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EXHIBIT 99.1
LETTER OF TRANSMITTAL
THE RESORT AT SUMMERLIN, LIMITED PARTNERSHIP
THE RESORT AT SUMMERLIN, INC.
1160 Town Center Drive, Suite 200
Las Vegas Nevada, 89124
Offer to Exchange its 13% Series B Exchange Senior Subordinated PIK Notes due
2007 ("New Notes"), which have not been registered under the Securities Act
for any and all of its outstanding 13% Senior Subordinated PIK Notes due 2007
("Old Notes"), pursuant to the Prospectus dated___________________, 1998.
THIS EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
____________________, 1998 OR SUCH LATER DATE AND TIME TO WHICH THE EXCHANGE
OFFER MAY BE EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO
THE EXPIRATION DATE.
To:
UNITED STATES TRUST COMPANY OF NEW YORK, Exchange Agent
Facsimile Transmission: (212) 780-0592
Confirm by telephone to:
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By Mail/ Hand Delivery/ Overnight Deliver:
The United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
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DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET
FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE
INSTRUCTIONS TO THIS LETTER, CAREFULLY BEFORE COMPLETING ANY BOX BELOW.
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List below the Old Notes to which this Letter of Transmittal relates.
If the space provided below is inadequate, the certificate number(s) and
aggregate principal of Old Notes should be listed on a separate signed schedule
affixed hereto.
DESCRIPTION OF OLD NOTES TENDERED
Name(s) and Address(es) of Registered (1) (2) (3) (4)
Holder(s), Exactly As Name(s) Appear(s) Certificate Aggregate Principal Aggregate Principal Aggregate Principal
on Old Note Certificates (Please fill if Number(s) of of Old Notes Amount of Old Notes Amount of Old Notes
in blank) Old Notes Represented by Tendered ** Tendered in Exchange for
* Certificate Certificated New Notes ***
Totals:
* Need not be completed if Old Notes are being tendered by book-entry transfer
in accordance with DTC's ATOP procedures for transfer.
** Unless otherwise indicated in this column, the aggregate principal amount
represented by all Certificates identified in Column 1 or delivered to the
Exchange Agent shall be deemed tendered.
*** Unless otherwise indicated, the holder will be deemed to have tendered the
aggregate principal amount of Old Notes in exchange for a beneficial interest in
one or more fully registered global certificates, which will be deposited with,
or on behalf of, The Depository Trust Company ("DTC") and registered in the name
of its nominee.
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The undersigned acknowledges that he, she or it has received and
reviewed the Prospectus, dated ___________________, 1998 (the "Prospectus"), of
THE RESORT AT SUMMERLIN, LIMITED PARTNERSHIP, a Nevada limited partnership
("RAS") and THE RESORT AT SUMMERLIN, INC., a Nevada corporation ("RAS, Inc."
and together with RAS, the "Note Issuers"), and this Letter of Transmittal (the
"Letter of Transmittal"), which together constitute the Issuers' offer (the
"Exchange Offer") to exchange its 13% Series B Senior Subordinated PIK Notes
due 2007 (the "New Notes"), for an equal principal amount of its 13% Senior
Subordinated PIK Notes due 2007 (the "Old Notes"). The New Notes and the Old
Notes are collectively referred to as the "Notes." Capitalized terms used but
not defined herein have the meanings ascribed to them in the Prospectus.
The undersigned has completed the appropriate boxes above and below and
signed this Letter of Transmittal to indicate the action the undersigned desires
to take with respect to the Exchange Offer.
This Letter of Transmittal is to be used by holders of Old Notes to accept the
Exchange Offer if: (i) tender of Old Notes is to be made according to the
Automated Tender Offer Program ("ATOP") of the Depository Trust Company ("DTC"),
for which the transaction is eligible, pursuant to the procedures set forth in
the Prospectus under the caption "Exchange Offer--Procedure for Tendering Old
Notes Held Through DTC"; (ii) certificates representing Old Notes are to be
physically delivered to the Exchange Agent herewith by such holders, pursuant to
the procedures set forth in the Prospectus under the caption "Exchange
Offer--Procedure for Tendering Old Notes Held by Holder"; or (iii) tender of Old
Notes is to be made according to the guaranteed delivery procedures set forth in
the Prospectus under the caption "Exchange Offer--Guaranteed Delivery
Procedures."
NOTWITHSTANDING THE FOREGOING, VALID ACCEPTANCE OF THE TERMS OF THE EXCHANGE
OFFER MAY BE EFFECTED BY A PARTICIPANT IN DTC (A "DTC PARTICIPANT") TENDERING
OLD NOTES THROUGH ATOP WHERE THE EXCHANGE AGENT RECEIVES AN AGENT'S MESSAGE (AS
DEFINED IN THE PROSPECTUS) PRIOR TO THE EXPIRATION DATE. ACCORDINGLY, SUCH DTC
PARTICIPANT MUST ELECTRONICALLY TRANSMIT ITS ACCEPTANCE TO DTC THOUGH ATOP, AND
THEN DTC WILL EDIT AND VERIFY THE ACCEPTANCE, EXECUTE A BOOK-ENTRY DELIVERY TO
THE EXCHANGE AGENT'S ACCOUNT AT DTC AND SEND AN AGENT'S MESSAGE TO THE EXCHANGE
AGENT FOR ITS ACCEPTANCE. BY TENDERING THROUGH ATOP, DTC PARTICIPANTS WILL
EXPRESSLY ACKNOWLEDGE RECEIPT OF THIS LETTER OF TRANSMITTAL AND AGREE TO BE
BOUND BY ITS TERMS AND THE NOTE ISSUERS WILL BE ABLE TO ENFORCE SUCH AGREEMENT
AGAINST SUCH DTC PARTICIPANTS.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
DTC Participants who wish to cause their Old Notes to be tendered, but
who cannot transmit their acceptances through ATOP prior to the Expiration Date,
may effect a tender in accordance with the guaranteed delivery procedures set
forth in the Prospectus under the caption "Exchange Offer--Guaranteed Delivery
Procedure--Unregistered Old Senior Subordinated Notes Held Through DTC." Holders
who wish to tender their Old Notes but (i) whose Old Notes are not immediately
available and will not be available for tendering prior to the Expiration Date,
or (ii) who cannot deliver their Old Notes, the Letter of Transmittal, or any
other required documents to the Exchange Agent prior to the Expiration Date, may
effect a tender in accordance with the guaranteed delivery procedures set forth
in the Prospectus under the caption "Exchange Offer--Guaranteed Delivery
Procedure--Old Notes Held by Holders."
The undersigned must complete the appropriate boxes above and below and
sign this Letter of Transmittal to indicate the action the undersigned desires
to take with respect to the Exchange Offer.
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED TO THE EXCHANGE AGENT
IN EXCHANGE FOR CERTIFICATED NEW NOTES.
Unless the undersigned (i) has completed item (4) in the box entitled
"Description of Old Notes Tendered" and (ii) has
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checked the box above, the undersigned will be deemed to have tendered Old Notes
in exchange for a beneficial interest in one or more fully registered global
certificates, which will be deposited with, or on behalf of, DTC and registered
in the name of its nominee. Beneficial interests in such registered global
certificates will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its participants. See "Book--Entry;
Delivery and Form" as set forth in the Prospectus.
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH A BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
_______________________________________________________________________
The Depository Trust Company Account Number
_______________________________________________________
Transaction Code Number
__________________________________________________________________________
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s):
____________________________________________________________________
Window Ticket Number (if any):
____________________________________________________________________
Date of Execution of Notice of Guaranteed Delivery:
_____________________________________________________
Name of Eligible Institution that Guaranteed Delivery:
___________________________________________________
If delivered by book-entry transfer:
___________________________________________________________________
Account Number ______________________ Transaction Code Number
_____________________________________
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to conditions of the Exchange Offer, the
undersigned hereby tenders to the Note Issuers the Old Notes indicated above.
Subject to, and effective upon, the acceptance for exchange of the Old Notes
tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon
the order of, the Exchange Agent, as agent of the Note Issuers, all right, title
and interest in and to such Old Notes as are being tendered hereby, and
irrevocably constitutes and appoints the Exchange Agent as the agent and
attorney-in-fact of the undersigned to cause the Old Notes tendered hereby to be
transferred and exchanged.
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The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, sell, assign and transfer the Old
Notes tendered hereby and to acquire the New Notes issuable upon the exchange of
such tendered Old Notes, and that the Exchange Agent, as agent of the Note
Issuers, will acquire good and unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claim when the same are accepted by the Exchange Agent, as agent of the Note
Issuers. The undersigned will, upon request, execute and deliver any additional
documents deemed by the Note Issuers or the Exchange Agent to be necessary or
desirable to complete the exchange, sale, assignment and transfer of the Old
Notes tendered hereby.
The undersigned also acknowledges that this Exchange Offer is being
made in reliance on the interpretation of the staff of the Securities and
Exchange Commission (the "SEC"), as set forth in Exxon Capital Holdings
Corporation (available May 13, 1988) or similar no-action letters issued to
parties. Based on such interpretation of the staff of the SEC set forth in such
no-action letters, the Note Issuers believe that the New Notes issued in
exchange for the Old Notes pursuant to the Exchange Offer may be offered for
resale, resold and otherwise transferred by a holder thereof (other than any (i)
a broker-dealer who purchases such New Notes from the Note Issuers to resell
pursuant to Rule 144A or any other available exemption under the Securities Act,
or (ii) a person that is an "affiliate" of the Note Issuers within the meaning
of Rule 405 under the Securities Act of 1933, as amended (the "Securities Act"))
without compliance with the registration and prospectus delivery provisions of
the Securities Act, provided that (i) such New Notes are acquired in the
ordinary course of such holder's business, (ii) at the time of the commencement
of the Exchange Offer such holder has no arrangement with any person to
participate in a distribution of the New Notes and (iii) such holder is not
engaged in, and does not intend to engage, in a distribution of the New Notes.
By tendering Old Notes in exchange for New Notes, each holder will represent to
the Note Issuers that: (i) it is not such an affiliate of the Note Issuers, (ii)
any New Notes to be received by it will be acquired in the ordinary course of
business and (iii) at the time of the commencement of the Exchange Offer it had
no arrangement with any person to participate in a distribution of the New
Notes. If the undersigned is not a broker-dealer or is a broker-dealer but will
not receive New Notes for its own account in exchange for Old Notes, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of New Notes.
If the undersigned is a broker-dealer that will receive New Notes for
its own account in exchange for Old Notes, where such Old Notes were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such New Notes; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
Nevertheless a broker-dealer may be deemed to be an underwriter under the
Securities Act notwithstanding such disclaimer. The SEC has taken the position
that such broker-dealers may fulfill their prospectus delivery requirements with
respect to the New Notes (other than a resale of New Notes received in exchange
for an unsold allotment from the original sale of the Old Notes) with the
Prospectus. The Prospectus, as it may be amended or supplemented from time to
time, may be used by such broker-dealers for a period of time, starting on the
Expiration Date and ending on the close of business 180 days after the date the
Registration Statement relating to the Exchange Offer has become effective. The
Note Issuers have agreed that for such period of time, it will make the
Prospectus (as it may be amended or supplemented) available to each
broker-dealer which, with the Note Issuers' prior written consent, makes a
market in the Old Notes and receives New Notes pursuant to the Exchange Offer
(each a "Participating Broker-Dealer") for use in connection with any resale of
such New Notes. By acceptance of the Exchange Offer, each broker-dealer that
receives New Notes pursuant to the Exchange Offer hereby acknowledges and agrees
to notify the Note Issuers prior to using the Prospectus in connection with the
sale or transfer of New Notes and that, upon receipt of notice from the Note
Issuers of the happening of any event which makes any statement in the
Prospectus untrue in any material respect or which requires the making of any
changes in the Prospectus in order to make the statements therein not
misleading, such broker-dealer will suspend use of the Prospectus until (i) the
Note Issuers have amended or supplemented the Prospectus to correct such
misstatement or omission and (ii) either the Note Issuers have furnished copies
of the amended or supplemented Prospectus to such broker-dealer or, if the Note
Issuers have not otherwise agreed to furnish such copies and declines to do so
after such broker-dealer so requests, such broker-dealer has obtained a copy of
such amended or supplemented Prospectus as filed with the SEC. The Note Issuers
agree to deliver such notice and such amended or supplemented Prospectus
promptly to any Participating Broker-Dealer that has so notified the Note
Issuers. Except as described above, the Prospectus may not be used for or in
connection with an offer to resell, a resale or any other retransfer of New
Notes.
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The undersigned represents that (i) the New Notes acquired pursuant to
the Exchange Offer are being obtained in the ordinary course of such holder's
business, (ii) such holder has no arrangements with any person to participate in
the distribution of such New Notes or, if such holder intends to participate in
the Exchange Offer for the purpose of distributing the New Notes, such holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable and (iii) (x) such holder is not (a) a
broker-dealer that will receive New Notes for its own account in exchange for
Old Notes that were acquired as a result of market-making activities or other
trading activities, or (b) an "affiliate," as defined in Rule 405 under the
Securities Act, of the Note Issuers or (y) if such holder is such a
broker-dealer or an affiliate, such holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
All authority conferred or agreed to be conferred in this Letter of
Transmittal and every obligation of the undersigned hereunder shall be binding
upon the successors, assigns, heirs, executors, administrators, trustees in
bankruptcy and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned. This
tender may be withdrawn only in accordance with the procedures set forth in the
instructions contained in this Letter of Transmittal.
The undersigned understands that tenders of the Old Notes pursuant to
any one of the procedures described under "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Note Issuers in accordance
with the terms and subject to the conditions of the Exchange Offer.
The undersigned understands that if its Old Notes are accepted for
exchange, interest on the New Notes will accumulate from the last interest
payment date on which interest was paid on the Old Notes surrendered in exchange
thereof, or if no interest has been paid, from the original date of issuance of
the Old Notes.
The undersigned recognizes that unless the holder of Old Notes (i)
completes item (4) of the Box entitled "Description of Old Notes Tendered" above
and (ii) checks the box entitled "Check here if tendered Old Notes are being
delivered to the Exchange Agent in exchange for certificated New Notes" above,
such holder, when tendering such Old Notes, will be deemed to have tendered such
Old Notes in exchange for a beneficial interest in one or more fully registered
global certificates, which will be deposited with, or on behalf of, DTC and
registered in the name of its nominee. Beneficial interests in such registered
global certificates will be shown on, and transfers thereof will be effected
only through, records maintained by DTC and its participants. See "Book--Entry;
Delivery and Form" in the Prospectus.
The undersigned recognizes that, under certain circumstances set forth
in the Prospectus under "The Exchange Offer--Conditions," the Note Issuers may
not be required to accept for exchange any of the Old Notes tendered. Old Notes
not accepted for exchange or withdrawn will be returned to the undersigned at
the address set forth below unless otherwise indicated under "Special Delivery
Instructions" below.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptability of any tender will be determined by the Note Issuers,
in its sole discretion, and such determination will be final and binding. Unless
waived by the Note Issuers, irregularities and defects must be cured by the
Expiration Date. The Note Issuers shall not be obligated to give notice of any
defects or irregularities in tenders and shall not incur any liability for
failure to give any such notice.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby requests that the New Notes (and, if
applicable, substitute certificates representing Old Notes for any Old Notes not
exchanged) be issued in the name of the undersigned. Similarly, unless otherwise
indicated under the box entitled "Special Delivery Instructions" below, the
undersigned hereby requests that the New Notes (and, if applicable, substitute
certificates representing Old Notes for any Old Notes not exchanged) be sent to
the undersigned at the address shown above in the box entitled "Description of
Old Notes Tendered."
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THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD
NOTES TENDERED" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED
THE OLD NOTES AS SET FORTH IN SUCH BOX(ES) ABOVE.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
X ______________________________________ ___________________________
X ______________________________________ ___________________________
SIGNATURE(S) OF OWNER(S) DATE
Area Code and Telephone Number
___________________________________________________________________
If a holder is tendering any Old Notes, this Letter of Transmittal must be
signed by the registered holder(s) as the name(s) appear(s) on the
certificate(s) for the Old Notes or by any person(s) authorized to become
registered holder(s) by endorsements and documents transmitted herewith. If
signature is by a trustee, executor, administrator, guardian, officer or other
person acting in a fiduciary or representative capacity, please set forth full
title below. See Instruction 3.
Name(s): _______________________________________________________________________
________________________________________________________________________________
(PLEASE TYPE OR PRINT)
Capacity (full title): _________________________________________________________
Address: _______________________________________________________________________
(INCLUDE ZIP CODE)
SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 3)
Signature(s) Guaranteed by
an Eligible Institution:
________________________________________________________________________________
(AUTHORIZED SIGNATURE)
________________________________________________________________________________
(TITLE)
________________________________________________________________________________
(NAME OF FIRM)
Dated: _________________________________________________________________________
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SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if New Notes (and, if applicable, substitute certificates
representing Old Notes for any Old Notes not exchanged) are to be issued in the
name of and sent to someone other than the person or persons whose signatures)
appear(s) on this Letter of Transmittal above.
Issue New Notes to:
Name(s):
________________________________________________________________________________
(PLEASE TYPE OR PRINT)
________________________________________________________________________________
(PLEASE TYPE OR PRINT)
Address: _______________________________________________________________________
________________________________________________________________________________
(ZIP CODE)
(COMPLETE SUBSTITUTE FORM W-9)
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for New Notes (and, if applicable,
substitute certificates representing Old Notes for any Old Notes not exchanged)
are to be sent to someone other than the person or persons whose signatures
appear(s) on this Letter of Transmittal above or to such person or persons at an
address other than shown in the box entitled "Description of Old Notes Tendered"
on this Letter of Transmittal above.
Mail New Notes to:
Name(s): _______________________________________________________________________
(PLEASE TYPE OR PRINT)
________________________________________________________________________________
(PLEASE TYPE OR PRINT)
Address: _______________________________________________________________________
________________________________________________________________________________
(ZIP CODE)
IMPORTANT: EITHER (1) (A) THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF)
TOGETHER WITH CERTIFICATES REPRESENTING OLD NOTES OR (B) A BOOK-ENTRY
CONFIRMATION INCLUDING BY MEANS OF AN AGENT'S MESSAGE, MUST BE RECEIVED BY THE
EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE
TOGETHER WITH ALL OTHER REQUIRED DOCUMENTS, OR (2) THE TENDERING HOLDER MUST
COMPLY WITH THE GUARANTEED DELIVERY PROCEDURES SET FORTH HEREIN. BY TENDERING
THROUGH ATOP, DTC PARTICIPANTS WILL EXPRESSLY ACKNOWLEDGE RECEIPT OF THIS LETTER
OF TRANSMITTAL AND AGREE TO BE BOUND BY ITS TERMS AND THE ISSUER WILL BE ABLE TO
ENFORCE SUCH AGREEMENT AGAINST SUCH DTC PARTICIPANTS.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
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SUBSTITUTE Form W-9, Department of the Treasury, Internal Revenue Service
Payor's Request for Taxpayor Identification Number (TIN) Certification
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 5)
PAYOR'S NAME: _____________________________________________________
PART 1--Taxpayer Identification Number Social Security Number
Enter your taxpayer identification number in the appropriate box. or Employee
For most individuals, this is your social security number. If you Identification Number
do not have a number, see how to obtain a "TIN" in the enclosed
Guidelines.
NOTE: If the account is in more than one name, see the chart on page 2 of the
enclosed Guidelines to determine what number to give.
PART II--
FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING (See enclosed Guidelines)
PART III--
Check box if awaiting TIN
Certification--Under the penalties of perjury, I certify that: (1) The number
shown on this form is my correct Taxpayer Identification Number (or I am waiting
for a number to be issued to me), and (2) I am not subject to backup withholding
either because I have not been notified by the Internal Revenue Service (the
"IRS") that I am subject to backup withholding as a result of a failure to
report all interest or the IRS has notified me that I am no longer subject to
backup withholding.
SIGNATURE______________________________________________________
DATE____________________________________________________________
CERTIFICATION GUIDELINES--You must cross out Item (2) of the above certification
if you have been notified by the IRS that you are subject to backup withholding
because of underreporting of interest 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 that you are no longer subject to
backup withholding, do not cross out item (2).
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CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification
Number has not been issued to me, and that I mailed or delivered an application
to receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail or
deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payer, thirty-one percent (31%)
of all payments made to me on account of the New Notes shall be retained until I
provide a Taxpayer Identification Number to the payer and that, if I do not
provide my Taxpayer Identification Number within sixty (60) days, such retained
amounts shall be remitted to the Internal Revenue Service as backup withholding
and thirty-one percent (31%) of all reportable payments made to me thereafter
will be withheld and remitted to the Internal Revenue Service until I provide a
Taxpayer Identification Number.
Signature _________________________________________________ Date
_____________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF THIRTY-ONE PERCENT (31%) OF ANY PAYMENTS MADE
TO YOU ON ACCOUNT OF THE NEW NOTES. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES; GUARANTEED
DELIVERY PROCEDURE. This Letter of Transmittal is to be completed by holders of
Old Notes to accept the Exchange Offer if: (i) tender of Old Notes is to be made
by DTC Participants through ATOP, for which the transaction is eligible,
pursuant to the procedures set forth in the Prospectus under the caption
"Exchange Offer--Old Notes Held Through DTC"; (ii) certificates representing Old
Notes are to be physically delivered to the Exchange Agent herewith by such
holders, pursuant to the procedures set forth in the Prospectus under the
caption "Exchange Offer--Old Notes Held by Holders"; or (iii) tender of Old
Notes is to be made according to the guaranteed delivery procedures set forth in
the Prospectus under the caption "Exchange Offer--Guaranteed Delivery
Procedures." Notwithstanding the foregoing, valid acceptance of the terms of the
Exchange Offer may be effected by a DTC Participant tendering Old Notes through
ATOP where the Exchange Agent receives an Agent's Message prior to the
Expiration Date. Accordingly, such DTC Participant must electronically transmit
its acceptance to DTC through ATOP, and then DTC will edit and verify the
acceptance, execute a book-entry delivery to the Exchange Agent's account at DTC
and send an Agent's Message to the Exchange Agent for its acceptance. By
tendering through ATOP, DTC Participants will expressly acknowledge receipt of
this Letter of Transmittal and agree to be bound by its terms and the Note
Issuers will be able to enforce such agreement against such DTC Participants.
In order to validly tender Old Notes pursuant the Exchange Offer,
either (i) (A) this Letter of Transmittal, or a facsimile hereof, together with
certificates representing Old Notes or (B) a Book-Entry Confirmation, including
by means of an Agent's Message, of the transfer into the Exchange Agent's
account at DTC of all Old Notes delivered electronically must be received by the
Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City
time, on the Expiration Date, together with all other required documents, or
(ii) the tendering holder must comply with the guaranteed delivery procedures
set forth below. Delivery of documents to DTC does not constitute delivery to
the Exchange Agent.
If a holder or DTC Participant desires to tender Old Notes pursuant to
the Exchange Offer and time will not permit this Letter of Transmittal,
certificates representing such Old Notes and all other required documents to
reach
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the Exchange Agent, or the procedures for book-entry transfer, including those
with respect to tenders through ATOP, cannot be completed, prior to the
Expiration Date, such holder or DTC Participant, as the case may be, must tender
such Old Notes pursuant to the guaranteed delivery procedures set forth in the
Prospectus under the caption "Exchange Offer--Guaranteed Delivery Procedures."
Pursuant to such procedures (i) such tender 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 Note Issuers,
must be received by the Exchange Agent either by hand delivery, mail, facsimile
transmission or overnight courier, prior to the Expiration Date; and (iii)
within three NYSE trading days after the date of the execution of the Notice of
Guaranteed Delivery, (A) holders must deliver to the Exchange Agent a properly
completed and duly executed Letter of Transmittal, as well as the certificates
representing all tendered Old Notes in proper form for transfer, and all other
documents required by the Letter of Transmittal or (B) DTC Participants must
effect a Book-Entry Confirmation, including through ATOP by means of an Agent's
Message, of the transfer of such Old Notes into the Exchange Agent's account at
DTC as set forth in the Prospectus.
The method of delivery of this Letter of Transmittal, the shares of Old
Notes and all other required documents, including delivery through DTC and any
acceptance or Agent's Message transmitted through ATOP, is at the option and
risk of the tendering holder. If delivery is by mail, registered mail with
return receipt requested, properly insured, is recommended. In all cases,
sufficient time should be allowed for such documents to reach the Exchange Agent
prior to the Expiration Date. Except as otherwise provided in this instruction
1, delivery will be deemed made only when actually received by the Exchange
Agent.
No alternative, conditional or contingent tenders will be accepted. All
tendering holders, by execution of this Letter of Transmittal (or a facsimile
hereof), waive any right to receive any notice of the acceptance of their Old
Notes for exchange.
See "The Exchange Offer" in the Prospectus.
2. WITHDRAWALS. Tenders of Old Notes may be withdrawn at any time prior
to 5:00 p.m., New York City time, on the Expiration Date. For a withdrawal of a
tender of Old Notes to be effective, a letter, telex, telegram or facsimile
transmission notice of withdrawal must be received by the Exchange Agent at its
address set forth above prior to 5:00 p.m., New York City time, on the
Expiration Date. Any such notice of withdrawal by a DTC Participant must contain
the name and number of the DTC Participant, the aggregate principal amount of
Old Notes to which such withdrawal relates and the signature of the DTC
Participant. Any such notice of withdrawal by a holder of Old Notes must (i)
specify the name of the person who tendered the Old Notes to be withdrawn, (ii)
contain a description of the Old Notes to be withdrawn (including the
certificate number or numbers and aggregate liquidation preference of such Old
Notes) and (iii) be signed by the holder of such Old Notes in the same manner as
the original signature on this Letter of Transmittal (including any required
signature guarantees), or be accompanied by (x) documents of transfer in a form
acceptable to the Note Issuers, in its sole discretion and (y) a properly
completed irrevocable proxy that authorized such person to effect such
revocation on behalf of such holder. Any Old Notes so withdrawn will be deemed
not to have been validly tendered for exchange for purposes of the Exchange
Offer. Any Old Notes which have been tendered for exchange but which are not
exchanged for any reason will be returned to the holder thereof without cost to
such holder as soon as practicable after withdrawal, rejection of tender, or
termination of the Exchange Offer. Properly withdrawn Old Notes may be
retendered by following the procedures described above at any time on or prior
to 5:00 p.m., New York City time, on the Expiration Date.
See "The Exchange Offer--Withdrawals of Tenders" in the Prospectus.
3. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed
by the registered holder of the Old Notes tendered hereby, the signature must
correspond exactly with the name as written on the face of the certificates
without any change whatsoever.
If any tendered Old Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
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If any tendered Old Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
copies of this Letter of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any Old Notes or powers of attorney
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 indicate when signing, and unless waived by the
Note Issuers, proper evidence satisfactory to the Note Issuers of their
authority so to act must be submitted.
The signatures on this Letter of Transmittal or a notice of withdrawal,
as the case may be, must be guaranteed unless the Old Notes surrendered for
exchange pursuant thereto are tendered (i) by a registered holder of the Old
Notes who has not completed the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" in this Letter of Transmittal or (ii) for the
account of an Eligible Institution. In the event that the signatures in this
Letter of Transmittal or a notice of withdrawal, as the case may be, are
required to be guaranteed, such guarantees must be by a firm which is a member
of a registered national securities exchange or a member of the National
Association of Securities Dealers, Inc., or by a commercial bank or trust
company having an office or correspondent in the United States, or an "eligible
institution" within the meaning of Rule 17Ad-15 of the Securities Exchange Act
of 1934, as amended (each an "Eligible Institution"). If Old Notes are
registered in the name of a person other than the signer of this Letter of
Transmittal, the Old Notes surrendered for exchange must be endorsed by, or be
accompanied by a written instrument or instruments of transfer or exchange, in
satisfactory form as determined by the Note Issuers in its sole discretion, duly
executed by the registered holder with the signature thereon guaranteed by an
Eligible Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering holders of Old
Notes should indicate in the applicable box the name and address to which New
Notes issued pursuant to the Exchange Offer are to be issued or sent, if
different from the name or address of the person signing this Letter of
Transmittal. In the case of issuance in a different name, the employer
identification or social security number of the person named must also be
indicated. If no such instructions are given, any New Notes will be issued in
the name of, and delivered to, the name or address of the person signing this
Letter of Transmittal and any Old Notes not accepted for exchange will be
returned to the name or address of the person signing this Letter of
Transmittal.
5. BACKUP FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM W-9. Under
the federal income tax laws, payments that may be made by the Note Issuers on
account of New Notes issued pursuant to the Exchange Offer may be subject to
backup withholding at the rate of 31%. In order to avoid such backup
withholding, each tendering holder should complete and sign the Substitute Form
W-9 included in this Letter of Transmittal and either (a) provide the correct
taxpayer identification number ("TIN") and certify, under penalties of perjury,
that the TIN provided is correct and that (i) the holder has not been notified
by the Internal Revenue Service (the "IRS") that the holder is subject to backup
withholding as a result of failure to report all interest or (ii) the IRS has
notified the holder that the holder is no longer subject to backup withholding;
or (b) provide an adequate basis for exemption. If the tendering holder has not
been issued a TIN and has applied for one, or intends to apply for one in the
near future, such holder should write "Applied For" in the space provided for
the TIN in Part I of the Substitute Form W-9, sign and date the Substitute Form
W-9 and sign the Certificate of Payee Awaiting Taxpayer Identification Number.
If "Applied For" is written in Part I, the Note Issuers (or the Trustee with
respect to the New Notes or a broker or custodian) may still withhold 31% of the
amount of any payments made on account of the New Notes until the holder
furnishes the Note Issuers or the Trustee with respect to the New Notes, broker
or custodian with its TIN. In general, if a holder is an individual, the
taxpayer identification number is the Social Security number of such individual.
If the Exchange Agent or the Note Issuers are not provided with the correct TIN,
the holder may be subject to a $50 penalty imposed by the IRS. Certain holders
(including, among others, all corporations and certain foreign individuals) are
not subject to these backup withholding and reporting requirements. In order for
a foreign individual to qualify as an exempt recipient, such holder must submit
a statement (generally, IRS Form W-8), signed under penalties of perjury,
attesting to that individual's exempt status. Such statements can be obtained
from the Exchange Agent. For further information concerning backup withholding
and instructions for completing the Substitute Form W-9 (including how to obtain
a taxpayer identification number if you do not have one and how to complete the
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Substitute Form W-9 if Old Notes are registered in more than one name), consult
the enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Old Notes to be deemed invalidly tendered, but may require the Note Issuers or
the Trustee with respect to the New Notes, broker or custodian to withhold 31%
of the amount of any payments made on account of the New Notes. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of a person subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the IRS.
6. TRANSFER TAXES. The Note Issuers will pay all transfer taxes, if
any, applicable to the transfer of Old Notes to it or its order pursuant to the
Exchange Offer. If, however, New Notes and/or substitute Old Notes not exchanged
are to be delivered to, or are to be registered or issued in the name of, any
person other than the registered holder of the Old Notes tendered hereby, or if
tendered Old Notes are registered in the name of any person other than the
person signing this Letter of Transmittal, or if a transfer tax is imposed for
any reason other than the transfer of Old Notes to the Note Issuers or its order
pursuant to the Exchange Offer, the amount of any such transfer taxes (whether
imposed on the registered holder or any other person) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted herewith, the amount of such transfer taxes will be
billed directly to such tendering holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes specified in this Letter of
Transmittal.
7. WAIVER OF CONDITIONS. The Note Issuers reserve the absolute right to
waive satisfaction of any or all conditions enumerated in the Prospectus.
8. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Old Notes, by
execution of this Letter of Transmittal, shall waive any right to receive notice
of the acceptance of their Old Notes for exchange. Neither the Note Issuers nor
any other person is obligated to give notice of defects or irregularities in any
tender, nor shall any of them incur any liability for failure to give any such
notice.
9. INADEQUATE SPACE. If the space provided herein is inadequate, the
aggregate principal amount of Old Notes being tendered and the certificate
number or numbers (if available) should be listed on a separate schedule
attached hereto and separately signed by all parties required to sign this
Letter of Transmittal.
10. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any holder whose
Old Notes have been mutilated, lost, stolen or destroyed should contact the
Exchange Agent at the address indicated above for further instructions.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to
the procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent
at the address and telephone number indicated above.
All tendered Old Notes, executed Letters of Transmittal and other
related documents should be directed to the Exchange Agent. Requests for
assistance and additional copies of the Prospectus, the Letter of Transmittal
and other related documents should be directed to the Exchange Agent.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
UNITED STATES TRUST COMPANY OF NEW YORK
By Facsimile: (212) 780-0592
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(For Eligible Institutions Only)
By Telephone:
By Registered or Certified Mail:
By Hand or Overnight Delivery
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