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EXHIBIT 99.1
LETTER OF TRANSMITTAL
BEVERLY ENTERPRISES, INC.
OFFER TO EXCHANGE ITS
$200,000,000 8 5/8% SENIOR NOTES DUE 2009 FOR ANY AND ALL
UNREGISTERED 8 5/8% SENIOR NOTES DUE 2009
PURSUANT TO THE PROSPECTUS DATED JUNE __, 2001
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ______,
2001, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME
TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO
THE EXPIRATION DATE.
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The Exchange Agent is:
THE BANK OF NEW YORK
Deliver to:
By Registered or Certified Mail: By Hand or Overnight Delivery:
The Bank of New York The Bank of New York
101 Barclay Street, 7 East 101 Barclay Street
New York, New York 10286 Corporate Trust Services Window
Attention: Reorganization Section Ground Level
New York, New York 10286
Attention: Reorganization Section
By Facsimile:
(212) 815-6339
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN THE ONE LISTED ABOVE WILL
NOT CONSTITUTE VALID DELIVERY TO THE EXCHANGE AGENT.
The instructions set forth in this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed. The undersigned
acknowledges that he or she has received and reviewed the prospectus (the
"Prospectus") dated _____, 2001, of Beverly Enterprises, Inc., a Delaware
corporation (the "Company"), and this Letter of Transmittal (the "Letter of
Transmittal"), which together constitute the Company's offer (the "Exchange
Offer") to exchange $200,000,000 principal amount of its 8 5/8% Senior Notes due
2009 (the "Exchange Notes") that have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for $200,000,000 principal amount of
its outstanding 8 5/8% Senior Notes due 2009 (the "Private Notes"). Recipients
of the Prospectus should read the requirements described in the Prospectus with
respect to eligibility to participate in the Exchange Offer. Capitalized terms
used but not defined herein have the meaning given to them in the Prospectus.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE CHECKING ANY BOX
BELOW.
This Letter of Transmittal is to be used by a holder of Private Notes (i)
if certificates representing tendered Private Notes are to be forwarded
herewith, (ii) if a tender is made pursuant to the guaranteed delivery
procedures in the section of the Prospectus entitled "The Exchange Offer,
Procedures for Tendering."
Holders that are tendering by book-entry transfer to the Exchange Agent's
account at DTC can execute the tender through DTC's Automated Tender Offer
Program for which the Exchange Offer will be eligible. DTC
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participants that 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 Agent's account at DTC. DTC will then send an agent's
message forming part of a book-entry transfer in which the participant agrees to
be bound by the terms of the Letter of Transmittal (an "Agent's Message") to the
Exchange Agent for its acceptance. Transmission of the Agent's Message by DTC
will satisfy the terms of the Exchange Offer as to execution and delivery of a
Letter of Transmittal by the participant identified in the Agent's Message.
In order to properly complete this Letter of Transmittal, a holder of
Private Notes must (i) complete the box entitled, "Description of Private Notes
Tendered," (ii) if appropriate, check and complete the boxes relating to
book-entry transfer, guaranteed delivery, Special Issuance Instructions and
Special Delivery Instructions, (iii) sign the Letter of Transmittal by
completing the box entitled "Sign Here" and (iv) complete the Substitute Form
W-9. Each holder of Private Notes should carefully read the detailed
instructions below prior to completing the Letter of Transmittal.
Holders of Private Notes who desire to tender their Private Notes for
exchange and whose Private Notes are not immediately available or who cannot
deliver their Private Notes, this Letter of Transmittal and all other documents
required hereby to the Exchange Agent or complete the procedures for book-entry
transfer on or prior to the Expiration Date, must tender the Private Notes
pursuant to the guaranteed delivery procedures set forth in the section of
Prospectus entitled "The Exchange Offer, Procedures for Tendering." See
Instruction 2. Delivery of documents to DTC does not constitute delivery to the
Exchange Agent. In order to ensure participation in the Exchange Offer, Private
Notes must be properly tendered prior to the Expiration Date.
Holders of Private Notes who wish to tender their Private Notes for
exchange must complete columns (1) through (3) in box below entitled
"Description of Private Notes Tendered," and sign the box below entitled "Sign
Here." If only those columns are completed, such holder of Private Notes will
have tendered for exchange all Private Notes listed in column (3) below. If the
holder of Private Notes wishes to tender for exchange less than all of such
Private Notes, column (4) must be completed in full. In such case, such holder
of Private Notes should refer to Instruction 5.
The Exchange Offer may be extended, terminated or amended, as provided in
the Prospectus. During any such extension of the Exchange Offer, all Private
Notes previously tendered and not withdrawn pursuant to the Exchange Offer will
remain subject to such Exchange Offer. The Exchange Offer is scheduled to expire
at 5:00 p.m., New York City time, on ______, 2001, unless extended by the
Company.
The undersigned hereby tenders for exchange the Private Notes described in
the box entitled "Description of Private Notes Tendered" below pursuant to the
terms and conditions described in the Prospectus and this Letter of Transmittal.
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DESCRIPTION OF PRIVATE NOTES TENDERED
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(1) (2) (3) (4)
AGGREGATE
NAME(S) AND ADDRESS(ES) OF PRINCIPAL AMOUNT PRINCIPAL AMOUNT
REGISTERED HOLDER(S) CERTIFICATE REPRESENTED BY TENDERED FOR
(PLEASE FILL IN, IF BLANK) NUMBER(S) CERTIFICATE(S)(A) EXCHANGE (B)
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Total Principal
Amount Tendered
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(A) Unless otherwise indicated in this column, any tendering holder will be
deemed to have tendered the entire principal amount represented by the
Private Notes indicated in the column labeled "Aggregate Principal
Amount Represented by Certificate(s)." See Instruction 5.
(B) The minimum permitted tender is $1,000 in principal amount of Private
Notes. All other tenders must be integral multiples of $1,000.
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|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE ENCLOSED HEREWITH.
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING (FOR USE BY
ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Holder(s)
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Window Ticket Number (if any)
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Date of Execution of Notice of Guaranteed Delivery
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Name of Institution that guaranteed delivery
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Only registered holders are entitled to tender their Private Notes for
exchange in the Exchange Offer. Any financial institution that is a participant
in DTC's system and whose name appears on a security position listing as the
record owner of the Private Notes and who wishes to make book-entry delivery of
Private Notes as described above must complete and execute a participant's
letter (which will be distributed to participants by DTC) instructing DTC's
nominee to tender such Private Notes for exchange. Persons who are beneficial
owners of Private Notes but are not registered holders and who seek to tender
Private Notes should (i) contact the registered holder of such Private Notes and
instruct such registered holder to tender on his or her behalf, (ii) obtain and
include with this Letter of Transmittal, Private Notes properly endorsed for
transfer by the registered holder or accompanied by a properly completed bond
power from the registered holder, with signatures on the endorsement or bond
power guaranteed by a firm that is a member of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc., a
commercial bank or trading company having an office in the United States or
certain other eligible guarantors (each, an "Eligible Institution"), or (iii)
effect a record transfer of such Private Notes from the registered holder to
such beneficial owner and comply with the requirements applicable to registered
holders for tendering Private Notes prior to the Expiration Date. See "The
Exchange Offer, Procedures for Tendering."
SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company for exchange the Private Notes
indicated above. Subject to, and effective upon, acceptance for purchase of the
Private Notes tendered herewith, the undersigned hereby sells, assigns,
transfers and exchanges to the Company all right, title and interest in and to
all such Private Notes tendered for exchange hereby. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent as the true and lawful
agent and attorney-in-fact of the undersigned (with full knowledge that the
Exchange Agent also acts as agent of the Company) with respect to such Private
Notes, with full power of substitution and resubstitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest) to
(a) deliver certificates representing such Private Notes, or transfer ownership
of such Private Notes on the account books maintained by DTC, together, in each
such case, with all accompanying evidences of transfer and authenticity to the
Company, (b) present and deliver such Private Notes for transfer on the books of
the Company, and (c) receive all benefits or otherwise exercise all rights and
incidents of beneficial ownership of such Private Notes, all in accordance with
the terms of the Exchange Offer.
The undersigned represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Private Notes and to
acquire Exchange Notes issuable upon the exchange of such tendered Private
Notes, and that, when the same are accepted for exchange, the Company will
acquire good and unencumbered title to the tendered Private Notes, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed by the Exchange Agent or the
Company to be necessary or desirable to complete the exchange, assignment and
transfer of tendered Private Notes or transfer ownership of such Private Notes
on the account books maintained by the book-entry transfer facility. The
undersigned further agrees that acceptance of any and all validly tendered
Private Notes by the Company and the issuance of Exchange Notes in exchange
therefor shall constitute performance in full by the Company of its obligations
under the Registration Rights Agreement.
By tendering, each holder of Private Notes represents that the Exchange
Notes acquired in the exchange will be obtained in the ordinary course of such
holder's business, that such holder has no arrangement with any person to
participate in the distribution of such Exchange Notes, that such holder is not
an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act and that such holder is not engaged in, and does not intend to
engage in, a distribution of the Exchange Notes. Any holder of Private Notes who
is an affiliate of the Company or who tenders Private Notes in the Exchange
Offer for the purpose of participating in a distribution of the Exchange Notes
cannot rely on the position of the staff of the Securities and Exchange
Commission (the "Commission") enunciated in its series of interpretive
"no-action" letters with respect to exchange offers and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction.
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer holding Private Notes that
were acquired for its own account 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
Exchange Notes received in respect of such Private Notes pursuant to the
Exchange Offer, however, by so acknowledging and by delivering a prospectus in
connection with the exchange of Private Notes, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
All authority conferred or agreed to be conferred pursuant to 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 personal and legal representatives of the undersigned and
shall not be affected by, and shall survive, the death or incapacity of the
undersigned. Private Notes properly tendered may be withdrawn at any time prior
to the Expiration Date in accordance with the terms of this Letter of
Transmittal.
The Exchange Offer is subject to certain conditions, each of which may be
waived or modified by the Company, in whole or in part, at any time and from
time to time, as described in the Prospectus under the caption "The Exchange
Offer, Conditions." The undersigned recognizes that as a result of such
conditions the Company may not be required to accept for exchange, or to issue
Exchange Notes in exchange for, any of the Private Notes properly tendered
hereby. In such event, the tendered Private Notes not accepted for exchange will
be returned to the undersigned without cost to the undersigned at the address
shown below the undersigned's signature(s) unless otherwise indicated under
"Special Issuance Instructions" below.
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Unless otherwise indicated under "Special Issuance Instructions" below,
please return any certificates representing Private Notes not tendered or not
accepted for exchange in the name(s) of the holder(s) appearing under
"Description of Private Notes Tendered." Similarly, unless otherwise indicated
under "Special Delivery Instructions," please mail any certificates representing
Private Notes not tendered or not accepted for exchange (and accompanying
document, as appropriate) to the address(es) of the holder(s) appearing under
"Description of Private Notes Tendered." In the event that both the "Special
Issuance Instructions" and the "Special Delivery Instructions" are completed,
please issue the certificates representing the Exchange Notes issued in exchange
for the Private Notes accepted for exchange in the name(s) of, and return any
Private Notes not tendered or not accepted for exchange to, the person or
persons so indicated. Unless otherwise indicated under "Special Issuance
Instructions," in the case of a book-entry delivery of Private Notes, please
credit the account maintained at DTC with any Private Notes not tendered or not
accepted for exchange. The undersigned recognizes that the Company does not have
any obligation pursuant to the Special Issuance Instructions, to transfer any
Private Notes from the name of the holder thereof if the Company does not accept
for exchange any of the Private Notes so tendered or if such transfer would not
be in compliance with any transfer restrictions applicable to such Private
Notes.
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8) (SEE INSTRUCTIONS 1, 6, 7 AND 8)
To be completed ONLY if the (i) Exchange To be completed ONLY if the Exchange Notes
Notes issued for Private Notes, certificates for issued for Private Notes, certificates for Private
Private Notes in a principal amount not exchanged Notes in a principal amount not exchanged for Exchange
for Exchange Notes, or Private Notes (if any) not Notes, or Private Notes (if any) not tendered for
tendered for exchange are to be issued in the name exchange are to be sent to someone other than the
of someone other than the undersigned, or (ii) undersigned or to the undersigned at an address other
Private Notes tendered by book-entry transfer which than that shown above.
are not exchanged are to be returned by credit to
an account maintained at DTC other than the account Mail to:
indicated above.
Name:
Issue to: --------------------------------------------------
(PLEASE PRINT)
Name:
--------------------------------------------- Address:
(PLEASE PRINT) -----------------------------------------------
Address:
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(INCLUDE ZIP CODE)
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(INCLUDE ZIP CODE) -------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
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(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
Credit Private Notes not exchanged and
delivered by book-entry transfer to the DTC account
set forth below:
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(ACCOUNT NUMBER)
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SIGN HERE TO TENDER YOUR PRIVATE NOTES IN THE EXCHANGE OFFER
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SIGNATURE(S) OF HOLDER(S) OF PRIVATE NOTES
Dated:
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(Must be signed by the registered holder(s) of Private Notes exactly as
name(s) appear(s) on certificate(s) representing the Private Notes or on a
security position listing or by person(s) authorized to become registered
holder(s) by certificates and documents transmitted herewith. If signature is by
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or other person acting in a fiduciary or representative capacity,
please provide the following information and see Instruction 6.)
Capacity (Full Title)
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Name(s)
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(PLEASE TYPE OR PRINT)
Address
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(INCLUDE ZIP CODE)
Area Code and Telephone Number
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Tax Identification or Social Security No.
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GUARANTEE OF SIGNATURE(S)
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 6)
Authorized Signature
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Name
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(PLEASE TYPE OR PRINT)
Title
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Name of Firm
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Address
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(INCLUDE ZIP CODE)
Area Code and Telephone Number
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Dated:
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IMPORTANT: COMPLETE AND SIGN THE SUBSTITUTE FORM W-9 IN THIS LETTER OF
TRANSMITTAL
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Signatures on this Letter of Transmittal need
not be guaranteed if the Private Notes tendered hereby are tendered (a) by the
registered holder(s) of Private Notes thereof, unless such holder has completed
either the box entitled "Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" above, or (b) or the account of a firm that is a
member of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
having an office in the United States (each, an "Eligible Institution"). In all
other cases, all signatures on this Letter of Transmittal must be guaranteed by
in Eligible Institution. Persons who are beneficial owners of Private Notes but
are not the registered holder(s) and who seek to tender Private Notes for
exchange should (i) contact the registered holder(s) of such Private Notes and
instruct such registered holder(s) to tender on such beneficial owner's behalf,
(ii) obtain and include with this Letter of Transmittal, Private Notes properly
endorsed for transfer by the registered holder(s) or accompanied by a properly
completed bond power from the registered holder(s) with signatures on the
endorsement or bond power guaranteed by an Eligible Institution, or (iii) effect
a record transfer of such Private Notes from the registered holder(s) to such
beneficial owner and comply with the requirements applicable to registered
holder(s) for tendering Private Notes for exchange prior to the Expiration Date.
See Instruction 6.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR PRIVATE
NOTES OR BOOK-ENTRY CONFIRMATIONS; GUARANTEED DELIVERY PROCEDURES. This Letter
of Transmittal is to be completed by registered holder(s) if certificates
representing Private Notes are to be forwarded herewith. All physically
delivered Private Notes, as well as a properly completed and duly executed
Letter of Transmittal (or manually signed facsimile thereof) and any other
required documents, must be received by the Exchange Agent at its address set
forth herein prior to the Expiration Date or the tendering holder must comply
with the guaranteed delivery procedures set forth below. Delivery of the
documents to DTC does not constitute delivery to the Exchange Agent.
The method of delivery of this Letter of Transmittal, Private Notes and all
other required documents to the Exchange Agent is at the election and risk of
the holder thereof. If such delivery is by mail, it is suggested that holders
use properly insured registered mail, return receipt requested, and that the
mailing be sufficiently in advance of the Expiration Date, to permit delivery to
the Exchange Agent prior to such date. Except as otherwise provided below, the
delivery will be deemed made when actually received or confirmed by the Exchange
Agent. This Letter of Transmittal and Private Notes tendered for exchange should
be sent only to the Exchange Agent, not to the Company.
A holder who desires to tender Private Notes for exchange and who cannot
comply with the procedures set forth herein for tender on a timely basis or
whose Private Notes are not immediately available must comply with the
guaranteed delivery procedures described below.
If holders desire to tender Private Notes for exchange pursuant to the
Exchange Offer and (i) certificates representing such Private Notes are not lost
but are not immediately available, (ii) time will not permit this Letter of
Transmittal, certificates representing Private Notes or other required documents
to reach the Exchange Agent prior to the Expiration Date, or (iii) the
procedures for book-entry transfer cannot be completed prior to the Expiration
Date, such holder may effect a tender of Private Notes for exchange in
accordance with the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer--Procedures for Tendering."
Pursuant to the guaranteed delivery procedures:
(a) such tender must be made by or through an Eligible Institution
(defined as an institution that is a recognized member in good standing of
a Medallion Signature Guarantee Program recognized by the Exchange Agent,
i.e., the Securities Transfer Agent's Medallion Program, the Stock
Exchange's Medallion Program and the New York Stock Exchange's Medallion
Signature Program);
(b) prior to the Expiration Date, the Exchange Agent must have
received from such Eligible Institution, at one of the addresses of the
Exchange Agent set forth herein, a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile, mail or hand delivery)
substantially in the form provided by the Company setting forth the name(s)
and address(es) of the registered holder(s) of such Private Notes, the
certificate number(s) and the principal amount of Private Notes being
tendered for exchange and stating that the tender is being made thereby and
guaranteeing that, within three (3) New York Stock Exchange trading days
after the Expiration Date, a properly completed and duly executed Letter of
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Transmittal, or a facsimile thereof, together with certificates
representing the Private Notes (or confirmation of book-entry transfer of
such Private Notes into the Exchange Agent's account with DTC and an
Agent's Message) and any other documents required by this Letter of
Transmittal and the instructions hereto, will be deposited by such Eligible
Institution with the Exchange Agent; and
(c) this Letter of Transmittal or a facsimile thereof, properly
completed together with duly executed certificates for all physically
delivered Private Notes in proper form for transfer (or confirmation of
book-entry transfer of such Private Notes into the Exchange Agent's account
with DTC as described above) and all other required documents must be
received by the Exchange Agent within three (3) New York Stock Exchange
trading days after the date of the Notice of Guaranteed Delivery.
All tendering holders, by execution of this Letter of Transmittal, waive
any right to receive any notice of the acceptance of their Private Notes for
exchange.
3. INADEQUATE SPACE. If the space provided in the box entitled
"Description of Private Notes Tendered" above is adequate, the certificate
numbers and principal amounts of Private Notes tendered should be listed on a
separate signed schedule affixed hereto.
4. WITHDRAWAL OF TENDERS. A tender of Private Notes may be withdrawn at any
time prior to the Expiration Date by delivery of written or facsimile (receipt
confirmed by telephone) notice of withdrawal to the Exchange Agent at the
address set forth on the cover of this Letter of Transmittal. To be effective, a
notice of withdrawal must (i) specify the name of the person having tendered the
Private Notes to be withdrawn (the "Depositor"), (ii) identify the Private Notes
to be withdrawn (including the certificate number or numbers and principal
amount of such Private Notes), (iii) specify the principal amount of Private
Notes to be withdrawn, (iv) include a statement that such holder is withdrawing
his election to have such Private Notes exchanged, (v) be signed by the holder
in the same manner as the original signature on the Letter of Transmittal by
which such Private Notes were tendered or as otherwise described above
(including any required signature guarantees) or be accompanied by documents of
transfer sufficient to have the trustee under the Indenture register the
transfer of such Private Notes into the name of the person withdrawing the
tender, and (vi) specify the name in which any such Private Notes are to be
registered, if different from that of the Depositor. The Exchange Agent will
return the properly withdrawn Private Notes promptly following receipt of notice
of withdrawal. If Private Notes have been tendered pursuant to the procedure for
book-entry transfer, any notice of withdrawal must specify the name and number
of the account at the book-entry transfer facility. All questions as to the
validity of notices of withdrawals, including, time of receipt, will be
determined by the Company and such determination will be final and binding on
all parties.
Any Private Notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the Exchange Offer. Any Private 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 (or, in the
case of Private Notes tendered by book-entry transfer into the Exchange Agent's
account at the book-entry transfer facility pursuant to the book-entry transfer
procedures described above, such Private Notes will be credited to an account
with such book-entry transfer facility specified by the holder) as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Private Notes may be retendered by following one of
the procedures described under the caption "The Exchange Offer--Procedures for
Tendering" in the Prospectus at any time prior to the Expiration Date.
5. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS OF PRIVATE NOTES WHO TENDER
BY BOOK-ENTRY TRANSFER). Tenders of Private Notes will be accepted only in
integral multiples of $1,000 principal amount. If a tender for exchange is to be
made with respect to less than the entire principal amount of any Private Notes,
fill in the principal amount of Private Notes which are tendered for exchange in
column (4) of the box entitled "Description of Private Notes Tendered," as more
fully described in the footnotes thereto. In the case of a partial tender for
exchange, a new certificate, in fully registered form, for the remainder of the
principal amount of the Private Notes, will be sent to the holders of Private
Notes unless otherwise indicated in the boxes entitled "Special Issuance
Instructions" or "Special Delivery Instructions" above, as soon as practicable
after the expiration or termination of the Exchange Offer.
6. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the holder(s) of the Private Notes
tendered for exchange hereby, the signature(s) must correspond exactly with the
name(s) as written on the face of the certificate(s) without alteration,
enlargement or any change whatsoever.
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If any of the Private Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal. If any
tendered Private 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 and any necessary or required documents as
there are names in which certificates are held.
If this Letter of Transmittal or any certificates 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 proper evidence satisfactory to the
Company of its authority so to act must be submitted, unless waived by the
Company.
If this Letter of Transmittal is signed by the holder(s) of the Private
Notes listed and transmitted hereby, no endorsements of certificates or separate
bond powers are required unless certificates for Private Notes not tendered or
not accepted for exchange are to be issued or returned in the name of a person
other than for the holder(s) thereof. Signatures on such certificates must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Private Notes, the certificates representing such
Private Notes must be properly endorsed for transfer by the registered holder or
be accompanied by a properly completed bond power from the registered holder, in
either case signed by such registered holder(s) exactly as the name(s) of the
registered holder(s) the Private Notes appear(s) on the certificates. Signatures
on the endorsement or bond power must be guaranteed by an Eligible Institution
(unless signed by an Eligible Institution).
7. TRANSFER TAXES. Except as set forth in this Instruction 7, the Company
will pay or cause to be paid any transfer taxes applicable to the exchange of
Private Notes pursuant to the Exchange Offer. If, however, a transfer tax is
imposed for any reason other than the exchange of Private Notes pursuant to the
Exchange Offer, then the amount of any transfer taxes (whether imposed on the
registered holder(s) or any other persons) will be payable by the tendering
holder. If satisfactory evidence of the payment of such taxes or exemptions
therefrom is not submitted with this Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
8. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If the Exchange Notes are to
be issued or if any Private Notes not tendered or not accepted for exchange are
to be issued or sent to a person other than the person(s) signing this Letter of
Transmittal or to an address other than that shown above, the appropriate boxes
on this Letter of Transmittal should be completed. Holders of Private Notes
tendering Private Notes by book-entry transfer may request that Private Notes
not accepted for exchange be credited to such account maintained at DTC as such
holder may designate.
9. IRREGULARITIES. All questions as to the forms of all documents and the
validity of (including time of receipt) and acceptance of the tenders and
withdrawals of Private Notes will be determined by the Company, in its sole
discretion, which determination shall be final and binding. Alternative,
conditional or contingent tenders will not be considered valid. The Company
reserves the absolute right to reject any or all tenders of Private Notes that
are not in proper form or the acceptance of which would, in the Company's
opinion, be unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Private Notes. The
Company's interpretations of the terms and conditions of the Exchange Offer
(including the instructions in this Letter of Transmittal) will be final and
binding. Any defect or irregularity in connection with tenders of Private Notes
must be cured within such time as the Company determines, unless waived by the
Company. Tenders of Private Notes shall not be deemed to have been made until
all defects or irregularities have been waived by the Company or cured. Neither
the Company, the Exchange Agent, nor any other person will be under any duty to
give notice of any defects or irregularities in tenders of Private Notes, or
will incur any liability to registered holders of Private Notes for failure to
give such notice.
10. WAIVER OF CONDITIONS. To the extent permitted by applicable law, the
Company reserves the right to waive any and all conditions to the Exchange Offer
as described under "The Exchange Offer--Conditions of the Exchange Offer" in the
Prospectus, and accept for exchange any Private Notes tendered.
11. TAX IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Federal income tax
law generally requires that a holder of Private Notes whose tendered Private
Notes are accepted for exchange or such holder's assignee (in either case, the
"Payee"), provide the Exchange Agent (the "Payor") with such Payee's correct
Taxpayer Identification Number ("TIN"), which, in the case of a Payee who is an
individual, is such Payee's social security number. If the
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Payor is not provided with the correct TIN or an adequate basis for an
exemption, such Payee may be subject to a $50 penalty imposed by the Internal
Revenue Service and backup withholding in an amount equal to 31% of the gross
proceeds received pursuant to the Exchange Offer. If withholding results in an
overpayment of taxes, a refund may be obtained.
To prevent backup withholding, each Payee must provide such Payee's correct
TIN by completing the "Substitute Form W-9" set forth herein, certifying that
the TIN provided is correct (or that such Payee is awaiting a TIN) and that (i)
the Payee is exempt from backup withholding, (ii) the Payee has not been
notified by the Internal Revenue Service that such Payee is subject to backup
withholding as a result of a failure to report all interest or dividends, or
(iii) the Internal Revenue Service has notified the Payee that such Payee is no
longer subject to backup withholding.
If the Payee does not have a TIN, such Payee should consult the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 (the "W-9 Guidelines") for instructions on applying for a TIN, write
"Applied For" in the space for the TIN in Part 1 of the Substitute Form W-9, and
sign and date the Substitute Form W-9 and the Certificate of Awaiting Taxpayer
Identification Number set forth herein. If the Payee does not provide such
Payee's TIN to the Payor within 60 days, backup withholding will begin and
continue until such Payee furnishes such Payee's TIN to the Payor. Note: Writing
"Applied For" on the form means that the Payee has already applied for a TIN or
that such Payee intends to apply for one in the near future.
If Private Notes are held in more than one name or are not in the name of
the actual owner, consult the W-9 Guidelines for information on which TIN to
report.
Exempt Payees (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. To prevent possible erroneous backup withholding, an exempt Payee
must enter its correct TIN in Part I of the Substitute Form W-9, write "Exempt"
in Part 2 of such form and sign and date the form. See the W-9 Guidelines for
additional instructions. In order for a nonresident alien or foreign entity to
qualify as exempt, such person must submit a completed Form W-8, "Certificate of
Foreign Status," signed under penalty of perjury attesting to such exempt
status. Such form may be obtained from the Payor.
12. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES. Any holder of
Private Notes whose Private Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address or telephone number set forth
on the cover of this Letter of Transmittal for further instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
or for additional copies of the Prospectus, this Letter of Transmittal, the
Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 may be directed to the Exchange
Agent at its address set forth on the cover of this Letter of Transmittal.
IMPORTANT- THIS LETTER OF TRANSMITTAL, TOGETHER WITH CERTIFICATES FOR
TENDERED PRIVATE NOTES AND ALL OTHER REQUIRED DOCUMENTS, WITH ANY REQUIRED
SIGNATURE GUARANTEES AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE
EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
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PAYOR'S NAME: THE BANK OF NEW YORK
- ----------------------------------------------------------------------------------------------------------
Part 1 - PLEASE PROVIDE YOUR
TIN IN THE BOX AT RIGHT AND TIN____________________
SUBSTITUTE CERTIFY BY SIGNING AND (Social Security Number
FORM W-9 DATING BELOW or Employer Identification Number)
-------------------------------------------------------------------------
Part 2 - FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING
PLEASE WRITE "EXEMPT" HERE
(SEE INSTRUCTIONS)________________________________________
Department of Part 3 - CERTIFICATION UNDER PENALTIES OF PERJURY, I
the Treasury CERTIFY THAT (1) The number shown on this form is my
Internal correct TIN (or I am waiting for a number to be issued
Revenue Service to me), and (2) I am not subject to backup withholding
because: (a) I am exempt from backup withholding, or
(b) 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
Payor's Request for dividends or (c) the IRS has notified me that I am
Taxpayer Identification no longer subject to backup withholding.
Number ("TIN")
and Certification THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR
CONSENT TO ANY PROVISION OF THIS DOCUMENT OTHER THAN THE
CERTIFICATIONS REQUIRED TO AVOID BACK-UP WITHHOLDING
SIGNATURE___________________ DATE_________________
- -------------------------------- -------------------------------------------------------------------------
You must cross out item (2) of Part 3 above if you have been notified
by the IRS that you are currently subject to backup withholding because of
underreporting interest or dividends on your tax return.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR"
IN PART 1 OF THE SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
CERTIFICATE OF 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 ADMINISTRATIVE 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 PAYOR WITHIN 60 DAYS, THE PAYOR IS
REQUIRED TO WITHHOLD 31 PERCENT OF ALL CASH PAYMENTS MADE TO ME THEREAFTER UNTIL
I PROVIDE A NUMBER.
Signature___________________________________ Date____________________
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31 PERCENT OF ANY CASH PAYMENTS. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
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