EXHIBIT 10.82
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated
as of November 30, 1998, 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 and
successor-in-interest to Pioneer Operating Limited Partnership (the
"Operating Company"), and Santa Fe Gaming Corporation, a Nevada corporation
formerly known as Sahara Gaming Corporation and successor-in-interest to
Sahara Casino Partners, L.P. ("Sahara Casino") (the "Guarantor").
Capitalized terms not otherwise defined herein have the meanings set forth in
the Indenture, as defined below.
RECITALS
A. The Company, 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"), the Operating Company,
and Sahara Gaming Corporation ("Sahara Gaming"), as guarantor, reflecting
various reorganizations in which the Guarantor became the successor of Sahara
Casino and the Operating Company became the successor of POLP; (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; and (iv)
that certain Third Supplemental Indenture, dated as of August 31, 1995, by
and among the Company, the Operating Company, the Guarantor and IBJ Xxxxxxxx
Bank & Trust Company, as successor trustee, with respect to $120,000,000
principal amount of the Company's 13 1/2% First Mortgage Bonds Due December 1,
1998 (the "Bonds"). The Bonds are guaranteed ("Guaranty") by the Guarantor.
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. The Company, pursuant to its Offering Circular and Consent
Solicitation Statement, dated October 23, 1998, as amended by the Supplement
dated November 14, 1998 to Offering Circular and Consent Solicitation Statement
(together, the "Amended Joint Offering Circular/Consent Solicitation
Statement"), copies of which are attached hereto as EXHIBIT A, has solicited the
consents of the Holders to, among other things, (i) until December 15, 2000 (the
"Termination Date") forbear from exercising any rights and remedies under the
Bonds, the Indenture, the Guaranty and the Mortgage Documents with respect to
any failure by the Company to pay principal and interest on the Bonds when due
on December 1, 1998, (ii) until the Termination Date, forbear from exercising
any rights and remedies under the Note and related security documents with
respect to any failure by the Operating Company to pay principal and
interest on the Note when due on December 1, 1998 and (iii) certain
amendments (the "Amendments") to the Indenture as described in this
Supplemental Indenture, and the Holders of at least a majority of the
outstanding Bonds have granted such consents, subject to the terms and
conditions included in the Amended Joint Offering Circular/Consent
Solicitation Statement (the "Consents").
C. In connection with the Consents, certain subsidiaries of the
Guarantor have agreed to grant security interests in substantially all of
their assets to secure the Bonds.
D. In connection with the Consents, the Guarantor has agreed to pledge
the common stock of certain of its subsidiaries and to grant a security
interest in substantially all of its other assets to secure the Guarantee.
E. The Company, the Operating Company and the Guarantor have requested
that the Trustee execute this Supplemental Indenture, and the Trustee is
willing to execute this 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
SECTION 1. DEFINED TERMS. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Indenture.
SECTION 2. AMENDMENT TO SECTION 101 OF THE INDENTURE.
(a) The following definitions in Section 101 of the Indenture are
hereby amended to provide in their entirety as follows:
"Mortgage Documents" means the Mortgage, the Note, the Assignment
Agreement and all financing statements related thereto, THE GUARANTOR PLEDGE
AGREEMENT, THE GUARANTOR SECURITY AGREEMENT, THE GUARANTOR SUBSIDIARIES
SECURITY AGREEMENTS and any other assignments, pledge agreements, mortgages,
deeds of trust, agreements or instruments (other than securities or other
assets that constitute part of the Trust Estate) delivered or to be delivered
to the Trustee, or delivered to the Company and assigned or pledged to the
Trustee, as security for the Bonds OR THE GUARANTEE.
(b) The following new definitions are added to Section 101 of the
Indenture:
"Excluded Assets" means, in the case of the Guarantor, the approximately
20 acre parcel of real property located at Lone Mountain Road, Las Vegas,
Nevada, and the capital stock of any Subsidiaries other than the Guarantor
Subsidiaries and, in the case of the Guarantor Subsidiaries, any Accounts (as
defined in the Guarantor Subsidiaries Security Agreements).
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"Guarantor Pledge Agreement" means the Pledge Agreement between the
Guarantor and the Trustee, pursuant to which the Guarantor has pledged all of
the outstanding common stock of Santa Fe Hotel, Sahara Resorts and the
Guarantor Subsidiaries as security for its obligations under the Guaranty,
substantially in the form attached hereto as Exhibit F, as the same may be
amended, modified or supplemented from time to time in accordance with its
terms.
"Guarantor Preferred Stock" means the Guarantor's Exchangeable
Redeemable Preferred Stock, $2.14 liquidation preference per share, pursuant
to the Certificate of Designation for Exchangeable Redeemable Preferred Stock.
"Guarantor Security Agreement" means the Security Agreement between the
Guarantor and Trustee, pursuant to which the Guarantor has granted Liens in
substantially all of its assets, other than the Excluded Assets, as security
for its obligations under the Guaranty, substantially in the form attached
hereto as Exhibit G, as the same may be amended, modified or supplemented
from time to time in accordance with its terms.
"Guarantor Subsidiaries" means Hacienda Hotel Inc., a Nevada
corporation, Sahara Nevada Corp., a Nevada corporation, and Santa Fe Coffee
Company, a Nevada corporation.
"Guarantor Subsidiaries Security Agreements" means the Security
Agreements executed by each of the Guarantor Subsidiaries granting Liens in
substantially all of the assets of each Guarantor Subsidiary, other than the
Excluded Assets as security for the Company's obligations under the Bonds,
substantially in the form attached hereto as Exhibit H, as the same may be
amended, modified or supplemented from time to time in accordance with its
terms.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
judgment of the Company's Board of Directors, (i) qualified to perform the
task for which it has been engaged and (ii) disinterested and Independent
with respect to the Company and each Affiliate of the Company and/or the
Xxxxxx/Xxxxxxxxx Group.
"Junior Subordinated Notes" means the Junior Subordinated Notes under
and as defined in the Certificate of Designation of the Guarantor Preferred
Stock or any other securities that are issued in exchange for or to redeem,
acquire or otherwise pay Guarantor Preferred Stock.
"Santa Fe Hotel" means Santa Fe Hotel Inc., a Nevada corporation, or any
Person with which Santa Fe Hotel may merge, consolidate or amalgamate, or to
which Santa Fe Hotel may Dispose of all or substantially all of its property
and assets as an entirety or substantially as an entirety.
SECTION 3. AMENDMENT TO SECTION 901 OF THE INDENTURE. Section 901
of the Indenture is hereby amended by the addition of the following paragraph:
(i) to amend or modify the Pioneer Ground Lease; PROVIDED that the
Operating Company first delivers to the Trustee a report of an Independent
Financial Advisor with respect thereto confirming that the proposed amendment
or modification is not economically adverse to the Holders.
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SECTION 4. AMENDMENT TO SECTION 902 OF THE INDENTURE. Section 902
of the Indenture is hereby amended to read in its entirety as follows:
SECTION 902. SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority of the
Outstanding Amount of the Bonds then Outstanding, by Act of such Holders
delivered to the Company, the Operating Company, the Guarantor and the
Trustee, the parties hereto (each, other than the Trustee, when authorized by
a Board Resolution) may from time to time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or modifying in any manner the rights of the Trustee or the Holders
hereunder; and, SUBJECT TO SECTION 901(I), with the consent of the Holders of
not less than a majority in Outstanding Amount of the Bonds then Outstanding,
by Act of said Holders delivered to the Company, the Operating Company, the
Guarantor and the Trustee, each party to the Pioneer Ground Lease, the
Lessor's Certificate and Agreement or a Mortgage Document (in the case of
parties that are corporations or Partnerships (other than the Trustee), each
pursuant to authorization granted by a Board Resolution) may enter into one
or more amendments or supplements to the Pioneer Ground Lease, the Lessor's
Certificate and Agreement or such Mortgage Document for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of the Pioneer Ground Lease, the Lessor's Certificate and
Agreement or such Mortgage Document or of modifying in any manner the rights
(whether direct or derivative) of the Trustee or the Holders under the
Pioneer Ground Lease, the Lessor's Certificate and Agreement or such Mortgage
Document; provided that no such supplemental indenture, amendment or
supplement shall be valid or effective for any purpose unless the Company,
the Operating Partnership, the Guarantor and the Trustee, if not a party to
this Indenture or the Pioneer Ground Lease, the Lessor's Certificate and
Agreement or the applicable Mortgage Documents, as the case may be, shall
have consented in writing to the executed form of such supplemental
indenture, amendment or supplement, as the case may be (in the case of
parties that are corporations or Partnerships (other than the Trustee), each
pursuant to authorization granted by a Board Resolution); and provided,
further, that no such supplemental indenture, amendment or supplement shall,
without the consent of the Holder of each Outstanding Bond affected thereby:
(a) change the Stated Maturity of the principal of (or premium, if
any, on), or any installment of interest on, any Bond, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the aggregate principal
amount of Bonds required to be redeemed pursuant to the Sinking Fund, or
change the place of payment or the coin or currency in which any Bond or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or
(b) change the expressed maturity of the principal of reduce the
principal amount thereof or the rate of thereon or any premium payable upon
the prepayment reduce the aggregate principal amount of the Note required
to be prepaid, or change the place of payment or the coin or currency in
which the Note or any premium or interest
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thereon is payable, or impair the right to institute suit for enforcement
of any such payment on or after the maturity thereof (or in the case of
prepayment, on or after the prepayment date); or
(c) reduce the percentage in Outstanding Amount of the Outstanding
Bonds, the consent of whose Holders is required for any such supplemental
indenture, amendment or supplement or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture; or
(d) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture or the Mortgage Documents cannot be modified
or waived without the consent of the Holder of each Bond affected thereby;
or
(e) modify or affect in any manner the terms and conditions of the
obligation of the Guarantor in respect of the due and punctual payment of
the principal of (or premium, if any) or interest on the Bonds or the due
and punctual payment of the Sinking Fund Payments; or
(f) permit the creation of any Lien ranking prior to the Lien of the
Mortgage (except as expressly permitted pursuant to this Indenture or the
Mortgage Documents) or terminate the Lien of any of the Mortgage Documents
or deprive the Holder of any Bond of the security afforded by the Lien of
any of the Mortgage Documents; or
(g) modify or waive any of the provisions of this Indenture
respecting the Incurrence of additional Secured Debt; or
(h) modify any of the provisions of this Indenture in such manner as
to affect the rights of the Holders of Bonds to the benefits of the Sinking
Fund; or
(i) deprive the Holder of any Bond of the security of the Trust
Estate or the Note afforded by the Lien of the Mortgage Documents except as
otherwise provided in the Mortgage Documents.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 5. AMENDMENT TO ARTICLE TEN OF THE INDENTURE.
(a) Section 1015 of the Indenture is hereby amended to read in its
entirety as follows:
SECTION 1015. AMENDMENTS TO MORTGAGE DOCUMENTS.
Without limitation to the provisions set forth in Article Nine, neither the
Company, the Guarantor or the Operating Company will enter into or consent to or
permit any amendment,
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supplement, modification or waiver of or relating to any Mortgage Document,
the Pioneer Ground Lease or the Lessor's Certificate and Agreement without
the prior written consent of the Trustee; PROVIDED, HOWEVER, THAT IN THE CASE
OF THE PIONEER GROUND LEASE, SUCH AMENDMENT, SUPPLEMENT, MODIFICATION OR
WAIVER MAY BE MADE WITHOUT THE TRUSTEE'S WRITTEN CONSENT IF THE OPERATING
COMPANY FIRST DELIVERS TO THE TRUSTEE A REPORT OF AN INDEPENDENT FINANCIAL
ADVISOR WITH RESPECT THERETO CONFIRMING THAT THE PROPOSED AMENDMENT OR
MODIFICATION IS NOT ECONOMICALLY ADVERSE TO THE HOLDERS.
(b) Article Ten of the Indenture is hereby amended by the addition of
the following section:
SECTION 1018. OBLIGATIONS OF THE GUARANTOR.
The Guarantor will not:
(a) make any dividend or other distribution, direct or indirect, on
account of any shares of any class of its capital stock now or hereafter
outstanding, except a dividend payable solely in shares of that class of
capital stock to the holders of that class or in options, warrants or other
rights to purchase such capital stock;
(b) make any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares
of any class of its capital stock now or hereafter outstanding (other than
in exchange for its capital stock or options, warrants or other rights to
purchase such capital stock);
(c) make any payment to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of its capital stock now or hereafter outstanding; and
(d) make any payment or prepayment of principal of, premium, if any,
or redemption, purchase, retirement, defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect to any
Junior Subordinated Notes.
SECTION 6. AMENDMENT TO ARTICLE THIRTEEN OF THE INDENTURE.
(a) Article Thirteen of the Indenture is hereby amended by the addition
of the following section:
SECTION 1303. SECURITY.
In order to secure the performance of the Guarantor's obligations
hereunder and under the Guarantee, the Guarantor has executed and delivered
to the Trustee the Guarantor Pledge Agreement and the Guarantor Security
Agreement.
(b) Exhibit F to the Indenture consists of the Guarantor Pledge
Agreement substantially in the form attached hereto as EXHIBIT B.
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(c) Exhibit G to the Indenture consists of the Guarantor Security
Agreement substantially in the form attached hereto as EXHIBIT C.
SECTION 7. AMENDMENT TO ARTICLE FOURTEEN OF THE INDENTURE.
(a) Article Fourteen of the Indenture is hereby amended by the addition
of the following section:
SECTION 1406. GUARANTOR SUBSIDIARIES SECURITY AGREEMENTS.
In order to secure the performance of the Company's obligations
hereunder and under the Bonds, each of the Guarantor Subsidiaries has
executed and delivered to the Trustee a Guarantor Subsidiary Security
Agreement.
(b) Exhibit H to the Indenture consists of the Guarantor Subsidiary
Security Agreement substantially in the form attached hereto as EXHIBIT D.
SECTION 8. EXECUTION BY TRUSTEE. The Trustee executes this
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.
SECTION 9. INDEMNIFICATION. The Guarantor agrees to defend,
indemnify and hold the 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 the Trustee's fiduciary responsibilities under the
Indenture as a result of the Trustee's execution of this Supplemental
Indenture.
SECTION 10. EFFECT ON INDENTURE DOCUMENTS. Except as otherwise
amended, modified or supplemented by this Supplemental Indenture, the
Indenture and the Mortgage Documents shall continue in full force and effect
and are enforceable in accordance with their terms. This Supplemental
Indenture is an amendment to and implementation to the Indenture, and the
Indenture and this Supplemental Indenture shall be read together from and
after the date of effectiveness of this Supplemental Indenture.
SECTION 11. COUNTERPARTS. This Supplemental Indenture 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.
SECTION 12. GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of Nevada.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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: /s/ XXXXXXX XXXXXXXXX By: /s/ XXXXXX X. LAND
------------------------- -------------------------
Its: Vice President Its: Senior Vice President,
Chief Financial Officer
Operating Company Guarantor
PIONEER HOTEL INC., a Nevada SANTA FE GAMING CORPORATION, a
corporation Nevada corporation
By: /s/ XXXXXX X. LAND By: /s/ XXXXXX X. LAND
------------------------- -------------------------
Its: Senior Vice President, Its: Senior Vice President,
Chief Financial Officer Chief Financial Officer
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EXHIBIT A
OFFERING CIRCULAR AND CONSENT SOLICITATION STATEMENT DATED OCTOBER 23, 1998
AS SUPPLEMENTED BY
SUPPLEMENT DATED NOVEMBER 14, 1998 TO
OFFERING CIRCULAR AND CONSENT SOLICITATION STATEMENT DATED OCTOBER 23, 1998
