties thereto agreed that the Joint
Bidding Agreement was no longer in effect with respect to High Desert; and
WHEREAS, the Bidders now wish to terminate the Joint Bidding Agreement, upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements and
covenants hereinafter set forth, and intending to be legally bound, the parties
hereto hereby agree as follows:
1. The Joint Bidding Agreement is hereby terminated with immediate effect.
2. Each of the Bidders shall take such actions as may be necessary or
desirable in order to promptly dissolve Riv Acquisition Holdings Inc., a
Delaware corporation ("Holdco"), and Riv Acquisition Inc., a Nevada corporation
and a wholly-owned subsidiary of Holdco.
3. Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed thereto in the Joint Bidding Agreement.
4. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York. All actions arising out of or relating to
this Agreement shall be heard and determined exclusively in any New York federal
court sitting in the Borough of Manhattan of The City of New York; provided,
however, that if such federal court does not have jurisdiction over such action,
such action shall be heard and determined exclusively in any New York State
court sitting in the Borough of Manhattan of The City of New York. The parties
hereto hereby (i) submit to the exclusive jurisdiction of any federal or state
court sitting in the Borough of Manhattan of The City of New York for the
purpose of any action arising out of or relating to this Agreement brought by
any party hereto and (ii) irrevocably waive, and agree not to assert by way of
motion, defense or otherwise, in any such action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that such action is
brought in an inconvenient forum, that the venue of such action is improper, or
that this Agreement or the transactions contemplated by this Agreement may not
be enforced in or by any of the above-named courts.
5. Each of the parties hereto hereby waives to the fullest extent
permitted by applicable Law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated hereby. Each of
the parties hereto hereby (i) certifies that no representative, agent or
attorney of any of the other parties has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (ii) acknowledges that it has been induced to enter into
this Agreement and the transactions contemplated by this Agreement, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 5.
6. This Agreement may be executed and delivered (including by facsimile
transmission or by electronic transmission of a file in Portable Document
Format) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the Bidders have caused this Agreement to be duly
executed as of the date first above written.
Dated: December 8, 2008
FLAG LUXURY RIV, LLC
By: FX Luxury Realty, LLC
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Its sole member
By: FX Real Estate and Entertainment, Inc.
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Its Managing Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: ▇▇▇▇▇▇▇▇▇
▇▇▇, LLC
By: FX Luxury Realty, LLC
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Its sole member
By: FX Real Estate and Entertainment Inc.
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Its Managing Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
RIVACQ LLC
By: SOF U.S. Hotel Co-Invest Holdings, L.L.C.
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By: SOF-VII U.S. Hotel Holdings, L.L.C.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By: I-1/I-2 U.S. Holdings, L.L.C.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
