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
"Xxxxxxxxx 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 Xxxxxxxxx Facility pursuant to the Xxxxxxxxx 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.
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:
"`XXXXXXXXX SALE' means the sale of the Xxxxxxxxx Facility
pursuant to the Xxxxxxxxx Sale Agreement."
"`XXXXXXXXX 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 Xxxxxxxxx Sale."
B. Section 1.1 of the Note Purchase Agreement is hereby amended by amending and
restating the following definition:
"`XXXXXXXXX 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 Xxxxxxxxx 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 Xxxxxxxxx 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 XXXXXXXXX PREMISES. On the
Xxxxxxxxx Release Date, the Company shall apply not less than $20,600,000 of the
cash proceeds received in connection with the Xxxxxxxxx Sale to pay in full all
of the following:
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(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 Xxxxxxxxx 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
Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx Sale on the Xxxxxxxxx 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 Xxxxxxxxx Facility
and are not required to pay costs associated with the closing of the Xxxxxxxxx
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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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 Xxxxxxxxx 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 Xxxxxxxxx Sale Agreement and the
other Xxxxxxxxx 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
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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
Xxxxxxxxx Sale Agreement, the Non-Competition Agreement (as defined in the
Xxxxxxxxx Sale Agreement) and the ROFR Agreement (as defined in the Xxxxxxxxx
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
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Station Casinos' obligation to consummate the Xxxxxxxxx Sale (collectively,
the "Xxxxxxxxx Sale Documents") together with an Officer's Certificate from
SGC and the Company stating that the Xxxxxxxxx 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 Xxxxxxxxx Sale and to the Second Amendment Effective Date
have occurred and all of the Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx
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
Xxxxxxxxx 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").
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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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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
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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
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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
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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.
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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/ Xxxxxx X. Land
------------------------------------
Title: Senior Vice President and Chief Financial
Officer
SAHARA LAS VEGAS CORP.
By: /s/ Xxxxxx X. 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/ Xxxxxx X. 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/ Xxxxxx X. 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/ Xxxxxx X. Land
------------------------------------
Title: Senior Vice President and Chief Financial
Officer
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SUNAMERICA LIFE INSURANCE
COMPANY, as Holder and as Collateral Agent
By:
--------------------------------
Title:
--------------------------------
ANCHOR NATIONAL LIFE INSURANCE
COMPANY
By:
--------------------------------
Title:
--------------------------------
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