EXHIBIT 10.57
EXHIBIT XII
[FORM OF ENVIRONMENTAL INDEMNITY]
ENVIRONMENTAL INDEMNITY
THIS ENVIRONMENTAL INDEMNITY (this "Indemnity") is entered into as
of August 25, 1995, by PLAYERS INTERNATIONAL, INC., a Nevada corporation
("Indemnitor"), to and for the benefit of FIRST INTERSTATE BANK OF NEVADA,
N.A. ("FIB"), as administrative agent for and representative of (in such
capacity herein called "Administrative Agent"), the lenders ("Lenders") under
the Credit Agreement (defined below) and each of its successors, assigns and
participants, and its and their respective parent, subsidiary and affiliated
corporations, and the respective directors, officers, agents, attorneys, and
employees of each of the foregoing (each of which shall be referred to
hereinafter individually as an "Indemnitee" and collectively as the
"Indemnitees").
W I T N E S S E T H:
A. Lenders have agreed to make a general corporate revolving loan in
the maximum principal amount of One Hundred Twenty Million Dollars
($120,000,000) (the "Loan") to Indemnitor, pursuant to that certain Credit
Agreement (as it may be amended, supplemented or otherwise modified from time
to time, "Credit Agreement"; capitalized terms used herein without definition
shall have the meanings assigned to those terms in the Credit Agreement) of
even date herewith by and among Indemnitor, Lenders, Administrative Agent,
FIB and Bankers Trust Company, as Managing Agents, and FIB and BT Securities
Corporation, as Co-Arrangers, which Loan is to be secured by, among other
things, (i) that certain Mortgage, Fixture Filing and Security Agreement with
Assignment of Rents of even date herewith executed by SIRCC (a wholly-owned
subsidiary of Indemnitor), as mortgagor, in favor of Administrative Agent, as
mortgagee, (ii) those certain Deeds of Trust, Fixture Filings and Security
Agreements with Assignment of Rents of even date herewith executed by each of
PNEV, PMGC and PML (each a wholly-owned subsidiary of Indemnitor), as trustor
and owner, in favor of Chicago Title Insurance Company, as trustee, for the
benefit of Administrative Agent, as beneficiary and (iii) that certain Act of
Mortgage, Fixture Filing and Security Agreement with Pledge and Assignment of
Leases and Rents of even date herewith executed by PLC (a wholly-owned
subsidiary of Indemnitor), as mortgagor, in favor of Administrative Agent, as
mortgagee (each of (i), (ii) and (iii) collectively referred to as the "Real
Property Security Documents"), which Real Property Security Documents
encumber those certain parcels of real
property described on Exhibits A through C attached hereto (individually, a
"Premises" and collectively, the "Premises"), and the Improvements
constructed or to be constructed thereon (which Improvements, together with
the Premises, shall hereinafter be referred to as the "Facilities").
B. It is a condition of Lenders making the Loan that this Indemnity
be executed and delivered by Indemnitor. Lenders are making the Loan in
reliance upon this Indemnity.
NOW, THEREFORE, in consideration of the foregoing and of Lenders
making the Loan, and other valuable consideration, the receipt of which is
hereby acknowledged, Indemnitor agrees as follows:
1. As used in this Indemnity, the following terms shall have the
following meanings:
"Agreed Rate" means the rate specified in subsection 2.2E of the
Credit Agreement.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), as
heretofore or hereafter amended from time to time.
"Environmental Losses" means Losses suffered or incurred by any
Indemnitee, arising out of or as a result of: (i) any Hazardous
Material Activity that occurs or is alleged to have occurred in whole
or in part on or prior to a Transfer Date (as defined below); (ii) any
violation on or prior to a Transfer Date of any Environmental Laws
relating to the Premises or to the ownership, use, occupancy or
operation thereof; (iii) any investigation, inquiry, order, hearing,
action, or other proceeding by or before any governmental agency in
connection with any Hazardous Material Activity that occurs or is
alleged to have occurred in whole or in part on or prior to a Transfer
Date; or (iv) any claim, demand or cause of action, or any action or
other proceeding, whether meritorious or not, brought or asserted
against any Indemnitee that directly or indirectly relates to, arises
from or is based on any of the matters described in clauses (i), (ii)
or (iii), or any allegation of any such matters. Environmental Losses
shall include Losses suffered or incurred by an Indemnitee after a
Transfer Date that would not have been incurred or suffered but for
any matter described in clause (i), (ii) or (iii) or any allegation of
any such matters, including, without limitation, Environmental Losses
incurred by any Indemnitee arising out of or as a result of (a) the
introduction or release of a Hazardous Material that is discovered or
released at a Premises or any portion thereof after
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a Transfer Date, but that was introduced at such Premises prior to a
Transfer Date and (b) the continuing migration or release of any
Hazardous Material introduced in, on or under a Premises or
surrounding property prior to a Transfer Date.
"Hazardous Material Activity" means any actual, proposed or
threatened use, storage, holding, existence, release (including any
spilling, leaking, pumping, pouring, emitting, emptying, dumping,
disposing into the environment, and the continuing migration into or
through soil, surface water, or groundwater), emission, discharge,
generation, processing, abatement, removal, disposition, handling or
transportation to or from a Premises of any Hazardous Material from,
under, in, into or on any portion of any of the Facilities or
surrounding property, including, without limitation, the movement or
migration of any Hazardous Material from surrounding property or
groundwater in, into or onto the Facilities and any residual Hazardous
Material contamination on or under the Facilities.
"Losses" means any and all losses, liabilities, damages (whether
actual, consequential, punitive, or otherwise denominated), demands,
claims, actions, judgments, causes of action, assessments, penalties,
costs and expenses (including, without limitation, environmental
investigation, response, removal and remediation costs, reasonable
attorneys' fees and disbursements), of any and every kind or
character, foreseeable and unforeseeable, liquidated and contingent,
proximate and remote, including, without limitation, any of the
foregoing caused by the negligence of any Indemnitee.
"Transfer Date", with respect to a Premises, means the date on which
any of Lenders (or any of their affiliates) acquires fee title to such
Premises pursuant to a foreclosure of the lien of any Real Property
Security Document, or by receipt of a deed in lieu of such
foreclosure, and all redemption rights that the respective Subsidiary
of Indemnitor that owned such Premises (the "Relevant Subsidiary") may
have expired, so long as a period of ninety-one (91) days has elapsed
since the date on which fee title vests in Administrative Agent (or
its affiliate) and during such period no bankruptcy or other
insolvency proceeding is filed by or against Indemnitor or the
Relevant Subsidiary. If the Relevant Subsidiary should remain in
possession of such Premises after the Transfer Date, or if Indemnitor
or the Relevant Subsidiary should engage in any Hazardous Material
Activity on or at such Premises after the Transfer Date, the Transfer
Date shall be deemed to be the date after which Indemnitor or the
Relevant Subsidiary is no longer in possession of such Premises and
has ceased to engage in any Hazardous Material Activity on or at such
Premises.
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2. Indemnitor hereby agrees to indemnify, defend, and hold harmless
Indemnitees, and each of them, from and against any and all Environmental
Losses.
3. (A) If any Indemnitee notifies Indemnitor of any claim or notice
of the commencement of any action, administrative or legal proceeding, or
investigation as to which the indemnity provided for in Paragraph 2 applies,
Indemnitor shall assume on behalf of such Indemnitee and conduct with due
diligence and in good faith the investigation and defense thereof and the
response thereto with counsel reasonably satisfactory to such Indemnitee;
provided, however, that such Indemnitee shall have the right to be
represented by advisory counsel of its own selection and at its own expense;
and provided, further, that if any such claim, action, proceeding, or
investigation involves both Indemnitor and an Indemnitee, and such Indemnitee
shall have reasonably concluded that there may be legal defenses available to
it that are different from, additional to, or inconsistent with those
available to Indemnitor ("Separate Defenses"), then the Indemnitee shall have
the right to select separate counsel to participate in the investigation and
defense of and response to such claim, action, proceeding or investigation on
its own behalf at Indemnitor's expense with respect to the Separate Defenses.
(B) If any claim, action, proceeding, or investigation arises as to
which the indemnity provided for in Paragraph 2 applies, and Indemnitor fails
to assume promptly (and in any event within ten (10) days after being
notified of the claim, action, proceeding, or investigation) the defense of
an Indemnitee, then such Indemnitee may contest and settle the claim, action,
proceeding, or investigation at Indemnitor's expense using counsel selected
by such Indemnitee; provided, however, that after any such failure by
Indemnitor no such contest need be made by such Indemnitee and settlement or
full payment of any claim may be made by such Indemnitee without Indemnitor's
consent and without releasing Indemnitor from any obligations to such
Indemnitee under Paragraph 2.
4. This Indemnity is given solely to protect Lenders and the other
Indemnitees against Environmental Losses, and not as additional security for,
or as a means of repayment of, the Loan. The obligations of Indemnitor under
this Indemnity are independent of, and shall not be measured or affected by
(i) any amounts at any time owing under the Loan or secured by the Real
Property Security Documents, (ii) the sufficiency or insufficiency of any
collateral (including, without limitation, the Facilities) given to Lenders
to secure repayment of the Loan, (iii) the consideration given by Lenders or
any other party in order to acquire the Premises or the Facilities, or any
portion thereof, (iv) the modification, expiration, termination or release of
any Real Property Security Document or any other document or instrument
relating to the Loan, or (v) the discharge or repayment in full of the Loan
(including, without
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limitation, by amounts paid or credit bid at a foreclosure sale or by
discharge in connection with a deed in lieu of foreclosure).
5. Indemnitor's obligations hereunder shall survive the sale or
other transfer of a Premises prior to the Transfer Date related to such
Premises. The rights of each Indemnitee under this Indemnity shall be in
addition to any other rights and remedies of such Indemnitee against
Indemnitor under any other document or instrument now or hereafter executed
by Indemnitor or any Relevant Subsidiary, or at law or in equity (including,
without limitation, any right of reimbursement or contribution pursuant to
CERCLA), and shall not in any way be deemed a waiver of any of such rights.
Indemnitor agrees that it shall have no right of contribution (including,
without limitation, any right of contribution under CERCLA) or subro-
gation against any other person or entity, unless and until all obligations
of Indemnitor have been satisfied.
6. All obligations of Indemnitor hereunder shall be payable on
demand, and any amount due and payable hereunder to any Indemnitee by
Indemnitor that is not paid within thirty (30) days after written demand
therefor from an Indemnitee with an explanation of the amounts demanded shall
bear interest from the date of such demand at the Agreed Rate.
7. Indemnitor agrees to pay to each Indemnitee all reasonable costs
and expenses (including, without limitation, Indemnitee's reasonable
attorneys' fees) incurred by such Indemnitee in connection with Environmental
Losses covered by this Indemnity or the enforcement hereof.
8. If any of the provisions of the Illinois Responsible Property
Transfer Act, 765 ILCS 90/1 et seq. ("IRPTA") are now or hereafter become
applicable to the Illinois Premises, Indemnitor shall comply with such
provisions.
9. This Indemnity shall be binding upon Indemnitor, its heirs,
representatives, administrators, executors, successors and assigns and shall
inure to the benefit of and shall be enforceable by each Indemnitee, its
successors, endorsees and assigns (including, without limitation, any entity
to which Lenders assigns or sells all or any portion of its interest in the
Loan).
10. THIS INDEMNITY SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEVADA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
11. Every provision of this Indemnity is intended to be severable.
If any provision of this Indemnity or the application of any provision hereof
to any party or circumstance is declared to be illegal, invalid or
unenforceable for any reason
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whatsoever by a court of competent jurisdiction, such invalidity shall not
affect the balance of the terms and provisions hereof or the application of
the provision in question to any other party or circumstance, all of which
shall continue in full force and effect.
12. No failure or delay on the part of any Indemnitee to exercise
any power, right or privilege under this Indemnity shall impair any such
power, right or privilege, or be construed to be a waiver of any default or
an acquiescence therein, nor shall any single or partial exercise of such
power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege. No provision of this Indemnity may be
changed, waived, discharged or terminated except by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge
or termination is sought.
13. All notices, requests and demands to be made hereunder to the
parties hereto shall be in writing (at the addresses set forth below) and
shall be given by any of the following means: (a) personal service; (b)
electronic communication, whether by telex, telegram or telecopying (if
confirmed in writing sent by registered or certified, first class mail,
return receipt requested); or (c) registered or certified, first class mail,
return receipt requested. Such addresses may be changed by notice to the
other parties given in the same manner as provided above. Any notice, demand
or request sent pursuant to either subsection (a) or (b) hereof shall be
deemed received upon such personal service or upon dispatch by electronic
means, and, if sent pursuant to subsection (c) shall be deemed received five
(5) days following deposit in the mail.
To Administrative Agent: First Interstate Bank of Nevada, N.A.
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To Indemnitor: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Attention: President and Chief Financial
Officer
With copies to:
Players International, Inc.
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Attention: Chief Financial Officer
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Players International, Inc.
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Attention: General Counsel
14. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST INDEMNITOR ARISING OUT
OF OR RELATING TO THIS INDEMNITY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT
OF COMPETENT JURISDICTION IN THE STATE OF NEVADA, AND BY EXECUTION AND
DELIVERY OF THIS INDEMNITY, INDEMNITOR ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS
INDEMNITY. Indemnitor hereby agrees that service of all process in any such
proceeding in any such court may be made by registered or certified mail,
return receipt requested, to Indemnitor at its address as provided below,
such service being hereby acknowledged by Indemnitor to be sufficient for
personal jurisdiction in any action against Indemnitor in any such court and
to be otherwise effective and binding service in every respect. Nothing
herein shall affect the right to serve process in any other manner permitted
by law or shall limit the right of Administrative Agent or any Lender to
bring proceedings against Indemnitor in the courts of any other jurisdiction.
15. INDEMNITOR AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
ADMINISTRATIVE AGENT EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
INDEMNITY. The scope of this waiver is intended to be all encompassing of any
and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including without limitation contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Indemnitor and, by its acceptance of the benefits hereof,
Administrative Agent, each (i) acknowledges that this waiver is a material
inducement for Indemnitor and Administrative Agent to enter into a business
relationship, that Indemnitor and Administrative Agent have already relied on
this waiver in entering into this Indemnity or accepting the benefits
thereof, as the case may be, and that each will continue to rely on this
waiver in their related future dealings and (ii) further warrants and
represents that each has reviewed this waiver with its legal counsel, and
that each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO ANY
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SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
INDEMNITY. In the event of litigation, this Indemnity may be filed as a
written consent to a trial by the court.
16. This Indemnity may be executed in counterparts each of which
shall be deemed an original and all of which shall constitute one and the
same Indemnity with the same effect as if all parties had signed the same
signature page. Any signature page of this Indemnity may be detached from any
other counterpart of this Indemnity and reattached to any other counterpart
of this Indemnity identical in form hereto but having attached to it one or
more additional signature pages.
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IN WITNESS WHEREOF, Indemnitor has executed this Indemnity as of the day
and year first written above.
Indemnitor: PLAYERS INTERNATIONAL, INC.
By: ___________________________
Title: ___________________________
S-1
EXHIBIT A
[Description of Illinois Premises]
A-1
EXHIBIT B
[Description of Louisiana Premises]
A-2
EXHIBIT C
[Description of Nevada Premises]
A-3