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EXHIBIT 10.8
COPYRIGHT SECURITY AGREEMENT
THIS COPYRIGHT SECURITY AGREEMENT (this "Agreement"), dated as of
October 29, 1998, is made by each of FITZGERALDS GAMING CORPORATION, a Nevada
corporation, FITZGERALDS SOUTH, INC., a Nevada corporation, FITZGERALDS
MISSISSIPPI, INC., a Mississippi corporation, FITZGERALDS LAS VEGAS, INC., a
Nevada corporation, FITZGERALDS FREMONT EXPERIENCE CORPORATION, a Nevada
corporation, FITZGERALDS RENO, INC., a Nevada corporation, FITZGERALDS
INCORPORATED, a Nevada corporation, FITZGERALDS BLACK HAWK, INC., a Nevada
corporation, FITZGERALDS BLACK HAWK II, INC., a Colorado corporation, and 000
XXXX XXXXXX LIMITED LIABILITY COMPANY, a Colorado limited liability company
(individually, a "Debtor", and collectively and jointly and severally, the
"Debtors"), in favor of FOOTHILL CAPITAL CORPORATION, a California corporation
("Secured Party").
RECITALS
A. Borrower and Secured Party have entered into that certain Loan
and Security Agreement, dated as of even date herewith (as amended, restated,
supplemented, modified, renewed, extended, or refinanced from time to time, the
"Loan Agreement"), pursuant to which Secured Party has agreed to make certain
financial accommodations to Borrower, and Borrower has granted to Secured Party
a security interest in (among other things) all or substantially all of the
general intangibles of Borrower (but excluding the Excluded Assets).
B. Each of the Debtors other than Borrower and Secured Party have
entered into the Guarantor Security Agreement, pursuant to which each such
Debtor has granted to Secured Party a security interest in (among other things)
all or substantially all of the general intangibles of such Debtor (but
excluding the Excluded Assets).
C. Pursuant to the Loan Agreement and as one of the conditions
precedent to the obligations of Secured Party under the Loan Agreement, each
Debtor has agreed to execute and deliver this Agreement to Secured Party for
filing with the United States Copyright Office and with any other relevant
recording systems in any domestic or foreign jurisdiction, and as further
evidence of and to effectuate Secured Party's existing security interests in the
Copyright Collateral.
ASSIGNMENT
NOW, THEREFORE, for valuable consideration, the receipt and
adequacy of which is hereby acknowledged, each Debtor hereby agrees in favor of
Secured Party as follows:
1. Definitions; Interpretation.
(a) Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
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"Borrower" means Fitzgeralds Gaming Corporation, a Nevada
corporation.
"Copyright Collateral" has the meaning set forth in Section 2.
"Copyrights" has the meaning set forth in Section 2.
"Secured Obligations" means all liabilities, obligations, or
undertakings owing by each Debtor to Secured Party of any kind or description
arising out of or outstanding under, advanced or issued pursuant to, or
evidenced by the Loan Agreement, the other Loan Documents, or this Agreement,
irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, voluntary or involuntary, whether
now existing or hereafter arising, and including all interest (including
interest that accrues after the filing of a case under the Bankruptcy Code) and
any and all costs, fees (including attorneys fees), and expenses which any one
or more of the Debtors is required to pay pursuant to any of the foregoing, by
law, or otherwise.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of California.
"United States" and "U.S." each mean the United States of
America.
(b) Terms Defined in UCC. Where applicable and except as
otherwise defined herein, terms used in this Agreement shall have the meanings
ascribed to them in the UCC.
(c) Interpretation. In this Agreement, except to the
extent the context otherwise requires:
(i) Any reference to a Section or a Schedule is
a reference to a section hereof, or a schedule hereto, respectively, and
to a subsection or a clause is, unless otherwise stated, a reference to
a subsection or a clause of the Section or subsection in which the
reference appears.
(ii) The words "hereof," "herein," "hereto,"
"hereunder" and the like mean and refer to this Agreement as a whole and
not merely to the specific Section, subsection, paragraph or clause in
which the respective word appears.
(iii) The meaning of defined terms shall be
equally applicable to both the singular and plural forms of the terms
defined.
(iv) The words "including," "includes" and
"include" shall be deemed to be followed by the words "without
limitation."
(v) References to agreements and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto.
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(vi) References to statutes or regulations are to
be construed as including all statutory and regulatory provisions
consolidating, amending or replacing the statute or regulation referred
to.
(vii) Any captions and headings are for
convenience of reference only and shall not affect the construction of
this Agreement.
(viii) Capitalized words not otherwise defined
herein shall have the respective meanings ascribed to them in the Loan
Agreement.
(ix) In the event of a direct conflict between
the terms and provisions of this Agreement and the Loan Agreement, it is
the intention of the parties hereto that both such documents shall be
read together and construed, to the fullest extent possible, to be in
concert with each other. In the event of any actual, irreconcilable
conflict that cannot be resolved as aforesaid, the terms and provisions
of the Loan Agreement shall control and govern; provided, however, that
the inclusion herein of additional obligations on the part of any Debtor
or Secured Party and supplemental rights and remedies in favor of
Secured Party (whether under California law or applicable federal law),
in each case in respect of the Copyright Collateral, shall not be deemed
a conflict with the Loan Agreement.
2. Assignment and Grant of Security. As security for the payment
and performance of the Secured Obligations, each Debtor hereby assigns,
transfers, conveys, and grants a security interest to Secured Party in, all of
such Debtor's right, title and interest in, to and under the following property,
whether now existing or hereafter acquired or arising or in which that Debtor
now has or hereafter acquires or develops an interest and wherever the same may
be located (the "Copyright Collateral"):
(a) all copyrights, rights, titles and interests in and
to published and unpublished works of authorship that that Debtor owns or uses
in its business or will in the future adopt and so use, and all copyrights in
any original or derivative works of authorship and all works protectable by
copyright that are presently, or in the future may be, owned, created, authored
(as a work for hire), acquired or used (whether pursuant to a license or
otherwise) by that Debtor, in whole or in part (collectively, the "Copyrights"),
all copyright registrations and applications for copyright registration that
have heretofore been or may hereafter be issued thereon or applied for in the
United States or throughout the world, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office (the "Registrations"), all common law and other
rights in and to the Copyrights throughout the world, including all copyright
licenses (unless otherwise prohibited by any license or related licensing
agreement under circumstances where the granting of the security interest would
have the effect under applicable law of the termination or permitting
termination of the license for breach and where the licensor is not an affiliate
of a Debtor) (collectively, the "Copyright Rights"), and all renewals and
extensions thereof, throughout the world, including all proceeds thereof (such
as, by way of example and not by limitation, license royalties and proceeds of
infringement suits), the right (but not the obligation) to renew and extend such
Copyrights, Registrations and Copyright Rights and to register works protectable
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by copyright and the right (but not the obligation) to xxx or bring opposition
or cancellation proceedings in the name of that Debtor or in the name of Secured
Party for past, present and future infringements or violations of the
Copyrights, Registrations and Copyright Rights, and recover damages for past,
present and future infringements or violations thereof, and all rights
corresponding thereto throughout the world, including:
(i) all of that Debtor's right, title and interest
in and to all copyrights or rights or interests in copyrights
registered or recorded in the United States Copyright Office,
including the Registrations listed on Schedule A attached hereto,
as the same may be amended or supplemented pursuant hereto from
time to time;
(ii) all of that Debtor's right, title and interest
in and to all renewals and extensions of any such copyrights,
including renewals or extensions of the Registrations listed on
Schedule A attached hereto, that may be secured under the law now
or hereafter in force and effect;
(iii) all of that Debtor's right, title and
interest to make and exploit all derivative works based on or
adopted from all works covered by any of the Copyright
Collateral; and
(iv) all of that Debtor's right, title and interest
pursuant to or under licensing or other contracts in favor of
that Debtor pertaining to copyrights and works protectable by
copyright presently or in the future owned or used by third
parties (unless otherwise prohibited by any license or related
licensing agreement under circumstances where the granting of the
security interest would have the effect under applicable law of
the termination or permitting termination of the license for
breach);
(b) all inventions, designs, registrations, trade secrets,
proprietary rights, corporate or other business records, computer programs,
source codes, object codes, data bases and all other intangible personal
property at any time used in connection with the businesses of the Debtors
(referred to herein as "Proprietary Rights");
(c) all general intangibles (as defined in the UCC) and
all intangible intellectual or other similar property of that Debtor of any kind
or nature, whether now owned or hereafter acquired or developed, associated with
or arising out of any of the Copyrights, Registrations, Copyright Rights or
Proprietary Rights and not otherwise described above; and
(d) all proceeds of any and all of the foregoing Copyright
Collateral (including license royalties, rights to payment, accounts receivable
and proceeds of infringement suits) and, to the extent not otherwise included,
all payments under insurance (whether or not Secured Party is the loss payee
thereof) or any indemnity, warranty or guaranty payable by reason of loss or
damage to or otherwise with respect to the foregoing Copyright Collateral. For
purposes of this Agreement, the term "proceeds" includes whatever is receivable
or received when Copyright Collateral or proceeds are sold, collected, exchanged
or otherwise disposed of,
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whether such disposition is voluntary or involuntary, and includes, without
limitation, all rights to payment, including returned premiums, with respect to
any insurance relating thereto.
Anything in the Loan Documents to the contrary notwithstanding, the Copyright
Collateral shall not include the Excluded Assets.
Each Debtor agrees that this Agreement shall create a continuing security
interest in the Copyright Collateral which shall remain in effect until
terminated in accordance with Section 17.
3. Representations and Warranties. Each Debtor represents and
warrants to Secured Party and for the benefit of Secured Party the following:
(a) True and Complete List. Set forth in Schedule A is a
true and complete list of all Copyrights, Registrations in the United States
Copyright Office, and applications for Registrations in the United States
Copyright Office owned by that Debtor or held (whether pursuant to a license or
otherwise) or used in conducting its business, in whole or in part;
(b) Powers. That Debtor has full power, authority and
legal right to pledge and to grant to Secured Party a security interest in all
of the Copyright Collateral pursuant to this Agreement, and to execute, deliver
and perform its obligations in accordance with the terms of this Agreement,
without the consent or approval of any other Person except as already obtained;
(c) Validity. Each of the Copyrights referred to in
Schedule A is valid, subsisting and enforceable, and that Debtor has properly
complied with all applicable statutory and regulatory requirements, including
all notice requirements, in connection with each of such Copyrights, and, except
as set forth on Schedule 5.10 to the Loan Agreement, no claim has been made that
the use of any of such Copyrights does or may infringe or otherwise violate the
rights of any third Person;
(d) Title. That Debtor has rights in and good title to the
Copyright Collateral shown on the schedules hereto as being owned by it, is the
sole and exclusive owner of the entire and unencumbered right, title and
interest in and to such Copyright Collateral, free and clear of any Liens,
including pledges, agreements, licenses, registered user agreements and
covenants by that Debtor not to xxx third Persons (other than Liens in favor of
Secured Party and, subject to the Intercreditor Agreement, Liens in favor of the
Indenture Trustee relative to the Senior Note Documents); for any Copyright
Collateral for which that Debtor is either a licensor or a licensee pursuant to
a license or licensing agreement regarding such Copyright Collateral, each such
license or licensing agreement is in full force and effect, that Debtor is not
in default of any of its obligations thereunder and other than the parties to
such licenses or licensing agreements, no other Person has any rights in or to
any of such Copyright Collateral;
(e) No Violation. The execution, delivery and performance
by Debtor of this Agreement do not violate any provision of law or the articles
of incorporation or by-laws of that Debtor or result in a breach of or
constitute a default under any contract, obligation,
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indenture or other instrument to which that Debtor is a party or by which that
Debtor may be bound;
(f) Authorization. This Agreement has been duly
authorized, executed and delivered, and constitutes a legal, valid and binding
agreement of that Debtor enforceable in accordance with its terms; and
(g) Secrecy. That Debtor has taken and will continue to
take all reasonable steps to protect the secrecy of all material trade secrets
relating to any of its unpublished Copyright Collateral and its Proprietary
Rights.
4. Covenants. Each Debtor covenants that so long as this
Agreement shall be in effect, that Debtor shall:
(a) Further Acts. On a continuing basis, make, execute,
acknowledge and deliver, and file and record in the proper filing and recording
places, all such instruments and documents, including appropriate financing and
continuation statements and security agreements, and take all such action as may
be reasonably necessary or advisable or may be reasonably requested by Secured
Party to carry out the intent and purposes of this Agreement, or for assuring,
confirming or protecting the grant or perfection of the security interest
granted or purported to be granted hereby, to ensure that Debtor's compliance
with this Agreement or to enable Secured Party to exercise and enforce its
rights and remedies hereunder with respect to the Copyright Collateral. Without
limiting the generality of the foregoing sentence, each Debtor:
(i) authorizes Secured Party in its sole discretion
after ten (10) days prior notice to that Debtor, to modify this
Agreement without first obtaining that Debtor's approval of or
signature to such modification by amending Schedule A hereof to
include a reference to any right, title or interest in any
existing Copyright, Registration or Copyright Right or any
Copyright, Registration or Copyright Right acquired or developed
by that Debtor after the execution hereof, or to delete any
reference to any right, title or interest in any Copyright,
Registration or Copyright Right in which that Debtor no longer
has or claims any right, title or interest; and
(ii) hereby authorizes Secured Party, in its sole
discretion, to file one or more financing or continuation
statements, and after ten (10) days prior notice to that Debtor,
amendments thereto, relative to all or any portion of the
Copyright Collateral without the signature of that Debtor where
permitted by law;
(b) Compliance with Law. Comply, in all material respects,
with all applicable statutory and regulatory requirements in connection with any
and all of the Copyright Collateral that is the subject of the Registrations and
give such notice of copyright, prosecute such material claims, keep such
confidentiality and do all other acts and take all other measures which may be
necessary or desirable to preserve, protect and maintain such Copyright
Collateral
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and all of that Debtor's rights therein, including diligently prosecute any
material copyright application pending as of the date of this Agreement or
thereafter;
(c) Compliance with Agreement. Comply with each of the
terms and provisions of this Agreement, and not enter into any agreement (for
example, a license agreement) which is inconsistent with the obligations of that
Debtor under this Agreement without Secured Party's prior written consent; and
(d) Lien Protection. Not permit the inclusion in any
contract to which that Debtor becomes a party of any provision that could or
might impair or prevent the creation of a security interest in favor of Secured
Party in that Debtor's rights and interest in any property included within the
definitions of the Copyrights, Registrations and Copyright Rights acquired under
such contracts.
5. New Copyrights, Registrations and Copyright Rights. If any
Debtor shall obtain rights to or develop any new works protectable by copyright,
or become entitled to the benefit of any Copyright Rights, Registration or
application for Registration not described on the schedules hereto, or any
renewals or extension of any Copyright, Copyright Rights or Registration, the
provisions of this Agreement shall automatically apply thereto. Each Debtor
shall give Secured Party written notice (a) of any such work or such rights of
material value to that Debtor or the operation of its businesses and (b) any
such Registration, applications for Registration or renewal or extension of any
Copyright. Concurrently with or promptly after the filing of an application for
any Registration for any Copyright, each Debtor shall execute and deliver a
Copyright Security Agreement substantially in the form of this Agreement and
otherwise in form and substance satisfactory to the Secured Party, pursuant to
which Debtor shall grant and reaffirm its grant of a security interest to the
extent of its interest in such Registration as provided herein to Secured Party,
and each Debtor shall cause such agreement to be recorded in the offices and
jurisdictions indicated by Secured Party.
6. Copyright Registration, Renewal and Litigation.
(a) Registration. Each Debtor shall have the duty
diligently to make any application for Registration on any existing or future
unregistered but copyrightable material works and to do any and all acts which
are reasonably necessary or desirable to preserve, renew and maintain all rights
in all Copyrights, Registrations and Copyright Rights; provided, however, that
no Debtor shall be obligated to renew any Copyrights, Registrations or Copyright
Rights covering any products that that Debtor has not sold, licensed or used in
its business for the previous five (5) years and which are of nominal commercial
value or covering any products that are immaterial to that Debtor's business
operations. Any expenses incurred in connection therewith shall be borne solely
by that Debtor. Except as otherwise permitted in this Section 6(a), Debtor shall
not do any act or omit to do any act whereby any of the Copyright Collateral may
become abandoned or fall into the public domain or fail to renew any Copyright,
Registration or Copyright Right owned by that Debtor without the prior written
consent of Secured Party.
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(b) Protection. Except as provided in Section 8 and
notwithstanding Section 1, each Debtor shall have the right and obligation to
commence and diligently prosecute in its own name, as real party in interest,
for its own benefit and at its own expense, such suits, proceedings or other
actions for material infringement or other damage as are in its reasonable
business judgment necessary to protect the Copyright Collateral or any of that
Debtor's rights therein. Each Debtor shall provide to Secured Party any
information with respect thereto requested by Secured Party. Secured Party shall
provide at that Debtor's expense all necessary cooperation in connection with
any such suit, proceeding or action including joining as a nominal party if
Secured Party shall have been satisfied that it is not incurring any risk of
liability because of such joinder. Each Debtor shall provide at its expense
representation acceptable to Secured Party for the common interest of that
Debtor and Secured Party with respect to such proceedings.
(c) Notice. Each Debtor shall, promptly upon its becoming
aware thereof, notify Secured Party in writing of the institution of, or any
adverse determination in, any proceeding, application, suit or action of any
kind described in Section 6(a) or 6(b), or regarding any Debtor's claim of
ownership in any of the Copyrights, Registrations or Copyright Rights, its right
to register the same, or its right to keep and maintain such registration,
whether before the United States Copyright Office or any United States or
foreign court or governmental agency. Each Debtor shall provide promptly to
Secured Party any information with respect thereto requested from time to time
by Secured Party.
7. Events of Default. The occurrence of any "Event of Default"
under the Loan Agreement or any other Loan Document shall constitute an Event of
Default hereunder.
8. Remedies. Following the occurrence and during the continuation
of an Event of Default, Secured Party shall have all rights and remedies
available to it under the Loan Agreement and the other Loan Documents and
applicable law (which rights and remedies are cumulative) with respect to its
security interests in any of the Copyright Collateral or any other collateral.
Each Debtor agrees that such rights and remedies include the right of Secured
Party as a secured party to sell or otherwise dispose of its collateral after
default, pursuant to UCC Section 9504. Each Debtor agrees that Secured Party
shall at all times have such royalty free licenses, to the extent permitted by
law, for any Copyright, Copyright Rights, Proprietary Right and any other
Copyright Collateral that is reasonably necessary to permit the exercise of any
of Secured Party's rights or remedies upon or after the occurrence of (and
during the occurrence of) an Event of Default with respect to (among other
things) any tangible asset of the Debtors in which Secured Party has a security
interest, including Secured Party's rights to sell inventory, tooling or
packaging which is acquired by the Debtors (or their respective successors,
permitted assignees, or trustees in bankruptcy). In addition to and without
limiting any of the foregoing, upon the occurrence and during the continuance of
an Event of Default, Secured Party shall have the right but shall in no way be
obligated to bring suit, or to take such other action as Secured Party deems
necessary or advisable, in the name of any Debtor or Secured Party, to enforce
or protect any Copyright, Registration, Copyright Right or Proprietary Right,
and any license thereunder, in which event each Debtor shall, at the request of
Secured Party, do any and all lawful acts and execute any and all documents
required by Secured Party in aid of such enforcement. To the extent that Secured
Party shall elect not to bring suit to enforce a material
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item or portion of any Copyright, Registration, Copyright Rights, Proprietary
Right, or any license thereunder (and unless Secured Party otherwise agrees in
writing), each Debtor agrees to use all reasonable measures and its diligent
efforts, whether by action, suit, proceeding or otherwise, to prevent the
material infringement, misappropriation or violation thereof by others and for
that purpose agrees diligently to maintain any action, suit or proceeding
against any Person necessary to prevent such material infringement,
misappropriation or violation.
9. Authorization. If any Debtor fails to comply with any of its
obligations hereunder, Secured Party may do so in that Debtor's name or in
Secured Party's name, but at that Debtor's expense, and each Debtor hereby
agrees to reimburse Secured Party in full upon demand for all expenses,
including attorneys fees, incurred by Secured Party in protecting, defending and
maintaining any of the Copyright Collateral or any right, title or interest of
any Debtor or Secured Party therein. Each Debtor hereby appoints Secured Party,
and authorizes, directs and empowers Secured Party to make, constitute and
appoint any officer or agent of Secured Party as Secured Party may select, in
its exclusive discretion, as the true and lawful attorney-in-fact of that
Debtor, with the power (a) to execute in the name of that Debtor any financing
statement or other instrument and any modification, supplement or amendment to
this Agreement or any supplemental Copyright Security Agreement described in
Sections 4(a) or 5 hereof, and do such other acts on that Debtor's behalf, that
Secured Party may deem necessary or advisable to accomplish the purposes hereof,
and (b) upon and after the occurrence and continuation of any Event of Default,
(i) to endorse that Debtor's name on all applications, documents, papers and
instruments necessary for Secured Party to use any of the Copyright Collateral,
and (ii) to grant or issue any exclusive or nonexclusive license under any of
the Copyright Collateral to anyone else, or as may be necessary for Secured
Party to assign, pledge, convey or otherwise transfer title in or dispose of any
of the Copyright Collateral or any other collateral to anyone else. Each Debtor
hereby ratifies all that such attorney shall lawfully do or cause to be done by
virtue hereof. This power of attorney is coupled with an interest and is
irrevocable until termination of this Agreement.
10. Notices. All notices and other communications hereunder to or
from Secured Party or any one or more of the Debtors shall be in writing and
shall be mailed, sent or delivered in accordance with the Loan Agreement.
11. GOVERNING LAW AND VENUE; JURY TRIAL WAIVER. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
ASSIGNMENT AND SECURITY INTERESTS HEREUNDER IN RESPECT OF ANY PROPERTY ARE
GOVERNED BY FEDERAL LAW, IN WHICH CASE SUCH CHOICE OF CALIFORNIA LAW SHALL NOT
BE DEEMED TO DEPRIVE SECURED PARTY OF SUCH RIGHTS AND REMEDIES AS MAY BE
AVAILABLE UNDER FEDERAL LAW. THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE
DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING
IN CONNECTION WITH THIS AGREEMENT
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SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA OR, AT THE SOLE OPTION OF SECURED
PARTY, IN ANY OTHER JURISDICTION IN WHICH THE COPYRIGHT COLLATERAL IS LOCATED IN
CONNECTION WITH THE EXERCISE OF SECURED PARTY'S RIGHTS AND REMEDIES AS A SECURED
CREDITOR WITH RESPECT TO SUCH COPYRIGHT COLLATERAL. EACH DEBTOR AND SECURED
PARTY WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11.
EACH DEBTOR AND SECURED PARTY HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. EACH DEBTOR AND SECURED PARTY REPRESENT THAT
EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
12. Entire Agreement; Amendment. This Agreement, together with
the Schedules hereto, contains the entire agreement of the parties with respect
to the subject matter hereof and supersedes all prior drafts and communications
relating to such subject matter. Neither this Agreement nor any provision hereof
may be modified, amended or waived except by the written agreement of the
parties, as provided in the Loan Agreement. Notwithstanding the foregoing,
Secured Party may re-execute this Agreement, modify, amend or supplement the
Schedules hereto or execute a supplemental Copyright Security Agreement, as
provided herein, and the terms of any such modification, amendment, supplement
or supplemental Copyright Security Agreement shall be deemed to be incorporated
herein by this reference.
13. Severability. If one or more provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any respect in any
jurisdiction or with respect to any party, such invalidity, illegality or
unenforceability in such jurisdiction or with respect to such party shall, to
the fullest extent permitted by applicable law, not invalidate or render illegal
or unenforceable any such provision in any other jurisdiction or with respect to
any other party, or any other provisions of this Agreement.
14. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
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15. Loan Agreement. Each Debtor acknowledges that the rights and
remedies of Secured Party with respect to the security interest in the Copyright
Collateral granted hereby are more fully set forth in the Loan Agreement, the
Guarantor Security Agreement, and the applicable other Loan Documents and all
such rights and remedies are cumulative.
16. No Inconsistent Requirements. Each Debtor acknowledges that
this Agreement and the other Loan Documents may contain covenants and other
terms and provisions variously stated regarding the same or similar matters, and
each Debtor agrees that all such covenants, terms and provisions are cumulative
and all shall be performed and satisfied in accordance with their respective
terms.
17. Termination. Upon the indefeasible payment in full of the
Secured Obligations, including the cash collateralization, expiration, or
cancellation of all Secured Obligations, if any, consisting of letters of
credit, and the full and final termination of any commitment to extend any
financial accommodations under the Loan Agreement, this Agreement shall
terminate and Secured Party shall execute and deliver such documents and
instruments and take such further action reasonably requested by any Debtor and
at that Debtor's expense as shall be necessary to evidence termination of the
security interest granted by that Debtor to Secured Party hereunder.
18. Waivers.
(a) To the maximum extent permitted by law, each Debtor
hereby waives: (i) notice of acceptance hereof; (ii) notice of any loans or
other financial accommodations made or extended under the Loan Agreement, or the
creation or existence of any Obligations; (iii) notice of the amount of the
Obligations, subject, however, to Section 2.10 of the Loan Agreement and
Debtor's right to make inquiry of Secured Party to ascertain the amount of the
Obligations at any reasonable time; (iv) notice of any adverse change in the
financial condition of Borrower or of any other fact that might increase such
Debtor's risk hereunder; (v) notice of presentment for payment, demand, protest,
and notice thereof as to any instrument among the Loan Documents; (vi) notice of
any Default or Event of Default under the Loan Agreement; and (vii) all other
notices (except if such notice is specifically required to be given to such
Debtor under this Agreement) and demands to which such Debtor might otherwise be
entitled.
(b) To the fullest extent permitted by applicable law,
each Debtor waives the right by statute or otherwise to require Secured Party to
institute suit against Borrower or to exhaust any rights and remedies which
Secured Party has or may have against Borrower. Each Debtor further waives any
defense arising by reason of any disability or other defense (other than the
defense that the Obligations shall have been fully and finally indefeasibly
paid) of Borrower or by reason of the cessation from any cause (other than that
the Obligations shall have been fully and finally indefeasibly paid) whatsoever
of the liability of Borrower in respect thereof.
(c) To the maximum extent permitted by law, each Debtor
hereby waives: (i) any rights to assert against Secured Party any defense (legal
or equitable), set-off,
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counterclaim, or claim which such Debtor may now or at any time hereafter have
against Borrower or any other party liable to Secured Party on account of or
with respect to the Obligations; (ii) any defense, set-off, counterclaim, or
claim, of any kind or nature, arising directly or indirectly from the present or
future sufficiency, validity, or enforceability of the Obligations; (iii) any
defense arising by reason of any claim or defense based upon an election of
remedies by Secured Party including, to the extent applicable, the provisions of
Sections 580d and 726 of the California Code of Civil Procedure, or any
similar law of California or any other jurisdiction; (iv) the benefit of any
statute of limitations affecting any Debtor's liability hereunder or the
enforcement thereof.
(d) To the maximum extent permitted by law, each Debtor
hereby waives any right of subrogation that such Debtor has or may have as
against any other Debtor with respect to the Obligations. In addition, each
Debtor hereby waives any right to proceed against any other Debtor, now or
hereafter, for contribution, indemnity, reimbursement, or any other suretyship
rights and claims (irrespective of whether direct or indirect, liquidated or
contingent), with respect to the Obligations. Each Debtor also hereby waives any
right to proceed or to seek recourse against or with respect to any property or
asset of any other Debtor. As between any Debtor and Secured Party, each Debtor
hereby agrees that, in light of the waivers contained in this Section, such
Debtor shall not be deemed to be a "creditor" (as that term is defined in the
Bankruptcy Code or otherwise) of any other Debtor, whether for purposes of the
application of Sections 547 or 550 of the United States Bankruptcy Code or
otherwise.
(e) If any of the Secured Obligations at any time are
secured by a mortgage or deed of trust upon real property, Secured Party may
elect, in its sole discretion, upon a default with respect to the Secured
Obligations, to foreclose such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law, before or after enforcing this
Agreement, without diminishing or affecting the liability of any Debtor
hereunder. Each Debtor understands that (i) by virtue of the operation of
California's antideficiency law applicable to nonjudicial foreclosures, an
election by Secured Party nonjudicially to foreclose such a mortgage or deed of
trust probably would have the effect of impairing or destroying rights of
subrogation, reimbursement, contribution, or indemnity of such Debtor against
Borrower or guarantors or sureties, and (ii) absent the waiver given by such
Debtor herein, such an election might estop Secured Party from enforcing this
Agreement against such Debtor. Understanding the foregoing, and understanding
that each Debtor is hereby relinquishing a defense to the enforceability of this
Agreement, each Debtor hereby waives any right to assert against Secured Party
any defense to the enforcement of this Agreement, whether denominated "estoppel"
or otherwise, based on or arising from an election by Secured Party
nonjudicially to foreclose any such mortgage or deed of trust. Each Debtor
understands that the effect of the foregoing waiver may be that such Debtor may
have liability hereunder for amounts with respect to which such Debtor may be
left without rights of subrogation, reimbursement, contribution, or indemnity
against Borrower or guarantors or sureties. Each Debtor also agrees that the
"fair market value" provisions of Section 580a of the California Code of Civil
Procedure shall have no applicability with respect to the determination of such
Debtor's liability under this Agreement.
(f) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR
OTHER PROVISION SET FORTH IN THIS AGREEMENT, EACH
12.
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DEBTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY
AND ALL DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF
CALIFORNIA CIVIL CODE SECTIONS 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2838,
2839, 2845, 2848, 2849, AND 2850, TO THE EXTENT APPLICABLE, CALIFORNIA CODE OF
CIVIL PROCEDURE SECTIONS 580A, 580B, 580C, 580D, AND 726, AND, TO THE EXTENT
APPLICABLE, CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE.
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER
WAIVER OR OTHER PROVISION SET FORTH IN THIS AGREEMENT, EACH DEBTOR HEREBY WAIVES
ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY SECURED PARTY,
EVEN THOUGH THAT ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH
RESPECT TO SECURITY FOR A SECURED OBLIGATION, HAS DESTROYED SUCH DEBTOR'S RIGHTS
OF SUBROGATION AND REIMBURSEMENT AGAINST THE PRINCIPAL BY THE OPERATION OF
SECTION 580D OF THE CODE OF CIVIL PROCEDURE OR OTHERWISE.
[remainder of page intentionally left blank]
13.
14
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
FITZGERALDS GAMING
CORPORATION, a Nevada
corporation FITZGERALDS
SOUTH, INC., a Nevada
corporation FITZGERALDS
MISSISSIPPI, INC., a
Mississippi corporation
FITZGERALDS LAS VEGAS, INC.,
a Nevada corporation
FITZGERALDS FREMONT
EXPERIENCE CORPORATION, a
Nevada corporation
FITZGERALDS RENO, INC., a
Nevada corporation
FITZGERALDS INCORPORATED, a
Nevada corporation
FITZGERALDS BLACK HAWK, INC.,
a Nevada corporation
FITZGERALDS BLACK HAWK II,
INC., a Colorado corporation
000 XXXX XXXXXX LIMITED
LIABILITY COMPANY, a Colorado
limited liability company
By /s/ XXXXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Senior Vice President, Chief Financial
Officer, Treasurer, and Secretary of each of
the above-listed companies
FOOTHILL CAPITAL CORPORATION,
a California corporation
By /s/ XXXXX XXXXX
------------------------------
Title: Vice President
--------------------------
14.
15
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On Oct. 29, 1998, before me, Xxxxxxxx Xxxx , Notary Public, personally
appeared Xxxxx Xxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXXXX XXXX XXXXXXXX XXXX
----------------------- Commission #1100940
Signature Notary Public-California
Los Angeles County
[SEAL] My Comm, Expires Jun 14, 0000
XXXXX XX XXXXXXXXXX )
) ss
COUNTY OF LOS ANGELES )
On Oct. 29, 1998, before me, Xxxxxxxx Xxxx, Notary Public, personally
appeared Xxxxxxx X. XxXxxxxxx, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity(ies), and that by his signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXXXX XXXX XXXXXXXX XXXX
------------------------- Commission #1100940
Signature Notary Public-California
Los Angeles County
[SEAL] My Comm, Expires Jun 14, 2000
16
SCHEDULE 8 (a)
SCHEDULE TO COPYRIGHT SECURITY AGREEMENT
Fitzgeralds Gaming Corporation
Fitzgeralds Las Vegas, Inc.
1. FGC Copyright schedule
2. FLVI Copyright schedule
1
17
SCHEDULE TO COPYRIGHT
Title of Work Reg. No. Recorder Owner
------------- -------- --------------
People of Fitzgeralds TX3389710 Fitzgeralds Gaming Corp.
(also known as, "Fitzgeralds (by assignment from
Creed" and "We the People Fitzgeralds Las Vegas, L.P.
of Fitzgeralds") on 11/27/95 v. 3180 p.142)
Keno Ticket TXU661930 Fitzgeralds Las Vegas, Inc.
