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EXHIBIT 99.1
LETTER OF TRANSMITTAL
OFFER TO EXCHANGE
10 3/4% SENIOR NOTES DUE 2006
FOR ANY AND ALL OUTSTANDING
10 3/4% SENIOR NOTES DUE 2006
OF
FRESH FOODS, INC.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON NOVEMBER 2, 1998,
UNLESS EXTENDED BY FRESH FOODS, INC.
THE EXCHANGE AGENT
FOR THE EXCHANGE OFFER IS:
STATE STREET BANK AND TRUST COMPANY
By Hand or Overnight Courier:
State Street Bank and Trust Company
Two International Place
Corporate Trust Window, 4th Floor
Boston, MA 02110
Attn: Kellie Mullen
By Mail:
State Street Bank and Trust Company
Corporate Trust Division
P.O. Box 778
Boston, MA 02102
Attn: Kellie Mullen
or
By Facsimile:
State Street Bank and Trust Company
Corporate Trust Operations
Facsimile Number: (617) 664-5290
Telephone Number: (617) 664-5587
Attn: Kellie Mullen
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used either if certificates of Initial
Notes are to be forwarded herewith to the Exchange Agent or if delivery of
Initial Notes is to be made by book-entry transfer to an account maintained by
the Exchange Agent at The Depository Trust Company ("DTC"), pursuant to the
procedures set forth in the section of the Prospectus entitled "The Exchange
Offer -- Book-Entry Transfer." Delivery of documents to the Book-Entry Transfer
Facility does not constitute delivery to the Exchange Agent.
The term "Holder," as used herein with respect to the Exchange Offer, means
any person in whose name Initial Notes are registered on the books of the
Company or any other person who has obtained a properly completed bond power
from the registered Holder or any person whose Initial Notes are held of record
by DTC.
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Holders of Initial Notes that are tendering by book-entry transfer to the
Exchange Agent's account at DTC can execute the tender through the DTC Automated
Tender Offer Program (the "ATOP"), for which this transaction is eligible. A DTC
participant should transmit its acceptance of the Exchange Offer 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" to the Exchange
Agent confirming the participant's acceptance. If the delivery of Initial Notes
is to be made by book-entry transfer to the account maintained by the Exchange
Agent at DTC, then this Letter of Transmittal need not be manually executed;
provided, however, that tenders of the Initial Notes must be effected in
accordance with the procedures mandated for the ATOP and the procedures set
forth in the Prospectus (as defined below).
Holders whose Initial Notes are not immediately available or who cannot
deliver their Initial Notes and all other documents required hereby to the
Exchange Agent on or prior to the Expiration Date may tender their Initial Notes
according to the guaranteed delivery procedure set forth in the Prospectus under
the caption "The Exchange Offer -- Guaranteed Delivery Procedure."
The undersigned must check the appropriate boxes at page 6 below and sign
this Letter of Transmittal to indicate the action the undersigned desires to
take with respect to the Exchange Offer.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Prospectus dated October 1,
1998 (the "Prospectus") of Fresh Foods, Inc. (the "Company"), and this Letter of
Transmittal (the "Letter of Transmittal"), which together describe the Company's
offer (the "Exchange Offer") to exchange $1,000 in principal amount of 10 3/4%
Senior Notes Due 2006 (the "Exchange Notes"), for each $1,000 in principal
amount of outstanding 10 3/4% Senior Notes Due 2006 (the "Initial Notes"). The
terms of the Exchange Notes are substantially identical in all respects
(including principal amount, interest rate and maturity) to the terms of the
Initial Notes for which they may be exchanged pursuant to the Exchange Offer,
except that the Exchange Notes are freely transferable by Holders thereof
(except as provided herein or in the Prospectus) and are issued without any
right to registration under the Securities Act of 1933, as amended (the
"Securities Act"). Capitalized terms used herein but not defined herein have the
meanings ascribed to them in the Prospectus.
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of the Initial
Notes indicated in Box 1, below. The undersigned is the registered owner of all
the Initial Notes, and the undersigned represents that it has received from each
beneficial owner of tendered Initial Notes ("beneficial owner(s)") a duly
completed and executed form of "Instructions to Registered Holder from
Beneficial Owner" accompanying this Letter of Transmittal, instructing the
undersigned to take the action described in this Letter of Transmittal.
Subject to, and effective upon, the acceptance for exchange of the Initial
Notes tendered herewith, the undersigned hereby irrevocably exchanges, assigns
and transfers to, or upon the order of, the Company all right, title and
interest in and to such Initial Notes. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent the true and lawful agent and
attorney-in-fact of the undersigned (with full knowledge that said Exchange
Agent acts as the agent of the Company in connection with the Exchange Offer) to
cause the Initial Notes to be assigned, transferred and exchanged. The
undersigned agrees that acceptance of any and all validly tendered Initial 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 and that the Company and the Guarantors shall have
no further obligations or liabilities thereunder.
The undersigned hereby represents and warrants that the undersigned accepts
the terms and conditions of the Exchange Offer and has full power and authority
to tender, exchange, assign and transfer the Initial Notes tendered hereby and
to acquire Exchange Notes issuable upon the exchange of such tendered Initial
Notes, and that, when such tendered Initial Notes are accepted for exchange, the
Company will acquire good and unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claim. The undersigned and each beneficial owner will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or the Company to
be necessary or desirable to complete and give effect to the transactions
contemplated hereof.
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The undersigned represents that it and each beneficial owner acknowledge
that the Exchange Offer is being made in reliance on an interpretation by the
staff of the Securities and Exchange Commission (the "SEC"), not issued in
connection with the Company or the Exchange Offer, to the effect that the
Exchange Notes issued pursuant to the Exchange Offer in exchange for the Initial
Notes may be offered for resale, resold and otherwise transferred by Holders
thereof (other than any such Holder that is a broker-dealer or an "affiliate" of
the Company within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such Exchange Notes are acquired in the ordinary
course of such Holders' business, such Holders have no arrangement or
understanding with any person to participate in the distribution of such
Exchange Notes and neither such Holder nor any such other person is engaging in
or intends to engage in a distribution of the Exchange Notes, and, as to
broker-dealer prospectus delivery requirements, subject to the provisions of the
paragraph below. See "Shearman & Sterling," SEC No-Action Letter (available July
2, 1993). Any Holder who tenders in the Exchange Offer for the purpose of
participating in a distribution of the Exchange Notes cannot rely on such
interpretation by the staff of the SEC and must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction. See "Morgan Stanley & Co., Inc." SEC No-Action
Letter (available June 5, 1991), and "Exxon Capital Holdings Corporation," SEC
No-Action Letter (available May 13, 1988).
The undersigned hereby represents and warrants that (i) the Exchange Notes
or interests therein received by the undersigned and any beneficial owner(s)
pursuant to the Exchange Offer are being acquired by the undersigned and any
beneficial owner(s) in the ordinary course of business of the undersigned and
any beneficial owner(s) receiving such Exchange Notes, (ii) neither the
undersigned nor any beneficial owner(s) is participating, intends to participate
or has an arrangement or understanding with any person to participate in the
distribution of such Exchange Notes, (iii) the undersigned and any beneficial
owner(s) acknowledge that any person who is a broker-dealer under the Exchange
Act or is participating in the Exchange Offer for the purpose of distributing
the Exchange Notes must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale of the
Exchange Notes and any interest therein acquired by such person and cannot rely
on the position of the staff of the SEC set forth in the no-action letters that
are discussed above, (iv) the undersigned and each beneficial owner understand
that a secondary resale transaction described in the preceding clause (iii) and
any resale of the Exchange Notes and any interest therein obtained by the
undersigned and in exchange for the Initial Notes originally acquired by the
undersigned directly from the Company should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 and 508, as applicable, of Regulation S-K of the SEC and
(v) neither the undersigned nor any beneficial owner(s) is an "affiliate," as
defined in Rule 405 under the Securities Act, of the Company, or if either the
undersigned or any beneficial owner(s) is an affiliate, that the undersigned and
any such beneficial owner(s) will comply with the prospectus delivery
requirements of the Securities Act in connection with the disposition of any
Exchange Notes to the extent applicable. If the undersigned or any beneficial
owner(s) is a broker-dealer, the undersigned further represents that (x) it and
any such beneficial owner(s) acquired Initial Notes for the undersigned's and
any such beneficial owner's own account as a result of market-making activities
or other trading activities, (y) neither the undersigned nor any beneficial
owner(s) has entered into any arrangement or understanding with the Company or
any "affiliate" of the Company (within the meaning of Rule 405 under the
Securities Act) to distribute the Exchange Notes to be received in the Exchange
Offer and (z) the undersigned and any beneficial owner(s) acknowledge that the
undersigned and any beneficial owner(s) will deliver a copy of a prospectus
meeting the requirements of the Securities Act in connection with any resale of
Exchange Notes. By so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. The Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with the resales of Exchange Notes received in exchange for Initial Notes where
Initial Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company intends to make the
Prospectus (as it may be amended or supplemented) available to any broker-dealer
for use in connection with any such resale for a period of 180 days after the
expiration date of the Exchange Offer.
The Exchange Offer is not being made to, nor will tenders be accepted from
or on behalf of, Holders of the Initial Notes in any jurisdiction in which the
making of the Exchange Offer or acceptance thereof would not be in compliance
with the laws of such jurisdiction or would otherwise not be in compliance with
any provision of any applicable securities law. In this connection, the
undersigned hereby represents and warrants that the information set forth in Box
2 is true and correct.
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The Exchange Offer is subject to certain conditions as set forth in the
Prospectus under the caption "The Exchange Offer -- Certain Conditions to the
Exchange Offer." The undersigned recognizes that as a result of these conditions
(which may be waived, in whole or in part, by the Company), as more particularly
set forth in the Prospectus, the Company may not be required to exchange any of
the Initial Notes tendered hereby, and in such event, the Initial Notes not
exchanged will be returned to the undersigned at the address indicated below.
The undersigned acknowledges that prior to the Exchange Offer, there has been no
public market for the Initial Notes or the Exchange Notes. The Company does not
intend to list the Exchange Notes on a national securities exchange. There can
be no assurance that an active market for the Exchange Notes will develop. The
undersigned understands and acknowledges that the Company reserves the right in
its sole discretion to purchase or make offers for any Initial Notes that remain
outstanding subsequent to the Expiration Date and, to the extent permitted by
applicable law, purchase Initial Notes in the open market, in privately
negotiated transactions or otherwise.
The undersigned understands that tenders of the Initial Notes pursuant to
any one of the procedures described in the Prospectus under the caption "The
Exchange Offer" and in the instructions hereto will constitute a binding
agreement between the undersigned and the Company in accordance with the terms
and subject to the conditions of the Exchange Offer.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Letters of Transmittal or Initial Notes tendered for
exchange, and of withdrawal of the tendered Initial Notes, will be determined by
the Company in its sole discretion, which determination shall be final and
binding. The Company reserves the absolute right to reject any and all tenders
of any particular Initial Notes not properly tendered or if, in the sole
judgment of the Company, (i) the Exchange Offer would violate any law, statute,
rule or regulation or an interpretation thereof of the SEC staff or (ii) any
governmental approval has not been obtained, which approval the Company deems
necessary for the consummation of the Exchange Offer. The Company also reserves
the absolute right to waive any defects or irregularities as to any particular
Initial Notes or conditions of the Exchange Offer either before or after the
Expiration Date (including the right to waive the ineligibility of any Holder
who seeks to tender Initial Notes in the Exchange Offer). The interpretation of
the terms and conditions of the Exchange Offer by the Company shall be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Initial Notes for exchange must be cured within such
reasonable period of time as the Company shall determine. None of the Company,
the Guarantors, the Exchange Agent nor any other person shall be under any duty
to give notification of any defect or irregularity with respect to any tender of
Initial Notes for exchange, nor shall any of them incur any liability for
failure to give such notification. Tenders of Initial Notes will not be deemed
to have been made until such irregularities have been cured or waived. Any
Initial Notes received by the Exchange Agent that are not properly tendered and
as to which the defects or irregularities have not been cured or waived will be
returned without cost to such Holder by the Exchange Agent to the tendering
Holders of Initial Notes, as soon as practicable following the Expiration Date.
All authority herein conferred or agreed to be conferred shall not be
affected by, and 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) shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned and any beneficial owner(s). The
undersigned also agrees that except as provided in the Prospectus and set forth
in Instruction 3 below, the Initial Notes tendered hereby cannot be withdrawn.
Certificates for all Exchange Notes delivered in exchange for tendered
Initial Notes and any Initial Notes delivered herewith but not exchanged, and
registered in the name of the undersigned, shall be delivered to the undersigned
at the address shown below the signature of the undersigned, unless otherwise
indicated on page 6.
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THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF INITIAL
NOTES TENDERED HEREWITH" BELOW AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE INITIAL NOTES AND MADE THE REPRESENTATIONS DESCRIBED HEREIN AND IN
THE PROSPECTUS.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
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SIGNATURE(S) OF HOLDER(S)
Date: , 1998
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(Must be signed by registered Holder(s) exactly as name(s) appear(s) on
certificate(s) of Initial Notes. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation, or other
person acting in a fiduciary or representative capacity, please set forth the
full title of such person.) See Instruction 4.
Name(s):
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(PLEASE PRINT)
Capacity (full title):
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Address:
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(INCLUDING ZIP CODE)
Area Code and Telephone No.: ( )
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Taxpayer Identification No.:
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GUARANTEE OF SIGNATURE(S)
(IF REQUIRED -- SEE INSTRUCTION 4)
Authorized Signature:
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Name:
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Title:
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Address:
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Name of Firm:
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Area Code and Telephone No.: ( )
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Date: , 1998
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[ ] CHECK HERE IF YOU ARE TENDERING INITIAL NOTES IN CERTIFICATED FORM AND WISH
TO RECEIVE AN INTEREST IN THE GLOBAL EXCHANGE NOTE AND COMPLETE THE
FOLLOWING:
Account Number:
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Transaction Code Number:
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[ ] CHECK HERE IF YOU ARE TENDERING INITIAL NOTES IN CERTIFICATED FORM AND WISH
TO RECEIVE EXCHANGE NOTES IN CERTIFICATED FORM.
[ ] CHECK HERE IF TENDERED INITIAL NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: __________ [ ] The Depository Trust Company
Account Number:
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Transaction Code Number:
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[ ] CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s):
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Name of Eligible Institution that Guaranteed Delivery:
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If Delivered by Book-Entry Transfer:
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Account Number:
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[ ] CHECK HERE ONLY IF EXCHANGE NOTES OR UNEXCHANGED INITIAL NOTES DELIVERED
HEREWITH ARE TO BE SENT TO SOMEONE OTHER THAN THE UNDERSIGNED, OR TO THE
UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail Exchange Notes to:
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Name:
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(PLEASE PRINT)
Address:
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Tax Identification Number:
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Social Security No.:
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[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
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Address:
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PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
A Holder that is a participant in The Depository Trust Company's system may
utilize The Depository Trust Company's Automated Tender Offer Program to tender
Initial Notes.
List in Box 1 the Initial Notes to which this Letter of Transmittal
relates. If the space provided below is inadequate, information should be listed
on a separate signed schedule affixed hereto.
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BOX 1
DESCRIPTION OF INITIAL NOTES TENDERED HEREWITH
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AGGREGATE
PRINCIPAL AMOUNT
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE REPRESENTED BY PRINCIPAL AMOUNT
(PLEASE FILL IN) NUMBER(S)* INITIAL NOTES* TENDERED**
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TOTAL
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* Need not be completed by book-entry Holders.
** Unless otherwise indicated, the Holder will be deemed to have tendered
the full aggregate principal amount represented by such Initial Notes.
See Instruction 3.
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BOX 2
BENEFICIAL OWNERS(S)
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STATE OF PRINCIPAL RESIDENCE OR PRINCIPAL PLACE OF
BUSINESS PRINCIPAL AMOUNT OF TENDERED INITIAL NOTES
OF EACH BENEFICIAL OWNER OF TENDERED INITIAL NOTES HELD FOR ACCOUNT OF BENEFICIAL OWNER
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES.
Certificates for all physically delivered Initial Notes or confirmation of
any book-entry transfer to the Exchange Agent's account at the Book-Entry
Transfer Facility of Initial Notes tendered by book-entry transfer, as well as a
properly completed and duly executed copy of this Letter of Transmittal or
facsimile thereof, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at any of its addresses set
forth on the front page of this Letter of Transmittal prior to 5:00 p.m., New
York City time, on the Expiration Date (as defined in the Prospectus).
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE INITIAL NOTES AND
ANY OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER, AND
EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, IT IS
SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED BE USED, PROPER
INSURANCE BE OBTAINED AND THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE
EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE
EXPIRATION DATE.
Holders who wish to tender their Initial Notes but whose Initial Notes are
not immediately available or who cannot deliver their Initial Notes and all
other required documents to the Exchange Agent prior to 5:00 p.m., New York City
time, on the Expiration Date or comply with book-entry transfer procedures on a
timely basis may tender their Initial Notes pursuant to the guaranteed delivery
procedure set forth in the Prospectus under "The Exchange Offer -- Guaranteed
Delivery Procedure." Such Holders' tender may be effected if:
(a) such tender is made by or through an Eligible Institution (as
defined below);
(b) on or prior to the Expiration Date, the Exchange Agent has
received from such Eligible Institution (a) either a properly completed and
duly executed Letter of Transmittal (or a facsimile thereof) or a properly
transmitted Agent's Message and (b) a Notice of Guaranteed Delivery,
substantially in the form provided by the Company, by hand or mail, or
facsimile transmission (receipt confirmed by telephone and an original
delivered by guaranteed overnight courier) setting forth the name and
address of such Holder of Initial Notes and the amount of Initial Notes
tendered, stating that the tender is being made thereby and guaranteeing
that within three business days (as defined in the Prospectus) after the
Expiration Date, that the Initial Notes in proper form for transfer or a
Book-Entry Confirmation and all other documents required by this Letter of
Transmittal will be deposited by the Eligible Institution with the Exchange
Agent; and
(c) a Book-Entry Confirmation or the certificates relating to the
Initial Notes in registered form and all other documents required by this
Letter of Transmittal, are received by the Exchange Agent within three
business days (as defined in the Prospectus) after the Expiration Date.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders, by execution of this Letter of Transmittal (or
facsimile thereof), shall waive any right to receive notice of the acceptance of
the Initial Notes for exchange.
2. BENEFICIAL OWNER INSTRUCTIONS TO REGISTERED HOLDERS.
Only a Holder in whose name tendered Initial 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 Letter of Transmittal. Any
beneficial owner of tendered Initial Notes who is not the registered holder must
arrange promptly with the registered holder to execute and deliver this Letter
of Transmittal on his or her behalf
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through the execution and delivery to the registered Holder of the "Instructions
to Registered Holder from Beneficial Owner" form accompanying this Letter of
Transmittal.
3. PARTIAL TENDER; WITHDRAWALS.
If less than the entire principal amount of Initial Notes evidenced by a
submitted certificate is tendered, the tendering Holder should fill in the
principal amount tendered in the box entitled "Principal Amount Tendered." A
newly issued certificate for the principal amount of Initial Notes submitted but
not tendered will be sent to such Holder as soon as practicable after the
Expiration Date. All Initial Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
Initial Notes tendered pursuant to the Exchange Offer may be withdrawn at
any time prior to the Expiration Date. For a withdrawal to be effective, a
written notice of withdrawal sent by telegram, facsimile transmission (receipt
confirmed by telephone and an original delivered by guaranteed overnight
courier) or letter must be received by the Exchange Agent at the address set
forth herein prior to the Expiration Date. Any such notice of withdrawal must
(i) specify the name of the person having tendered the Initial Notes to be
withdrawn (the "Depositor"), (ii) identify the Initial Notes to be withdrawn
(including the certificate number or numbers of such Initial Notes and the
principal amount of each such Initial Note), (iii) specify the principal amount
of Initial Notes to be withdrawn, (iv) include a statement that such Holder is
withdrawing his election to have such Initial Notes exchanged, (v) be signed by
the Holder in the same manner as the original signature on the Letter of
Transmittal by which such Initial Notes were tendered or as otherwise described
in the Prospectus (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 Initial Notes into the name of the
person withdrawing the tender and (vi) specify the name in which any such
Initial Notes are to be registered, if different from that of the Depositor. The
Exchange Agent will return the properly withdrawn Initial Notes promptly
following receipt of notice of withdrawal. If Initial 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
to be credited with the withdrawn Initial Notes or otherwise comply with the
Book-Entry Transfer Facility procedure. All questions as to the validity, form
and eligibility of such notices of withdrawals, including time of receipt, will
be determined by the Company and such determination will be final and binding on
all parties.
4. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered Holder(s) of the
Initial Notes tendered hereby, the signature must correspond with the name(s) as
written on the face of the certificates without alteration or any change
whatsoever.
If any of the Initial Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If any of the Initial Notes tendered hereby are registered in several
names, it will be necessary to complete, sign and submit as many separate copies
of this Letter of Transmittal as there are different registrations of Initial
Notes.
When this Letter of Transmittal is signed by the registered Holder or
Holders (which term, for the purposes described herein, shall include the
Book-Entry Transfer Facility whose name appears on a security listing as the
owner of the Initial Notes) of Initial Notes listed and tendered hereby, no
endorsements of certificates or separate written instruments of transfer or
exchange are required.
If this Letter of Transmittal is signed by a person other than the
registered Holder or Holders of the Initial Notes listed, such Initial Notes
must be endorsed or accompanied by separate written instruments of transfer or
exchange in form satisfactory to the Company and duly executed by the registered
Holder, in either case signed exactly as the name or names of the registered
Holder or Holders appear(s) on the Initial Notes.
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If this Letter of Transmittal or any certificates or separate written
instruments of transfer or exchange are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of a corporation or
others acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
Endorsements on certificates or signatures on separate written instruments
of transfer or exchange required by this Instruction 4 must be guaranteed by an
Eligible Institution.
Signatures on this Letter of Transmittal or notice of withdrawal need not
be guaranteed by an Eligible Institution, provided the Initial Notes are
tendered: (i) by a registered Holder of such Initial Notes or (ii) for the
account of an Eligible Institution.
For purposes of this Letter of Transmittal, an "Eligible Institution" shall
mean any bank, broker, dealer, credit union, savings association, clearing
agency or other institution that is a member of a recognized signature guarantee
medallion program within the meaning of Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended.
5. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Initial Notes pursuant to the Exchange Offer. If, however, certificates
representing Exchange Notes or Initial Notes for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the registered Holder of the Initial Notes tendered,
or if tendered Initial Notes are registered in the name of any person other than
the person signing the Letter of Transmittal, or if a transfer tax is imposed
for any reason other than the exchange of Initial Notes pursuant to the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the
registered Holder or any other persons) will be payable by the tendering Holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering Holder.
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the Initial Notes listed in this Letter of
Transmittal.
6. MUTILATED, LOST, STOLEN OR DESTROYED INITIAL NOTES.
Any Holder whose Initial Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions.
7. ACCEPTANCE OF TENDERED INITIAL NOTES AND ISSUANCE OF EXCHANGE NOTES; RETURN
OF INITIAL NOTES.
Subject to the terms and conditions of the Exchange Offer, the Company will
accept for exchange all validly tendered Initial Notes promptly after the
Expiration Date and will issue Exchange Notes therefor promptly after acceptance
of the Initial Notes. For purposes of the Exchange Offer, the Company shall be
deemed to have accepted tendered Initial Notes when, as and if the Company has
given written or oral notice thereof to the Exchange Agent. If any tendered
Initial Notes are not exchanged pursuant to the Exchange Offer for any reason,
such unexchanged Initial Notes will be returned, without expense, to the
undersigned at the address indicated above.
8. SUBSTITUTE FORM W-9.
Each Holder of Initial Notes whose Initial Notes are accepted for exchange
(or any other such payee) is required to provide the Exchange Agent with a
correct taxpayer identification number ("TIN"), generally the Holder's Social
Security or federal employer identification number, and certain other
information, on a Substitute Form W-9, a form of which accompanies this Letter
of Transmittal, and to certify that the Holder (or other payee) is not subject
to backup withholding. Failure to provide the information on the Substitute Form
W-9 may subject the Holder (or other payee) to a penalty imposed by the Internal
Revenue Service and
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31% federal income tax backup withholding on payments made in connection with
the Exchange Notes. The box in Part 3 of the Substitute Form W-9 may be checked
if the surrendering Holder of Initial Notes (or other payee) has not been issued
a TIN and has applied for a TIN or intends to apply for a TIN in the near
future. If the box in Part 3 is checked, the Holder of Initial Notes (or other
payee) must also complete the Certificate of Awaiting Taxpayer Identification
Number accompanying this Letter of Transmittal in order to avoid backup
withholding. Notwithstanding that the box in Part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all payments made prior to the time a
properly certified TIN is provided to the Exchange Agent.
The Holder of Initial Notes is required to give the Exchange Agent the TIN
(e.g., social security number or employer identification number) of the record
owner of the Initial Notes. If the Initial Notes are in more than one name or
are not in the name of the beneficial owner, consult the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
Certain Holders of Initial Notes (or other payees) (including, among
others, all corporations and certain foreign individuals) are not subject to
these backup withholding and reporting requirements. However, exempt Holders of
Initial Notes (or other payees) should indicate their exempt status on
Substitute Form W-9. For example, a corporation must complete the Substitute
Form W-9, providing its TIN and indicating that it is exempt from backup
withholding. In order for a foreign individual to qualify as an exempt
recipient, the Holder (or other payee) must submit a Form W-8, signed under
penalties of perjury, attesting to that individual's exempt status. A Form W-8
can be obtained from the Exchange Agent. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for more
instructions.
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