EXHIBIT 10.29
J8uRopes & Xxxx
Draft of 11/20/97
ITEM 3.1.1
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SECURITY AGREEMENT
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THIS SECURITY AGREEMENT is made and entered into this 21st day of November,
1997, between COAST HOTELS AND CASINOS, INC., a Nevada corporation (the
"DEBTOR"), and FIRSTAR BANK OF MINNESOTA, N.A., as trustee for the benefit of
the holders of the Notes (as defined below) ("SECURED PARTY").
RECITALS
A. NOTES. Debtor is the issuer of those certain $16,800,000 10 7/8%
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First Mortgage Notes due 2001 (the "NOTES") pursuant to that certain Indenture
dated as of November __, 1997 (the "INDENTURE") by and among Debtor, Coast
Resorts, Inc., a Nevada corporation, as guarantor, and Secured Party. Any
capitalized term used in this Security Agreement without definition, but defined
in the Indenture, shall have the same meaning here as in the Indenture.
B. PURPOSE. As a material inducement to Secured Party to enter into the
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Indenture, the Debtor has agreed to execute this Security Agreement in favor of
Secured Party and to pledge all its right, title and interest in the collateral
described herein to Secured Party.
AGREEMENT
Now therefore, in consideration of the above recitals and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. CREATION OF SECURITY INTEREST. Debtor hereby assigns, pledges and
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grants to Secured Party a security interest in all of Debtor's right, title and
interest in and to the collateral described in Section 2 hereinbelow (the
"COLLATERAL") in each case whether now owned or hereafter acquired by Debtor in
order to secure the payment and performance of the obligations of Debtor to
Secured Party described in Section 3 hereinbelow.
2. COLLATERAL. The Collateral under this Security Agreement is:
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a) all of Debtor's personal property, goods, equipment, supplies,
building and other materials of every nature whatsoever and all other
personal property, including, but not limited to, all gaming and general
equipment and devices which are or are to be installed and used in
connection with the operation of the Orleans Hotel and Casino, the Barbary
Coast Hotel and Casino and the Gold Coast Hotel and Casino (collectively,
the "HOTELS"), all computer equipment, calculators, adding machines, and
gaming tables,
video game and slot machines and any other electronic equipment of every
nature used or located at the Hotels (all of the foregoing property and
similar or after-acquired property included as Collateral under Section
2(g) below being hereinafter referred to as "EQUIPMENT");
(b) all of Debtor's accounts and accounts receivable, including,
without limitation, all rights to payment for goods sold or leased or for
services rendered which are not evidenced by an instrument or chattel
paper, all other present or future rights for money due or to become due,
all of Debtor's chattel paper, instruments, promissory notes, markers and
general intangibles for money due or to become due of any kind, in each
case whether now existing or hereafter arising and wherever arising and
whether or not earned by performance (collectively, the "RECEIVABLES"),
other general intangibles, documents of title, warehouse receipts, leases,
deposit accounts: including, without limitation, money, tax refund claims,
partnership interests, indemnification and other similar claims and
contract rights, the Contracts and Documents (as such term is defined in
the Collateral Assignment, dated as of January 30, 1996, between the Debtor
and American Bank National Association, as trustee) permits and licenses:
including, without limitation, any licenses held or to be held by Debtor
necessary to operate the Hotels, franchises, certificates, stock, and all
rights in, to and under all security agreements, mortgages, deeds of trust,
guarantees, leases and other agreements or contracts securing or otherwise
relating to any of the foregoing (all of the foregoing property, including,
without limitation, the Receivables, and similar or after-acquired property
included as Collateral under Section 2(g) below being hereinafter referred
to as "INTANGIBLES");
(c) all of the trademarks and service marks now held or hereafter
acquired by Debtor, which are registered in the United States Patent and
Trademark Office or in any similar office or agency of the United States or
any state thereof or any political subdivision thereof and any application
for such trademarks and service marks, as well as any unregistered marks
used by Debtor in the United States and trade dress including logos,
designs, trade names, business names, fictitious business names and other
business identifiers in connection with which any of these registered or
unregistered marks are used in the United States ("MARKS") together with
the registration and right to renewals thereof, and the goodwill of the
business of Debtor symbolized by the Marks and all licenses associated
therewith;
(d) all United States copyrights which Debtor now or hereafter has
registered with the United States Copyright Office, as well as any
application for a United States copyright registration now or hereafter
made with the United States Copyright Office by Debtor ("COPYRIGHTS") or
United States patent to which Debtor now or hereafter has title and any
divisions or continuations thereof, as well as any application for a Untied
States patent now or hereafter made by Debtor, and all reissues, renewals
or extension thereof;
(e) all patents and patent applications, which are registered in the
United States
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Patent and Trademark Office or any similar office or agency of the United
States or any state thereof or political subdivision thereof ("PATENTS")
together with the registration and right to renewals thereof, and the
goodwill of the business of Debtor symbolized by the Patents;
(f) all computer programs of Debtor and all intellectual property
rights therein and all other proprietary information of Debtor, including,
but not limited to, trade secrets;
(g) the Collateral includes all items described in this Section 2,
whether now owned or hereafter at any time acquired by Debtor and wherever
located, and includes all replacements, additions, parts, appurtenances,
accessions, substitutions, repairs, proceeds, products, offspring, rents
and profits, relating thereto or therefrom, and all documents, records,
ledger sheets and files of Debtor relating thereto. Proceeds hereunder
include (i) whatever is now or hereafter receivable or received by Debtor
upon the sale, exchange, collection or other disposition of any item of
Collateral, whether voluntary or involuntary, whether such proceeds
constitute Equipment, Intangibles, or other assets; (ii) any such items
which are now or hereafter acquired by Debtor with any proceeds of
Collateral hereunder; and (iii) any insurance or payments under any
indemnity, warranty or guaranty now or hereafter payable by reason of loss
or damage or otherwise with respect to any item of Collateral or any
proceeds thereof. Notwithstanding the foregoing, "Collateral",
"Equipment", "Receivables", "Intangibles" shall not include any of the
following assets (the "EXCLUDED ASSETS"): (i) any aircraft owned by the
Company and any equipment subject to Liens in existence as of the date of
the 1996 Indenture (as defined in the Indenture) securing Existing
Indebtedness (as defined in the Indenture); (ii) any agreement with a third
party that, pursuant to its terms, prohibits the grant of a lien on such
agreement; provided that the Company shall use its best efforts to obtain
such third party's consent to assignment of all material agreements; (iii)
Gaming Licenses (as defined in the Indenture) or any other governmental
approval or permit, to the extent that, under the terms and conditions of
such approval or under applicable law, it cannot be subjected to a Lien in
favor of the Secured Party without the approval of the relevant
governmental authority, to the extent that such approval has not been
obtained; and (iv) any Equipment (A) the purchase of which was not financed
with the proceeds of the Notes and (B) that Debtor is permitted to encumber
and has encumbered pursuant to clause (ii) of the second paragraph of
Section 4.9 of the Indenture and (C) in which Secured Party is prohibited
from maintaining a security interest pursuant to the terms of the FF&E
Financing Agreement (as defined below) encumbering such Equipment.
3. SECURED OBLIGATIONS OF DEBTOR. The Collateral secures and shall
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hereafter secure (i) the payment by Debtor to the Holders or Secured Party of
all indebtedness now or hereafter owed to Secured Party by Debtor in connection
with the transactions related to the Notes and the Indenture (the "COAST
FINANCING"), whether at stated maturity, by acceleration or otherwise,
including, without limitation, Debtor's obligations under the Indenture, the
Notes or any related documents securing the obligations thereunder, together
with any interest thereon,
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payments for early termination, fees, expenses, increased costs, indemnification
or otherwise, in connection therewith and extensions, modifications and renewals
thereof, (ii) the performance by Debtor of all other obligations and the
discharge of all other liabilities of Debtor to Secured Party of every kind and
character arising from the Coast Financing, whether direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising, joint,
several and joint and several, and whether created under this Security Agreement
or any other agreement to which Debtor and Secured Party are parties, (iii) any
and all sums advanced by Secured Party in order to preserve the Collateral or
preserve Secured Party's security interest in the Collateral (or the priority,
thereof) and (iv) the expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing of or realizing on the Collateral, of any
proceeding for the collection or enforcement of any indebtedness, obligations or
liabilities of Secured Party referred to above, or of any exercise by Secured
Party of its rights hereunder, together with reasonable attorneys' fees and
disbursements and court costs (collectively, the "SECURED OBLIGATIONS"). All
payments and performance by Debtor with respect to any Secured Obligations shall
be in accordance with the terms under which said indebtedness, obligations and
liabilities were or are hereafter incurred or created.
4. DEBTOR'S REPRESENTATIONS AND WARRANTIES. Debtor represents and
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warrants that:
(a) Debtor is (or, to the extent that the Collateral is acquired
after the date hereof, will be) the sole legal and beneficial owner of the
Collateral and has exclusive possession and control thereof; there are no
security interests in, liens, charges or encumbrances on, or adverse claims
of title to, or any other interest whatsoever in, the Collateral or any
portion thereof except Permitted Liens (as defined in the Indenture,
including without limitation Liens that are created by this Security
Agreement); and no financing statement, notice of lien, mortgage, deed of
trust or instrument similar in effect covering the Collateral or any
portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on
file in any public office, except as relates to Permitted Liens, including
without limitation liens as may have been filed in favor of Secured Party
relating to this Security Agreement or related agreements, or for which
duly executed termination statements have been delivered to Secured Party
for filing;
(b) Debtor has full right, power and authority to execute, deliver
and perform this Security Agreement. This Security Agreement constitutes a
legally valid and binding obligation of Debtor, enforceable against Debtor
in accordance with its terms. Subject to the completion of the items
identified in Section 4(c) below (and except to the extent that
registration of motor vehicles, possession of checks, instruments not
required to be delivered under Section 5(d) and money are required for
perfection and except with respect to deposit accounts), the provisions of
this Security Agreement are effective to create in favor of Secured Party a
valid and enforceable first, prior and perfected security interest in the
Collateral subject only to Permitted Liens;
(c) except for (i) the filing or recording of the financing
statements and fixture filings done concurrently with the execution and
delivery hereof, (ii) the actual taking of possession of instruments
constituting Collateral by the Trustee hereunder or, if the
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Collateral is required under the 1996 Indenture to be delivered to the 1996
Notes Trustee or is in the possession of the 1996 Notes Trustee, the
providing of such notice to the Secured Party or the taking of such other
actions as are necessary to perfect the Secured Party's security interest
in such Collateral, (iii) all consents received and actions taken in
connection with the closing of the offering of the Notes, (iv) the actions
contemplated by the parenthetical in the second sentence of Section 4(b),
and (v) any filings necessary to perfect Secured Party's security interest
in any Patent, Trademark or Copyright, no authorization, approval or other
action by, no notice to or registration or filing with, any person or
entity, including without limitation, any stockholder or creditor of Debtor
or any governmental authority or regulatory body is required (x) for the
grant by Debtor of the security interest in the Collateral pursuant to this
Security Agreement or for the execution, delivery or performance of this
Security Agreement by Debtor, (y) for the perfection or maintenance of such
security interest created hereby, including the first priority nature of
such security interest subject to Permitted Liens, or (except for notices
required under the UCC) the exercise by Secured Party of the rights and
remedies provided for in this Security Agreement (other than any required
governmental consent or filing with respect to any Patents, Trademarks,
Copyrights, governmental claims, tax refunds, licenses or permits; the
exercise of remedies requiring prior court approval, notices, consents,
approvals or authorizations in connection with the sale of any securities
under laws affecting the offering and sale of securities generally), or (z)
for the enforceability of such security interest against third parties,
including, without limitation, judgment lien creditors;
(d) Except as indicated on Schedule 1, Debtor does not do business,
and for the previous five years has not done business, under any fictitious
business names or trade names;
(e) the Collateral has not been and will not be used or bought by
Debtor for personal, family or household purposes. In addition, the
Collateral does not include crops, timber, farm products, minerals or the
like or accounts resulting from the sale of such minerals at the wellhead
or minehead;
(f) (i) Debtor's chief executive office is located at 0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, Debtor has no places of business
other than such address and other places of business indicated on Schedule
2 and the Collateral is now and will at all times hereafter be located at
Debtor's places of business or as Debtor may otherwise notify Secured Party
in writing;
(g) Debtor does not maintain any deposit accounts other than those
set forth in Exhibit "A" hereto and Debtor is not now indebted to any
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organization with which Debtor maintains a deposit account;
(h) Except for purchases in the ordinary course of business, Debtor
has not purchased any Collateral, other than for cash, within twenty-one
(21) days prior to the date hereof;
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(i) all originals of all promissory notes, other instruments or
chattel paper which evidence Receivables (other than checks, which Debtor
promptly shall deposit into one of the deposit accounts encumbered
hereunder, or markers, received by Debtor in the ordinary course of
business) with a face or fair market value not to exceed, in the aggregate
$250,000, have been delivered to Secured Party (with all necessary or
appropriate endorsements) or, if such notes, instruments or chattel paper
are required under the 1996 Indenture to be delivered to the 1996 Notes
Trustee or are in the possession of the 1996 Notes Trustee, such notice has
been provided to the Secured Party or any such other actions have been
taken as are necessary to perfect the Secured Party's security interest in
such notes, instruments or chattel paper;
(j) none of the execution, delivery and performance of this Security
Agreement by Debtor, the consummation of the transactions herein
contemplated, the fulfillment of the terms hereof or the exercise by
Secured Party of any rights or remedies hereunder will constitute or result
in a breach of any of the terms or provisions of, or constitute a default
under, or constitute an event which with notice or lapse of time or both
will result in a breach of or constitute a default under, any material
agreement, indenture, mortgage, deed of trust, equipment lease, instrument
or other document to which Debtor is a party, conflict with or require
approval, authorization, notice or consent under any material law, order,
rule, regulation, license or permit applicable to Debtor of any court or
any federal or state government, regulatory body or administrative agency,
or any other governmental body having jurisdiction over Debtor or its
properties or require notice, consent, approval or authorization by or
registration or filing with any person or entity (including, without
limitation, any stockholder or creditor of Debtor) other than (i) any
notices to Debtor or any Guarantor from Secured Party required hereunder,
(ii) notices and filings in connection with the perfection of Liens
hereunder and (iii) notices, consents, approvals or authorizations in
connection with the sale of any securities under laws affecting the
offering and sale of securities generally. Except for documents entered
into in connection with Permitted Liens or Indebtedness permitted under the
Indenture, none of the Collateral is subject to any material agreement,
indenture, mortgage, deed of trust, equipment lease, instrument or other
document to which Debtor is a party which may restrict or inhibit Secured
Party's rights or ability to sell or dispose of the Collateral or any part
thereof after the occurrence of an Event of Default (as defined herein);
(k) Debtor represents and warrants that it is the true lawful
exclusive owner or licensee of the Marks listed in Annex 1, except those
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listed as being held under a nonexclusive license, and that said listed
Marks include all the United States federal registrations or applications
registered in the United States Patent and Trademark office and that said
Marks are valid, subsisting and have not been canceled. Debtor represents
and warrants that except as indicated on Annex 1, it owns or is licensed to
use or not prohibited from using all Marks that it uses. Debtor further
warrants that except as indicated on Annex 1, it is aware of no third party
claim that any aspect of Debtor's present or contemplated business
operations infringes or will infringe Debtor's
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Xxxx; and
(l) Debtor represents and warrants that it is the true and lawful
exclusive owner or licensee of all rights in the Patents listed in Annex 2
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hereto and in the Copyrights listed in Annex 3 hereto, that said Patents
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include all the United States patents and applications for United States
patents that Debtor owns and that said Copyrights constitute all the United
States copyrights registered in the United States Copyright Office and
applications, for United States copyrights that it now uses or practices
under. Debtor further warrants that, except as indicated on Annex 2 or 3,
it is aware of no third party claim that any aspect of Debtor's present or
contemplated business operations infringes or will infringe any Patent or
any copyright.
5. COVENANTS OF DEBTOR. Debtor covenants and agrees that:
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(a) Debtor will not move or permit to be moved the Collateral or any
portion thereof to any location other than that set forth in or referred in
Section 4(f) hereof or the respective Hotels or locations established in
compliance with Section 5(b) hereof without the prior written consent of
the Secured Party and the prior filing of a financing statement with the
proper office and in the proper form, to the extent necessary or
appropriate, to perfect or continue the perfection (without loss of
priority) of the security interests created herein, which filing shall be
satisfactory in form, substance and location to Secured Party prior to such
filing; provided, however that (i) Debtor shall be permitted to move assets
pursuant to Section 4.10 of the Indenture and (ii) the foregoing shall not
apply to deposit accounts (so long as Debtor complies with Section 5(c)
below) or any other intangible Collateral or any vehicles included in the
Collateral;
(b) Debtor will not voluntarily or involuntarily change its name,
identity, corporate structure, or location of its chief executive office or
any of its other places of business, unless in any such case (i) Debtor
shall have delivered written notice to Secured Party, (ii) Debtor shall
have executed and caused to be filed financing statements with the proper
offices and in the proper form, to the extent necessary or appropriate, to
perfect or continue the perfection (without loss of priority) of the
security interests created herein, which filing shall be satisfactory in
form, substance and location to Secured Party prior to such filing, and
(iii) Debtor shall have delivered to Secured Party any other documents that
may be required by Secured Party in a form and substance reasonably
satisfactory to Secured Party to perfect or continue the perfection
(without loss of priority) of the security interest created herein subject
to the terms and conditions of the 1996 Indenture and the Intercreditor
Agreement, or Debtor will at all times maintain its status as a citizen of
the United States as provided in Section 4(f) hereof;
(c) Debtor will not establish or create any deposit accounts other
than those set forth in Exhibit "A" without giving Secured Party prior
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written notice;
(d) Debtor will promptly, and in no event later than 21 days after a
request by
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Secured Party, procure or execute and deliver all further instruments and
documents (including, without limitation, notices, legal opinions,
financing statements, mortgagee waivers, landlord disclaimers and
subordination agreements) satisfactory to Secured Party subject to the
terms and conditions of the 1996 Indenture and the Intercreditor Agreement,
and take any other actions which are necessary or, in the judgment of
Secured Party, desirable or appropriate to perfect or to continue the
perfection, priority and enforceability of Secured Party's security
interests in the Collateral, to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Collateral,
to protect the Collateral against the rights, claims or interests of third
persons (other than holders of Permitted Liens), or to effect or to assure
further the purposes and provisions of this Security Agreement, and will
pay all costs incurred in connection therewith. Without limiting the
generality of the foregoing, Debtor will: (i) xxxx conspicuously each item
of chattel paper included in the Collateral with a legend, in form and
substance satisfactory to Secured Party, indicating that such chattel paper
and other contracts are subject to the security interests granted hereby;
(ii) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices as may be
necessary or desirable, which Secured Party may reasonably request in order
to perfect and preserve the perfection and priority of the security
interests granted or purported to be granted hereby; (iii) if any
Receivable shall be evidenced by a promissory note or other instrument or
chattel paper (other than checks, which Debtor promptly shall deposit into
one of the deposit accounts encumbered hereunder or markers, received by
Debtor in the ordinary course of business), deliver and pledge to Secured
Party such note or instrument or chattel paper duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in
form and substance reasonably satisfactory to Secured Party; (iv) if any
Collateral is at any time in the possession or control of any warehouseman,
bailee, consignee or any of Debtor's agents or processors, Debtor shall
notify such warehouseman, bailee, consignee, agent or processor of the
security interests created or purported to be created hereby, shall cause
such warehouseman, bailee, consignee, agent or processor to execute any
financing statements or other documents which Secured Party may request,
and, upon the request of Secured Party after the occurrence and during the
continuation of an Event of Default, shall instruct such person to hold all
such Collateral for Secured Party's account subject to Secured Party's
instructions; (v) deliver and pledge to Secured Party all securities and
instruments (other than checks, which Debtor promptly shall deposit into
one of the deposit accounts encumbered hereunder, or markers received by
Debtor in the ordinary course of business) constituting Collateral duly
endorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance satisfactory to Secured Party; and
(vi) at the request of Secured Party following the occurrence of a default
that, with the passage of time would result in an Event of Default, deliver
to Secured Party any and all certificates of title, applications for title
or similar evidence of ownership of all Equipment and shall cause Secured
Party to be named as lienholder on any such certificate of title or other
evidence of ownership; provided, however, that notwithstanding anything to
the contrary in this Agreement, the actions under clauses (iii) and (v)
shall not be required with respect to promissory notes, other instruments,
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securities and chattel paper with a face or fair market value not to exceed
in the aggregate $250,000;
(e) without the prior written consent of Secured Party or as
otherwise expressly permitted by the Indenture, Debtor will not in any way
encumber, or hypothecate, or create or permit to exist, any lien, security
interest, charge or encumbrance or adverse claim upon or other interest in
the Collateral, except for Permitted Liens, including without limitation
encumbrances permitted by the Indenture and the liens created by this
Security Agreement, and Debtor will defend the Collateral against all
claims and demands of all persons at any time claiming the same or any
interest therein (other than holders of Permitted Liens), except as
expressly provided herein. Debtor will not permit any Lien Notices to exist
or be on file in any public office with respect to all or any portion of
the Collateral except, in each case, for Lien Notices of holders of
Permitted Liens including without limitation encumbrances permitted by the
Indenture or except as may have been filed by or for the benefit of Secured
Party relating to this Security Agreement or related agreements. Debtor
shall promptly notify Secured Party of any attachment or other legal
process levied against any of the Collateral and any information received
by Debtor relative to the Collateral, which may in any material way affect
the value of the Collateral or the rights and remedies of Secured Party in
respect thereto;
(f) without the prior written consent of Secured Party, Debtor will
not sell, transfer, assign (by operation of law or otherwise), exchange or
otherwise dispose of all or any portion of the Collateral or any interest
therein, except as permitted by the Indenture. If the proceeds of any such
prohibited sale are notes, instruments, documents of title, letters of
credit or chattel paper, such proceeds shall be promptly delivered to
Secured Party to be held as Collateral hereunder (with all necessary or
appropriate endorsements) or, if such proceeds are required to be delivered
under the 1996 Indenture to the 1996 Notes Trustee, Debtor shall promptly
provide appropriate notice to the Secured Party or take any such other
actions as are necessary to perfect the Secured Party's security interest
in such proceeds. If the Collateral, or any part thereof or interest
therein, is sold, transferred, assigned, exchanged, or otherwise disposed
of in violation of these provisions, the security interest of Secured Party
shall continue in such Collateral or part thereof notwithstanding such
sale, transfer, assignment, exchange or other disposition, and Debtor will
hold the proceeds thereof in a separate account for Secured Party's
benefit. Debtor will, at Secured Party's request, transfer such proceeds
to Secured Party in kind;
(g) Secured Party is hereby authorized to file one or more financing
statements or fixture filings, and continuations thereof and amendments
thereto, relative to all or any part of the Collateral, without the
signature of Debtor where permitted by law;
(h) Except as expressly permitted by the Indenture, Debtor will pay
and discharge all taxes, assessments and governmental charges or levies
against the Collateral prior to delinquency thereof and will keep the
Collateral free of all unpaid
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claims and charges (including claims for labor, materials and supplies)
whatsoever;
(i) Debtor will keep and maintain the Collateral in good condition,
working order and repair, ordinary wear and tear excepted, and from time to
time will make or cause to be made all repairs, replacements and other
improvements in connection therewith that are necessary or desirable toward
such end. Debtor will not misuse or abuse the Collateral, or waste or
allow it to deteriorate except for the ordinary wear and tear of its normal
and expected use in Debtor's business in accordance with Debtor's policies
as then in effect (provided that no changes are made to Debtor's policies
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as in effect on the date hereof that would be materially adverse to the
interests of the Secured Party), and will comply with all material laws,
statutes and regulations pertaining to the use or ownership of the
Collateral. Debtor will promptly notify Secured Party regarding any loss
or damage to any material portion of the Collateral or portion thereof;
(j) Upon the occurrence and during the continuation of an Event of
Default or a material default which, with the passage of time is reasonably
likely to cause an Event of Default, (i) Debtor will take all actions
directed by Secured Party in Secured Party's sole and absolute discretion,
to create, preserve and enforce any liens or guaranties available to secure
or guaranty payments due Debtor under any contracts or other agreements
with third parties, will not voluntarily permit any such payments to become
more than thirty (30) days delinquent and will in a timely manner record
and assign to Secured Party, to the extent and at the earliest time
permitted by law, any such liens and rights under such guaranties and (ii)
Debtor will give Secured Party written notice of any payments due Debtor
within five (5) days after any such payments become thirty (30) days
delinquent;
(k) Upon Secured Party's request, Debtor will deliver to Secured
Party records and schedules that show the status, condition and location of
the Collateral, including reports reasonably requested by Secured Party,
all in reasonable detail; will promptly notify Secured Party in writing of
any event, or change of law, regulation, business practice, or business
condition that may materially adversely affect the value of the Collateral.
Secured Party shall have the right to review and verify such records,
schedules, and notices, and Debtor will reimburse Secured Party for all
costs incurred thereby;
(l) Except as otherwise provided in this Section 5(l), Debtor shall
continue to collect, at its own expense, all amounts due or to be become
due Debtor under the Receivables. In connection with such collections,
Debtor may take (and upon the occurrence and during the continuation of an
Event of Default, at Secured Party's direction, shall take) such action as
Debtor (or, upon the occurrence and during the continuation of an Event of
Default, Secured Party) may deem necessary or advisable to enforce
collection of the Receivables; provided, however that Debtor shall not
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adjust, settle or compromise the amount or payment of any Receivable, or
release wholly or partly any account debtor or obligor thereof, or allow
any credit or discount thereon,
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other than adjustments, settlements, or discounts that are in accordance
with Debtor's policies as then in effect. Secured Party shall have the
right at any time after the occurrence and during the continuation of an
Event of Default to notify the account debtors or obligors under any of the
Receivables of the assignment of such Receivables to Secured Party and to
direct such account debtors or obligors to make payment of all amounts due
or to become due to Debtor thereunder directly to Secured Party and, upon
such notification and at the expense of Debtor, to enforce collection of
any such Receivables, and to adjust, settle or compromise the amount or
payment thereof, as Secured Party may deem appropriate in its sole
discretion, subject to the Intercreditor Agreement. After the occurrence
and during the continuation of an Event of Default (i) all amounts and
proceeds (including instruments) received by Debtor in respect of the
Receivables shall be received in trust for the benefit of Secured Party
hereunder and, upon notice from Secured Party, shall be segregated from
other funds of Debtor and shall be forthwith paid over to Secured Party in
the same form as so received (with all necessary or appropriate
endorsements) to be held as cash collateral and applied as provided by the
Indenture, subject to the Intercreditor Agreement, and (ii) Debtor shall
not adjust, settle or compromise the amount or payment of any Receivable,
or release wholly or partly any account debtor or obligor thereof, or allow
any credit or discount thereon;
(m) Secured Party shall have the right during regular business hours
and upon prior notice to Debtor to enter into and upon any premises where
any of the Collateral or records with respect thereto are located for the
purpose of inspecting the same, performing any audit, making copies of
records, observing the use of any part of the Collateral, or otherwise
protecting its security interest in the Collateral. Debtor will hold and
preserve all records concerning the Receivables and all originals of all
chattel paper that evidences any Receivables;
(n) Secured Party shall have the right at any time while an Event of
Default exists, but shall not be obligated, to make any payments and do any
other acts Secured Party may deem necessary or desirable to protect its
security interest in the Collateral, including, without limitation, the
right to pay, purchase, contest or compromise any encumbrance, charge or
lien (excluding any Permitted Liens) applicable or purported to be
applicable to any Collateral hereunder, and appear in and defend any action
or proceeding purporting to affect its security interest in and/or the
value of any Collateral, and in exercising any such powers or authority,
the right to pay all expenses incurred in connection therewith, including
reasonable attorneys' fees. Debtor hereby agrees that it shall be bound by
any such payment made or incurred or act taken by Secured Party hereunder
and shall reimburse Secured Party for all payments made and expenses
incurred under this Security Agreement, which amounts shall be secured
under this Security Agreement. Secured Party shall have no obligation to
make any of the foregoing payments or perform any of the foregoing acts;
(o) if Debtor shall become entitled to receive or shall receive any
certificate, instrument, option or rights (other than checks, which Debtor
promptly shall deposit
-11-
into one of the deposit accounts encumbered hereunder, or markers, received
by Debtor in the ordinary course of business and instruments not required
to be delivered under Section 5(d)), whether as an addition to, in
substitution of, or in exchange for any or all of the Collateral or any
part thereof, or otherwise, Debtor shall accept any such instruments as
Secured Party's agent, shall hold them in trust for Secured Party, and
shall deliver them forthwith to Secured Party or, if required under the
1996 Indenture, to the 1996 Notes Trustee in the exact form received, with
Debtor's endorsement when necessary or appropriate, or accompanied by duly
executed instruments of transfer or assignment in blank or, if requested by
Secured Party, an additional pledge agreement or security agreement
executed and delivered by Debtor, all in form and substance satisfactory to
Secured Party, to be held by Secured Party, subject to the terms hereof, as
additional Collateral to secure the obligations hereunder;
(p) Secured Party is hereby authorized to pay all reasonable costs
and expenses incurred in the exercise or enforcement of its rights
hereunder, including reasonable attorneys' fees, and, while an Event of
Default exists to apply any Collateral or proceeds thereof against such
amounts, and then to credit or use any further proceeds of the Collateral
in accordance herewith;
(q) Secured Party may take any actions permitted hereunder or in
connection with the Collateral by or through agents or employees and shall
be entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters;
(r) Debtor hereby agrees to take all actions necessary to maintain
Secured Party's first prior security interest (subject to Permitted Liens)
in all Marks, Patents and Copyrights (if any), to preserve the value of all
Marks, Patents and Copyrights (if any), to prosecute and defend such Marks,
Patents and Copyrights against infringement, and to provide Secured Party
with notice of any material pertinent information regarding any such
infringement, any material actions with the United States Patent and
Trademark Office and any other information which could have a material
adverse effect on the Marks, Patents and Copyrights; and
(s) This Security Agreement, as applied to Equipment subject to an
FF&E Financing Agreement (as defined below), shall be subordinated to the
liens of any FF&E Financing Agreements (or if required by an FF&E Financing
Agreement, it shall be released) and any future or further advances made
thereunder and to any modifications, renewals or extensions thereof to
which the lien of this Security Agreement attaches, provided, however, that
-------- -------
any such FF&E Financing Agreement shall encumber only that Equipment
specifically subject to the FF&E Financing Agreement. Debtor covenants and
agrees to comply with all of the terms and conditions set forth in any FF&E
Financing Agreement covering Equipment in which Secured Party has taken a
lien hereunder. If, under any FF&E Financing Agreement covering Equipment
in which Secured Party has taken a lien hereunder, Secured Party shall fail
to make any payment of principal of or interest, except where Debtor is
contesting such payment in good faith, then Secured Party may make such
payment of
-12-
the principal of or interest on the sums secured by such security interest
or may make any payment in order to perform or observe any other term,
covenant, condition or agreement of any such FF&E Financing Agreement on
Debtor's part to be performed or observed and any and all sums so expended
by Secured Party shall be secured by this Security Agreement and shall be
repaid by Debtor upon demand, together with interest thereon at the
interest rate on the Notes from the date of advance. In furtherance of such
subordination or release, as applicable, Secured Party, upon receipt of an
officer's certificate from Debtor certifying that the requirements of this
Section 5(t)) have been satisfied, shall execute, acknowledge and deliver
to Debtor, at Debtor's expense, any and all such evidence and documents
necessary to evidence the subordination or release of this Security
Agreement in accordance with the foregoing provisions of this Section 5(t).
As used herein, "FF&E Financing Agreement" shall mean (A) any financing (i)
as to which the lender holds a security interest in only the assets
purchased, fabricated or leased by such financing for the payment of
principal, interest and other amounts in connection therewith, (ii) which
is permitted by the Indenture to be incurred and (iii) the proceeds of
which are used to acquire, construct or lease the Equipment subject to such
security interest, and (B) any refinancing or renewal of any financing
under clause (A).
6. DEFAULTS AND REMEDIES
---------------------
(a) The occurrence of any "Event of Default" under the Indenture
(subject to the cure rights set forth therein) shall constitute an Event of
Default under this Security Agreement.
(b) Upon the occurrence and continuation of an Event of Default
hereunder, Debtor expressly covenants and agrees that Secured Party may, at
its option, subject to the terms of the Indenture, in addition to other
rights and remedies provided herein or otherwise available to it, without
notice to or demand upon Debtor (except as otherwise required herein),
exercise any one or more of the rights as set forth as follows:
(i) in accordance with the provisions in the Indenture, declare
all advances made by Secured Party to Debtor hereunder, all other
indebtedness owed by Debtor to Secured Party and all Secured
Obligations to be immediately due and payable, whereupon all unpaid
principal and interest on said advances and other indebtedness and
Secured Obligations shall become and be immediately due and payable;
(ii) immediately take possession of any of the Collateral
wherever it may be found or require Debtor to assemble the Collateral
or any part thereof and make it available at one or more places as
Secured Party may designate, and to deliver possession of the
Collateral or any part thereof to Secured Party, who shall have full
right to enter upon any or all of Debtor's places of business,
premises and property to exercise Secured Party's rights hereunder;
-13-
(iii) exercise any or all of the rights and remedies provided
for by the Nevada Uniform Commercial Code, specifically including,
without limitation, the right to recover the attorneys' fees and other
expenses incurred by Secured Party in the enforcement of this Security
Agreement or in connection with Debtor's redemption of the Collateral.
Secured Party may exercise its rights under this Security Agreement
independently of any other collateral or guaranty that Debtor may have
granted or provided to Secured Party in order to secure payment and
performance of the Secured Obligations, and Secured Party shall be
under no obligation or duty to foreclose or levy upon any other
collateral given by Debtor to secure any Secured Obligation or to
proceed against any guarantor before enforcing its rights under this
Security Agreement;
(iv) use, manage, operate and control the Collateral and
Debtor's business and property to preserve the Collateral or its
value, or to pay the indebtedness secured hereunder, including,
without limitation, the rights to take possession of all of Debtor's
premises and property, to exclude Debtor and any third parties,
whether or not claiming under Debtor, from such premises and property,
to make repairs, replacements, alterations, additions and improvements
to the Collateral and to dispose of all or any portion of the
Collateral in the ordinary course of Debtor's business;
(v) without notice (except as specified below), sell the
Collateral or any part thereof in one or more parcels at one or more
public or private sales, at any of Secured Party's offices or
elsewhere, at such time or times, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as
shall be commercially reasonable. Debtor acknowledges and agrees
that, to the extent notice of sale shall be required by law, at least
ten (10) days' written notice to Debtor of the time and place of any
public sale or of the date on or after which any private sale is to be
made shall constitute reasonable notification. Any public sale shall
be held at such time or times during ordinary business hours and at
such place or places as Secured Party may fix in the notice of such
sale. Notwithstanding the foregoing, Secured Party shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. Secured Party may, without notice or publication,
adjourn any public or private sale, or cause the same to be adjourned
from time to time by announcement at the time and place fixed for sale
or, with respect to a private sale, after which such sale may take
place, and any such sale may, without further notice, be made at the
time and place to which it was so adjourned or, with respect to a
private sale, after which such sale may take place. Each purchaser at
any such sale shall hold the property sold free from any claim or
right on the part of Debtor, and Debtor hereby waives, to the full
extent permitted by law, all rights of stay and/or appraisal which
Debtor now has or may at any time in the future have under any rule of
law or statute now existing or hereafter enacted. Debtor also hereby
waives any claims against Secured Party arising by reason of the fact
that the price at which any Collateral may
-14-
have been sold at a private sale was less than the price which might
have been obtained at a public sale, even if Secured Party accepts the
first offer received and does not offer such Collateral to more than
one offeree. The parties hereto agree that the notice provisions,
method, manner and terms of any sale, transfer or disposition of any
Collateral in compliance with the terms set forth herein or any other
provision of this Security Agreement are commercially reasonable;
(vi) proceed by an action or actions at law or in equity to
recover the indebtedness secured hereunder or to foreclose this
Security Agreement and sell the Collateral, or any portion thereof,
pursuant to a judgment or decree of a court or courts of competent
jurisdiction in any manner permitted by law, or provided for herein;
(vii) in the event Secured Party recovers possession of all or
any part of the Collateral pursuant to a writ of possession or other
judicial process, whether prejudgment or otherwise, Secured Party may
retain, sell or otherwise dispose of such Collateral in accordance
with this Security Agreement or the Nevada Uniform Commercial Code,
and following such retention, sale or other disposition, Secured Party
may voluntarily dismiss without prejudice the judicial action in which
such writ of possession or other judicial process was issued. Debtor
hereby consents to the voluntary dismissal without prejudice by
Secured Party of such judicial action, and Debtor further consents to
the exoneration of any bond which Secured Party files in such action;
(viii) with respect to the sale of securities constituting
Collateral, to the extent Secured Party deems it advisable to do so,
in its sole discretion or as may be required by applicable law,
restrict the prospective bidders or purchasers to persons who in
Secured Party's sole judgment are sufficiently sophisticated and who
will represent and agree that they are purchasing the securities
constituting Collateral then being sold for their own account and not
with a view to the distribution or resale thereof, and upon
consummation of any such sale, Secured Party shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof
the securities constituting Collateral so sold;
(ix) Secured Party, in its sole discretion, if permitted by
law, may bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) for and purchase for its account the
whole or any part of the Collateral at any public sale or sale on any
securities exchange or other recognized market;
(x) to the full extent provided by law, have a court having
jurisdiction appoint a receiver, which receiver shall take charge and
possession of and protect, preserve, replace and repair the Collateral
or any part thereof, and manage and operate the same, and receive and
collect all rents, income, receipts, royalties, revenues, issues and
profits therefrom. Debtor shall
-15-
irrevocably consent and shall be deemed to have hereby irrevocably
consented to the appointment thereof, and upon such appointment,
Debtor shall immediately deliver possession of such Collateral to the
receiver. Debtor also irrevocably consents to the entry of an order
authorizing such receiver to invest upon interest any funds held or
received by the receiver in connection with such receivership. Secured
Party shall be entitled to such appointment as a matter of right, if
it shall so elect, without the giving of notice to any other party and
without regard to the adequacy of the security of the Collateral;
(xi) enforce one or more remedies hereunder, successively or
concurrently, and such action shall not operate to estop or prevent
Secured Party from pursuing any other or further remedy which it may
have hereunder or by law, and any repossession or retaking or sale of
the Collateral pursuant to the terms hereof shall not operate to
release Debtor until full and final payment of any deficiency has been
made in cash. Debtor shall reimburse Secured Party upon demand for,
or Secured Party may apply any proceeds of Collateral to, the costs
and expenses (including attorneys' fees, transfer taxes and any other
charges) incurred by Secured Party in connection with any sale,
disposition, repair, replacement, alteration, addition, improvement or
retention of any Collateral hereunder;
(xii) upon the occurrence of a default hereunder, any cash held
by Secured Party as Collateral and all cash proceeds received by
Secured Party in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the
discretion of Secured Party, be held by Secured Party as collateral
for and/or then or at any time thereafter applied (including
application to the payment of any costs, expenses, indemnification and
other amounts payable to Secured Party hereunder, which amounts may be
paid in whole or in part prior to the other obligations secured
hereby) in whole or in part by Secured Party against all or any part
of the obligations secured hereby in such order as Secured Party shall
elect. Any surplus of such cash or cash proceeds held by Secured
Party and remaining after payment in full of all the obligations
secured hereby shall be paid over to Debtor or to whomever may be
lawfully entitled to receive such surplus or as a court of competent
jurisdiction may direct, provided, however, that in the event that all
--------
of the conditions to termination of this Security Agreement under
Section 7(l) shall have not been fulfilled, such balance shall be held
as additional Collateral hereunder and applied from time to time to
Secured Party's costs and expenses and as otherwise provided hereunder
until all such conditions shall have been fulfilled; and
(xiii) effect an absolute assignment of all of Debtor's right,
title and interest in and to each Xxxx (and the goodwill of the
business of Debtor associated therewith), Patent and Copyright.
-16-
7. MISCELLANEOUS PROVISIONS
------------------------
(a) Notices. All notices, requests, approvals, consents and other
-------
communications required or permitted to be made hereunder shall,
except as otherwise provided, be in writing and may be delivered
personally or sent by telegram, telecopy, facsimile, telex, first
class mail or overnight courier, postage prepaid, to the parties
addressed as follows:
To Debtor: Coast Hotels and Casinos, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Ph: (000) 000-0000
FAX: (000) 000-0000
With a Copy to:
Xxxxx Xxxxxxxxx, Esq.
General Counsel
Coast Hotels and Casinos, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Ph: (702) 365-7111
FAX: (000) 000-0000
To Secured Party: Firstar Bank of Minnesota, N.A.
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
FAX: (000) 000-0000
Atten: Xxxxx Xxxxxx, III
Such notices, requests and other communications sent as provided
hereinabove shall be effective when received by the addressee thereof,
unless sent by registered or certified mail, postage prepaid in which case
they shall be effective exactly three (3) business days after being
deposited in the United States mail. The parties hereto may change their
addresses by giving notice thereof to the other parties hereto in
conformity with this section.
(b) Headings. The various headings in this Security Agreement are
--------
inserted for convenience only and shall not affect the meaning or
interpretation of this Security Agreement or any provision hereof.
(c) Amendments. This Security Agreement or any provision hereof may
----------
be changed, waived, or terminated only by a statement in writing signed by
the party against which such change, waiver or termination is sought to be
enforced, and then
-17-
any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(d) No Waiver. No failure on the part of Secured Party to exercise,
---------
and no delay in exercising, and no course of dealing with respect to, any
power, privilege or right under this Security Agreement or any related
agreement shall operate as a waiver thereof nor shall any single or partial
exercise by Secured Party of any power, privilege or right under this
Security Agreement or any related agreement preclude any other or further
exercise thereof or the exercise of any other power, privilege or right.
The powers, privileges and rights in this Security Agreement are cumulative
and are not exclusive of any other remedies provided by law. No waiver by
Secured Party of any default hereunder shall be effective unless in
writing, nor shall any waiver operate as a waiver of any other default or
of the same default on a future occasion.
(e) Binding Agreement. All rights of Secured Party hereunder shall
-----------------
inure to the benefit of its successors and assigns. Debtor shall not
assign any of its interest under this Security Agreement without the prior
written consent of Secured Party. Any purported assignment inconsistent
with this provision shall, at the option of Secured Party, be null and
void.
(f) Entire Agreement. This Security Agreement, together with any
----------------
other agreement executed in connection herewith, is intended by the parties
as a final expression of their agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof. Acceptance of or
acquiescence in a course of performance rendered under this Security
Agreement shall not be relevant to determine the meaning of this Security
Agreement even though the accepting or acquiescing party had knowledge of
the nature of the performance and opportunity for objection.
(g) Choice of Law. The existence, validity, construction, operation
-------------
and effect of any and all terms and provisions of this Security Agreement
shall be determined in accordance with and governed by the substantive laws
of the State of Nevada, without giving effect to its conflicts of law
principles.
(h) Severability. If any provision or obligation of this Security
------------
Agreement should be found to be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions and obligations or any other agreement executed in connection
herewith, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby and shall nonetheless
remain in full force and effect to the maximum extent permitted by law.
(i) Survival of Provisions. All representations, warranties and
----------------------
covenants of Debtor contained herein shall survive the execution and
delivery of this Security Agreement, and shall terminate only upon the
termination of this Security Agreement pursuant to Subsection 7(k) hereof.
-18-
(j) Power of Attorney. Debtor hereby irrevocably appoints Secured
-----------------
Party its attorney-in-fact, which appointment is coupled with an interest,
with full authority in the place and stead of Debtor and in the name of
Debtor, Secured Party or otherwise, from time to time in Secured Party's
discretion (a) to execute and file financing and continuation statements
(and amendments thereto and modifications thereof) on behalf and in the
name of Debtor with respect to the security interests granted or purported
to be granted hereby, (b) to take any action and to execute any instrument
which Secured Party may deem necessary or advisable to exercise its rights
under Section 5(p) hereunder, and (c) upon the occurrence and during the
continuance of an Event of Default, to take any action and to execute any
instrument which Secured Party may deem necessary or advisable to
accomplish the purposes of this Security Agreement, including, without
limitation:
(i) to obtain and adjust insurance required to be paid to
Secured Party pursuant hereto;
(ii) to ask, demand, collect, xxx for, recover, compound,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(iii) to receive, endorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clauses
(i) and (ii) above;
(iv) to sell, convey or otherwise transfer any item of
Collateral to any purchaser thereof; and
(v) to file any claims or take any action or institute any
proceedings which Secured Party may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce the
rights of Secured Party with respect to any of the Collateral.
(k) Counterparts. This Security Agreement and any amendments,
------------
waivers, consents or supplements may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
an original, but all of which shall together constitute one and the same
agreement.
(l) Termination of Agreement. Subject to Section 10.1 of the
------------------------
Indenture, this Security Agreement and the security interest hereunder
shall not terminate until full and final payment and performance of all
indebtedness and obligations secured hereunder. At such time, Secured
Party shall reassign and redeliver to Debtor all of the Collateral
hereunder which has not been sold, disposed of, retained or applied by
Secured Party in accordance with the terms hereof, and execute and deliver
to Debtor such documents as Debtor may reasonably request to evidence such
termination. Such reassignment and redelivery shall be without warranty by
or recourse to Secured Party, and shall be at the expense of Debtor;
provided, however, that this Security Agreement (including all
-------- -------
-19-
representations, warranties and covenants contained herein) shall continue
to be effective or be reinstated, as the case may be, if at any time any
amount received by Secured Party in respect of the indebtedness and
obligations secured hereunder is rescinded or must otherwise be restored or
returned by Secured Party upon or in connection with the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Debtor or any
other person or upon or in connection with the appointment of any
intervenor or conservator of, or trustee or similar official for, Debtor or
any other person or any substantial part of its assets, or otherwise, all
as though such payments had not been made.
(m) Successors and Assigns. This Security Agreement shall inure to
----------------------
the benefit of Secured Party, its successors and assigns, including the
assignees of any Secured Obligation or of the benefit of any Secured
Obligation and shall bind the heirs, executors, administrators, successors
and assigns of Debtor. This Security Agreement is assignable by Secured
Party with respect to all or any portion of the Secured Obligations, and
when so assigned, Debtor shall be liable to the assignees under this
Security Agreement without in any manner affecting the liability of Debtor
hereunder with respect to any of the Secured Obligations retained by
Secured Party. Each reference herein to powers or rights of Secured Party
shall also be deemed a reference to the same power or right of such
assignees, to the extent of the interest assigned to them.
(n) Interaction with Financing Documents.
------------------------------------
(i) Incorporation by Reference. All terms, covenants,
--------------------------
conditions, provisions and requirements of the Indenture are
incorporated by reference in this Security Agreement.
(ii) Conflicts with Indenture. Notwithstanding any other
------------------------
provision of this Security Agreement, the terms and provisions of this
Security Agreement shall be subject and subordinate to the terms of
the Indenture. To the extent that the Indenture provides Debtor with
a particular cure or notice period, or establishes any limitations or
conditions on Secured Party's actions with regard to a particular set
of facts, Debtor shall be entitled to the same cure periods and notice
periods, and Secured Party shall be subject to the same limitations
and conditions in place of the cure periods, notice periods,
limitations and conditions provided for under the Indenture; provided,
---------
however, that such cure periods, notice periods, limitations and
-------
conditions shall not be cumulative as between the Indenture and this
Security Agreement. In the event of any conflict or inconsistency
between the provisions of this Security Agreement and those of the
Indenture, including, without limitation, any conflicts or
inconsistencies in any definitions herein or therein, the-provisions
or definitions of the Indenture shall govern.
(iii) Conflicts with the Deed of Trust. In the event of any
--------------------------------
conflict or
-20-
inconsistency between the provisions of this Security Agreement (as
they apply to the Collateral) and those of the Deed of Trust (as they
apply to the Collateral), including, without limitation, any conflicts
or inconsistencies in any definitions herein or therein, the
provisions or definitions of this Security Agreement shall govern.
(o) Intercreditor Agreement. Notwithstanding anything herein to the
-----------------------
contrary, all rights and remedies of the Secured Party under this Agreement
are expressly subject to the terms and conditions of the Intercreditor
Agreement.
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed and delivered by their respective undersigned duly
authorized officers as of the date first above written.
DEBTOR:
COAST HOTELS AND CASINOS, INC.
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & COO
SECURED PARTY:
FIRSTAR BANK OF MINNESOTA, N.A.
as Trustee
By: /s/ Xxxxx Xxxxxx, III
------------------------
Name: Xxxxx Xxxxxx, III
Title: Vice President
-22-
Exhibit "A"
-----------
DEPOSIT ACCOUNTS
ANNEX I
-------
A. SCHEDULE OF U.S. TRADEMARKS REGISTRATIONS
None
B. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF USE IN COMMERCE UNDER 17 USC (S) 1051(A)
None
C. SCHEDULE OF PENDING APPLICATION FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF INTENT TO USE THE XXXX IN COMMERCE UNDER 17 USC (S) 1051(B)
None
ANNEX 2
-------
SCHEDULE OF PATENTS AND APPLICATIONS
------------------------------------
None
ANNEX 3
-------
SCHEDULE OF COPYRIGHTS AND APPLICATIONS
---------------------------------------