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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM T-3
(AMENDMENT NO. 1)
APPLICATION FOR QUALIFICATION OF INDENTURE
UNDER THE TRUST INDENTURE ACT OF 1939
PIONEER FINANCE CORP.
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(Name of applicant)
4949 Rancho Drive
Las Vegas, Nevada 89130
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(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED:
TITLE OF CLASS AMOUNT
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13 1/2 % First Mortgage Bonds Up to an aggregate principal
due 2006 amount of $60,000,000
Approximate date of proposed public offering: As soon as practicable after this
application for qualification becomes effective.
NAME AND ADDRESS OF AGENT FOR SERVICE:
Thomas K. Land
c/o Santa Fe Gaming Corporation
4949 Rancho Drive
Las Vegas, Nevada 89130
WITH A COPY TO:
Karen E. Bertero
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071
The obligor hereby amends this application for qualification on such
date or dates as may be necessary to delay its effectiveness until (i) the
20th day after the filing of an amendment which specifically states that it
shall supersede this application, or (ii) such date as the Commission, acting
pursuant to Section 307(c) of the Act, may determine upon the written request
of the obligor.
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GENERAL
1. GENERAL INFORMATION.
(a) The Applicant, Pioneer Finance Corp. (the "Applicant" or "PFC"), is a
corporation.
(b) The Applicant was organized under the laws of the State of Nevada.
2. SECURITIES ACT EXEMPTION APPLICABLE.
The Applicant is offering (the "Exchange Offer"), upon the terms and
subject to the conditions set forth in an Offering Circular and Consent
Solicitation Statement (the "Joint Offering Circular/Consent Solicitation
Statement") and the accompanying letter of transmittal and consent form (the
"Letter of Transmittal and Consent Form") filed as exhibits to the original
Application for Qualification of Indenture under the Trust Indenture Act of
1939 on October 23, 1998, and the Supplement dated November 14, 1998 to the
Joint Offering Circular/Consent Solicitation Statement (the "Supplement") to
exchange (the "Exchange") a principal amount of its 13 1/2% First Mortgage
Notes due 2006 (together with the PIK Notes, as defined in the Joint Offering
Circular/Consent Solicitation Statement, the "New Notes") equal to the
principal amount of all its outstanding 13 1/2% First Mortgage Bonds due
December 1, 1998 (the "Old Notes") properly tendered for exchange and not
withdrawn, less the principal amount of Old Notes repurchased in the Exchange
Offer for all outstanding Old Notes. Upon consummation of the Exchange, the
Applicant will pay approximately $6.9 million to holders of tendered Old
Notes for principal and interest payments.
The Applicant is soliciting (the "Solicitation"), pursuant to the Joint
Offering Circular/Consent Solicitation Statement and the Supplement, the
consents (the "Consents") of holders of Old Notes to the following (the
"Proposed Consents"), which Proposed Consents will be effective only if the
Exchange Offer is not consummated:
- to agree, among other things, to a forbearance until December 15, 2000
against the exercise of rights and remedies under the Old Notes, the Old Note
Indenture, the Guaranty and the Mortgage documents (as defined in the Old
Note Indenture) in the event of the failure by the Applicant to pay principal
and interest on the Old Notes when due on December 1, 1998 (the "Maturity
Defaults"), and any other defaults under the Old Notes, the Indenture, the
Guaranty or the Mortgage Documents arising as a direct result of the Maturity
Defaults;
- to agree, among other things, to a forbearance until December 15, 2000
against the exercise of rights and remedies in the event of the failure by
Pioneer Hotel Inc., a Nevada corporation ("Pioneer Hotel"), to pay principal
and interest on the Promissory Note dated December 1, 1988 in the principal
amount of $120 million by PHI in favor of the Applicant (the "Purchase Money
Note") when due on December 1, 1998 (the "Purchase Money Note Maturity
Defaults"), and any other defaults arising as a direct result of the Purchase
Money Note Defaults;
- in the event the Exchange Offer is not consummated and the Applicant
files a
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bankruptcy case under Chapter 11 of the United States Bankruptcy Code, among
other things to vote to accept a plan of reorganization that provides for
treatment of the Old Notes in a manner substantially the same as proposed in
the Exchange; provided that (1) the additional Event of Default described in
the Supplement will occur if the events contemplated by paragraphs (a) or (b)
thereof have not occurred by the later of December 31, 1999 or six months
after the date a plan of reorganization is confirmed in a Chapter 11 case and
(2) the Excess Cash Redemption obligation will commence on the first June 30
or December 31 following the date on which a plan of reorganization is
confirmed (the "Plan"). Such support shall include, without limitation, (i)
voting to accept the Plan and making reasonable efforts to obtain
confirmation of the Plan, even if the Plan involves a "cramdown" under
Section 1129(b) of the Bankruptcy Code of classes of claims, including the
class that includes the Old Notes, or equity interests, (ii) not agreeing to,
consenting to, recommending or voting for any plan that contains terms
inconsistent with the Plan, and (iii) not objecting to or otherwise
commencing any proceeding to oppose or alter the Plan or taking any action
that is inconsistent with, or that would delay solicitation, confirmation,
effectiveness or substantial consummation of the Plan; and
- To amend the provisions of the Old Notes Indenture as described in the
Supplement.
The Consents will not become effective unless the Exchange Offer is not
consummated and the Applicant receives valid Consents with respect to at
least $42 million principal amount of Old Notes (the "Requisite Consents").
The Applicant will pay an aggregate of $6.9 million to holders of Old Notes
with respect to which Consents are furnished for principal and interest
payments, assuming Consents are received with respect to 100% of the
outstanding Old Notes. To the extent Consents are received with respect to
less than 100% of the outstanding Old Notes, the amount paid by the Applicant
to holders of Old Notes will be reduced proportionately.
The Exchange Offer and Solicitation are being made by the Applicant in
reliance on an exemption from the registration requirements of the Securities
Act of 1933, as amended, afforded by Section 3(a)(9) thereof. There have not
been and there are not to be any sales of New Bonds by the Applicant or by or
through an underwriter at or about the same time as the Exchange Offer. No
cash payment has been made or will be made by an holder of the New Notes. IBJ
Schroder Bank and Trust Company has been retained to serve as the exchange
and solicitation agent (the "Exchange/Solicitation Agent"), and D. F. King
Co., Inc. has been retained as the information agent (the "Information
Agent"), in connection with the Exchange Offer and Solicitation. The
Exchange/Solicitation Agent and Information Agent will not solicit any
Exchange of Old Notes or Consent of any holder of the Old Notes nor make any
recommendation to any holder of the Old Notes with respect to the Exchange
Offer or the Solicitation, and no portion of the fee to be paid to the
Exchange/Solicitation Agent or the Information Agent is contingent on the
consummation of the Exchange Offer or the Solicitation. The
Exchange/Solicitation Agent and the Information Agent will be paid reasonable
and customary fees and reimbursement of out-of-pocket expenses. Other than
such fees, there has been and will be no consideration that has been or is to
be given, directly or indirectly, to any person in connection with the
Exchange Offer and Solicitation. The Applicant will not pay any commission or
other remuneration to any broker, dealer, salesperson or other person for
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soliciting the tender of Old Notes pursuant to the Exchange Offer or the
furnishing of Consents pursuant to the Solicitation.
AFFILIATIONS
3. AFFILIATES.
All of the outstanding capital stock of the Applicant is owned by Sahara
Resorts, a Nevada corporation ("Sahara Resorts"), and all of the outstanding
capital stock of Sahara Resorts is owned by Santa Fe Gaming Corporation, a
Nevada corporation ("SFGC"). As more fully discussed in response to Item 5,
Paul W. Lowden is the controlling shareholder, a director and chairman of the
board, president and chief executive officer of SFGC. Accordingly, as of
September 30, 1998, and thereafter until the effective date, SFGC, Sahara
Resorts and Mr. Lowden may be considered affiliates of PFC.
CORPORATE AFFILIATES
Set forth below are all direct and indirect subsidiaries of SFGC,
showing the relationship of each to the Applicant and to each other. The
capital stock of each subsidiary is wholly owned by such subsidiary's parent
company.
SUBSIDIARIES OF SANTA FE GAMING CORPORATION
Hacienda Hotel Inc.
Pioneer Hotel Inc.
Sahara Illinois Corp.
Sahara Nevada Corp.
Sahara Resorts
Santa Fe Coffee Company
Santa Fe Hotel Inc.
Santa Fe Management Company
SUBSIDIARIES OF PIONEER HOTEL INC.
Santa Fe Valley Inc.
SUBSIDIARIES OF SAHARA RESORTS
Casino Properties Inc.
Las Vegas Aces
Pioneer Finance
Resorts Marketing International
Sahac Corp.
Sahara Finance Corp.
Sahara Las Vegas Corp.
Tempo Advertising
SUBSIDIARIES OF SANTA FE HOTEL INC.
Sahara Mississippi Management Company
Sahara Parkville Inc.
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SUBSIDIARIES OF CASINO PROPERTIES INC.
Ever-Ski Properties Inc.
Hacienda Hawaiian Properties, Inc.
MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS.
Set forth below are the names, complete mailing addresses of and
all offices held by all directors and executive officers of the Applicant
and all persons chosen to become directors or executive officers.
Name and Address(1) Position
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Paul W. Lowden Director; President
Thomas K. Land Director; Vice President and Chief
Financial Officer
William J. Raggio Director; Secretary
Suzanne Lowden Director
James W. Lewis Director
John W. Delaney Director
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(1) The complete mailing address of each director and executive officer of
the Applicant is c/o Santa Fe Gaming Corporation, 4949 Rancho Drive,
Las Vegas, Nevada 89130.
5. PRINCIPAL OWNERS OF VOTING SECURITIES.
As discussed in response to Item 3, SFGC indirectly owns 100% of
the currently issued capital stock of the Applicant. The following table
sets forth information regarding each beneficial owner of 10 percent or
more of SFGC's voting securities as of September 30, 1998.
Name and Complete Title of Number of Shares Percentage of Voting
Mailing Address Class Owned(1) Owned Securities Owned
- ----------------- -------------- ---------------- --------------------
Paul W. Lowden(2) Common Stock 3,724,391(3) 54.73%
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(1) Pursuant to the Amended and Restated Articles of Incorporation of SFGC, the
Board of Directors has the authority to authorize the issuance of shares of
preferred stock from time to time in one or more series and to fix or alter
the designations, powers and preferences or other rights, and the
qualifications, limitations or restrictions thereof. Pursuant to such
authority, the Board of Directors of SFGC has authorized the issuance of a
class of Exchangeable Redeemable Preferred Stock. Holders of the
Exchangeable Redeemable Preferred Stock generally have no voting rights,
except as Nevada law may otherwise provide and except that (i) each holder
thereof will be entitled to one vote for the election of two additional
directors of SFGC if dividends in an amount equal to dividend payments for
one Dividend Period have accrued and remain unpaid for two years (which
right will first be exercisable at the annual meeting of shareholders to be
held in 1999), and (ii) the approval of the holders of two-thirds of the
outstanding number of shares of Exchangeable Redeemable Preferred Stock is
required before SFGC may, directly or indirectly, issue a class or series
of equity securities ranking senior to or on parity with the Exchangeable
Redeemable Preferred Stock or take any action that would materially and
adversely affect the rights, preferences, power or privileges of the
Redeemable Exchangeable Preferred Stock.
(2) The address for Paul W. Lowden is c/o Santa Fe Gaming Corporation, 4949
Rancho Drive, Las Vegas, Nevada 89130.
(3) Includes 482,361 shares held by LICO, a Nevada corporation,
which is wholly owned by Mr. Lowden. During the fiscal year ended September
30, 1998, options to purchase 279,510 shares of SFGC common stock were
granted to Mr. Lowden.
The Applicant is not aware of any other person owning 10 percent or more
of SFGC's voting securities.
UNDERWRITERS
6. UNDERWRITERS.
(a) Within three years prior to the date of the filing of this
Application, no person acted as an underwriter of any securities of the
Applicant which were outstanding on the date of this Application.
(b) No person is acting as principal underwriter of the securities
proposed to be offered pursuant to the New Indenture.
CAPITAL SECURITIES
7. CAPITALIZATION.
(a) Set forth below is certain information with respect to each
authorized class of securities of the Applicant as of September 30, 1998:
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CAPITAL STOCK
AS OF SEPTEMBER 30, 1998
Number of Shares
Title of Class Number of Shares Authorized Outstanding
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Common Stock, no par value 2,500 10
DEBT SECURITIES
AS OF APRIL 5, 1996
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<CAPTION>
Designation of Debt Amount Authorized Amount Outstanding
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<S> <C> <C>
13-1/2% First Mortgage Bonds due $120,000,000 aggregate principal $60,000,000 aggregate principal
December 1, 1998 amount amount
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(b) Each share of the Common Stock is entitled to one vote on
all matters submitted to a vote of stockholders. The 13-1/2% First
Mortgage Bonds due December 1, 1998 do not have voting rights.
INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS.
The New Notes will be subject to the New Indenture among the Applicant,
SFGC, as guarantor (the "Guarantor"), and IBJ Schroder Bank & Trust Company
as trustee (the "Trustee"). The following is a general description of certain
provisions of the New Indenture to be filed as an exhibit hereto, and the
description is qualified in its entirety by reference thereto. Capitalized
terms used below and not defined herein have the same meanings as in the New
Indenture.
(a) EVENTS OF DEFAULT; WITHHOLDING OF NOTICE. The term "Event of
Default" when used in the New Indenture means any one of the following: (i)
default in the payment of interest on any New Notes when it becomes due and
payable and continuance of such default for a period of 5 days; (ii) default
in the payment of all or any portion of the principal of, or premium, if any,
on, any New Notes (or in the deposit of any sinking fund payment), when it
becomes due and payable; (iii) any "event of default" under the Mortgage;
(iv) default in the performance, or breach, of any obligation or covenant of
the Applicant, Pioneer Hotel or the Guarantor related to a consolidation,
merger, conveyance or transfer as described in Article Eight of the New
Indenture; (v) default in the performance, or breach, of any other covenant
of the Guarantor or the Applicant in the New Indenture or any Mortgage
Document to which either is a party, or of Pioneer Hotel in any Mortgage
Document to which it is a party, and continuance thereof for 5 days (with
regard to a default involving the payment of money) and 15 days (with regard
to a non-monetary default) after "notice of default"; (vi) any default under
the Pioneer Ground Lease unless cured or waived prior to the expiration of
any applicable grace period provided for therein; (vii) certain events of
bankruptcy, insolvency or reorganization relating to the Applicant, Pioneer
Hotel or the Guarantor; (viii) the revocation, suspension, withdrawal,
limitation or loss of any Permit that results in the cessation of a
substantial portion of the operations of the Pioneer Hotel
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& Gambling Hall in Laughlin, Nevada, for a period, in the case of a Gaming
Permit, of more than 90 consecutive days and, in the case of any other
Permit, of more than 120 consecutive days; (ix) the existence of a final
unsatisfied judgment or judgments (that have not been effectively stayed) in
an aggregate amount in excess of $2,000,000 against Pioneer Hotel, the
Guarantor or the Applicant or the Trust Estate for a period of 60 days; (x)
the existence of a final unsatisfied judgment (that has not been effectively
stayed) that, by itself or upon recordation, imposes or would impose a Lien
on any portion of the Trust Estate prior to that of Mortgage Documents; (xi)
acceleration of any Debt of Pioneer Hotel, the Guarantor or the Applicant of
$2,000,000 or more in the aggregate, unless such acceleration is rescinded,
annulled or stayed, or such Debt is discharged, within 10 days after "notice
of default"; (xii) acceleration of any Debt (regardless of amount) of Pioneer
Hotel, the Guarantor or the Applicant is secured by a Lien on all or any
portion of the Trust Estate unless, in the case of Debt secured by a Lien
that is junior to the Lien of all Mortgage Documents, such acceleration is
rescinded, annulled or stayed, or such Debt is discharged, within 10 days
after "notice of default"; (xiii) admission by Pioneer Hotel, the Guarantor
or the Applicant of its inability to pay its debts generally as they become
due; (xiv) the entry of a final judgment, decree or order by a court of
competent jurisdiction holding the Guaranty or any Mortgage Document to be
invalid or unenforceable in any material respect or the assertion by Pioneer
Hotel, the Guarantor or the Applicant or any Persons acting on behalf of any
of the foregoing in any pleading filed in such court that the Guaranty or any
Mortgage Document is invalid or unenforceable in any material respect; or
(xv) the failure by December 31, 1999 of either: (a) (i) PFC to have
completed an offer to repurchase $7.5 million principal amount of New Notes
or to purchase in the open market or otherwise and retire at least $7.5
million principal amount of the New Notes and (ii) SLVC to grant Liens for
the benefit of the holders of the New Notes in substantially all of its
assets, which assets shall include, at a minimum, the Wet N' Wild Parcel and
the SFHI Notes (as defined in the Supplement), subject to prior Liens
securing not more than an aggregate of $35 million of Debt (which Debt may
provide that interest is payable in kind for up to three years) and related
costs and charges (the "SLVC Asset Liens"); or (b) (i) SLVC or its affiliates
to have Disposed of both the SLVC Properties to unaffiliated third parties
for Approved Consideration (as defined); (ii) SLVC to distribute, directly or
indirectly, to SFGC, the Net Proceeds, if any, from such Dispositions to the
extent permitted by applicable law and any agreements to which SLVC or its
stockholders may then be a party (the "Disposition Net Proceeds"); (iii) SLVC
to distribute, directly or indirectly, to SFGC any SFHI Notes to the extent
permitted by applicable law and any agreements to which SLVC or its
stockholders may then be a party; (iv) SFGC to contribute to PFC the
Distribution Contributions; (v) PFC to make an offer to repurchase, or
repurchase in the open market or otherwise and retire New Notes with the
Disposition Net Proceeds contributed; (vi) PFC to pledge the SFHI Notes to
the trustee for the benefit of the Holders of the New Notes, and (vii) PFC to
file with the Securities and Exchange Commission a registration statement on
Form S-4 covering the exchange of New Notes with a principal equal to the
principal amount of SFHI Notes contributed to PFC in exchange for a like
principal amount of the SFHI Notes; provided, however, that in the event that
the statutory reinstatement period provided by Nevada law with respect the
Note is less than 35 days at the time of the occurrence of an Event of
Default, then the grace period with respect to such Event of Default shall be
extended by the number of days by which such statutory reinstatement period
is less than 35. "Notice of Default" means notice to the Applicant and the
Guarantor by the Trustee or by the holders of at least 25% in Outstanding
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Amount of the New Notes specifying an Event of Default and requesting the
Applicant or the Guarantor to cure the same or take other appropriate action.
Certain events, defined in the Mortgage, Note and Assignment Agreement
as "events of default," constitute Events of Default under the New Indenture,
as follows: (i) default in the payment of interest on the Note when it
becomes due and payable and continuance of such default for a period of 5
days; (ii) default in the payment of the principal of, or premium, if any, on
the Note at its maturity; (iii) default in the payment or satisfaction of any
sinking fund or prepayment obligation when and as required by the terms of
the Note; (iv) default in the payment of any other sum due under the Note or
the Mortgage Documents, and the continuance of such default for a period of 5
days after written notice to Pioneer Hotel from the Mortgage Trustee; (v)
failure to keep in full force and effect the insurance required by the
Mortgage or to comply with certain other provisions thereof relating to
insurance matters; (vi) unless permitted under the Mortgage, the material
removal or material demolition of, or material alteration to, the Premises
(other than as a result of a Taking or Casualty); (vii) default in the
performance, or breach, of any other covenant of Pioneer Hotel in the
Mortgage and continuance thereof for 5 days (with regard to a "notice of
default," unless the default or breach is curable but not susceptible of
being cured with reasonable diligence within such 5- or 15-day period (for
reasons other than the lack of funds), in which case such 5- or 15-day
period, as the case may be, shall be extended for such further period of time
as may reasonably be required to cure the same, provided that Pioneer Hotel
proceeds to cure the same with reasonable diligence; (vii) an Event of
Default under the New Indenture; (viii) any default under the Pioneer Ground
Lease unless cured or waived prior to the expiration of any applicable grace
period; (ix) default in the performance, or breach, of any of the provisions
of the Mortgage relating to mergers, consolidations, amalgamations and
Disposition of assets by Pioneer Hotel; or (x) any representation or warranty
of Pioneer Hotel in the Mortgage or in any certificate delivered pursuant
thereto proves to be incorrect in any respect that materially impairs the
value of the Trust Estate or the security for the Note provided thereby.
Further, all debt secured by the Mortgage will accelerate upon the imposition
of any new mortgage tax or similar tax if payment thereof by Pioneer Hotel
would be unlawful or would violate applicable usury laws. Notwithstanding the
foregoing, in the event that the statutory reinstatement period provided
under Nevada law with respect to the Note is less than 35 days at the time of
the occurrence of an event of default under the Mortgage, then the grace
period with respect to such event of default shall be extended by the number
of days by which such statutory reinstatement period is less than 35.
The New Indenture provides that the Trustee, within 90 days after the
occurrence of a default, will give notice thereof by mail to all Noteholders,
unless the default has been cured or waived; provided, however, that, except
in the case of a default in the payment of the principal of, premium, if any,
or interest on, the New Notes or any sinking fund payment, the Trustee may
withhold such notice if certain officers or executives of the Trustee in good
faith determine that such withholding is in the interest of the Noteholders;
and, provided, further, that, notwithstanding the foregoing, the Trustee
shall, as promptly as practicable after the Trustee shall learn of the
occurrence of a default under the New Indenture resulting from a default
under the Pioneer Ground Lease, transmit notice of such default by mail to
all Noteholders.
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In case an Event of Default occurs and is continuing, the Trustee or the
Holders of not less than 25% in Outstanding Amount of the New Notes, by notice
in writing to the Applicant and the Guarantor (and to the Trustee, if given by
holders), may declare the principal of and accrued interest on all the New Notes
to be due and payable immediately; provided, however, that the Trustee shall not
take action to declare the principal of and accrued interest on the New Notes
immediately due and payable until the statutory reinstatement period provided
under Nevada law with respect to the Note shall have expired. Such declaration
may be annulled and past defaults may be waived by the holders of a majority in
Outstanding Amount of the New Notes, upon the conditions provided in the New
Indenture. The Mortgage provides that any acceleration of the New Notes (or
rescission thereof) shall automatically be deemed an acceleration of the Note
(or rescission thereof), and the waiver of any Event of Default under the New
Indenture shall be deemed an automatic waiver of the corresponding default, if
any, under the Mortgage.
(b) AUTHENTICATION AND DELIVERY OF BONDS; APPLICATION OF PROCEEDS. The
New Bonds will be executed on behalf of the Applicant by its Chairman of the
Board, President or one of its Vice Presidents under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the New Bonds may be
manual or facsimile. An Exchange Bond shall not be valid until there appears
on such Exchange Bond a certificate of authentication duly executed by the
Trustee by manual signature of an authorized officer.
Because the New Bonds are being issued in exchange for the Old Notes,
there will be no proceeds from the issuance of the New Bonds.
(c) RELEASE OR SUBSTITUTION OF PROPERTY. In order to secure the payment
of all principal and interest and all other obligations of the Applicant
under the New Indenture, the Applicant will unconditionally and absolutely
assign to the Trustee a first priority security interest in the Mortgage and
the Note. Pursuant to the Mortgage, Pioneer Hotel (the Grantor under the
Mortgage) may (i) sell or dispose of any Tangible Personal Property which has
become obsolete or unfit for use or which is no longer necessary or desirable
in the conduct of Pioneer Hotel's business; (ii) alter, repair, replace,
change the location or position of and add to any Tangible Personal Property,
provided that no change in location of Tangible Personal Property may impair
the security of the Mortgage upon such property; and (iii) renew, extend,
surrender, terminate, modify or amend any Leases (as defined in the Mortgage)
of Tangible Personal Property when prudent to do so.
SFGC will guaranty the Applicant's obligations under the New Notes and
the New Indenture. The guaranty will be secured by the pledge of common stock
of SFGC's subsidiaries, Santa Fe Hotel Inc., a Nevada corporation ("SFHI"),
Sahara Resorts, Hacienda Hotel Inc., a Nevada corporation, Sahara Nevada
Corp., a Nevada corporation and Santa Fe Coffee Company, a Nevada
corporation. The pledge of the SFHI stock may be released upon provision of
substitute collateral, as provided in the New Indenture. In addition, the New
Notes will be secured by a grant by the subsidiaries of SFGC of security
interests in substantially all of their assets other than Excluded Assets.
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(d) SATISFACTION AND DISCHARGE OF THE NEW INDENTURE. The New Indenture will
be discharged and canceled upon payment of all the principal of, and premium, if
any, and interest on, the New Bonds, redemption of all New Bonds or deposit with
the Trustee of funds or obligations issued or guarantied by the United States
sufficient for such payment or redemption.
(e) STATEMENT AS TO COMPLIANCE. Pioneer Hotel, the Guarantor and the
Applicant are each required to furnish to the Trustee within 120 days after the
close of each fiscal year an officers' certificate to the effect that a review
of their respective activities has been made with a view to determining whether
their obligations under the New Indenture, the Mortgage Documents and the
Pioneer Ground Lease, as the case may be, have been complied with and as to
whether the signers have obtained knowledge of any default in the fulfillment of
any such obligation during such fiscal year. If Pioneer Hotel, the Guarantor or
the Applicant obtains knowledge of any such default, it is required promptly to
notify the Trustee of such default and the action it is taking and proposes to
take with respect thereto; provided, however, that upon the occurrence of a
default under the Pioneer Ground Lease, the Applicant is required to notify the
Trustee immediately by telephone, confirmed in writing.
9. OTHER OBLIGORS.
The full performance of the New Notes and the New Indenture by the
Applicant will been guarantied by SFGC, which is the ultimate parent company of
the Applicant. The complete mailing address of Santa Fe Gaming Corporation is
4949 Rancho Drive, Las Vegas, Nevada 89130.
CONTENTS OF APPLICATION FOR QUALIFICATION. This amendment to the
application for qualification comprises--
(a) Pages numbered 1 to 14, consecutively.
(b) The statement of eligibility and qualification of each trustee under
the indenture to be qualified.
(c) The following exhibits in addition to those filed as part of the
statement of eligibility and qualification of each trustee:
<TABLE>
<S> <C>
EXHIBIT T3A Articles of Incorporation of Pioneer
Finance Corporation, currently in effect,
incorporated herein by reference to Exhibit
3.1 to Amendment No. 2 to the Applicant's
Registration Statement on Form S-1 dated
November 21, 1988, registration no. 33-24589
(the "S-1 Amendment No. 2").
EXHIBIT T3B Bylaws of Pioneer Finance Corp., currently
in effect, incorporated herein by reference
to Exhibit 3.2 to the S-1 Amendment No. 2.
EXHIBIT T3C.1 Indenture among Pioneer Finance Corp.,
Santa Fe Gaming Corporation, as successor in
interest to Sahara Casino Partners, L.P., as
Guarantor, and IBJ Schroder Bank & Trust
Company, as
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<S> <C>
successor Trustee, dated as of
December 1, 1988, incorporated herein by
reference to Exhibit 4.1 to the S-1 Amendment
No. 2.
EXHIBIT T3C.2 First Supplemental Indenture among Pioneer
Finance Corp., Sahara Casino Partners,
L.P., as Guarantor and Security Pacific
National Bank as Trustee, dated as of
December 21, 1990, previously filed as an
exhibit to post-effective Amendment No. 5
to the Registration Statement on Form S-1
(No. 33-33031) of Sahara Finance Corp.,
Sahara Casino Partners, L.P., Sahara
Operating Limited Partnership, Hacienda
Operating Limited Partnership, and Santa
Fe Operating Partnership as filed on April
15, 1991 and incorporated herein by
reference.
EXHIBIT T3C.3 Second Supplemental Indenture among
Pioneer Finance Corp., Bank of America
National Trust and Savings Association as
Trustee, Sahara Casino Partners, L.P., as
Guarantor, Pioneer Operating Limited
Partnership, Pioneer Hotel Inc. and Sahara
Gaming Corporation, dated as of September 30,
1993.
EXHIBIT T3C.4 Tri-Party Agreement among Pioneer
Finance Corp., Sahara Gaming Corporation,
Pioneer Hotel, Inc., Bank of America National
Trust and Savings Association, Bank of
America Nevada and IBJ Schroder Bank & Trust
Company, dated as of December 30, 1994.
EXHIBIT T3C.5 Third Supplemental Indenture among IBJ
Schroder Bank & Trust Company as Trustee,
Pioneer Finance Corp. and Sahara Gaming
Corporation as Guarantor, dated as of
August 31, 1995.
EXHIBIT T3C.6* Form of Indenture among Pioneer Finance
Corp., as issuer, Santa Fe Gaming
Corporation, as Guarantor, and IBJ
Schroder Bank & Trust Company, as Trustee.
EXHIBIT T3C.7* Fourth Supplemental Indenture among IBJ
Schroder Bank & Trust Company as Trustee,
Pioneer Finance Corp. and Santa Fe Gaming
Corporation as Guarantor, dated as of
_________, 1998.
EXHIBIT T3E.1** Form of Offering Circular and Consent
Solicitation Statement.
EXHIBIT T3E.2** Form of Letter of Transmittal and Consent
Form.
EXHIBIT T3E.3** Form of Letter to Beneficial Owners.
EXHIBIT T3E.4** Form of Letter to Registered Holders.
EXHIBIT T3E.5** Form of Letter to Holders in Physical Form.
EXHIBIT T3E.6** Notice of Guaranteed Delivery.
12
<PAGE>
<S> <C>
EXHIBIT T3E.7 Form of Supplement dated November 14, 1998
to Offering Circular and Consent Solicitation
Statement, incorporated herein by reference
to Exhibit 99.2 to Current Report on
Form 8-K of Santa Fe Gaming Corporation
dated November 17, 1998, Commission File
Number 1-9481.
EXHIBIT T3E.8 Form of Amended Letter of Transmittal and
Consent Form.
EXHIBIT T3F Cross reference sheet showing the location
in the New Indenture of the provisions
inserted therein pursuant to Sections 310
through 318(a), inclusive, of the Act (to be
included as part of Exhibit T3C.6).
</TABLE>
---------------------------
* To be filed by amendment.
** Previously filed.
13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Pioneer Finance Corporation, a corporation organized and existing
under the laws of Nevada, has duly caused this amendment to the application to
be signed on its behalf by the undersigned, thereunto duly authorized, and its
seal to be hereunto affixed and attested, all in the City of Las Vegas, and
State of Nevada, on the 23rd day of November, 1998.
(SEAL) PIONEER FINANCE CORP.
By: /s/ THOMAS K. LAND
-------------------------
Thomas K. Land
VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
Attest: /s/ WILLIAM J. RAGGIO
----------------------
William J. Raggio
SECRETARY
14
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C> <C>
EXHIBIT T3A Articles of Incorporation of Pioneer Finance
Corporation, currently in effect, incorporated
herein by reference to Exhibit 3.1 to Amendment
No. 2 to the Applicant's Registration Statement on
Form S-1 dated November 21, 1988, registration no.
33-24589 (the "S-1 Amendment No. 2").
EXHIBIT T3B Bylaws of Pioneer Finance Corp., currently in
effect, incorporated herein by reference to Exhibit
3.2 to the S-1 Amendment No. 2.
EXHIBIT T3C.1 Indenture among Pioneer Finance Corp., Santa Fe
Gaming Corporation, as successor in interest to
Sahara Casino Partners, L.P., as Guarantor, and
IBJ Schroder Bank & Trust Company, as successor
Trustee, dated as of December 1, 1988,
incorporated herein by reference to Exhibit 4.1 to
the S-1 Amendment No. 2.
EXHIBIT T3C.2 First Supplemental Indenture among Pioneer Finance
Corp., Sahara Casino Partners, L.P., as Guarantor
and Security Pacific National Bank as Trustee,
dated as of December 21, 1990, previously filed as
an exhibit to post-effective Amendment No. 5 to
the Registration Statement on Form S-1 (No.
33-33031) of Sahara Finance Corp., Sahara Casino
Partners, L.P., Sahara Operating Limited
Partnership, Hacienda Operating Limited
Partnership, and Santa Fe Operating Partnership as
filed on April 15, 1991 and incorporated herein by
reference.
1
<PAGE>
<S> <C> <C>
EXHIBIT T3C.3 Second Supplemental Indenture among Pioneer
Finance Corp., Bank of America National Trust and
Savings Association as Trustee, Sahara Casino
Partners, L.P., as Guarantor, Pioneer Operating
Limited Partnership, Pioneer Hotel Inc. and Sahara
Gaming Corporation, dated as of September 30, 1993.
EXHIBIT T3C.4 Tri-Party Agreement among Pioneer Finance Corp.,
Sahara Gaming Corporation, Pioneer Hotel, Inc.,
Bank of America National Trust and Savings
Association, Bank of America Nevada and IBJ
Schroder Bank & Trust Company, dated as of
December 30, 1994.
EXHIBIT T3C.5 Third Supplemental Indenture among IBJ
Schroder Bank & Trust Company as Trustee, Pioneer
Finance Corp. and Sahara Gaming Corporation as
Guarantor, dated as of August 31, 1995.
EXHIBIT T3C.6* Form of Indenture among Pioneer Finance
Corp., as issuer, Santa Fe Gaming Corporation, as
Guarantor, and IBJ Schroder Bank & Trust Company, as
Trustee.
EXHIBIT T3C.7* Fourth Supplemental Indenture among IBJ Schroder
Bank & Trust Company as Trustee, Pioneer Finance
Corp. and Santa Fe Gaming Corporation as
Guarantor, dated as of _________, 1998.
EXHIBIT T3E.1** Form of Offering Circular and Consent Solicitation
Statement.
EXHIBIT T3E.2** Form of Letter of Transmittal and Consent Form.
EXHIBIT T3E.3** Form of Letter to Beneficial Owners.
EXHIBIT T3E.4** Form of Letter to Registered Holders.
2
<PAGE>
<S> <C> <C>
EXHIBIT T3E.5** Form of Letter to Holder in Physical Form.
EXHIBIT T3E.6** Notice of Guaranteed Delivery.
EXHIBIT T3E.7 Form of Supplement dated November 14, 1998 to
Offering Circular and Consent Solicitation
Statement, incorporated herein by reference to
Exhibit 99.2 to Current Report on Form 8-K of
Santa Fe Gaming Corporation dated November 17,
1998, Commission File Number 1-9481.
EXHIBIT T3E.8 Form of Amended Letter of Transmittal and Consent
Form.
EXHIBIT T3F Cross reference sheet showing the location in the To be included as part of
New Indenture of the provisions inserted therein Exhibit T3C.6.
pursuant to Sections 310 through 318(a),
inclusive, of the Act.
</TABLE>
- ---------------------------
* To be filed by amendment.
** Previously filed.
3
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
--------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
--------------
IBJ SCHRODER BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-6022258
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
LUIS PEREZ, ASSISTANT VICE PRESIDENT
IBJ SCHRODER BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
Pioneer Finance Corp
(Exact names of obligor as specified in its charter)
Nevada 88-0240055
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4949 Rancho Drive
Las Vegas, Nevada
89130
(Address of principal executive offices) (Zip code)
13 1/2% First Mortgage Notes Due 2006
--------------
(Title of indenture securities)
<PAGE>
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking
Department
Two Rector Street
New York, New York
Federal Deposit Insurance
Corporation
Washington, D.C.
Federal Reserve Bank of New York
Second District,
33 Liberty Street
New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of
any such default.
None
2
<PAGE>
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligors are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether
there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
None
Item 16. List of exhibits.
List below all exhibits filed as part of this statement of
eligibility.
*1. A copy of the Charter of IBJ Schroder Bank & Trust Company
as amended to date. (See Exhibit 1A to Form T-1, Securities
and Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the trustee to
Commence Business (Included in Exhibit 1 above).
*3. A copy of the Authorization of the trustee to exercise
corporate trust powers, as amended to date (See Exhibit 4 to
Form T-1, Securities and Exchange Commission File No.
22-19146).
*4. A copy of the existing By-Laws of the trustee, as amended to
date (See Exhibit 4 to Form T-1, Securities and Exchange
Commission File No. 22-19146).
5. Not Applicable
6. The consent of United States institutional trustee required
by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a
reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
NOTE
3
<PAGE>
In answering any item in this Statement of Eligibility which relates to matters
peculiarly within the knowledge of the obligor and its directors or officers,
the trustee has relied upon information furnished to it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the trustee
of all facts on which to base responsive answers to Item 2, the answer to said
Item is based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an amendment to
this Form T-1.
Pursuant to General Instruction B, the trustee has responded to Items 1, 2 and
16 of this form since to the best knowledge of the trustee as indicated in Item
13, the obligor is not in default under any indenture under which the applicant
is trustee.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, IBJ Schroder Bank & Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility & qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York,
on the 16th day of November, 1998.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/Luis Perez
---------------------------------
Luis Perez
Assistant Vice President
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the issuance Pioneer Finance Corp.,
of its 13 1/2% First Mortgage Notes Due 2006, we hereby consent that reports of
examinations by Federal, State, Territorial, or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/Luis Perez
---------------------------
Luis Perez
Assistant Vice President
Dated: November 16, 1998
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
of New York, New York
And Foreign and Domestic Subsidiaries
Report as of June 30, 1998
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
--------------
<S> <C> <C>
ASSETS
1. Cash and balance due from depository institutions:
a. Non-interest-bearing balances and currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 36,963
b. Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 13,296
2. Securities:
a. Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 189,538
b. Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 101,159
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and in IBFs:
Federal Funds sold and Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . $ 327,500
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income. . . . . . . . . . . . . . . . . . . . . . . . . .$ 1,800,351
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . . . . . . . .$ 65,836
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . . . . . . . . . . .$ -0-
d. Loans and leases, net of unearned income, allowance, and reserve. . . . . . . . . . . . . . . . . . . . . $ 1,814,515
5. Trading assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 572
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,194
7. Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 819
8. Investments in unconsolidated subsidiaries and associated companies. . . . . . . . . . . . . . . . . . . . . . $ -0-
9. Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . . $ 640
10. Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 11,293
11. Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 58,872
12. TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,557,361
<PAGE>
LIABILITIES
13. Deposits:
a. In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 657,513
(1) Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 178,024
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 479,489
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . . . $ 1,362,365
(1) Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 20,278
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 1,342,087
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal Funds purchased and Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . $ 60,000
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,000
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 406
16. Other borrowed money:
a. With a remaining maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 49,916
b. With a remaining maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,375
c. With a remaining maturity of more than three years . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,550
17. Not applicable.
18. Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 640
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 100,000
20. Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 69,920
21. TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,308,685
22. Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ N/A
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ -0-
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 29,649
25. Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 217,008
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,885
b. Net unrealized gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . . . . $ 134
27. Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ -0-
28. TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 248,676
29. TOTAL LIABILITIES AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,557,361
</TABLE>
<PAGE>
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE ("Supplemental Indenture") dated as
of September 30, 1993, by and between Bank of America National Trust and
Savings Association as Trustee ("Trustee"), Pioneer Finance Corp., a Nevada
corporation ("Company"), Sahara Casino Partners, L.P., a Delaware limited
partnership ("Guarantor"), Pioneer Operating Limited Partnership, a Nevada
limited partnership ("Operating Partnership"), Pioneer Hotel Inc., a Nevada
corporation ("Successor Operating Company") and Sahara Gaming corporation, a
Nevada corporation ("Successor Guarantor").
R E C I T A L S
The Company, Guarantor and Trustee executed an Indenture dated
December 1, 1988, as amended December 21, 1990, ("Indenture"), 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 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.
Pursuant to that certain Agreement and Plan of Reorganization
("Reorganization") dated September 30, 1993, among Guarantor, Sahara Resorts,
a Nevada corporation ("Sahara Resorts"), Successor Guarantor and Sahara
Merger Corp., a Nevada corporation, Guarantor will merge into Successor
Guarantor, as a result of which Successor Guarantor will be the surviving
entity. The Company will remain a wholly-owned subsidiary of Sahara Resorts.
As a part of the Reorganization, it is contemplated that the Operating
Partnership will merge into Successor Operating Company.
Following the Reorganization, Successor Operating Company will be
wholly-owned by Successor Guarantor, and Successor Operating Company will own
and be licensed to operate the Pioneer Hotel & Gambling Hall.
The Successor Operating Company and Successor Guarantor have requested
that the Trustee execute this Supplemental Indenture.
The Trustee is willing to execute this Supplemental Indenture pursuant
to the terms and conditions of the Indenture.
The Guarantor, Successor Guarantor, Operating Partnership, Successor
Operating Company and Company, pursuant to an Officer's Certificate, have
represented to Trustee that no Change in Control shall occur as a consequence
of the Reorganization and that consummation of the Reorganization does not
require the consent of the lessor under the Pioneer Ground Lease.
<PAGE>
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
A. DEFINED TERMS.
Any capitalized terms that are not expressly defined in this Second
Supplemental Indenture shall have the meaning provided in the Indenture.
B. ASSUMPTION BY SUCCESSOR OPERATING COMPANY.
The Successor Operating Company hereby expressly assumes the due and
punctual payment of all amounts due under the Note and the due and punctual
performance and observance of every other covenant, condition and obligation
to be performed or observed by the Operating Partnership under the Mortgage
Documents and the Pioneer Ground Lease (the foregoing includes, without
limitation, acknowledgment of the pledge and assignment effected by the
Assignment Agreement). As a result of the Reorganization, the Successor
Operating Company shall own all of the properties and assets (both tangible
and intangible) constituting the Trust Estate (including, without limitation,
all of the properties and assets constituting the Hotel-Gambling Hall and all
of the Operating Partnership's estate, right, title and interest in, to and
under the Pioneer Ground Lease), subject only to Permitted Encumbrances, and
hold all Permits required for the ownership and operation of the
Hotel-Gambling Hall.
C. ASSUMPTION BY SUCCESSOR GUARANTOR.
The Successor Guarantor hereby expressly assumes the due and punctual
payment of all amounts due under the Guarantees and the due and punctual
performance and observance of every other covenant, condition and obligation
to be performed or observed by the Guarantor under the Guarantees and the
Indenture, including Article Thirteen. The Successor Guarantor expressly
acknowledges and agrees that its obligations under Article Thirteen of the
Indenture and under the Guarantees endorsed on the Bonds shall remain in full
force and effect following the Reorganization and shall apply with respect to
Successor Guarantor as if Successor Operating Company had been named as the
"Operating Partnership" in the definition of such term in Section 101 of the
Indenture. As a result of the Reorganization, the Successor Guarantor shall
own all Permits (i) required for the ownership and operation of the
Hotel-Gambling Hall and each other hotel and gaming facility in which it may
own an interest or which it may operate, directly or indirectly, or (ii)
required for it to own, directly or indirectly, an interest in the Successor
Operating Company or any other Person that owns or operates a hotel or gaming
facility.
2
<PAGE>
D. 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 regarding
any future consolidation, merger, conveyance or transfer other than in
connection with the Reorganization.
All of the collateral shall remain and continue in all respects subject
to the Lien of the Mortgage Documents and the Indenture, and nothing herein
contained or done pursuant hereto, shall affect or be construed to affect the
Lien of the Mortgage Documents on all or any portion of the Trust Estate, or
the priority thereof over other liens and encumbrances or conveyances, or the
rights and powers of the Trustee and the Holders of the Bonds. The Assignment
Agreement shall remain and continue to constitute the valid present
assignment to the Trustee of all of the Company's right, title and interest
in and to the Assigned Properties, and the Successor Operating Company will
succeed, directly or indirectly, to all of the assets and liabilities of the
Operating Partnership, including its interest as lessee under the Pioneer
Ground Lease.
E. INDEMNIFICATION.
Successor Guarantor agrees to defend, indemnify and hold Trustee and its
officers, employees and agent 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 Second Supplemental Indenture.
F. Except as otherwise amended, modifies or supplemented by this Second
Supplemental Indenture, the Indenture, the Mortgage Documents, Environmental
Indemnity Agreement and Environmental Assignment Agreement shall continue in
full force and effect and are enforceable in accordance with their terms.
G. This Supplemental Indenture may be executed in counterparts.
H. The Trustee assumes no responsibility for the correctness of the recitals
herein.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first written above.
"Trustee" "Company"
BANK OF AMERICA NATIONAL TRUST PIONEER FINANCE CORP.,
AND SAVINGS ASSOCIATION, as Trustee A Nevada corporation
By: By: /s/ Paul W. Lowden
----------------------------- ----------------------
Its: Its:
----------------------------- ----------------------
"Guarantor" "Operating Partnership"
SAHARA CASINO PARTNERS, L.P., PIONEER OPERATING LIMITED
a Delaware limited partnership PARTNERSHIP, a Nevada
limited partnership
By: /s/ Paul W. Lowden By: /s/ Paul W. Lowden
----------------------------- ----------------------
Its: Its:
----------------------------- ----------------------
"Successor Operating Company" "Successor Guarantor"
PIONEER HOTEL, INC., a SAHARA GAMING CORPORATION,
Nevada corporation a Nevada corporation
By: /s/ Paul W. Lowden By: /s/ Paul W. Lowden
----------------------------- ----------------------
Its: Its:
----------------------------- ----------------------
4
<PAGE>
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 2535 Las Vegas Blvd. South, Las Vegas, Nevada 89109 (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
333 South Beaudry, 25th Floor, Los Angeles, California 90017, 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 300 South
Fourth Street, Las Vegas, Nevada 89101 and IBJ SCHRODER BANK & TRUST COMPANY,
a New York banking organization having a corporate trust office at One State
Street, New York, New York 10004.
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
<PAGE>
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 Schroder Bank & Trust Company
("IBJ Schroder") 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;
2
<PAGE>
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 Schroder 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 Schroder 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 Schroder 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 Schroder and its successors and assigns, all rights, title and
interest of Resigning Trustee and Resigning Co-Trustee
3
<PAGE>
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 Schroder 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 Schroder as such Successor
Trustee said estate, properties, rights, powers and, at the request of IBJ
Schroder, joins in the execution hereof.
5. (a) Resigning Trustee hereby agrees, upon reasonable request of IBJ
Schroder, 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
Schroder 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 Schroder, 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
Schroder 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 Schroder
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
Schroder 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 Schroder as Successor Trustee to be mailed to the Holders
of the Bonds as required by Section 610 of the Indenture.
4
<PAGE>
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
<PAGE>
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 SCHRODER BANK & TRUST COMPANY,
as SUCCESSOR TRUSTEE
By: /s/ Barbara McCluskey
----------------------------
Name: Barbara McCluskey
----------------------------
Title: Assistant Vice President
----------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as RESIGNING TRUSTEE,
By: /s/ M. Deborah Gibbons
----------------------------
Name: M. Deborah Gibbons
----------------------------
Title: Sr. Trust Officer
----------------------------
BANK OF AMERICA NEVADA,
as RESIGNING CO-TRUSTEE,
By: /s/ Gary W. Carlile
----------------------------
Name: Gary W. Carlile
----------------------------
Title: Assistant Vice President & Trust Officer
-------------------------------------------
6
<PAGE>
PIONEER FINANCE CORP., as ISSUER
By: /s/ Thomas K. Land
----------------------------
Name: THOMAS K. LAND
----------------------------
Title: SENIOR V.P., CHIEF FINANCIAL OFFICER
------------------------------------------
SAHARA GAMING CORPORATION
successor by merger to Sahara Casino Partners, L.P.
as GUARANTOR.
By: /s/ Thomas K. Land
----------------------------
Name: THOMAS K. 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/ Thomas K. Land
----------------------------
Name: THOMAS K. LAND
----------------------------
Title: SENIOR V.P., CHIEF FINANCIAL OFFICER
------------------------------------------
7
<PAGE>
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On December 21, 1994, before me, Alicia M. Estrada, a Notary Public
------------------ -----------------
in and for said state, personally appeared M. Deborah Gibbons.
-------------------
- --------------------------------------,
[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/ Alicia M. Estrada
--------------------------------------
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 State
8
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On December 20, 1994, before me, Carol Schwab, a Notary Public
------------------- -------------
in and for said state, personally appeared Barbara McCluskey
--------------------
- --------------------------------------,
[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/ Carol E. Schwab
--------------------------------------
Notary Public in and for said State
[SEAL]
9
<PAGE>
STATE OF NEVADA )
) ss. [SEAL]
COUNTY OF )
On 12/16/94, before me, Yvonne Wilson, a Notary Public
--------- --------------
in and for said state, personally appeared Gary W. Carlile
-------------------
- --------------------------------------,
[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/ Yvonne Wilson
--------------------------------------
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
<PAGE>
STATE OF NEVADA )
) ss. Las Vegas
COUNTY OF )
On , before me, Judith Villano, a Notary Public
------------------ ---------------
in and for said state, personally appeared Thomas K. 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/ Judith Villano
--------------------------------------
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
<PAGE>
STATE OF NEVADA )
) ss. Las Vegas
COUNTY OF )
On , before me, Judith Villano, a Notary Public
------------------ ---------------
in and for said state, personally appeared Thomas K. 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/ Judith Villano
--------------------------------------
Notary Public in and for said State
[SEAL]
STATE OF NEVADA )
) ss. Las Vegas
COUNTY OF )
On , before me, Judith Villano, a Notary Public
------------------ ---------------
in and for said state, personally appeared Thomas K. 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/ Judith Villano
--------------------------------------
Notary Public in and for said State
[SEAL]
11
<PAGE>
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture")
dated as of August 31, 1995, by and among IBJ Schroder 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
<PAGE>
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 "Putnam Bonds"), as described in and subject to the
terms and conditions of that certain letter dated February 8, 1995, among
Putnam Investment Management, the Guarantor and the Company, attached hereto
as Exhibit B. Upon the acquisition of such Putnam Bonds, the Guarantor shall
cause such Putnam
2
<PAGE>
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
3
<PAGE>
in Clark 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
4
<PAGE>
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
5
<PAGE>
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
6
<PAGE>
(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
7
<PAGE>
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
8
<PAGE>
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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<PAGE>
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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<PAGE>
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
CLARK 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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<PAGE>
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 SCHRODER BANK & TRUST PIONEER FINANCE CORP., a
COMPANY Nevada corporation
By: By:
------------------------------ ------------------------------
Its: Its:
----------------------------- ----------------------------
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<PAGE>
"Operating Company" "Guarantor"
PIONEER HOTEL INC., a Nevada SAHARA GAMING CORPORATION, a
corporation Nevada corporation
By: By:
------------------------------ ------------------------------
Its: Its:
----------------------------- ----------------------------
13
<PAGE>
AMENDED
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
13 1/2% FIRST MORTGAGE NOTES DUE DECEMBER 1, 2006
FOR ALL OF THE OUTSTANDING
13 1/2% FIRST MORTGAGE BONDS DUE DECEMBER 1, 1998
AND
CONSENT FORM
OF
PIONEER FINANCE CORP.
PURSUANT TO THE SUPPLEMENT DATED NOVEMBER 14, 1998 TO THE
OFFERING CIRCULAR AND CONSENT SOLICITATION STATEMENT
DATED OCTOBER 23, 1998
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON TUESDAY, NOVEMBER 24, 1998, UNLESS EXTENDED (THE "EXCHANGE EXPIRATION
DATE"). THE CONSENT SOLICITATION AND REVOCATION RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON TUESDAY, NOVEMBER 24, 1998, UNLESS EXTENDED (THE
"SOLICITATION EXPIRATION DATE"). CONSENTS MAY BE REVOKED AT ANY TIME PRIOR TO
THE SOLICITATION EXPIRATION DATE AND WILL AUTOMATICALLY EXPIRE IF THE REQUISITE
CONSENTS ARE NOT OBTAINED (AS SUCH TERMS ARE DEFINED IN THE OFFERING CIRCULAR
AND CONSENT SOLICITATION STATEMENT).
- --------------------------------------------------------------------------------
PLEASE READ CAREFULLY THE ATTACHED INSTRUCTIONS
IF YOU DESIRE TO ACCEPT THE EXCHANGE OFFER AND/OR CONSENT AND AGREE TO BE BOUND
BY THE PROPOSED CONSENTS, THIS AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM
SHOULD BE COMPLETED, SIGNED, AND SUBMITTED TO THE EXCHANGE/SOLICITATION AGENT:
IBJ SCHRODER BANK & TRUST COMPANY
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE: BY HAND OR OVERNIGHT DELIVERY:
IBJ Schroder Bank & Trust Company (212) 858-2611 IBJ Schroder Bank & Trust Company
P.O. Box 84 One State Street
Bowling Green Station To Confirm: New York, NY 10004
New York, NY 10274-0084 (212) 858-2103 Attn: Securities Processing
Attn: Reorganization Operations Window, Subcellar One, (SC-1)
Department
</TABLE>
DELIVERY OF THIS AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM TO AN ADDRESS
OR TRANSMISSION VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL
NOT CONSTITUTE A VALID DELIVERY.
For any questions regarding this Amended Letter of Transmittal and
Consent Form or for any additional information you may contact the
Exchange/Solicitation Agent or the Information Agent.
The Information Agent:
D.F. KING & CO., INC.
77 Water Street, 20th Floor
New York, New York 10005
Toll free (800) 628-8538
or
Banks and Brokers call (212) 425-1685
<PAGE>
The undersigned hereby acknowledges receipt of the Supplement dated
November 14, 1998 (the "Supplement") to the Offering Circular and Consent
Solicitation Statement dated October 23, 1998 (the "Joint Offering
Circular/Consent Solicitation Statement" and, together, with the Supplement, the
"Amended Joint Offering Circular/Consent Solicitation Statement"), this Amended
Letter of Transmittal and Consent Form (the "Amended Letter of Transmittal and
Consent Form") and the Joint Offering Circular/Consent Solicitation Statement,
which together constitute the offer by Pioneer Finance Corp., a Nevada
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Joint Amended Joint Offering Circular/Consent Solicitation
Statement and the Amended Letter of Transmittal and Consent Form to exchange a
principal amount of its 13 1/2% First Mortgage Notes due December 1, 2006
(together with the PIK Notes, the "New Notes") equal to the principal amount of
all its outstanding 13 1/2% First Mortgage Bonds due December 1, 1998 (the "Old
Notes") properly tendered for exchange and not withdrawn, less the principal
amount of Old Notes repurchased by the Company, as described in the Joint
Offering Circular/Consent Solicitation Statement under the caption "The Exchange
Offer--Acceptance of Old Notes for Exchange; Delivery of New Notes; Payment of
Interest and Repurchase of Old Notes." The Exchange Offer is subject to certain
conditions. See "The Exchange Offer--Conditions of the Exchange Offer" in the
Joint Offering Circular/Consent Solicitation Statement.
In the event that the Exchange Offer is not consummated, the Company is
soliciting (the "Consent Solicitation") the consents (the "Consents") of the
registered holders (individually, a "Holder" and collectively the "Holders") of
the Old Notes and their agreement to be bound by certain proposals (the
"Proposed Consents") as described in the Amended Joint Offering Circular/Consent
Solicitation Statement and in this Amended Letter of Transmittal and Consent
Form.
Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Joint Offering Circular/Consent Solicitation
Statement or the Supplement. The offer to exchange, as amended and supplemented
by the Supplement, is referred to as the "Exchange Offer." The solicitation for
consents, as amended and supplemented by the Supplement, is referred to as the
"Consent Solicitation" and the consents sought by the Consent Solicitation, as
amended and supplemented herein, are referred to as the "Consents."
CASH PAYMENTS TO HOLDERS UPON EXCHANGE/CONSENT
Upon a successful consummation of the Exchange Offer, the Company will
pay in cash accrued and unpaid interest through December 1, 1998 (approximately
$4.1 million) with respect to all Old Notes that are properly tendered and not
withdrawn and repurchase on a pro rata basis from all Holders who properly
tender and do not withdraw Old Notes before the Exchange Expiration Date an
aggregate of approximately $2.8 million principal amount of Old Notes (the
"Tendering Holder Repurchase Amount"). See "The Exchange Offer--Repurchase of
Old Notes" in the Joint Offering Circular/Consent Solicitation Statement.
If the Exchange Offer is not consummated but as of the Solicitation
Expiration Date the Company has received and accepted Consents from Holders with
respect to at least $42 million principal amount of outstanding Old Notes, the
Proposed Consents (as described in the Supplement) will become effective and the
Company will repurchase on a pro rata basis from the Holders of Old Notes with
respect to which Consents have been properly furnished and not revoked an
aggregate of $6.5 million principal amount of Old Notes, together with accrued
and unpaid interest thereon (approximately $400,000) through the Solicitation
Expiration Date (the "Consenting Holder Repurchase Amount"), assuming Consents
are received with respect to 100% of the outstanding Old Notes. Of the
approximate $6.9 million cash to be paid, the Company will allocate
approximately $6.5 million to payment of an equivalent principal amount of the
Old Notes that are repurchased and approximately $400,000 to the payment of
accrued and unpaid interest thereon. By consenting to the Consent Solicitation,
a Holder agrees to allocate the cash received for the principal amount of the
Old Notes and accrued and unpaid interest thereon in the same manner in which
the Company will make such allocation. To the extent Consents are received with
respect to less than 100% of the outstanding Old Notes, the principal amount of
Old Notes repurchased upon consummation of the Consent Solicitation will be
reduced proportionately. For example, if Consents are received with respect to
90% of the outstanding Old Notes (or $54 million), an aggregate of $5.85 million
principal amount of Old Notes will be purchased. See "Modifications to the
Solicitation--Repurchase of Old Notes" in the Supplement.
HOLDERS OF OLD NOTES MAY (I) TENDER FOR EXCHANGE ANY OR ALL OLD NOTES
HELD BY SUCH HOLDER PURSUANT TO THE EXCHANGE OFFER; OR (II) CONSENT TO AND AGREE
TO BE BOUND BY THE PROPOSED CONSENTS WITH RESPECT TO ANY OR ALL OLD NOTES HELD
BY SUCH HOLDER PURSUANT TO THE CONSENT SOLICITATION; OR (III) BOTH TENDER FOR
EXCHANGE
2
<PAGE>
AND CONSENT AND AGREE TO BE BOUND BY THE PROPOSED CONSENTS WITH RESPECT TO ANY
OR ALL OLD NOTES HELD BY SUCH HOLDER.
TO TENDER FOR EXCHANGE ANY OR ALL OLD NOTES HELD BY SUCH HOLDERS
PURSUANT TO THE EXCHANGE OFFER, PLEASE SEE PART I--TENDERS. HOLDERS MUST
COMPLETE BOX 1 ENTITLED "DESCRIPTION OF OLD NOTES TENDERED" AND SIGN THE
ATTACHED "TENDERING HOLDER SIGNATURE" BOX ON PAGE 6 OF THIS AMENDED LETTER OF
TRANSMITTAL AND CONSENT FORM.
TO CONSENT TO AND AGREE TO BE BOUND BY THE PROPOSED CONSENTS WITH
RESPECT TO ANY OR ALL OF THE OLD NOTES HELD BY SUCH HOLDERS PURSUANT TO THE
CONSENT SOLICITATION, PLEASE SEE PART II--CONSENTS. HOLDERS MUST CHECK
"CONSENTS" IN THE SECTION ENTITLED "PART II--CONSENTS," COMPLETE BOX A ENTITLED
"DESCRIPTION OF OLD NOTES AS TO WHICH CONSENT IS GIVEN" AND SIGN THE ATTACHED
"CONSENTING HOLDER SIGNATURE" BOX ON PAGE 13 OF THIS AMENDED LETTER OF
TRANSMITTAL AND CONSENT FORM.
TO BOTH TENDER FOR EXCHANGE AND CONSENT TO AND AGREE TO BE BOUND BY THE
PROPOSED CONSENTS WITH RESPECT TO ANY OR ALL OF THE OLD NOTES HELD BY SUCH
HOLDERS, PLEASE SEE PARTS I AND II. SUCH HOLDERS MUST COMPLETE THE APPROPRIATE
SECTIONS OF PART I TO TENDER OLD NOTES FOR EXCHANGE, COMPLETE THE APPROPRIATE
SECTIONS OF PART II TO CONSENT TO THE PROPOSED CONSENTS, COMPLETE BOX 1 ENTITLED
"DESCRIPTION OF OLD NOTES TENDERED," COMPLETE BOX A ENTITLED "DESCRIPTION OF OLD
NOTES AS TO WHICH CONSENT IS GIVEN," CHECK "CONSENTS" IN THE SECTION ENTITLED
"PART II--CONSENTS" AND SIGN BOTH THE "TENDERING HOLDER SIGNATURE" AND
"CONSENTING HOLDER SIGNATURE" BOXES.
To validly tender Old Notes for exchange and/or consent to the Proposed
Consents, Holders of certificates representing such Old Notes must deliver such
certificates and all other documents required by this Amended Letter of
Transmittal and Consent Form to the Exchange/Solicitation Agent. See
"Instructions to Amended Letter of Transmittal and Consent Form."
DELIVERY OF EITHER THIS AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM
OR THE ORIGINAL LETTER OF TRANSMITTAL AND CONSENT FORM (BLUE) WHICH ACCOMPANIED
THE JOINT OFFERING CIRCULAR/CONSENT SOLICITATION STATEMENT WILL SATISFY THE
LETTER OF TRANSMITTAL AND CONSENT FORM DELIVERY REQUIREMENTS FOR VALIDLY
TENDERING OLD NOTES IN THE EXCHANGE OR FURNISHING VALID CONSENTS IN THE
SOLICITATION. ANY HOLDER THAT SUBMITS THE ORIGINAL LETTER OF TRANSMITTAL AND
CONSENT FORM (BLUE) AND DOES NOT WITHDRAW SUCH HOLDER'S TENDER OR REVOKE SUCH
HOLDER'S CONSENT PRIOR TO THE EXCHANGE EXPIRATION DATE OR THE SOLICITATION
EXPIRATION DATE, AS APPLICABLE, WILL BE DEEMED TO HAVE TENDERED IN THE EXCHANGE
OFFER AND/OR FURNISHED THE CONSENTS, IN EACH CASE AS AMENDED BY THE SUPPLEMENT.
PART I - TENDERS
(TO BE COMPLETED BY HOLDERS WHO WISH TO TENDER OLD NOTES IN THE EXCHANGE OFFER)
The undersigned hereby tenders for exchange the Old Notes described in
Box 1 ("Description of Old Notes Tendered") below upon the terms and subject to
the conditions described in the Amended Joint Offering Circular/Consent
Solicitation Statement and this Amended Letter of Transmittal and Consent Form.
The undersigned is the Holder of all the Old Notes and the undersigned
represents that it has received from each beneficial owner of the tendered Old
Notes ("Beneficial Owners") valid instructions which authorize and instruct the
undersigned to take the action described in this Amended Letter of Transmittal
and Consent Form.
Subject to, and effective upon, the acceptance for exchange of the
tendered Old Notes, the undersigned hereby exchanges, assigns and transfers to,
or upon the order of, the Company, all right, title and interest in, to and
under the tendered Old Notes. Holders who tender and do not withdraw their Old
Notes will receive upon acceptance of the Old Notes by the Company New Notes
therefor in a principal amount equal to the principal
3
<PAGE>
amount thereof less the principal amount of such Old Notes repurchased in the
Exchange Offer. See "The Exchange Offer--Repurchase of Old Notes" in the Joint
Offering Circular/Consent Solicitation Statement.
If Old Notes not tendered or not exchanged are to be delivered to a
person other than to the Holder of the Old Notes tendered or to an address other
than that of the Holder of such Old Notes, such Holder should so indicate in Box
2 ("Special Delivery Instructions--Certificates") of this Amended Letter of
Transmittal and Consent Form.
The undersigned hereby irrevocably constitutes and appoints the
Exchange/Solicitation Agent as the true and lawful agent and attorney in fact of
the undersigned with respect to the tendered Old Notes, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (i) deliver the tendered Old Notes to the Company
or cause ownership of the tendered Old Notes to be transferred to, or upon the
order of, the Company on the books of the registrar for the Old Notes and
deliver all accompanying evidences of transfer and authenticity to, or upon the
order of, the Company upon receipt by the Exchange/Solicitation Agent, as the
undersigned's agent, of the New Notes to which the undersigned is entitled upon
acceptance by the Company of the tendered Old Notes pursuant to the Exchange
Offer and (ii) receive all benefits and otherwise exercise all rights of
beneficial ownership of the tendered Old Notes, all in accordance with the terms
of the Exchange Offer.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the captions "The Exchange Offer -- Procedure for
Tendering Old Notes" in the Joint Offering Circular/Consent Solicitation
Statement and "Modifications to the Exchange Offer and Terms of the New Notes to
be Issued in the Exchange Offer--Procedures for Tendering Old Notes--Delivery of
Amended Letter of Transmittal and Consent Form" in the Supplement and in the
instructions hereto will constitute a binding agreement between the undersigned
and the Company upon the terms and subject to the conditions of the Exchange
Offer, subject only to withdrawal of such tenders on the terms set forth in the
Joint Offering Circular/Consent Solicitation Statement under the caption "The
Exchange Offer--Withdrawal Rights." All authority herein conferred or agreed to
be conferred shall survive the death or incapacity of the undersigned and any
Beneficial Owner(s), and every obligation of the undersigned or any Beneficial
Owner(s) hereunder shall be binding upon the heirs, representatives, successors
and assigns of the undersigned and such Beneficial Owner(s).
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the tendered
Old Notes and that the Company will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges, encumbrances and adverse
claims when the tendered Old Notes are acquired by the Company as contemplated
herein. The undersigned and each Beneficial Owner will, upon request, execute
and deliver any additional documents reasonably requested by the Company or the
Exchange/Solicitation Agent as necessary or desirable to complete and give
effect to the transactions contemplated hereby.
The undersigned hereby represents and warrants that the information set
forth in Box 1 ("Description of Old Notes Tendered") is true and correct.
By agreeing to participate in the Exchange Offer, a Holder also agrees
to allocate the cash and New Notes received for the Old Notes and accrued and
unpaid interest thereon in the same manner in which the Company will make such
allocation. The Company will allocate the cash paid in the Exchange Offer first
to accrued and unpaid interest on the Old Notes to the extent thereof, and any
remaining cash will be allocated to the principal amount of the Old Notes. Based
on this allocation method, of the approximate $6.9 million cash to be paid in
the Exchange Offer, approximately $4.1 million will be allocated to the payment
of interest and $2.8 million will be allocated to the principal amount of the
Old Notes.
To validly tender Old Notes for exchange, Holders of physical
certificates representing such Holder's Old Notes must deliver such certificates
and all other documents required by this Amended Letter of Transmittal and
Consent Form to the Exchange/Solicitation Agent.
Holders of Old Notes who are tendering their Old Notes by book-entry
transfer to the Exchange/Solicitation Agent's account at The Depository Trust
Company ("DTC") can execute the tender through the DTC Automated Tender Offer
Program ("ATOP") for which the transaction will be eligible. DTC participants
who are accepting the Exchange Offer must transmit their acceptance to DTC,
which will verify the acceptance and execute a book-entry delivery to the
Exchange/Solicitation Agent's DTC account. DTC will then send an Agent's Message
to the
4
<PAGE>
Exchange/Solicitation Agent for its acceptance. DTC participants may also accept
the Exchange Offer prior to the Exchange Expiration Date by submitting a Notice
of Guaranteed Delivery through ATOP.
THE UNDERSIGNED, BY COMPLETING BOX 1 ENTITLED "DESCRIPTION OF OLD NOTES
TENDERED" AND SIGNING THE ATTACHED "TENDERING HOLDER SIGNATURE" BOX, MAY BE
DEEMED TO HAVE TENDERED FOR EXCHANGE SUCH HOLDER'S OLD NOTES AND TO HAVE MADE
CERTAIN REPRESENTATIONS AS DESCRIBED HEREIN AND IN THE JOINT OFFERING
CIRCULAR/CONSENT SOLICITATION STATEMENT. ONLY REGISTERED HOLDERS OF OLD NOTES
AND PERSONS AUTHORIZED TO SIGN BY REGISTERED HOLDERS ARE ENTITLED TO TENDER FOR
EXCHANGE OLD NOTES. ANY BENEFICIAL OWNER OF OLD NOTES WHO IS NOT THE REGISTERED
HOLDER OF THE OLD NOTES MUST ARRANGE PROMPTLY WITH THE REGISTERED HOLDER TO
EXCHANGE OLD NOTES ON HIS OR HER BEHALF.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THIS AMENDED LETTER
OF TRANSMITTAL AND CONSENT FORM BE ACCEPTED FROM OR ON BEHALF OF, HOLDERS IN ANY
JURISDICTION IN WHICH THE MAKING OF THE EXCHANGE OFFER OR THE ACCEPTANCE OF SUCH
AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM WOULD NOT BE IN COMPLIANCE WITH
THE LAWS OF SUCH JURISDICTION.
5
<PAGE>
PLEASE READ THIS ENTIRE AMENDED LETTER OF TRANSMITTAL AND
CONSENT FORM BEFORE SIGNING BELOW
Holders who wish to tender for exchange their Old Notes must complete
Box 1 entitled "Description of Old Notes Tendered" and the box entitled
"Tendering Holder Signature" below. If the "Aggregate Amount Tendered" in column
(3) of Box 1 is left blank, the Holder delivering this Amended Letter of
Transmittal and Consent Form may be deemed to have authorized tender as to all
Old Notes owned by such Holder.
- --------------------------------------------------------------------------------
TENDERING HOLDER SIGNATURE
TO TENDER FOR EXCHANGE OLD NOTES, PLEASE SIGN BELOW
(SEE PART A INSTRUCTIONS 1 AND 5)
IN ADDITION, COMPLETE SUBSTITUTE FORM W-9 OR W-8
- --------------------------------------------------------------------------------
X
--------------------------------------------------------------------------
X
--------------------------------------------------------------------------
(Signature of Holder(s) or Authorized Signatory
Note: The above lines must be signed by the registered holder(s) of Old Notes
as their name(s) appear(s) therein or by person(s) authorized to become
registered holder(s) (evidence of such authorization must be transmitted with
this Amended Letter of Transmittal and Consent Form). If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer, or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below. See Part A Instruction 5.
Name(s):
--------------------------------------------------------------------
Capacity:
-------------------------------------------------------------------
Address:
--------------------------------------------------------------------
- ----------------------------------------------------------------------------
(Zip Code)
Area Code and Telephone Number:
- ----------------------------------------------------------------------------
Tax Identification or Social Security No.:
- ----------------------------------------------------------------------------
Signature Guarantee
(If required by Part A Instruction 5)
Authorized Signature:
X
---------------------------------------------------------------------------
Name:
-----------------------------------------------------------------------
(Please Print)
Title:
-----------------------------------------------------------------------
Name of Firm:
---------------------------------------------------------------
(Must be an Eligible Institution as defined in Part A Instruction 5)
Address:
--------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
(Zip Code)
Area Code and Telephone Number:
- ----------------------------------------------------------------------------
Dated: , 1998
-------------------------------
- --------------------------------------------------------------------------------
6
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
BOX 1
DESCRIPTION OF OLD NOTES TENDERED
(ATTACHED ADDITIONAL SIGNED PAGES, IF NECESSARY)
- ----------------------------------------------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) of Registered Holder(s), Certificate Principal Amount Aggregate
Exactly as name(s) appear(s) on Old Note Certificate(s) Number(s) of Old Represented by Principal Amount
(Please fill in, if blank) Notes* Certificate(s) Tendered**
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
TOTAL
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by persons tendering by book-entry transfer.
** All tenders must be in multiples of $1,000 of principal amount. Unless
otherwise indicated in this column, the principal amount of all Old Notes
identified in this Box 1 or delivered to the Exchange/Solicitation Agent
herewith shall be deemed tendered. See Instruction 4.
/ / CHECK HERE IF OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO
THE ACCOUNT MAINTAINED BY THE EXCHANGE/SOLICITATION AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE "USE OF BOOK-ENTRY TRANSFER"
BELOW (Box 4).
/ / CHECK HERE IF OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE EXCHANGE/SOLICITATION AGENT
AND COMPLETE "USE OF GUARANTEED DELIVERY" BELOW (Box 3).
/ / CHECK HERE IF OLD NOTES ARE BEING DELIVERED HEREWITH.
- --------------------------------------------------------------------------------
BOX 2
SPECIAL DELIVERY INSTRUCTIONS - CERTIFICATES
(SEE PART A INSTRUCTIONS 5, 6 AND 7)
TO BE COMPLETED ONLY IF UNTENDERED OLD NOTES OR OLD NOTES NOT ACCEPTED FOR
EXCHANGE ARE TO BE SENT TO SOMEONE OTHER THAN THE UNDERSIGNED, OR TO THE
UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail any Old Notes not tendered hereby or not accepted for exchange to:
Name(s):
- ----------------------------------------------------------------------------
(Please Print)
Address:
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
(Include Zip Code)
Tax Identification or Social Security No.:
- ----------------------------------------------------------------------------
- --------------------------------------------------------------------------------
7
<PAGE>
- --------------------------------------------------------------------------------
BOX 3
USE OF GUARANTEED DELIVERY
(SEE PART A INSTRUCTION 2)
TO BE COMPLETED ONLY IF OLD NOTES ARE BEING TENDERED BY MEANS OF A NOTICE OF
GUARANTEED DELIVERY.
Name(s) of Holder(s):
----------------------------------------------------------
Window Ticket No. (if any):
----------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
----------------------------
Name of Eligible Institution that Guaranteed Delivery:
-------------------------
If Delivered by Book-Entry Transfer, complete the following:
DFC Account Number:
---------------------------------------------------
VOI Number:
-----------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
BOX 4
USE OF BOOK-ENTRY TRANSFER
(SEE PART A INSTRUCTION 1)
TO BE COMPLETED ONLY IF DELIVERY OF OLD NOTES IS TO BE MADE BY BOOK-ENTRY
TRANSFER.
Name of Tendering Institution:
-------------------------------------------------
Account Number:
----------------------------------------------------------------
VOI Number:
--------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
BOX 5
DTC PARTICIPANT INFORMATION
(SEE PART A INSTRUCTION 1)
TO BE COMPLETED BY ALL HOLDERS DELIVERING OLD NOTES. NEW NOTES WILL BE DELIVERED
ONLY IN BOOK-ENTRY FORM:
Name of DTC Participant:
--------------------------------------------------------
DTC Participant Number:
---------------------------------------------------------
Contact at DTC Participant:
----------------------------------------------------
- --------------------------------------------------------------------------------
(Name)
- --------------------------------------------------------------------------------
(Telephone No.
- --------------------------------------------------------------------------------
8
<PAGE>
- --------------------------------------------------------------------------------
BOX 6
SPECIAL PAYMENT INSTRUCTIONS
(SEE PART A INSTRUCTION 16)
To be completed ONLY if in the event the Exchange Offer is consummated and
checks for the Tendering Holder's Repurchase Amount are to be issued in the name
of someone other than the person who submits this Amended Letter of Transmittal
and Consent Form.
ISSUE TO:
Name
----------------------------------------------------------------------------
(Please Print)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Social Security Number or Employer Identification Number (A correct
taxpayer identification number must also be provided on the Substitute Form
W-9 or W-8 included herein.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BOX 7
SPECIAL DELIVERY INSTRUCTIONS - PAYMENTS
(SEE PART A INSTRUCTION 16)
To be completed ONLY if in the event the Exchange Offer is consummated and
checks for the Tendering Holder's Repurchase Amount are to be sent to someone
other than the person who submits this Amended Letter of Transmittal and Consent
Form or to an address other than that shown in Box 1 ("Description of Old Notes
Tendered") above in this Amended Letter of Transmittal and Consent Form.
Mail To:
Name
----------------------------------------------------------------------------
(Please Print)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ALL TENDERING HOLDERS MUST COMPLETE THE SUBSTITUTE FORM W-9 OR W-8
CONTAINED HEREIN.
SEE PAGE 20.
9
<PAGE>
PART II - CONSENTS
(TO BE COMPLETED BY HOLDERS WHO WISH TO CONSENT TO THE PROPOSED CONSENTS)
The undersigned is a Holder (as defined in the Offering Circular and
Consent Solicitation Statement dated October 23, 1998 and this Amended Letter of
Transmittal and Consent Form) of the Old Notes. As a Holder of such Old Notes,
the undersigned hereby:
CONSENTS / / DOES NOT CONSENT / /
to the following in the event the Exchange Offer is not consummated (the
"Proposed Consents"):
1. Until December 15, 2000 (the "Termination Date"), to forbear from
exercising any rights and remedies under the Old Notes, the Old Note
Indenture, the Guaranty and the Mortgage Documents (as defined in the Old
Note Indenture) with respect to any failure by the Company to pay principal
and interest on the Old Notes when due on December 1, 1998 (the "Maturity
Defaults") and any other defaults under the Old Notes, the Indenture, the
Guaranty or the Mortgage Documents arising as a direct consequence of the
Maturity Defaults;
2. Until the Termination Date, to forbear from exercising any rights and
remedies under the Purchase Money Note and related security documents with
respect to any failure by PHI to pay principal and interest on the Purchase
Money Note when due on December 1, 1998 (the "Purchase Money Note Maturity
Defaults") and any other defaults under the Purchase Money Note arising as
a direct consequence of the Purchase Money Note Maturity Defaults;
3. To consent to and support a plan of reorganization under Chapter 11 of the
Bankruptcy Code which provides for treatment of the Old Notes in a
bankruptcy case under Chapter 11 of the Bankruptcy Code that is
substantially similar to the treatment of the Old Notes offered in the
Exchange; provided that (1) the additional Event of Default described under
"Modifications to the Exchange Offer and Terms of the New Notes to be
Issued in the Exchange Offer" in the Supplement will occur if the events
contemplated by paragraphs (a) or (b) thereof have not occurred by the
later of December 31, 1999 or six months after the date a plan of
reorganization is confirmed in a Chapter 11 case and (2) the Excess Cash
Redemption obligation will commence on the first June 30 or December 31
following the date a plan of reorganization is confirmed (the "Plan"). Such
support shall include, without limitation, (i) voting to accept the Plan
and making reasonable efforts to obtain confirmation of the Plan, even if
the Plan involves a "cramdown" under Section 1129(b) of the Bankruptcy Code
of classes of claims, including the class that includes the Old Notes, or
equity interests, (ii) not agreeing to, consenting to, recommending or
voting for any plan that contains terms inconsistent with the Plan, and
(iii) not objecting to or otherwise commencing any proceeding to oppose or
alter the Plan or taking any action that is inconsistent with, or that
would delay solicitation, confirmation, effectiveness or substantial
consummation of the Plan; and
4. To amend the provisions of the Old Notes Indenture as described in the
Supplement under "Modifications to the Solicitation--Amendments to Old
Notes Indenture."
To validly consent to the Proposed Consents, Holders of physical
certificates representing Old Notes must deliver such certificates with
respect to which Old Notes such Holders' consents relate and all other
documents required by this Amended Letter of Transmittal and Consent Form to
the Exchange/Solicitation Agent.
THE PROPOSED CONSENTS WILL BECOME EFFECTIVE ONLY IF (1) THE EXCHANGE
OFFER IS NOT CONSUMMATED AND (2) VALID CONSENTS WITH RESPECT TO AT LEAST $42
MILLION PRINCIPAL AMOUNT OF OLD NOTES HAVE BEEN RECEIVED AND NOT REVOKED AT
THE SOLICITATION EXPIRATION DATE.
10
<PAGE>
ALL OLD NOTES WITH RESPECT TO WHICH CONSENTS BECOME EFFECTIVE MUST BE
EVIDENCED IN CERTIFICATED FORM. ANY OLD NOTES WITH RESPECT TO WHICH CONSENTS ARE
VALIDLY GIVEN AND NOT REVOKED AND THAT ARE HELD THROUGH DTC WILL BE REISSUED IN
CERTIFICATED FORM.
If the Consents become effective on the Solicitation Expiration
Date, any Holder that has furnished a Consent will have agreed (i) not to
transfer, sell, assign, encumber or otherwise dispose of the beneficial
ownership of the Holder's Old Notes, unless the Holder provides evidence
satisfactory to PHI and the Company that the Holder's transferee (and, if
different, the beneficial owner of the Old Notes so transferred) has agreed
in writing in form and substance satisfactory to PHI and the Company that the
transferred Old Notes are subject to the terms of the Consent, and that the
transferee (and, if different, the beneficial owner) has agreed to be bound
by the terms of the Consent, and (ii) that any Old Notes subject to Consents
that are held through DTC will be reissued in certificated form. The
restriction on transfer will be noted on the Old Notes with respect to which
Consents are received and no such Old Notes will be transferred unless the
Holder delivers to the Company an opinion of counsel in form and substance
satisfactory to the Company in its sole discretion that the transferee has
agreed to and is bound by the Proposed Consents.
Of the approximate $6.9 million cash to be paid, the Company will
allocate approximately $6.5 million to payment of an equivalent principal
amount of the Old Notes that are repurchased and approximately $400,000 to
the payment of accrued and unpaid interest thereon. By consenting to the
Consent Solicitation, a Holder agrees to allocate the cash received for the
principal amount of the Old Notes and accrued and unpaid interest thereon in
the same manner in which the Company will make such allocation. To the extent
Consents are received with respect to less than 100% of the outstanding Old
Notes, the principal amount of Old Notes repurchased upon consummation of the
Solicitation will be reduced proportionately. For example, if Consents are
received with respect to 90% of the outstanding Old Notes (or $54 million),
an aggregate of $5.85 million principal amount of Old Notes will be purchased.
Unless otherwise specified by the undersigned, this Amended Letter
of Transmittal and Consent Form relates to all Old Notes of which the
undersigned is the Holder. If this Amended Letter of Transmittal and Consent
Form relates to less than all of the Old Notes as to which the undersigned is
a Holder, the specific Old Notes to which this Amended Letter of Transmittal
and Consent Form relates shall be identified in Box A ("Description of Old
Notes as to which Consent is Given").
A Consent hereby given will be binding upon the Holder of the Old
Notes who gives such Consent, subject only to revocation by the delivery of a
Consent by a subsequent Holder or written notice of revocation by a
registered holder, executed and filed in the manner, and at the time,
described in the Joint Offering Circular/Consent Solicitation Statement.
If the Exchange Offer is not consummated but as of the Solicitation
Expiration Date the Company has received and accepted Consents with respect
to at least $42 million principal amount of outstanding Old Notes and the
Proposed Consents become effective, the Consents will become effective and
the Company will repurchase on a pro rata basis from all Holders furnishing
valid Consents (the "Consenting Holders") an aggregate of $6.5 million
principal amount of Old Notes, together with accrued and unpaid interest
thereon through the Solicitation Expiration Date. Certificates representing
the Old Notes with respect to which Consents are furnished will be canceled,
and new certificates will be issued with a principal amount equal to the
aggregate principal amount with respect to which Consents are furnished, less
the Consenting Holder's Repurchase Amount. The new certificates will contain
the restrictions on transfer described above. Any Old Notes subject to
Consents that are held through DTC will be reissued in certificated form.
THE UNDERSIGNED, BY COMPLETING BOX A ENTITLED "DESCRIPTION OF OLD
NOTES AS TO WHICH CONSENT IS GIVEN" AND SIGNING THE ATTACHED "CONSENTING
HOLDER SIGNATURE" BOX, MAY BE DEEMED TO HAVE CONSENTED AND AGREED TO BE BOUND
BY THE PROPOSED CONSENTS WITH RESPECT TO SUCH OLD NOTES, TO HAVE MADE CERTAIN
REPRESENTATIONS AS DESCRIBED HEREIN AND IN THE JOINT OFFERING
CIRCULAR/CONSENT SOLICITATION STATEMENT. ONLY REGISTERED HOLDERS OF OLD NOTES
AS OF THE SOLICITATION EXPIRATION DATE AND PERSONS AUTHORIZED TO SIGN BY
REGISTERED
11
<PAGE>
HOLDERS AS EVIDENCED BY THE EXECUTED FORM OF PROXY ATTACHED HERETO ARE
ENTITLED TO CONSENT TO THE PROPOSED CONSENTS. IF THE UNDERSIGNED IS NOT THE
REGISTERED HOLDER OF THE OLD NOTES, THE UNDERSIGNED MUST HAVE THE REGISTERED
HOLDER SIGN THE ATTACHED FORM OF PROXY.
THE CONSENT SOLICITATION IS NOT BEING MADE TO, NOR WILL THIS AMENDED
LETTER OF TRANSMITTAL AND CONSENT FORM BE ACCEPTED FROM OR ON BEHALF OF,
HOLDERS IN ANY JURISDICTION IN WHICH THE MAKING OF THE CONSENT SOLICITATION
OR THE ACCEPTANCE OF SUCH AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM
WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION.
12
<PAGE>
PLEASE READ THIS ENTIRE AMENDED LETTER OF TRANSMITTAL AND
CONSENT FORM BEFORE SIGNING BELOW
Holders who wish to consent to the Proposed Consents must complete Box
A below entitled "Description of Old Notes as to which Consent is Given" and
sign below. If the "Principal Amount of Old Notes as to which Consent is Given"
in column (4) of Box A is left blank, the Holder delivering this Consent Form
may be deemed to have given its Consent as to all Old Notes owned by such
Holder.
- --------------------------------------------------------------------------------
CONSENTING HOLDER SIGNATURE
TO CONSENT TO AND AGREE TO BE BOUND BY THE PROPOSED CONSENTS, PLEASE SIGN BELOW
(SEE PART B INSTRUCTIONS 1, 2 AND 3)
IN ADDITION, COMPLETE SUBSTITUTE FORM W-9 OR W-8
X
----------------------------------------------------------------------------
X
----------------------------------------------------------------------------
Signature(s) of Holder(s) Date:
PLEASE TYPE OR PRINT INFORMATION BELOW
--------------------------------------------------------------------
Name(s):
--------------------------------------------------------------------
Capacity:
--------------------------------------------------------------------
Address:
--------------------------------------------------------------------
(Including Zip Code)
Area Code and
Telephone Number:
-------------------------------------------------------------
SIGNATURE GUARANTEE
(If required; see Part B Instruction 3)
Signature(s)
Guaranteed
by an Eligible
Institution:
-------------------------------------------------------------
(Authorized Signature)
-------------------------------------------------------------
(Title)
-------------------------------------------------------------
(Name of Eligible Institution)
Dated:
--------------------------------------------------------------------
- --------------------------------------------------------------------------------
13
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
BOX A
DESCRIPTION OF OLD NOTES AS TO WHICH CONSENT IS GIVEN
- ---------------------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Certificate(s) as to which Consent is Given and which are Submitted Herewith
Holder(s) or Cede & Co. Participant(s) (Attach additional list, if necessary)
------------------------------------------------------------------------------------
Principal Amount
Aggregate Principal of Old Notes as to
Amount of which Consent
Certificate or Old Notes is given*
Cede & Co. Represented by (must be an
Account Certificate(s) or integral multiple
Number(s) Held in Account(s) of $1,000)
------------------------------------------------------------------------------------
<S> <C> <C> <C>
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
*If the consent form relates to less than the aggregate principal amount of Old Notes registered in the name of the Registered
Holder(s), or held by Cede & Co. for the account of the Participant(s), named above, list the certificate or account numbers and
principal amounts of Old Notes to which this consent form relates. Otherwise, this consent form will be deemed to relate to the
aggregate principal amount of Old Notes registered in the name or, or held by Cede & Co. for the account of, such Registered
Holder(s) or Participant(s).
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
BOX B
SPECIAL DELIVERY INSTRUCTIONS - CERTIFICATES-CONSENTS NOT GIVEN OR NOT
ACCEPTED AS CONSENTING
(SEE PART B INSTRUCTIONS 5 AND 6)
TO BE COMPLETED ONLY IF OLD NOTES WITH RESPECT TO WHICH CONSENTS ARE NOT GIVEN
OR ARE NOT ACCEPTED AS CONSENTING ARE TO BE SENT TO SOMEONE OTHER THAN THE
UNDERSIGNED, OR TO THE UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail any Old Notes with respect to which Consents are not given or are not
accepted as consenting to:
Name(s):
- --------------------------------------------------------------------------------
(Please Print)
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Tax Identification or Social Security No.:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
14
<PAGE>
- --------------------------------------------------------------------------------
BOX C
USE OF GUARANTEED DELIVERY
(SEE PART B INSTRUCTION 2)
TO BE COMPLETED ONLY IF OLD NOTES WITH RESPECT TO WHICH CONSENTS ARE GIVEN ARE
BEING DELIVERED BY MEANS OF A NOTICE OF GUARANTEED DELIVERY.
Name(s) of Holder(s):
-----------------------------------------------------------
Window Ticket No. (if any):
-----------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-----------------------------
Name of Eligible Institution that Guaranteed Delivery:
--------------------------
If Delivered by Book-Entry Transfer, complete the following:
DFC Account Number:
----------------------------------------------------
VOI Number:
------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BOX D
USE OF BOOK-ENTRY TRANSFER
(SEE PART B INSTRUCTION 1)
TO BE COMPLETED ONLY IF DELIVERY OF OLD NOTES WITH RESPECT TO WHICH CONSENTS ARE
GIVEN IS TO BE MADE BY BOOK-ENTRY TRANSFER.
Name of Tendering Institution:
--------------------------------------------------
Account Number:
-----------------------------------------------------------------
VOI Number:
---------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
15
<PAGE>
- --------------------------------------------------------------------------------
BOX E
SPECIAL PAYMENT INSTRUCTIONS
(See Part B Instruction 16)
To be completed ONLY if checks for the Consenting Holder's Repurchase
Amount are to be issued in the name of someone other than the person who submits
this Amended Letter of Transmittal and Consent Form.
ISSUE TO:
Name
---------------------------------------------------------------------------
(Please Print)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Social Security Number or Employer Identification Number (A correct taxpayer
identification number must also be provided on the Substitute Form W-9
included herein.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BOX G
SPECIAL DELIVERY INSTRUCTIONS - CERTIFICATED NOTES
(See Part B Instruction 15)
To be completed ONLY if Old Notes with respect to which Consents are validly
given and not revoked that are held through DTC and which will be reissued in
certificated form are to be issued in the name of someone other than the person
who submits this Consent Form or to an address other than that shown in Box 1
("Description Of Old Notes As To Which Consents Are Given") above in this
Amended Letter of Transmittal and Consent Form.
Mail To:
Name
----------------------------------------------------------------------------
(Please Print)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BOX F
SPECIAL DELIVERY INSTRUCTIONS - PAYMENTS
(See Part B Instruction 16)
To be completed ONLY if checks for the Consenting Holder's Repurchase
Amount are to be sent to someone other than the person who submits this Amended
Letter of Transmittal and Consent Form or to an address other than that shown in
Box 1 ("Description Of Old Notes As To Which Consents Are Given") above in this
Amended Letter of Transmittal and Consent Form.
Mail To:
Name
----------------------------------------------------------------------------
(Please Print)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ALL CONSENTING HOLDERS MUST COMPLETE
THE SUBSTITUTE FORM W-9 OR W-8 CONTAINED
HEREIN. SEE PAGE 20.
16
<PAGE>
FORM OF PROXY WITH RESPECT TO THE CONSENT SOLICITATION
The undersigned hereby irrevocably appoints ___________________________________
__________________ as attorney and proxy of the undersigned, with full power of
substitution, to execute and deliver the form of Consent on which this form of
proxy is set forth with respect to the Old Notes in accordance with the terms of
the Consent Solicitation, with all of the power the undersigned would possess if
consenting personally. THIS PROXY IS IRREVOCABLE AND IS COUPLED WITH AN INTEREST
AND SHALL EXPIRE AT THE DATE OF EFFECTIVENESS OF THE PROPOSED CONSENTS. The
aggregate principal amount and serial numbers of Old Notes as to which this
Proxy is given are set forth below. If such information is not provided in the
boxes below, this Proxy will be deemed to be given as to the total principal
amount of Old Notes held by the Holder.
- ------------------------------------------------------------------------------
Aggregate Principal Amount of Old Note(s) | Certificate Number(s)
- ------------------------------------------------------------------------------
|
- ------------------------------------------------------------------------------
|
- ------------------------------------------------------------------------------
|
- ------------------------------------------------------------------------------
|
- ------------------------------------------------------------------------------
|
- ------------------------------------------------------------------------------
17
<PAGE>
FORM OF PROXY
IMPORTANT--READ CAREFULLY
To authorize a proxy this proxy must be executed by the Holder(s) of the Old
Notes in exactly the same manner as the name(s) appear(s) on the Old Notes. If
Old Notes to which this proxy relates are held by two or more joint holders, all
such holders must sign this proxy. If a signature is by a trustee,
administrator, guardian, attorney-in-fact, officer of a corporation or other
Holder acting in a fiduciary or representative capacity, such person should so
indicate when signing and submit appropriate evidence satisfactory to the
Company of such person's authority so to act.
- --------------------------------------------------------------------------------
TO AUTHORIZE A PROXY, PLEASE SIGN BELOW
(SEE PART B INSTRUCTIONS 1 AND 3)
X
-------------------------------------------------------------------------------
X
-------------------------------------------------------------------------------
Signature(s) of Holder(s) Date:
PLEASE TYPE OR PRINT INFORMATION BELOW
Name(a):
------------------------------------------------------------------------
Capacity:
-----------------------------------------------------------------------
Address:
------------------------------------------------------------------------
(Including Zip code)
Area Code and
Telephone Number:
---------------------------------------------------------------
SIGNATURE GUARANTEE
(If required; see Part B Instruction 3)
Signature(s) Guaranteed
By an Eligible Institution:
---------------------------------------------------
(Authorized Signature)
---------------------------------------------------
(Title)
---------------------------------------------------
(Name of Eligible Institution
Dated:
--------------------------------------------------------------------------
- --------------------------------------------------------------------------------
18
<PAGE>
BACKUP WITHHOLDING INFORMATION
Upon a successful consummation of the Exchange Offer, the Company will
pay in cash accrued and unpaid interest through December 1, 1998 (approximately
$4.1 million) with respect to all Old Notes that are properly tendered and not
withdrawn and repurchase on a pro rata basis from all Holders who properly
tender and do not withdraw Old Notes before the Exchange Expiration Date an
aggregate of approximately $2.8 million principal amount of Old Notes (the
"Tendering Holder Repurchase Amount"). See "The Exchange Offer--Acceptance of
Old Notes for Exchange; Delivery of New Notes; Payment of Interest and
Repurchase of Old Notes" in the Joint Offering Circular/Consent Solicitation
Statement.
If the Exchange Offer is not consummated but as of the Solicitation
Expiration Date the Company has received and accepted Consents from Holders with
respect to at least $42 million principal amount of outstanding Old Notes, the
Proposed Consents will become effective and the Company will repurchase on a pro
rata basis from the Holders of Old Notes with respect to which Consents have
been properly furnished and not revoked an aggregate of $6.5 million principal
amount of Old Notes (assuming Consents are received with respect to 100% of the
outstanding Old Notes), together with accrued and unpaid interest thereon
(approximately $400,000) through the Solicitation Expiration Date (the
"Consenting Holder Repurchase Amount").
Under the United States Federal income tax law, payments that are made
to a Holder with respect to his or her tender or consent may be subject to
backup withholding. A holder whose tender or consent is accepted and who is not
an exempt recipient must provide the Company with his or her correct taxpayer
identification number on Substitute Form W-9 below, or if such Holder is an
exempt foreign person, submit a substitute Form W-8 below in order to avoid
backup withholding. If such Holder is an individual, the taxpayer identification
number generally is his or her social security number. If the Old Notes are in
more than one name or are not in the name of the actual owner, consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional guidelines on which number to report. In
addition, if the Company is not provided with the correct taxpayer information,
the Holder may be subject to a $50 penalty imposed by the Internal Revenue
Service. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
Holders who are exempt recipients (including corporations) are not subject to
these backup withholding and reporting requirements.
If backup withholding applies, the Company is required to withhold 31%
of any such payments made to the Holder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an over-payment
of taxes, a refund may be obtained from the Internal Revenue Service.
19
<PAGE>
PAYER'S NAME: PIONEER FINANCE CORP.
(See Part A Instruction 8 and Part B Instruction 5)
<TABLE>
<S> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Business name:
------------------------------------------------------------------------------------------------------
Please check appropriate box:
/ / Individual/Sole proprietor / / Corporation / / Partnership / / Other
------------------------------------------------------------------------------------------------------
----------------------------------
PART 1-PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY Social Security Number or
SUBSTITUTE SIGNING AND DATING BELOW. Employee Identification Number
------------------------------------------------------------------------------------------------------
FORM W-9
PART 2-Certification-Under Penalties of Perjury, I certify that:
Department of the
Treasury (1) The number shown on this form is my correct Taxpayer PART 3-
Internal Revenue Service Identification Number (or I am waiting for a number to be issued
to me) and
(2) I am not subject to backup withholding because (a) I am exempt Awaiting TIN
Payer's Request for from backup withholding, or (b) I have not been notified
Taxpayer Identification by the Internal Revenue Service ("IRS") that I am subject to / /
Number ("TIN") backup withholding as a result of failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer
subject to backup withholding.
------------------------------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS-You must cross out item (2) in Part 2 above if you have been notified by
the IRS that you are subject to backup withholding because of underreporting interest or dividends on
your tax return. However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS stating that you are no longer subject to
backup withholding, do not cross out item (2).
SIGNATURE DATE , 1998
----------------------------------------------------- --------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY EXCHANGE OR CONSENT PAYMENTS MADE TO YOU
PURSUANT TO THE EXCHANGE OFFER OR THE CONSENT SOLICITATION. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF THE SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF PERSON AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not issued to me, and either (a) I have mailed or delivered an application to
receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number with sixty (60) days, 31% of all
reportable payments made to me thereafter will be withheld until I provide a
number.
Date: , 1998
- ------------------------------------------ ----------------------
Signature
- --------------------------------------------------------------------------------
20
<PAGE>
<TABLE>
<S> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Name:
-----------------------------------------------------------------------------------------------------
SUBSTITUTE Address:
-----------------------------------------------------------------------------------------------------
TIN (if any):
-----------------------------------------------------------------------------------------------------
FORM W-8
I (we) certify under penalties of perjury that:
Department of the
Treasury Internal _____1. I am not a citizen of the United States and I am neither a lawful
Revenue Service permanent resident of the United States nor have I been, nor do I
reasonably expect to be, present in the United States for a period
aggregating 183 or more days during the calendar year; or
Non-U.S. Persons
Only
_____2. We are a foreign corporation, partnership,estate or trust.
Taxpayer Identification
-----------------------------------------------------------------------------------------------------
Number ("TIN")
Signature: Date:
-------------------------------------- ----------------------------------------
Signature: Date:
-------------------------------------- ----------------------------------------
-----------------------------------------------------------------------------------------------------
Accepted by:
Signature:
--------------------------------------
Printed Name: Title:
------------------------------------ ----------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF EXCHANGE OR CONSENT PAYMENTS MADE TO YOU. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
21
<PAGE>
INSTRUCTIONS TO AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER AND
CONSENT SOLICITATION
A. TENDERING OLD NOTES FOR EXCHANGE
1. DELIVERY OF THIS AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM AND
OLD NOTES. This Amended Letter of Transmittal and Consent Form is to be
completed by Holders of tendered Old Notes, if physical certificates
representing such tendered Old Notes are to be forwarded herewith pursuant to
the procedures set forth in the Supplement under "Modifications to the Exchange
Offer and Terms of the New Notes to be Issued in the Exchange Offer--Procedures
for Tendering Old Notes--Delivery of Amended Letter of Transmittal and Consent
Form." For a Holder of physical certificates to properly tender Old Notes
pursuant to the Exchange Offer, a properly completed and duly executed copy of
this Amended Letter of Transmittal and Consent Form, including the Substitute
Form W-9 or W-8, and any other documents required by this Amended Letter of
Transmittal and Consent Form must be received by the Exchange/Solicitation Agent
at its address set forth herein, and certificates for tendered Old Notes must be
received by the Exchange/Solicitation Agent at its address set forth herein
prior to the Exchange Expiration Date. Any financial institution that is a
participant in DTC (the "Book-Entry Transfer Facility") may electronically
transmit its acceptance of the Exchange Offer by causing DTC to transfer Old
Notes to the Exchange/Solicitation Agent in accordance with DTC's ATOP
procedures for such transfer prior to the Exchange Expiration Date. The
Exchange/Solicitation Agent will make available its general participant account
for the Old Notes at the Book-Entry Transfer Facility for purposes of the
Exchange Offer. Any financial institution that is a participant in the
Book-Entry Transfer Facility may make a book-entry delivery of Old Notes by
causing the Book-Entry Transfer Facility to transfer Old Notes to the
Exchange/Solicitation Agent's account prior to the Exchange Expiration Date.
Delivery of an Amended Letter of Transmittal and Consent Form to a Book-Entry
Transfer Facility will not constitute valid delivery to the
Exchange/Solicitation Agent. The method of delivery of certificates for tendered
Old Notes, this Amended Letter of Transmittal and Consent Form, and all other
required documents to the Exchange/Solicitation Agent is at the election and
risk of the tendering Holder and the delivery will be deemed made only when
actually received by the Exchange/Solicitation Agent. If delivery is by mail,
registered mail with return receipt requested, properly insured, is recommended.
Instead of delivery by mail, it is recommended that the Holder use an overnight
or hand delivery service. In all cases, sufficient time should be allowed to
assure timely delivery. No Amended Letter of Transmittal and Consent Form or
tendered Old Notes should be sent to the Company. Neither the Company nor the
Exchange/Solicitation Agent is under any obligation to notify any tendering
holder of the Company's acceptance of tendered Old Notes prior to the closing of
the Exchange Offer. NEW NOTES WILL BE DELIVERED ONLY IN BOOK-ENTRY FORM THROUGH
DTC AND ONLY TO THE DTC ACCOUNT OF THE TENDERING HOLDER OR THE TENDERING
HOLDER'S CUSTODIAN. ACCORDINGLY, A HOLDER WHO TENDERS OLD NOTES MUST SPECIFY IN
BOX 5 THE DTC PARTICIPANT NAME, NUMBER AND CONTACT INFORMATION TO WHICH THE NEW
NOTES SHOULD BE DELIVERED.
DELIVERY OF EITHER THIS AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM
OR THE ORIGINAL LETTER OF TRANSMITTAL AND CONSENT FORM (BLUE) WHICH ACCOMPANIED
THE JOINT OFFERING CIRCULAR/CONSENT SOLICITATION STATEMENT WILL SATISFY THE
LETTER OF TRANSMITTAL AND CONSENT FORM DELIVERY REQUIREMENTS FOR VALIDLY
TENDERING OLD NOTES IN THE EXCHANGE. ANY HOLDER THAT SUBMITS THE ORIGINAL LETTER
OF TRANSMITTAL AND CONSENT FORM (BLUE) AND DOES NOT WITHDRAW SUCH HOLDER'S
TENDER PRIOR TO THE EXCHANGE EXPIRATION DATE WILL BE DEEMED TO HAVE TENDERED IN
THE EXCHANGE OFFER AS AMENDED BY THE SUPPLEMENT.
2. GUARANTEED DELIVERY PROCEDURES. If a Holder desires to tender Old
Notes pursuant to the Exchange Offer and (a) certificates representing such
tendered Old Notes are not immediately available, (b) time will not permit such
Holder's Amended Letter of Transmittal and Consent Form, certificates
representing such tendered Old Notes, and all other required documents to reach
the Exchange/Solicitation Agent on or prior to the Exchange Expiration Date, or
(c) the procedures for book-entry transfer cannot be completed on or prior to
the Exchange Expiration Date, such Holder may tender Old Notes with the effect
that such tender will be deemed to have been received on or prior to the
Exchange Expiration Date if the procedures set forth below and in the Joint
Offering Circular/Consent Solicitation Statement under "The Exchange
Offer--Guaranteed Delivery Procedures" (including the completion of Box 3 above)
are followed. Pursuant to such procedures, (i) the tender must be made by or
through an Eligible Institution (as defined herein), (ii) a properly completed
and duly executed Notice of Guaranteed Delivery substantially in the form
provided by the Company herewith, or an Agent's Message with respect to a
guaranteed delivery that is accepted by the Company, must be received by the
Exchange/Solicitation Agent on or prior to the Exchange Expiration Date and
(iii) the certificates for the tendered Old Notes, in proper form for transfer
22
<PAGE>
(or a Book-Entry Confirmation of the transfer of such tendered Old Notes to the
Exchange/Solicitation Agent's account at DTC as described in the Joint Offering
Circular/Consent Solicitation Statement), together with an Amended Letter of
Transmittal and Consent Form (or manually signed facsimile thereof) properly
completed and duly executed with any required signature guarantees and any other
documents required by the Amended Letter of Transmittal and Consent Form or a
properly transmitted Agent's Message must be received by the
Exchange/Solicitation Agent within four New York Stock Exchange trading days
after the date of execution of the Notice of Guaranteed Delivery. Any Holder who
wishes to tender Old Notes pursuant to the guaranteed delivery procedures
described above must ensure that the Exchange/Solicitation Agent receives the
Notice of Guaranteed Delivery relating to such tendered Old Notes prior to the
Exchange Expiration Date. Failure to complete the guaranteed delivery procedures
outlined above will not, of itself, affect the validity or effect a revocation
of any Amended Letter of Transmittal and Consent Form properly completed and
executed by a Holder who attempted to use the guaranteed delivery process.
HOLDERS OF OLD NOTES TO BE TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY MAY USE THE NOTICE OF GUARANTEED DELIVERY (TAN) DELIVERED WITH THE
OFFERING CIRCULAR AND CONSENT SOLICITATION STATEMENT DATED OCTOBER 23, 1998.
3. BENEFICIAL OWNER INSTRUCTIONS TO HOLDERS. Only a Holder in whose
name Old Notes are registered on the books of the registrar (or the legal
representative or attorney-in-fact of such registered Holder) may execute and
deliver this Amended Letter of Transmittal and Consent Form. Any Beneficial
Owner of Old Notes who is not the Holder must arrange promptly with the Holder
to exchange Old Notes on his or her behalf.
4. PARTIAL TENDERS. Tenders of Old Notes will be accepted only in
multiples of $1,000 in principal amount. If less than the entire principal
amount of Old Notes held by the Holder is tendered, the Holder should fill in
the principal amount tendered in the column labeled "Aggregate Principal Amount
Tendered" of the box entitled "Description of Old Notes Tendered" (Box 1) above.
The entire principal amount of Old Notes delivered to the Exchange/Solicitation
Agent will be deemed to have been tendered for exchange unless otherwise
indicated. If the entire principal amount of Old Notes held by the Holder is not
tendered for exchange, then new certificates representing the Old Notes for the
principal amount of Old Notes not tendered for exchange will be sent to the
Holder at its registered address, unless a different address is provided in the
box entitled "Special Delivery Instructions - Certificates" (Box 2) on this
Amended Letter of Transmittal and Consent Form, as soon as practicable following
the Exchange Expiration Date.
5. SIGNATURES ON THE AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM;
BOND POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Amended Letter of
Transmittal and Consent Form is signed by the Holder(s) of the tendered Old
Notes, the signature must be in exactly the same manner as the name(s) appears
on the tendered Old Notes.
If any of the tendered Old Notes are owned of record by two or more
joint owners, all such owners must sign this Amended Letter of Transmittal and
Consent Form. If any tendered Old Notes are held in different names, it will be
necessary to complete, sign and submit as many separate copies of the Amended
Letter of Transmittal and Consent Form as there are different names in which
such tendered Old Notes are held.
If this Amended Letter of Transmittal and Consent Form is signed by the
Holder(s) of Old Notes, then such Holder(s) need not and should not endorse any
Old Notes nor provide a separate bond power. In any other case, such Holder(s)
must either properly endorse the tendered Old Notes or transmit a properly
completed separate bond power with this Amended Letter of Transmittal and
Consent Form with the signature(s) on the endorsement or bond power guaranteed
by a Medallion Signature Guarantor (as defined below).
If this Amended Letter of Transmittal and Consent Form is signed by a
person other than the Holder(s) of any tendered Old Notes, such tendered Old
Notes must be endorsed or accompanied by appropriate bond powers, in each case,
signed as the name(s) of the Holder(s) appear(s) on the tendered Old Notes, with
the signature(s) on the endorsement or bond power guaranteed by a Medallion
Signature Guarantor.
If this Amended Letter of Transmittal and Consent Form or any tendered
Old Notes or bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations, or others acting in
23
<PAGE>
a fiduciary or representative capacity, such persons should so indicate when
signing and, unless waived by the Company, evidence satisfactory to the Company
of their authority to so act must be submitted with this Amended Letter of
Transmittal and Consent Form.
Signatures on this Amended Letter of Transmittal and Consent Form must
be guaranteed by a recognized participant in the Securities Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Program or
the Stock Exchange Medallion Program (each a "Medallion Signature Guarantor"),
unless the Old Notes are tendered (i) by the Holder of the Old Notes (or by a
participant in DTC whose name appears on a security position listing as the
owner of such Old Notes) who has not completed Box 2 ("Special Delivery
Instructions") on this Amended Letter of Transmittal and Consent Form, or (ii)
for the account of a member firm of a registered national securities exchange, a
member of the National Association of Securities Dealers, Inc. ("NASD") or a
commercial bank or trust company having an office or correspondent in the United
States (each of the foregoing being referred to as an "Eligible Institution").
If the tendered Old Notes are registered in the name of a person other than the
signer of the Amended Letter of Transmittal and Consent Form or if Old Notes not
tendered are to be returned to a person other than the Holder, then the
signature on this Amended Letter of Transmittal and Consent Form accompanying
the tendered Old Notes must be guaranteed by a Medallion Signature Guarantor as
described above. Beneficial Owners whose tendered Old Notes are registered in
the name of a broker, dealer, commercial bank, trust company or other nominee
must contact such broker, dealer, commercial bank, trust company or other
nominee if they desire to tender such Old Notes.
6. SPECIAL DELIVERY INSTRUCTIONS. Holders should indicate in Box 2
("Special Delivery Instructions--Certificates") the name and address to which
substitute Old Notes for principal amounts not tendered or not accepted for
exchange are to be sent, if different from the name and address of the person
signing this Amended Letter of Transmittal and Consent Form. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
7. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, substitute Old Notes for amounts not tendered or not exchanged are to
be delivered to, or are to be registered in the name of, any person other than
the Holder of Old Notes, tendered, or if tendered Old Notes are registered in
the name of any person other than the person signing this Amended Letter of
Transmittal and Consent Form, or if a transfer tax is imposed for any reason
other than the transfer and exchange of Old Notes pursuant to the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the Holder
or on any other person) will be payable by the Holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with this
Amended Letter of Transmittal and Consent Form, the amount of such transfer
taxes will be billed directly to such Holder and/or withheld from any payments
due with respect to the Old Notes tendered by such Holder.
It will not be necessary for transfer tax stamps to be affixed to the
tendered Old Notes listed in this Amended Letter of Transmittal and Consent
Form.
8. TAX IDENTIFICATION NUMBER. The tendering Holder(s) of any Old Notes
which are accepted for exchange must provide the Exchange/Solicitation Agent
with its correct taxpayer identification number ("TIN"), which, in the case of a
Holder who is an individual, is his or her social security number. In the case
of a tendering Holder who has completed Box 6 entitled "Special Payment
Instructions" above, however, the correct TIN on the Substitute Form W-9 or W-8
should be provided for the recipient of the Tendering Holder's Repurchase Amount
delivered pursuant to such instructions. Failure to provide the information on
the Form W-9 or W-8 will cause the Company to withhold 31% of any payments made
to the consenting Holder or such recipient, as the case may be, until such
information is received. See "Backup Withholding Information" above.
9. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt), acceptance and withdrawal of tendered
Old Notes will be resolved by the Company in its sole discretion, which
resolution will be final and binding. The Company reserves the right to reject
any and all Old Notes not validly tendered or any Old Notes the acceptance of
which would, in the opinion of the Company or its counsel, be unlawful. The
Company also reserves the right to waive any defects or irregularities or
conditions of the Exchange Offer including the ineligibility of any Holder who
seeks to tender Old Notes in the Exchange Offer. The interpretation of the terms
and conditions of the Exchange Offer (including this Amended Letter of
Transmittal and Consent Form
24
<PAGE>
and the instructions hereto) by the Company shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of Old Notes must be cured within such time as the Company shall determine.
Neither the Company, the Exchange/Solicitation Agent nor any other person shall
be under any duty to give notification of defects or irregularities with respect
to tenders of Old Notes, nor shall any of them incur any liability for failure
to give such notification. Tenders of Old Notes will not be deemed to have been
made until such defects or irregularities have been cured or waived. Any Old
Notes received by the Exchange/Solicitation Agent that are not properly tendered
and as to which the defects or irregularities have not been cured or waived will
be returned by the Exchange/Solicitation Agent to the Holders, unless otherwise
provided in this Amended Letter of Transmittal and Consent Form, as soon as
practicable following the Exchange Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
amend, waive or modify any of the conditions in the Exchange Offer in the case
of any Old Notes.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular or
contingent tender of Old Notes or transmittal of this Amended Letter of
Transmittal and Consent Form will be accepted.
12. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any Holder whose
tendered Old Notes have been mutilated, lost, stolen or destroyed should contact
the Exchange/Solicitation Agent at the address indicated herein for further
instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and
requests for assistance and requests for additional copies of the Joint Offering
Circular/Consent Solicitation Statement, the Supplement or this Amended Letter
of Transmittal and Consent Form may be directed to the Exchange/Solicitation
Agent at the addresses and telephone numbers indicated herein. Holders may also
contact their broker, dealer, commercial bank, trust, company or other nominee
for assistance concerning the Exchange Offer.
14. ACCEPTANCE OF TENDERED OLD NOTES AND ISSUANCE OF NEW NOTES; RETURN
OF OLD NOTES. Subject to the terms and conditions of the Exchange Offer, the
Company will accept for exchange all validly tendered Old Notes and, as soon as
practicable after the Exchange Expiration Date, will issue New Notes in a
principal amount equal to the Exchanged Amount (less the principal amount of
such Old Notes repurchased in the Exchange. See "The Exchange Offer--Repurchase
of Old Notes" in the Joint Offering Circular/Consent Solicitation Statement).
For purposes of the Exchange Offer, the Company shall be deemed to have accepted
tendered Old Notes when, as and if the Company has given written or oral notice
(immediately followed in writing) thereof to the Exchange/Solicitation Agent. If
any tendered Old Notes are not exchanged pursuant to the Exchange Offer for any
reason, such unexchanged Old Notes will be returned, without expense, to the
undersigned at the address shown in Box 1 or at a different address as may be
indicated herein under "Special Delivery Instructions--Certificates" (Box 2).
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the
procedures set forth in the Joint Offering Circular/Consent Solicitation
Statement under the caption "The Exchange Offer--Withdrawal Rights."
16. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS OF TENDERING HOLDER'S
REPURCHASE AMOUNT. Tendering Holders should indicate, in the applicable box, the
name and address to which the Tendering Holder's Repurchase Amount is to be sent
or issued, if different from the name and address of the person submitting the
Amended Letter of Transmittal and Consent Form. In the case of issuance or
payment in a different name, the tax identification number of the person named
must also be indicated and a Substitute Form W-9 for such recipient must also be
completed. See Instruction 8. If no such instructions are given, the Tendering
Holder's Repurchase Amount will be sent to the name and address of the person
signing this Amended Letter of Transmittal and Consent Form.
B. CONSENTING TO PROPOSED CONSENTS
1. DELIVERY OF THIS AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM AND
OLD NOTES. This Amended Letter of Transmittal and Consent Form is to be
completed by Holders of Old Notes with respect to which Consents are to be
furnished, if physical certificates representing such Old Notes are to be
forwarded herewith pursuant to the procedures set forth in the Joint Offering
Circular/Consent Solicitation under "The Solicitation -- Procedures for
Furnishing Consents" and in the Supplement under "Modifications to the
Solicitation--Procedures
25
<PAGE>
for Furnishing Consents--Delivery of Amended Letter of Transmittal and Consent
Form." For a Holder of physical certificates to deliver a valid Consent pursuant
to the Consent Solicitation, a properly completed and duly executed copy of this
Amended Letter of Transmittal and Consent Form, including the Substitute Form
W-9 or W-8, and any other documents required by this Amended Letter of
Transmittal and Consent Form must be received by the Exchange/Solicitation Agent
at its address set forth herein, and certificates representing Old Notes must be
received by the Exchange/Solicitation Agent at its address set forth herein,
prior to the Solicitation Expiration Date. Any financial institution that is a
participant in DTC (the "Book-Entry Transfer Facility") may cause DTC to
transfer Old Notes to the Exchange/Solicitation Agent in accordance with DTC's
procedures for such transfer prior to the Solicitation Expiration Date. The
Exchange/Solicitation Agent will make available its general participant account
for the Old Notes at the Book-Entry Transfer Facility for purposes of the
Consent Solicitation. Any financial institution that is a participant in the
Book-Entry Transfer Facility may make a book-entry delivery of Old Notes by
causing the Book-Entry Transfer Facility to transfer Old Notes to the
Exchange/Solicitation Agent's account prior to the Solicitation Expiration Date.
Delivery of an Amended Letter of Transmittal and Consent Form to a Book-Entry
Transfer Facility will not constitute valid delivery to the
Exchange/Solicitation Agent. The method of delivery of this Amended Letter of
Transmittal and Consent Form, certificates for Old Notes subject to the Consents
furnished and all other required documents to the Exchange/Solicitation Agent is
at the election and risk of the consenting Holder and the delivery will be
deemed made only when actually received by the Exchange/Solicitation Agent. If
delivery is by mail, registered mail with return receipt requested, properly
insured, is recommended. Instead of delivery by mail, it is recommended that the
Holder use an overnight or hand delivery service. In all cases, sufficient time
should be allowed to assure timely delivery. No Amended Letter of Transmittal
and Consent Form or Old Notes should be sent to the Company. Neither the Company
nor the Exchange/Solicitation Agent is under any obligation to notify any
consenting holder of the Company's acceptance of Consents prior to the closing
of the Consent Solicitation.
DELIVERY OF EITHER THIS AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM
OR THE ORIGINAL LETTER OF TRANSMITTAL AND CONSENT FORM (BLUE) WHICH ACCOMPANIED
THE JOINT OFFERING CIRCULAR/CONSENT SOLICITATION STATEMENT WILL SATISFY THE
LETTER OF TRANSMITTAL AND CONSENT FORM DELIVERY REQUIREMENTS FOR FURNISHING
VALID CONSENTS IN THE SOLICITATION. ANY HOLDER THAT SUBMITS THE ORIGINAL LETTER
OF TRANSMITTAL AND CONSENT FORM (BLUE) AND DOES NOT REVOKE SUCH HOLDER'S CONSENT
PRIOR TO THE SOLICITATION EXPIRATION DATE WILL BE DEEMED TO HAVE FURNISHED THE
CONSENTS AS AMENDED BY THE SUPPLEMENT.
2. GUARANTEED DELIVERY PROCEDURES. If a Holder desires to deliver Old
Notes with respect to which Consents are given pursuant to the Consent
Solicitation and (a) certificates representing such Old Notes are not
immediately available, (b) time will not permit such Holder's Amended Letter of
Transmittal and Consent Form, certificates representing such tendered Old Notes
and all other required documents to reach the Exchange/Solicitation Agent on or
prior to the Solicitation Expiration Date, or (c) the procedures for book-entry
transfer cannot be completed on or prior to the Solicitation Expiration Date,
such Holder may deliver a Consent and the Old Notes subject to the Consent with
the effect that such Consent will be deemed to have been received on or prior to
the Solicitation Expiration Date if the procedures set forth below and in the
Joint Offering Circular/Consent Solicitation Statement under "The
Solicitation--Guaranteed Delivery Procedures" (including the completion of Box C
above) are followed. Pursuant to such procedures, (i) the delivery must be made
by or through an Eligible Institution, (ii) a properly completed and duly
executed Notice of Guaranteed Delivery substantially in the form provided by the
Company herewith, or an Agent's Message with respect to a guaranteed delivery
that is accepted by the Company, must be received by the Exchange/Solicitation
Agent on or prior to the Solicitation Expiration Date and (iii) the certificates
for the Old Notes subject to the Consent, in proper form for transfer (or a
Book-Entry Confirmation of the transfer of such Old Notes to the
Exchange/Solicitation Agent's account at DTC as described in the Joint Offering
Circular/Consent Solicitation Statement), together with an Amended Letter of
Transmittal and Consent Form (or manually signed facsimile thereof) properly
completed and duly executed with any required signature guarantees and any other
documents required by the Amended Letter of Transmittal and Consent Form or a
properly transmitted Agent's Message must be received by the
Exchange/Solicitation Agent within four New York Stock Exchange trading days
after the date of execution of the Notice of Guaranteed Delivery. Any Holder who
wishes to deliver Old Notes pursuant to the guaranteed delivery procedures
described above must ensure that the Exchange/Solicitation Agent receives the
Notice of Guaranteed Delivery relating to such Old Notes subject to a Consent
prior to the Solicitation Expiration Date. Failure to complete the guaranteed
delivery procedures outlined above will not, of itself affect the validity or
effect a revocation of any Amended Letter of Transmittal and Consent Form
properly completed and executed by a Holder who attempted to use the guaranteed
delivery process.
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HOLDERS OF OLD NOTES TO BE DELIVERED IN CONNECTION WITH CONSENTS
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY MAY USE THE NOTICE OF GUARANTEED
DELIVERY (TAN) DELIVERED WITH THE OFFERING CIRCULAR AND CONSENT SOLICITATION
STATEMENT DATED OCTOBER 23, 1998.
3. BENEFICIAL OWNER INSTRUCTIONS TO HOLDERS. Only a Holder in whose
name Old Notes are registered on the books of the registrar (or the legal
representative or attorney-in-fact of such registered Holder) may execute and
deliver this Amended Letter of Transmittal and Consent Form. Any Beneficial
Owner of Old Notes who is not the Holder must arrange promptly with the Holder
to deliver Consents on his or her behalf.
4. PARTIAL CONSENTS. Consents with respect to Old Notes will be
accepted only in multiples of $1,000 in principal amount. If Consents are
furnished with respect to less than the entire principal amount of Old Notes
held by the Holder, the Holder should fill in the principal amount with respect
to which Consents are furnished in the column labeled "Aggregate Principal
Amount As to Which Consent is Given" of the box entitled "Description of Old
Notes as to which Consent is Given" (Box A) above. Consents will be deemed to
have been furnished with respect to the entire principal amount of Old Notes
held by a Holder and delivered to the Exchange/Solicitation Agent unless
otherwise indicated. If Consents are not furnished with respect to the entire
principal amount of Old Notes held by the Holder, then certificates will be
issued representing the Old Notes (i) for the principal amount of Old Notes
subject to the Consents, with the restrictions on transfer noted, and (ii) for
the principal amount of Old Notes not subject to Consents, which will not be
subject to restrictions on transfer. Certificates will be sent to the Holder at
its registered address, unless a different address is provided in the box
entitled "Special Delivery Instructions--Certificates" (Box B) in this Amended
Letter of Transmittal and Consent Form, as soon as practicable following the
Solicitation Expiration Date.
5. SIGNATURES ON THE AMENDED LETTER OF TRANSMITTAL AND CONSENT FORM;
POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Amended Letter of
Transmittal and Consent Form is signed by the Holder(s) of the Old Notes with
respect to which Consents are given, the signature must be in exactly the same
manner as the name(s) appears on the such Old Notes.
If any of the Old Notes with respect to which Consents are given are
owned of record by two or more joint owners, all such owners must sign this
Amended Letter of Transmittal and Consent Form. If any Old Notes with respect to
which Consents are given are held in different names, it will be necessary to
complete, sign and submit as many separate copies of the Amended Letter of
Transmittal and Consent Form as there are different names in which such tendered
Old Notes are held.
If this Amended Letter of Transmittal and Consent Form is signed by the
Holder(s) of Old Notes, then such Holder(s) need not and should not endorse any
Old Notes nor provide a separate bond power. In any other case, such Holder(s)
must either properly endorse the Old Notes with respect to which Consents are
given or transmit a properly completed separate bond power with this Amended
Letter of Transmittal and Consent Form with the signature(s) on the endorsement
or bond power guaranteed by a Medallion Signature Guarantor (as defined below).
If this Amended Letter of Transmittal and Consent Form is signed by a
person other than the Holder(s) of any Old Notes with respect to which Consents
are given, such Old Notes must be endorsed or accompanied by appropriate bond
powers, in each case, signed as the name(s) of the Holder(s) appear(s) on such
Old Notes, with the signature(s) on the endorsement or bond power guaranteed by
a Medallion Signature Guarantor.
If this Amended Letter of Transmittal and Consent Form or any Old Notes
with respect to which Consents are given or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and, unless waived by the Company,
evidence satisfactory to the Company of their authority to so act must be
submitted with this Amended Letter of Transmittal and Consent Form.
Signatures on this Amended Letter of Transmittal and Consent Form must
be guaranteed by a recognized participant in the Securities Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Program or
the Stock Exchange Medallion Program (each a "Medallion Signature Guarantor"),
unless the Consents are given with respect to Old Notes that are delivered (i)
by the Holder of the Old Notes (or by a participant in DTC whose name appears on
a security position listing as the owner of such Old Notes) who has not
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completed Box B ("Special Delivery Instructions--Certificates") on this Amended
Letter of Transmittal and Consent Form, or (ii) for the account of a member firm
of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc. ("NASD") or a commercial bank or trust
company having an office or correspondent in the United States (each of the
foregoing being referred to as an "Eligible Institution"). If the Old Notes with
respect to which Consents are given are registered in the name of a person other
than the signer of the Amended Letter of Transmittal and Consent Form or if Old
Notes for which Consents are not given are to be returned to a person other than
the Holder, then the signature on this Amended Letter of Transmittal and Consent
Form accompanying such Old Notes must be guaranteed by a Medallion Signature
Guarantor as described above. Beneficial Owners whose Old Notes are registered
in the name of a broker, dealer, commercial bank, trust company or other nominee
must contact such broker, dealer, commercial bank, trust company or other
nominee if they desire to deliver Consents with respect to such Old Notes.
6. SPECIAL DELIVERY INSTRUCTIONS. Holders should indicate in Box B
("Special Delivery Instructions--Certificates") the name and address to which
substitute Old Notes (whether for Old Notes that are subject or not subject to
Consents) are to be sent, if different from the name and address of the person
signing this Amended Letter of Transmittal and Consent Form. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
7. TAX IDENTIFICATION NUMBER. The Holder(s) of any Old Notes for which
Consents are accepted must provide the Exchange/Solicitation Agent with its
correct taxpayer identification number ("TIN"), which, in the case of a Holder
who is an individual, is his or her social security number. In the case of a
Consenting Holder who has completed Box E entitled "Special Payment
Instructions" above, however, the correct TIN on the Substitute Form W-9 should
be provided for the recipient of the Consenting Holder's Repurchase Amount
delivered pursuant to such instructions. Failure to provide the information on
the Form W-9 will cause the Company to withhold 31% of any payments made to the
consenting Holder or such recipient, as the case may be, until such information
is received. See "Backup Withholding Information" above.
8. VALIDITY OF CONSENTS. All questions as to the validity, form,
eligibility (including time of receipt), acceptance and revocation of Consents
will be resolved by the Company in its sole discretion, which resolution will be
final and binding. The Company reserves the right to reject any and all Consents
not validly furnished or the acceptance of which would, in the opinion of the
Company or its counsel, be unlawful. The Company also reserves the right to
waive any defects or irregularities of the Consent Solicitation including the
ineligibility of any Holder who seeks to furnish Consents. The interpretation of
the terms and conditions of the Consent Solicitation (including this Amended
Letter of Transmittal and Consent Form and the instructions hereto) by the
Company shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with delivery of Consents must be cured within such
time as the Company shall determine. Neither the Company, the
Exchange/Solicitation Agent nor any other person shall be under any duty to give
notification of defects or irregularities with respect to delivery of Consents,
nor shall any of them incur any liability for failure to give such notification.
Consents will not be deemed to have been delivered until such defects or
irregularities have been cured or waived. Any Old Notes with respect to which
Consents are given and received by the Exchange/Solicitation Agent that are not
properly given and as to which the defects or irregularities have not been cured
or waived will be returned by the Exchange/Solicitation Agent to the Holders,
unless otherwise provided in this Amended Letter of Transmittal and Consent
Form, as soon as practicable following the Solicitation Expiration Date.
9. WAIVER OF TERMS. The Company reserves the absolute right to amend,
waive or modify any of the terms in the Consent Solicitation in the case of any
Old Notes.
10. NO CONDITIONAL CONSENTS. No alternative, conditional, irregular, or
contingent Consents with respect to Old Notes or transmittal of this Amended
Letter of Transmittal and Consent Form will be accepted.
11. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any Holder whose
Old Notes with respect to which Consents are furnished have been mutilated,
lost, stolen or destroyed should contact the Exchange/Solicitation Agent at the
address indicated herein for further instructions.
12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and
requests for assistance and requests for additional copies of the Joint Offering
Circular/Consent Solicitation Statement, the Supplement or this
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Amended Letter of Transmittal and Consent Form may be directed to the
Exchange/Solicitation Agent at the addresses and telephone numbers indicated
therein. Holders may also contact their broker, dealer, commercial bank, trust,
company or other nominee for assistance concerning the Consent Solicitation.
13. ACCEPTANCE OF CONSENTS; RETURN OF OLD NOTES. Subject to the terms
and conditions of the Consents Solicitation, the Company will accept all validly
delivered Consents and, as soon as practicable after the Solicitation Expiration
Date, will reissue Old Notes with the restriction on transfer noted in a
principal amount equal to the principal amount of Old Notes with respect to
which Consents are given, less the principal amount of such Old Notes
repurchased in the Consent Solicitation. See "Modification to the
Solicitation--Repurchase of Old Notes" in the Supplement. For purposes of the
Consent Solicitation, the Company shall be deemed to have accepted Consents and
Consents will become effective when, as and if the Company has given written or
oral notice (immediately followed in writing) thereof to the
Exchange/Solicitation Agent. If any Old Notes are delivered in connection with
Consents that do not become effective for any reason, such Old Notes will be
returned, without expense, to the Holder at the address shown in Box A or at a
different address as may be indicated herein under "Special Delivery
Instructions--Certificates" (Box B).
14. REVOCATION. Consents may be revoked only pursuant to the procedures
set forth in the Joint Offering Circular/Consent Solicitation Statement under
the caption "The Solicitation--Revocation of Consents."
15. SPECIAL DELIVERY INSTRUCTIONS--CERTIFICATED NOTES. Consenting
Holders should indicate, in Box G, the name in which certificates are to be
issued and the address to which certificates are to be sent for the Old Notes
which will be reissued in certificated form, if different from the name and
address of the person submitting this Amended Letter of Transmittal and Consent
Form.
16. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS OF CONSENTING HOLDER'S
REPURCHASE AMOUNT. Consenting Holders should indicate, in the applicable box,
the name and address to which the Consenting Holder's Repurchase Amount is to be
sent or issued, if different from the name and address of the person submitting
the Amended Letter of Transmittal and Consent Form. In the case of issuance or
payment in a different name, the tax identification number of the person named
must also be indicated and a Substitute Form W-9 for such recipient must also be
completed. See Instruction 7. If no such instructions are given, the Consenting
Holder's Repurchase Amount will be sent to the name and address of the person
signing this Amended Letter of Transmittal and Consent Form.
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