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CONSENT AND LETTER OF TRANSMITTAL
TO TENDER AND TO CONSENT TO
CERTAIN INDENTURE AMENDMENTS WITH RESPECT TO THE
10.45% SENIOR NOTES DUE 2000
AND THE
13.75% SENIOR SUBORDINATED NOTES DUE 2001
OF
FOOD 4 LESS SUPERMARKETS, INC.
PURSUANT TO THE
PROSPECTUS AND SOLICITATION STATEMENT DATED JANUARY 25, 1995
THE EXCHANGE OFFERS AND THE SOLICITATION WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FEBRUARY 22, 1995, UNLESS EXTENDED (THE "EXPIRATION DATE").
TENDERS MAY ONLY BE WITHDRAWN AND CONSENTS MAY ONLY BE REVOKED UNDER THE
CIRCUMSTANCES DESCRIBED HEREIN AND IN THE PROSPECTUS AND SOLICITATION STATEMENT.
TO THE EXCHANGE AGENT:
BANKERS TRUST COMPANY
By Hand Delivery or
Overnight Courier: Facsimile Transmission: By Mail:
Bankers Trust Company (212) 250-6275 Bankers Trust Company
Corporate Trust & Agency Group (212) 250-3290 Corporate Trust & Agency Group
Reorganization Department Confirm by Telephone: Reorganization Department
Receipt & Delivery Window (212) 250-6270 P.O. Box 1458
123 Washington St., First Floor Church Street Station
New York, NY 10006 New York, NY 10008-1458
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF THIS LETTER VIA FACSIMILE TRANSMISSION OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS
CONSENT AND LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS CONSENT
AND LETTER OF TRANSMITTAL IS COMPLETED.
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DESCRIPTION OF OLD F4L NOTES
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CERTIFICATE(S) TENDERED
(ATTACH ADDITIONAL SCHEDULE IF NECESSARY)
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(1) (2) (3) (4)
INDICATE AGGREGATE
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CLASS BEING PRINCIPAL
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) TENDERED CERTIFICATE AMOUNT
APPEAR(S) ON OLD F4L NOTES) 10.45% OR 13.75% NUMBER(S)(*) TENDERED(**)
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TOTAL:
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* Need not be completed by Book-Entry Holders (see below).
** If you wish to accept the applicable Exchange Offer with respect to any Old F4L Senior Notes or any Old F4L Senior
Subordinated Notes you must tender all of such Old F4L Senior Notes or Old F4L Senior Subordinated Notes beneficially owned
by you, as the case may be.
You must consent to the Proposed Amendments with respect to the Old F4L Notes tendered hereby. The tender of Old F4L Notes
hereby will constitute a Consent to the Proposed Amendments with respect to such Old F4L Notes. If you are not the registered
holder of your Old F4L Notes, you must either have the Old F4L Notes registered in your name or have the registered holder sign
the form of consent herein or obtain a valid proxy from the registered holder of such Old F4L Notes to tender them.
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The undersigned acknowledges receipt of the Prospectus and Solicitation
Statement dated January 25, 1995 (as the same may be amended or supplemented
from time to time, the "Prospectus"), of Food 4 Less Supermarkets, Inc. ("Food 4
Less"), relating to (a) the offer by Food 4 Less, upon the terms and subject to
the conditions set forth in the Prospectus and in this Consent and Letter of
Transmittal and the instructions hereto (the "Letter of Transmittal"), to (i)
holders of 10.45% Senior Notes due 2000 of Food 4 Less (the "Old F4L Senior
Notes") to exchange for each $1,000 principal amount of Old F4L Senior Notes
$1,000 principal amount of new Senior Notes due 2004 (the "New F4L Senior
Notes") plus $5.00 in cash (the "Senior Note Exchange Payment"), plus accrued
and unpaid interest to the date of the exchange (the "Senior Note Exchange
Offer") and (ii) holders of the 13.75% Senior Subordinated Notes due 2001 of
Food 4 Less (the "Old F4L Senior Subordinated Notes," and together with the Old
F4L Senior Notes, the "Old F4L Notes") to exchange for each $1,000 principal
amount of Old F4L Senior Subordinated Notes $1,000 principal amount of new
13.75% Senior Subordinated Notes due 2005 (the "New F4L Senior Subordinated
Notes, and together with the New F4L Senior Notes, the "New F4L Notes") plus
$20.00 in cash (the "Senior Subordinated Note Exchange Payment," and together
with the Senior Note Exchange Payment, the "Exchange Payment"), plus accrued and
unpaid interest to the date of the exchange (the "Senior Note Exchange Offer,"
and together with the Senior Subordinated Note Exchange Offer, the "Exchange
Offers" each of which is sometimes referred to herein individually as the
applicable "Exchange Offer") and (b) Food 4 Less' solicitation (the
"Solicitation") of consents (the "Consents") from holders of the Old F4L Notes
("Noteholders") to the proposed amendments (the "Proposed Amendments") to the
respective indentures under which the Old F4L Notes were issued (as described in
the Prospectus under the captions "The Proposed Amendments," "Appendix
A -- Comparison of Old F4L Senior Notes and New F4L Senior Notes" and "Appendix
B -- Comparison of Old F4L Senior Subordinated Notes and New F4L Senior
Subordinated Notes").
Holders of Old F4L Notes who desire to accept the applicable Exchange Offer
will be required to consent to the Proposed Amendments with respect to such Old
F4L Notes. The tender of Old F4L Notes under this Letter of Transmittal will
constitute such consent. Noteholders who do not tender Old F4L Notes pursuant to
the Exchange Offers will not be eligible to consent to the Proposed Amendments.
Each Noteholder who desires to accept the applicable Exchange Offer with respect
to any Old F4L Senior Notes or any Old F4L Senior Subordinated Notes must tender
all of such Noteholders' Old F4L Senior Notes or Old F4L Senior Subordinated
Notes, as the case may be. Capitalized terms used in this Letter of Transmittal
but not defined herein have the respective meanings given them in the
Prospectus. Unless otherwise indicated, references herein to the Exchange Offers
shall be deemed to include the Solicitation.
THE EXCHANGE OFFERS AND THE SOLICITATION ARE NOT BEING MADE TO (NOR WILL
THE SURRENDER OF OLD F4L NOTES FOR EXCHANGE BE ACCEPTED FROM OR ON BEHALF OF)
NOTEHOLDERS IN ANY JURISDICTION IN WHICH THE MAKING OR ACCEPTANCE OF SUCH
EXCHANGE OFFERS OR THE SOLICITATION WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF
SUCH JURISDICTION.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE
COMPLETING ANY BOX BELOW
This Letter of Transmittal is to be used (i) if Old F4L Notes are to be
physically delivered herewith or (ii) if delivery of Old F4L Notes is to be made
by book-entry transfer to the account maintained by the Exchange Agent at the
Depository Trust Company ("DTC"), the Midwest Securities Trust Company ("MSTC")
or the Philadelphia Securities Depository Trust Company ("PDTC") (collectively,
the "Book-Entry Transfer Facilities") pursuant to the procedures set forth in
the Prospectus under the caption "The Exchange Offers and
Solicitation -- Procedures for Tendering and Consenting." Delivery of documents
to a Book-Entry Transfer Facility does not constitute delivery to the Exchange
Agent.
If certificates for Old F4L Notes are not immediately available or cannot
be delivered along with other required documents to the Exchange Agent or the
procedure for book-entry transfer cannot be completed on or prior to the
Expiration Date, the Noteholder may tender such Old F4L Notes according to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offers and Solicitation -- Guaranteed Delivery Procedure." See
Instruction 2 herein.
Noteholders who wish to tender their Old F4L Notes pursuant to the
applicable Exchange Offer and consent to the Proposed Amendments must complete
the table herein entitled "DESCRIPTION OF OLD F4L NOTES" and sign below.
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METHOD OF DELIVERY
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/ / CHECK HERE IF CERTIFICATES FOR TENDERED OLD F4L NOTES ARE ENCLOSED
HEREWITH.
/ / CHECK HERE IF TENDERED OLD F4L NOTES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH A BOOK-ENTRY TRANSFER FACILITY SPECIFIED ABOVE AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution:
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Name of Book-Entry Transfer Facility:
/ / DTC / / MSTC / / PDTC
Account Number:
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Transaction Code Number:
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/ / CHECK HERE IF TENDERED OLD F4L NOTES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT
AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s) of Old F4L Notes:
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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 Eligible Institution which Guaranteed Delivery:
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If delivered by a Book-Entry Transfer Facility, check box of
Book-Entry Transfer Facility:
/ / DTC / / MSTC / / PDTC
Account Number:
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Transaction Code Number:
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PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Consent and Tender of Old F4L Notes
Upon the terms and subject to the conditions of the Prospectus and this
Letter of Transmittal, the undersigned hereby Consents to the Proposed
Amendments with respect to the Old F4L Notes indicated above and tenders to Food
4 Less the Old F4L Notes indicated above. Tendering Noteholders will be deemed
to have Consented to the Proposed Amendments with respect to all Old F4L Notes
tendered.
Subject to and effective upon acceptance for exchange of the Old F4L Notes
tendered herewith, the undersigned hereby sells, assigns and transfers to or
upon the order of Food 4 Less all right, title and interest in and to, and any
and all claims in respect of or arising or having arisen as a result of the
undersigned's status as a holder of, all Old F4L Notes tendered hereby. The
undersigned hereby appoints the Exchange Agent the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Old F4L Notes with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest) to (a) deliver certificates for such Old F4L
Notes, or transfer ownership of such Old F4L Notes on the account books
maintained by DTC, MSTC or PDTC, together, in any such case, with all
accompanying evidences of transfer and authenticity, to or upon the order of
Food 4 Less, (b) present such Old F4L Notes for transfer on the register, (c)
deliver the Consent contained herein to Food 4 Less and the applicable Trustee
under the Old Indentures and (d) receive all benefits and otherwise exercise all
right of beneficial ownership of such Old F4L Notes all in accordance with the
terms of the Exchange Offers.
The undersigned hereby represents and warrants that the undersigned accepts
the terms and conditions of the Prospectus and this Letter of Transmittal, owns
the Old F4L Notes tendered hereby within the meaning of Rule 10b-4 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), has full power
and authority to tender, sell, assign and transfer the Old F4L Notes tendered
hereby and that Food 4 Less 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 will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or Food 4 Less to
be necessary or desirable to complete the sale, assignment and transfer of the
Old F4L Notes tendered. All authority herein conferred or agreed to be conferred
shall survive the death or incapacity of the undersigned, and any obligation of
the undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
Tenders of Old F4L Notes pursuant to the Exchange Offers may be withdrawn
and Consents may be revoked, subject to the procedures described in the
Prospectus under "The Exchange Offers and Solicitation -- Withdrawal of Tenders
and Revocation of Consents," and under Instruction 3 herein, at any time until
the "Consent Date," which shall be the later of (a) such time as the Requisite
Consents (as defined under Instruction 3 herein) with respect to the applicable
issue of Old F4L Notes have been received and the Supplemental Indenture (as
defined) for such issue has been executed and (b) 12:00 Midnight, New York City
time, on February 22, 1995. Thereafter, such tenders may be withdrawn and
Consents may be revoked if the applicable Exchange Offer with respect to such
Old F4L Notes is terminated without any Old F4L Notes being accepted for
exchange thereunder. Food 4 Less shall be deemed to have accepted for exchange,
and to have exchanged validly tendered and not properly withdrawn Old F4L Notes
in the Exchange Offers when, as and if Food 4 Less has given oral or written
notice thereof to the Exchange Agent.
Upon receipt of the Requisite Consents from holders of Old F4L Senior Notes
or holders of Old F4L Senior Subordinated Notes, Food 4 Less will certify in
writing to the Old F4L Senior Note Trustee or the Old F4L Senior Subordinated
Note Trustee (together, the "Old Trustees"), as the case may be, that the
Requisite Consents to the adoption of the Proposed Amendments have been received
with respect to such issue of Old F4L Notes. Except as set forth under
Instruction 2 herein and in the Prospectus under "The Exchange Offers and
Solicitation -- Guaranteed Delivery Procedure," Consents from tendering holders
of Old F4L Notes will not be counted towards determining whether Food 4 Less has
received the Requisite Consents unless Food 4 Less is prepared to accept the
tender of Old F4L Notes to which such Consents relate. In addition, Consents
with respect to any Old F4L Notes will not be counted if the tender of such
holders' Old F4L Notes is defective, unless Food 4 Less waives such defect.
After receipt by the Old F4L Senior Note Trustee or the Old F4L Senior
Subordinated Note Trustee of, among other things, certification by Food 4 Less
that the Requisite Consents with respect to the Old F4L Senior Notes or the Old
F4L Senior Subordinated Notes, as the case may be, have been received, Food 4
Less and the applicable Old Trustee will execute a supplemental indenture to
evidence the adoption of the Proposed Amendments relating to the applicable
indenture under which such Old F4L Notes were issued (each a "Supplemental
Indenture"). Upon the acceptance by Food 4 Less of the Requisite Consents from
holders of Old F4L Senior Notes or Old F4L Senior Subordinated Notes and the
execution of the applicable Supplemental Indenture, such Supplemental Indenture
will immediately become effective. Although the Proposed
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Amendments relating to an issue of Old F4L Notes will become effective upon
certification that the Requisite Consents from holders of the applicable Old F4L
Notes have been received, such Proposed Amendments will not be operative until
Food 4 Less has accepted for exchange all Old F4L Notes validly tendered and not
withdrawn. Food 4 Less will not be obligated to issue the New F4L Notes and pay
the Exchange Payment pursuant to the Exchange Offers unless, among other things,
the Requisite Consents to the adoption of the Proposed Amendments have been
received from both the Old F4L Senior Noteholders and the Old F4L Senior
Subordinated Noteholders. The withdrawal of Old F4L Notes in accordance with the
procedures set forth in the Prospectus under "The Exchange Offers and
Solicitation -- Withdrawals of Tenders and Revocation of Consents," and under
Instruction 3 herein, will effect a revocation of the related Consents. Any
valid revocation of Consents will automatically render the prior tender of the
Old F4L Notes to which such Consents relate defective and Food 4 Less will have
the right, which it may waive, to reject such tender as invalid and ineffective.
The undersigned recognizes that, under certain circumstances set forth in
the Prospectus, Food 4 Less may not be required to accept any of the Old F4L
Notes tendered (as described in the Prospectus under the caption "The Exchange
Offers and Solicitation -- Conditions"). Old F4L Notes not accepted for tender
or that are withdrawn will be returned to the undersigned at the address set
forth above unless otherwise indicated under "SPECIAL DELIVERY INSTRUCTIONS"
below.
Unless otherwise indicated under "SPECIAL ISSUANCE AND PAYMENT
INSTRUCTIONS" or "SPECIAL DELIVERY INSTRUCTIONS" below, the Exchange Agent will
deliver the New F4L Notes and the Exchange Payment (and, if applicable, return
Old F4L Notes for any principal amount of Old F4L Notes not accepted for
exchange) to the undersigned at the address set forth above. The undersigned
understands that holders who tender Old F4L Notes by book-entry transfer
("Book-Entry Holders") may request that any Old F4L Notes not accepted for
exchange be returned by crediting the account maintained by DTC, MSTC or PDTC as
such Book-Entry Holders may designate by ranking an appropriate entry under the
box entitled "SPECIAL ISSUANCE AND PAYMENT INSTRUCTIONS" below. The undersigned
recognizes that Food 4 Less has no obligation pursuant to "SPECIAL ISSUANCE AND
PAYMENT INSTRUCTIONS" to transfer any Old F4L Notes from the name of the
registered holder thereof if Food 4 Less does not accept for exchange any of
such Old F4L Notes. See Instruction 5.
The undersigned understands that tenders of Old F4L Notes pursuant to any
one of the procedures described under "The Exchange Offers and
Solicitation -- Procedures for Tendering and Consenting" in the Prospectus and
in the instructions hereto will constitute a binding agreement between the
undersigned and Food 4 Less in accordance with the terms and subject to the
conditions of the Prospectus and this Letter of Transmittal.
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THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD F4L
NOTES" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL, WILL BE DEEMED TO HAVE
TENDERED SUCH OLD F4L NOTES, CONSENTED TO THE PROPOSED AMENDMENTS WITH RESPECT
TO SUCH OLD F4L NOTES AND MADE CERTAIN REPRESENTATIONS AS DESCRIBED HEREIN AND
IN THE PROSPECTUS. ONLY REGISTERED HOLDERS OF OLD F4L NOTES ARE ENTITLED TO
CONSENT TO THE PROPOSED AMENDMENTS. IF THE UNDERSIGNED IS NOT THE REGISTERED
HOLDER OF THE OLD F4L NOTES TENDERED PURSUANT HERETO, THE UNDERSIGNED MUST
EITHER HAVE THE OLD F4L NOTES REGISTERED IN THE UNDERSIGNED'S NAME OR HAVE THE
REGISTERED HOLDER SIGN THE FORM OF CONSENT APPEARING BELOW OR A VALID PROXY.
PLEASE SIGN HERE
(See Instructions 1 and 4 and the following paragraph)
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Signature(s) of Owner(s) Date
Area Code and Telephone Number:
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This Letter of Transmittal must be signed by the Registered
Holder(s) of Old F4L Notes as their name(s) appear(s) on certificates for Old
F4L Notes or, if tendered by a participant in one of the Book-Entry Transfer
Facilities, exactly as such participant's name appears on a security position
listing as the owner of Old F4L Notes, or by person(s) authorized to become
Registered Holder(s) by endorsement and documents transmitted herewith. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer or other person acting in a fiduciary or representative capacity, please
set forth full title. See Instruction 4.
Name (s):
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Please Type or Print
Capacity:
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Address:
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(Including Zip Code)
SIGNATURE GUARANTEE
(If required by Instruction 4)
Signature(s) Guaranteed
by an Eligible Institution:
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(Authorized Signature)
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(Title)
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(Name of Firm)
Dated:
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Please indicate (by marking the appropriate box provided below) whether
the beneficial holder(s) of the Old F4L Notes tendered herewith is a(n):
/ / Bank / / Pension or Profit-Sharing Trust
/ / Savings Institution / / Dealer
/ / Trust Company / / Foundation
/ / Insurance Company / / Corporation
/ / Investment Company / / Other Financial or
Institutional Investor
/ / Individual
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IF THIS LETTER OF TRANSMITTAL IS SIGNED BY A HOLDER OF OLD F4L NOTES WHO IS
NOT THE REGISTERED HOLDER THEREOF, THEN THE REGISTERED HOLDER MUST SIGN THE
FOLLOWING CONSENT OR A VALID PROXY:
Pursuant to the Exchange Offers and the Solicitation of Consents to the
Proposed Amendments, the undersigned hereby consents to the Proposed Amendments
with respect to the Old F4L Notes tendered hereby and with respect to the
related indentures. This consent shall not be deemed to be effective if the
above-described Old F4L Notes are not accepted for tender pursuant to the
Exchange Offers.
X
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Signature of Registered Holder
X
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Signature of Registered Holder
(if more than one)
Dated:
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(Must be signed by the Registered Holder(s) as name(s) appear(s) on the
certificates for Old F4L Notes. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer or other person acting in a
fiduciary or representative capacity, please set forth full title. See
Instruction 4.)
Name(s):
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Please Type or Print
Capacity:
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Address:
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(Including Zip Code)
SIGNATURE GUARANTEE
(If required by Instruction 4)
Signature(s) Guaranteed
by an Eligible Institution:
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(Authorized Signature)
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(Title)
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(Name of Firm)
Dated:
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SPECIAL ISSUANCE AND PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for New F4L Notes and the Exchange Payment
are to be issued in the name of, or paid to, someone other than the person who
submits this Letter of Transmittal or issued to an address different from that
shown in the box entitled "DESCRIPTION OF OLD F4L NOTES" above in this Letter of
Transmittal or if Old F4L Notes are to be returned by credit to an account
maintained by DTC, MSTC or PDTC.
ISSUE TO:
Name
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(Please Print)
Address
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(Include Zip Code)
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(Social Security Number or Employer Identification Number)
A correct taxpayer identification number must also be provided on the
Substitute Form W-9 included herein.
CREDIT UNACCEPTED OLD F4L NOTES TENDERED BY BOOK-ENTRY TRANSFER TO THE:
/ / DTC / / MSTC or / / PDTC (check one)
account set forth below:
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(DTC, MSTC or PDTC Account Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if the Exchange Payment, certificates evidencing New F4L
Notes and/or certificates evidencing Old F4L Notes for amounts not accepted for
exchange are to be sent to someone other than the person who submits this Letter
of Transmittal or to an address other than that shown in the box entitled
"DESCRIPTION OF OLD F4L NOTES" above in this Letter of Transmittal.
MAIL TO:
Name
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(Please Print)
Address
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(Include Zip Code)
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE
OFFERS AND THE SOLICITATION
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES. Certificates for Old
F4L Notes, or any book-entry transfer into the Exchange Agent's account at DTC,
MSTC or PDTC of Old F4L Notes tendered electronically, as well as a properly
completed Letter of Transmittal, including a valid and unrevoked Consent or
facsimile(s) thereof, duly executed by the registered holder thereof with any
required signature guarantee(s), and any other documents required by this Letter
of Transmittal, must be received by the Exchange Agent at one of its addresses
set forth herein on or prior to 12:00 Midnight, New York City time, on the
Expiration Date of the Exchange Offers and the Solicitation, except as otherwise
provided in Instruction 2, "Guaranteed Delivery Procedures."
Tenders of Old F4L Notes into the Exchange Offers will be accepted only in
principal amounts equal to $1,000 or integral multiples thereof.
The method of delivery of this Letter of Transmittal, certificates for Old
F4L Notes and any other required documents is at the election and risk of the
tendering Noteholder, and except as otherwise provided below, the delivery will
be deemed made when actually received by the Exchange Agent. Instead of
effecting delivery by mail, it is recommended that tendering Noteholders use an
overnight or hand delivery service. If Old F4L Notes are sent by mail,
registered mail, with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to assure timely
delivery. No documents should be sent to Food 4 Less, the Information Agent, the
Dealer Managers, or the Old Trustees.
If the person signing this Letter of Transmittal is not the registered
holder of the securities tendered hereby, then such person must either have the
securities hereby registered in such person's name or obtain from the registered
holder and submit to the Exchange Agent the form of consent of the registered
holder to the Proposed Amendments appearing above or a valid proxy.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, withdrawal and revocation of tendered Old F4L Notes and
delivered Consents to the Proposed Amendments will be resolved by Food 4 Less,
whose determination will be final and binding. Food 4 Less reserves the absolute
right to reject any or all tenders and withdrawals of Old F4L Notes and
deliveries and revocations of Consents to the Proposed Amendments that are not
in proper form or the acceptance of which would, in the opinion of Food 4 Less
or counsel for Food 4 Less, be unlawful. Food 4 Less also reserves the right to
waive any irregularities or conditions of tender, consent or proxy as to
particular Old F4L Notes. Food 4 Less' interpretation of the terms and
conditions of the Exchange Offers (including the instructions in this Letter of
Transmittal) will be final and binding. Unless waived, any irregularities in
connection with tenders and withdrawals of Old F4L Notes and revocations of
Consents to the Proposed Amendments must be cured within such time as Food 4
Less shall determine. Neither Food 4 Less nor the Exchange Agent shall be under
any duty to give notification of defects in such tenders, withdrawals,
deliveries or revocations or shall incur any liability for failure to give such
notification. Tenders and withdrawals of Old F4L Notes and deliveries and
revocations of Consents to the Proposed Amendments will not be deemed to have
been made until such irregularities have been cured or waived. Any Old F4L Notes
received by the Exchange Agent that are not properly tendered or delivered and
to which the irregularities have not been cured or waived will be returned by
the Exchange Agent to the tendering Noteholders unless otherwise provided in
this Letter of Transmittal as soon as practicable following the Expiration Date.
None of Food 4 Less, the Exchange Agent, the Information Agent, the Dealer
Managers or any other person shall be obligated to give notification of defects
or irregularities in any tender, or shall incur any liability for failure to
give any such notification.
2. GUARANTEED DELIVERY PROCEDURES. If a registered holder of Old F4L Notes
desires to tender such Old F4L Notes and consent to the Proposed Amendments, and
such holder's Old F4L Notes are not immediately available, or if time will not
permit such holder's Old F4L Notes or any other required documents to be
delivered to the Exchange Agent prior to 12:00 Midnight, New York City time, on
the Expiration Date, then such Old F4L Notes may nevertheless be tendered for
exchange and Consents may be effected if all of the following guaranteed
delivery procedure conditions are met:
(i) the tender for exchange and Consent is made by or through an
Eligible Institution;
(ii) prior to 12:00 Midnight, New York City time, on the Expiration
Date, the Exchange Agent receives from such Eligible Institution a properly
completed and duly executed Notice of Guaranteed Delivery (by telegram,
telex, facsimile transmission, mail or hand delivery) substantially in the
form provided by Food 4 Less herewith, that contains a signature guaranteed
by an Eligible Institution in the form set forth in such Notice of
Guaranteed
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Delivery, unless such tender is for the account of an Eligible Institution
(in which case no signature guarantee shall be required), and sets forth
the name and address of the holder of Old F4L Notes and the principal
amount of Old F4L Notes tendered for exchange, states that the tender is
being made thereby and guarantees that, within five New York Stock Exchange
("NYSE") trading days after the date of execution of the Notice of
Guaranteed Delivery, this Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, together with the Old F4L Notes and
any required signature guarantees and any other documents required by this
Letter of Transmittal, will be deposited by the Eligible Institution with
the Exchange Agent; and
(iii) all tendered Old F4L Notes, or a confirmation of a book-entry
transfer of such Old F4L Notes into the Exchange Agent's applicable account
at a Book-Entry Transfer Facility, as well as this Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any
required signature guarantees, and all other documents required by this
Letter of Transmittal, shall be received by the Exchange Agent within five
NYSE trading days after the date of execution of the Notice of Guaranteed
Delivery.
The PINK Notice of Guaranteed Delivery provided herewith shall be used in
connection with tenders of all Old F4L Notes.
Notwithstanding any other provision hereof, the exchange for Old F4L Notes
pursuant to the Exchange Offers will in all cases be made only after timely
receipt by the Exchange Agent of certificates for such Old F4L Notes and this
Letter of Transmittal (or facsimile thereof) in respect thereof, properly
completed and duly executed, together with any required signature guarantees and
any other documents required by the Prospectus and this Letter of Transmittal.
3. CONSENT TO PROPOSED AMENDMENTS; WITHDRAWAL OF TENDERS; REVOCATION OF
CONSENTS. A valid Consent to the adoption of the Proposed Amendments may be
given only by the registered holder of Old F4L Notes or his or her
attorney-in-fact. Noteholders will not be able to validly tender unless they
Consent to the Proposed Amendments. Noteholders not tendering Old F4L Notes
pursuant to the Exchange Offers will not be eligible to Consent to the Proposed
Amendments. Tendering holders who sign this Letter of Transmittal and tender any
Old F4L Notes shall be deemed to have Consented to the Proposed Amendments with
respect to such Old F4L Notes tendered.
Tenders of Old F4L Notes pursuant to an Exchange Offer may be withdrawn and
Consents may be revoked at any time until the "Consent Date," which shall be the
later of (a) such time as the Requisite Consents (Consents of holders
representing at least a majority in aggregate principal amount of the
outstanding Old F4L Senior Notes or Old F4L Senior Subordinated Notes, as the
case may be, held by persons other than Food 4 Less and its affiliates) have
been delivered by Food 4 Less to the applicable Old Trustee and the Supplemental
Indenture for such issue has been executed and (b) 12:00 Midnight, New York City
time, on February 22, 1995. Thereafter, such tenders may be withdrawn and
Consents may be revoked if the Exchange Offer with respect to such Old F4L Notes
is terminated without any Old F4L Notes being accepted for exchange thereunder.
A different Consent Date may be established with respect to the Old F4L Senior
Notes and the Old F4L Senior Subordinated Notes. The withdrawal of Old F4L Notes
prior to the applicable Consent Date in accordance with the procedures set forth
hereunder will effect a revocation of the related Consent. Any valid revocation
of Consents will automatically render the prior tender of the Old F4L Notes to
which such Consents relate defective and Food 4 Less will have the right, which
it may waive, to reject such tender as invalid and ineffective.
Any holder of Old F4L Notes who has tendered Old F4L Notes or who succeeds
to the record ownership of Old F4L Notes in respect of which such tenders or
Consents previously have been given may withdraw such Old F4L Notes or revoke
such Consents prior to the applicable Consent Date by delivery of a written
notice of withdrawal or revocation, subject to the limitations described herein.
To be effective, a written telegraphic, telex or facsimile transmission (or
delivered by hand or by mail) notice of withdrawal of a tender or revocation of
a Consent must (i) be timely received by the Exchange Agent at one of its
addresses set forth on the front cover hereof or prior to the applicable time
provided herein with respect to the applicable issue of Old F4L Notes, (ii)
specify the name of the person having tendered the Old F4L Notes to be withdrawn
or as to which Consents are revoked, the principal amount of such Old F4L Notes
to be withdrawn and, if certificates for Old F4L Notes have been tendered, the
name of the registered holder(s) of such Old F4L Notes as set forth in such
certificates, if different from that of the person who tendered such Old F4L
Notes, (iii) identify the Old F4L Notes to be withdrawn or to which the notice
of revocation relates and (iv)(a) be signed by the holder in the same manner as
the original signature on this Letter of Transmittal or Notice of Guaranteed
Delivery (as the case may be) by which such Old F4L Notes were tendered
(including any required signature guarantees) or (b) be accompanied by evidence
satisfactory to Food 4 Less and the Exchange Agent that the holder withdrawing
such tender or revoking such Consents has succeeded to beneficial ownership of
such Old F4L Notes. If certificates representing Old F4L Notes to be withdrawn
or Consents to be revoked have been delivered or otherwise identified to the
Exchange Agent, then the name of the registered holder and the serial numbers of
the particular certificate evidencing the Old F4L Notes to be withdrawn or
Consents to be revoked and a signed notice of withdrawal with signatures
guaranteed by an Eligible Institution, except in the case of Old F4L Notes
tendered by an Eligible Institution (in which case no signature guarantee
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shall be required), must also be so furnished to the Exchange Agent as aforesaid
prior to the physical release of the certificates for the withdrawn Old F4L
Notes. If Old F4L Notes have been tendered or if Consents have been delivered
pursuant to the procedures for book-entry transfer as set forth herein, any
notice of withdrawal or revocation of a Consent must also specify the name and
number of the account at the appropriate Book-Entry Transfer Facility to be
credited with the withdrawn Old F4L Notes. Food 4 Less reserves the right to
contest the validity of any revocation. A purported notice of revocation which
is not received by the Exchange Agent in a timely fashion will not be effective
to revoke a Consent previously given.
Any permitted withdrawals of tenders of Old F4L Notes and revocation of
Consents may not be rescinded, and any Old F4L Notes properly withdrawn will
thereafter be deemed not validly tendered and any Consents revoked will be
deemed not validly delivered for purposes of the Exchange Offers or the
Solicitation; provided, however, that withdrawn Old F4L Notes may be retendered
and revoked Consents may be redelivered by again following one of the
appropriate procedures described herein at any time prior to 12:00 Midnight, New
York City time, on the Expiration Date.
If Food 4 Less shall decide to decrease the amount of Old F4L Notes being
sought in either Exchange Offer or to increase or decrease the consideration
offered to the Old F4L Noteholders, and if, at the time that notice of such
increase or decrease is first published, sent or given to Old F4L Noteholders in
the manner specified in the Prospectus, such Exchange Offer is scheduled to
expire at any time earlier than the expiration of a period ending on the tenth
Business Day from and including the date that such notice is first so published,
sent or given such Exchange Offer will be extended for such purposes until the
expiration of such period of ten Business Days. As used in the Prospectus,
"Business Day" has the meaning set forth in Rule 14d-1 (and applicable to
Regulation 14E) under the Exchange Act). In addition, if any Exchange Offer or
the Solicitation is amended in a manner determined by Food 4 Less to constitute
a material adverse change to the Old F4L Noteholders, Food 4 Less promptly will
disclose such amendment in a public announcement and will extend the relevant
Exchange Offer or the Solicitation for a period deemed by it to be adequate to
permit the Old F4L Noteholders to properly deliver or withdraw their Old F4L
Notes and give or revoke Consents.
If Food 4 Less extends an Exchange Offer, is delayed in its acceptance for
exchange of Old F4L Notes or is unable to exchange Old F4L Notes pursuant to an
Exchange Offer, for any reason, then, without prejudice to Food 4 Less' rights
under such Exchange Offer, the Exchange Agent may, subject to applicable law,
retain tendered Old F4L Notes on behalf of Food 4 Less, and such Old F4L Notes
may not be withdrawn (subject to Rule 14e-1 under the Exchange Act, which
requires that Food 4 Less deliver the consideration offered or return the Old
F4L Notes deposited by or on behalf of the Noteholders promptly after the
termination or withdrawal of an Exchange Offer), except to the extent that
tendering holders are entitled to withdrawal rights as described herein.
All questions as to the validity, form and eligibility (including the time
of receipt) of notices of withdrawal or revocations of Consents will be
determined by Food 4 Less, whose determination will be final and binding on all
parties. None of Food 4 Less, the Exchange Agent, the Dealer Managers, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
revocation of Consent or incur any liability for failure to give any such
notification.
4. SIGNATURES ON THIS LETTER OF TRANSMITTAL, AND ENDORSEMENTS; GUARANTEE OF
SIGNATURE. If this Letter of Transmittal is signed by the registered holder(s)
of the Old F4L Notes tendered hereby, the signature must correspond with the
name(s) as written on the face of the certificate(s) without alteration or any
change whatsoever.
If any of the Old F4L Notes tendered hereby are registered in the names of
two or more joint owners, all owners must sign this Letter of Transmittal. If
any tendered Old F4L Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal and any other required documents as there are different
names in which the Old F4L Notes are registered.
If tendered Old F4L Notes are registered in the name of a person other than
the person signing this Letter of Transmittal, the tendered Old F4L Notes must
be endorsed or accompanied by appropriate bond powers, signed by the registered
holder or holders of the Old F4L Notes transmitted hereby or separate bond
powers are required, with signatures guaranteed in either case.
If this Letter of Transmittal or any certificate 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 Food
4 Less of their authority so to act must be submitted.
Endorsements on certificates of Old F4L Notes or signatures on bond powers
required by this Instruction 4 must be guaranteed by an Eligible Institution.
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All signatures on this Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed by an Eligible Institution (as defined
below) unless the Old F4L Notes tendered or withdrawn, as the case may be,
pursuant thereto are tendered (i) by a registered holder(s) (which term, for
purposes of this Letter of Transmittal, shall include any participant in DTC,
MSTC or PDTC whose name appears on a security position listing as the owner of
Old F4L Notes) of Old F4L Notes who has not completed the box entitled "SPECIAL
ISSUANCE AND PAYMENT INSTRUCTIONS" or "SPECIAL DELIVERY INSTRUCTIONS" on this
Letter of Transmittal or (ii) for the account of an Eligible Institution. If Old
F4L Notes are registered in the name of a person other than the signer of this
Letter of Transmittal or a notice of withdrawal, as the case may be, or if
payment is to be made or certificates for unexchanged Old F4L Notes are to be
issued or returned to a person other than the registered holder, then the Old
F4L Notes must be endorsed by the registered Noteholder(s), or be accompanied by
a written instrument or instruments of transfer or exchange in form satisfactory
to Food 4 Less duly executed by the registered Noteholder(s), with such
signatures guaranteed by an Eligible Institution. In the event that signatures
on this Letter of Transmittal (or other document) are required to be guaranteed,
such guarantee must be by a firm that is a member of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. (the "NASD") or by a commercial bank or trust company having an
office in the United States (each of the foregoing being an "Eligible
Institution").
5. SPECIAL ISSUANCE, PAYMENT AND DELIVERY INSTRUCTIONS. Tendering
Noteholders should indicate, in the applicable box, the name and address to
which New F4L Notes, the Exchange Payment or Old F4L Notes for principal amounts
not accepted for exchange (each, as appropriate) are to be issued, sent or paid,
if different from the name and address of the person submitting this Letter of
Transmittal. In the case of issuance or payment in a different name, the tax
identification number of the person named must also be indicated and a
Substitute Form W-9 for such recipient must be completed. See Instruction 6. If
no such instructions are given, New F4L Notes, the Exchange Payment or Old F4L
Notes not accepted for exchange (each, as appropriate) will be sent to the name
and address of the person signing this Letter of Transmittal or, at Food 4 Less'
option, by crediting the account at DTC, MSTC or PDTC designated above in the
box entitled "SPECIAL ISSUANCE AND PAYMENT INSTRUCTIONS."
6. SUBSTITUTE FORM W-9. The tendering Noteholder is required to provide the
Exchange Agent (as payor) with his or her correct taxpayer identification number
("TIN") on the Substitute Form W-9 included in this Letter of Transmittal. In
the case of a tendering Noteholder who has completed the box entitled "SPECIAL
ISSUANCE AND PAYMENT INSTRUCTIONS" above, however, the correct TIN on Form W-9
should be provided for the recipient of the securities delivered pursuant to
such instructions. Failure to provide the information on the form will cause the
Exchange Agent to withhold 31% of any payments made to the tendering Noteholder
or such recipient, as the case may be, until such information is received. See
"IMPORTANT TAX INFORMATION" below.
7. TRANSFER TAXES. Food 4 Less will pay all transfer taxes, if any,
applicable to the exchange of Old F4L Notes pursuant to the Exchange Offers. If,
however, New F4L Notes, the Exchange Payment or Old F4L Notes not accepted for
exchange (each as appropriate), are to be delivered to, or are to be registered
or issued in the name of, any person other than the registered holder of the Old
F4L Notes, or if tendered Old F4L Notes are to be registered in the name of any
person other than the person signing this Letter of Transmittal, or if a
transfer tax is imposed for any reason other than the exchange of Old F4L Notes
pursuant to an Exchange Offer, then the amount of any such transfer tax (whether
imposed on the registered holder or any other person) will be payable by the
tendering holder. If satisfactory evidence of payment of such tax or exemption
therefrom is not submitted, then the amount of such transfer tax will be
deducted from the Exchange Payment otherwise payable to such tendering holder.
Any remaining amount will be billed directly to such tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 7, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
8. WAIVER OF CONDITIONS. Food 4 Less reserves the absolute right to amend
in any respect or waive any of the specified conditions in either of the
Exchange Offers in the case of any Old F4L Notes tendered.
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9. MUTILATED, LOST, STOLEN OR DESTROYED OLD F4L NOTES. If a Noteholder
desires to tender Old F4L Notes pursuant to an Exchange Offer, but any such Old
F4L Note has been mutilated, lost, stolen or destroyed, such holder should write
to or telephone the Old Trustee under the Old Indenture under which such Old F4L
Note was issued, at the address listed below, concerning the procedures for
obtaining replacement certificates for such Old F4L Note, arranging for
indemnification or any other matter that requires handling by such Old Trustee:
Old F4L Senior Note Trustee: Norwest Bank Minnesota, N.A.
Sixth & Marquette
Minneapolis, Minnesota 55479-0013
Attn: Corporate Trust Department
(612) 667-8058
Old F4L Senior Subordinated Note United States Trust Company of New York
Trustee: 114 West 47th Street
New York, New York 10036-1532
Attention: Corporate Trust Department
(212) 852-1000
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter of Transmittal, may be directed to the Information
Agent, D.F. King & Co., Inc., (800) 669-5550.
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IMPORTANT TAX INFORMATION
GENERAL
Under federal income tax law, a holder whose tendered Old F4L Notes are
accepted for exchange is required to provide the Exchange Agent with such
holder's correct taxpayer identification number on the Substitute Form W-9
included in this Letter of Transmittal. If such holder is an individual, the
taxpayer identification number is his or her social security number. If the
Exchange Agent is not provided with the correct taxpayer identification number
or adequate basis for exemption, the holder may be subject to a $50 penalty
imposed by the Internal Revenue Service. In addition, payments that are made to
such holder in exchange for tendered Old F4L Notes or in respect of the New F4L
Notes may be subject to backup withholding.
Certain holders of Old F4L Notes (including, among others, all corporations
and certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, that holder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Exchange Agent. See the enclosed Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9 for additional
instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the holder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained.
WHAT NUMBER TO GIVE TO EXCHANGE AGENT
The holder is required to give the Exchange Agent the social security
number or employer identification number of the registered holder of the Old F4L
Notes. If the certificates for Old F4L Notes are registered in more than one
name or are not in the name of the actual owner, consult the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional guidance on which number to report.
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TO BE COMPLETED BY ALL TENDERING
HOLDERS OF OLD F4L NOTES
(SEE INSTRUCTION 6)
- - --------------------------------------------------------------------------------------------------
PAYOR'S NAME: BANKERS TRUST COMPANY
- - --------------------------------------------------------------------------------------------------
SUBSTITUTE Social Security Number
FORM W-9
--------------------------------------
DEPARTMENT OF THE PART I -- PLEASE PROVIDE YOUR OR
TREASURY INTERNAL TAXPAYER IDENTIFICATION NUMBER
REVENUE SERVICE IN THE BOX AT THE RIGHT AND
CERTIFY BY SIGNING AND DATING Employer Identification
BELOW. Number
PAYOR'S REQUEST FOR --------------------------------------
TAXPAYER IDENTIFICATION
NUMBER (TIN)
------------------------------------------------------------------------
PART II -- For Payees exempt from backup withholding, see the Important
Tax Information above and Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 enclosed herewith and
complete as instructed therein.
- - --------------------------------------------------------------------------------------------------
CERTIFICATIONS -- Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or 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 to the payer, 31% of all reportable payments made to me thereafter will
be withheld until I provide a number to the payer and that, if I do not provide my Taxpayer
Identification Number within sixty (60) days, such retained amounts shall be remitted to the
Internal Revenue Service ("IRS") as backup withholding.
(2) I am not subject to backup withholding either because I have not been notified by the IRS
that I am subject to backup withholding as a result of a failure to report all interest or
dividends or the IRS has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTION -- You must cross out item (2) above if you have been notified by the
IRS that you are subject to backup withholding because of underreporting interest or dividends on
your tax return. However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS that you were no longer subject to
backup withholding, do not cross out item (2). (Also see the IMPORTANT TAX INFORMATION above.)
- - ---------------------------------------------------------------------------------------------
Name
---------------------------------------------------------------------------------------
(Please Print)
Address
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
(Including Zip Code)
Signature Date
--------------------------------------------------- -------------------------
- - ------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE "GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9" FOR ADDITIONAL DETAILS.
IMPORTANT: This Letter of Transmittal or a facsimile thereof (together with Old
F4L Notes and all other required documents) must be received by the Exchange
Agent on or prior to the Expiration Date.
Your bank or broker can assist you in completing this form. The
Instructions included in this Letter of Transmittal must be followed.
Requests for assistance or additional copies of the Prospectus or this
Letter of Transmittal may be obtained from the Information Agent at the address
or telephone numbers set forth below.
The Information Agent for the Exchange Offers and the Solicitation is:
D.F. KING & CO., INC.
Call Toll Free: (800) 669-5550
77 Water Street
New York, NY 10005
(212) 269-5550 (collect)
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