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EXHIBIT 10.6
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "Agreement"), is entered into as of
October 29, 1998 between FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), and each of the undersigned Subsidiaries of Fitzgeralds Gaming
Corporation, a Nevada corporation (individually and collectively, and jointly
and severally, "Debtor").
WHEREAS, Borrower and Foothill are, contemporaneously herewith,
entering into the Loan Agreement; and
WHEREAS, Debtor has executed that certain General Continuing
Guaranty, dated as of the date hereof, in favor of Foothill (the "Guaranty"),
respecting certain obligations of Borrower owing to Foothill under the Loan
Agreement;
WHEREAS, Debtor desires to collateralize its obligations under
the Guaranty and the other Loan Documents to which it is a party by granting to
Foothill a security interest in certain of its assets; and
WHEREAS, Debtor will benefit by virtue of the credit extended by
Foothill to Borrower pursuant to the Loan Agreement.
NOW THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
each intending to be bound hereby, Foothill and Debtor agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. All capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to them in the
Loan Agreement. As used in this Agreement, the following terms shall have the
following definitions:
"Accounts" means all currently existing and
hereafter arising accounts, contract rights, and all other forms of obligations
owing to Debtor arising out of the sale, license, or lease of goods or General
Intangibles or the rendition of services by
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Debtor, irrespective of whether earned by performance, and any and all credit
insurance, guaranties, or security therefor.
"Books" means all of Debtor's books and records,
including: ledgers; records indicating, summarizing, or evidencing the Debtors'
properties or assets (including the Collateral) or liabilities; all information
relating to the Debtors' business operations or financial condition; and all
computer programs, disk or tape files, printouts, runs, or other computer
prepared information.
"Borrower" means Fitzgeralds Gaming Corporation, a
Nevada corporation.
"Collateral" means all right, title, and interest
of Debtor with respect to each of the following:
(a) the Accounts,
(b) the Books,
(c) the Equipment,
(d) the General Intangibles,
(e) the Inventory,
(f) the Negotiable Collateral,
(g) any other assets of Debtor that now or
hereafter come into the possession, custody, or control of Foothill, and
(h) the proceeds and products, whether tangible
or intangible, of any of the foregoing, including proceeds of insurance
covering any or all of the Collateral, and any and all Accounts, Books,
Equipment, General Intangibles, Inventory, Negotiable Collateral, Real
Property, or other tangible or intangible property resulting from the
sale, exchange, collection, or other disposition of any of the
foregoing, or any portion thereof or interest therein, and the proceeds
thereof.
Anything in the Loan Documents to the contrary notwithstanding, the
Collateral shall not include the Excluded Assets.
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"Debtor" has the meaning ascribed thereto in the
preamble to this Agreement.
"Equipment" means all of Debtor's present and
hereafter acquired machinery, machine tools, motors, equipment, furniture,
furnishings, fixtures, vehicles (including motor vehicles and trailers), tools,
parts, goods (other than consumer goods, farm products, or Inventory), wherever
located, including, (a) any assets acquired by the Obligors with the proceeds of
credit extended by Foothill, (b) any interest of any of the Debtors in any of
the foregoing, and (c) all attachments, accessories, accessions, replacements,
substitutions, additions, and improvements to any of the foregoing.
"Excluded Assets" means: (a) Debtor's cash, deposit
accounts, and other cash equivalents; (b) furniture, fixtures, and equipment
securing Non-Recourse Indebtedness owing in favor of any Person (other than
Foothill, any Obligor, or any Affiliate of an Obligor) and permitted to be
incurred under both the Indenture and Section 7.1(e) of the Loan Agreement; (c)
assets securing Purchase Money Obligations and capital lease obligations, in
each case, owing in favor of any Person (other than Foothill, any Obligor, or
any Affiliate of an Obligor) and permitted to be incurred under both the
Indenture and Sections 7.1(l) and 7.21 of the Loan Agreement; and (d) any
General Intangible consisting of contract rights, permits, or licenses
(including Casino Licenses) that is now or hereafter held by Debtor as licensee
or otherwise, solely in the event and to the extent that: (i) such General
Intangible cannot be subjected to a consensual security interest in favor of
Foothill without the consent of the licensor or other party to such contract,
permit, or license; (ii) any such restriction shall be effective and enforceable
under all applicable law, including Section 9318(4) of the Code; and (iii) such
consent is not obtainable by Debtor; provided, however, that Excluded Assets
does not include (and, accordingly, the Collateral shall include) any and all
proceeds of the assets described in clauses (b), (c), and (d) above (unless and
to the extent such proceeds constitute Debtor's cash, deposit accounts, or cash
equivalents); provided further that any General Intangible qualifying as an
Excluded Asset under clause (d) above no longer shall constitute an Excluded
Asset (and instead shall constitute Collateral) from and after such licensor or
other applicable party's consent with respect to the grant of a consensual
security interest in such General Intangible; provided further that, anything to
the contrary notwithstanding, any property or asset acquired by an Obligor for
cash or cash equivalents of the Obligors, or otherwise received by an Obligor in
exchange for cash or cash equivalents of the Obligors, shall not constitute
Excluded Assets so long as such acquired or received property or asset is not an
asset described in clause (a), (b), (c), or (d) above.
"General Intangibles" means all of Debtor's present
and future general intangibles and other personal property (including contract
rights, rights arising under common law, statutes, or regulations, choses or
things in action, goodwill, patents,
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trade names, trademarks, servicemarks, copyrights, blueprints, drawings,
purchase orders, customer lists, monies due or recoverable from pension funds,
route lists, rights to payment and other rights under any royalty or licensing
agreements, infringement claims, computer programs, information contained on
computer disks or tapes, literature, reports, catalogs, deposit accounts,
insurance premium rebates, tax refunds, and tax refund claims), other than
goods, Accounts, and Negotiable Collateral.
"Guaranty" means the General Continuing Guaranty of
Debtor to Foothill dated as of the date hereof.
"Inventory" means all present and future inventory
in which Debtor has any interest, including goods held for sale or lease or to
be furnished under a contract of service and all of Debtor's present and future
raw materials, work in process, finished goods, and packing and shipping
materials, wherever located.
"Investment Property" means "investment property"
as that term is defined in Section 9115 of the Code.
"Loan Agreement" means that certain Loan and
Security Agreement, dated as of the date hereof, between Borrower and Foothill.
"Negotiable Collateral" means all of Debtor's
present and future letters of credit, notes, drafts, instruments, Investment
Property, documents, personal property leases (wherein Debtor is the lessor),
chattel paper, and Books relating to any of the foregoing.
1.2 CODE. Any terms used in this Agreement which are
defined in the Code shall be construed and defined as set forth in the Code
unless otherwise defined herein.
1.3 CONSTRUCTION. Unless the context of this Agreement
clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, the term "including" is not
limiting, and the term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Section, subsection, clause, schedule, and exhibit references are to this
Agreement unless otherwise specified. Any reference in this Agreement or in any
of the other Loan Documents to this Agreement or any of the other Loan Documents
shall include all alterations, amendments, restatements, changes, extensions,
modifications, renewals, replacements, substitutions,
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joinders, and supplements, thereto and thereof, as applicable. 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 Debtor and supplemental rights and
remedies in favor of Foothill, in each case in respect of the Collateral, shall
not be deemed a conflict with the Loan Agreement.
1.4 SCHEDULES AND EXHIBITS. All of the schedules and
exhibits attached to this Agreement shall be deemed incorporated herein by
reference.
2. CREATION OF SECURITY INTEREST.
2.1 GRANT OF SECURITY INTEREST. Each Debtor hereby grants
to Foothill a continuing security interest in all currently existing and
hereafter acquired or arising Collateral (other than Real Property) in order to
secure prompt repayment of any and all of such Debtor's obligations, and in
order to secure prompt performance by such Debtor of each of its covenants and
duties under the Loan Documents (the "Secured Obligations"). Foothill's security
interests in the Collateral (other than the Real Property) shall attach to all
Collateral (other than Real Property) without further act on the part of
Foothill or Debtor. Anything contained in this Agreement or any other Loan
Document to the contrary notwithstanding, except for Permitted Dispositions, no
Debtor has any authority, express or implied, to dispose of any item or portion
of the Collateral.
2.2 NEGOTIABLE COLLATERAL. In the event that any
Collateral, including proceeds, is evidenced by or consists of Negotiable
Collateral, and if and to the extent that perfection or priority is dependent or
enhanced by possession, each Debtor, immediately upon the request of Foothill,
shall endorse and deliver physical possession of such Negotiable Collateral to
Foothill.
2.3 COLLECTION OF ACCOUNTS, GENERAL INTANGIBLES,
NEGOTIABLE COLLATERAL. At any time from and after and during the continuation of
an Event of Default, Foothill or Foothill's designee may: (a) notify customers
or Account Debtors of each Debtor that the Accounts, General Intangibles, or
Negotiable Collateral have been assigned to Foothill or that Foothill has a
security interest therein; and (b) collect the Accounts, General Intangibles,
and Negotiable Collateral directly and charge the collection costs and expenses
to the Loan Account. Each Debtor agrees that it will hold in trust for Foothill,
as Foothill's trustee, any Collections that it receives and immediately will
deliver said Collections to Foothill in their original form as received by the
applicable Debtor.
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2.4 DELIVERY OF ADDITIONAL DOCUMENTATION REQUIRED. At any
time upon the request of Foothill, Debtor shall execute, and deliver to Foothill
all financing statements, continuation financing statements, fixture filings,
security agreements, pledges, mortgages, deeds of trust, assignments, collateral
assignments, leasehold mortgages, leasehold deeds of trust, endorsements of
certificates of title, applications for title, affidavits, reports, notices,
schedules of accounts, letters of authority, and all other documents that
Foothill may reasonably request, in form satisfactory to Foothill, to perfect
and continue perfected Foothill's security interests in the Collateral (whether
now owned or hereafter arising or acquired), and in order to fully consummate
all of the transactions contemplated hereby and under the other Loan Documents.
2.5 ADDITIONAL PROVISIONS INCORPORATED BY REFERENCE.
Sections 4.5 and 4.6 of the Loan Agreement are incorporated herein by this
reference and shall apply to each Debtor and the Collateral, mutatis mutandis.
3. REPRESENTATIONS AND WARRANTIES.
Debtor represents and warrants as follows:
3.1 NO PRIOR ENCUMBRANCES. Debtor has good and
indefeasible title to the Collateral, free and clear of Liens, except for
Permitted Liens.
3.2 LOCATION OF INVENTORY AND EQUIPMENT. The Inventory and
Equipment are not stored with a bailee, warehouseman, or similar party (without
Foothill's prior written consent) except as set forth on Schedule 6.12 to the
Loan Agreement and are located only at the locations identified on Schedule 6.12
to the Loan Agreement or otherwise permitted by Section 6.12 of the Loan
Agreement.
3.3 RELIANCE BY FOOTHILL; CUMULATIVE. The warranties,
representations, and agreements set forth herein shall be conclusively presumed
to have been relied upon by Foothill and shall be cumulative and in addition to
any and all other warranties, representations, and agreements which Debtor shall
now or hereinafter give, or cause to be given, to Foothill.
4. AFFIRMATIVE COVENANTS.
Debtor covenants and agrees that, until payment in full of
the Secured Obligations, and unless Foothill shall otherwise consent in writing,
Debtor shall do all of the following:
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4.1 MAINTENANCE OF EQUIPMENT. Keep and maintain the
Equipment in good operating condition and repair (ordinary wear and tear
excepted), and make all necessary replacements thereto so that the value and
operating efficiency thereof shall at all times be maintained and preserved.
Other than those items of Equipment that constitute fixtures on the Closing
Date, Debtor shall not permit any item of Equipment to become a fixture to real
estate or an accession to other property, and the Equipment is now and shall at
all times remain personal property.
4.2 TAXES. Debtor shall: (a) cause all assessments and
taxes, whether real, personal, or otherwise, due or payable by, or imposed,
levied, or assessed against Debtor or any of its property to be paid in full,
before delinquency or before the expiration of any extension period, except to
the extent that the validity of such assessment or tax shall be the subject of a
Permitted Protest.
(b) Make due and timely payment or deposit of all such
federal, state, and local taxes, assessments, or contributions required of it by
law, and will execute and deliver to Foothill, on demand, appropriate
certificates attesting to the payment thereof or deposit with respect thereto.
(c) Make timely payment or deposit of all tax payments and
withholding taxes required of it by applicable laws, including those laws
concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal
income taxes, and will, upon request, furnish Foothill with proof satisfactory
to Foothill indicating that Debtor has made such payments or deposits.
4.3 EXISTENCE. Debtor shall do all things necessary to
preserve and keep in full force and effect its existence, except, in each case,
to the extent that the failure of such Debtor to do the same would not result
and could not reasonably be expected to result in a Material Adverse Change.
5. NEGATIVE COVENANTS.
Debtor covenants and agrees that until payment in full of
the Secured Obligations, it will not do any of the following without Foothill's
prior written consent:
5.1 CHANGE NAME. Change Debtor's name, FEIN, business
structure, or identity, or add any new fictitious name.
5.2 NATURE OF BUSINESS; FISCAL YEAR. (a) Make any change
in the principal nature of Debtor's business, or (b) without the prior written
consent of Foothill, which consent shall not unreasonably be withheld, change
the date of its fiscal year.
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5.3 SUSPENSION. Suspend or go out of business.
5.4 CHANGE IN LOCATION OF CHIEF EXECUTIVE OFFICE;
INVENTORY AND EQUIPMENT WITH BAILEES. Without thirty (30) days prior written
notification to Foothill, relocate its chief executive office to a new location,
unless, at the time of such written notification, Debtor provides any financing
statements or fixture filings necessary to perfect and continue perfected
Foothill's security interests and also provides to Foothill a landlord's waiver
in form and substance satisfactory to Foothill. The Inventory and Equipment
shall not at any time now or hereafter be stored with a bailee, warehouseman, or
similar party without Foothill's prior written consent.
5.5 NO LOSS OF CASINO LICENSE. Through direct or indirect
action, or failure to take an action, cause any Casino License that is material
to Debtor, to be forfeited, revoked, rescinded, materially imposed or
not-renewed.
6. EVENTS OF DEFAULT.
Any one or more of the following events shall constitute
an event of default (each, an "Event of Default") under this Agreement:
6.1 The occurrence of an Event of Default (as defined in the
Loan Agreement);
6.2 If Debtor fails or neglects to perform, keep, or observe, in
any material respect, any term, provision, condition, covenant, or agreement
contained in this Agreement or in the Guaranty, or in any other present or
future agreement between Debtor and Foothill; or
6.3 If Debtor makes any payment on account of indebtedness that
has been contractually subordinated in right of payment to the payment of the
Secured Obligations, except to the extent such payment is permitted by the terms
hereof and by the subordination provisions applicable to such indebtedness.
7. FOOTHILL'S RIGHTS AND REMEDIES.
7.1 RIGHTS AND REMEDIES. Upon the occurrence of an Event
of Default, the security hereby constituted shall become enforceable and, in
addition to all other rights and remedies available to Foothill as provided
hereafter, Foothill may, at its election, without notice of its election and
without demand, do any one or more of the following with respect to each Debtor,
all of which are authorized by such Debtor:
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(a) Proceed directly and at once, without notice,
against Debtor to collect and recover the full amount or any portion of the
Secured Obligations, without first proceeding against Borrower or any other
Person, or against any security or collateral for the Secured Obligations;
(b) Without notice to the Debtor and regardless of
the acceptance of any security or collateral for the payment hereof, appropriate
and apply toward the payment of the Secured Obligations (i) any indebtedness due
or to become due from Foothill to the Debtor and (ii) any moneys, credits or
other property belonging to the Debtor at any time held by or coming into the
possession of Foothill;
(c) May exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein and the Guaranty or
otherwise available to it, all the rights and remedies available to it at law
(including those of a secured party under the Code) or in equity;
(d) Settle or adjust disputes and claims directly
with Account Debtors for amounts and upon terms which Foothill considers
advisable, and in such cases, Foothill will credit Borrower's loan account with
only the net amounts received by Foothill in payment of such disputed Accounts
after deducting all Foothill Expenses incurred or expended in connection
therewith;
(e) Cause Debtor to hold all returned Inventory in
trust for Foothill, segregate all returned Inventory from all other property of
Debtor or in Debtor's possession and conspicuously label said returned Inventory
as the property of Foothill;
(f) Without notice or demand, make such payments
and do such acts as Foothill considers necessary or reasonable to protect its
security interest in the Collateral. Debtor agrees to assemble the Collateral if
Foothill so requires, and to make the Collateral available to Foothill as
Foothill may designate. Debtor authorizes Foothill to enter the premises where
the Collateral is located, to take and maintain possession of the Collateral, or
any part of it, and to pay, purchase, contest, or compromise any encumbrance,
charge, or lien which in Foothill's determination appears to be prior or
superior to its security interest and to pay all expenses incurred in connection
therewith. With respect to any of Debtor's owned premises, Debtor hereby grants
Foothill a license to enter into possession of such premises and to occupy the
same, without charge, for up to one hundred twenty (120) days in order to
exercise any of Foothill's rights or remedies provided herein, at law, in
equity, or otherwise;
(g) Ship, reclaim, recover, store, finish,
maintain, repair, prepare for sale, advertise for sale, and sell (in the manner
provided for herein) the
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Collateral. Foothill is hereby granted a license or other right to use, without
charge, Debtor's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, and advertising matter, or any
property of a similar nature, as it pertains to the Collateral, in completing
production of advertising for sale and selling any Collateral, and Debtor's
rights under all licenses and all franchise agreements shall inure to Foothill's
benefit;
(h) Sell all or any part of the Collateral at
either a public or private sale, or both, by way of one or more contracts or
transactions, for cash or on terms, in such manner and at such places (including
Debtor's premises) as Foothill determines is commercially reasonable. It is not
necessary that the Collateral be present at any such sale. Foothill shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in Debtor,
which right or equity is hereby waived or released to the extent permitted by
law;
(i) By an instrument in writing, appoint a receiver
(which term shall include a receiver and manager) of all or any part of the
Collateral and may remove or replace such receiver from time to time or may
institute proceedings in any court of competent jurisdiction for the appointment
of such receiver;
(j) Require Debtor to establish a lockbox or other
restricted account satisfactory to Foothill for the collection of Accounts,
General Intangibles, or Negotiable Collateral;
(k) Notify customers or Account Debtors of Debtor
that the Accounts of Debtor, General Intangibles, or Negotiable Collateral have
been assigned to Foothill or that Foothill has a security interest therein;
(l) Collect the Accounts, General Intangibles, and
Negotiable Collateral directly, and charge the collection costs and expenses as
Foothill Expenses; but, unless and until Foothill does so or gives Debtor other
written instructions, Debtor shall collect all Accounts of Debtor, General
Intangibles, and Negotiable Collateral for Foothill, receive in trust all
payments thereon as Foothill's trustee, and immediately deliver said payments to
Foothill in their original form as received from such Account Debtor; or
(m) Any deficiency which exists after disposition
of the Collateral as provided above will be paid immediately by Debtor up to the
maximum amount, if any, of Debtor's liability under the Guaranty. Any excess
will be returned to Debtor, without interest and subject to the rights of third
parties, by Foothill.
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Except as required by law, Foothill may take any or all of the foregoing action
without demand, presentment, protest, advertisement or notice of any kind to or
upon Debtor or any other person.
All right, remedies, and powers provided in this Agreement relative to the
Collateral may be exercised only to the extent that the exercise thereof does
not violate any applicable mandatory provision of the applicable gaming laws,
rules, and regulations enacted by the applicable Gaming Authority (the
"Applicable Gaming Laws") and all provisions of this Agreement relative to the
Collateral are intended to be subject to all applicable mandatory provisions of
the Applicable Gaming Laws and to be limited solely to the extent necessary to
not render the provisions of this Agreement invalid or unenforceable, in whole
or in part. Foothill will timely apply for and receive all required approvals of
the applicable Gaming Authority for the sale or other disposition of gaming
Equipment regulated by Applicable Gaming Laws (including any such sale or
disposition of gaming Equipment consisting of slot machines, gaming tables,
cards, dice, gaming chips, player tracking systems, and all other "gaming
devices" (as such term or words of like import referring thereto are defined in
the Applicable Gaming Laws), "cashless wagering systems", (as such term or words
of like import referring thereto are defined in the Applicable Gaming Laws), and
"associated equipment" (as such term or words of like import referring thereto
are defined in the Applicable Gaming Laws).
7.2 REMEDIES CUMULATIVE. Foothill's rights and
remedies under this Agreement, the Loan Documents, and all other agreements
shall be cumulative. Foothill shall have all other rights and remedies not
inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by Foothill of one right or remedy shall be deemed an election,and no
waiver by Foothill of any Event of Default shall be deemed a continuing waiver.
No delay by Foothill shall constitute a waiver, election, or acquiescence by it.
8. TAXES AND EXPENSES.
If Debtor fails to pay any monies (whether taxes, assessments,
insurance premiums, Permit fees, or, in the case of leased properties or assets,
rents or other amounts payable under such leases) due to third Persons, or fails
to make any deposits or furnish any required proof of payment or deposit, all as
required under the terms of this Agreement or any other Loan Document, then, to
the extent that Foothill determines that such failure by Debtor could result in
a Material Adverse Change, in its discretion and without prior notice to any
Obligor, Foothill may do any or all of the following: (a) make payment of the
same or any part thereof; or (b) set up such reserves in Borrower's loan account
as Foothill deems necessary to protect Foothill from the exposure created by
such failure. Any such amounts paid by Foothill shall constitute Foothill
Expenses. Any such payments
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made by Foothill shall not constitute an agreement by Foothill to make similar
payments in the future or a waiver by Foothill of any Event of Default under
this Agreement. Foothill need not inquire as to, or contest the validity of, any
such expense, tax, fee, or Lien and the receipt of the usual official notice for
the payment thereof shall be conclusive evidence that the same was validly due
and owing.
9. WAIVERS; INDEMNIFICATION.
9.1 DEMAND; PROTEST; ETC. To the extent permitted by law,
Debtor waives demand, protest, notice of protest, notice of default or dishonor,
notice of payment and nonpayment, notice of any default, nonpayment at maturity,
release, compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees at any time held by Foothill on which
Debtor may in any way be liable. Debtor hereby waives any defenses that Debtor
might have based upon suretyship or impairment of collateral, such waiver being
intended to be a waiver contemplated by Section 3605(i) of the Code.
9.2 FOOTHILL'S LIABILITY FOR COLLATERAL. So long as
Foothill complies with its obligations, if any, under Section 9207 of the Code,
Foothill shall not in any way or manner be liable or responsible for: (a) the
safekeeping of the Collateral; (b) any loss or damage thereto occurring or
arising in any manner or fashion from any cause; (c) any diminution in the value
thereof; or (d) any act or default of any carrier, warehouseman, bailee,
forwarding agency, or other Person. All risk of loss, damage, or destruction of
the Collateral shall be borne by Debtor.
9.3 INDEMNIFICATION. Debtor agrees to defend, indemnify,
save, and hold Foothill and its officers, employees, and agents harmless
against: (a) all obligations, demands, claims, and liabilities claimed or
asserted by any other Person, and (b) all losses (including attorneys fees and
disbursements) in any way suffered, incurred, or paid by Foothill as a result of
or in any way arising out of, following, or consequential to transactions with
Borrower or Debtor, whether under this Agreement, the other Loan Documents or
otherwise. This provision shall survive the termination of this Agreement and
the repayment of the Secured Obligations.
10. NOTICES.
All notices and other communications hereunder to Foothill
shall be in writing and shall be mailed, sent or delivered in accordance with
the Loan Agreement and all notices and other communications hereunder to Debtor
shall be in writing and shall be mailed, sent or delivered in care of Borrower
in accordance with the Loan Agreement.
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11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
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 FOOTHILL, IN ANY OTHER COURT IN WHICH FOOTHILL SHALL
INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF DEBTOR AND FOOTHILL 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.
DEBTOR AND FOOTHILL 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. DEBTOR AND FOOTHILL 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. DESTRUCTION OF DEBTOR'S DOCUMENTS.
All documents, schedules, agings, or other papers
delivered to Foothill may be destroyed or otherwise disposed of by Foothill four
(4) months after they are delivered to or received by Foothill, unless Debtor
requests, in writing, the return of said documents, schedules or other papers
and makes arrangements, at Debtor's expense, for their return.
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13. GENERAL PROVISIONS.
13.1 EFFECTIVENESS. This Agreement shall be binding and
deemed effective when executed by Debtor and accepted and executed by Foothill.
13.2 SUCCESSORS AND ASSIGNS. This Agreement shall bind and
inure to the benefit of the respective successors and assigns of each of the
parties; provided, however, that Debtor may not assign this Agreement or any
rights or duties hereunder without Foothill's prior written consent and any
prohibited assignment shall be absolutely void. No consent to an assignment by
Foothill shall release Debtor from its Secured Obligations. Foothill may assign
this Agreement and its rights and duties hereunder and no consent or approval by
Debtor is required in connection with any such assignment. Foothill reserves the
right to sell, assign, transfer, negotiate, or grant participations in all or
any part of, or any interest in Foothill's rights and benefits hereunder. In
connection therewith, Foothill may disclose all documents and information which
Foothill now or hereafter may have relating to Debtor or Debtor's business. To
the extent that Foothill assigns its rights and obligations to a third Person,
Foothill thereafter shall be released from such assigned obligations to Debtor
and such assignment shall effect a novation between Debtor and such third
Person.
13.3 SECTION HEADINGS. Headings and numbers have been set
forth herein for convenience only. Unless the contrary is compelled by the
context, everything contained in each section applies equally to this entire
Agreement.
13.4 INTERPRETATION. Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved against Foothill
or Debtor, whether under any rule of construction or otherwise. On the contrary,
this Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of all parties hereto.
13.5 SEVERABILITY OF PROVISIONS. Each provision of this
Agreement shall be severable from every other provision of this Agreement for
the purpose of determining the legal enforceability of any specific provision.
13.6 AMENDMENTS IN WRITING. This Agreement can only be
amended by a writing signed by both Foothill and Debtor.
13.7 COUNTERPARTS; TELEFACSIMILE EXECUTION. This Agreement
may be executed in any number of counterparts and by different parties on
separate counterparts, each of which, when executed and delivered, shall be
deemed to be an original, and all of which, when taken together, shall
constitute but one and the same
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Agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement.
13.8 REVIVAL AND REINSTATEMENT OF OBLIGATIONS. If the
incurrence or payment of the Secured Obligations by Debtor or the transfer by
Debtor to Foothill of any property of Debtor should for any reason subsequently
be declared to be void or voidable under any state or federal law relating to
creditors' rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, and other voidable or recoverable payments
of money or transfers of property (collectively, a "Voidable Transfer"), and if
Foothill is required to repay or restore, in whole or in part, any such Voidable
Transfer, or elects to do so upon the reasonable advice of its counsel, then, as
to any such Voidable Transfer, or the amount thereof that Foothill is required
or elects to repay or restore, and as to all reasonable costs, expenses, and
attorneys fees of Foothill related thereto, the liability of Debtor
automatically shall be revived, reinstated, and restored and shall exist as
though such Voidable Transfer had never been made.
13.9 AGREEMENT TO BE BOUND BY LOAN AGREEMENT. By its
execution and delivery of this Agreement any Debtor that is not a party to the
Loan Agreement nevertheless shall be deemed to have agreed to be bound by each
provision in the Loan Agreement relating to the Obligors or their assets with
the same force and effect as though such Debtor were party to the Loan
Agreement, mutatis mutandis.
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Agreement as of the date first written above.
FOOTHILL CAPITAL CORPORATION, a
California corporation
By /s/ XXXXX XXXXX
-----------------------------
Title: Vice President
--------------------------
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
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