AMENDED AND RESTATED NOTE
$4,978,440 Las Vegas, Nevada
April 14, 1998
This Amended and Restated Note (the "Note"), dated April 14, 1998, is
entered into by and between Santa Fe Hotel Inc., a Nevada corporation (the
"Borrower"), and Santa Fe Gaming Corporation, a Nevada corporation ("SFGC"),
concurrent and in connection with the simultaneous sale of the Note from SFGC to
PDS Financial Corporation - Nevada, a Nevada corporation ("PDS") (the "Sale").
SFGC or its permitted assigns, including PDS, are referred to herein as the
"Holder."
RECITALS
WHEREAS, that certain Revolving Loan Note (the "Revolving Note") dated
December 1996 was issued by the Borrower in favor of SFGC in the maximum
principal amount of Five Million Dollars ($5,000,000);
WHEREAS, in connection with the sale of this Revolving Note by SFGC to PDS
pursuant to the Purchase Agreement, the Borrower and SFGC desire to modify
certain terms of the Revolving Note to, among other things, convert the
Revolving Note to a term note and in connection therewith to amend and restate
the Revolving Note in its entirety as provided herein and the Borrower desires
to grant a security interest in certain of its assets to secure obligations
arising under the Note;
WHEREAS, the restatement and amendment of the Revolving Note and grant of
the security interest are contingent upon the consummation of the transactions
contemplated by the Sale.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Borrower and the Holder agree as follows:
1. The Borrower, for value received, hereby unconditionally promises to
pay to the order of the Holder, at the address specified in writing by the
Holder to the Borrower in lawful money of the United States of America and in
immediately available funds, on April 14, 2001 the principal amount of (a) FOUR
MILLION NINE HUNDRED SEVENTY EIGHT THOUSAND FOUR HUNDRED FORTY DOLLARS
($4,978,440), or, if less, (b) the aggregate unpaid principal amount hereunder.
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rate of
eleven percent (11%) per annum (the "Contract Rate"), payable monthly in
arrears.
2. Prepayment.
(a) The Borrower shall prepay from time to time in part the amounts
due on this Note in an amount equal to the net proceeds received by the
Borrower from any disposition in the ordinary course of business of the
Collateral (as such term is defined in
that certain Security Agreement of even date herewith between the Borrower
and PDS, as collateral agent). Notwithstanding the foregoing, the Borrower
shall not be required to prepay any amounts due on this Note as a result of
a sale by the Borrower of all or substantially all of the Collateral to an
entity at least a majority of the voting interests of which are owned
directly or indirectly by the Xxxxxx Family (as defined herein) if such
entity assumes this Note and SFHI's obligations under the Security
Agreement.
(b) The Borrower may prepay the amount due on this Note in whole or
in part at any time and from time to time (i) at 101% of the principal
amount so prepaid plus interest thereon to the prepayment date if such
prepayment occurs at any time from the date hereof through December 15,
1999, or (ii) at 100% of the principal amount so prepaid plus interest
thereon to the prepayment date if such prepayment occurs thereafter, in
either case upon thirty (30) days' prior written notice.
3. This Note is secured by certain Collateral (as such term is defined in
that certain Security Agreement of even date herewith between the Borrower and
PDS, as collateral agent).
4. The Borrower shall pay interest on overdue principal and on overdue
installments of interest on this Note at the Contract Rate plus five percent
(5.0%) (the "Default Rate"), to the extent lawful.
5. Upon the Borrower's failure to pay (i) interest under this Note when
due, which failure continues for a period of fifteen (15) days or (ii) principal
under this Note when due, which failure continues for a period of five (5) days,
then all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable.
6. The Holder may not assign, sell or transfer this Note or any interest
herein to a third party without the prior written consent of the Borrower, which
consent shall not be unreasonably withheld. If such consent is not given or
denied by the Borrower within five (5) business days after the Borrower's
receipt of Holder's written request for such consent, which request shall
specify the person to which the Note or an interest herein is proposed to be
assigned, sold or transferred and the structure of the proposed assignment, sale
or transfer, the Borrower shall be deemed to have consented to such proposed
assignment, sale or transfer.
7. In the event the Borrower enters into any transaction, merger,
consolidation, liquidation, windup or dissolution, or conveys, sells, leases,
transfers or otherwise disposes of in one transaction or a series of
transactions all or substantially all of its property or assets, this Note shall
become immediately due and payable on the date (the "Sale Date") such event
occurs. Notwithstanding the foregoing, (a) the Borrower may merge or
consolidate with, or dispose of all or substantially all of its assets to, an
entity at least a majority of the voting interests of which are owned directly
or indirectly by the Xxxxxx Family (as such term is defined herein), in either
case without this Note becoming due and payable, if the entity with which the
Borrower merges or consolidates or to which all or substantially all of such
assets are transferred assumes this Note and (b) the Borrower may assign its
rights and obligations hereunder to an entity at least a majority of the voting
interests of which are owned directly or indirectly by the Xxxxxx Family in
connection with the sale of all or substantially all of the Collateral to such
entity if such entity
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assumes this Note. For purposes of this Note, "Xxxxxx Family" shall mean
Xx. Xxxx Xxxxxx and Xxx. Xxxxxxx Xxxxxx and the executors, administrators or
legal representatives of their estates, heirs, distributees and beneficiaries,
any trust as to which any of the foregoing is a settlor or co-settlor, any
trustee of the estate of any of the foregoing that is bankrupt or insolvent, any
guardian or conservator of any of the foregoing that is adjudged disabled or
incompetent, and any corporation, partnership or other entity which is an
affiliate of any of the foregoing. Xxxxxx Family shall also mean any lineal
descendants of the grandparents of such persons, but only to the extent that the
beneficial ownership of the voting interests held by such lineal descendants was
directly received (by gift, trust or sale) from any such person.
8. The occurrence of any one or more of the following shall constitute an
event of default (collectively, "Events of Default" and individually each an
"Event of Default") hereunder: (a) any failure to pay the principal outstanding
under this Note on the Maturity Date (or any earlier maturity date, whether by
acceleration, redemption or otherwise), which failure continues for a period of
five days, and (b) any failure to pay any installment of interest under this
Note on the Due Date therefor, which failure continues to exist for a period of
15 days. If any such event shall occur, Holder or its permitted assigns or
their permitted assigns may declare the entire unpaid principal balance hereof
and all accrued interest thereon and all other amounts due hereunder to be
immediately due and payable and thereby accelerate the maturity hereof, and
Holder or its permitted assigns or their permitted assigns may proceed to
exercise any rights and remedies that they may have under this Note.
9. The Borrower hereby waives presentment and demand for payment, notice
of dishonor, protest and notice of protest of this Note and agrees to pay all
costs of collection when incurred (including, without limitation, reasonable
attorneys' fees and disbursements), and including all reasonable costs and
expenses incurred in connection with the pursuit by Holder (or its permitted
assignee) or in connection with any of Holder's (or its permitted assignee's)
collection efforts, whether or not suit on this Note is filed and all such costs
and expenses shall be payable on demand.
10. The Borrower covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon or plead or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law or any
other law which would prohibit or forgive the Borrower from paying all or any
portion of the principal of, or interest on, this Note, wherever enacted, now or
at any time hereafter in force, or which may otherwise affect the covenants or
the performance of this Note; and the Borrower (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein or therein granted to Holder or its permitted assigns but will
suffer and permit the execution of every such power as though no such law had
been enacted.
11. This Note shall be governed by and construed in accordance with the
laws of the State of Nevada.
12. This Note may not be changed or terminated orally, but only by an
agreement in writing signed by any party against whom enforcement of such change
or termination is sought.
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13. All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and other notices of any kind.
SANTA FE HOTEL INC.
By: /s/ Xxxxxx X. Land
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Name: Xxxxxx X. Land
Title: Chief Financial Officer
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