THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture")
dated as of August 31, 1995, by and among IBJ Xxxxxxxx Bank & Trust Company,
as Trustee (the "Trustee"), Pioneer Finance Corp., a Nevada corporation (the
"Company"), Pioneer Hotel Inc., a Nevada corporation ("Operating Company"),
and Sahara Gaming Corporation, a Nevada corporation (the "Guarantor").
Capitalized terms not otherwise defined herein have the meanings set forth in
the Indenture, as defined below.
R E C I T A L S
A. The Company, Sahara Casino Partners, L.P. ("Sahara Casino"),
as guarantor, and Security Pacific National Bank ("Security Pacific"), as
trustee, executed that certain Indenture dated December 1, 1988 (as amended
as described herein, the "Indenture"), as amended by (i) that certain First
Supplemental Indenture, dated as of December 21, 1990, among the Company,
Sahara Casino, as guarantor, and Security Pacific, as trustee; (ii) that
certain Second Supplemental Indenture, dated as of September 30, 1993, among
Bank of America National Trust and Savings Association ("Bank of America"),
as successor trustee, the Company, Sahara Casino, as guarantor, Pioneer
Operating Limited Partnership, a Nevada limited partnership ("POLP"),
Operating Company, and the Guarantor, reflecting various reorganizations in
which the Guarantor became the successor of Sahara Casino and the Operating
Company became the successor of POLP; and (iii) that certain Tri-Party
Agreement, dated as of December 30, 1994, by and among the Company, the
Guarantor, the Operating Company, Bank of America, Bank of America Nevada, a
Nevada banking association, and the Trustee, pursuant to which Bank of
America was replaced as the trustee by the Trustee, with respect to
$120,000,000 principal amount of the Company's 13 1/2% First Mortgage Bonds
Due December 1, 1998 ("Bonds"). The Bonds are guaranteed by the Guarantor
("Guarantee"). The Bonds and the Company's obligations under the Indenture
are secured by the real and personal property described in or from time to
time subject to the Mortgage and the other Mortgage Documents.
B. Section 801(d) of the Indenture provides that the Guarantor
shall not cause or permit any of its consolidated Subsidiaries to dispose of
all or substantially all of their respective properties or assets, except
when such assets or properties are transferred to other Subsidiaries of the
Guarantor. Hacienda Hotel Inc. ("HHI"), a Nevada corporation and consolidated
Subsidiary of the Guarantor, has
entered into an agreement to dispose of substantially all of its assets,
including the Hacienda Resort Hotel and Casino (the "Hacienda Hotel"). Sahara
Nevada Corp. ("SNC") and Sahara Las Vegas Corp. ("Sahara Las Vegas"), each
Nevada corporations and consolidated Subsidiaries of the Guarantor, have
entered into agreements to dispose of all or substantially all of their
respective assets, comprised of the Sahara Hotel and Casino and related
property (the "Sahara Hotel").
C. The Company and the Guarantor, pursuant to the Consent and
Waiver, dated July 10, 1995, as supplemented by a letter dated July 11, 1995,
attached hereto as Exhibit A (as supplemented, the "Consent and Waiver"),
have solicited the consent of the Holders to the Waiver of Section 801(d) of
the Indenture with respect to the transactions described above, and the
Holders of at least a majority of the outstanding Bonds have granted such
consent and waiver, subject to the terms and conditions included in the
Consent and Waiver.
D. The terms and conditions of the Consent and Waiver require
certain amendments to the Indenture, which amendments are effected hereby.
E. The Company, the Operating Company and Guarantor have
requested that the Trustee execute this Third Supplemental Indenture, and the
Trustee is willing to execute this Third Supplemental Indenture pursuant to
the terms and conditions of the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and
premises set forth herein, and for other valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties further agree as
follows:
AGREEMENT
I. OBLIGATIONS OF THE GUARANTOR
A. ACQUISITION AND CONTRIBUTION OF BONDS TO THE OPERATING COMPANY
The Guarantor shall, subject to the applicable conditions described
in Section I.E hereof, acquire or cause to be acquired $20,000,000 principal
amount of Bonds (the "Xxxxxx Bonds"), as described in and subject to the
terms and conditions of that certain letter dated February 8, 1995, among
Xxxxxx Investment Management, the Guarantor and the Company, attached hereto
as Exhibit B. Upon the acquisition of such Xxxxxx Bonds, the Guarantor shall
cause such Xxxxxx
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Bonds to be submitted to the Trustee for cancellation pursuant to Section 309
of the Indenture.
B. CONTRIBUTION OF CASH TO THE OPERATING COMPANY
1. The Guarantor shall, subject to the applicable conditions
described in Section I.E hereof, contribute or cause to be contributed
$10,000,000 (the "$10,000,000 Contribution") to the Operating Company within
sixty (60) days after the later of the consummation of the sales of the
Hacienda Hotel and the Sahara Hotel.
2. The Guarantor shall, subject to the applicable conditions
described in Section I.E hereof, contribute $5,000,000 (the "$5,000,000
Contribution") to the Operating Company within sixty (60) days after the
later of the consummation of the sales of the Hacienda Hotel and the Sahara
Hotel.
C. CONTRIBUTION OF CAPITAL STOCK OF SAHARA GREEN VALLEY TO
OPERATING COMPANY
The Guarantor shall, subject to the applicable conditions described
in Section I.E hereof, contribute the outstanding capital stock of Sahara
Mission Valley Inc., a Nevada corporation ("Sahara Green Valley") to the
Operating Company. Concurrently with such contribution, the Guarantor shall
cause SNC to forgive an affiliate note in the amount of approximately
$17,000,000 expected to be made by Sahara Green Valley in favor of SNC.
D. CONTINGENT CONTRIBUTION OF CASH TO THE OPERATING COMPANY OR
SAHARA GREEN VALLEY
1. The Guarantor shall, subject to the applicable conditions
described in Section I.E hereof, loan or contribute, or cause its
Subsidiaries or Affiliates to loan or contribute, to the Operating Company
and/or Sahara Green Valley up to a maximum of $10,000,000 in the aggregate
(the "Contingent Cash Obligation"). The amount of the Contingent Cash
Obligation shall be reduced to the extent the Guarantor and or any of its
Affiliates shall have loaned or contributed funds other than pursuant to the
$10,000,000 Contribution and the $5,000,000 Contribution (the "Alternative
Contribution") to the Operating Company and/or Sahara Green Valley prior to
the time of the requirement to loan or contribute money under the Contingent
Cash Obligation. The obligation of the Guarantor to make the Contingent Cash
Obligation shall be secured by a lien in the form of a deed of trust (the
"Wet'N Wild Deed of Trust"), in favor of the Trustee and for the benefit of
the Holders, on that certain real property located
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in Xxxxx County, Nevada, commonly known as the Wet'N Wild water park and
comprising approximately 26.80 acres, more or less (the "Wet'N Wild Parcel"),
which Wet'N Wild Deed of Trust shall be executed and recorded in form and
substance satisfactory to the Trustee upon the consummation of the sale of
the Sahara Hotel and shall be released upon the earlier of (i) the making of
loans and/or contributions by the Guarantor and/or its Affiliates to the
Operating Company and/or Sahara Green Valley in an aggregate amount equal to
at least $10,000,000, pursuant to the Alternative Contribution and/or the
Contingent Cash obligation, and (ii) satisfaction in full of the Bonds.
E. CONDITIONS TO THE OBLIGATIONS OF THE GUARANTOR
1. The obligations of the Guarantor to consummate the
transactions described in Section I.A hereof are subject to the consummation
of the sale of substantially all of the assets of HHI.
2. The obligations of the Guarantor to make the $10,000,000
Contribution and the $5,000,000 Contribution described in Section I.B and C
hereof are subject to the consummation of the sales of substantially all of
the assets of HHI, SNC and Sahara Las Vegas.
3. The obligations of the Guarantor to fund or cause to be funded
the Contingent Cash Obligation described in Section I.D hereof are subject to
(i) the consummation of a sale by Sahara Las Vegas of the Wet'N Wild Parcel
at any time prior to the Maturity of the Bonds, or (ii) the inability of the
Company, and only to the extent of such inability, to satisfy principal
payments on the Bonds in December 1997 and December 1999.
II. AMENDMENT OF SECTION 801(d).
Section 801(d) of the Indenture is hereby amended to read in its
entirety as follows:
(d) Without limitation to the provisions of Sections 801(b) and
(c), the Guarantor will not cause or permit any of its consolidated
Subsidiaries (other than (i) the Operating Company, which is governed by the
provisions of Sections 801(b) and (c), AND (ii) SAHARA GREEN VALLEY, WHICH
SHALL NOT BE SUBJECT TO ANY RESTRICTIONS UNDER THIS SECTION 801(d)) to merge,
consolidate or amalgamate with or into, or Dispose of all or substantially
all of its properties or assets as an entirety or substantially as an
entirety to, any Person, except for mergers, consolidations and amalgamations
with or into, or Dispositions to, another Subsidiary of the
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Guarantor and in which the surviving or resulting entity or the entity to
which such Disposition is made (i) is organized under the laws of a state of
the United States, (ii) has all Gaming Permits for the ownership and
operation of each casino or other gaming facility it owns or operates (after
giving effect to such transaction) and (iii) is an entity the accounts of
which would, under generally accepted accounting principles consistently
applied, be consolidated with those of the Guarantor in the Guarantor's
consolidated financial statements after giving effect to such transaction.
III. AMENDMENT OF SECTION 1008
Section 1008 of the Indenture is hereby amended to read in its
entirety as follows:
SECTION 1008. LIMITATION ON DEBT OF THE OPERATING COMPANY.
(a) The Operating Company will not, and will cause its
Subsidiaries (OTHER THAN SAHARA GREEN VALLEY, WHICH SHALL NOT BE SUBJECT TO
ANY RESTRICTIONS UNDER THIS SECTION 1008, EXCEPT FOR THE RESTRICTIONS
PROVIDED IN SECTION 1008(g)) not to, directly or indirectly, Incur any
Secured Debt, unless (1) at the date (the "Subject Date") of such Incurrence
and after giving effect thereto, the aggregate Outstanding Amount of all
Secured Debt (including the Note) of the Operating Company and its
Subsidiaries (OTHER THAN SAHARA GREEN VALLEY) does not exceed 66-2/3% of the
Appraised Value as set forth in the Certificate of Appraised Value delivered
pursuant to Section 1008(d), and (2) the pro forma Coverage Ratio of the
Operating Company, calculated for the period comprised of the four most
recent consecutive fiscal quarters of the Operating Company ending prior to
the Subject Date, adjusted to give retroactive effect to the Incurrence of
such Secured Debt as of the first day of the first such fiscal quarter (and,
if any of the proceeds of such Secured Debt are being utilized for the
acquisition of any property or asset by the Operating Company or any of its
consolidated Subsidiaries (OTHER THAN SAHARA GREEN VALLEY), adjusted to give
retroactive effect to the Net Income, if any, of any such property or asset
for such four fiscal quarters) is not less than 2.0 to 1 and (3) the Lien on
the Trust Estate in favor of such Secured Debt (x) is junior to or on a
parity with the Lien of the Mortgage and (y) complies with the provisions of
Section 1009.
(b) The Operating Company will not, and will cause its
Subsidiaries (OTHER THAN SAHARA GREEN VALLEY, WHICH SHALL NOT BE SUBJECT TO
ANY RESTRICTIONS UNDER THIS SECTION 1008, EXCEPT FOR THE RESTRICTIONS
PROVIDED IN SECTION 1008(g)) not to, directly or indirectly, Incur any Debt
(including any
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Secured Debt), unless (1) at the Subject Date and after giving effect to such
Incurrence, the aggregate Outstanding Amount of all Debt (including the Note)
of the Operating Company and its Subsidiaries (OTHER THAN SAHARA GREEN
VALLEY) does not exceed 80% of the Appraised Value as set forth in the
Certificate of Appraised Value delivered pursuant to Section 1008(d), and (2)
the pro forma Coverage Ratio of the Operating Company, calculated for the
period comprised of the four most recent consecutive fiscal quarters of the
Operating Company ending prior to the Subject Date, adjusted to give
retroactive effect to the Incurrence of such Debt as of the first day of the
first such fiscal quarter (and, if any of the proceeds of such Debt are being
utilized for the acquisition of any property or asset by the Operating
Company or any of its consolidated Subsidiaries (OTHER THAN SAHARA GREEN
VALLEY), adjusted to give retroactive effect to the net Income, if any, of
any such property or asset for such four fiscal quarters), is not less than
1.5 to 1.
(c) Notwithstanding the provisions of Sections 1008(a) and
1008(b), the Operating Company and its Subsidiaries (OTHER THAN SAHARA GREEN
VALLEY) may create, incur or assume (i) Secured Debt Incurred for the purpose
of financing the acquisition by the Operating Company or one of its
Subsidiaries of furniture, fixtures or equipment ("FF&E") used in the
operating of the Hotel-Gambling Hall and secured by a Lien on such FF&E
(which Lien may be senior to the Lien of the Mortgage) so long as the amount
of such Secured Debt shall not exceed 80% of the cost of the related FF&E;
(ii) Unsecured Debt in an Outstanding Amount not to exceed $15 million at any
time, the proceeds of which are applied solely to pay principal of (and
premium, if any) and interest on the Note, PROVIDED, HOWEVER, that if any
such Unsecured Debt is to be owed to an Affiliate of the Operating Company,
then, prior to the Incurrence of such Unsecured Debt, the Operating Company
or one of its Subsidiaries (whichever is to Incur such Debt) and such
Affiliate shall have entered into an agreement containing subordination
provisions substantially in the form attached hereto as Exhibit D whereby the
payment of such Unsecured Debt shall be subordinated to the payment of the
Note and the Bonds (and all other Secured Debt secured by a lien on the Trust
Estate, or any portion thereof, ranking on a parity with or senior to the
lien of the Mortgage) and the Operating Company shall have delivered a true
and correct copy of such agreement to the Trustee, together with an Officers'
Certificate stating that such Unsecured Debt will be Incurred in compliance
with the provisions of this Section 1008(c)(ii); and (iii) Related Party
Subordinated Debt in an Outstanding Amount not to exceed $2 million at any
time, PROVIDED that, prior to the Incurrence of any such Related Party
Subordinated Debt, the Operating Company or one of its Subsidiaries
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(whichever is to Incur such Debt) and the Person to whom such Debt will be
owned shall have entered into an agreement containing subordination
provisions substantially in the form attached hereto as Exhibit D whereby the
payment of such Related Party Subordinated Debt will be subordinated to the
payment of the Note and the Bonds (and all other Secured Debt secured by a
lien on the Trust Estate, or any portion thereof, ranking on a parity with or
senior to the lien of the Mortgage) and the Operating Company shall have
delivered a true and correct copy of such agreement to the Trustee, together
with an Officers' Certificate stating that such Related Party Subordinated
Debt will be Incurred in compliance with the provisions of this Section
1008(c)(iii). Any Debt Incurred pursuant to this Section 1008(c) shall be
excluded from any subsequent or contemporaneous computation made under
Section 1008(a) or 1008(b).
(d) Prior to the Incurrence of any Debt by the Operating Company or
any of its Subsidiaries (OTHER THAN SAHARA GREEN VALLEY), the Operating Company
shall deliver to the Trustee (i) in the case of Debt to be Incurred pursuant to
Section 1008(a) or 1008(b), a Certificate of Appraised Value (which shall be
dated, and shall set forth the Appraised Value, as the of a date not more than
ten days prior to the date on which such Debt is to be Incurred) and a
Certificate of Coverage Ratio (which shall set forth the pro forma Coverage
Ratio and calculations used in determining the same for the relevant four fiscal
quarters); (ii) in the case of Secured Debt to be Incurred pursuant to Section
1008(a) or, if applicable, 1008(c)(i), an Opinion of Counsel (which shall be
Independent counsel) to the effect that the instrument creating a Lien in favor
of such Secured Debt contains provisions to the effect called for by Section
1009 hereof or Section 503(d) of the Mortgage, as the case may be; (iii) in the
case of Debt to be Incurred pursuant to Section 1008(c)(ii) or (iii), an Opinion
of Counsel (which shall be Independent counsel) to the effect that the
instrument creating or evidencing such Debt contains subordination provisions
substantially in the form of Exhibit D hereto; and (iv) in all cases, an
Officers' Certificate (which shall be dated the date on which such Debt is to be
Incurred) stating (A) the amount of such Debt, (3) that the Incurrence thereof
will be in compliance with this Section 1008 (including, with limitation,
Section 1008(f)) and the other applicable provisions of this Indenture and the
Mortgage and (C) that no Default has occurred or, as a result of the Incurrence,
will occur.
(e) The Operating Company will cause the payment of all Debt owing
by the Operating Company to the Guarantor or any Affiliates of the Guarantor
and outstanding on the date on
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which the Bonds are initially issued to be duly subordinated to the payment
of the Note and the Bonds pursuant to an instrument entered into with the
Guarantor or such Affiliate and containing subordination provisions
substantially in the form of Exhibit D to this Indenture.
(f) Anything herein to the contrary not withstanding, the
Operating Company will not, and will not cause or permit any of its
Subsidiaries (OTHER THAN SAHARA GREEN VALLEY) to, Incur any Debt unless the
Operating Company and its Affiliates shall have obtained (i) all Gaming
Permits, if any, required in connection therewith and (ii) all required
consents and approvals, if any, of the lessor under the Pioneer Ground Lease.
(g) SAHARA GREEN VALLEY SHALL NOT BE SUBJECT TO ANY RESTRICTIONS ON
THE INCURRENCE BY IT OF INDEBTEDNESS, EXCEPT THAT SAHARA GREEN VALLEY WILL NOT,
DIRECTLY OR INDIRECTLY, INCUR DEBT EXCEEDING $70,000,000 IN AGGREGATE PRINCIPAL
AMOUNT IF SUCH DEBT IS SECURED BY THE REAL PROPERTY OWNED BY SAHARA GREEN VALLEY
IN HENDERSON, NEVADA.
IV. AMENDMENT OF SECTION 1010
Section 1010 of the Indenture is hereby amended to read in its
entirety as follows:
SECTION 1010. LIMITATION ON DISTRIBUTIONS AND INVESTMENTS.
(a) As long as any of the Bonds are Outstanding, the Company shall
not make, directly or indirectly, any Restricted Payment or Restricted
Investment.
(b) As long as any of the Bonds are Outstanding, the Operating
Company will not make, and will not cause or permit any of its Subsidiaries
or any Person directly or indirectly controlled by the Operating Company to
make, directly or indirectly, any Restricted Payment or Restricted
Investment, unless;
(1) no Default shall have occurred and be continuing, or
would occur as a consequence thereof; and
(2) the amount of such Restricted Payment or Restricted
Investment, as the case may be (in either case, a "Proposed
Payment"), plus the aggregate amount of all Restricted Payments and
Restricted Investments made during the period of the 12 most recent
consecutive calendar months (the "Subject
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Period") ending prior to the date of such Proposed Payment, shall not
exceed (i) 35% of Cash Flow for the Subject Period if the Operating
Company has maintained a Coverage Ratio equal to at least 1.5 to 1
for the Subject Period; (ii) 50% of Cash Flow for the Subject
Period if the Operating Company has maintained a Coverage Ratio equal
to at least 2.0 to 1 for the Subject Period; (iii) 75% of Cash Flow
for the Subject Period if the Operating Company has maintained a
Coverage Ratio equal to at least 3.0 to 1 for the Subject Period; or
(iv) 0% of Cash Flow in all other instances.
Prior to any such Proposed Payment, the Operating Company will
deliver to the Trustee a Certificate of Coverage Ratio for the Subject Period
and an Officers' Certificate (dated the date of such Proposed Payment)
stating (i) that such Proposed Payment will be in compliance with this
Section 1010 and (ii) no Default has occurred or will occur as a result of
such Proposed Payment.
NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 1010(b), SAHARA GREEN
VALLEY SHALL NOT BE RESTRICTED FROM MAKING, DIRECTLY OR INDIRECTLY, A RESTRICTED
PAYMENT OR RESTRICTED PAYMENTS TO THE OPERATING COMPANY IN AN AGGREGATE AMOUNT
UP TO THE NET PROCEEDS RECEIVED UPON A DISPOSITION OF ALL OR SUBSTANTIALLY ALL
OF THE ASSETS OF SAHARA GREEN VALLEY.
(c) Notwithstanding anything in this Section 1010 to the
contrary, the Operating Company will not make, and will not cause or permit
any of its Subsidiaries or any Person directly or indirectly controlled by
the Operating Company to make, directly or indirectly, any Restricted
Payments or Restricted Investments during the 12-month period following the
date of acquisition of the Hotel-Gambling Hall by the Operating Company
pursuant to the Acquisition Agreement.
V. AMENDMENT OF SECTION 1011
Section 1011 of the Indenture is hereby amended to read in its
entirety as follows:
SECTION 1011. RESTRICTION ON ACTIVITIES.
(a) The Company will not, directly or indirectly, engage in any
business or activities, acquire or hold any property (including any capital
stock or partners' or other ownership interests) or Incur any Debt other than
the Bonds; PROVIDED, HOWEVER, that the Company may hold the Note and the
Mortgage Documents, collect and remit payments received and preserve its
rights thereunder, do or cause to be done all
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things necessary or appropriate to protect the Trust Estate and to preserve
its rights (and the rights of the Trustee and the Holders) therein, and
otherwise comply with its obligations under this Indenture, the Mortgage
Documents and the Bonds and perform activities incidental thereto.
(b) The Operating Company will not, and will cause its
Subsidiaries (OTHER THAN SAHARA GREEN VALLEY) not to, engage in any business
or activities other than those necessary or appropriate for, incidental to,
connected with or arising out of, financing, owning and operating the
Hotel-Gambling Hall.
VI. ADDITION OF SECTION 1018
Section 1018 of the Indenture is hereby added to the Indenture to
read in its entirety as follows:
SECTION 1018. MISCELLANEOUS RESTRICTIONS ON THE OPERATING COMPANY
AND SAHARA GREEN VALLEY
(a) THE OPERATING COMPANY'S USE OF THE $10,000,000 CONTRIBUTION
SHALL BE LIMITED TO (i) CAPITAL CONTRIBUTION TO SAHARA GREEN VALLEY, (ii)
REPURCHASE OF BONDS, (iii) THE PAYMENT OF INTEREST, PREMIUM, IF ANY, AND
PRINCIPAL ON THE NOTE, AND (iv) CAPITAL EXPENDITURES AT THE HOTEL-GAMBLING
HALL.
(b) THE OPERATING COMPANY'S USE OF THE $5,000,000 CONTRIBUTION
SHALL BE LIMITED TO (i) THE PAYMENT OF INTEREST, PREMIUM, IF ANY, AND
PRINCIPAL ON THE NOTE AND (ii) CAPITAL EXPENDITURES AT THE HOTEL-GAMBLING
HALL.
(c) THE USE OF THE CONTINGENT CONTRIBUTION, IF ANY, BY EITHER THE
OPERATING COMPANY OR SAHARA GREEN VALLEY, SHALL BE LIMITED TO (i) CAPITAL
CONTRIBUTION TO SAHARA GREEN VALLEY, (ii) REPURCHASE OF BONDS, (iii) THE
PAYMENT OF INTEREST, PREMIUM, IF ANY, AND PRINCIPAL ON THE NOTE, AND (iv)
CAPITAL EXPENDITURES AT THE HOTEL-GAMBLING HALL.
VII. AMENDMENT OF SECTION 101
Section 101 of the Indenture is hereby amended to include following
definitions:
"ALTERNATIVE CONTRIBUTION" MEANS THE AMOUNT OF FUNDS WHICH THE
GUARANTOR AND OR ANY OF ITS AFFILIATES SHALL HAVE LOANED OR CONTRIBUTED TO THE
OPERATING COMPANY AND/OR SAHARA GREEN VALLEY OTHER THAN PURSUANT TO THE
$10,000,000 CONTRIBUTION OR THE $5,000,000 CONTRIBUTION, WHICH LOAN OR
CONTRIBUTION SHALL HAVE BEEN MADE PRIOR TO THE TIME OF THE
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REQUIREMENT TO LOAN OR CONTRIBUTE MONEY UNDER THE CONTINGENT CASH OBLIGATION.
"CONTINGENT CONTRIBUTION" MEANS A LOAN OR CONTRIBUTION IN A MAXIMUM
AMOUNT OF $10,000,000 THAT THE GUARANTOR SHALL, SUBJECT TO (i) THE
CONSUMMATION OF A SALE BY SAHARA LAS VEGAS OF THE WET'N WILD PARCEL AT ANY
TIME PRIOR TO THE MATURITY OF THE BONDS, OR (ii) THE INABILITY OF THE
COMPANY, AND ONLY TO THE EXTENT OF SUCH INABILITY, TO SATISFY PRINCIPAL
PAYMENTS ON THE BONDS IN DECEMBER 1997 AND DECEMBER 1998, MAKE, OR CAUSE ITS
SUBSIDIARIES OR AFFILIATES TO MAKE, TO THE OPERATING COMPANY AND/OR SAHARA
GREEN VALLEY.
"SAHARA GREEN VALLEY" MEANS SAHARA MISSION VALLEY INC., A NEVADA
CORPORATION.
"WET'N WILD DEED OF TRUST" MEANS THAT CERTAIN DEED OF TRUST IN FAVOR
OF THE TRUSTEE AND FOR THE BENEFIT OF THE HOLDERS, ENCUMBERING THE WET'N WILD
PARCEL AND SECURING THE OBLIGATION OF THE GUARANTOR TO MAKE THE CONTINGENT
CASH OBLIGATION, WHICH WET'N WILD DEED OF TRUST SHALL BE EXECUTED AND
RECORDED IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE UPON THE
CONSUMMATION OF THE SALE OF THE SAHARA HOTEL AND SHALL BE RELEASED UPON THE
EARLIER OF (i) THE MAKING OF LOANS AND/OR CONTRIBUTIONS BY THE GUARANTOR
AND/OR ITS AFFILIATES TO THE OPERATING COMPANY AND/OR SAHARA GREEN VALLEY IN
AN AGGREGATE AMOUNT EQUAL TO AT LEAST $10,000,000, PURSUANT TO THE
ALTERNATIVE CONTRIBUTION AND/OR THE CONTINGENT CASH OBLIGATION, AND (ii)
SATISFACTION IN FULL OF THE BONDS.
"WET'N WILD PARCEL" MEANS THAT CERTAIN REAL PROPERTY LOCATED IN
XXXXX COUNTY, NEVADA, COMMONLY KNOWN AS THE WET'N WILD WATER PARK AND
COMPRISING APPROXIMATELY 26.80 ACRES, MORE OR LESS.
"$10,000,000 CONTRIBUTION" MEANS THE $10,000,000 CONTRIBUTION THAT
THE GUARANTOR SHALL, SUBJECT TO THE SALE OF SUBSTANTIALLY ALL OF THE ASSETS
OF HHI, SNC AND SAHARA LAS VEGAS, MAKE OR CAUSE TO BE MADE TO THE OPERATING
COMPANY WITHIN SIXTY (60) DAYS AFTER THE LATER OF THE CONSUMMATION OF THE
SALES OF THE HACIENDA HOTEL AND THE SAHARA HOTEL.
"$5,000,000 CONTRIBUTION" MEANS THE $10,000,000 CONTRIBUTION THAT
THE GUARANTOR SHALL, SUBJECT TO THE SALE OF SUBSTANTIALLY ALL OF THE ASSETS
OF HHI, SNC AND SAHARA LAS VEGAS, MAKE OR CAUSE TO BE MADE TO THE OPERATING
COMPANY WITHIN SIXTY (60) DAYS AFTER THE LATER OF THE CONSUMMATION OF THE
SALES OF THE HACIENDA HOTEL AND THE SAHARA HOTEL.
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VIII. MISCELLANEOUS
A. EXECUTION BY TRUSTEE. The Trustee executes this Third
Supplemental Indenture in accordance with the terms of the Indenture;
provided, however, that such execution is conditioned upon the satisfaction
of all the terms and conditions contained herein, and that such execution
shall not constitute a waiver of any of the terms and conditions set forth in
the Indenture or other Mortgage Documents.
B. INDEMNIFICATION. Guarantor agrees to defend, indemnify and
hold Trustee and its officers, employees and agents harmless from any claims,
judgments, damages, penalties, fines, costs, liabilities (including sums paid
in settlements of claims) or loss, including reasonable attorneys' fees,
consultant fees, and expert fees which may arise due to any breach of
Trustee's fiduciary responsibilities under the Indenture as a result of the
Trustee's execution of this Third Supplemental Indenture.
C. EFFECT ON INDENTURE DOCUMENTS. Except as otherwise amended,
modified or supplemented by this Third Supplemental Indenture, the Indenture,
Mortgage Documents, Environmental Indemnity Agreement and Environmental
Assignment Agreement shall continue in full force and effect and are enforceable
in accordance with their terms.
D. COUNTERPARTS. This Third Supplemental Indenture may be
executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the date first written above.
"Trustee" "Company"
IBJ XXXXXXXX BANK & TRUST PIONEER FINANCE CORP., a
COMPANY Nevada corporation
By: By:
------------------------------ ------------------------------
Its: Its:
----------------------------- ----------------------------
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"Operating Company" "Guarantor"
PIONEER HOTEL INC., a Nevada SAHARA GAMING CORPORATION, a
corporation Nevada corporation
By: By:
------------------------------ ------------------------------
Its: Its:
----------------------------- ----------------------------
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