1
EXHIBIT 10.7
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK 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 Patent and Trademark 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
Trademark Collateral.
-1-
2
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:
"Borrower" means Fitzgeralds Gaming Corporation, a Nevada corporation.
"Proceeds" means whatever is receivable or received from or upon the
sale, lease, license, collection, use, exchange or other disposition, whether
voluntary or involuntary, of any Trademark Collateral, including "proceeds" as
defined at California UCC Section 9306, all insurance proceeds and all proceeds
of proceeds. Proceeds shall include (i) any and all accounts, chattel paper,
instruments, general intangibles, cash and other proceeds, payable to or for the
account of any Debtor, from time to time in respect of any of the Trademark
Collateral, (ii) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to or for the account of any Debtor from time to time with
respect to any of the Trademark Collateral, (iii) any and all claims and
payments (in any form whatsoever) made or due and payable to any Debtor from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Trademark Collateral by any
Person acting under color of governmental authority, and (iv) any and all other
amounts from time to time paid or payable under or in connection with any of the
Trademark Collateral or for or on account of any damage or injury to or
conversion of any Trademark Collateral by any Person.
"PTO" means the United States Patent and Trademark Office and any
successor thereto.
"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.
"Trademark Collateral" has the meaning set forth in Section 2.
-2-
3
"Trademarks" has the meaning set forth in Section 2.
"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.
(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.
-3-
4
(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 Trademark Collateral, shall not be deemed a conflict in the Loan
Agreement.
2. Security Interest.
(a) Assignment and Grant of Security Interest. To secure 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, and whether registered or
unregistered (collectively, the "Trademark Collateral"):
(i) all state (including common law), federal and foreign
trademarks, service marks and trade names, corporate names, company names,
business names, fictitious business names, trade styles, trade dress, logos,
other source or business identifiers, designs and general intangibles of like
nature, now existing or hereafter adopted or acquired, together with and
including all licenses therefor held by that Debtor (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), and all registrations and
recordings thereof, and all applications filed or to be filed in connection
therewith, including registrations and applications in the PTO, any State of the
United States or any other country or any political subdivision thereof, and all
extensions or renewals thereof, including without limitation any of the
foregoing identified on Schedule A hereto (as the same may be amended, modified
or supplemented from time to time), and the right (but not the obligation) to
register claims under any state or federal trademark law or regulation or any
trademark law or regulation of any foreign country and to apply for, renew and
extend any of the same, to xxx or bring opposition or cancellation proceedings
in the name of that Debtor or in the name of Secured Party for past, present or
future infringement or unconsented use thereof, and all rights arising therefrom
throughout the world (collectively, the "Trademarks");
-4-
5
(ii) all claims, causes of action and rights to xxx for past,
present or future infringement or unconsented use of any Trademarks and all
rights arising therefrom and pertaining thereto;
(iii) all general intangibles related to or arising out of any
of the Trademarks and all the goodwill of that Debtor's business symbolized by
the Trademarks or associated therewith; and
(iv) all products and Proceeds of any and all of the foregoing.
Anything in the Loan Documents to the contrary notwithstanding, the Trademark
Collateral shall not include the Excluded Assets.
(b) Continuing Security Interest. Each Debtor agrees that this
Agreement shall create a continuing security interest in the Trademark
Collateral which shall remain in effect until terminated in accordance with
Section 17.
3. Further Assurances; Appointment of Secured Party as Attorney-in-Fact.
Each Debtor at its expense shall execute and deliver, or cause to be executed
and delivered, to Secured Party any and all documents and instruments, in form
and substance satisfactory to Secured Party, and take any and all action, which
Secured Party may reasonably request from time to time, to perfect and continue
perfected, maintain the priority of or provide notice of Secured Party's
security interest in the Trademark Collateral and to accomplish the purposes of
this Agreement. Secured Party shall have the right, in the name of each Debtor,
or in the name of Secured Party or otherwise, without notice to or assent by
that Debtor, and each Debtor hereby irrevocably constitutes and appoints Secured
Party (and any of Secured Party's officers or employees or agents designated by
Secured Party) as that Debtor's true and lawful attorney-in-fact with full power
and authority, (i) to sign the name of Debtor on all or any of such documents or
instruments and perform all other acts that Secured Party deems necessary or
advisable in order to perfect or continue perfected, maintain the priority or
enforceability of or provide notice of Secured Party's security interest in, the
Trademark Collateral, and (ii) to execute any and all other documents and
instruments, and to perform any and all acts and things for and on behalf of
Debtor, which Secured Party reasonably may deem necessary or advisable to
maintain, preserve and protect the Trademark Collateral and to accomplish the
purposes of this Agreement, including (A) after the occurrence and during the
continuance of any Event of Default, to defend, settle, adjust or institute any
action, suit or proceeding with respect to the Trademark Collateral, (B) after
the occurrence and during the continuance of any Event of Default, to assert or
retain any rights under any license agreement for any of the Trademark
Collateral, and (C) after the occurrence and during the continuance of any Event
of Default, to execute any and all applications, documents, papers and
instruments for Secured Party to use the Trademark Collateral, to grant or issue
any exclusive or non-exclusive license with respect to any Trademark Collateral
(it being understood that so long as no Event of Default has occurred and is
continuing, that Debtor
-5-
6
may grant or issue licenses in the ordinary course of business with respect to
the Trademark Collateral), and to assign, convey or otherwise transfer title in
or dispose of the Trademark Collateral. The power of attorney set forth in this
Section 3, being coupled with an interest, is irrevocable so long as this
Agreement shall not have terminated in accordance with Section 17.
4. Representations and Warranties. Each Debtor represents and warrants
to Secured Party as follows:
(a) No Other Trademarks. Schedule A sets forth a true and correct
list of all of the existing Trademarks that currently are registered, or for
which any currently pending application for registration has been filed with the
PTO or any corresponding or similar trademark office of any other U.S. or
foreign jurisdiction, and that are owned or held (whether pursuant to a license
or otherwise) or used by that Debtor.
(b) Trademarks Subsisting. To the best of that Debtor's knowledge,
each of the Trademarks listed in Schedule A is subsisting and has not been
adjudged invalid or unenforceable, in whole or in part, and each of the
Trademarks is valid and enforceable.
(c) Ownership of Trademark Collateral; No Violation. (i) That Debtor
has rights in and good and defensible title to the existing Trademark
Collateral, (ii) with respect to the Trademark Collateral shown on Schedule A
hereto as owned by it, that Debtor is the sole and exclusive owner thereof, free
and clear of any Liens and rights of others (other than the security interest
created hereunder and, subject to the Intercreditor Agreement, Liens in favor of
the Indenture Trustee relative to the Senior Note Documents), including
licenses, registered user agreements and covenants by that Debtor not to xxx
third persons, and (iii) with respect to any Trademarks for which that Debtor is
either a licensor or a licensee pursuant to a license or licensee agreement
regarding such Trademark, 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 the Trademark Collateral. To the
best of that Debtor's knowledge, the past, present and contemplated future use
of the Trademark Collateral by that Debtor has not, does not and will not
infringe upon or violate any right, privilege or license agreement of or with
any other Person.
(d) No Infringement. To the best of that Debtor's knowledge, no
material infringement or unauthorized use presently is being made of any of the
Trademark Collateral by any Person.
(e) Powers. That Debtor has the unqualified right, power and
authority to pledge and to grant to Secured Party a security interest in all of
that Debtor's right, title, and interest in and to the Trademark Collateral
pursuant to this Agreement, and
-6-
7
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.
5. Covenants. So long as any of the Secured Obligations remain
unsatisfied, each Debtor agrees that it will comply with all of the covenants,
terms and provisions of this Agreement, the Loan Agreement and the other Loan
Documents to which it is a party, and each Debtor will promptly give Secured
Party written notice of the occurrence of any event that could have a material
adverse effect on any of the Trademarks or the Trademark Collateral, including
any petition under the Bankruptcy Code filed by or against any licensor of any
of the Trademarks as to which that Debtor is a licensee.
6. Future Rights. For so long as any of the Secured Obligations shall
remain outstanding, or, if earlier, until Secured Party shall have released or
terminated, in whole but not in part, its interest in the Trademark Collateral,
if and when any Debtor shall obtain rights to any new Trademarks, or any
reissue, renewal or extension of any Trademarks, the provisions of Section 2
shall automatically apply thereto and that Debtor shall give to Secured Party
prompt notice thereof. Each Debtor shall do all things reasonably deemed
necessary or advisable by Secured Party to ensure the validity, perfection,
priority and enforceability of the security interests of Secured Party in such
future acquired Trademark Collateral. Each Debtor hereby authorizes Secured
Party, if and to the extent such Debtor refuses to or fails timely to execute,
deliver, or do same, to modify, amend or supplement the Schedules hereto and to
re-execute this Agreement from time to time on that Debtor's behalf and as its
attorney-in-fact to include any future Trademarks which are or become Trademark
Collateral and to cause such re-executed Agreement or such modified, amended or
supplemented Schedules to be filed with the PTO.
7. Secured Party's Duties. Notwithstanding any provision contained in
this Agreement, Secured Party shall have no duty to exercise any of the rights,
privileges or powers afforded to it and shall not be responsible to any Debtor
or any other Person for any failure to do so or delay in doing so. Except for
the accounting for moneys actually received by Secured Party hereunder or in
connection herewith, Secured Party shall have no duty or liability to exercise
or preserve any rights, privileges or powers pertaining to the Trademark
Collateral.
8. Remedies. Secured Party shall have all rights and remedies available
to it under the Loan Agreement and applicable law (which rights and remedies are
cumulative) with respect to the security interests in any of the Trademark
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 Trademark 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 continuance of) an
Event of Default with
-7-
8
respect to (among other things) any tangible asset of any Debtor in which
Secured Party has a security interest, including Secured Party's rights to sell
inventory, tooling or packaging which is acquired by any Debtor (or its
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 of the Trademark Collateral, 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 item or portion of such Trademark Collateral (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. Binding Effect. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by each Debtor and Secured Party and their
respective successors and permitted assigns.
10. Notices. All notices and other communications hereunder to or from
Secured Party or any Debtor 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 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
TRADEMARK COLLATERAL IS LOCATED IN CONNECTION WITH THE
-8-
9
EXERCISE OF SECURED PARTY'S RIGHTS AND REMEDIES AS A SECURED CREDITOR WITH
RESPECT TO SUCH TRADEMARK 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 or modify, amend or supplement the
Schedules hereto as provided in Section 6 hereof.
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.
-9-
10
15. Loan Agreement. Each Debtor acknowledges that the rights and
remedies of Secured Party with respect to the security interest in the Trademark
Collateral granted hereby are more fully set forth in the Loan Agreement, the
Guarantor Security Agreement, and the 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 the Debtors, at the Debtors'
expense, as shall be necessary to evidence termination of the security interest
granted by any 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.
-10-
11
(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, 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
-11-
12
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 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]
-12-
13
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: President
-13-
14
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On October 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
-----------------------
Signature
[SEAL] XXXXXXXX XXXX
Commission #1100940
Notary Public--California
Los Angeles County
My Comm. Expires Jun 14, 0000
XXXXX XX XXXXXXXXXX )
) ss
COUNTY OF LOS ANGELES )
On October 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
-----------------------
Signature
[SEAL] XXXXXXXX XXXX
Commission #1100940
Notary Public--California
Los Angeles County
My Comm. Expires Jun 14, 2000
-14-
15
SCHEDULE 7(a)
SCHEDULE TO TRADEMARK SECURITY AGREEMENT
Fitzgeralds Gaming Corporation ("FGC")
Fitzgeralds Reno, Inc. ("FRI")
1. FGC Trademarks schedule (as at 10/28/98)
2. FGC State of Nevada Trademarks schedule (as at 11/28/97)
3. FRI State of Nevada Trademarks schedule (as at 11/28/97)
1
