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EXHIBIT 99.1
[LETTER OF TRANSMITTAL WITH RESPECT TO THE EXCHANGE OFFER]
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LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
10 1/8% SENIOR NOTES DUE 2008
OF
FLEMING COMPANIES, INC.
PURSUANT TO THE PROSPECTUS DATED , 2001
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 TENDERS MAY BE WITHDRAWN AT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 THE EXPIRATION DATE.
The Exchange Agent is:
BANKERS TRUST COMPANY
By Registered or Certified Mail: By Hand Delivery:
Bankers Trust Company Bankers Trust Company
Four Albany Street, 4th Floor Four Albany Street, 4th Floor
New York, New York 10006 New York, New York 10006
Attention: Matthew Sherman Attention: Matthew Sherman
By Overnight Delivery: By Facsimile:
Bankers Trust Company (212) 250-6727
Four Albany Street, 4th Floor Attn: Matthew Sherman
New York, New York 10006
Attention: Matthew Sherman Confirm by Telephone:
(212) 250-6992
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE
WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges receipt of the Prospectus dated
, 2001 (the "Prospectus"), of Fleming Companies, Inc., an
Oklahoma corporation (the "Company"), and this Letter of Transmittal (the
"Letter of Transmittal"), which together with the Prospectus constitutes the
Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of
its 10 1/8% Senior Notes due 2008 (the "Exchange Notes") for each $1,000
principal amount of its outstanding 10 1/8% Senior Notes due 2008 (the "Private
Notes"). Recipients of the Prospectus should read the requirements described in
such 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.
The undersigned hereby tenders the Private Notes described in the box
entitled "Description of Private Notes" below pursuant to the terms and
conditions described in the Prospectus and this Letter of Transmittal. The
undersigned is the registered holder of all the Private Notes (the "Holder") and
the undersigned represents that it has received from each beneficial owner of
Private Notes (the "Beneficial Owners") a duly completed and executed form of
"Instruction to Registered Holder from Beneficial Owner" accompanying this
Letter of Transmittal, instructing the undersigned to take the action described
in this Letter of Transmittal.
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PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY COMPLETING ANY BOX
BELOW.
This Letter of Transmittal is to be used by a Holder (i) if certificates
representing Private Notes are to be forwarded herewith and (ii) if a tender is
made pursuant to the guaranteed delivery procedures in the section of the
Prospectus entitled "The Exchange Offer -- Guaranteed Delivery Procedures."
Holders that are tendering by book-entry transfer to the Exchange Agent's
account at DTC can execute the tender through ATOP for which the Exchange Offer
will be eligible. DTC 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.
Any Beneficial Owner whose Private Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact such Holder promptly and instruct such Holder to tender
on behalf of the Beneficial Owner. If such Beneficial Owner wishes to tender on
its own behalf, such Beneficial Owner must, prior to completing and executing
this Letter of Transmittal and delivering its Private Notes, either make
appropriate arrangements to register ownership of the Private Notes in such
Beneficial Owner's name or obtain a properly completed bond power from the
Holder. The transfer of record ownership may take considerable time.
In order to properly complete this Letter of Transmittal, a Holder must (i)
complete the box entitled "Description of Private Notes," (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 To
Tender Your Notes" and (iv) complete the Substitute Form W-9. Each Holder 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 (i) whose Private Notes are not immediately available or (ii) who
cannot deliver their Private Notes, this Letter of Transmittal and all other
documents required hereby to the Exchange Agent on or prior to the Expiration
Date, must tender the Private Notes pursuant to the guaranteed delivery
procedures set forth in the section of the Prospectus entitled "The Exchange
Offer -- Guaranteed Delivery Procedures." See Instruction 2.
Holders of Private Notes who wish to tender their Private Notes for
exchange must complete columns (1) through (3) in the box below entitled
"Description of Private Notes," and sign the box below entitled "Sign Here To
Tender Your Notes." If only those columns are completed, such Holder will have
tendered for exchange all Private Notes listed in column (3) below. If the
Holder wishes to tender for exchange less than all of such Private Notes, column
(4) must be completed in full. In such case, such Holder 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.
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The undersigned hereby tenders for exchange the Private Notes described in
the box entitled "Description of Private Notes" below pursuant to the terms and
conditions described in the Prospectus and this Letter of Transmittal.
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DESCRIPTION OF PRIVATE NOTES
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(1) (2) (3) (4)
AGGREGATE
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME(S) AND ADDRESS(ES) OF 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 indicated in this column, any tendering Holder will be deemed to
have tendered the entire aggregate 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 in 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 ENCLOSED HEREWITH AND COMPLETE THE FOLLOWING
(FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Holder(s):
Date of Execution of Notice of Guaranteed Delivery:
Window Ticket Number (if any):
Name of Institution that Guaranteed Delivery:
Only 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 Holders and who seek to tender Private Notes should (i) contact the
Holder and instruct such 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 Holder or accompanied by a properly completed bond power from
the Holder, with signatures on the endorsement or bond power guaranteed by a
firm that is an eligible guarantor institution within the meaning of Rule 17Ad-5
under the Exchange Act, including 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
Holder to such Beneficial Owner and comply with the requirements applicable to
Holders for tendering Private Notes prior to the Expiration Date. See the
section of the Prospectus entitled "The Exchange Offer -- Procedures for
Tendering."
SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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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 (i) if the Exchange Notes To be completed ONLY (i) if the Exchange Notes
issued in exchange for Private Notes, issued in exchange for Private Notes,
certificates for Private Notes in a principal certificates for Private Notes in a principal
amount not exchanged for Exchange Notes, or amount not exchanged for Exchange Notes, or
Private Notes (if any) not tendered for Private Notes (if any) not tendered for
exchange, are to be issued in the name of exchange, are to be mailed or delivered (i) to
someone other than the undersigned or (ii) if someone other than the undersigned or (ii) to
Private Notes tendered by book-entry transfer the undersigned at an address other than the
which are not exchanged are to be returned by address shown below the undersigned's
credit to an account maintained at DTC. signature.
Issue to: Mail or deliver to:
Name: Name:
(Please Type or Print) (Please Type or Print)
Address: Address:
(Include Zip Code) (Include Zip Code)
(Taxpayer Identification or Social Security (Taxpayer Identification or Social Security
No.) No.)
Credit Private Notes not exchanged and
delivered by book-entry transfer to the DTC
account set forth below:
(Account Number)
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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 exchange of the
Private Notes tendered for exchange herewith, the undersigned will have
irrevocably sold, assigned, transferred and exchanged, to the Company, all
right, title and interest in, to and under all of the Private Notes tendered for
exchange hereby, and hereby will have appointed the Exchange Agent as the true
and lawful agent and attorney-in-fact (with full knowledge that the Exchange
Agent also acts as agent of the Company) of such Holder with respect to such
Private Notes, with full power of substitution to (i) deliver certificates
representing such Private Notes, or transfer ownership of such Private Notes on
the account books maintained by DTC (together, in any such case, with all
accompanying evidences of transfer and authenticity), to the Company, (ii)
present and deliver such Private Notes for transfer on the books of the Company
and (iii) receive all benefits and otherwise exercise all rights and incidents
of beneficial ownership with respect to such Private Notes, all in accordance
with the terms of the Exchange Offer. The power of attorney granted in this
paragraph shall be deemed to be irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Private Notes; and that
when such Private Notes are accepted for exchange by the Company, the Company
will acquire good and marketable title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claims.
The undersigned further 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 the
Private Notes tendered for exchange hereby. 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, the undersigned hereby further represents to the Company that
(i) the Exchange Notes to be acquired by the undersigned in exchange for the
Private Notes tendered hereby and any Beneficial Owner(s) of such Private Notes
in connection with the Exchange Offer will be acquired by the undersigned and
such Beneficial Owner(s) in the ordinary course of their respective businesses,
(ii) the undersigned is not engaged in, and does not intend to engage in, a
distribution of the Exchange Notes, (iii) the undersigned and each Beneficial
Owner acknowledge and agree that any person who is a broker-dealer registered
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 Section 10 of the Securities Act in
connection with a secondary resale transaction of the Exchange Notes acquired by
such person and cannot rely on the position of the staff of the Commission set
forth in certain no-action letters, (iv) the undersigned and each Beneficial
Owner understand that a secondary resale transaction described in clause (iii)
above and any resales of Exchange Notes obtained by the undersigned in exchange
for the Private Notes acquired by the undersigned directly from the Company
should be covered by an effective registration statement containing the selling
securityholder information required by Item 507 or Item 508, as applicable, of
Regulation S-K of the Commission and (v) neither the undersigned nor any
Beneficial Owner is an "affiliate," as defined under Rule 405 under the
Securities Act, of the Company.
If the undersigned is a broker-dealer that will receive Exchange Notes for
its own account in exchange for Private Notes that 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 Section 10 of the
Securities Act in connection with any resale of such Exchange Notes; however, by
so acknowledging and by delivering such prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act. A broker-dealer may not participate in the Exchange Offer with respect to
the Private Notes acquired other than as a result of market-making activities or
other trading activities.
For purposes of the Exchange Offer, the Company will be deemed to have
accepted for exchange, and to have exchanged, validly tendered Private Notes,
if, as and when the Company gives oral or written notice thereof to the Exchange
Agent. Tenders of Private Notes for exchange may be withdrawn at any time prior
to 5:00 p.m., New York City time, on the Expiration Date. See "The Exchange
Offer -- Withdrawal of Tenders" in the Prospectus. Any Private Notes tendered by
the undersigned and not accepted for exchange will be returned to the
undersigned at the address set forth above unless otherwise indicated in the box
above entitled "Special Delivery Instructions" as promptly as practicable after
the Expiration Date.
The undersigned acknowledges that the Company's acceptance of Private Notes
validly tendered for exchange pursuant to any one of the procedures described in
the section of the Prospectus entitled "The Exchange Offer" and
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in the instructions hereto will constitute a binding agreement between the
undersigned and the Company upon the terms and subject to the conditions of the
Exchange Offer.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions," please return any Private Notes not tendered for exchange in the
name(s) of the undersigned. Similarly, unless otherwise indicated in the box
entitled "Special Delivery Instructions," please mail any certificates for
Private Notes not tendered or exchanged (and accompanying documents, as
appropriate) to the undersigned at the address shown below the undersigned's
signature(s). In the event that both "Special Issuance Instructions" and
"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 for exchange or not exchanged to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Private Notes from the name of the Holder(s) thereof if the Company does not
accept for exchange any of the Private Notes so tendered for exchange or if such
transfer would not be in compliance with any transfer restrictions applicable to
such Private Note(s).
IN ORDER TO VALIDLY TENDER PRIVATE NOTES FOR EXCHANGE, HOLDERS MUST
COMPLETE, EXECUTE, AND DELIVER THIS LETTER OF TRANSMITTAL.
Except as stated in the Prospectus, all authority herein conferred or
agreed to be conferred shall survive the death, incapacity or dissolution of the
undersigned, and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as otherwise stated in the Prospectus, this tender for
exchange of Private Notes is irrevocable.
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SIGN HERE TO TENDER YOUR PRIVATE NOTES
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SIGNATURE(S) OF OWNER(S)
Dated: ____________________________ , 200__
Must be signed by the Holder(s) 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 Private Note holder(s) by certificates and
documents transmitted herewith. If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, please provide the following
information. (See Instruction 6.)
Name(s):
__
(PLEASE TYPE OR PRINT)
Capacity (full title): __
__
Address: __
__
(INCLUDE ZIP CODE)
Principal place of business (if different from address listed above): __
__
__
Area Code and Telephone No.: ( ):
Tax Identification or Social Security Nos.: __
GUARANTEE OF SIGNATURE(S)
(SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 1)
Authorized Signature: __
Name and Title: __
__
(PLEASE TYPE OR PRINT)
Name of Firm: __
Address: __
Area Code and Telephone No.: __
Dated: __
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. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by an institution
which is (1) a member of a registered national securities exchange or of the
National Association of Securities Dealers, Inc., (2) a commercial bank or trust
company having an office or correspondent in the United States, or (3) an
Eligible Institution that is a member of one of the following recognized
Signature Guarantee Programs:
(a) The Securities Transfer Agents Medallion Program (STAMP);
(b) The New York Stock Exchange Medallion Signature Program (MSP); or
(c) The Stock Exchange Medallion Program (SEMP).
Signatures on this Letter of Transmittal need not be guaranteed (i) if this
Letter of Transmittal is signed by the Holder(s) of the Private Notes tendered
herewith and such Holder(s) have not completed the box entitled "Special
Issuance Instructions" or the box entitled "Special Delivery Instructions" on
this Letter of Transmittal or (ii) if such Private Notes are tendered for the
account of an Eligible Institution. In all other cases, all signatures must be
guaranteed by an Eligible Institution.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND PRIVATE NOTES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed by Holders 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 Private Notes, this Letter of Transmittal and all
other required documents to the Exchange Agent is at the election and risk of
the Holder. Except as otherwise provided below, the delivery will be deemed made
only when actually received or confirmed by the Exchange Agent. Instead of
delivery by mail, it is recommended that Holders use an overnight or hand
delivery service, properly insured. In all cases, sufficient time should be
allowed to assure delivery to the Exchange Agent before the Expiration Date.
Neither this Letter of Transmittal nor any Private Notes should be sent to the
Company. Holders may request their respective brokers, dealers, commercial
banks, trust companies or nominees to effect the above transactions for such
Holders.
Holders of Private Notes who elect to tender Private Notes and (i) whose
Private Notes are not immediately available or (ii) who cannot deliver the
Private Notes, this Letter of Transmittal or other required documents to the
Exchange Agent prior the Expiration Date must tender their Private Notes
according to the guaranteed delivery procedures set forth in the Prospectus.
Holders may have such tender effected if:
(a) such tender is made through an Eligible Institution;
(b) prior to 5:00 p.m., New York City time, on the Expiration Date,
the Exchange Agent has received from such Eligible Institution a properly
completed and duly executed Notice of Guaranteed Delivery, setting forth
the name and address of the Holder, the certificate number(s) of such
Private Notes and the principal amount of Private Notes tendered for
exchange, stating that tender is being made thereby and guaranteeing that,
within three New York Stock Exchange trading days after the Expiration
Date, this Letter of Transmittal (or facsimile thereof), together with the
certificate(s) representing such Private Notes (or a Book-Entry
Confirmation), in proper form for transfer, and any other documents
required by this Letter of Transmittal, will be deposited by such Eligible
Institution with the Exchange Agent; and
(c) a properly executed Letter of Transmittal (or facsimile thereof),
as well as the certificate(s) for all tendered Private Notes in proper form
for transfer or a Book-Entry Confirmation, together with
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any other documents required by this Letter of Transmittal, are received by
the Exchange Agent within five New York Stock Exchange trading days after
the Expiration Date.
No alternative, conditional or contingent tenders will be accepted. All
tendering Holders, by execution of this Letter of Transmittal (or facsimile
thereof), waive any right to receive 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" above is inadequate, the certificate numbers and principal
amounts of the Private Notes being tendered should be listed on a separate
signed schedule affixed hereto.
4. WITHDRAWALS. A tender of Private Notes may be withdrawn at any time
prior to the Expiration Date by delivery of written notice of withdrawal (or
facsimile thereof) to the Exchange Agent at the address set forth on the cover
of this Letter of Transmittal. To be effective, a notice of withdrawal of
Private Notes must (i) specify the name of the person who tendered the Private
Notes to be withdrawn (the "Depositor"), (ii) identify the Private Notes to be
withdrawn (including the certificate number(s) and aggregate principal amount of
such Private Notes), and (iii) 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 (including any required signature guarantees). All questions as to the
validity, form and eligibility (including time of receipt) of such notices will
be determined by the Company in its sole discretion, whose determination shall
be final and binding on all parties. Any Private Notes so withdrawn will
thereafter be deemed not validly tendered for purposes of the Exchange Offer and
no Exchange Notes will be issued with respect thereto unless the Private Notes
so withdrawn are validly retendered. Properly withdrawn Private Notes may be
retendered by following one of the procedures described in the section of the
Prospectus entitled "The Exchange Offer -- Procedures for Tendering" at any time
prior to the Expiration Date.
5. PARTIAL TENDERS. 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," 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 unless
otherwise indicated in the appropriate box on this Letter of Transmittal as
promptly as practicable after the expiration or termination of the Exchange
Offer.
6. SIGNATURES ON THIS LETTER OF TRANSMITTAL, POWERS OF ATTORNEY AND
ENDORSEMENTS.
(a) The signature(s) of the Holder on this Letter of Transmittal must
correspond with the name(s) as written on the face of the Private Notes without
alternation, enlargement or any change whatsoever.
(b) If tendered Private Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
(c) 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 different registrations or certificates.
(d) When this Letter of Transmittal is signed by the Holder listed and
transmitted hereby, no endorsements of Private Notes or bond powers are
required. If, however, Private Notes not tendered or not accepted, are to be
issued or returned in the name of a person other than the Holder, then the
Private Notes transmitted hereby must be endorsed or accompanied by a properly
completed bond power, in a form satisfactory to the Company, in either case
signed exactly as the name(s) of the Holder(s) appear(s) on the Private Notes.
Signatures on such Private Notes or bond powers must be guaranteed by an
Eligible Institution (unless signed by an Eligible Institution).
(e) If this Letter of Transmittal or Private Notes or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or
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representative capacity, such persons should so indicate when signing, and
unless waived by the Company, evidence satisfactory to the Company of their
authority to so act must be submitted with this Letter of Transmittal.
(f) If this Letter of Transmittal is signed by a person other than the
Holder listed, the Private Notes must be endorsed or accompanied by a properly
completed bond power, in either case signed by such Holder exactly as the
name(s) of the Holder appear(s) on the certificates. Signatures on such Private
Notes or bond powers 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 all transfer taxes, if any, 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 such transfer taxes (whether imposed on the Holder or any
other persons) will be payable by the tendering holder. If satisfactory evidence
of 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 for exchange are to be issued or
sent to someone other than the Holder 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 be credited to such account maintained
at DTC as such Holder may designate.
9. IRREGULARITIES. All questions as to the validity, form, eligibility
(including time of receipt), compliance with conditions, acceptance and
withdrawal of tendered Private 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 Private Notes not properly
tendered or any Private Notes the Company's acceptance of which would, in the
opinion of counsel for the Company, 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 interpretation of the terms and
conditions of the Exchange Offer (including the instructions in the Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Private Notes must be
cured within such time as the Company shall determine. Although the Company
intends to notify Holders of defects or irregularities with respect to tenders
of Private Notes, neither the Company, the Exchange Agent nor any other person
shall incur any liability for failure to give such notification. Tenders of
Private Notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Private 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 by the Exchange
Agent to the tendering holders, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive,
amend or modify certain of the specified conditions as described under "The
Exchange Offer -- Conditions" in the Prospectus in the case of any Private Notes
tendered (except as otherwise provided in the Prospectus).
11. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES. Any tendering
Holder whose Private Notes have been mutilated, lost, stolen or destroyed,
should contact the Exchange Agent at the address indicated herein for further
instructions.
12. REQUESTS FOR INFORMATION OR ADDITIONAL COPIES. Requests for information
or for additional copies of the Prospectus and this Letter of Transmittal may be
directed to the Exchange Agent at the address or telephone number set forth on
the cover of this Letter of Transmittal.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE THEREOF) TOGETHER
WITH CERTIFICATES, OR CONFIRMATION OF BOOK-ENTRY OR THE NOTICE OF GUARANTEED
DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE
AGENT PRIOR THE EXPIRATION DATE.
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IMPORTANT INFORMATION
Under current federal income tax law, a Holder whose tendered Private Notes
are accepted for exchange may be subject to backup withholding unless the Holder
provides the Company (as payor), through the Exchange Agent, with either (i)
such Holder's correct taxpayer identification number ("TIN") on Substitute Form
W-9 attached hereto, certifying that the TIN provided on Substitute Form W-9 is
correct (or that such Holder is awaiting a TIN) and that (A) the Holder has not
been notified by the Internal Revenue Service that he or she is subject to
backup withholding as a result of a failure to report all interest or dividends
or (B) the Internal Revenue Service has notified the Holder that he or she is no
longer subject to backup withholding; or (ii) an adequate basis for exemption
from backup withholding. If such Holder is an individual, the TIN is such
Holder's social security number. If the Exchange Agent is not provided with the
correct taxpayer identification number, the Holder may be subject to certain
penalties imposed by the Internal Revenue Service.
Certain Holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on Substitute
Form W-9. A foreign individual may qualify as an exempt recipient by submitting
to the Exchange Agent a properly completed Internal Revenue Service Form W-8
(which the Exchange Agent will provide upon request) signed under penalty of
perjury, attesting to the Holder's exempt status. See the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 (the
"Guidelines") for additional instructions.
If backup withholding applies, the Company is required to withhold 31% of
any payment made to the Holder or other payee. Backup withholding is not an
additional federal income tax. Rather, the federal income tax liability of
persons 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 Internal Revenue Service.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the record owner of the
Private Notes. If the Private Notes are held in more than one name or are not
held in the name of the actual owner, consult the enclosed Guidelines for
additional guidance regarding which number to report.
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PAYOR'S NAME: BANKERS TRUST COMPANY
- -----------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT
AND CERTIFY BY SIGNING AND DATING BELOW ________________
FORM W-9 Social Security Number
----------------------------------------------------------
DEPARTMENT OF THE PART 2 -- Certification Under Penalties of Perjury, I OR
TREASURY INTERNAL certify that:
REVENUE SERVICE ________________
(1) The number shown on this form is my current taxpayer Employer Identification
Payer's Request identification number (or I am waiting for a number to be Number
for Taxpayer issued to me) and
Identification PART 3 --
Number (TIN) (2) I am not subject to backup withholding either because Awaiting TIN [ ]
and Certification I have not been notified by the Internal Revenue Service
(the "IRS") that I am subject to backup withholding as
a result of failure to report all interest or
dividends, or the IRS has notified me that I am no
longer subject to backup withholding.
- -----------------------------------------------------------------------------------------------------------------
Certification instructions -- You must cross out item (2) in Part 2 above if you have
been notified by the IRS that you are subject to backup withholding because of
underreporting interest or dividends on your tax return. However, if after being
notified by the IRS that you are subject to backup withholding you receive another
notification from the IRS stating that you are no longer subject to backup withholding,
do not cross out item (2).
Name
Address
City _____________________ State _________ Zip Code
Signature Date _____________________
- --------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECK THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
PAYOR'S NAME: BANKERS TRUST COMPANY
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number within sixty (60) days, 31%
of all reportable payments made to me thereafter will be withheld until I
provide such a number.
____________________________________ ___________________________________
Signature Date
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENT MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
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