<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): November 15, 1999
SANTA FE GAMING CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Nevada 1-9481 88-0304348
(STATE OR OTHER (COMMISSION FILE (I.R.S. EMPLOYER
JURISDICTION OF NUMBER) IDENTIFICATION NO.)
INCORPORATION)
4949 North Rancho Drive, Las Vegas, Nevada 89130
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (702) 658-4300
None
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
<PAGE>
ITEM 5. OTHER EVENTS.
SALE OF HENDERSON PROPERTY
On November 17, 1999, Santa Fe Gaming Corporation ("SFGC")
announced that its subsidiary Sahara Las Vegas Corp ("SLVC"), sold its
approximate 40 acre parcel of real property in Henderson, Nevada to Station
Casinos Inc., ("STN"). In connection with the sale, SLVC, SFGC and Santa Fe
Hotel Inc., another subsidiary of SFGC ("SFHI"), entered into non-compete
agreements with STN and SFGC and SFHI granted rights of first refusal with
respect to the Santa Fe Hotel assets and securities. The total consideration
received was approximately $37.2 million. In connection with the sale of the
Henderson property, SLVC and its lenders amended the Note Purchase Agreement
governing SLVC's indebtedness pursuant to which the lenders agreed to release
the lien on the Henderson property securing the obligations. A copy of the
Second Amendment to Second Amended and Restated Note Purchase Agreement is
filed as Exhibit 10.95 to this Current Report on Form 8-K.
Copies of the Purchase and Sale Agreement, the Right of First
Refusal, Non-Competition Agreement, the First Amendment to Non-Competition
Agreement and the Unsecured Promissory Noted entered into in connection with
these transactions are filed as exhibits 10.90 to 10.94 to this Current
Report on Form 8-K.
A copy of the November 17, 1999 press release is filed as Exhibit
99.1 to this Current Report on Form 8-K and is incorporated herein by
reference.
PIONEER BANKRUPTCY PROCEEDINGS
On October 21, 1999, SFGC's subsidiaries, Pioneer Finance Corp.
("PFC") and Pioneer Hotel Inc. ("PHI"), filed a ballot report with respect to
PFC.'s and PHI's Second Amended Plan of Reorganization (Joint Plan"),
indicating that ballots were received as outlined in the table below from
holders of PFC 13.5% First Mortgage Bonds ("13.5% Notes"). A copy of the
Ballot Report is filed as Exhibit 10.96 to this Current Report on Form 8-K.
<TABLE>
<CAPTION>
Number of Votes From Holders of Class 3 Claims
----------------------------------------------
<S> <C> <C>
Total number of votes: 656 100.00%
Number of acceptances: 557 84.91%
Number of rejections 99 15.09%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Amount of Class 3 Claims Voted
------------------------------
<S> <C> <C>
Total Amount Voted: $48,388,592.00 100.00%
Amount of Acceptances: 34,778,333.00 71.87%
Amount of Rejections 13,610,259.00 28.13%
</TABLE>
On October 25, 1999, PFC and PHI (PFC and PHI together the
"Debtors") commenced confirmation hearings on the Joint Plan. Pursuant to the
Joint Plan, the Debtors were required to meet certain additional thresholds
to confirm the Joint Plan, including receiving ballots in favor of the plan
equal to sixty-seven (67%) of the total principal amount of 13.5% Notes
($54,972,389). The percentage of acceptances received represented
approximately 63.27% of the total outstanding principal amount of 13.5%
Notes. The Debtors proposed certain modifications to the Joint Plan to
satisfy the threshold without resoliciting the Joint Plan, as modified, which
were not permitted at the hearing, with the Court ruling proposed
modifications would require future solicitation. The court terminated the
Debtors exclusivity, expressly subject to reinstatement, thereby granting
other parties in interest the right to file a plan to reorganize the Debtors
before December 3, 1999. The court has scheduled hearings on the
resolicitation of the Debtors Joint Plan for December 14, 1999.
The Joint Plan was filed in accordance with the consents obtained
from holders of approximately 75% of the outstanding principal amount of
13.5% Notes, pursuant to which PFC agreed to file for relief under Chapter 11
and the consenting holders agreed to vote to accept a plan of reorganization
substantially similar to the treatment proposed in the Consent Solicitation
Statement, dated October 23, 1998, as amended. ("Consent Solicitation"). The
Debtors received ballots aggregating approximately $8.1 million principal
amount of 13.5% Notes against the Joint Plan from holders 13.5% Notes who had
agreed to support the Joint Plan in connection with a Consent Solicitation,
including, one holder who acquired approximately $6.2 million of consented
bonds subsequent to the Consent Solicitation pursuant to the terms of the
restricted legend on the consented bonds, in which the holder agreed to vote
to accept a plan of reorganization substantially similar to the treatment
proposed in the Consent Solicitation.
In May, 1999, the Company was advised that a consenting holder
attempted to transfer or did transfer an interest in approximately $3.0
million principal amount of 13 1/2% Notes without complying with the
restriction on transfer. In July 1999, PFC commenced an adversary action
seeking injunctive relief preventing the transfer without strict compliance
with the terms of the restrictive legend. In addition, the Debtors have filed
a complaint for specific performance of contract against certain known
holders of consented bonds who voted against the Debtors Plan, including the
one holder of
<PAGE>
approximately $6.2 million of consented bonds. In October 1999, Hudson Bay
Partners filed a motion for summary judgement contesting the enforceability
of the terms in the Consent Solicitation. On December 13, 1999, the Court is
scheduled to conduct a hearing on the motion.
On November 10, 1999, Hudson Bay Partners commenced an adversary
proceeding against the Debtors and SFGC seeking declaratory and injunctive
relief asserting, among other matters, the validity of the consents obtained
in the Consent Solicitation. Hudson Bay has scheduled a hearing on a motion
for a preliminary injunction on December 13, 1999.
On September 8, 1999 SFGC entered into a Forbearance Agreement with
a non-consenting PFC bondholder, GMS Group, LLC ("GMS"), regarding an action
commenced by GMS in the Supreme Court of the State of New York against SFGC
seeking to enforce the guaranteed obligations of SFGC under Pfc.'s 13.5%
Notes. Generally, the terms of the Forbearance Agreement require suspension
of the New York litigation until May 31, 2000 (or as early as November 30,
1999 upon the occurrence of certain events), an affirmative vote by GMS in
favor of the Joint Plan, reimbursement to GMS for its incurred legal fees and
expenses, and a waiver by SFGC of any defenses and right to oppose the motion
for summary judgment brought by GMS in the New York litigation. A copy of the
Forbearance Agreement is filed as Exhibit 10.97 to this Current Report on
Form 8-K.
ITEM 7. EXHIBITS
The following are filed as exhibits to this Current Report on form 8-K:
99.1 Press release dated November 17, 1999.
10.90 Purchase and Sale Agreement dated November 15, 1999 by and
between SLVC and STN.
10.91 Right of First Refusal dated November 15, 1999 by and among STN,
SFGC and SFHI.
10.92 Non-Competition Agreement dated November 15, 1999 by and among
STN, SFHI, SLVC and SFGC.
10.93 First Amendment to Non-Competition Agreement dated November 16,
1999 by and among STN, SFHI, SLVC and SFGC.
10.94 Unsecured Promissory Note dated November 15, 1999 by STN to SLVC
and the Rider to Station Casinos, Inc. Note dated November 15,
1999,
10.95 Second Amendment to Second Amended and Restated Note Purchase
Agreement dated November 15, 1999 by and among SLVC, SFGC,
SunAmerica Life Insurance Company and Anchor National Life
Insurance Company.
10.96 Ballot Report dated October 25, 1999
10.97 Forbearance Agreement dated September 8,1999 by and between SFGC
and GMS Group, LLC.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SANTA FE GAMING CORPORATION,
a Nevada corporation
By: /s/
------------------------------
Name: Thomas K. Land
Title: Senior Vice President and
Chief Financial Officer
November _19, 1999
<PAGE>
EXHIBIT 10.90
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
by
and
between
SAHARA LAS VEGAS CORP.,
a Nevada corporation
"SELLER"
and
STATION CASINOS, INC.,
a Nevada corporation
"PURCHASER"
Dated as of
November 15, 1999
<PAGE>
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
1. IDENTIFICATION OF PARTIES
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "AGREEMENT") is entered into as of November 15, 1999, by
and between SAHARA LAS VEGAS CORP., a Nevada corporation ("SELLER"), and
STATION CASINOS INC., a Nevada corporation ("PURCHASER").
2. DESCRIPTION OF THE PROPERTY
Subject to all of the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and
Purchaser hereby agrees to acquire and purchase from Seller, the following:
(a) That certain real property located in the City of
Henderson, County of Clark, State of Nevada, consisting of
approximately 40 acres of undeveloped land, more particularly described
on EXHIBIT A attached hereto and incorporated herein by this reference
(the "LAND") together with any improvements located thereon (the
"IMPROVEMENTS");
(b) All rights, privileges, easements and
appurtenances to the Land and the Improvements including, without
limitation, all mineral, water and air rights, all development rights
and all easements, rights-of-way, and other appurtenances used or
connected with the beneficial use or enjoyment of the Land and the
Improvements (the Land, the Improvements and all such rights,
privileges, easements and appurtenances are sometimes collectively
hereinafter referred to as the "REAL PROPERTY");
(c) All personal property, equipment, supplies and
fixtures (collectively, the "PERSONAL PROPERTY") owned by Seller and
used or useful in the operation of the Real Property, a list of which
shall be delivered to Purchaser no later than five (5) days after the
date of this Agreement for Purchaser's review and approval; and
(d) All intangible property used or useful in
connection with the foregoing including, without limitation, contract
rights, guarantees, licenses, permits, (including use permits)
warranties, authorizations, approvals and, subject to SECTION 3(B),
deposits (governmental or otherwise), surveys, plans, specifications
and other rights relating to the construction, ownership, use and
operation of all or any part of the Land and Improvements and any and
all other entitlements (the "INTANGIBLE PERSONAL PROPERTY"). (The Real
Property, the Personal Property and the Intangible Personal Property
are sometimes collectively referred to as the "PROPERTY".)
<PAGE>
3. THE PURCHASE PRICE
(a) The aggregate purchase price for (i) the sale of
the Property contemplated by this Agreement, (ii) Seller's and Seller's
Affiliated Entities' (as hereafter defined) execution and delivery of
the ROFR Agreement (as hereinafter defined) pursuant to SECTION 9(H)
and (iii) execution and delivery of the Non-Competition Agreement (as
hereinafter defined) pursuant to SECTION 9(G) is Thirty-Seven Million
Two Hundred Fifty Thousand Dollars ($37,250,000) (the "PURCHASE
PRICE"). The Purchase Price shall be comprised of (A) Twenty-Two
Million Five Hundred Thousand Dollars ($22,500,000) in immediately
available funds, and (B) an unsecured, subordinated demand note in the
original principal amount of Fourteen Million Seven Hundred Fifty
Thousand Dollars ($14,750,000) (the "NOTE"), which Note (x) shall bear
interest at seven and one-half percent (7 1/2%) percent per annum, and
(y) shall be payablE in full to Seller no later than sixty (60) days
following Purchaser's receipt from Seller of Seller's written demand
for such payment in full in accordance with the terms of the Note. The
Purchase Price shall be allocated to Purchaser's acquisition of the
Property, the ROFR Agreement, and the Non-Competition Agreement,
collectively.
(b) The Purchase Price shall be paid to Seller by
Purchaser as follows: Upon execution of this Agreement, Purchaser has
paid $10 to Seller. On or prior to the Closing Date, Purchaser shall
deposit into escrow (the "ESCROW") with Stewart Title Company ("ESCROW
HOLDER") Three Million Dollars ($3,000,000) (this deposit, together
with any interest earned thereon, the "DEPOSIT") with the Escrow Holder
pursuant to this Agreement. The Deposit paid by Purchaser pursuant to
the terms hereof shall be deposited in a trust account in escrow with
Escrow Holder to be held in interest-bearing obligations of the United
States Government, in an institutional savings account, or in such
other investments as Purchaser may by written instrument direct. In the
event the purchase and sale of the Property is consummated as
contemplated hereunder, the Deposit shall be paid to Seller and
credited against the Purchase Price. In the event the purchase and sale
of the Property is not consummated because of the failure of any
Condition Precedent (as hereinafter defined) or any other reason except
for a default under this Agreement solely on the part of Purchaser, the
Deposit shall be immediately refunded to Purchaser. In the event the
purchase and sale of the Property is not consummated because of a
default under this Agreement solely on the part of Purchaser, the
Deposit shall be paid to and retained by Seller pursuant to SECTION
17(B).
(c) Seller shall be entitled, at its option, to seek
refunds from the City of Henderson, Nevada (the "CITY") of any
refundable deposits ("REFUNDABLE DEPOSITS") made with the City by
Seller with respect to Seller's previous planned development and use of
the Property. In such event, Seller shall deliver to Purchaser, in
writing not less than ten (10) days in advance of any request for
refund from the City, a detailed list of which such Refundable Deposits
Seller will seek to have refunded ("SELLER SOUGHT REFUNDS"). In the
event that Purchaser, at its option, informs Seller in writing that
Purchaser would prefer that any of such Seller Sought Refunds remain
with the City and instead be assigned to and for the benefit of
Purchaser, Seller shall promptly terminate any
2
<PAGE>
efforts to receive refunds of such Seller Sought Refunds, and Seller
shall receive a credit to the Purchase Price at Closing in the
aggregate amount of such Seller Sought Refunds.
(d) The balance of the Purchase Price over and above
the amounts paid by or credited to Purchaser pursuant to this SECTION 3
above shall be paid to Seller by wire transfer of immediately available
funds at the Closing, net of all prorations and adjustments as provided
herein.
4. DUE DILIGENCE; INSPECTIONS, ETC.
4.1 No later than five (5) days after the date this Agreement
is executed by all of the parties hereto (the "DUE DILIGENCE COMMENCEMENT
DATE"), Seller shall make available for review or deliver, or cause to be
delivered, to Purchaser the documents and materials described below. Prior to
5:00 p.m. Pacific Time on the thirtieth (30th) day after such Due Diligence
Commencement Date (the "DUE DILIGENCE DEADLINE"; such period is referred to
herein as the "DUE DILIGENCE PERIOD"), Purchaser shall, to the extent it deems
necessary or appropriate, at its sole cost and expense, investigate and perform
its due diligence with respect to the Property. Upon written request, Purchaser
shall advise Seller from time to time of the status of the interviews and due
diligence described below, and in the event the purchase and sale of the
Property is not consummated, Purchaser shall deliver to Seller a list of all
reports, audits, investigations and analyses that Purchaser received or caused
to be prepared with respect to the Property, including without limitation, those
relating to the environmental condition of the Property, which list shall
include the approximate cost incurred by Purchaser with respect to each item.
Seller shall then have the right to request that Purchaser deliver a copy of any
such report, audit or other item, without representation or warranty; PROVIDED,
that if Seller elects to receive any such report, audit or other item, Seller
will pay fifty percent (50%) of Purchaser's cost of such report, audit or other
item.
4.2 If Purchaser's due diligence efforts reveal any facts or
conditions relating to the Property which Purchaser deems unsatisfactory in
Purchaser's sole and absolute discretion, Purchaser shall so notify Seller in
writing before the Due Diligence Deadline (a "DILIGENCE TERMINATION NOTICE"). If
Purchaser timely submits a Diligence Termination Notice, this Agreement shall
terminate, and the Initial Deposit will be returned to Purchaser, and except for
any obligations or liabilities which expressly survive such termination of this
Agreement, neither party shall have any further obligation to the other
hereunder.
5. TITLE
(a) Within three (3) days after the execution of this
Agreement, Purchaser shall order from Stewart Title Company (the "TITLE
COMPANY") an ALTA extended-coverage preliminary title report or
commitment on the Real Property (the "PTR"), together with legible
copies of all documents relating to the title exceptions referred to in
such PTR. Within three (3) days after receipt of Purchaser's request,
Seller
3
<PAGE>
shall also cause to be delivered to Purchaser and to Title Company
updates of the PTR ("PTR UPDATES") reflecting additional items
affecting title to the Property, if any.
(b) Within five (5) days after the execution of this
Agreement, Seller shall cause to be delivered to Purchaser and to the
Title Company a survey of the Real Property sufficient to enable Title
Company to issue an ALTA owner's policy of title insurance (the
"SURVEY"), showing lot lines and monuments, building lines, easements
both burdening and benefiting the Real Property, utilities, including
water and sewer lines to the point of connection with the public
system, the Improvements, if any, encroachments, if any, on the Real
Property or over adjoining properties, and other matters located on or
affecting the Real Property, together with a certificate as to whether
the Real Property lies within a flood zone as determined by the U.S.
Department of Housing and Urban Development. The Survey, and any
updates or modifications thereto, shall be prepared at Seller's sole
cost and expense. Within three (3) days after receipt of Purchaser's
request, Seller shall cause to be delivered to Purchaser and to Title
Company updates and revisions of the Survey ("SURVEY UPDATES")
reflecting changes made in accordance with new information disclosed in
PTR Updates, if any.
Within five (5) business days after receiving all of the items
referred to above, Purchaser shall notify Seller of any disapproved title
exceptions or survey matters disclosed in the PTR or Survey, or PTR Update or
Survey Update, as applicable (individually, a "DISAPPROVED MATTER," and
collectively, the "DISAPPROVED MATTERS"). All other title exceptions set forth
in such PTR or PTR Update, as applicable, and all survey matters disclosed on
the Survey or Survey Update, as applicable, shall constitute the "PERMITTED
ENCUMBRANCES." As a condition to the Closing, Seller shall use its best efforts
to remove, or cause to be removed, all Disapproved Matters or, in the
alternative, obtain title insurance in a form satisfactory to Purchaser insuring
against loss arising from the effect of such Disapproved Matter(s). Within five
(5) days after Seller's receipt of Purchaser's list of Disapproved Matters,
Seller shall notify Purchaser in writing of any Disapproved Matters which Seller
is unable to cause to be removed or satisfactorily insured against and Purchaser
shall then, within five (5) days thereafter, elect, by giving written notice to
Seller and Escrow Holder, (i) to terminate this Agreement or (ii) to waive its
disapproval of such exceptions or survey matters (such exceptions or survey
matters shall then be deemed to be "PERMITTED ENCUMBRANCES"). Purchaser's
failure to give such notice shall be deemed an election to terminate this
Agreement. In the event Purchaser elects to terminate this Agreement, this
Agreement shall become null and void with no further obligation on the part of
either party, and any money or documents in escrow shall be returned to the
party depositing the same. Notwithstanding anything to the contrary, that
certain mortgage executed by Seller for the benefit of SunAmerica Life Insurance
Company and recorded November 26, 1997 as Document No. 01442 in the Official
Records of Clark County, Nevada, shall be deemed to be a Disapproved Matter, and
Seller covenants and agrees to remove such encumbrance from title at or prior to
Closing.
4
<PAGE>
6. SELLER'S DELIVERIES; INSPECTIONS
Seller has delivered or will deliver to Purchaser the
following documents no later than the Due Diligence Commencement Date:
(a) A statement of insurance coverages and premiums
by policy type and copies of insurance policies for the fire, extended
coverage and public liability insurance maintained by or for the
benefit of Seller (the "EXISTING INSURANCE POLICIES"); provided that
Seller need not deliver such Policies to the extent coverage is
provided by Seller's blanket policies.
(b) A copy of any plans and specifications relating
to the Property in Seller's possession or control.
(c) Copies of any inspection, engineering,
environmental, traffic or architectural studies or reports in Seller's
possession or control which relate to the physical condition or
operation of the Property or recommended improvements thereto.
(d) A copy of the bill or bills issued for the most
recent year for which bills have been issued for all real estate taxes
(including assessed value) and personal property taxes and a copy of
any and all notices pertaining to real estate taxes or assessments
applicable to the Property (collectively, the "TAX BILLS"). Seller
shall promptly deliver to Purchaser a copy of any such bills or notices
received by Seller after the date hereof even if received after the
Closing.
(e) A copy of all outstanding management,
maintenance, repair, service, pest control and supply contracts
(including, without limitation, landscaping agreements), equipment
rental agreements, all contracts for repair to be performed at the
Property, or covering such work performed during the three (3) years
immediately preceding the date hereof if the contract price was in
excess of $10,000.00, and any other contracts relating to or affecting
the Property which will be binding upon the Property or Purchaser
subsequent to the Closing, all as amended (collectively, the
"CONTRACTS").
(f) Copies of all licenses, permits, authorizations
and approvals obtained by Seller with respect to the Property or any
portion thereof (the "GOVERNMENTAL APPROVALS").
(g) A copy of all guarantees, warranties and other
documents or instruments relating to the Real Property, Personal
Property and the Intangible Personal Property.
(h) Copies of pending insurance claims or litigation
documents.
(i) Any other documents and information reasonably
requested by Purchaser and used or useful in connection with Seller's
ownership or operation of the Property.
5
<PAGE>
At all times prior to the Closing and with prior notification
to Seller, Purchaser, its agents and representatives shall be entitled: (i) to
enter onto the Real Property to perform inspections and tests of the Property;
and (ii) to examine and copy any and all books and records maintained by Seller
or its agents relating to receipts and expenditures pertaining to the Property
for the three (3) most recent calendar years and the current calendar year.
After making such tests and inspections, Purchaser agrees to promptly restore
the Property to its condition prior to such tests and inspections. Purchaser
agrees to indemnify and hold harmless Seller from all loss, cost and expense
(including reasonable attorney's fees) incurred, suffered by, or claimed against
Seller by reason of any actual damage to the Property or injury to persons
caused by Purchaser and/or its agents, employees or contractors in exercising
its rights under clauses (i) or (ii) above.
7. REPRESENTATIONS AND WARRANTIES OF SELLER
For purposes of this Agreement, representations and warranties
made "to the knowledge of Seller" shall mean the knowledge, with due inquiry, of
Paul Lowden, an individual ("PAUL LOWDEN"), David Lowden, an individual ("DAVID
LOWDEN"), and Chris Lowden, an individual ("CHRIS LOWDEN") and the officers and
general managers of the Seller. Seller represents and warrants to Purchaser that
the following matters are true and correct as of the execution of this Agreement
and will also be true and correct as of the Closing as if made on the date
thereof:
(a) To Seller's knowledge, there are no material
physical defects in the Property.
(b) The use and operation of the Property is in
compliance with applicable environmental, zoning, subdivision, and land
use laws, and other local, state and federal laws and regulations.
Seller has received no notice from any governmental authority advising
Seller of a violation of any such laws or regulations.
(c) The Survey, plans and specifications, warranties,
and all other contracts or documents required to be delivered to
Purchaser pursuant to this Agreement, are true, correct and complete
copies, and are in full force and effect, without default by any party
and without any right of setoff, except as disclosed in writing at the
time of such delivery.
(d) There are no leases covering the Real Property.
(e) Seller covenants and agrees to deliver to
Purchaser a list of all of the Contracts no later than five (5) days
after the date of this Agreement, for Purchaser's review and approval.
Such list shall be designated by Seller, and deemed upon delivery to
Purchaser, as a true, complete and correct schedule of all of the
Contracts. True, complete and correct copies of such Contracts shall
have been or shall thereafter be delivered to Purchaser for Purchaser's
approval pursuant to SECTION 6. All such Contracts are in full force
and effect, without default by any party and without any claims made
for the right of setoff, except as expressly provided by the terms of
such Contracts or as
6
<PAGE>
disclosed to Purchaser in writing at the time of such delivery. The
Contracts constitute the entire agreements with such vendors
relating to the Property, have not been amended, modified or
supplemented, except for such amendments, modifications and
supplements delivered to Purchaser, and there are no other
agreements with any third parties affecting the Property which will
survive the Closing.
(f) Except as disclosed to Purchaser in writing,
there are no condemnation, environmental, zoning or other land-use
regulation proceedings, either instituted or, to Seller's knowledge,
planned to be instituted, which would detrimentally affect the value of
the Property or the construction use and operation of the Property as a
casino, nor are there any assessments affecting the Property other than
as set forth in the PTR. Both Seller and Purchaser, however,
acknowledge the possibility that Sunset Road and Marks Street may be
widened.
(g) All water, sewer, gas, electric, telephone, and
drainage facilities and all other utilities required by law for
Purchaser's intended use and operation of the Property as a casino are
installed, or may be installed without additional consent of any third
party, across public property or valid easements to the boundary lines
of the Real Property.
(h) The Real Property is zoned "CT" and is designated
by the City as being part of a gaming enterprise district. Seller has
obtained all licenses, permits, easements, and rights-of-way, including
a use permit, required from all governmental authorities having
jurisdiction over the Property or from private parties for the
construction, use and operation of the Property as a casino and to
assure vehicular and pedestrian ingress to and egress from the Real
Property, and all such Intangible Personal Property is assignable to
Purchaser without requiring the consent or authorization of any other
party (or if such consent or authorization is required, Seller shall
have obtained such consent or authorization prior to Closing).
(i) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada,
and is not insolvent; this agreement has been, and all documents to be
executed by Seller which are to be delivered to Purchaser at the
Closing will be, duly authorized, executed, and delivered by Seller,
is, and in the case of documents to be delivered, will be, legal,
valid, and binding obligations of Seller enforceable against Seller in
accordance with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency,
moratorium and other principles relating to or limiting the right of
contracting parties generally), shall be sufficient to convey title (if
they purport to do so), and do not, and will not at the Closing,
violate any provisions of any agreement to which Seller is a party or
to which it is subject.
(j) At the Closing, there will be no outstanding
contracts made by Seller for the construction or repair of any
improvements to the Property which have not been fully paid for and
Seller shall cause to be discharged all mechanics or materialmen's
liens arising from any labor or materials furnished to the Property
prior to the Closing.
7
<PAGE>
(k) The Property is free from infestation by rodents,
termites or other insects or animals.
(l) No "Hazardous Materials" are used, generated,
transported, treated, constructed, deposited, stored, dispensed, placed
or located in, on or under the Property. Seller has no knowledge of the
use, treatment, storage, disposal or existence of any Hazardous
Materials at the Property which might create any liability of owners or
occupants of the Property under any federal, state or local law or
regulation or which would require reporting to a governmental agency.
For the purpose of this Agreement, "HAZARDOUS MATERIALS" shall include,
but not be limited to, (A) substances defined as "hazardous materials,"
"hazardous substances," "hazardous wastes," or "toxic substances" in
the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss. 9601, ET SEQ.; the
Materials Transportation Act, 49 U.S.C. ss. 1801, ET SEQ.; the Resource
Conservation and Recovery Act 42 U.S.C. ss. 6901 ET SEQ.; Section
252117 of the California Health Safety Code; Section 25316 of the
California Health Safety Code; and in the regulations adopted and
publications promulgated pursuant to said laws from time to time, and
(B) any chemical, material, substance or other matter of any kind
whatsoever which is prohibited, regulated or limited by any federal,
state, local, county or regional authority or legislation, including,
without limitation, that enumerated above in clause (A). There is no
asbestos or PCB contained in or stored on the Property.
(m) Seller has not received any notice from any
insurance carrier of any defects or inadequacies in the Property, or in
any portion thereof, which would adversely affect the insurability
thereof or the cost of such insurance. Except as delivered to
Purchaser, there are no pending insurance claims.
(n) Seller covenants and agrees to deliver to
Purchaser a list of all of pending, or, to the best of Seller's
knowledge, threatened legal proceedings or actions of any kind or
character affecting the Property or Seller's interest in the Property
no later than five (5) days after the date of this Agreement. Such list
shall be designated by Seller, and deemed upon delivery to Purchaser,
as a true, complete and correct schedule of all of such pending or
threatened legal proceedings or actions. Other than as set forth on
such list, there are no pending, or, to the best of Seller's knowledge,
threatened legal proceedings or actions of any kind or character
affecting the Property or Seller's interest therein. Except as
delivered to Purchaser, there are no litigation documents relating to
any of the matters set forth the aforementioned list.
(o) Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986
(the "CODE"), and Seller will furnish to Purchaser, prior to the
Closing, an affidavit in the form attached hereto as EXHIBIT E
(p) Pioneer Hotel, Inc. ("Pioneer") received fair
market value from the Seller for the Real Property when the Seller
purchased the Real Property from Pioneer and such purchase was not a
fraudulent conveyance under bankruptcy or any applicable state
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law and it shall be a default under this Agreement if it is
determined that such purchase was a fraudulent conveyance.
The representations and warranties made in this Agreement by
Seller shall be continuing and shall be deemed remade by Seller as of the
Closing with the same force and effect as if in fact made at that time. None of
the representations or warranties made in this Agreement shall merge into any
instrument or conveyance delivered at the Closing but shall survive the Closing
for a period of five (5) years, with the exception of the representations and
warranties made in Sections 7(L) and (O) above which shall survive the Closing
for a period of seven (7) years. Notwithstanding anything to the contrary
herein, the effect of the representations and warranties made in this Agreement
shall not be diminished or deemed to be waived by any inspections, tests or
investigations made by Purchaser or its agents. Purchaser shall, however, advise
Seller of any information it receives which indicates that a representation or
warranty hereinabove made is untrue in any material respect. Seller shall have
five (5) days after receipt of such notice to attempt to remedy the breach or
inaccuracy in such representation or warranty. In the event Seller is unwilling
or unable to remedy such breach or inaccuracy within said five (5) day period,
Purchaser shall have the right, exercisable by giving notice to Seller and
Escrow Holder within five (5) days after the expiration of Seller's five (5) day
cure period, either (i) to terminate Purchaser's obligations under this
Agreement or (ii) to consummate the transaction contemplated hereby and, in
either case, to pursue its rights and remedies hereunder. Notwithstanding
anything to the contrary contained herein, Purchaser shall not, by terminating
or consummating this Agreement pursuant to this Section, be deemed to have
waived any breach or inaccuracy of any representation or warranty of which it is
aware prior to the Closing and which it has disclosed to Seller, and Purchaser
shall have all remedies available, at law and in equity, for the breach of any
such representation or warranty.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that this
Agreement has been, and all the documents to be delivered by Purchaser to Seller
at the Closing will be, duly authorized, executed and delivered by Purchaser,
is, and in the case of the documents to be delivered will be, legal and binding
obligations of Purchaser, is, and in the case of the documents to be delivered
will be, enforceable in accordance with their respective terms (except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or limiting the rights
of contracting parties generally) and do not, and will not at the Closing,
violate any provisions of any agreement to which Purchaser is a party.
9. CONDITIONS PRECEDENT TO CLOSING
The following shall be conditions precedent to Purchaser's
obligation to consummate the purchase and sale transaction contemplated herein
(the "CONDITIONS PRECEDENT"):
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(a) Purchaser shall have delivered to Seller written
notice of its approval of (i) the results of the inspections and tests
conducted pursuant to SECTION 6 hereof, and (ii) all the documents and
information required to be delivered pursuant to said SECTION 6.
Notwithstanding anything to the contrary in this Agreement, Purchaser's
approval or disapproval shall be in its sole and absolute discretion
and without any obligation so to approve.
(b) Title shall have been approved by Purchaser in
accordance with SECTION 5 and the Title Company shall be irrevocably
committed to issue, and shall issue concurrently with the Closing, an
ALTA Extended-Coverage Owner's Policy Form B-1970 of title insurance
insuring Purchaser's interest in the Real Property dated as of the date
and time of the Closing with liability in the amount of the Purchase
Price (which Purchase Price shall include the original principal amount
of the Notes), subject only to the Permitted Encumbrances, together
with such endorsements as Purchaser may require (the "TITLE POLICY").
(c) Seller shall have executed and delivered to
Purchaser a Certificate updating the representations and warranties of
Seller through Closing, which Certificate Seller covenants to deliver
unless new matters or knowledge of a defect arises, in which case
Seller shall deliver a Certificate which, in addition to updating the
representations and warranties, states such new matters or newly
acquired knowledge. If such new matter(s) or newly acquired knowledge
does not constitute a breach of a representation or warranty made
herein, Purchaser may then (i) waive such matter and consummate the
transaction contemplated hereby or (ii) terminate this Agreement, in
which case neither party shall have any further obligations or
liabilities hereunder and any money or documents in escrow shall be
returned to the party depositing the same. If any such new matters or
knowledge discloses or indicates that a representation or warranty made
herein was not true and correct at the time it is made, and Seller is
unwilling or unable to cure such breach within three (3) days after
written notice from Purchaser, Purchaser shall have the right to (i)
terminate its obligations under this Agreement or (ii) consummate the
transaction contemplated hereby, and in either case, to pursue its
rights and remedies available hereunder or at law.
(d) Purchaser shall have received and approved an
environmental site assessment report on the Property from Western
Technologies, Inc.
(e) Seller shall have delivered to Escrow Holder each
of the items described in SECTION 11 below.
(f) The representations and warranties made herein by
Seller shall be true and correct as of the Closing as if made on the
date thereof.
(g) Purchaser and Seller, Santa Fe Gaming
Corporation, a Nevada corporation ("SANTA FE GAMING"), Santa Fe Hotel,
Inc., a Nevada corporation ("SANTA FE HOTEL"), Paul Lowden, David
Lowden, Chris Lowden, on behalf of themselves and all "Covered Persons"
(as defined therein), shall have executed and delivered to Escrow
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Holder a Non-Competition Agreement (the "NON-COMPETITION AGREEMENT"),
in form and substance acceptable to Purchaser in its sole and absolute
discretion, wherein Seller, Santa Fe Gaming, Santa Fe Hotel, Paul
Lowden, David Lowden, and Chris Lowden, on behalf of themselves and all
Covered Persons, agree not to engage in any "gaming operations" (as
defined in the Non-Competition Agreement) within a five (5) mile radius
of Boulder Station Hotel & Casino or Sunset Station Hotel & Casino, for
a term of no less than fifteen (15) years.
(h) Santa Fe Gaming, Santa Fe Hotel and Purchaser
shall have executed and delivered to Escrow Holder a Right of First
Refusal Agreement (the "ROFR AGREEMENT"), in the form attached hereto
as EXHIBIT C.
10. COVENANTS OF SELLER
Seller hereby covenants with Purchaser as follows:
(a) Prior to the Closing, Seller shall not execute
any lease of any portion of the Property without Purchaser's prior
written consent.
(b) Prior to the Closing, Seller shall not, without
the prior written consent of Purchaser, enter into any Contract with
respect to the Property which will survive the Closing or will
otherwise affect the use, operation or enjoyment of the Property after
the Closing.
(c) The Existing Insurance Policies, or equivalent
coverage, shall remain continuously in force through the day of the
Closing.
(d) At all times prior to the Closing, Seller shall
maintain the Property in good order and shall perform when due all of
Seller's obligations under the instruments securing any deed of trust
lien on the Property, Governmental Approvals and other agreements
relating to the Property and otherwise in accordance with applicable
laws, ordinances, rules and regulations affecting the Property. Except
as otherwise provided herein, Seller shall deliver the Property at the
Closing in substantially the same condition as it was on the date
hereof. None of the Personal Property belonging to Seller shall be
removed from the Real Property, unless replaced by Personal Property of
equal or greater utility and value.
(e) Seller has paid or will pay in full, prior to the
Closing, all bills and invoices for labor, goods, material and services
of any kind relating to the Property for the period prior to the
Closing.
(f) After the date hereof and prior to the Closing,
no part of the Property, or any interest therein, will be alienated,
licensed, leased, encumbered or otherwise transferred. Seller shall
deliver to Purchaser title to the Property free and clear of all liens
and encumbrances with the exception of Permitted Encumbrances.
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(g) Upon Purchaser's request, for a period of one (1)
year after the Closing, Seller shall make all Seller's records with
respect to the Property available to Purchaser for inspection, copying
and audit by Purchaser's designated accountants.
(h) Seller shall promptly notify Purchaser of any
change in any condition with respect to the Property or of any event or
circumstance which makes any representation or warranty of Seller to
Purchaser under this Agreement untrue or misleading or any covenant of
Seller under this Agreement incapable or less likely of being
performed, in each case, prior to the Closing Date.
(i) Seller shall use its best efforts to cooperate to
its fullest extent with Purchaser and, at Purchaser's request and on
Purchaser's behalf, with (i) any federal, state, municipal or local
governmental body, authority or agency (collectively, the "GOVERNMENTAL
ENTITIES") having jurisdiction over the Property, or any portion or
aspect thereof and (ii) any community groups or neighboring landowners,
tenants or others with property interest in the vicinity of the
Property, in connection with (A) any entitlements, rights or privileges
Purchaser may now have or may hereafter attempt to acquire with respect
to the development of the Property; and/or (B) the continuity of
discussions with the Governmental Entities and such other
above-described community groups and interested parties, if any,
without any representation or warranty of any kind as to the results of
such cooperation. Seller shall, promptly upon Purchaser's request, duly
execute all documents relating to Purchaser's development of the
Property which, by the terms thereof, or as a result of any
Governmental Entities' insistence, or in order to be legally effective,
require Seller's execution hereof. After the date hereof, neither
Seller nor any entity affiliated therewith shall participate in any
discussions or negotiations, or take any other actions or enter into
any agreements with any official or employees of any Governmental
Entity, except pursuant to written direction from Purchaser; PROVIDED
HOWEVER, that Seller may take such actions as are reasonably necessary
or appropriate to preserve or protect (w) Seller's interest in the
Property, (x) Seller's future use of the Property, (y) the value of the
Property, or (z) Seller's current or future entitlements relating to
the Property. Seller shall use its best efforts to enable or permit
Purchaser to (i) attend alone or with Seller any discussions or
negotiations therewith which Purchaser believes would be beneficial or
(ii) take any action or enter into any agreement with any Governmental
Entity.
The liability of Seller for a breach of the covenants of this
Agreement shall survive the Closing for a period of five (5) years and shall not
merge into any instrument or conveyance delivered at the Closing.
11. SELLER'S CLOSING DOCUMENTS
On or before Closing, Seller shall deliver or cause to be
delivered to Purchaser or Escrow Holder the following, in form and substance
acceptable to Purchaser.
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(a) A Grant Deed, executed and acknowledged by
Seller, in recordable form, conveying the Property to Purchaser free
and clear of all claims, liens and encumbrances except the Permitted
Encumbrances and matters arising by or through Purchaser.
(b) Bill of sale, executed by Seller, assigning,
conveying and warranting to Purchaser title to the Personal Property,
free and clear of all encumbrances other than the Permitted
Encumbrances, together with the original certificates of title thereto,
where applicable.
(c) An assignment (the "CONTRACT ASSIGNMENT"),
executed by Seller, to Purchaser of (i) those of the Contracts, to the
extent they are assignable, which Purchaser has elected in writing to
assume, to the extent they may be assumed (the "ASSIGNED CONTRACTS"),
with the agreement of Seller to indemnify, protect, defend and hold
harmless Purchaser from and against any and all claims, damages,
losses, cost and expenses (including attorney's fees) arising in
connection with the Assigned Contracts and related to the period on or
before the Closing Date (hereinafter defined), (ii) to the extent they
are assignable, any and all guarantees and warranties used or made in
connection with the operation, construction, improvement, alteration or
repair of the Property and (iii) all rights, titles and interests of
Seller and its agents in and to the Intangible Personal Property
(including the Governmental Approvals to the extent assignable). In
preparation for the foregoing, not later than twenty (20) days after
delivery of the list of Contracts required to be delivered under
SECTION 7(E), Purchaser shall deliver to Seller a list of which
Contracts Purchaser has elected to assume, and Seller shall within five
(5) days thereafter, deliver to Purchaser a list detailing which of
such Contracts may be assigned and assumed pursuant to the terms
thereof. If Purchaser is dissatisfied with the list detailing which
Contracts may be assigned and assumed pursuant to their terms,
Purchaser may elect, by giving written notice to Seller and Escrow
Holder, to terminate this Agreement.
(d) The ROFR Agreement by and among Purchaser, Santa
Fe Gaming and Santa Fe Hotel.
(e) The Non-Competition Agreement by and among
Purchaser, Seller, Santa Fe Gaming, Santa Fe Hotel, Paul Lowden, David
Lowden and Chris Lowden.
(f) To the extent not previously delivered to
Purchaser, originals of any Assigned Contracts and instruments covering
the Governmental Approvals.
(g) Reasonable proof of the authority of Seller's
signatories.
(h) An affidavit in the form attached hereto as
EXHIBIT B certifying that Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Code.
(i) Any other documents, instruments or agreements
called for hereunder which have not previously been delivered.
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12. PURCHASER'S CLOSING DOCUMENTS
On or before the Closing, Purchaser shall deliver to Seller or
Escrow Holder:
(a) An assumption of the Assigned Contracts, to the
extent they may be assumed, executed by Purchaser pursuant to which
Purchaser has elected in writing to assume the Assigned Contracts and
indemnify, protect, defend and hold harmless Seller from and against
any and all claims, damages, losses, cost and expenses (including
attorney's fees) arising in connection with the Assigned Contracts and
related to the period after the Closing Date.
(b) The remaining cash portion of the Purchase Price
by wire transfer.
(c) Reasonable proof of the authority of Purchaser's
signatories.
(d) Any other documents, instruments or agreements
reasonably necessary to close the transaction as contemplated by this
Agreement.
13. PRORATIONS AND ADJUSTMENTS
The following shall be prorated and adjusted between Seller
and Purchaser as of the day of the Closing, except as otherwise specified:
(a) Accrued general real estate, personal property
and ad valorem taxes and assessments for the current year shall be
prorated on the basis of bills, if available prior to the Closing.
(b) Such other items that are customarily prorated in
transactions of this nature shall be ratably prorated.
For purposes of calculating prorations, Purchaser shall, unless otherwise
specified, be deemed to be in title to the Property, and, therefore, entitled
to the income therefrom and responsible for the expenses thereof for the
entire day upon which the Closing occurs. All such prorations shall be made
on the basis of the actual number of days of the month which shall have
elapsed as of the day of the Closing and based upon a thirty (30) day month
and three hundred sixty (360) day year. The amount of such prorations shall
be adjusted in cash after the Closing, as and when complete and accurate
information becomes available. Seller and Purchaser agree to cooperate and
use their best efforts to make such adjustments no later than thirty (30)
days after the Closing. Except as set forth in this SECTION 13, all items of
income and expense for the period prior to the Closing will be for the
account of Seller and all items of income and expense for the period on and
after the Closing will be for the account of Purchaser, all as determined by
the accrual method of accounting. Bills received after the Closing which
relate to expenses incurred, services performed or other amounts allocable to
the period prior to the Closing shall be paid by Seller.
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14. CLOSING
The purchase and sale contemplated herein shall close (the
"CLOSING") through an escrow with the Escrow Holder in accordance with the
general provisions of the usual form of escrow agreement used by such company
in similar transactions to the extent not inconsistent herewith (with such
special provisions inserted as may be required to conform with this
Agreement). The Closing shall occur as soon as possible after the execution
of this Agreement, but in any event no later than December 15, 1999;
PROVIDED, HOWEVER, that the parties may mutually agree on another date for
the Closing (the "CLOSING DATE"). At the Closing, Seller shall deliver
possession of the Property to Purchaser. As used in this Agreement, the
"CLOSING" or "CLOSE OF ESCROW" shall mean the date and time the Grant Deed is
recorded in the official Records of the County Recorder's Office of Clark
County, Nevada.
15. CLOSING COSTS
Seller shall pay any documentary transfer tax, revenue tax
or excise tax (and any surtax thereon) due in connection with the
consummation of this transaction, the cost of the Survey and the Title
Policy, the cost of title endorsements required by Purchaser and fifty
percent (50%) of all other escrow and Closing costs. Purchaser shall pay the
fees for recording the Grant Deed and fifty percent (50%) of all other escrow
and Closing costs. Each party shall bear the expense of its own counsel.
16. CONDEMNATION
(a) In the event that, prior to the Closing, all or
any portion of the Property is subject to a taking by public authority,
Purchaser shall have the right, exercisable by giving notice to Seller
within fifteen (15) days after receiving written notice of such taking,
either (i) to terminate this Agreement, in which case neither party
shall have any further rights or obligations hereunder and any money or
documents in escrow shall be returned to the party depositing the same,
or (ii) to accept the Property in its then condition, without a
reduction in the Purchase Price, and to receive an assignment of all of
Seller's rights to any condemnation award payable by reason of such
taking. If Purchaser elects to proceed under clause (ii) above, Seller
shall not compromise, settle or adjust any claims to such award without
Purchaser's prior written consent.
(b) Seller agrees to give Purchaser prompt notice of
any taking of the Property.
17. DEFAULT
(a) If any of Seller's representations or warranties
made herein shall not be true and correct, or if Seller shall have
failed to perform in any material respect any of the covenants and
agreements contained herein to be performed by Seller within the time
for performance as specified herein (including Seller's obligation to
consummate the
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transaction contemplated hereby on the Closing Date), or if Seller
shall otherwise default in its obligations hereunder, Purchaser may,
in addition to pursuing the remedies provided in the next following
sentence, elect at its option: (i) to terminate Purchaser's
obligations under this Agreement by written notice to Seller, in
which case any money or documents in escrow shall be returned to the
party depositing the same or (ii) to Close, in which event Purchaser
may file an action for specific performance of this Agreement to
compel Seller to close this Agreement. Notwithstanding anything to
the contrary herein and in addition to any other remedies available
to Purchaser at law or in equity, Purchaser shall be entitled to
recover damages suffered by Purchaser by reason of Seller's default
hereunder.
(b) IN THE EVENT PURCHASER DEFAULTS IN ITS
OBLIGATIONS TO CLOSE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER
THAN SELLER'S DEFAULT, THE DEPOSIT, BUT NOT ANY INTEREST ACCRUED
THEREON, SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES.
THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER'S ACTUAL
DAMAGES IN THE EVENT OF A DEFAULT BY PURCHASER WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THAT THE AMOUNT OF THE
DEPOSIT REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES.
ALL INTEREST ACCRUED ON THE DEPOSIT SHALL BE PAID TO AND RETAINED BY
PURCHASER. SELLER SHALL HAVE NO OTHER REMEDY FOR ANY DEFAULT BY
PURCHASER.
SELLER'S INITIALS:______ PURCHASER'S INITIALS:______
18. INDEMNIFICATION
(a) Seller and Purchaser hereby agree to indemnify
and hold free and harmless the other from and against any liability,
loss, damages, costs and expenses (including attorney's fees) resulting
from any inaccuracy in or breach of any representation or warranty of
the indemnifying party and any breach or default by such indemnifying
party under any of such indemnifying party's covenants or agreements
contained in this Agreement.
(b) Seller hereby agrees to indemnify and hold free
and harmless Purchaser and Purchaser's directors, officers, agents and
employees from and against any and all liability, loss, damage, cost
and expense (including attorney's fees) of any kind or nature arising
out of the existence or alleged existence of any Hazardous Materials
in, on or under the Real Property, which Hazardous Materials were
present therein, thereon, or thereunder prior to the Closing. This
obligation on the part of Seller shall survive the Closing and shall
not merge into Seller's Grant Deed or any other instrument of
conveyance.
19. BROKER'S COMMISSION
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(a) Seller represents and warrants that no brokerage
commission, finder's fee or other compensation is due or payable by
reason of Seller's actions in the transaction contemplated hereby.
Seller agrees to indemnify and hold harmless Purchaser from and against
any losses, damages, costs and expenses (including attorney's fees)
incurred by Purchaser by reason of any breach or inaccuracy of the
representation and warranty contained in this Paragraph.
(b) Purchaser represents and warrants that, except
for Purchaser's contacts with Seller and its agents, employees and
representatives, Purchaser has not entered into any agreement which
might result in the obligation to pay any brokerage commission,
finder's fee or other compensation with respect to the transaction
contemplated hereby. Purchaser agrees to indemnify and hold harmless
Seller from and against any losses, damages, costs and expenses
(including attorney's fees) incurred by Seller by reason of any breach
or inaccuracy of the representation and warranty contained in this
Paragraph.
(c) The provisions of this SECTION 19 shall survive
the Closing.
20. ESCROW
20.1 ESCROW HOLDER; INSTRUCTIONS. On or prior to the Closing
Date, Purchaser and Seller shall each deposit a counterpart original of this
Agreement executed by such party (or either of them shall deposit a counterpart
executed by both Purchaser and Seller) with Escrow Holder. This Agreement,
together with such further instructions, if any, as the parties shall provide to
Escrow Holder by written agreement, shall constitute the escrow instructions. If
any requirements relating to the duties or obligations of the Escrow Holder
hereunder are not acceptable to Escrow Holder, or if Escrow Holder requires
additional instructions, the parties hereto agree to make such deletions,
substitutions and additions hereto as counsel for Purchaser and Seller shall
mutually approve, which additional instructions shall not substantially alter
the terms of this Agreement unless otherwise expressly provided therein.
20.2 DEPOSITS INTO ESCROW.
(a) Seller shall deposit, or cause to be deposited,
into the Escrow, in time to permit the Closing of the transaction
contemplated hereby on the Closing Date, the items described in SECTION
11. Escrow Holder is hereby authorized to use the foregoing documents
and instruments to Close the Escrow on the Closing Date when: (i)
Escrow Holder holds for the account of Seller all sums to be paid by
Purchaser to Seller through Escrow at the Closing; and (ii) the Title
Company can and will issue the Title Policy concurrently with the
Closing.
(b) Purchaser shall deposit, or cause to be
deposited, into the Escrow, in time to permit the Closing of the
transaction contemplated hereby on the Closing Date:
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(1) The remaining portion of the Purchase
Price set forth in SECTION 3 (including the Notes), over and
above the Deposit and net of all prorations and adjustments as
provided herein.
(2) The additional amount, if any, which
Escrow Holder estimates to be necessary to pay Purchaser's
share under this Agreement of the Closing costs, expenses and
prorations of this transaction; and
(3) Purchaser's Closing Documents set forth
in SECTION 12.
Escrow Holder is hereby authorized to use said funds, instruments and documents
to Close the Escrow on the Closing Date when: (i) Escrow Holder holds for
Purchaser the Grant Deed and (ii) the Title Company can and will issue the Title
Policy concurrently with the Closing.
20.3 CLOSE OF ESCROW. Provided that Escrow Holder shall not
have received written notice from Purchaser of the failure of any Condition
Precedent or of the termination of the Escrow, when Purchaser and Seller have
deposited into the Escrow the items required by this Agreement and the Title
Company can and will issue the Title Policy concurrently with the Closing,
Escrow Holder shall:
(a) Deliver to Purchaser: the Grant Deed by causing
it to be recorded in the Official Records of the Office of the County
Recorder of Clark County, Nevada; and cause such Grant Deed to be
mailed to Purchaser after such Grant Deed has been recorded.
(b) Deliver to Seller: the Purchase Price (including
the Notes) less (i) all amounts to be paid by Seller pursuant to
SECTION 15, (ii) Seller's share of amounts to be prorated by Escrow
Holder under SECTION 13 and (iii) all amounts paid by Escrow Holder in
satisfaction of liens and encumbrances on the Property in order to put
title to the Property into the state required by this Agreement.
(c) Deliver to Purchaser any funds deposited by
Purchaser, and any interest earned thereon, in excess of the amount
required to be paid by Purchaser hereunder.
(d) Cause the Title Policy to be issued to Purchaser
by the Title Company.
20.4 APPLICATION OF SELLER'S PROCEEDS. Seller hereby instructs
Escrow Holder (i) to deduct from the Purchase Price all costs to be paid by
Seller herein, Seller's share of the prorations herein and all amounts required
to be paid to the holders of any lien or encumbrance on the Property in order to
permit Seller to convey title to Purchaser in the condition required by this
Agreement; and (ii) to deliver to Seller, promptly after the Closing, the
remainder of the Purchase Price due to Seller. Seller shall have the right, by
separate instructions to Escrow Holder, to direct the manner and payees of any
funds due Seller.
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21. MISCELLANEOUS.
21.1 All Exhibits attached hereto are incorporated herein by
reference.
21.2 Each individual and entity executing this Agreement
hereby personally represents and warrants that he or it has the capacity set
forth on the signature pages hereof with full power and authority to bind the
party on whose behalf he or it is executing this Agreement to the terms hereof.
21.3 This Agreement is the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements between the parties with respect to the matters contained in
this Agreement. Any waiver, modification, consent or acquiescence with respect
to any provision of this Agreement shall be set forth in writing and duly
executed by or on behalf of the party to be bound thereby. No waiver by any
party of any breach hereunder shall be deemed a waiver of any other or
subsequent breach.
21.4 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument. The signature page
of any counterpart may be detached therefrom without impairing the legal effect
of the signature(s) thereon provided such signature page is attached to any
other counterpart identical thereto except having additional signature pages
executed by other parties to this Agreement attached thereto.
21.5 Time is of the essence in the performance of and
compliance with each of the provisions and conditions of this Agreement.
21.6 Any communication, notice or demand of any kind
whatsoever which either party may be required or may desire to give to or serve
upon the other shall be in writing and delivered by personal service (including
express or courier service); telecopied (with oral confirmation of receipt from
the office of the addressee); or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
SELLER: Sahara Las Vegas Corp.
------- 4949 North Rancho Drive
Las Vegas, Nevada 89120
Attention: Paul W. Lowden
Telephone: (701) 658-4300
Telecopy: (702) 658-4301
PURCHASER: Station Casinos, Inc.
---------- 2411 West Sahara Avenue
Las Vegas, Nevada 89102
Attention: Scott M Nielson, Esq.
Telephone: (702) 367-2458
Telecopy: (702) 221-6613
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With a copy to: Milbank, Tweed, Hadley & McCloy LLP
601 South Figueroa Street, 30th Floor
Los Angeles, CA 90017-5735
Attention: Kenneth J. Baronsky, Esq.
Telephone: (213) 892-4000
Facsimile: (213) 629-5063
ESCROW HOLDER: Stewart Title Company
------------- 3800 Howard Hughes Parkway, 14th Floor
Las Vegas, Nevada 89109-0913
Attention: Linda J. Jones
Telephone: (702) 791-7000
Telecopy: (702) 733-6401
Any party may change its address for notice by written notice given to the
other in the manner provided in this Section. Any such communication, notice
or demand shall be deemed to have been duly given or served on the date
personally served or telecopied, if by personal service or telecopy, or on
the date shown on the return receipt or other evidence of delivery, if mailed.
21.7 The parties agree to execute such instructions to the
Title Company or Escrow Holder and such other instruments and to do such
further acts as may be reasonably necessary to carry out the provisions of
this Agreement.
21.8 The making, execution and delivery of this Agreement
by the parties hereto has been induced by no representations, statements,
warranties or agreements other than those expressly set forth herein.
21.9 The language in all parts of this Agreement shall be
in all cases construed simply according to its fair meaning and not strictly
for or against any of the parties hereto. Section and Paragraph headings of
this Agreement are solely for convenience of reference and shall not govern
the interpretation of any of the provisions of this Agreement.
21.10 This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
21.11 If any action is brought by either party against the
other party, the prevailing party shall be entitled to recover from the other
party reasonable attorney's fees, costs and expenses incurred in connection
with the prosecution or defense of such action. For purposes of this
Agreement, the term "ATTORNEY'S FEES" or "ATTORNEY'S FEES, COSTS AND
EXPENSES" shall mean the fees, costs and expenses of counsel to the parties
hereto, which may include printing, photostat, duplicating and other
expenses, air freight charges and fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the
supervision of an attorney.
21.12 This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and to their respective transferees,
successors, and assigns; provided, however,
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that neither this Agreement nor any of the rights or obligations of Seller
hereunder shall be transferred or assigned by Seller without the prior
written consent of Purchaser. Purchaser shall have the right to assign all of
its right, title and interest under this Agreement to any Purchaser
Affiliated Entity at any time prior to the Closing, whereupon such assignee
shall succeed to all of the rights and obligations of Purchaser hereunder.
For the purposes of this Section, "PURCHASER AFFILIATED ENTITY" shall mean
any entity directly or indirectly controlling, controlled by or under direct
or indirect common control with Station Casinos, Inc.
21.13 Notwithstanding anything to the contrary contained
herein, this Agreement shall not be deemed or construed to make the parties
hereto partners or joint venturers, or to render either party liable for any
of the debts or obligations of the other, it being the intention of the
parties to merely create the relationship of Seller and Purchaser with
respect to the Property to be conveyed as contemplated hereby.
22. CONFIDENTIALITY.
(a) Except as otherwise provided herein, each of Purchaser
and Seller agrees that the provisions of this Agreement shall be confidential
and shall not be disclosed or otherwise released to any other Person (other
than as required by law), without the prior written consent of the other
party hereto. Accordingly, each of Purchaser and Seller shall, and shall
cause its agents and attorneys ("REPRESENTATIVES") to, hold in confidence the
provisions of this Agreement.
(b) In addition, each Purchaser and Seller agrees that,
except with the prior written consent of the other party hereto or as
required or permitted by this Agreement, such party will not, and will direct
its Representatives not to, make any release to the press or other public
disclosure concerning the existence of this Agreement except for such public
disclosure as may be necessary, in the written opinion of such party's
outside counsel, for such party not to be in violation of or default under
any applicable law, regulation or governmental order and except for
disclosure required under the Securities Exchange Act of 1934. If either
Purchaser and Seller proposes to make any disclosure based upon such an
opinion, such party will deliver a copy of such opinion to the other party
together with the text of the proposed disclosure as far in advance of its
disclosure as is reasonably practicable and will in good faith consult with
an consider the suggestions of the other party concerning the nature and
scope of the information proposed to be disclosed.
(c) If either Purchaser and Seller or any of its
Representatives is requested in any judicial or administrative proceeding or
by any governmental or regulatory authority to disclose any information with
respect to this Agreement, such Party shall (i) give the other Party prompt
notice of such request so that the other Party may seek an appropriate
protective order and (ii) consult with the other Party as to the advisability
of taking legally available steps to resist or narrow such a request. The
Party requested to disclose information shall cooperate fully with the other
party in obtaining such an order. If in the absence of a protective order a
Party is nonetheless compelled to disclose information with respect to this
Agreement, the other Party
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agrees that the disclosing Party may make such disclosure without liability
hereunder, provided that it gives the other Party written notice of the
information to be disclosed as far in advance of its disclosure as is
practicable and, upon the other Party's request and at is expense, use best
efforts to obtain reasonable assurances that confidential treatment will be
accorded to such information.
(d) Notwithstanding the foregoing, Purchaser shall have the
right to disclose this Agreement and its contents to its Representatives and
consultants as the Purchaser may reasonably deem necessary to permit
Purchaser to investigate and perform due diligence with respect to the
Property, to the Mayor of the City and to such other parties as agreed upon
in advance by Purchaser and Seller.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the
day and year first above written.
"SELLER" SAHARA LAS VEGAS CORP.,
a Nevada corporation
By: /s/
Name: Paul W. Lowden
Title: President, Chairman of the Board
"PURCHASER" STATION CASINOS, INC.,
a Nevada corporation
By: /s/
Name: Scott M Nielson
Title: Executive Vice President, General
Counsel, Secretary
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EXHIBIT A
LEGAL DESCRIPTION
24
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EXHIBIT B
FORM OF
AFFIDAVIT OF NONFOREIGN STATUS
OF
SAHARA LAS VEGAS CORP.
Sahara Las Vegas Corp., a Nevada corporation ("SELLER"), is
the transferor of that certain real property located in the City of
Henderson, County of Clark, State of Nevada, more particularly described in
EXHIBIT A attached hereto (the "PROPERTY"). The street address of the
Property is _________________________________________________, Henderson,
Nevada.
Section 1445 of the Internal Revenue Code of 1986 (the
"INTERNAL REVENUE CODE") provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign corporation,
partnership, trust or estate. To inform the transferee that withholding of
tax will not be required in connection with the disposition of the Property
pursuant to that certain Purchase and Sale Agreement and Joint Escrow
Instructions dated as of November __, 1999, by and between Seller and Station
Casinos, Inc., a Nevada corporation, the undersigned hereby certifies and
swears to the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate, as those terms are defined in
the Internal Revenue Code and the regulations promulgated thereunder;
2. Seller's U.S. employer identification number is_______; and
3. Seller's address is_____________________________________.
It is understood that this certificate may be disclosed to
the Internal Revenue Service and that any false statement contained herein
could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined
the foregoing certification and, to the best of my knowledge and belief, it
is true, correct and complete, and I further declare that I have authority to
sign this document on behalf of Seller.
Date: __________, 1999
SAHARA LAS VEGAS CORP.,
a Nevada corporation
By:__________________________________
Name:________________________________
Title:_______________________________
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EXHIBIT C
FORM OF ROFR AGREEMENT
26
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EXHIBIT 10.91
RIGHT OF FIRST REFUSAL
This RIGHT OF FIRST REFUSAL (this "AGREEMENT") is made and entered
into as of the 15 day of November, 1999 by and among Station Casinos, Inc., a
Nevada corporation ("STATION"), Santa Fe Gaming Corporation, a Nevada
corporation ("SANTA FE") and Santa Fe Hotel, Inc., a Nevada corporation
("SFHI," together Santa Fe with Station, the "PARTIES").
RECITALS
1. Station and Sahara Las Vegas Corp., a Nevada corporation ("SLVC")
have entered into a Purchase and Sale Agreement and Joint Escrow Instructions
of even date herewith in connection with the purchase of land located at 1200
West Sunset Road, Las Vegas, Nevada (the "PURCHASE AGREEMENT").
2. SFHI and SLVC each is a subsidiary of Santa Fe.
3. It is a condition to the closing of the transaction contemplated
under the Purchase Agreement that SFHI and Santa Fe shall have entered into
this Agreement.
4. The Parties desire to enter into this Agreement.
In consideration of the mutual promises and covenants set
forth in this Agreement and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, SFHI, Santa Fe and Station
agree as follows:
Section 1. RIGHT OF FIRST REFUSAL. SFHI grants to Station a right of
first refusal (i) to purchase New Securities (as defined) which SFHI may,
from time to time, propose to issue and sell, assign or otherwise transfer
subject to the provisions of this SECTION 1 and (ii) to purchase assets and
properties to the extent that SFHI proposes to enter into a transaction or
series of transactions in which it sells, assigns or otherwise transfers all
or a substantial portion of its assets or properties (a "SALE OF ASSETS").
Santa Fe grants to Station a right of first refusal to purchase any
outstanding capital stock of SFHI ("OUTSTANDING Equity") that Santa Fe or any
of its affiliates proposes to sell, assign or otherwise, directly or
indirectly, transfer in any transaction (an "EQUITY SALE"); PROVIDED that a
transaction shall not be considered an Equity Sale to the extent that such
transaction is accomplished by a sale of all or substantially all of the
capital stock of Santa Fe in connection with which no repurchase or similar
right to buy back any such capital stock or other assets of Santa Fe or its
subsidiaries is retained by the Lowdens (as defined).
(a) "NEW SECURITIES" shall mean any capital stock of SFHI and
any evidence of indebtedness or other securities convertible into or
exchangeable for capital stock of SFHI either immediately or upon the
arrival of a specified date or the happening of a
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specified event; PROVIDED that the term "New Securities" shall not
include (i) securities issued in a BONA FIDE sale to purchasers who
take for investment purposes to the extent that following such
transaction (including any transaction related to or contemplated in
connection with such transaction) (A) no "person" (as such term is
used in Section 13(d) and Section 14(d) of the Securities Exchange
Act of 1934 (the "1934 ACT") ("PERSON") other than the Chris Lowden,
David Lowden or Paul Lowden (individually or collectively, the
"LOWDENS") becomes a "beneficial owner" (as defined in Rule 13d-3 or
Rule 13d-5 of the 1934 Act, except that a person shall be deemed to
be a beneficial owner of all securities that such person has the
right to acquire, whether such right is exercisable immediately or
not) ("BENEFICIAL OWNER" and such ownership, "BENEFICIAL
OWNERSHIP"), directly or indirectly of securities representing more
than 15% of the combined voting power of, or economic interests in,
SFHI's capital stock, (B) no Person Beneficially Owns, directly or
indirectly, securities representing more than the percentage of the
combined voting power of, or economic interests in, SFHI's capital
stock Beneficially Owned directly or indirectly by the Lowdens and
(C) no Person has the right, directly or indirectly, to appoint
directors of SFHI; (ii) securities issued pursuant to the
acquisition of another business entity or segment of any such entity
by SFHI by merger, purchase of substantially all of the assets or
other reorganization by which Santa Fe comes to own, directly or
indirectly, more than 50% of the voting power of such entity to the
extent that following such issuance (A) no Person other than the
Lowdens becomes a Beneficial Owner directly or indirectly of
securities representing more than 15% of the combined voting power
of, or economic interests in, SFHI's capital stock, (B) no Person
Beneficially Owns, directly or indirectly, securities representing
more than the percentage of the combined voting power of, or
economic interests in, SFHI's capital stock Beneficially Owned
directly or indirectly by the Lowdens and (C) no Person has the
right, directly or indirectly, to appoint directors of SFHI; (iii)
any borrowings, direct or indirect, from financial institutions or
other persons by SFHI, including any type of loan or payment
evidenced by any type of debt instrument (provided that such
borrowings do not include equity features such as warrants, options
or other rights to purchase capital stock or conversion or exchange
rights for equity with respect to the capital stock of SFHI); (iv)
securities issued to employees, consultants, officers or directors
of SFHI at not less than fair market value at the time of issuance
pursuant to any currently existing stock option, stock purchase or
stock bonus plan, agreement or arrangement approved by the board of
directors of SFHI; or (v) securities issued in any stock split,
stock dividend or stock combination of SFHI.
(b) In the event SFHI proposes to undertake an issuance of New
Securities or a Sale of Assets or Santa Fe proposes to undertake an
Equity Sale, SFHI or Santa Fe, as the case may be, shall give Station
written notice ("PROPOSED TRANSACTION NOTICE") of its intention which
describes the type of New Securities, the assets being sold in such
Sale of Assets (the "ASSETS") or the Equity Sale, the price and the
general terms upon which they issuance or sale, as the case may be,
shall occur. Station will have 45 days (the "EXERCISE PERIOD") after
delivery of any such Proposed Transaction Notice to agree to purchase
all or, in the event that the New Securities are offered in tranches, a
portion of such New Securities, Outstanding Equity or the Assets for
the price and upon the terms specified in such Proposed Transaction
Notice by giving written notice to SFHI or Santa Fe, as the
2
<PAGE>
case may be, and stating therein the quantity of such New
Securities, Outstanding Equity or Assets that it will purchase.
(c) If Station fails fully to exercise its right of first
refusal within the Exercise Period, then SFHI shall have 30 days
thereafter to sell, assign or otherwise transfer or enter into an
agreement to sell, assign or otherwise transfer (which agreement
shall require the sale to be closed within 180 days of the date on
which it was entered into by SFHI or Santa Fe, if at all) that
portion of the New Securities, Outstanding Equity or Assets with
respect to which Station did not exercise its right of first
refusal, at a price and on terms identical to those specified in the
Proposed Transaction Notice. If SFHI has not sold, assigned or
otherwise transferred the New Securities or entered into an
agreement to sell, assign or otherwise transfer the New Securities,
sold, assigned or otherwise transferred the Assets or entered into
an agreement to sell, assign or otherwise transfer the Assets or
Santa Fe has not sold, assigned or otherwise transferred the
Outstanding Equity or entered into an agreement to sell, assign or
otherwise transfer the Outstanding Equity, as the case may be, prior
to expiration of the relevant periods noted above, SFHI shall not
issue or sell, assign or otherwise transfer any New Securities or
conduct a Sale of Assets and Santa Fe shall not sell, assign or
otherwise transfer the Outstanding Equity, as the case may be,
without first again offering such securities or Assets to Station in
the manner set forth above.
Section 2. NOTICES. All notices, demands or requests required or
permitted under this Agreement must be in writing, and shall be made by hand
delivery, certified mail, overnight courier service, telex or telecopier to
the address, telecopy number or telex number set forth below such Party's
name on the signature page hereto, but any party may designate a different
address by a notice similarly given to the other Party. Any such notice or
communication shall be deemed given when delivered by hand, if delivered on a
day other than a Saturday, Sunday or a day on which commercial banks are
authorized or required to close in the State of Nevada (a "BUSINESS DAY"),
the next Business Day after delivery by hand if delivered by hand on a day
that is not a Business Day; four Business Days after being deposited in the
United States mail, postage prepaid, return receipt requested, if mailed; on
the next Business Day after being deposited for next day delivery with
Federal Express or a similar overnight courier; when receipt is acknowledged,
if telecopied on a Business Day; and the next Business Day following the day
on which receipt is acknowledged if telecopied on a day that is not a
Business Day.
Section 3. MISCELLANEOUS.
(a) EFFECTIVENESS. This Agreement shall be effective at the
Closing (as such term is defined in the Purchase Agreement).
(b) REPRESENTATIONS. Each individual and entity executing this
Agreement hereby personally represents and warrants that he or it has
the capacity set forth on the signature pages hereof with full power
and authority to bind the party on whose behalf he or it is executing
this Agreement to the terms hereof.
(c) INTEGRATION. This Agreement is the entire agreement among
the Parties with respect to the subject matter hereof and supersedes
all prior agreements between the
3
<PAGE>
parties with respect to the matters contained in this Agreement. Any
waiver, modification, consent or acquiescence with respect to any
provision of this Agreement shall be set forth in writing and duly
executed by or on behalf of the party to be bound thereby. No waiver
by any party of any breach hereunder shall be deemed a waiver of any
other or subsequent breach.
(d) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument.
The signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to
this Agreement attached thereto.
(e) INTERPRETATION. The language in all parts of this
Agreement shall be in all cases construed simply according to its fair
meaning and not strictly for or against any of the parties hereto.
Section and Paragraph headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any
of the provisions of this Agreement.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
(g) ATTORNEY'S FEES. If any action is brought by either party
against the other party, the prevailing party shall be entitled to
recover from the other party reasonable attorney's fees, costs and
expenses incurred in connection with the prosecution or defense of such
action. For purposes of this Agreement, the term "attorney's fees" or
"attorney's fees, costs and expenses" shall mean the fees, costs and
expenses of counsel to the parties hereto, which may include printing,
photostat, duplicating and other expenses, air freight charges and fees
billed for law clerks, paralegals and other persons not admitted to the
bar but performing services under the supervision of an attorney.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and to
their respective transferees, successors, and assigns; provided,
however, that neither this Agreement nor any of the rights or
obligations of Santa Fe or SFHI hereunder shall be transferred or
assigned by Santa Fe or SFHI without the prior written consent of
Station.
(j) TERM. The term of this Agreement shall be fifteen (15)
years.
4
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date above first written.
STATION CASINOS, INC.
By: /s/ Scott M Nielson
Title: Executive Vice President, General
Counsel, Secretary
Address: 2411 West Sahara Avenue
Las Vegas, Nevada 89102
Attn: Scott M. Nielson
Phone: (702) 221-6613
Fax: (702) 367-2411
SANTA FE HOTEL, INC.
By: /s/ Paul W. Lowden
Title: Chairman of the Board
Address: 4949 North Rancho Drive
Las Vegas, Nevada 89130
Attn: Paul W. Lowden
Phone: (702) 658-4300
Fax: (702) 658-4301
SANTA FE GAMING CORPORATION
By: /s/ Paul W. Lowden
Title: President, Chairman of the Board
Address: 4949 North Rancho Drive
Las Vegas, Nevada 89130
Attn: Paul W. Lowden
Phone: (702) 658-4300
Fax: (702) 658-4301
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EXHIBIT 10.92
NON-COMPETITION AGREEMENT
This NON-COMPETITION AGREEMENT (this "AGREEMENT") is entered into among
Station Casinos, Inc., a Nevada corporation ("STATION"), Santa Fe Gaming
Corporation, a Nevada corporation ("SANTA FE"), Santa Fe Hotel, Inc., a Nevada
corporation ("SFHI") and Sahara Las Vegas Corp., a Nevada corporation ("SLVC"
collectively, with Santa Fe, SLVC and SFHI, the "SANTA FE ENTITIES") and Paul
Lowden, David Lowden, Chris Lowden each on their own behalf and on behalf of
their spouses and lineal descendants (collectively, "LOWDEN") and is dated as of
November 15, 1999.
Station and SLVC have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions, dated as of November 15, 1999 (the
"PURCHASE AGREEMENT"). SLVC and SFHI each is a wholly-owned subsidiary of Santa
Fe. SFHI conducts business in the locals gaming market in Las Vegas. Certain
subsidiaries of Station also conduct business in the locals gaming market in Las
Vegas. It is a condition to the closing under the Purchase Agreement that this
Agreement shall have been entered into by the parties hereto. This Agreement
shall be effective at the Closing (as defined in the Purchase Agreement).
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Each of the Santa Fe Entities and Lowden, jointly and severally, and
on behalf of each of their respective existing and future subsidiaries,
directors, officers, agents, employees, predecessors, successors,
assigns and spouses and any affiliated person that directly or
indirectly controls, is under common control or is controlled by any
such person and any person in which any such person has more that a 10%
voting or economic interest (each "COVERED PERSON") agrees, for a
period of fifteen years from the date hereof, that no such Covered
Person shall directly or indirectly, engage or, participate in, and
shall not have any interest as a shareholder, partner, joint venturer,
proprietor, employee, officer, director, agent, security holder,
creditor or consultant, or in any other capacity, or have any other
direct or indirect financial interest in or in connection with, the
business or operations of any business, firm, person, partnership,
corporation, enterprise or concern, which is in the gaming business or
is in any manner competitive with the business of Station within a
five-mile radius of Boulder Station Hotel & Casino ("BOULDER") or
Sunset Station Hotel & Casino ("SUNSET"). As used in this provision,
"gaming business" shall mean the casino, hotel-casino and other
gambling activity involving games of skill and chance owned or
conducted by the referenced party.
2. The parties recognize that, because of the nature of the subject
matter of this Agreement, it would be impracticable and extremely
difficult to determine actual damages to Station in the event of a
breach of this Agreement by a Covered Party. Accordingly, if a Covered
Party commits a breach or threatens to commit a breach of any
<PAGE>
of the provisions of this Agreement, Station shall have the right to
an injunction or other equitable relief including the right to
proceed to have the provisions of this Agreement specifically
enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach
will cause irreparable injury to Station and that money damages will
not provide an adequate remedy to Station. The rights of Station to
equitable relief in the enforcements of this Agreement shall be in
addition to any and all other remedies available through an action
in law.
If any of the covenants contained in paragraph 1, or any part thereof,
is held to be unenforceable because of the duration of such provisions
or the area covered thereby, the undersigned agree that the court
making such determination shall have the power to reduce the duration
and the area or both of any such provision and, in its reduced form,
said provision shall then be enforceable. The parties hereto intend to
and hereby confer jurisdiction to enforce the covenants contained in
paragraph 1 upon the courts of any Nevada within the geographical scope
of such covenants.
3. Each individual and entity executing this Agreement hereby
personally represents and warrants that he or it has the capacity set
forth on the signature pages hereof with full power and authority to
bind the party on whose behalf he or it is executing this Agreement to
the terms hereof.
4. This Agreement is the entire Agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to the matters contained in
this Agreement. Any waiver, modification, consent or acquiescence with
respect to any provision of this Agreement shall be set forth in
writing and duly executed by or on behalf of the party to be bound
thereby. No waiver by any party of any breach hereunder shall be deemed
a waiver of any other or subsequent breach.
5. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument. The signature
page of any counterpart may be detached therefrom without impairing the
legal effect of the signature(s) thereon provided such signature page
is attached to any other counterpart identical thereto except having
additional signature pages executed by other parties to this Agreement
attached thereto.
6. Any communication, notice or demand of any kind whatsoever which
either party may be required or may desire to give to or serve upon the
other shall be in writing and delivered by personal service (including
express or courier service); telecopied (with oral confirmation of
receipt from the office of the addressee); or by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
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Santa Fe: Santa Fe Gaming Corporation
Address: 4949 North Rancho Drive
Las Vegas, Nevada 89130
Attn: Paul W. Lowden
Phone: (702) 658-4300
Fax: (702) 658-4301
SFHI: Santa Fe Hotel, Inc.
Address: 4949 North Rancho Drive
Las Vegas, Nevada 89130
Attn: Paul W. Lowden
Phone: (702) 658-4300
Fax: (702) 658-4301
SLVC: Sahara Las Vegas Corp.
Address: 4949 North Rancho Drive
Las Vegas, Nevada 89130
Attn: Paul W. Lowden
Phone: (702) 658-4300
Fax: (702) 658-4301
Station: Station Casinos, Inc.
2411 West Sahara Avenue
Las Vegas, Nevada 89102
Attention: Scott M Nielson, Esq.
Telephone: (702) 367-2458
Telecopy: (702) 221-6613
With a copy to: Milbank, Tweed, Hadley & McCloy LLP
601 South Figueroa Street, 30th Floor
Los Angeles, CA 90017-5735
Attention: Kenneth J. Baronsky, Esq.
Telephone: (213) 892-4000
Facsimile: (213) 629-5063
Lowden: Paul W. Lowden
Address: 4949 North Rancho Drive
Las Vegas, Nevada 89130
Phone: (702) 658-4300
Fax: (702) 658-4301
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Any party may change its address for notice by written notice
given to the other in the manner provided in this Section. Any
such communication, notice or demand shall be deemed to have
been duly given or served on the date personally served or
telecopied, if by personal service or telecopy, or on the date
shown on the return receipt or other evidence of delivery, if
mailed.
7. The language in all parts of this Agreement shall be in all cases
construed simply according to its fair meaning and not strictly for or
against any of the parties hereto. Section and Paragraph headings of
this Agreement are solely for convenience of reference and shall not
govern the interpretation of any of the provisions of this Agreement.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada.
9. If any action is brought by either party against the other party,
the prevailing party shall be entitled to recover from the other party
reasonable attorney's fees, costs and expenses incurred in connection
with the prosecution or defense of such action. For purposes of this
Agreement, the term "attorney's fees" or "attorney's fees, costs and
expenses" shall mean the fees, costs and expenses of counsel to the
parties hereto, which may include printing, photostat, duplicating and
other expenses, air freight charges and fees billed for law clerks,
paralegals and other persons not admitted to the bar but performing
services under the supervision of an attorney.
10. This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and to their respective transferees,
successors, and assigns; provided, however, that neither this Agreement
nor any of the rights or obligations of Santa Fe or Lowden hereunder
shall be transferred or assigned by Santa Fe or Lowden without the
prior written consent of Station.
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
"SANTA FE" SANTA FE GAMING CORPORATION,
a Nevada corporation
By: /s/
Name: Paul W. Lowden
Title: President, Chairman of the Board
"SFHI" SANTA FE HOTEL, INC.,
a Nevada corporation
By: /s/
Name: Paul W. Lowden
Title: Chairman of the Board
"SLVC" SAHARA LAS VEGAS CORP.,
a Nevada corporation
By: /s/
Name: Paul W. Lowden
Title: President, Chairman of the Board
"LOWDEN" ____/s/_________________
Paul Lowden
____/s/_________________
David Lowden
____/s/_________________
Chris Lowden
"STATION" STATION CASINOS, INC.,
a Nevada corporation
By: /s/
Name: Scott M Nielson
Title: Executive Vice President, General
Counsel, Secretary
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<PAGE>
EXHIBIT 10.93
FIRST AMENDMENT TO NON-COMPETITION AGREEMENT
This FIRST AMENDMENT TO NON-COMPETITION AGREEMENT (this "FIRST
AMENDMENT") is entered into among Station Casinos, Inc., a Nevada corporation
("STATION"), Santa Fe Gaming Corporation, a Nevada corporation ("SANTA FE"),
Santa Fe Hotel, Inc., a Nevada corporation ("SFHI") and Sahara Las Vegas
Corp., a Nevada corporation ("SLVC" collectively, with Santa Fe, SLVC and
SFHI, the "SANTA FE ENTITIES") and Paul Lowden, David Lowden, Chris Lowden
each on their own behalf and on behalf of their spouses and lineal
descendants (collectively, "LOWDEN") and is dated as of November 16, 1999.
Station, the Santa Fe Entities and Lowden have entered into that
certain Non-Competition Agreement dated as of November 15, 1999 (the
"Original Agreement", and as amended herein, the "Agreement"). Station, the
Santa Fe Entities and Lowden now desire to amend the Original Agreement as
provided herein.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
The Original Agreement is hereby amended by deleting Paragraph 1 in
its entirety and replacing the following in lieu thereof:
1. EACH OF THE SANTA FE ENTITIES AND LOWDEN, JOINTLY AND SEVERALLY, AND
ON BEHALF OF EACH OF THEIR RESPECTIVE EXISTING AND FUTURE SUBSIDIARIES,
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, PREDECESSORS, SUCCESSORS,
ASSIGNS AND SPOUSES AND ANY AFFILIATED PERSON THAT DIRECTLY OR
INDIRECTLY CONTROLS, IS UNDER COMMON CONTROL OR IS CONTROLLED BY ANY
SUCH PERSON AND ANY PERSON IN WHICH ANY SUCH PERSON HAS MORE THAT A 10%
VOTING OR ECONOMIC INTEREST (EACH "COVERED PERSON") AGREES, FOR A
PERIOD OF FIFTEEN YEARS FROM THE DATE HEREOF, THAT NO SUCH COVERED
PERSON SHALL DIRECTLY OR INDIRECTLY, ENGAGE OR, PARTICIPATE IN, AND
SHALL NOT HAVE ANY INTEREST AS A SHAREHOLDER, PARTNER, JOINT VENTURER,
PROPRIETOR, EMPLOYEE, OFFICER, DIRECTOR, AGENT, SECURITY HOLDER,
CREDITOR OR CONSULTANT, OR IN ANY OTHER CAPACITY, OR HAVE ANY OTHER
DIRECT OR INDIRECT FINANCIAL INTEREST IN OR IN CONNECTION WITH, THE
BUSINESS OR OPERATIONS OF ANY BUSINESS, FIRM, PERSON, PARTNERSHIP,
CORPORATION, ENTERPRISE OR CONCERN, WHICH IS IN THE GAMING BUSINESS OR
IS IN ANY MANNER COMPETITIVE WITH THE BUSINESS OF STATION WITHIN A
FIVE-MILE RADIUS OF BOULDER STATION HOTEL & CASINO ("BOULDER") OR
SUNSET STATION HOTEL & CASINO ("SUNSET"), EXCLUDING THEREFROM ANY
PORTION OF THAT AREA WHICH LIES WITHIN ONE-HALF (1/2) MILE OF THE
CENTERLINE OF LAS VEGAS BOULEVARD. AS USED IN THIS PROVISION, "GAMING
<PAGE>
BUSINESS" SHALL MEAN THE CASINO, HOTEL-CASINO AND OTHER GAMBLING
ACTIVITY INVOLVING GAMES OF SKILL AND CHANCE OWNED OR CONDUCTED BY THE
REFERENCED PARTY.
2. Except as expressly amended herein, the Agreement remains in full
force and effect, and Station, the Santa Fe Entities and Lowden ratify the
Agreement as amended herein.
3. Any capitalized term used and not otherwise defined herein shall
have the meaning given to such term in the Original Agreement.
4. Each individual and entity executing this First Amendment hereby
personally represents and warrants that he or it has the capacity set forth
on the signature pages hereof with full power and authority to bind the party
on whose behalf he or it is executing this First Amendment to the terms
hereof.
5. This First Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one and the same instrument. The
signature page of any counterpart may be detached therefrom without impairing
the legal effect of the signature(s) thereon provided such signature page is
attached to any other counterpart identical thereto except having additional
signature pages executed by other parties to this First Amendment attached
thereto.
6. This First Amendment shall be governed by and construed in
accordance with the laws of the State of Nevada.
7. This First Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and to their respective transferees,
successors, and assigns; provided, however, that neither this First Amendment
nor any of the rights or obligations of Santa Fe or Lowden hereunder shall be
transferred or assigned by Santa Fe or Lowden without the prior written
consent of Station.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Non-Competition Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
"SANTA FE" SANTA FE GAMING CORPORATION,
a Nevada corporation
By: /s/
Name: Paul W. Lowden
Title: President,Chairman of the
Board
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<PAGE>
"SFHI" SANTA FE HOTEL, INC.,
a Nevada corporation
By: /s/
Name: Paul W. Lowden
Title: Chairman of the Board
"SLVC" SAHARA LAS VEGAS CORP.,
a Nevada corporation
By: /s/
Name: Paul W. Lowden
Title: President
"LOWDEN" /s/
--------------------------
Paul Lowden
/s/
--------------------------
David Lowden
/s/
--------------------------
Chris Lowden
"STATION" STATION CASINOS, INC.,
a Nevada corporation
By: /s/
Name: Glenn C. Christenson
Title: Executive Vice President,
Chief Financial Officer,
Chief Administrative Officer
3
<PAGE>
EXHIBIT 10.94
UNSECURED PROMISSORY NOTE
$14,750,000 November 15, 1999
Las Vegas, Clark County, Nevada
FOR VALUE RECEIVED, the undersigned, Station Casinos, Inc., a Nevada
corporation ("Maker"), having an address of 2411 W. Sahara Avenue, Las Vegas,
Nevada, 89102, promises to pay to Sahara Las Vegas Corp., a Nevada corporation
("Holder"), as provided herein, the principal sum of Fourteen Million, Seven
Hundred Fifty Thousand and No/100 Dollars ($14,750,000.00), with accrued
interest thereon at the rate of seven and one-half percent (7.5%) per annum, no
later than sixty (60) days following Maker's receipt from Holder of Holder's
written demand for payment, or if no demand is made, such principal and all
accrued interest at the rate indicated shall be due and payable in full on
December 31, 2004.
Any notice to Maker shall be given by personal service or by mailing
such notice by certified U. S. Mail addressed to Maker at the address set forth
above, or to such other address as Maker may designate by written notice to
Holder. Maker waives presentment, notice of dishonor, protest and notice of
protest.
This note has been assigned and pledged to SunAmerica Life Insurance
Company, as collateral agent (the "Collateral Agent"), under the Second Amended
and Restated Note Purchase Agreement dated as of November 19, 1997, as amended.
Maker agrees that all payments under this note shall be made in immediately
available funds to the following account unless otherwise agreed in writing by
the Collateral Agent:
Bankers Trust Company
ABA No. 021-001-033
Account #: 99-911-145
FFC: 99580
Reference: Sahara Las Vegas
This note shall be governed and construed by and in accordance with the
laws of the State of Nevada. Any action brought to enforce this note shall be
filed only in the Eighth Judicial District Court of the State of Nevada in and
for the County of Clark. In the event an action is brought to enforce or
construe this note, the prevailing party shall be entitled to recover its
reasonable attorneys' fees and costs of suit incurred therein.
This note is unsecured.
IN WITNESS WHEREOF, I have set forth my hand the day and year first
above written.
STATION CASINOS, INC.,
a Nevada corporation
By: /s/
Scott M Nielson
Executive Vice President
General Counsel
Secretary
<PAGE>
RIDER TO STATION CASINOS, INC. NOTE
ENDORSEMENT:
The undersigned hereby assigns and transfers to the order of SunAmerica
Life Insurance Company, as Collateral Agent, the Unsecured Note to
which this Endorsement is attached, dated November 15, 1999, made by
Station Casinos, Inc. to the order of Sahara Las Vegas Corp.
SAHARA LAS VEGAS CORP
Name: /s/
Thomas K. Land
Title: Sr. Vice President and Chief
Financial Officer
Date: 11/15/99
<PAGE>
EXHIBIT 10.95
SANTA FE GAMING CORPORATION
SAHARA LAS VEGAS CORP.
SECOND AMENDMENT
TO SECOND AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED NOTE
PURCHASE AGREEMENT (this "AMENDMENT") is dated as of November 15, 1999 and
entered into by and among Santa Fe Gaming Corporation, a Nevada corporation
("SGC"), Sahara Las Vegas Corp., a Nevada corporation ("COMPANY"), SunAmerica
Life Insurance Company, an Arizona life insurance company ("SUNAMERICA"), Anchor
National Life Insurance Company, an Arizona life insurance company ("Anchor"),
and SunAmerica, as Collateral Agent, and, for purposes of Sections 4 and 5
hereof, SGC and the other Credit Support Parties (as defined in Section 4
hereof) listed on the signature pages hereof, and is made with reference to that
certain Second Amended and Restated Note Purchase Agreement dated as of November
25, 1997 (as amended, the "NOTE PURCHASE AGREEMENT"), by and among SGC, Company,
SunAmerica and Anchor. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Note Purchase Agreement.
RECITALS
WHEREAS, the Company has entered into the Purchase and Sale
Agreement and Joint Escrow Instructions dated as of November 15, 1999 (the
"Henderson Sale Agreement") with Station Casinos Inc., a Nevada corporation
("Station Casinos") and SGC and the Company have requested that the Holders
approve the sale of the Henderson Facility pursuant to the Henderson Sale
Agreement, the application of proceeds thereof as provided herein and the other
amendments to the Note Purchase Agreement as further provided herein;
WHEREAS, certain Events of Default have occurred and are
continuing under the Note Purchase Agreement with respect or related to Pioneer
Finance and Pioneer Hotel, Inc. ("Pioneer Hotel"), including but not limited to
the Events of Default under Sections 7.6 and 7.7 thereof occurring as a result
of the petitions for relief filed under Chapter 11 of the Bankruptcy Code by
Pioneer Finance and Pioneer Hotel on February 23, 1999 and April 12, 1999,
respectively (such Events of Default together with any Event of Default arising
solely as a result of SGC's guaranty of the Pioneer Bonds, the "Pioneer
Bankruptcy Defaults");
WHEREAS, SGC, the Company and the other Credit Support Parties
acknowledge that the Pioneer Bankruptcy Defaults and other Potential Events of
Default and other Events of Default have occurred and are continuing under the
Note Purchase Agreement and the other Basic Documents and that nothing in this
Amendment or otherwise shall constitute a release, forbearance or other waiver
by SunAmerica or any of its successors and assigns of any right or remedy it may
have, including, without limitation, any right or remedy SunAmerica may have
under any Basic Document or otherwise as a result of any Events of Default or
Potential Events of Default.
<PAGE>
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1 AMENDMENTS TO THE NOTE PURCHASE AGREEMENT
1.1 AMENDMENT TO SECTION 1.1: DEFINITIONS AND CONSTRUCTION
A. Subsection 1.1 of the Note Purchase Agreement is hereby
amended by adding thereto the following definitions, which shall be inserted in
proper alphabetical order:
"`HENDERSON SALE' means the sale of the Henderson Facility
pursuant to the Henderson Sale Agreement."
"`HENDERSON SALE AGREEMENT' means the Purchase and Sale
Agreement and Joint Escrow Instructions dated as of November 15, 1999 between
the Company and Station Casinos."
"`SECOND AMENDMENT' means that certain Second Amendment to
Second Amended and Restated Note Purchase Agreement dated as of November 15,
1999 among SGC, the Company and SunAmerica and, for purposes of Sections 4 and 5
thereof, the other Credit Support Parties."
"`SECOND AMENDMENT EFFECTIVE DATE' has the meaning assigned
to that term in the Second Amendment."
"`STATION CASINOS' means Station Casinos Inc., a Nevada
Corporation."
"`STATION CASINOS NOTE' means the Unsecured Promissory Note in
the aggregate principal amount of $14,750,000 issued by Station Casinos in favor
of the Company in connection with the Henderson Sale."
B. Section 1.1 of the Note Purchase Agreement is hereby amended by amending and
restating the following definition:
"`HENDERSON RELEASE DATE' means the date on which Company has
prepaid the Notes (together with applicable interest and premium) with funds
received from Station Casinos pursuant to the Henderson Sale Agreement in the
amounts required pursuant to Section 2.5C(iv) hereof, has received and pledged
and delivered to the Collateral Agent the Station Casinos Note and has
transferred the Henderson Facility to Station Casinos."
1.2 AMENDMENT TO SECTION 2.5(C)(IV)
Section 2.5(C)(iv) of the Note Purchase Agreement is hereby
amended and restated as follows:
"(iv) REDEMPTION UPON SALE OF HENDERSON PREMISES. On the
Henderson Release Date, the Company shall apply not less than $20,600,000 of the
cash proceeds received in connection with the Henderson Sale to pay in full all
of the following:
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<PAGE>
(a) $675,000 shall be paid to SunAmerica and Anchor,
as assignee of CSFB, on a pro rata basis, as payment in full of the fee
described in the first sentence of Section 2.4F of this Agreement;
(b) $1,425,000 shall be paid to SunAmerica as payment
in full of the fee described in the second sentence of Section 2.4F of
this Agreement;
(c) $1,336,875 shall be paid to SunAmerica as payment
in full of the unpaid interest due as of June 20, 1999 on the Tranche B
Notes that was deferred pursuant to the First Amendment (the "Deferred
Tranche B Amount") and, in addition, all accrued interest on the
Deferred Tranche B Amount through and including the Henderson Release
Date shall be paid to SunAmerica;
(d) All other accrued and unpaid interest on the
Tranche A Notes and the Tranche B Notes through and including the
Henderson Release Date shall be paid to SunAmerica and Anchor; and
(e) $14,500,000 in principal amount of the Tranche A
Notes shall be paid to SunAmerica and Anchor and shall be applied on a
pro rata basis to repay the principal amount of the Tranche A Notes
held by SunAmerica and Anchor respectively, and
(f) The difference between the payments described
above in this Section 2.5(C)(iv) and $20,600,000 shall be deposited in
the Additional Collateral Account.
SunAmerica and Anchor shall deliver payment instructions to
the Company prior to the Henderson Release Date with regard to the payments
required pursuant to this Section 2.5(C)(iv)."
1.3 AMENDMENT TO SECTION 6.1
The first sentence of Section 6.1 is amended and restated as
follows:
"SGC and Company will not, and will not permit any of their
Subsidiaries to, directly or indirectly, declare, make or pay any Restricted
Junior Payment; PROVIDED that so long as no Event of Default or Potential Event
of Default has occurred and is continuing, Company may dividend or otherwise
distribute SFHI Notes to SGC to the extent expressly permitted under subsection
2.5F; provided further, that following the Henderson Release Date and the
prepayment of the Notes contemplated by Section 2.5(C)(iv), so long as no Event
of Default has occurred and continuing other than the Pioneer Bankruptcy
Defaults, Company may dividend or otherwise distribute to SGC (a) any excess
cash proceeds (not to exceed $1,398,925.39) received by the Company in
connection with the Henderson Sale on the Henderson Release Date that are not
applied as provided in Section 2.5(c) (iv), are not required to pay any
outstanding obligations relating to the development of the Henderson Facility
and are not required to pay costs associated with the closing of the Henderson
Sale; and (b) cash received by the Company from Station Casinos under the
Station Casinos Note; provided that amount of cash dividended or distributed
pursuant to this clause (b) shall not exceed $7,500,000 in the aggregate;
provided,
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<PAGE>
however, that SGC shall only use any such Station Casinos Note payments it
receives to acquire Pioneer Bonds, to contribute such cash to Pioneer Finance
for the sole purpose of acquiring Pioneer Bonds or to make a payment to SFHI
in an amount not greater than the value of SFHI's obligations under the
Non-Competition Agreement and the ROFR Agreement (as such terms are defined
in the Henderson Sale Agreement) as demonstrated to the satisfaction of the
Collateral Agent."
1.4 ADDITION OF SECTION 6.11
The Note Purchase Agreement is amended to add the following
covenant as Section 6.11 thereof:
"6.11 STATION CASINOS NOTE PROCEEDS AND RELATED MATTERS.
The Company will cause all payments under the Station Casinos Note (such
payments, the "Station Casinos Note Payments") to be deposited directly into
the Additional Collateral Account and the Company and the Collateral Agent
agree that such amounts shall be subject to the terms of the Additional
Collateral Account Agreement and the Additional Collateral Account Letter.
The Company shall be entitled to apply the Station Casino Note Payments (a)
to repay the Notes in accordance with Section 2.5 hereof, (b) to purchase
SFHI Notes or the 9.50% Notes issued by SFHI due December 15, 2000 (the "SFHI
9.5% Notes") provided that such SFHI Notes or SFHI 9.5% Notes, as the case
may be, are immediately pledged to the Collateral Agent pursuant to
arrangements satisfactory to the Collateral Agent, or (c) to dividend or
distribute up to $7,500,000 of the Station Casino Note Payments to SGC to the
extent permitted pursuant to Section 6.1(b) hereof. In the event Station
Casinos fails to make any payment or otherwise fails to comply with any
provision under the Station Casinos Note or asserts any right of set off,
offset, counterclaim or similar right under the Station Casinos Note, SGC and
the Company shall promptly notify the Collateral Agent in writing thereof
which notice shall include a description of the actions that SGC and the
Company intends to take with respect thereto. In the event the Company
desires to dividend or distribute Station Casino Note Payments to SGC and
such dividend or distribution is permitted pursuant to Section 6.1(b),
Company shall give written notice to the Collateral Agent and the Collateral
Agent shall promptly prepare written instructions to release such Collateral
from the Additional Collateral Account or such other account in which such
Collateral is held.
Collateral Agent and the Holders shall have a first
priority security interest pursuant to the Company Security Agreement and the
other Basic Documents in all of the Company's right, title and interest now
existing or hereinafter arising under the Henderson Sale Agreement and the
other Henderson Documents, including but not limited to the Station Casino
Note, all Station Casinos Note Payments, all SFHI Notes and SFHI 9.5% Notes
acquired by the Company and all proceeds of every nature of any of the
foregoing, and, notwithstanding anything herein to the contrary, shall have
all rights and remedies with respect thereto under the Basic Documents."
SECTION 2 LIMITATION OF AMENDMENT
Without limiting the generality of the provisions of
subsection 9.1 of the Credit Agreement, the amendments set forth above shall be
limited precisely by its terms, shall not have
4
<PAGE>
any force or effect with respect to any other matter except as expressly
provided above, and nothing in this Amendment shall be deemed to:
(a) constitute a waiver or modification of any other term,
provision or condition of the Note Purchase Agreement, any other Basic
Documents or any other instrument or agreement referred to therein; or
(b) prejudice any right or remedy that the Collateral Agent or
any Holder may now have (except to the extent such right or remedy was
based upon existing defaults that will not exist after giving effect to
this Amendment) or may have in the future under or in connection with
the Note Purchase Agreement, any Basic Documents or any other
instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions
and conditions of the Note Purchase Agreement and the other Basic Documents
shall remain in full force and effect and in all other respects are hereby
ratified and confirmed.
SECTION 3 CONDITIONS TO THE EFFECTIVENESS OF THIS AMENDMENT
Section 1 of this Amendment shall become effective upon the
satisfaction of the following conditions on or prior to December 1, 1999 (the
date of satisfaction of such conditions being referred to herein as the "SECOND
AMENDMENT EFFECTIVE DATE"):
A. SGC and the Company shall have delivered to the Collateral
Agent on behalf of the Holders the following:
1. Resolutions of each Credit Party's Board of Directors
or the executive committee thereof approving and authorizing the execution,
delivery, and performance of this Amendment, certified as of the Second
Amendment Effective Date by its corporate secretary or an assistant secretary
as being in full force and effect without modification or amendment;
2. Signature and incumbency certificates of each Credit
Party's officers executing this Amendment;
3. Originals of this Amendment duly executed by SGC, the
Company and the other Credit Parties; and
4. The original executed Station Casinos Note, endorsed in a
manner satisfactory to the Collateral Agent.
B. SGC and the Company shall have delivered to the
Collateral Agent on behalf of the Holders complete and correct copies of the
Henderson Sale Agreement, the Non-Competition Agreement (as defined in the
Henderson Sale Agreement) and the ROFR Agreement (as defined in the Henderson
Sale Agreement), all exhibits and schedules thereto and all other agreements,
certificates and instruments (including but not limited to the Station
Casinos Note) delivered thereunder as a condition precedent to
5
<PAGE>
Station Casinos' obligation to consummate the Henderson Sale (collectively,
the "Henderson Sale Documents") together with an Officer's Certificate from
SGC and the Company stating that the Henderson Sale Documents are in full
force and effect, that no material term or condition thereof has been
amended, modified or waived and that all conditions precedent to the
consummation of Henderson Sale and to the Second Amendment Effective Date
have occurred and all of the Henderson Sale Documents shall be in form and
substance satisfactory to the Collateral Agent.
C. On or before the Closing Date, SGC and Company shall
have obtained all consents and approvals to the transactions contemplated
under the Henderson Sale Documents of any Person required under any
Contractual Obligation or other obligation (including obligations imposed by
law) of SGC or Company or any of their respective Affiliates and of any
governmental entity. Such consents and approvals shall be in full force and
effect.
D. All corporate and other proceedings taken or to be
taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by the
Collateral Agent and its counsel shall be satisfactory in form and substance
to the Collateral Agent and such counsel, and the Collateral Agent and its
counsel shall have received all such counterpart originals or certified
copies of such documents and opinions as the Collateral Agent may reasonably
request.
E. No order, judgment or decree of any court, arbitrator
or governmental authority shall purport to enjoin or restrain the Henderson
Sale on the Second Amendment Effective Date. As of the Second Amendment
Effective Date and there shall not be pending or, to the knowledge of SGC or
Company, threatened, any action, suit, proceeding, governmental investigation
or arbitration against SGC, Company or any of their respective Subsidiaries
or any property of SGC, Company or any of their respective Subsidiaries,
seeking to enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated by the
Henderson Sale Documents.
SECTION 4 REPRESENTATIONS AND WARRANTIES
In order to induce SunAmerica and Anchor to enter into
this Amendment and to amend the Note Purchase Agreement in the manner
provided herein, each of SGC and the Company represents and warrants to
SunAmerica and Anchor that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Each Credit Party has
all requisite corporate power and authority to enter into this Amendment and
to carry out the transactions contemplated by, and perform its obligations
under, the Note Purchase Agreement, as amended by this Amendment (the
"AMENDED AGREEMENT").
6
<PAGE>
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of each of each Credit
Party.
C. NO CONFLICT. The execution and delivery by each Credit
Party of this Amendment and the performance by each Credit Party of the Amended
Agreement and other Basic Documents do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to any
Credit Party, the Certificate or Articles of Incorporation or Bylaws of any
Credit Party or any order, judgment or decree of any court or other agency of
government binding on any Credit Party, (ii) conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a default under any
material contractual obligation of any Credit Party, (iii) result in or require
the creation or imposition of any Lien upon any of the properties or assets of
any Credit Party (other than Liens created under any of the Basic Documents in
favor of the Collateral Agent and the Holders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any material
contractual obligation of any Credit Party.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each
Credit Party of this Amendment and the performance by each Credit Party of the
Amended Agreement and the other Basic Documents do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
E. BINDING OBLIGATION. This Amendment, the Amended Agreement
and the other Basic Documents have been duly executed and delivered by each
Credit Party and are the legally valid and binding obligations of each Credit
Party enforceable against each Credit Party in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
F. ABSENCE OF DEFAULT. No event will result from the
consummation of the transactions contemplated by this Amendment that would
constitute an Event of Default or a Potential Event of Default.
SECTION 5 ACKNOWLEDGEMENT AND CONSENT
SGC is a party to the Note Purchase Agreement and certain
other Basic Documents, including the Amended Agreement and SGC Guaranty,
pursuant to which, among other things, SGC has guaranteed the Obligations of the
Company. Sahara Resorts is a party to the Sahara Resorts Guaranty and the Sahara
Resorts Pledge Agreement, pursuant to which, among other things, Sahara Resorts
has (i) guaranteed the Obligations and (ii) created Liens in favor of SunAmerica
on certain Collateral to secure the obligations of Sahara Resorts under the
Basic Documents to which Sahara Resorts is party. Casino Properties is a party
to the Casino Properties Guaranty and the Casino Properties Pledge Agreement,
pursuant to which, among other things, Casino Properties has (i) guaranteed the
Obligations and (ii) created Liens in favor of SunAmerica on certain Collateral
to secure the obligations of Casino Properties under the Basic Documents to
which Casino Properties is party. Hacienda Hawaiian is party to the
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<PAGE>
Hacienda Hawaiian Guaranty and the Hacienda Hawaiian Pledge Agreement,
pursuant to which, among other things, Hacienda Hawaiian has (i) guaranteed
the Obligations and (ii) created Liens in favor of SunAmerica on certain
Collateral to secure the obligations of Hacienda Hawaiian under the Basic
Documents to which Hacienda Hawaiian is party. SGC, Sahara Resorts, Casino
Properties sand Hacienda Hawaiian are collectively referred to herein as the
"CREDIT SUPPORT PARTIES", and the Guaranties, the Sahara Resorts Pledge
Agreement, the Casino Properties Pledge Agreement and Hacienda Hawaiian
Pledge Agreement are collectively referred to herein as the "CREDIT SUPPORT
DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Note Purchase Agreement, this
Amendment and the other Basic Documents and consents to the amendments and
modifications of the Note Purchase Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the case may be,
to the fullest extent possible the payment and performance of all
"Obligations," "Guaranteed Obligations" and "Secured Obligations," as the
case may be (in each case as such terms are defined in the applicable Credit
Support Document), including without limitation the payment and performance
of all such "Obligations," "Guaranteed Obligations" and "Secured
Obligations," as the case may be, in respect of the Obligations of Company
now or hereafter existing under or in respect of the Amended Agreement.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment or any other Basic Document or
agreement. Each Credit Support Party represents and warrants that all
representations and warranties with respect to such Credit Support Parties
contained in the Amended Agreement and the Credit Support Documents to which it
is a party or otherwise bound are true, correct and complete in all material
respects on and as of the date of this Amendment to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
Each Credit Support Party (other than SGC) acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, such Credit Support Party is not required by the terms of the
Note Purchase Agreement or any other Basic Document to consent to the amendments
to the Note Purchase Agreement effected pursuant to this Amendment and (ii)
nothing in the Note Purchase Agreement, this Amendment or any other Note
Purchase Document shall be deemed to require the consent of such Credit Support
Party to any future amendments to the Note Purchase Agreement.
SECTION 6 RELEASE
Company and each Credit Support Party, its
successors-in-title, legal representatives, assignees and heirs, as
applicable, and, to the extent the same is claimed by right of, through or
under Company or any such Credit Support Party, its past, present and future
8
<PAGE>
employees, agents, representatives, officers, directors, shareholders,
parents, subsidiaries, affiliates and trustees, and each of them (the
"Releasing Parties") does hereby forever remise, release and discharge the
Collateral Agent and each Holder, and the Collateral Agent's and each
Holder's successors-in-title, legal representatives and assignees, past,
present and future officers, directors, shareholders, trustees, agents,
employees, parents, subsidiaries, affiliates, consultants, experts, advisors,
attorneys and other professionals, as well as any and all persons and
entities to whom the Collateral Agent or any Holder would be liable if such
persons or entities were found to be liable to Company or any Credit Support
Party or any of them, and each of them (collectively hereinafter the
"Released Parties"), from any and all manner of action and actions, cause and
causes of action, claims, counterclaims, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, damages, judgments, expenses, executions, liens, claims of
liens, claims of costs, penalties, attorneys' fees, or any other
compensation, recovery or relief on account of any liability, obligation,
demand or cause of action of whatever nature relating to, arising out of or
in connection with the Note Purchase Agreement, this Amendment, the Amended
Agreement and the other Basic Documents or any Events of Default or Potential
Events of Default, including but not limited to, acts, omissions to act,
actions, negotiations, discussions and events resulting in the finalization
and execution of this Amendment or any other Basic Documents, as, among and
between any Releasing Party and any Released Party, such claims whether now
accrued and whether now known or hereafter discovered, from the beginning of
time through the date hereof, and specifically including, without any
limitation, any claims of liability asserted or which could have been
asserted with respect to, arising out of or in any manner whatsoever
connected directly or indirectly with any "lender liability-type" claim (the
"Release"). Notwithstanding anything herein to the contrary, this Release
will not extend to and will not affect any claims which may be asserted
pursuant to events, circumstances, acts or omissions after the date of this
Amendment.
It is a further condition of the consideration hereof and is
the intention of the Company and each Credit Support Party in executing this
Amendment that the same shall be effective as a bar as to each and every claim,
demand and cause of action specified in this Section 6 and, in furtherance of
this intention, Company and each Credit Support Party hereby expressly waives
any and all rights or benefits conferred by the provisions of any applicable
law, including but not limited to SECTION 1542 OF THE CALIFORNIA CIVIL CODE, and
expressly consents that this Amendment shall be given full force and effect
according to each and all of its express terms and conditions, including those
relating to unknown and unsuspected claims, demands and causes of actions, if
any, as well as those relating to any other claims, demands and causes of
actions hereinabove specified. SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Company and each Credit Support Party acknowledges that it may hereafter
discover claims or facts in addition to or different from those which Company
or any Credit Support Party now knows or believes to exist with respect to
the subject matter of this Agreement described in this Section 6 and which,
if known or suspected at the time of
9
<PAGE>
executing this Amendment, may have materially affected this Release.
Nevertheless, Company and each Credit Support Party hereby waives any right,
claim or cause of action that might arise as a result of such different or
additional claims or facts. Company and each Credit Party acknowledges that
it understands the significance and consequence of such release and such
specific waiver herein, including such waivers of SECTION 1542.
The parties agree that the references to Section 1542 of the
California Civil Code herein are made in an abundance of caution and no
inference may be drawn to that section, or any other aspect of California law,
governs this Amendment, the Note Purchase Agreement or any other Basic Document.
Nothing in this Section 6 or in this Amendment is, is
intended to be, or should be construed or constituting a release of any rights
or claims that are or may be held by the Released Parties against the Releasing
Parties.
SECTION 7 MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE NOTE PURCHASE AGREEMENT AND
THE OTHER BASIC DOCUMENTS.
(i) On and after the date of this Amendment, each reference in
the Note Purchase Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the
Note Purchase Agreement, and each reference in the other Basic
Documents to the "Note Purchase Agreement", "thereunder",
"thereof" or words of like import referring to the Note
Purchase Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Note Purchase Agreement and the other Note Purchase Documents
shall remain in full force and effect and are hereby ratified
and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of SunAmerica under, the
Note Purchase Agreement or any of the other Note Purchase
Documents.
B. FEES AND EXPENSES. SGC and Company acknowledge that all
costs, fees and expenses as described in subsection 9.2 of the Note Purchase
Agreement incurred by any Holder and its counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of Company.
C. HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
10
<PAGE>
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEVADA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment 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 an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Company, SunAmerica,
Anchor and each of the Credit Support Parties and receipt by Company and
SunAmerica, Anchor of written or telephonic notification of such execution and
authorization of delivery thereof.
11
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
SANTA FE GAMING CORPORATION,
individually and as a Credit Support Party
By: /s/ Thomas K. Land
------------------------------------
Title: Senior Vice President and Chief Financial
Officer
SAHARA LAS VEGAS CORP.
By: /s/ Thomas K. Land
------------------------------------
Title: Senior Vice President and Chief Financial
Officer
SAHARA RESORTS (for purposes of Sections 4
and 5 only), as a Credit Support Party
By: /s/ Thomas K. Land
------------------------------------
Title: Senior Vice President and Chief Financial
Officer
CASINO PROPERTIES, INC. (for purposes of
Sections 4 and 5 only), as a Credit Support Party
By: /s/ Thomas K. Land
------------------------------------
Title: Senior Vice President and Chief Financial
Officer
HACIENDA HAWAIIAN PROPERTIES, INC.
(for purposes of Sections 4 and 5 only), as a
Credit Support Party
By: /s/ Thomas K. Land
------------------------------------
Title: Senior Vice President and Chief Financial
Officer
12
<PAGE>
SUNAMERICA LIFE INSURANCE
COMPANY, as Holder and as Collateral Agent
By:
--------------------------------
Title:
--------------------------------
ANCHOR NATIONAL LIFE INSURANCE
COMPANY
By:
--------------------------------
Title:
--------------------------------
13
<PAGE>
Exhibit 10.96
GORDON & SILVER, LTD.
GERALD M. GORDON, ESQ.
Nevada Bar No. 229
THOMAS H. FELL ESQ,.
Nevada Bar No. 3717
3960 Howard Hughes Parkway, 9th Fl.
Las Vegas, Nevada 89109
(702) 796-5555
Attorneys for Debtors
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
In re Case No.: BK-S-99-11404-LBR
PIONEER FINANCE CORP., Chapter 11
a Nevada corporation,
DEBTOR. / Case No.: BK-S-99-12854 LBR
- -------------------------------------- Chapter 11
In re (Jointly Administered)
PIONEER HOTEL INC.,
a Nevada corporation,
Date: 10/25/99
DEBTOR. / Time: 9:00 a.m.
- --------------------------------------
PIONEER FINANCE CORP. AND PIONEER HOTEL INC.'S CERTIFICATION OF
ACCEPTANCE AND REJECTION OF CHAPTER 11 PLAN
(BALLOT REPORT)
This Ballot Report is filed by Pioneer Finance Corp. and Pioneer Hotel
Inc. ("Debtors") in accordance with LR 3018. On August 30, 1999, the Debtors'
Second Amended Plan of Reorganization ("Plan") was filed with the Court. The
Plan is proposed by Debtors.(1)
By Order of the Court entered on August 30, 1999, the Court approved
the Disclosure Statement to Accompany Debtors' Second Amended Plan of
Reorganization (the "Disclosure Statement") and approved the protocol for the
solicitation and voting of ballots. Thereafter, Debtors solicited acceptances of
the Plan. Ballots were submitted by creditors of Debtors. Set forth below are
the results of all timely and eligible votes received by the Debtors with
respect to
- --------------------------
(1) Unless stated otherwise, terms defined in the Plan will have the same
meanings when used in this Ballot Report. The amounts of Claims used in
preparing this Ballot Report are the amounts listed by the respective
claimants in their Ballots.
<PAGE>
the acceptance or rejection of the Plan by creditors and
parties-in-interest entitled to vote with respect to the Debtors.(2)
1. CLASS 1: PRIORITY UNSECURED CLAIMS
Claims in Class 1 are unimpaired under the Plan. Accordingly, Class 1
is deemed to have accepted the Plan, and solicitation of acceptances from the
holders of claims in this Class is not required. 11 U.S.C.
Section 1126(f).
2. CLASS 2: SECURED TAX CLAIMS
Claims in Class 2 are unimpaired under the Plan. Accordingly, Class 2
is deemed to have accepted the Plan, and solicitation of acceptances from the
holders of claims in this Class is not required. 11 U.S.C.
Section 1126(f).
3. CLASS 3: 1988 BONDHOLDERS CLAIMS
Class 3 is impaired under the Plan. By the deadline of October 15,
1999, 656 valid ballots have been submitted and Class 3 has accepted the
Plan.(3)
CLASS 3
NUMBER OF VOTES FROM HOLDERS OF CLASS 3 CLAIMS(4)
-------------------------------------------------
Total number of votes: 656
Number of acceptances: 557 84.91%
Number of rejections: 99 15.09%
- --------------------------
(2) Pursuant to the Court's Order, the deadline for the submission of ballots
was 5:00 p.m., Pacific Time, on October 15, 1999. In addition, pursuant
to the Court's Order, any ballot received by Gordon & Silver, Ltd. after
the Voting Deadline without further order of the Court, any Ballot that
was illegible or contains insufficient information to permit the
identification of the voting party, or any Ballot that indicated neither
an acceptance or rejection or indicated both an acceptance or rejection
of the Plan, was not to be counted or considered in voting on the Plan.
(3) Subsequent to the Ballot deadline, 1 beneficial ballot for a claim
totaling $8,916.00 has been received which is not included in these
totals.
(4) This tabulation includes 15 ballots that were received by Gordon &
Silver, Ltd. prior to the balloting deadline which were not included in
the ADP calculation for miscellaneous reasons, including Hurricane Irene
causing a disruption in broker services in Florida precluding the
delivery of the ballot to the broker for delivery to the record holder,
and a ballot not yet confirmed as a duplicate. These 15 ballots are
comprised of 9 affirmative ballots totaling $2,270,189.00 and 6 negative
ballots totaling $554,108.00.
2
<PAGE>
AMOUNT OF CLASS 3 CLAIMS VOTED
------------------------------
Total Amount Voted: $48,388,592.00
Amount of Acceptances: 34,778,333.00 71.87%
Amount of Rejections 13,610,259.00 28.13%
4. CLASS 4: 1988 Bonds Indenture Trustee Claim
Debtors have proposed pursuant to Section 1127(a) to amend the Plan to
eliminate this Class.
5. CLASS 5: OTHER SECURED CLAIMS
Claims in Class 5 are unimpaired under the Plan. Accordingly, Class 5
is deemed to have accepted the Plan, and solicitation of acceptances from the
holders of claims in this Class is not required. 11 U.S.C.
Section 1126(f).
6. CLASS 6: GENERAL UNSECURED CLAIMS
Claims in Class 6 are unimpaired under the Plan. Accordingly, Class 6
is deemed to have accepted the Plan, and solicitation of acceptances from
holders of claims in this Class is not required. 11 U.S.C. Section 1126(f).
7. CLASS 7: PHI EQUITY INTERESTS
Claims in Class 7 are unimpaired under the Plan. Accordingly, Class 7
is deemed to have accepted the Plan, and solicitation of acceptances from
holders of claims in this Class is not required. 11 U.S.C. Section 1126(f).
8. CLASS 8: PFC EQUITY INTERESTS
Claims in Class 8 are unimpaired under the Plan. Accordingly, Class 7
is deemed to have accepted the Plan, and solicitation of acceptances from
holders of claims in this Class is not required. 11 U.S.C. Section 1126(f).
FINAL TALLY.
By vote or by virtue of Bankruptcy Code Section 1126, the Classes of
Claims and Equity Interests under the Plan have accepted or rejected the Plan
as follows:
3
<PAGE>
Class 1: Accepted
Class 2: Accepted
Class 3: Accepted
Class 4: N/A
Class 5: Accepted
Class 6: Accepted
Class 7: Accepted
Class 8: Accepted
RESPECTFULLY SUBMITTED this 25 day of October, 1999.
GORDON & SILVER, LTD.
By /S/
------------------------
GERALD M. GORDON, ESQ.
Nevada Bar No. 229
THOMAS H. FELL, ESQ.
Nevada Bar No. 3717
3960 Howard Hughes Pkwy., 9th Fl.
Las Vegas, Nevada 89109
Attorneys for Debtors
The undersigned, on behalf of Debtors, certifies that the amount in
number of Allowed Claims of each Class accepting or rejecting the Plan in the
amount of Allowed Interest of each Class accepting or rejecting the Plan as set
forth above is true and accurate.
/S/
------------------------
THOMAS K. LAND
4
<PAGE>
EXHIBIT 10.97
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("Agreement") entered this 8th day of
September, 1999, by and between GMS GROUP, LLC, individually and as assignee of
certain bondholder claims ("GMS") and SANTA FE GAMING CORPORATION, a Nevada
corporation, ("SFGC").
R E C I T A L S:
WHEREAS, on or about December 1, 1998, Pioneer Finance Corp. ("PFC")
issued its 13 1/2% Bonds due December 1, 1998 (the 1988 Bonds) in the original
cumulative principal amount of one Hundred Twenty Million ($120,000,000.00)
Dollars and Pioneer Hotel Inc. ("PHI") executed and delivered a promissory note
in the amount of One Hundred Twenty Million ($120,000,000) Dollars in favor of
PFC on December 1, 1998 (the "PHI Note") and the PHI Note was subsequently
assigned to Security Pacific National Bank ("Security Pacific"), in its capacity
as trustee under that certain Trust Indenture dated as of December 1, 1998
between PFC, Sahara Casino Partners, L.P. and Security Pacific (the "1988 Bonds
Trust Indenture"), and in addition, PHI executed and delivered a deed of trust
and security agreement dated as of December 1, 1988 (the "Trust Deed") in favor
of Security Pacific to secure the PHI Note, which Trust Deed encumbers that
certain casino/hotel known as the Pioneer Hotel & gambling Hall located in
Laughlin, Nevada; and
WHEREAS, PFC and PHI (collectively, the "Debtors") are either directly
or indirectly wholly-owned subsidiaries of SFGC and are debtors-in-possession
under Chapter 11, Title 11, United States Code pursuant to certain cases before
the United States Bankruptcy Court for the District of Nevada (the "Bankruptcy
Court") as Bankruptcy Case Nos. BK-S-99-11404 LBR and BK-S-99-12854 LBR (the
"Reorganization Cases"); and
WHEREAS, SFGC guaranteed certain obligations arising under the 1988
Bonds, the PHI Note and the 1988 Bonds Trust Indenture (the "SFGC Guaranties"),
including, among other things, the punctual payment of principal and interest on
the 1988 Bonds; and
WHEREAS, GMS holds Six Million Four Hundred Ninety-One Thousand
($6,491,000.00) Dollars face amount of the 1988 Bonds (the "GMS Bonds"); and
WHEREAS, in anticipation of the 1988 Bonds' maturity date of
December 1, 1988, and with the realization on the part of the Debtors and
SFGC that the Debtors would not be able to satisfy the then outstanding
principal of Sixty Million ($60,000,000.00) Dollars due under the 1988 Bonds
and the PHI Note, PFC issued the Offering Circular and Consent Solicitation
Statement Dated October 23, 1998 and Supplement Dated November 14, 1988 to
Offering Circular and Consent Solicitation Statement (the
"Offering/Solicitation"), pursuant to which PFC offered to exchange new 13
1/2% First Mortgage Notes due December 1, 2006
<PAGE>
(the "Amended Bonds") for the 1988 Bonds, and in the event that less than all
holders of the 1988 Bonds agreed to the proposed exchange, PFC sought the
consents (the "Consents") to the Offering/Solicitation of the holders of not
less than Forty-Two Million ($42,000,000.00) Dollars in face amount of the
1988 Bonds, and in the event that PFC obtained the Consents, PFC agreed to
commence a Chapter 11 proceeding and seek to reorganize in accordance with
the Offering/Solicitation through a plan of reorganization; and
WHEREAS, GMS did not consent to the Offering/Solicitation; and
WHEREAS, the Debtors filed their proposed joint plan of
reorganization to facilitate the exchange of the 1988 Bonds with Amended
Bonds which Debtors intend to be in accordance with the Offering/Solicitation
and the Consents, and on August 30, 1999, the Debtors filed their Second
Amended Plan of Reorganization (the "Plan"), which Plan (and any amendments
and additions thereto) must be found by the Bankruptcy Court to be
substantially in compliance with the Offering/Solicitation; and
WHEREAS, the 1988 Bonds were fully due and payable on December 1,
1998; and
WHEREAS, on December 1, 1998, PFC defaulted on its obligations to
the bondholders, including GMS; and
WHEREAS, SFGC defaulted on the SFGC Guaranties (the "SFGC Default");
and
WHEREAS, GMS commenced an action against SFGC in the Supreme Court
of the State of New York ("State Court Action") by way of a Summons and
Notice of Motion for Summary Judgment in Lieu of Complaint ("Summary Judgment
Motion") of May 5, 1999; and
WHEREAS, the State Court Action was subsequently removed ("Removal
Action") to the United States District Court, Southern District of New York
("Court") by SFGC on June 7, 1999; and
WHEREAS, in the Removal Action SFGC filed a Motion to Dismiss for
lack of Personal Jurisdiction, or Alternatively, to Transfer Pursuant to 28
U.S.C. ss. 1404 on June 7, 1999 ("Motion to Dismiss"); and
WHEREAS, in the Removal Action GMS filed a Notice of Motion for
Summary Judgment on June 18, 1999 regarding the Summary Judgment Motion; and
WHEREAS, SFGC and GMS are desirous of reaching an agreement that
will result in GMS (i) voting to approve the Plan; (ii) forbearing from
taking certain actions against SFGC and allowing SFGC time to meet certain of
its obligations under the SFGC Guaranties and the Amended SFGC Guaranty;
(iii) receiving the benefits of the Plan; (iv) exchanging the GMS Bonds and
receiving Amended Bonds pursuant to the Plan; and (v) preserving its right to
seek
2
<PAGE>
recourse on the SFGC Guaranties and the SFGC Amended Guaranty as a result of
the SFGC Default; and
WHEREAS, SFGC and GMS have agreed to resolve their disputes without
further trial or adjudication of any issue of fact or law in the Removal
Action;
NOW THEREFORE, the parties hereby agree as follows:
1. SFGC hereby consents to the jurisdiction of the Court with
respect to the subject matter of the Removal Action and of the
parties hereto.
2. SFGC further consents that the Court is the proper venue for the
Summary Judgment Motion and agrees to withdraw the Motion to
Dismiss and its opposition to the Summary Judgment Motion, with
prejudice.
3. GMS and SFGC agree that this Agreement shall be construed under
the laws of the State of New York. The parties further agree
that the Court shall retain jurisdiction over the Summary
Judgment Motion and with respect to the enforcement of this
Agreement.
4. SFGC agrees to pay GMS the amount of Two Hundred Seventy
Thousand ($270,000.00) Dollars as reimbursement of legal fees
and expenses ("GMS's Attorneys Fees"). Upon execution of this
Agreement the sum of Two Hundred Seventy Thousand ($270,000.00)
Dollars shall be wired to the trust account of LeBoeuf, Lamb,
Greene & MacRae, LLP, New York City, New York, which sums shall
be released to GMS immediately upon the occurrence of the
following events: (i) the filing with the Court of a request to
suspend the proceedings referenced in paragraph 6 below and (ii)
the transmittal of the GMS ballot(s) representing the GMS Bonds
votes in favor of the Plan, which ballots shall be delivered to
Gordon & Silver, Ltd. within three (3) days of the execution of
this Agreement. The GMS attorneys fees and expenses are
inclusive of fees and expenses incurred through September 15,
1999. In the Event of Default (as defined below) the parties
agree that GMS' counsel shall be entitled to seek additional
attorneys' fees in connection with the enforcement of this
Agreement and/or the enforcement of, or collection on, the SFGC
Guaranties or the Amended SFGC Guaranty (as defined in paragraph
8 herein), which enforcement will be deemed to include, but not
be limited to, GMS' participation in the Reorganization Cases .
5. SFGC and GMS agree to forebear from proceeding with the Summary
Judgment Motion until the earlier of the Confirmation Date (as
defined in the Plan) of the Plan and November 30, 1999 and
provided that the Confirmation Date occurs by December 1, 1999,
and the Redemption Payment (referred to in paragraph 16 below)
is timely made, to further forebear from proceeding with the
Summary Judgment Motion until May 31, 2000, provided in each
instance that no Event of Default (as defined below) occurs.
Notwithstanding the provisions hereof,
3
<PAGE>
provided that the Bankruptcy Court has not denied confirmation
of the Plan prior to November 30, 1999 and confirmation of the
Plan is still pending, the forbearance date of November 30, 1999
shall be extended to December 31, 1999, provided Debtors have
petitioned an order of the Bankruptcy Court allowing for payment
of 50% of the December 1, 1999 interest payment on the 1988
Bonds and have either received approval from the Bankruptcy
Court for or have pending a motion to approve payment of the
Redemption Payment (as defined below). Subsequent to December
31, 1999, or in the event that Debtors have not satisfied the
conditions precedent to the continuance of the November 30, 1999
date to December 31, 1999, the continued forbearance by GMS
shall be in the discretion of GMS. In the event that the Plan is
not confirmed by December 31, 1999, and exclusivity is
terminated, GMS is free to also vote in favor of another plan of
reorganization proposed in the Reorganization Cases.
6. SFGC and GMS agree to cause the Court to immediately place the
Summary Judgment Motion on the suspended calendar of the Court
until May 31, 2000. Counsel for GMS and SFGC shall contact the
Court in this regard within 24 hours of the execution of this
Agreement.
7. GMS agrees not to impede or impair confirmation of the Plan,
provided that no Event of Default, (as defined below) occurs.
GMS reserves the right to object to confirmation of the Plan if
an Event of Default occurs.
8. GMS agrees to timely vote its Six Million Four Hundred
Ninety-One ($6,491,000.00) Dollars in GMS Bonds in favor of the
Plan and not to impede or impair confirmation of the Plan,
provided that no Event of Default, as defined below, occurs.
9. GMS and SFGC agree that in accordance with the Plan, the GMS
Bonds will be exchanged for Amended Bonds upon confirmation and
consummation of the Plan.
10. In accordance with the Plan, SFGC will guarantee PFC's
obligations to GMS as the holder of Amended Bonds (Amended SFGC
Guaranty" as further defined in the Plan).
11. Notwithstanding the outcome of the Reorganization Cases, SFGC
agrees that GMS, as a 1988 Bondholder, is granted all of the
rights, interests and benefits pledged to holders of the 1988
Bonds, including but not limited to the rights, interests and
benefits granted by the following documents:
a. Security Agreement, dated as of November 30, 1998,
between SFGC and IBJ Schroder Bank & Trust Company;
b. Pledge Agreement, dated as of November 30, 1998,
between SFGC and IBJ Schroder Bank & Trust Company;
4
<PAGE>
c. Security Agreement, dated as of November 30, 1998,
between Hacienda Hotel, Inc. and IBJ Schroder Bank &
Trust Company;
d. Security Agreement, dated as of November 30, 1998,
between Sahara Nevada Corp. and IBJ Schroder Bank &
Trust Company;
e. Security Agreement, dated as of November 30, 1998,
between Santa Fe Coffee Company and IBJ Schroder Bank
& Trust Company;
f. Custody Agent Appointment and Acceptance Agreement,
dated as of November 30, 1998, among IBJ Schroder
Bank & Trust Company, SFGC and Nevada State Bank;
g. UCC-1 Financing Statements, filed in connection
interests granted by each of SFGC, Hacienda Hotel,
Inc., Sahara Nevada Corp. and Santa Fe Coffee
Company.
The collateral pledged pursuant to paragraphs 6a-g is collectively
referred to as the "Collateral".
12. SFGC reaffirms to GMS the validity and enforceability of the
SFGC Guaranties and the Amended SFGC Guaranty, as contained in
the Indenture, on the GMS Bonds and on the Amended Bonds, and
SFGC agrees that the exchange of the GMS Bonds for the Amended
Bonds (the "Exchange") does not affect the SFGC Default.
13. SFGC represents and warrants that the confirmation and
consummation of the Plan, or any amendment to the Plan submitted
by the Debtors and approved by the Bankruptcy Court, will not
affect the validity and enforceability of: (i) the SFGC
Guaranties as they relate to the GMS Bonds; (ii) the SFGC
Amended Guaranty as it relates to the GMS Bonds or GMS's Amended
Bonds; or (iii) GMS's rights as a 1988 Bondholder to the
Collateral, or any other collateral pledged by SFGC to secure
the SFGC Guaranties or the Amended SFGC Guaranty, except as
otherwise specifically provided for in this Agreement.
14. GMS represents and warrants that it holds Six Million Four
Hundred Ninety-One ($6,491,000.00) Dollars in 1988 Bonds and has
the authority and right to vote these 1988 Bonds in favor of the
Plan.
15. SFGC agrees that GMS shall be accorded the same treatment as
other Bondholders under the Plan except as provided for by this
Agreement. Further, in accordance with SFGC's Amended Guaranty,
as provided for in the Plan, SFGC guarantees PFC's obligations
to GMS as the holder of Amended Bonds on the terms set forth in
the Amended Indenture.
16. SFGC agrees that upon the Effective Date of the Plan, GMS shall
be entitled to a payment in the amount of 10.83% of the
principal amount of GMS's 1988 Bonds
5
<PAGE>
it holds plus interest thereon at the rate of 13 1/2% per annum from
December 1, 1998 until redeemed (the "Redemption Payment"), and if
the Debtors do not make the Redemption Payment, SFGC shall make such
payment. In the event the Bankruptcy Court so orders, GMS agrees to
accept its pro rata portion of the interest which has accrued on the
sums deposited by Debtors in a designated account to fund the
Redemption Payment and additional Amended Bonds or 1988 Bonds, as
the case may be, as payment in kind for the balance due of the
interest accrual.
17. SFGC consents to the immediate termination of the obligation of GMS
to forebear from proceeding with the Summary Judgment Motion upon the
occurrence of any of the following events ("Events of Default"):
a. SFGC's failure to pay GMS's Attorneys Fees as
provided in Paragraph 4 above;
b. SFGC's failure to make the Redemption Payment to GMS
if PFC does not timely make such payment as provided
for in the Plan;
c. SFGC's further encumbrance of the Collateral or any
other collateral pledged to secure the SFGC Guarantee
and Amended SFGC Guarantee, except as provided for in
the Plan and the documents entered into to effectuate
the Plan as approved by the Bankruptcy Court;
d. An Event of Default occurring under any other
obligation of which SFGC is a guarantor, except for
existing obligations in default and future
non-monetary defaults which may arise during the term
of this Agreement regarding the 11% First Mortgage
Notes issued by Santa Fe Hotel, Inc., a Nevada
corporation ("SFHI"); or
e. Failure of the Plan to be confirmed on or before
November 30, 1999, as that date may be extended
pursuant to paragraph 5 above.
18. SFGC agrees to provide GMS with notice of a default of any of the
items listed in paragraph 17 above.
19. SFGC represents and warrants that the security interest granted by
SFGC to the Indenture Trustee on or about December 1, 1998 as required
under the Offering/Solicitation is valid and enforceable as provided
for in the 1988 Bonds Trust Indenture. SFGC further represents and
warrants that the value of the collateral for the 1988 Bonds and SFGC
Guaranty (and for the Amended Bonds and Amended SFGC Guaranty when
issued) is in excess of the amount due on the 1988 Bonds (and Amended
Bonds and Amended SFGC Guaranty when issued), and as such, the 1988
Bonds (and Amended Bonds and Amended SFGC Guaranty when issued) are
fully secured. SFGC further represents and warrants to GMS that a lien
granted by SFGC in favor of GMS with respect to the common stock of
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Sahara Las Vegas Corporation, a Nevada corporation ("SLVC"), or its
parent, Sahara Resorts, a Nevada corporation, or SFHI, or a lien
granted by SLVC or SFHI in favor of GMS with respect to any of their
respective assets would violate the Offering/Solicitation and certain
obligations arising under existing indebtedness of SLVC and SFHI.
However, SFGC represents and warrants that if GMS were to obtain a
judgment against SFGC, that GMS, as a Bondholder would be entitled to
levy a judgment against the Collateral to the extent that any other
judgment creditor could levy execution against the Collateral.
20. If an Event of Default occurs SFGC agrees to and hereby does, (i)
waive any defenses it may have to the Summary Judgment Motion, (ii)
withdraw its opposition to the Summary Judgment Motion, with prejudice,
and (iii) represent that it does not oppose the Summary Judgment
Motion.
21. SFGC waives and releases any cause of action against James W.
Baker, Dr. Robert M. Baker and/or GMS in connection with the
involuntary bankruptcy petition filed by them against SFGC.
22. The parties hereto represent and warrant to each other that each
has the requisite authority to enter into this Agreement and be bound
by the terms hereof. Annexed hereto as Exhibit B and made a part hereof
are certificates of the respective Secretaries of the Boards of GMS and
SFGC as to the resolutions duly adopted by the Boards or duly
authorized committee thereof evidencing their consent to this
Agreement.
23. The parties hereto represent and warrant to each other that each
has had an opportunity to retain counsel or has been represented by
counsel in connection with the review, approval and execution of this
Agreement and that they have read and understand this Agreement.
24. This Agreement may be executed in one or more counterparts and each
such counterpart shall be deemed to be an original. All counterparts so
executed shall constitute one instrument and shall be binding on all
the parties to this Agreement notwithstanding that all the parties are
not signatory to the same counterpart.
25. Time is of the essence in the performance of the parties respective
obligations set forth in this Agreement.
26. No modification, amendment, supplement to or waiver of this
Agreement or of any of its provisions shall be binding upon the parties
hereto unless made in writing and duly signed by the parties.
27. Failure of any party to exercise any right provided for herein
shall not be deemed to be a waiver of any right hereunder.
28. It is further understood and agreed by the parties that the
contents and existence of this Agreement shall be considered
confidential and shall not be disclosed by
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GMS, its agents, representatives, attorneys or employees to any
third party entity except with the prior written approval of SFGC or
upon the order of a court of competent jurisdiction. Remedies for
violation of this provision shall be as provided for by applicable
law.
29. Notices given by a party under this Agreement shall be in writing
and shall be deemed duly given (i) when delivered by hand, (ii) when
five (5) days have elapsed after its transmittal by registered or
certified mail, postage prepaid, return receipt requested, (iii) when
two (2) days have elapsed after its transmittal by nationally
recognized air courier service, or (iv) when delivered by telephonic
facsimile transmission (with a copy thereof so delivered by hand, mail
or air courier if the recipient does not acknowledge receipt of the
transmission). Notices shall be sent to the addresses set forth below,
or another as to which that party has given written notice, in each
case with a copy provided in the same manner, same time to the persons
shown below:
IF TO SFGC: Santa Fe Gaming Corp.
4949 North Rancho Drive
Las Vegas, Nevada 89130
Attn: Paul Lowden
Tel: 702 658-4338
Fax: 702 658-4331
With a copy to: Gibson Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071-3197
Attn: Karen Bertero, Esq.
Tel: 213 229-7360
Fax: 213 229-6360
If to GMS: GMS Group, LLC
One Ravina Drive, #1120
Atlanta, Georgia 30346
Attn: James W. Baker, Jr.
Tel: 800 462-4356
Fax: 770 390-7461
With a copy to: LeBoeuf, Lamb, Greene & MacRae, LLP
125 West 55th Street
New York, New York 10019
Attn: Timothy W. Walsh, Esq.
Tel: 212 424-8564
Fax: 212 424-8500
30. This Agreement and the obligation to forbear hereunder shall be
binding upon the successors and assigns of the GMS Bonds or GMS's
Amended Bonds. GMS
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agrees to notify each and every successor or assignee of the GMS
Bonds or GMS's Amended Bonds of this Agreement and the obligation
and rights arising hereunder. No assignee or successor to the GMS
Bonds or GMS's Amended Bonds will have the right to substitute in
the Removal Action in the place and stead of GMS.
Intending to be legally bound, the undersigned have executed this
Agreement.
Dated: September 8, 1999.
THE GMS GROUP, LLC.
By: James W. Baker
Its: Senior Vice President
SANTA FE GAMING CORPORATION
By: Paul W. Lowden
Its: President
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EXHIBIT 99.1
SANTA FE GAMING CORPORATION
4949 NO. RANCHO DR.
LAS VEGAS, NV 89130
FOR IMMEDIATE RELEASE:
November 17, 1999
SANTA FE GAMING CORPORATION ANNOUNCES
SALE OF HENDERSON PROPERTY
LAS VEGAS, NEVADA Santa Fe Gaming Corporation (OTC Bulletin Board:
SGMG), ("SFGC") announced today that its indirect-wholly owned subsidiary,
Sahara Las Vegas Corp. ("SLVC"), has sold its approximate 40 acre parcel of
real property in Henderson, Nevada to Station Casino's, Inc., (NYSE:
STN)("STN"). Additionally, SFGC, and its subsidiaries, SLVC and Santa Fe
Hotel Inc. ("SFHI") have entered into non-compete agreements with STN and
SFGC and SFHI have granted rights of first refusal with respect to the Santa
Fe Hotel assets and securities. The total consideration received was
approximately $37.2 million. In connection with the above referenced
agreements, SLVC has agreed to the terms of an amendment to its indebtedness,
under which a release of lien was granted on the Henderson property.
Santa Fe Gaming Corporation owns and operates the Santa Fe Hotel and
Casino in northwest Las Vegas and the Pioneer Hotel and Gambling Hall in
Laughlin, Nevada. In addition, the Company holds property on Las Vegas
Boulevard for future possible development.
CONTACT: Thomas K. Land
Chief Financial Officer
Santa Fe Gaming Corporation
702-658-4340
