TRI-PARTY AGREEMENT
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
December 30, 1994 by and among PIONEER FINANCE CORP., a corporation duly
organized and existing under the laws of the state of Nevada, having its
principal office at 0000 Xxx Xxxxx Xxxx. Xxxxx, Xxx Xxxxx, Xxxxxx 00000 (the
"Issuer"), SAHARA GAMING CORPORATION, a corporation duly organized and
existing under the laws of the State of Nevada, successor by merger to Sahara
Casino Partners, L.P. (the "Guarantor"). PIONEER HOTEL INC., a Nevada
corporation, successor by merger to Pioneer Operating Limited Partnership
(the "Operating Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, having a corporate trust office at
000 Xxxxx Xxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, BANK OF AMERICA
NEVADA, a state banking association duly organized and existing under the
laws of the State of Nevada, having a corporate trust office at 000 Xxxxx
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 and IBJ XXXXXXXX BANK & TRUST COMPANY,
a New York banking organization having a corporate trust office at Xxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Capitalized terms used herein and not defined otherwise herein shall
have the meaning ascribed to such terms in the Indenture.
WHEREAS, the Issuer issued its 13 1/2% First Mortgage Bonds due
December 1, 1998 in the original principal amount of $120,000,000 (the
"Bonds"), pursuant to an Indenture dated as of December 1, 1988 (the
"Indenture"), between the Issuer, Sahara Casino Partners, L.P. as guarantor
and Security Pacific National Bank as the Trustee;
WHEREAS, in connection with the issuance of the Bonds, the Issuer made a
loan (the "Loan") to Pioneer Operating Limited Partnership, a Nevada Limited
Partnership, which Loan was evidenced by a note in the principal amount of
$120,000,000 (the "Note") and secured by a deed of trust (the "Mortgage") and
certain other personal property;
WHEREAS, payments on the Bonds are guaranteed by the Guarantor and the
Bonds and the Issuer's obligations under the Indenture are secured by the
Note and Mortgage which was assigned by the Issuer to the Trustee for the
benefit of the Bondholders;
WHEREAS, the Issuer appointed Security Pacific National Bank to act as
the Trustee, Authenticating Agent, Bond Registrar and Paying Agent under the
Indenture;
WHEREAS, Bank of America National Trust and Savings Association (the
"Resigning Trustee"), has succeeded Security Pacific National Bank as the
Trustee, Authenticating Agent, Bond Registrar and Paying Agent under the
Indenture and except as otherwise provided
1
herein any further reference in this Instrument to the "Resigning Trustee"
shall include the capacities of Trustee, Authenticating Agent, Bond Registrar
and Paying Agent;
WHEREAS, pursuant to Section 614 of the Indenture and by instrument
dated effective as of December 1, 1988, Nevada National Bank was appointed to
act as a Co-Trustee with respect to that portion of the Trust Estate located
in Nevada;
WHEREAS, Security Pacific Bank Nevada succeeded Nevada National Bank as
Co-Trustee and Bank of America Nevada (the "Resigning Co-Trustee") succeeded
Security Pacific Bank Nevada and serves as the current Co-Trustee;
WHEREAS, pursuant to the terms of that certain First Supplemental
Indenture dated as of December 21, 1990, the Note was amended and restated to
cure certain ambiguities;
WHEREAS, pursuant to that certain Second Supplemental Indenture dated as
of September 30, 1993, Sahara Gaming Corporation (the "Guarantor"), successor
by merger to Sahara Casino Partners, L.P., assumed the due and punctual
payment obligations under the Note and the due and punctual payment and
performance obligations under the Guarantees and the punctual performance and
observance of all conditions and covenants of Sahara Casino Partners L.P. as
the original guarantor under the Guarantees and Indenture;
WHEREAS, the Indenture provides that the Trustee may at any time resign
by giving written notice thereof to the Issuer and the Guarantor and the
Resigning Trustee and Co-Trustee have given the Issuer and the Guarantor such
written notice of their resignation under the Indenture;
WHEREAS, the Indenture further provides that, if the Trustee shall
resign, the Issuer shall thereupon promptly appoint a successor Trustee;
WHEREAS, the Indenture further provides that the Trustee with the
concurrence of the Issuer and the Guarantor may accept the resignation of the
Co-Trustee;
WHEREAS, the Issuer desires to appoint IBJ Xxxxxxxx Bank & Trust Company
("IBJ Xxxxxxxx") as successor to Resigning Trustee and Resigning Co-Trustee
to act in all capacities as those in which Resigning Trustee and Resigning
Co-Trustee acted under the Indenture, and except as otherwise provided
herein, any further reference in this Instrument to the "Successor Trustee"
shall include the capacities of Trustee, Co-Trustee, Authenticating Agent,
Bond Registrar and Paying Agent;
WHEREAS, the Indenture provides that any resignation by the Trustee
shall become effective upon acceptance of appointment by the successor
Trustee;
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WHEREAS, the Indenture further provides that the successor Trustee shall
execute, acknowledge and deliver to the Issuer, the Guarantor and to the
resigning Trustee an Instrument accepting such appointment and thereupon the
resignation of the Trustee shall become effective and such successor shall
become Trustee without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations of the resigning
Trustee;
WHEREAS, the Indenture further provides that no successor Trustee shall
accept appointment unless at the time it is qualified and eligible under the
Indenture;
WHEREAS, IBJ Xxxxxxxx is qualified, eligible and willing to accept its
appointment as Successor Trustee; and
WHEREAS, Issuer, upon the execution and delivery of this Instrument, shall
cause notice of the resignation of the Resigning Trustee and the Resigning
Co-Trustee and appointment of Successor Trustee to be mailed to the Holders
of the Bonds as required by the Indenture;
NOW, THEREFORE, for and in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby covenanted, declared and decreed by the
parties hereto as follows:
1. The resignations of Resigning Trustee and Co-Trustee are hereby
accepted, and their discharge from the trust created by the Indenture shall
be effective as of the date hereof upon the execution and delivery of this
Instrument by all the parties hereto.
2. The Issuer, together with the Guarantor and Operating Company with
respect to appointment of co-trustee, in the exercise of the authority vested
in them by the Indenture hereby appoints IBJ Xxxxxxxx as Successor Trustee to
succeed Resigning Trustee and Resigning Co-Trustee with all rights, powers,
trusts, duties and obligations under the Indenture, such appointment to be
effective as of the date hereof upon the execution and delivery of this
Instrument by all the parties hereto.
3. IBJ Xxxxxxxx hereby represents that it is qualified and eligible
under the provisions of the Indenture to be appointed Successor Trustee under
the Indenture, including carrying out the duties of co-trustee, hereby accepts
its appointment as Successor Trustee to act in all such capacities as
Resigning Trustee and Resigning Co-Trustee acted, effective as of the date
hereof upon the execution and delivery of this Instrument by all parties
hereto, and hereby assumes the rights, powers, trusts, duties and obligations
as Successor Trustee, subject to all terms and provisions therein and herein
contained.
4. Resigning Trustee and Resigning Co-Trustee hereby grant, give,
bargain, sell, remise, release, convey, confirm, assign, transfer and set
over to IBJ Xxxxxxxx and its successors and assigns, all rights, title and
interest of Resigning Trustee and Resigning Co-Trustee
3
in and to the trust estate and all rights, powers and trusts under the
Indenture; and Resigning Trustee and Resigning Co-Trustee do hereby pay over,
assign and deliver to IBJ Xxxxxxxx any and all money, if any, and property,
if any, held by Resigning Trustee and Resigning Co-Trustee as trustee or
co-trustee, as the case may be; and the Issuer for the purpose of more fully
and certainly vesting in and confirming to IBJ Xxxxxxxx as such Successor
Trustee said estate, properties, rights, powers and, at the request of IBJ
Xxxxxxxx, joins in the execution hereof.
5. (a) Resigning Trustee hereby agrees, upon reasonable request of IBJ
Xxxxxxxx, to execute, acknowledge and deliver such further instruments of
transfer and further assurances and to do such other things as may reasonably
be required for more fully and certainly vesting and confirming in IBJ
Xxxxxxxx all property, rights, powers, duties, trust, immunities and
obligations of Resigning Trustee under the Indenture.
(b) Resigning Co-Trustee hereby agrees, upon reasonable request of
IBJ Xxxxxxxx, to execute, acknowledge and deliver such further instruments of
transfer and further assurances and to do such other things as may reasonably
be required for more fully and certainly vesting and confirming in IBJ
Xxxxxxxx all property, rights, powers, duties, trust, immunities and
obligations of Resigning Co-Trustee under the Indenture.
6. (a) Resigning Trustee hereby represents and warrants to IBJ Xxxxxxxx
that (i) no Event of Default or covenant or condition contained in the
Indenture has been intentionally waived by Resigning Trustee or has been
waived in writing delivered to Resigning Trustee by the holders of the
percentage in aggregate principal amount of the Securities required by the
Indenture to effect any such waiver and (ii) there is no action, suit or
proceeding pending or, to the best knowledge of Resigning Trustee, threatened
against Resigning Trustee before any court or governmental authority arising
out of any action or omission by Resigning Trustee under the Indenture.
(b) Resigning Co-Trustee hereby represents and warrants to IBJ
Xxxxxxxx that (i) no Event of Default or covenant or condition contained in
the Indenture has been intentionally waived by Resigning Co-Trustee or has
been waived in writing delivered to Resigning Co-Trustee by the holders of
the percentage in aggregate principal amount of the Securities required by
the Indenture to effect any such waiver and (ii) there is no action, suit or
proceeding pending or, to the best knowledge of Resigning Co-Trustee,
threatened against Resigning Co-Trustee before any court or governmental
authority arising out of any action or omission by Resigning Co-Trustee
under the Indenture.
7. The Issuer, upon the execution and delivery of this Instrument,
shall cause notice of the resignation of Resigning Trustee and Co-Trustee and
appointment of IBJ Xxxxxxxx as Successor Trustee to be mailed to the Holders
of the Bonds as required by Section 610 of the Indenture.
4
8. Notwithstanding the resignation of Resigning Trustee under the
Indenture, the obligations of Issuer to Resigning Trustee under the Indenture,
shall not be abrogated and the Issuer shall remain obligated, to the extent
provided in the Indenture, to compensate, reimburse and indemnify Resigning
Trustee in connection with its trusteeship under the Indenture.
9. This Instrument may be executed in any number of counterparts, each
of which shall be an original but such counterparts shall together constitute
but one and the same instrument.
10. This Instrument shall be governed by and construed in accordance with
the laws of the State of California.
5
IN WITNESS WHEREOF, the parties hereto have caused
this Instrument of Resignation, Appointment and Acceptance to be
duly executed all as of the day and year first above written.
IBJ XXXXXXXX BANK & TRUST COMPANY,
as SUCCESSOR TRUSTEE
By: /s/ Xxxxxxx XxXxxxxxx
----------------------------
Name: Xxxxxxx XxXxxxxxx
----------------------------
Title: Assistant Vice President
----------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as RESIGNING TRUSTEE,
By: /s/ M. Xxxxxxx Xxxxxxx
----------------------------
Name: M. Xxxxxxx Xxxxxxx
----------------------------
Title: Sr. Trust Officer
----------------------------
BANK OF AMERICA NEVADA,
as RESIGNING CO-TRUSTEE,
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
----------------------------
Title: Assistant Vice President & Trust Officer
-------------------------------------------
6
PIONEER FINANCE CORP., as ISSUER
By: /s/ Xxxxxx X. Land
----------------------------
Name: XXXXXX X. LAND
----------------------------
Title: SENIOR V.P., CHIEF FINANCIAL OFFICER
------------------------------------------
SAHARA GAMING CORPORATION
successor by merger to Sahara Casino Partners, L.P.
as GUARANTOR.
By: /s/ Xxxxxx X. Land
----------------------------
Name: XXXXXX X. LAND
----------------------------
Title: SENIOR V.P., CHIEF FINANCIAL OFFICER
------------------------------------------
PIONEER HOTEL INC.,
successor by merger to Pioneer Operating Limited
Partnership
as the OPERATING COMPANY
By: /s/ Xxxxxx X. Land
----------------------------
Name: XXXXXX X. LAND
----------------------------
Title: SENIOR V.P., CHIEF FINANCIAL OFFICER
------------------------------------------
7
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 21, 1994, before me, Xxxxxx X. Xxxxxxx, a Notary Public
------------------ -----------------
in and for said state, personally appeared M. Xxxxxxx Xxxxxxx.
-------------------
--------------------------------------,
[x] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Notary Public in and for said State
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, , a Notary Public
------------------- -----------------
in and for said state, personally appeared
------------------------------
--------------------------------------,
[x] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
Notary Public in and for said Xxxxx
0
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
On December 20, 1994, before me, Xxxxx Xxxxxx, a Notary Public
------------------- -------------
in and for said state, personally appeared Xxxxxxx XxXxxxxxx
--------------------
--------------------------------------,
[x] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Notary Public in and for said State
[SEAL]
9
STATE OF NEVADA )
) ss. [SEAL]
COUNTY OF )
On 12/16/94, before me, Xxxxxx Xxxxxx, a Notary Public
--------- --------------
in and for said state, personally appeared Xxxx X. Xxxxxxx
-------------------
--------------------------------------,
[x] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxx
--------------------------------------
Notary Public in and for said State
STATE OF NEVADA )
) ss.
COUNTY OF )
On , before me, , a Notary Public
------------------- -----------------
in and for said state, personally appeared
------------------------------
--------------------------------------,
[ ] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
Notary Public in and for said State
10
STATE OF NEVADA )
) ss. Las Vegas
COUNTY OF )
On , before me, Xxxxxx Xxxxxxx, a Notary Public
------------------ ---------------
in and for said state, personally appeared Xxxxxx X. Land
--------------------
--------------------------------------,
[x] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Notary Public in and for said State
[SEAL]
STATE OF NEVADA )
) ss.
COUNTY OF )
On , before me, , a Notary Public
------------------ -------------------
in and for said state, personally appeared
--------------------
--------------------------------------,
[ ] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
Notary Public in and for said State
10
STATE OF NEVADA )
) ss. Las Vegas
COUNTY OF )
On , before me, Xxxxxx Xxxxxxx, a Notary Public
------------------ ---------------
in and for said state, personally appeared Xxxxxx X. Land
--------------------
--------------------------------------,
[x] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Notary Public in and for said State
[SEAL]
STATE OF NEVADA )
) ss. Las Vegas
COUNTY OF )
On , before me, Xxxxxx Xxxxxxx, a Notary Public
------------------ ---------------
in and for said state, personally appeared Xxxxxx X. Land
--------------------
--------------------------------------,
[x] personally known to me
OR
[ ] proved to me
on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the
instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Notary Public in and for said State
[SEAL]
11
