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SECURITY AGREEMENT
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EXHIBIT D TO PARTICIPATION AGREEMENT
FORM OF SECURITY AGREEMENT AND ASSIGNMENT OF LEASE
dated as of May 28, 1999
between
FIRST SECURITY TRUST COMPANY OF NEVADA,
not in its individual capacity but solely
as Trustee,
and
XXXXXX FINANCIAL LEASING, INC.,
as Agent
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SECURITY AGREEMENT AND ASSIGNMENT OF LEASE
THIS SECURITY AGREEMENT AND ASSIGNMENT OF LEASE (this "Security
Agreement"), dated as of May 28, 1999, is made by FIRST SECURITY TRUST COMPANY
OF NEVADA, not in its individual capacity but solely as Trustee ("Grantor")
under that certain Trust Agreement dated as of May 28, 1999, between
Stratosphere Gaming Corp. and Grantor, in favor of XXXXXX FINANCIAL LEASING,
INC., as Agent ("Agent") for the Lenders.
WITNESSETH:
WHEREAS, Grantor, Agent, Lenders, Guarantor and Stratosphere Gaming
Corp., a Nevada corporation, as Lessee ("Lessee"), have entered into that
certain Participation Agreement, dated as of May 28, 1999 (as amended, modified
or supplemented from time to time, the "Participation Agreement"); and
WHEREAS, concurrently herewith pursuant to the Participation Agreement,
(i) Grantor will obtain Loans from Lenders pursuant to the Loan Agreement, the
proceeds of which will be used to provide funding for the purchase of certain
items of Equipment, and (ii) Grantor, as lessor, and Lessee, as lessee, are
entering into the Lease; and
WHEREAS, it is a condition precedent to the consummation by Lenders of
the transactions to be consummated on each Advance Date that Grantor execute and
deliver this Security Agreement as security for Grantor's obligations under the
Loan Agreement; and
WHEREAS, it is in the best interests of Grantor that the transactions
contemplated by the Operative Documents occur; and
WHEREAS, Grantor has duly authorized the execution, delivery and
performance of this Security Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce Lenders to
enter into the transactions contemplated by the Operative Documents, Grantor
agrees as follows. ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Security Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Collateral" is defined in Section 2.1.
"Secured Obligations" is defined in Section 2.2.
SECTION 1.2. Participation Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Security
Agreement, including its preamble and recitals, have the meanings provided in
Appendix 1 to the Participation Agreement.
SECTION 1.3. UCC Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the UCC are
used in this Security Agreement, including its preamble and recitals, with such
meanings.
ARTICLE II
SECURITY INTEREST
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SECTION 2.1. Grant of Security. Grantor hereby assigns and pledges to
Agent, and hereby grants to Agent, for the benefit of Lenders, a security
interest in and to all of the following, whether now existing or hereafter
arising or acquired (the "Collateral"):
(I) ALL OF GRANTOR'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER EACH ITEM
OF EQUIPMENT;
(II) ALL OF GRANTOR'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER EACH XXXX
OF SALE AND EACH CERTIFICATE OF ACCEPTANCE;
(III) ALL OF GRANTOR'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THE
PARTICIPATION AGREEMENT AND THE LEASE, INCLUDING THE SECURITY INTEREST GRANTED
THEREUNDER IN FAVOR OF GRANTOR AND INCLUDING ALL RIGHTS TO RECEIVE PAYMENTS
THEREUNDER (INCLUDING RENT) OTHER THAN EXCLUDED AMOUNTS;
(IV) ALL OF GRANTOR'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THE
GUARANTY, THE SECURITY DOCUMENTS AND THE OTHER OPERATIVE DOCUMENTS;
(V) ALL OF GRANTOR'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER ANY AND ALL
CONTRACTS NECESSARY TO OPERATE AND MAINTAIN THE EQUIPMENT, OR ANY PORTION
THEREOF;
(VI) ALL BOOKS, RECORDS, WRITINGS, DATABASES, INFORMATION AND OTHER PROPERTY
RELATING TO, USED OR USEFUL IN CONNECTION WITH, EVIDENCING, EMBODYING,
INCORPORATING OR REFERRING TO, ANY OF THE FOREGOING; AND
(VII) ALL PRODUCTS, ACCESSIONS, RENTS, ISSUES, PROFITS, RETURNS, INCOME AND
PROCEEDS OF AND FROM ANY AND ALL OF THE FOREGOING COLLATERAL (INCLUDING PROCEEDS
WHICH CONSTITUTE PROPERTY OF THE TYPES DESCRIBED IN THE FOREGOING CLAUSES OF
THIS SECTION 2.1, PROCEEDS DEPOSITED FROM TIME TO TIME IN ANY LOCKBOXES OF
GRANTOR, AND, TO THE EXTENT NOT OTHERWISE INCLUDED, ALL PAYMENTS UNDER INSURANCE
(WHETHER OR NOT AGENT IS THE LOSS PAYEE THEREOF), OR ANY INDEMNITY, WARRANTY OR
GUARANTY PAYABLE BY REASON OF LOSS OR DAMAGE TO OR OTHERWISE WITH RESPECT TO ANY
OF THE FOREGOING COLLATERAL).
Grantor hereby assigns, transfers and conveys to Agent all payments
(except Excluded Amounts) payable by Lessee under the Lease.
SECTION 2.2. Security for Obligations. This Security Agreement secures
the payment of all obligations of Grantor now or hereafter existing under the
Notes, the Loan Agreement and any other Operative Document to which it is a
party, whether for principal, interest, costs, fees, expenses or otherwise, and
all other obligations of Grantor to Lenders howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent or now or
hereinafter existing or due or to become due (all such obligations being the
"Secured Obligations").
SECTION 2.3. Continuing Security Interest; Transfer of Notes. This
Security Agreement shall create a continuing security interest in the Collateral
and shall
(A) REMAIN IN FULL FORCE AND EFFECT UNTIL THE PAYMENT IN FULL OF ALL
SECURED OBLIGATIONS AND THE TERMINATION OF THE COMMITMENTS AND ANY OTHER
COMMITMENTS OF LENDERS TO OR FOR THE BENEFIT OF GRANTOR;
(B) BE BINDING UPON GRANTOR, ITS SUCCESSORS, TRANSFEREES AND ASSIGNS; AND
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(C) INURE, TOGETHER WITH THE RIGHTS AND REMEDIES OF AGENT HEREUNDER, TO THE
BENEFIT OF AGENT AND ITS SUCCESSORS, TRANSFEREES AND ASSIGNS.
Without limiting the generality of the foregoing clause (c), each
transferee of a Note shall, upon such transfer, become vested with all the
rights and benefits in respect thereof granted under any Operative Document
(including this Security Agreement) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer. Upon the payment in full and
performance of all Secured Obligations and the termination of the Commitments,
and any other commitments of Lenders to Grantor, the security interest granted
herein shall terminate and all rights to the Collateral shall revert to Grantor.
Upon any such termination, Agent will, on behalf of Lenders and at Grantor's
sole expense, execute and deliver to Grantor such documents as Grantor shall
reasonably request to evidence such termination.
SECTION 2.4. Grantor Remains Liable. Anything herein to the contrary
notwithstanding
(A) GRANTOR SHALL REMAIN LIABLE UNDER THE CONTRACTS AND
AGREEMENTS INCLUDED IN THE COLLATERAL TO THE EXTENT SET FORTH THEREIN, AND SHALL
PERFORM ALL OF ITS DUTIES AND OBLIGATIONS UNDER SUCH CONTRACTS AND AGREEMENTS TO
THE SAME EXTENT AS IF THIS SECURITY AGREEMENT HAD NOT BEEN EXECUTED;
(B) THE EXERCISE BY AGENT OF ANY OF ITS RIGHTS HEREUNDER SHALL NOT RELEASE
GRANTOR FROM ANY OF ITS DUTIES OR OBLIGATIONS UNDER ANY SUCH CONTRACTS OR
AGREEMENTS INCLUDED IN THE COLLATERAL; AND
(C) AGENT SHALL NOT HAVE ANY OBLIGATION OR LIABILITY UNDER ANY SUCH
CONTRACTS OR AGREEMENTS INCLUDED IN THE COLLATERAL BY REASON OF THIS SECURITY
AGREEMENT, NOR SHALL AGENT BE OBLIGATED TO PERFORM ANY OF THE OBLIGATIONS OR
DUTIES OF GRANTOR THEREUNDER OR TO TAKE ANY ACTION TO COLLECT OR ENFORCE ANY
CLAIM FOR PAYMENT ASSIGNED HEREUNDER.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Grantor represents and
warrants unto Agent as set forth in this Article.
SECTION 3.1.1. Ownership, No Liens, etc. Grantor owns the Collateral
free and clear of any lien, security interest, charge or encumbrance except for
the security interest created by this Security Agreement, Permitted Liens and
Lessee's interest in the Lease.
SECTION 3.1.2. Validity, etc. This Security Agreement creates a valid
first priority security interest in the Collateral, securing the payment of the
Secured Obligations, and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken. The Assigned
Agreements have been duly authorized, executed and delivered by the parties
thereto, have not been amended or otherwise modified, are in full force and
effect, and are binding upon and enforceable against the parties thereto in
accordance with their terms.
SECTION 3.1.3. Authorization, Approval, etc. No authorization, approval
or other action by, and no notice to or filing with, any Governmental Authority
is required either
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(A) FOR THE GRANT BY GRANTOR OF THE SECURITY INTEREST GRANTED
HEREBY OR FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS SECURITY AGREEMENT
BY GRANTOR; OR
(B) FOR THE PERFECTION OF OR THE EXERCISE BY AGENT OF ITS RIGHTS AND
REMEDIES HEREUNDER, EXCEPT FOR FILINGS SPECIFIED IN SCHEDULE IV TO THE
PARTICIPATION AGREEMENT.
SECTION 3.1.4. Compliance with Laws. Grantor is in compliance with all
Applicable Law of every Governmental Authority, the non-compliance with which
might have a material Adverse Effect.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. Grantor covenants and agrees that, so
long as any portion of the Secured Obligations shall remain unpaid or Lenders
shall have any outstanding Commitments to Grantor, subject to all Applicable
Law, Agent may exercise, in its sole and absolute discretion, any and all rights
and powers set forth in this Section.
SECTION 4.1.1. As to Collateral.
(A) AGENT MAY, AT THE EXPENSE OF GRANTOR, ENDEAVOR TO COLLECT, AS AND WHEN
DUE, ALL AMOUNTS DUE WITH RESPECT TO ANY OF THE COLLATERAL. AGENT, AS ASSIGNEE
HEREUNDER OF THE LEASE, MAY, AT ANY TIME, ENFORCE COLLECTION OF ANY OF THE
COLLATERAL BY SUIT OR OTHERWISE AND SURRENDER, RELEASE, OR EXCHANGE ALL OR ANY
PART THEREOF, OR COMPROMISE OR EXTEND OR RENEW FOR ANY PERIOD (WHETHER OR NOT
LONGER THAN THE ORIGINAL PERIOD) ANY INDEBTEDNESS THEREUNDER OR EVIDENCED
THEREBY,
(B) AGENT IS AUTHORIZED TO ENDORSE, IN THE NAME OF GRANTOR, ANY ITEM,
HOWSOEVER RECEIVED BY AGENT, REPRESENTING ANY PAYMENT ON OR OTHER PROCEEDS OF
ANY OF THE COLLATERAL.
(C) IF A LEASE DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, THEN AGENT,
AS ASSIGNEE HEREUNDER OF THE LEASE MAY DECLARE, IN ITS SOLE AND ABSOLUTE
DISCRETION, A LEASE EVENT OF DEFAULT AND MAY, IN ITS SOLE AND ABSOLUTE
DISCRETION, EXERCISE ANY OR ALL OF THE RIGHTS AND POWERS AND PURSUE ANY OR ALL
OF THE REMEDIES OF LESSOR PURSUANT TO ARTICLE X OF THE LEASE.
SECTION 4.1.2. TRANSFERS AND OTHER LIENS. GRANTOR SHALL NOT:
(A) SELL, ASSIGN (BY OPERATION OF LAW OR OTHERWISE) OR OTHERWISE DISPOSE OF
ANY OF THE COLLATERAL;
(B) CANCEL OR TERMINATE THE ASSIGNED AGREEMENTS OR CONSENT TO OR ACCEPT ANY
CANCELLATION OR TERMINATION THEREOF;
(C) AMEND OR OTHERWISE MODIFY THE ASSIGNED AGREEMENTS OR GIVE ANY CONSENT,
WAIVER OR APPROVAL THEREUNDER, EXCEPT PURSUANT TO SECTION 9.8 OF THE
PARTICIPATION AGREEMENT;
(D) WAIVE ANY DEFAULT UNDER OR BREACH OF THE ASSIGNED AGREEMENTS;
(E) CREATE OR SUFFER TO EXIST ANY LIEN OR OTHER CHARGE OR ENCUMBRANCE UPON
OR WITH
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RESPECT TO ANY OF THE COLLATERAL TO SECURE INDEBTEDNESS OF ANY PERSON OR
ENTITY, EXCEPT FOR THE SECURITY INTEREST CREATED BY THIS SECURITY AGREEMENT,
PERMITTED LIENS OR LESSEE'S INTEREST IN THE LEASE; OR
(F) TAKE ANY OTHER ACTION IN CONNECTION WITH THE ASSIGNED AGREEMENTS WHICH
WOULD IMPAIR THE VALUE OF THE INTEREST OR RIGHTS OF GRANTOR THEREUNDER OR WHICH
WOULD IMPAIR THE INTEREST OR RIGHTS OF AGENT.
SECTION 4.1.3. Further Assurances, etc. Grantor agrees that, from time
to time and at its own expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that may be necessary or
desirable, or that Agent may request, in order to perfect, preserve and protect
any security interest granted or purported to be granted hereby or to enable
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, Grantor will:
(A) EXECUTE AND FILE OR RECORD SUCH INSTRUMENTS OR NOTICES AS MAY BE
NECESSARY OR DESIRABLE, OR AS AGENT MAY REQUEST, IN ORDER TO PERFECT AND
PRESERVE THE SECURITY INTERESTS AND OTHER RIGHTS GRANTED OR PURPORTED TO BE
GRANTED TO AGENT HEREBY; AND
(B) FURNISH TO AGENT, FROM TIME TO TIME AT AGENT'S REQUEST, STATEMENTS AND
SCHEDULES FURTHER IDENTIFYING AND DESCRIBING THE COLLATERAL AND SUCH OTHER
REPORTS IN CONNECTION WITH THE COLLATERAL AS AGENT MAY REASONABLY REQUEST, ALL
IN REASONABLE DETAIL.
ARTICLE V
AGENT
SECTION 5.1. Agent Appointed Attorney-in-Fact. Subject to all
Applicable Law, Grantor hereby irrevocably appoints Agent as Grantor's
attorney-in-fact, with full authority in the place and stead of Grantor and in
the name of Grantor or otherwise, from time to time in Agent's discretion, after
the occurrence of a Loan Event of Default (subject to Section 6.2 of the Loan
Agreement) to take any action and to execute any instrument which Agent may deem
necessary or advisable to accomplish the purposes of this Security Agreement,
including, without limitation:
(A) TO ASK, DEMAND, COLLECT, XXX FOR, RECOVER, COMPROMISE, RECEIVE AND GIVE
ACQUITTANCE AND RECEIPTS FOR MONEYS DUE AND TO BECOME DUE UNDER OR IN RESPECT OF
ANY OF THE COLLATERAL;
(B) TO RECEIVE, ENDORSE, AND COLLECT ANY DRAFTS OR OTHER INSTRUMENTS,
DOCUMENTS AND CHATTEL PAPER, IN CONNECTION WITH CLAUSE (A) ABOVE;
(C) TO FILE ANY CLAIMS OR TAKE ANY ACTION OR INSTITUTE ANY PROCEEDINGS
WHICH AGENT MAY DEEM NECESSARY OR DESIRABLE FOR THE COLLECTION OF ANY OF THE
COLLATERAL OR OTHERWISE TO ENFORCE THE RIGHTS OF AGENT WITH RESPECT TO ANY OF
THE COLLATERAL; AND
(D) TO PERFORM THE AFFIRMATIVE OBLIGATIONS OF GRANTOR HEREUNDER (INCLUDING
ALL OBLIGATIONS OF GRANTOR PURSUANT TO SECTION 4.1.3).
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Grantor hereby acknowledges, consents and agrees that the power of
attorney granted pursuant to this Section is irrevocable and coupled with an
interest.
SECTION 5.2. Agent May Perform. If Grantor fails to perform any
agreement contained herein, Agent may itself perform, or cause performance of,
such agreement, and the expenses of Agent incurred in connection therewith shall
be payable by Grantor pursuant to Section 6.2.
SECTION 5.3. Agent Has No Duty. In addition to, and not in limitation
of, Section 2.4, the powers conferred on Agent hereunder are solely to protect
Agent's interest in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for the reasonable care of any Collateral in
its possession and the accounting for moneys actually received by it hereunder,
Agent shall not have any duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4. Reasonable Care. Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, that Agent shall be deemed to have exercised reasonable care
in the custody and preservation of any of the Collateral if it takes such action
for that purpose as Grantor reasonably requests in writing at times other than
upon the occurrence and during the continuance of any Loan Event of Default, but
failure of Agent to comply with any such request at any time shall not in itself
be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Loan Event of Default shall have
occurred and be continuing, subject to all Applicable Law:
(A) AGENT MAY EXERCISE IN RESPECT OF THE COLLATERAL, IN ADDITION TO OTHER
RIGHTS AND REMEDIES PROVIDED FOR HEREIN OR OTHERWISE AVAILABLE TO IT, ALL THE
RIGHTS AND REMEDIES OF A SECURED PARTY ON DEFAULT UNDER THE UCC (WHETHER OR NOT
THE UCC APPLIES TO THE AFFECTED COLLATERAL), AND ALSO MAY EXERCISE ANY AND ALL
RIGHTS AND REMEDIES OF GRANTOR UNDER OR IN CONNECTION WITH THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL RIGHTS OF GRANTOR TO DEMAND OR
OTHERWISE REQUIRE PAYMENT OF ANY AMOUNT UNDER, OR PERFORMANCE OF ANY PROVISION
OF, THE ASSIGNED AGREEMENTS. GRANTOR AGREES THAT, TO THE EXTENT NOTICE OF SALE
SHALL BE REQUIRED BY LAW, AT LEAST 10 DAYS' PRIOR NOTICE TO GRANTOR OF THE TIME
AND PLACE OF ANY PUBLIC SALE OR THE TIME AFTER WHICH ANY PRIVATE SALE IS TO BE
MADE SHALL CONSTITUTE REASONABLE NOTIFICATION. AGENT SHALL NOT BE OBLIGATED TO
MAKE ANY SALE OF COLLATERAL REGARDLESS OF WHETHER NOTICE OF SALE HAS BEEN GIVEN.
AGENT MAY ADJOURN ANY PUBLIC OR PRIVATE SALE FROM TIME TO TIME BY ANNOUNCEMENT
AT THE TIME AND PLACE FIXED THEREFOR, AND SUCH SALE MAY, WITHOUT FURTHER NOTICE,
BE MADE AT THE TIME AND PLACE TO WHICH IT WAS SO ADJOURNED.
(B) ALL PAYMENTS RECEIVED BY GRANTOR UNDER OR IN CONNECTION WITH THE
ASSIGNED AGREEMENTS OR OTHERWISE IN RESPECT OF THE COLLATERAL SHALL BE RECEIVED
IN TRUST FOR THE BENEFIT OF AGENT, SHALL BE SEGREGATED FROM OTHER FUNDS OF
GRANTOR, AND SHALL BE FORTHWITH PAID OVER TO AGENT IN THE SAME FORM AS SO
RECEIVED (WITH ANY NECESSARY ENDORSEMENT).
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(C) ALL CASH PROCEEDS RECEIVED BY AGENT IN RESPECT OF ANY SALE OF,
COLLECTION FROM, OR OTHER REALIZATION UPON ALL OR ANY PART OF THE COLLATERAL
MAY, IN THE DISCRETION OF AGENT, BE HELD BY AGENT AS COLLATERAL FOR, AND/OR THEN
OR AT ANY TIME THEREAFTER APPLIED (AFTER PAYMENT OF ANY AMOUNTS PAYABLE TO AGENT
PURSUANT TO SECTION 6.2) IN WHOLE OR IN PART BY AGENT AGAINST, ALL OR ANY PART
OF THE SECURED OBLIGATIONS IN SUCH ORDER AS AGENT SHALL ELECT. ANY SURPLUS OF
SUCH CASH OR DASH PROCEEDS HELD BY AGENT AND REMAINING AFTER PAYMENT IN FULL OF
ALL THE SECURED OBLIGATIONS SHALL BE PAID OVER TO GRANTOR OR TO WHOMSOEVER MAY
BE LAWFULLY ENTITLED TO RECEIVE SUCH SURPLUS.
SECTION 6.2. Indemnity and Expenses.
(A) GRANTOR AGREES TO INDEMNIFY AGENT FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES AND LIABILITIES ARISING OUT OF OR RESULTING FROM THIS SECURITY AGREEMENT
(INCLUDING, WITHOUT LIMITATION, ENFORCEMENT OF THIS SECURITY AGREEMENT), EXCEPT
CLAIMS, LOSSES OR LIABILITIES RESULTING FROM AGENT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
(B) GRANTOR WILL UPON DEMAND PAY TO AGENT THE AMOUNT OF ANY AND ALL
REASONABLE EXPENSES, INCLUDING THE REASONABLE FEES AND DISBURSEMENTS OF ITS
COUNSEL AND OF ANY EXPERTS AND AGENTS, WHICH AGENT MAY INCUR IN CONNECTION WITH
(I) THE ADMINISTRATION OF THIS SECURITY AGREEMENT,
(II) THE CUSTODY, PRESERVATION, USE OR OPERATION OF, OR
THE SALE OF, COLLECTION FROM, OR OTHER REALIZATION UPON, ANY OF THE
COLLATERAL,
(III) THE EXERCISE OR ENFORCEMENT OF ANY OF THE RIGHTS OF
AGENT HEREUNDER OR
(IV) THE FAILURE BY GRANTOR TO PERFORM OR OBSERVE ANY OF
THE PROVISIONS HEREOF.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Operative Document. This Security Agreement is an
Operative Document executed pursuant to the Participation Agreement and shall
(unless otherwise expressly indicated herein) be construed, administered and
applied in accordance with the terms and provisions thereof.
SECTION 7.2. Amendments; etc. No amendment to or waiver of any
provision of this Security Agreement nor consent to any departure by Grantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by Agent, and then, such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 7.3. Addresses for Notices. Unless otherwise specified herein,
all notices, requests, demands or other communications to or upon the respective
parties hereto shall be delivered in accordance with, and shall be deemed to
have been given as provided in, Section 9.3 of the Participation Agreement.
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SECTION 7.4. Section Captions. Section captions used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
SECTION 7.5. Severability. Wherever possible, each provision of this
Security Agreement shall be interpreted in such manner as to be effective and
valid under Applicable Law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
SECTION 7.6. Counterparts. This Security Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same agreement.
SECTION 7.7. Governing Law, Entire Agreement, etc. THIS SECURITY
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEVADA WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF,
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEVADA. THIS
SECURITY AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
[signature page follows]
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IN WITNESS WHEREOF, Grantor has caused this Security Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
FIRST SECURITY TRUST COMPANY OF
NEVADA, not in its individual
capacity but solely as Trustee under
the Trust Agreement
By:______________________________
Name:
Title:
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XXXXXX FINANCIAL LEASING, INC., as
Agent under the Participation
Agreement
By:______________________________
Name:
Title:
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