EXHIBIT 10.91
RIGHT OF FIRST REFUSAL
This RIGHT OF FIRST REFUSAL (this "AGREEMENT") is made and entered
into as of the 15 day of November, 1999 by and among Station Casinos, Inc., a
Nevada corporation ("STATION"), Santa Fe Gaming Corporation, a Nevada
corporation ("SANTA FE") and Santa Fe Hotel, Inc., a Nevada corporation
("SFHI," together Santa Fe with Station, the "PARTIES").
RECITALS
1. Station and Sahara Las Vegas Corp., a Nevada corporation ("SLVC")
have entered into a Purchase and Sale Agreement and Joint Escrow Instructions
of even date herewith in connection with the purchase of land located at 0000
Xxxx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxx (the "PURCHASE AGREEMENT").
2. SFHI and SLVC each is a subsidiary of Santa Fe.
3. It is a condition to the closing of the transaction contemplated
under the Purchase Agreement that SFHI and Santa Fe shall have entered into
this Agreement.
4. The Parties desire to enter into this Agreement.
In consideration of the mutual promises and covenants set
forth in this Agreement and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, SFHI, Santa Fe and Station
agree as follows:
Section 1. RIGHT OF FIRST REFUSAL. SFHI grants to Station a right of
first refusal (i) to purchase New Securities (as defined) which SFHI may,
from time to time, propose to issue and sell, assign or otherwise transfer
subject to the provisions of this SECTION 1 and (ii) to purchase assets and
properties to the extent that SFHI proposes to enter into a transaction or
series of transactions in which it sells, assigns or otherwise transfers all
or a substantial portion of its assets or properties (a "SALE OF ASSETS").
Santa Fe grants to Station a right of first refusal to purchase any
outstanding capital stock of SFHI ("OUTSTANDING Equity") that Santa Fe or any
of its affiliates proposes to sell, assign or otherwise, directly or
indirectly, transfer in any transaction (an "EQUITY SALE"); PROVIDED that a
transaction shall not be considered an Equity Sale to the extent that such
transaction is accomplished by a sale of all or substantially all of the
capital stock of Santa Fe in connection with which no repurchase or similar
right to buy back any such capital stock or other assets of Santa Fe or its
subsidiaries is retained by the Lowdens (as defined).
(a) "NEW SECURITIES" shall mean any capital stock of SFHI and
any evidence of indebtedness or other securities convertible into or
exchangeable for capital stock of SFHI either immediately or upon the
arrival of a specified date or the happening of a
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specified event; PROVIDED that the term "New Securities" shall not
include (i) securities issued in a BONA FIDE sale to purchasers who
take for investment purposes to the extent that following such
transaction (including any transaction related to or contemplated in
connection with such transaction) (A) no "person" (as such term is
used in Section 13(d) and Section 14(d) of the Securities Exchange
Act of 1934 (the "1934 ACT") ("PERSON") other than the Xxxxx Xxxxxx,
Xxxxx Xxxxxx or Xxxx Xxxxxx (individually or collectively, the
"LOWDENS") becomes a "beneficial owner" (as defined in Rule 13d-3 or
Rule 13d-5 of the 1934 Act, except that a person shall be deemed to
be a beneficial owner of all securities that such person has the
right to acquire, whether such right is exercisable immediately or
not) ("BENEFICIAL OWNER" and such ownership, "BENEFICIAL
OWNERSHIP"), directly or indirectly of securities representing more
than 15% of the combined voting power of, or economic interests in,
SFHI's capital stock, (B) no Person Beneficially Owns, directly or
indirectly, securities representing more than the percentage of the
combined voting power of, or economic interests in, SFHI's capital
stock Beneficially Owned directly or indirectly by the Lowdens and
(C) no Person has the right, directly or indirectly, to appoint
directors of SFHI; (ii) securities issued pursuant to the
acquisition of another business entity or segment of any such entity
by SFHI by merger, purchase of substantially all of the assets or
other reorganization by which Santa Fe comes to own, directly or
indirectly, more than 50% of the voting power of such entity to the
extent that following such issuance (A) no Person other than the
Lowdens becomes a Beneficial Owner directly or indirectly of
securities representing more than 15% of the combined voting power
of, or economic interests in, SFHI's capital stock, (B) no Person
Beneficially Owns, directly or indirectly, securities representing
more than the percentage of the combined voting power of, or
economic interests in, SFHI's capital stock Beneficially Owned
directly or indirectly by the Lowdens and (C) no Person has the
right, directly or indirectly, to appoint directors of SFHI; (iii)
any borrowings, direct or indirect, from financial institutions or
other persons by SFHI, including any type of loan or payment
evidenced by any type of debt instrument (provided that such
borrowings do not include equity features such as warrants, options
or other rights to purchase capital stock or conversion or exchange
rights for equity with respect to the capital stock of SFHI); (iv)
securities issued to employees, consultants, officers or directors
of SFHI at not less than fair market value at the time of issuance
pursuant to any currently existing stock option, stock purchase or
stock bonus plan, agreement or arrangement approved by the board of
directors of SFHI; or (v) securities issued in any stock split,
stock dividend or stock combination of SFHI.
(b) In the event SFHI proposes to undertake an issuance of New
Securities or a Sale of Assets or Santa Fe proposes to undertake an
Equity Sale, SFHI or Santa Fe, as the case may be, shall give Station
written notice ("PROPOSED TRANSACTION NOTICE") of its intention which
describes the type of New Securities, the assets being sold in such
Sale of Assets (the "ASSETS") or the Equity Sale, the price and the
general terms upon which they issuance or sale, as the case may be,
shall occur. Station will have 45 days (the "EXERCISE PERIOD") after
delivery of any such Proposed Transaction Notice to agree to purchase
all or, in the event that the New Securities are offered in tranches, a
portion of such New Securities, Outstanding Equity or the Assets for
the price and upon the terms specified in such Proposed Transaction
Notice by giving written notice to SFHI or Santa Fe, as the
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case may be, and stating therein the quantity of such New
Securities, Outstanding Equity or Assets that it will purchase.
(c) If Station fails fully to exercise its right of first
refusal within the Exercise Period, then SFHI shall have 30 days
thereafter to sell, assign or otherwise transfer or enter into an
agreement to sell, assign or otherwise transfer (which agreement
shall require the sale to be closed within 180 days of the date on
which it was entered into by SFHI or Santa Fe, if at all) that
portion of the New Securities, Outstanding Equity or Assets with
respect to which Station did not exercise its right of first
refusal, at a price and on terms identical to those specified in the
Proposed Transaction Notice. If SFHI has not sold, assigned or
otherwise transferred the New Securities or entered into an
agreement to sell, assign or otherwise transfer the New Securities,
sold, assigned or otherwise transferred the Assets or entered into
an agreement to sell, assign or otherwise transfer the Assets or
Santa Fe has not sold, assigned or otherwise transferred the
Outstanding Equity or entered into an agreement to sell, assign or
otherwise transfer the Outstanding Equity, as the case may be, prior
to expiration of the relevant periods noted above, SFHI shall not
issue or sell, assign or otherwise transfer any New Securities or
conduct a Sale of Assets and Santa Fe shall not sell, assign or
otherwise transfer the Outstanding Equity, as the case may be,
without first again offering such securities or Assets to Station in
the manner set forth above.
Section 2. NOTICES. All notices, demands or requests required or
permitted under this Agreement must be in writing, and shall be made by hand
delivery, certified mail, overnight courier service, telex or telecopier to
the address, telecopy number or telex number set forth below such Party's
name on the signature page hereto, but any party may designate a different
address by a notice similarly given to the other Party. Any such notice or
communication shall be deemed given when delivered by hand, if delivered on a
day other than a Saturday, Sunday or a day on which commercial banks are
authorized or required to close in the State of Nevada (a "BUSINESS DAY"),
the next Business Day after delivery by hand if delivered by hand on a day
that is not a Business Day; four Business Days after being deposited in the
United States mail, postage prepaid, return receipt requested, if mailed; on
the next Business Day after being deposited for next day delivery with
Federal Express or a similar overnight courier; when receipt is acknowledged,
if telecopied on a Business Day; and the next Business Day following the day
on which receipt is acknowledged if telecopied on a day that is not a
Business Day.
Section 3. MISCELLANEOUS.
(a) EFFECTIVENESS. This Agreement shall be effective at the
Closing (as such term is defined in the Purchase Agreement).
(b) REPRESENTATIONS. Each individual and entity executing this
Agreement hereby personally represents and warrants that he or it has
the capacity set forth on the signature pages hereof with full power
and authority to bind the party on whose behalf he or it is executing
this Agreement to the terms hereof.
(c) INTEGRATION. This Agreement is the entire agreement among
the Parties with respect to the subject matter hereof and supersedes
all prior agreements between the
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parties with respect to the matters contained in this Agreement. Any
waiver, modification, consent or acquiescence with respect to any
provision of this Agreement shall be set forth in writing and duly
executed by or on behalf of the party to be bound thereby. No waiver
by any party of any breach hereunder shall be deemed a waiver of any
other or subsequent breach.
(d) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument.
The signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to
this Agreement attached thereto.
(e) INTERPRETATION. The language in all parts of this
Agreement shall be in all cases construed simply according to its fair
meaning and not strictly for or against any of the parties hereto.
Section and Paragraph headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any
of the provisions of this Agreement.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
(g) ATTORNEY'S FEES. If any action is brought by either party
against the other party, the prevailing party shall be entitled to
recover from the other party reasonable attorney's fees, costs and
expenses incurred in connection with the prosecution or defense of such
action. For purposes of this Agreement, the term "attorney's fees" or
"attorney's fees, costs and expenses" shall mean the fees, costs and
expenses of counsel to the parties hereto, which may include printing,
photostat, duplicating and other expenses, air freight charges and fees
billed for law clerks, paralegals and other persons not admitted to the
bar but performing services under the supervision of an attorney.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and to
their respective transferees, successors, and assigns; provided,
however, that neither this Agreement nor any of the rights or
obligations of Santa Fe or SFHI hereunder shall be transferred or
assigned by Santa Fe or SFHI without the prior written consent of
Station.
(j) TERM. The term of this Agreement shall be fifteen (15)
years.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date above first written.
STATION CASINOS, INC.
By: /s/ Xxxxx X Xxxxxxx
Title: Executive Vice President, General
Counsel, Secretary
Address: 0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
SANTA FE HOTEL, INC.
By: /s/ Xxxx X. Xxxxxx
Title: Chairman of the Board
Address: 0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
SANTA FE GAMING CORPORATION
By: /s/ Xxxx X. Xxxxxx
Title: President, Chairman of the Board
Address: 0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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