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EXHIBIT 10.33
THE CIT GROUP FINANCING
MASTER SECURITY AGREEMENT
1. GRANT OF SECURITY INTEREST; DESCRIPTION OF COLLATERAL.
The Debtor named below grants to Secured Party a security interest in the
property described in the Schedules of Indebtedness and Collateral now or
hereafter executed by or pursuant to the authority of the Debtor and accepted
by Secured Party in writing (individually, a "Schedule" and collectively, the
"Schedules"), along with all present and future attachments and accessories
thereto and replacements and proceeds thereof, including amounts payable under
any insurance policy, all hereinafter referred to collectively as "Collateral."
Each Schedule shall be serially numbered. Unless and only to the extent
otherwise expressly provided in a Schedule, no Schedule shall replace any
previous Schedule but shall be supplementary to all previous Schedules.
2. WHAT OBLIGATIONS THE COLLATERAL SECURES.
Each item of Collateral shall secure not only the specific amount which Debtor
promises to pay in each Schedule, but also all other present and future
indebtedness or obligations of Debtor to Secured Party of every kind and nature
arising under this Security Agreement (collectively, the "Obligations").
3. PROMISE TO PAY; TERMS AND PLACE OF PAYMENT.
Debtor promises to pay Secured Party the amounts set forth on each Schedule at
the rate and upon such terms as provided therein.
4. USE OF COLLATERAL.
Debtor warrants and agrees that the Collateral is to be used primarily for
business or commercial purposes (other than agricultural).
Debtor and Secured Party agree that regardless of the manner of affixation, the
Collateral shall remain personal property and not become part of the real
estate. Debtor agrees to keep the Collateral at the location set forth in the
applicable Schedule, and will notify Secured Party promptly in writing of any
change in the location of the Collateral within such State, but will not remove
the collateral from such State without the prior written consent of Secured
Party.
5. LATE CHARGES AND OTHER FEES.
Any payment not made when due shall, at the option of Secured Party, bear late
charges thereon calculated at the rate of 1 1/2% per month, but in no event
greater than the highest rate permitted by relevant law. Debtor shall be
responsible for and pay to Secured Party a returned check fee, not to exceed
the maximum permitted by law, which fee will be equal to the sum of (i) the
actual bank charges incurred by Secured Party plus (ii) all other actual costs
and expenses incurred by Secured Party. Returned check fees are payable upon
demand as Obligations secured by the Collateral under this Security Agreement.
6. DEBTOR'S WARRANTIES AND REPRESENTATIONS.
To induce Secured Party to enter into this Security Agreement and to make the
loans contemplated hereby, Debtor warrants and represents that:
(a) Debtor is justly indebted to Secured Party for the full amount of the
Obligations set forth on each Schedule;
(b) except for the security interest granted hereby, the Collateral is free
from and will be kept free from all liens, claims, security interests and
encumbrances;
(c) Debtor is not aware of any financing statement covering the Collateral or
any proceeds thereof on file in favor of anyone other than Secured Party,
but if such other financing statement is on file, it will be terminated or
subordinated;
(d) all material information supplied and material statements made by Debtor
in any financial, credit or accounting statement or application for credit
prior to, contemporaneously with or subsequent to the execution of this
Security Agreement with respect to this transaction are and shall be true,
correct, valid and genuine;
(e) Debtor has full authority to enter into, deliver and perform this Security
Agreement and each of the other documents heretofore, now or hereafter
executed by Debtor in favor of or delivered to Secured Party in respect to
the transactions contemplated by this Security Agreement (collectively,
the "Loan Documents") to which it is a party, and in so doing it is not
violating its charter or by-laws, any law or regulation or agreement with
third parties, and it has taken all such action as may be necessary or
appropriate to make this Security Agreement and the other Loan Documents
binding upon it;
(f) the Collateral is new and in good operating condition and repair;
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(g) Debtor is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. Debtor has duly qualified
and is authorized to do business and is in good standing as a foreign
corporation in all states and jurisdictions where the character of its
properties or the nature of its activities make such qualification
necessary;
(h) this Security Agreement is, and each of the other Loan Documents when
delivered will be, a legal, valid and binding obligation of Debtor
enforceable against it in accordance with their respective terms;
(i) Debtor has all governmental licenses, consents, approvals, authorizations,
permits, certificates, inspections, and franchises necessary to conduct
its business as heretofore or proposed to be conducted by it and to own or
lease and operate its properties as now owned or leased by it;
(j) there are no actions, suits, proceedings or investigations pending, or to
the knowledge or Debtor, threatened, against or affecting Debtor or any of
its properties in any court or before any governmental authority or
arbitration board or tribunal, that if determined adversely, would have a
material adverse effect on its financial condition, business, properties
or operations, or its ability to perform its obligations under this
Security Agreement and all other Loan Documents to which it is a party;
(k) Debtor has filed all federal, state and local tax returns and other
reports it is required by applicable law to file and has paid, or made
provision for the payment of, all taxes, assessments, levies, claims or
charges upon Debtor, its income or sales or any of its properties that are
due and payable;
(l) Debtor has duly complied with, and its properties and business operations
are in compliance in all respects with, the provisions of all applicable
laws;
(m) no Event of Default (as defined below) exists or will exist or result from
the execution and delivery of this Security Agreement or Debtor's
performance hereunder;
(n) the balance sheets of Debtor as of March 31, 1996 and the related
statements of income, changes in stockholders' equity, and changes in
financial position for the period entered on such date, have been prepared
in accordance with generally accepted accounting principles ("GAAP")
(except for changes in application in which Debtor's independent certified
public accountants concur), and present fairly the financial position of
Debtor at such dates and the results of Debtor's operations for such
periods. Since March 31, 1996 there has been no material change in the
condition, financial or otherwise, of Debtor, except changes in the
ordinary course of business, none of which individually or in the
aggregate has been materially adverse; and
(o) there are no claims for brokerage commissions, finder's fees or investment
banking fees in connection with the transactions contemplated by this
Security Agreement.
Debtor warrants to Secured Party that all representations and warranties of
Debtor contained in this Security Agreement and all other Loan Documents shall
be true at the time of Debtor's execution of this Security Agreement and shall
survive the execution, delivery and acceptance hereof by the parties hereto and
the closing of the transactions described herein or related thereto.
7. DEBTOR'S AGREEMENTS.
Debtor agrees:
(a) to defend at Debtor's own cost any action, proceeding, or claim affecting
the Collateral;
(b) to pay reasonable attorneys' fees and other expenses incurred by Secured
Party in enforcing its rights against Debtor under this Security Agreement
subsequent to an Event of Default hereunder or the occurrence of an event
which with the lapse of time or the giving of notice or both would become
an Event of Default;
(c) to pay promptly all taxes, assessments, license fees and other public or
private charges when levied or assessed against the Collateral or this
Security Agreement, and this obligation shall survive the termination of
this Security Agreement;
(d) that if a certificate of title be required or permitted by law, Debtor
shall obtain such certificate with respect to the Collateral, showing the
security interest of Secured Party thereon and in any event do everything
necessary or expedient to preserve or perfect the security interest of
Secured Party;
(e) that Debtor will not misuse, fail to keep in good repair, secrete or
without the prior written consent of Secured Party, sell, rent, lend,
encumber or transfer any of the Collateral notwithstanding the Secured
Party's right to proceeds;
(f) that Secured Party may enter upon Debtor's premises or wherever the
Collateral may be located at any reasonable time to inspect the Collateral
and Debtor's books and records pertaining to the Collateral, and Debtor
shall assist Secured Party in making such inspection;
(g) that the security interest granted by Debtor to Secured Party shall
continue effective irrespective of any retaking or redelivery of any
collateral and irrespective of the payment of the Obligations described in
any Schedule so long as there are any Obligations of any kind, including
obligations under guaranties or assignments, owed by Debtor to Secured
Party, provided, however, upon any assignment of any Schedule under this
Security Agreement the Assignee shall thereafter be deemed for the purpose
of this Paragraph the Secured Party under this Security Agreement with
respect to such Schedule;
(h) to preserve and maintain its separate corporate existence and all rights,
privileges, and franchises in connection therewith, and maintain its
qualification and good standing in all states in which such qualification
is necessary;
(i) to comply with all applicable laws and obtain and keep in force any and
all licenses, permits, franchises, or other governmental authorizations
necessary to the ownership of its properties or to the conduct of its
business;
(j) to notify Secured Party in writing: (i) promptly after Debtor's learning
thereof, of the commencement of any litigation or the institution of any
administrative proceeding which Debtor reasonably believes, if determined
adversely, may materially and adversely affect Debtor's operations,
financial condition, properties or business or Secured Party's lien upon
any of the Collateral; (ii) promptly after Debtor's learning thereof, of
any material default by Debtor under any note, indenture, loan agreement,
mortgage, lease, deed, guaranty or other similar agreement relating to any
Indebtedness of Debtor exceeding $1,000,000 (iii) promptly after the
occurrence thereof, of any Event of Default or any event or condition the
occurrence of which would, with the lapse of time or the giving of notice,
or both, become an Event of Default; and (iv) promptly after the rendition
thereof, of any judgment, order or decree rendered against Debtor in excess
of $1,000,000;
(k) to permit Secured Party to communicate directly with any of the following
persons and entities concerning Debtor, its business and the Collateral
(and Secured Party is irrevocably authorized to communicate with each such
persons) upon at least 24 hours' oral or written notice to Debtor (unless
an Event of Default exists, in which event no notice shall be required):
(a) and service bureau, warehousing service, landlords or trade creditors;
(b) any person employed by the Debtor (but no prior notice shall be
required for Secured Party to discuss any matters pertaining to Debtor, its
business or the Collateral with any officer of Debtor or attorney for
Debtor or any other person designated by an officer of Debtor to deal on a
day-to-day basis with Secured Party); and (c) Debtor's present and future
independent public accountants; and each of the foregoing is authorized by
Debtor to communicate with Secured Party and to disclose to Secured Party
any and all matters relating to Debtor, its financial condition and
business prospects, and the Collateral;
(l) that Debtor will not enter into any transaction with any person or entity
which is a stockholder of Debtor or which directly or indirectly controls,
or is controlled by, or is under common control with, Debtor or which
beneficially owns or holds 5% or more of any class of voting securities of
Debtor, or 5% or more of the voting securities or equity interest of which
is beneficially owned or held by Debtor, except in the ordinary course and
pursuant to the reasonable requirements of Debtor's business and upon fair
and reasonable terms, and, with respect to any such transaction which
affects the Collateral, upon fair and reasonable terms which are fully
disclosed to Secured Party;
(m) that Debtor will not transfer its principal place of business or chief
executive office to any location other than those at which the same is
presently kept or maintained, except upon at least sixty (60) days prior
written notice to Secured Party and after the delivery to Secured Party of
duly executed UCC-1 financing statements, if required by Secured Party, in
form satisfactory to Secured Party to perfect or continue the perfection of
Secured Party's lien and security interest hereunder;
(n) to cause to be prepared and furnished to Secured Party the following (all
to be kept and prepared in accordance with GAAP applied on a consistent
basis, unless Debtor's certified public accountants concur in any change
therein and such change is disclosed to Secured Party and is consistent
with GAAP): (i) as soon as possible, but not later than ninety (90) days
after the close of each fiscal year of Debtor, unqualified audited
financial statements of Debtor as of the end of such year, certified by a
firm of independent certified public accountants of recognized national
standing or otherwise acceptable to Secured Party; and (ii) as soon as
possible, but not later than forty-five (45) days after the end of each of
Debtor's fiscal quarters hereafter, unaudited interim financial statements
of Debtor as of the end of such quarter and of the portion of Debtor's
fiscal year then elapsed, certified by the principal financial officer of
Debtor as prepared in accordance with GAAP and fairly presenting the
financial position and results of operations of Debtor for such quarter and
period. Concurrently with the delivery of the financial statements
described in clause (1) of this Paragraph, Debtor shall furnish to Secured
Party a copy of the accountants "letter to Debtor's management, if any,
that is prepared in connection with such financial statements. Concurrently
with the delivery of the financial statements described in this Paragraph,
Debtor shall cause to be prepared and furnished to Secured Party a
certificate from the chief financial officer of Debtor certifying to
Secured Party that to the best of his knowledge, Debtor has kept, observed,
performed and fulfilled each and every covenant, obligation and agreement
binding upon Debtor in this Security Agreement and the other Loan Documents
and that no Event of Default has occurred, or, if such Event of Default has
occurred, specifying the nature hereof;
(o) that all the covenants and agreements made by Debtor, Coast Resorts, Inc.
and Coast West, Inc. in the $175,000,000 13% First Mortgage Notes Indenture
dated as of January 30, 1996 (the "Indenture") by and among Debtor, Coast
West, Inc., Coast Resorts, Inc., and American Bank National Association as
trustee, are incorporated herein and made part hereof as
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such covenants and agreements were in effect on July 1, 1996 (without
giving effect to any waiver or amendment of such covenants and agreements
after July 1, 1996 except as provided in the last paragraph of this
Section 7);
(p) within ten (10) business days of the date of this Security Agreement, to
execute and deliver to the Nevada Gaming Commission a report in compliance
with Regulation 8.130 of that Commission reporting the loan made under
this Security Agreement and the other Loan Documents, and to give
simultaneously a copy of the filed report to Secured Party;
(q) it will not declare or pay any dividend (other than a dividend payable in
stock of the Debtor) or authorize or make any other distribution on any
stock of the Debtor, whether now or hereafter outstanding which would
exceed (i) 50% of the Debtor's after tax net profit for the preceding
fiscal year or (ii) $3,000,000.00 annually, whichever is less; and
(r) it will not consent or agree to the sale, lease, transfer, conveyance, or
other disposition (other than by way of merger or consolidation with Coast
Resorts, Inc.) of all or substantially all of the Debtor's assets.
Debtor's obligation to comply with the covenants and agreements in the
Indenture as such covenants and agreements were in effect on July 1, 1996,
applies only to amendments which (i) impair Secured Party's rights in the
Collateral or (ii) materially impair Debtor's ability to pay the Obligations.
With respect to amendments not covered by clauses (i) and (ii), Secured Party
agrees that Debtor shall comply with the applicable covenant or agreement as
amended. With respect to amendments which (y) do impair Secured Party's rights
in the Collateral or (z) do materially impair Debtor's ability to pay the
Obligations, such amendments shall be accorded no effect for purposes hereof
and Debtor shall comply with the applicable covenant or agreement as if it had
not been amended.
The parties hereto agree that any and all amendments and other
modifications of whatever kind to Section 4.09 of the Indenture subsequent to
July 1, 1996 shall be deemed to (i) impair Secured Party's rights in the
collateral and (ii) materially impair Debtor's ability to pay the Obligations,
and shall be accorded no effect for the purposes hereof and Debtor shall comply
with Section 4.09 as if it had not been amended or modified.
8. INSURANCE AND RISK OF LOSS.
All risk of loss, damage to or destruction of the Collateral shall at all times
be on Debtor. Debtor will procure forthwith and maintain at Debtor's expense
insurance against all risks of loss or physical damage to the Collateral for the
full insurable value thereof for the life of this Security Agreement plus breach
of warranty insurance and such other insurance thereon in amounts and against
such risks as Secured Party may specify, and shall promptly deliver each policy
to Secured Party with a standard long-term mortgagee endorsement attached
thereto showing loss payable to Secured Party; and providing Secured Party with
not less than 30 days written notice of cancellation; each such policy shall be
in form, terms and amount and with insurance carriers satisfactory to Secured
Party; Secured Party's acceptance of policies in lesser amounts or risks shall
not be a waiver of Debtor's foregoing obligations. As to Secured Party's
interest in such policy, no act or omission of Debtor or any of its officers,
agents, employees or representatives shall affect the obligations of the insurer
to pay the full amount of any loss. The insurance maintained by Debtor should be
primary without any right of contribution from insurance which may be maintained
by Secured Party. Debtor shall be liable for all deductible portions of all
required insurance.
Debtor hereby assigns to Secured Party any moneys which may become payable
under any such policy of insurance and irrevocably constitutes and appoints
Secured Party as Debtor's attorney in fact (a) to hold each original insurance
policy, (b) to make, settle and adjust claims under each policy of insurance,
(c) to make claims for any moneys which may become payable under such and other
insurance on the Collateral including returned or unearned premiums, and (d) to
endorse Debtor's name on any check, draft or other instrument received in
payment of claims or returned or unearned premiums under each policy and to
apply the funds to the payment of the Obligations owing to Secured Party;
provided, however, Secured Party is under no obligation to do any of the
foregoing.
Should Debtor fail to furnish such insurance policy to Secured Party, or to
maintain such policy in full force, or to pay any premium in whole or in part
relating thereto, then Secured Party, without waiving or releasing any default
or obligation by Debtor, may (but shall be under no obligation to) obtain and
maintain insurance and pay the premium therefor on behalf of Debtor and charge
the premium to Debtor's Obligations under this Security Agreement. The full
amount of any such premium paid by Secured Party shall be payable by Debtor
upon demand, and failure to pay same shall constitute an event of default under
this Security Agreement.
9. EVENTS OF DEFAULT; ACCELERATION.
A VERY IMPORTANT ELEMENT OF THIS SECURITY AGREEMENT IS THAT DEBTOR MAKE ALL ITS
PAYMENTS PROMPTLY AS AGREED UPON. IT IS ESSENTIAL THAT THE COLLATERAL REMAIN IN
GOOD CONDITION AND ADEQUATE SECURITY FOR THE OBLIGATIONS. EACH OF THE FOLLOWING
IS AN EVENT OF DEFAULT UNDER THIS SECURITY AGREEMENT WHICH WILL ALLOW SECURED
PARTY TO TAKE SUCH ACTION UNDER THIS PARAGRAPH AND UNDER PARAGRAPH 10 AS IT
DEEMS NECESSARY:
(a) Debtor shall fail to pay any installment of principal or interest owing
with respect to a Schedule within fifteen (15) days after the due date
thereof;
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(b) Debtor shall fail to pay any of the Obligations not evidenced by a Schedule
on the due date thereof (whether due at stated maturity, on demand, upon
acceleration or otherwise) and such failure shall not be cured within
fifteen (15) days after the date on which Secured Party gives to Debtor
written notice of Debtor's failure to make such payment on or before the
due date thereof;
(c) Debtor breaches any warranty or provision hereof, or of any other Loan
Document, any note or of any other instrument or agreement delivered by
Debtor to Secured Party in connection with this or any other transaction;
(d) Coast Resorts, Inc. shall fail to comply with the terms of the non-spinoff
letter dated October 24, 1996;
(e) it is determined that Debtor has given Secured Party materially
misleading information regarding its financial condition;
(f) there shall occur any loss, theft, damage or destruction of Collateral not
fully covered by insurance (as required by this Security Agreement and not
subject to such deductibles as Secured Party shall have agreed to in
writing), or the making of any levy, seizure, or attachment thereof or
thereon;
(g) Debtor shall (i) admit in writing its inability to pay its debts generally
as they become due, (ii) make an assignment for the benefit of its
creditors, or (iii) commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole or
any substantial part of its property, or (iv) a complaint or petition or
answer seeking reorganization or arrangement or any similar relief under
the Federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state is filed by or against the Debtor
and, if filed against the Debtor, continues unstayed and in effect for
a period of 60 days, or (v) a court of competent jurisdiction, trustee or
conservator shall otherwise assume custody or control of the Debtor or of
the whole or any substantial part of its assets;
(h) Debtor fails to maintain any and all licenses, permits, approvals or
authorizations of any kind necessary under Nevada statutes or required by
the Nevada Gaming Commission to engage in the business of operating a
Casino. For the purposes hereof "Casino" shall mean a gaming establishment
and other property or assets ancillary thereto or used in
connection therewith, including restaurants, hotels, theaters, non-gaming
retail businesses, and golf courses and other recreation and entertainment
facilities;
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(j) there shall occur any default or event of default on the part of Debtor
under any agreement, document or instrument to which Debtor is a party or
by which Debtor or any of its property is bound, creating or relating to
any indebtedness;
(k) there shall occur any material adverse change in the financial condition
or business prospects of Debtor;
(l) Debtor, Coast Resorts, Inc., or Coast West, Inc. shall breach any of the
covenants set forth in the Indenture in effect on July 1, 1996 (without
giving effect to any waiver or amendment of any such covenant on or after
July 1, 1996 except as provided in the last paragraph of Section 7 and
without regarding whether the payment or maturity of the indebtedness
incurred under the indenture is accelerated in consequence of such breach);
(m) there shall occur any default or event of default on the part of Coast
Resorts, Inc. under any agreement, document or instrument (other than the
indenture and related documents) to which it is a party or by which it or
any of its property is bound, provided Coast Resorts, Inc.'s obligations
owing upon such default under or related to such agreement, document or
instrument exceeds $5,000,000 or its foreign currency equivalent; and
(n) there shall occur any Event of Default on the part of Coast Resorts, Inc.,
under the Stock Pledge and Security Agreement (the "Pledge Agreement")
dated as of January 30, 1996, (as Event of Default is defined in such
Pledge Agreement) in favor of American Bank National Association as
trustee ("Trustee"), and as a result thereof, such Trustee exercises any
rights or remedies with regard to Shareholder's Stock (as such term is
defined in the Pledge Agreement).
IF AN EVENT OF DEFAULT SHALL OCCUR, THE OBLIGATIONS DESCRIBED IN EACH SCHEDULE
AND ALL OTHER OBLIGATIONS THEN OWING BY DEBTOR TO SECURED PARTY UNDER THIS OR
ANY OTHER PRESENT OR FUTURE AGREEMENT SHALL, IF SECURED PARTY SHALL SO ELECT,
BECOME IMMEDIATELY DUE AND PAYABLE. AFTER ACCELERATION:
(a) the unpaid principal balance of the Obligations described in any Schedule
in which interest has been precomputed shall bear interest at the rate of
18% per annum (or, if less, the maximum rate permitted by law) until paid
in full; and
(b) the unpaid principal balance of the Obligations described in any Schedule
in which interest has not been precomputed shall bear interest at the same
rate as before acceleration until paid in full.
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In no event shall the Debtor upon demand by Secured Party for payment of the
Obligations, by acceleration of the maturity thereof or otherwise, be obligated
to pay any interest in excess of the amount permitted by law. Any acceleration
of the Obligations, if elected by Secured Party, shall be subject to all
applicable laws, including laws relating to rebates and refunds of unearned
charges.
Secured Party agrees that notwithstanding anything herein to the contrary, it
shall not exercise its remedies pursuant to Section 10 with respect to Events of
Default under clauses (c) through (l), with the exception of clauses (g) and
clause (c) as applied to Section 7(o), unless (i) Secured Party first notifies
Debtor that such Event of Default has occurred and (ii) permits Debtor fifteen
(15) days to cure such Event of Default. With respect to clause (g), Secured
Party is not required to give notice prior to declaring an Event of Default, and
the cure periods applicable thereto are set forth therein. With respect to
clause (l) and clause (c) as applied to Section 7(o), an Event of Default shall
not be deemed to have occurred until Debtor shall have failed to cure the
default under the Indenture within a reasonable period. If such default is not
curable within a reasonable time period, Debtor shall provide Secured Party with
such additional documents, security or assurances as Secured Party shall
reasonably request.
10. SECURED PARTY'S REMEDIES AFTER DEFAULT; CONSENT TO ENTER PREMISES.
Upon the occurrence of an Event of Default (and the failure of Debtor to remedy
such Event of Default during the time period, if any, provided Debtor to remedy
such Event of Default) and at any time thereafter, Secured Party shall have all
the rights and remedies of a Secured Party under the Uniform Commercial Code and
any other applicable laws, including the right to any deficiency remaining after
disposition of the Collateral for which Debtor hereby agrees to remain fully
liable. Debtor agrees that Secured Party, by itself or its Agent, may without
notice to any person and without judicial process of any kind, enter into any
premises or upon any land owned, leased or otherwise under the real or apparent
control of Debtor or any Agent of Debtor where the Collateral may be or where
Secured Party believes the Collateral may be, and disassemble, render unusable
and/or repossess all or any item of the Collateral, disconnecting and separating
all Collateral from any other property and using all force necessary. Debtor
expressly waives all further rights to possession of the Collateral after
default and all claims for injuries suffered through or loss caused by such
entering and/or repossession. Secured Party may require Debtor to assemble the
Collateral and return it to Secured Party at a place to be designated by Secured
Party which is reasonably convenient to both parties.
Secured Party may sell or lease the Collateral at a time and location of its
choosing provided that the Secured Party acts in good faith and in a
commercially reasonable manner. Secured Party will give Debtor reasonable notice
of the time and place of any public sale of the Collateral or of the time after
which any private sale or any other intended disposition of the Collateral is to
be made. Unless otherwise provided by law, the requirement of reasonable notice
shall be met if such notice is mailed, postage prepaid, to the address of Debtor
shown herein at least ten days before the time of the sale or disposition.
Expenses of retaking, holding, preparing for sale, selling and the like shall
include reasonable attorneys' fees and other legal expenses. Debtor understands
that Secured Party's rights are cumulative and not alternative.
Secured Party 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,
tradenames, trademarks and advertising matter, or any property of similar
nature, as it pertains to the Collateral, in advertising for sale and selling
any Collateral and Debtor's rights under all licenses and all franchise
agreements shall inure to Secured Party's benefit.
The proceeds realized from the sale of any Collateral may be applied, after
allowing two (2) business days for collection, first to the reasonable costs,
expenses and attorneys' fees and expenses incurred by Secured Party for
collection and for acquisition, completion, protection, removal, storage, sale
and delivery of the Collateral; secondly, to interest due upon any of the
Obligations; and thirdly, to the principal of the Obligations. If any deficiency
shall arise, Debtor and Guarantor shall remain liable to Secured Party therefor.
11. WAIVER OF DEFAULTS; AGREEMENT INCLUSIVE.
Secured Party may in its sole discretion waive an Event of Default, or cure, at
Debtor's expense, an Event of Default. Any such waiver in a particular instance
or of a particular Event of Default shall not be a waiver of any other Events of
Default or the same kind of default at another time. No modification or change
in this Security Agreement or any related note, instrument or agreement shall
bind Secured Party unless in writing signed by Secured Party. No oral agreement
shall be binding.
12. FINANCING STATEMENTS; CERTAIN EXPENSES.
If permitted by law, Debtor authorizes Secured Party to file a financing
statement with respect to the Collateral signed only by Secured Party, and to
file a carbon, photocopy or other reproduction of this Security Agreement or of
a financing statement. At the request of Secured Party, Debtor will execute any
financing statements, agreements or documents, in form satisfactory to Secured
Party which Secured Party may deem necessary or advisable to establish and
maintain a perfected security interest in the Collateral.
13. WAIVER OF DEFENSES ACKNOWLEDGMENT.
If Secured Party assigns a Schedule under this Security Agreement to a third
party ("Assignee"), then after such assignment:
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(a) Debtor will make all payments due under such Schedule directly to such
Assignee at such place as Assignee may from time to time designate in
writing;
(b) Debtor agrees that it will settle all claims, defenses, setoffs and
counterclaims it may have against Secured Party directly with Secured
Party and will not set up any such claim, defense, setoff or counterclaim
against Assignee, Secured Party hereby agreeing to remain responsible
therefor;
(c) Secured Party shall not be Assignee's agent for any purpose and shall have
no authority to change or modify such Schedule or any related document or
instrument; and
(d) Assignee shall have all of the rights and remedies of Secured Party
hereunder with respect to such assigned Schedule but none of Secured
Party's obligations.
14. MISCELLANEOUS.
Debtor waives all exemptions. Secured Party may correct patent errors herein and
fill in such blanks as serial numbers, date of first payment and the like. Any
provisions hereof contrary to, prohibited by or invalid under applicable laws or
regulations shall be inapplicable and deemed omitted herefrom, but shall not
invalidate the remaining provisions hereof.
Debtor and Secured Party each hereby waive any right to a trial by jury in any
action or proceeding with respect to, in connection with, or arising out of this
Security Agreement, or any note or document delivered pursuant to this Security
Agreement. Except as otherwise provided herein or by applicable law, the Debtor
shall have no right to prepay the indebtedness described in any Schedule. Debtor
acknowledges receipt of a true copy and waives acceptance hereof.
If Debtor is a corporation, this Security Agreement is executed pursuant to
authority of its Board of Directors. Except where the context otherwise
requires, "Debtor" and "Secured Party" include the heirs, executors or
administrators, successors or assigns of those parties; nothing herein shall
authorize Debtor to assign this Security Agreement or its rights in and to the
Collateral. If more than one Debtor executes this Security Agreement, their
obligations under this Security Agreement shall be joint and several.
If at any time this transaction would be usurious under applicable law, then
regardless of any provision contained in this Security Agreement or in any other
agreement made in connection with this transaction, it is agreed that:
(a) the total of all consideration which constitutes interest under applicable
law that is contracted for, charged or received upon this Security
Agreement or any such other agreement shall under no circumstances exceed
the maximum rate of interest authorized by applicable law and any excess
shall be credited to the Debtor; and
(b) If Secured Party elects to accelerate the maturity of, or if Secured Party
permits Debtor to prepay the Obligations described in Paragraph 3, any
amounts which because of such action would constitute interest may never
include more than the maximum rate of interest authorized by applicable law
and any excess interest, if any, provided for in this Security Agreement or
otherwise, shall be credited to Debtor automatically as of the date of
acceleration or prepayment.
Debtor hereby agrees to indemnify Secured Party and hold Secured Party harmless
from and against any liability, loss, damage, suit, action or proceeding ever
suffered or incurred by Secured Party as the result of Debtor's failure to
observe, perform or discharge Debtor's duties hereunder. Additionally, if any
taxes (excluding taxes imposed upon or measured by the net income of Secured
Party, but including, without limitation, any intangibles taxes, stamp taxes,
recording taxes, documentary taxes or franchise taxes) shall be payable by
Secured Party or Debtor on account of the execution or delivery of this Security
Agreement, or the execution, delivery, issuance or recording of any of the other
Loan Documents, or the creation of any of the Obligations hereunder, by reason
of any existing or hereafter enacted federal or state statute, Debtor will pay
all such taxes, including, but not limited to, any interest and penalties
thereon, and will indemnify and hold Secured Party harmless from and against
liability in connection therewith. The obligations of Debtor under this
Paragraph shall survive the payment in full of the Obligations and the
termination of this Security Agreement.
This Security Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
All notices, requests and demands to or upon a party hereto shall be in writing
and shall be sent by certified or registered mail, return receipt requested,
personal delivery against receipt or by telecopier or other facsimile
transmission and, unless otherwise expressly provided herein, shall be deemed to
have been validly served, given or delivered when delivered against receipt or
three (3) business days after deposit in the U.S. mail, postage prepaid, or in
the case of facsimile transmission, when received at the office of the noticed
party, addressed as follows:
(A) If to Secured Party: The CIT Group/Equipment
Financing, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: VP Credit
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(B) If to Debtor: Coast Hotels and Casinos, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Telecopier: ________________
with copies to: Coast Resorts, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by like notice
given in accordance with this Paragraph (and Debtor shall be authorized to
designate another address for Coast Resorts, Inc.). Any written notice that is
not sent in conformity with the provisions hereof shall nevertheless be
effective on the date that such notice is actually received by the noticed
party.
This Security Agreement and the other Loan Documents, together with all other
instruments, agreements and certificates executed by the parties in connection
therewith or with reference thereto, embody the entire understanding and
agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings and
inducements, whether express or implied, oral or written.
This Security Agreement has been delivered at, and shall be effective when
accepted by Secured Party in Atlanta, Georgia. This Security Agreement shall be
governed by and construed in accordance with the laws of the State of Nevada.
Debtor waives (i) presentment, demand and protest and notice of presentment,
protest, default, non payment, maturity, release, compromise, settlement,
extension or renewal of any or all guaranties at any time held by Secured Party
on which Debtor may in any way be liable and hereby ratifies and confirms
whatever Secured Party may do in this regard; (ii) any right Debtor may have
upon payment in full of the Obligations to require Secured Party to terminate
its security interest in the Collateral or in any other property of Debtor until
termination of this Security Agreement in accordance with its terms and the
execution by Debtor, and by any person whose loans to Debtor are used in whole
or in part to satisfy the Obligations, of any agreement indemnifying Secured
Party from any loss or damage Secured Party may incur as the result of
dishonored checks or other items of payment received by Secured Party from
Debtor; and (iii) notice of acceptance hereof.
15. SPECIAL PROVISIONS.
Prepayment of the obligations under any Schedule shall be permitted as set forth
in such Schedule.
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Dated as of October 24, 1996
Secured Party: Debtor:
THE CIT GROUP/EQUIPMENT FINANCING, INC. COAST HOTELS AND CASINOS, INC.
By /s/ ▇.▇. ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇.▇. ▇▇▇▇▇▇
Senior Credit Operations
Title Manager Title President & CEO
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