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EXHIBIT 99.1
CONSENT AND LETTER OF TRANSMITTAL
TO TENDER AND TO CONSENT TO
CERTAIN INDENTURE AMENDMENTS WITH RESPECT TO THE
15.25% SENIOR DISCOUNT NOTES DUE 2004
OF
FOOD 4 LESS HOLDINGS, INC.
PURSUANT TO THE OFFER TO PURCHASE
AND SOLICITATION STATEMENT DATED MAY 12, 1995
THE OFFER AND THE SOLICITATION WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON JUNE 9, 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BE WITHDRAWN AND CONSENTS MAY ONLY BE REVOKED UNDER THE CIRCUMSTANCES DESCRIBED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 OFFER TO PURCHASE AND SOLICITATION STATEMENT.
TO THE DEPOSITARY:
BANKERS TRUST COMPANY
By Hand Delivery or
Overnight Courier: Facsimile Transmission: By Mail:
Bankers Trust Company (212) 250-6275
Corporate Trust & Agency Group (212) 250-3290 Bankers Trust Company
Reorganization Department Confirm by Telephone: Corporate Trust & Agency Group
Receipt & Delivery Window (212) 250-6270 Reorganization Department
123 Washington St., First Floor P.O. Box 1458
New York, NY 10006 Church Street Station
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 DISCOUNT NOTES
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You must consent to the Proposed Amendments with respect to the Discount Notes tendered hereby. The tender of Discount Notes
hereby will constitute a Consent to the Proposed Amendments with respect to such Discount Notes. If you are not the registered
holder of your Discount Notes, you must either have the Discount 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 Discount Notes to tender them.
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CERTIFICATE(S) TENDERED
(ATTACH ADDITIONAL SCHEDULE IF NECESSARY)
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(1) (2) (3)
AGGREGATE
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) PRINCIPAL
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) CERTIFICATE AMOUNT
APPEAR(S) ON DISCOUNT NOTES) 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 Offer with respect to any Discount Notes you must tender all of such Discount Notes beneficially
owned by you.
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The undersigned acknowledges receipt of the Offer to Purchase and
Solicitation Statement dated May 12, 1995 (as the same may be amended or
supplemented from time to time, the "Offer to Purchase"), of Food 4 Less
Holdings, Inc. ("Holdings") relating to (i) the offer (the "Offer") by Holdings,
upon the terms and subject to the conditions set forth in the Offer to Purchase
and in this Consent and Letter of Transmittal and the instructions hereto (the
"Letter of Transmittal"), to holders of its 15.25% Senior Discount Notes due
2004 (the "Discount Notes") to purchase for $785.00 in cash plus accrued cash
interest thereon at a rate of 15.25% per annum from and after March 15, 1995
until the Closing Date (the "Cash Consideration") for each $1,000 principal
amount (at maturity) of Discount Notes accepted for purchase and (ii) the
solicitation (the "Solicitation") of consents (the "Consents") from holders of
the Discount Notes ("Noteholders") to the proposed amendments (the "Proposed
Amendments") to the indenture under which the Discount Notes were issued (the
"Discount Note Indenture") (as described in the Offer to Purchase under the
captions "The Proposed Amendments" and "Appendix A -- Description of the
Discount Notes.")
Holders of Discount Notes who desire to accept the Offer will be required
to consent to the Proposed Amendments with respect to such Discount Notes. The
tender of Discount Notes under this Letter of Transmittal will constitute such
consent. Noteholders who do not tender Discount Notes pursuant to the Offer will
not be eligible to consent to the Proposed Amendments. Each Noteholder who
desires to accept the Offer with respect to any Discount Notes must tender all
of such Noteholders' Discount Notes. Capitalized terms used in this Letter of
Transmittal but not defined herein have the respective meanings given them in
the Offer to Purchase. Unless otherwise indicated, references herein to the
Offer shall be deemed to include the Solicitation.
THE OFFER AND THE SOLICITATION ARE NOT BEING MADE TO (NOR WILL THE
SURRENDER OF DISCOUNT NOTES FOR PURCHASE BE ACCEPTED FROM OR ON BEHALF OF)
NOTEHOLDERS IN ANY JURISDICTION IN WHICH THE MAKING OR ACCEPTANCE OF THE OFFER
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 Discount Notes are to be
physically delivered herewith or (ii) if delivery of Discount Notes is to be
made by book-entry transfer to the account maintained by the Depositary 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 Offer to Purchase under the caption "The Offer to Purchase and
Solicitation -- Procedures for Tendering and Consenting." Delivery of documents
to a Book-Entry Transfer Facility does not constitute delivery to the
Depositary.
If certificates for Discount Notes are not immediately available or cannot
be delivered along with other required documents to the Depositary or the
procedure for book-entry transfer cannot be completed on or prior to the
Expiration Date, the Noteholder may tender such Discount Notes according to the
guaranteed delivery procedures set forth in the Offer to Purchase under the
caption "The Offer to Purchase and Solicitation -- Guaranteed Delivery
Procedure." See Instruction 2 herein.
Noteholders who wish to tender their Discount Notes pursuant to the Offer
and consent to the Proposed Amendments must complete the box entitled
"DESCRIPTION OF DISCOUNT NOTES" and sign below.
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METHOD OF DELIVERY
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/ / CHECK HERE IF CERTIFICATES FOR TENDERED DISCOUNT NOTES ARE ENCLOSED
HEREWITH.
/ / CHECK HERE IF TENDERED DISCOUNT NOTES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE
SOLICITATION 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 DISCOUNT NOTES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE SOLICITATION
AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s) of Discount 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 Discount Notes
Upon the terms and subject to the conditions contained in the Offer to
Purchase and this Letter of Transmittal, the undersigned hereby Consents to the
Proposed Amendments with respect to the Discount Notes indicated above and
tenders to Holdings the Discount Notes indicated above. Tendering Noteholders
will be deemed to have Consented to the Proposed Amendments with respect to all
Discount Notes tendered.
Subject to and effective upon acceptance for purchase of the Discount Notes
tendered herewith, the undersigned hereby sells, assigns and transfers to or
upon the order of Holdings 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 Discount Notes tendered hereby. The
undersigned hereby appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Discount 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
Discount Notes, or transfer ownership of such Discount 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
Holdings, (b) present such Discount Notes for transfer on the register, (c)
deliver the Consent contained herein to Holdings and the trustee (the "Trustee")
under the Discount Note Indenture and (d) receive all benefits and otherwise
exercise all right of beneficial ownership of such Discount Notes all in
accordance with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned accepts
the terms and conditions contained in the Offer to Purchase and this Letter of
Transmittal, owns the Discount 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
Discount Notes tendered hereby and that Holdings 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
Depositary or Holdings to be necessary or desirable to complete the sale,
assignment and transfer of the Discount 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 Discount Notes pursuant to the Offer may be withdrawn and
Consents may be revoked, subject to the procedures described in the Offer to
Purchase under "The Offer to Purchase and Solicitation -- Withdrawal of Tenders
and Revocation of Consents," and under Instruction 3 herein, at any time until
the "Consent Date," which shall be such time as the Requisite Consents (as
defined under Instruction 3 herein) with respect to the Discount Notes have been
received and the Supplemental Indenture (as defined) has been executed.
Thereafter, such tenders may be withdrawn and Consents may be revoked if the
Offer is terminated without any Discount Notes being accepted for purchase
thereunder. Holdings shall be deemed to have accepted for purchase, and to have
purchased validly tendered and not properly withdrawn Discount Notes in the
Offer when, as and if Holdings has given oral or written notice thereof to the
Depositary.
Upon receipt of the Requisite Consents from holders of Discount Notes,
Holdings will certify in writing to the Trustee that the Requisite Consents to
the adoption of the Proposed Amendments have been received with respect to the
Discount Notes. Except as set forth under Instruction 2 herein and in the Offer
to Purchase under "The Offer to Purchase and Solicitation -- Guaranteed Delivery
Procedure," Consents from tendering holders of Discount Notes will not be
counted towards determining whether Holdings has received the Requisite Consents
unless Holdings is prepared to accept the tender of Discount Notes to which such
Consents relate. In addition, Consents with respect to Discount Notes will not
be counted if the tender of such Discount Notes is defective, unless Holdings
waives such defect. After receipt by the Trustee of, among other things,
certification by Holdings that the Requisite Consents have been received,
Holdings and the Trustee will execute a supplemental indenture to evidence the
adoption of the Proposed Amendments (a "Supplemental Indenture"). Upon the
acceptance by Holdings of the Requisite Consents from holders of Discount Notes
and the execution of the Supplemental Indenture, such Supplemental Indenture
will immediately become effective. Although the Proposed Amendments relating to
the Discount Notes will become effective upon certification that the Requisite
Consents from holders of the Discount Notes have been received, such Proposed
Amendments will not be operative until Holdings has accepted for purchase all
Discount Notes validly tendered and not withdrawn. Holdings will not be
obligated to pay the Cash Consideration pursuant to the Offer unless, among
other things, the Requisite Consents to the adoption of the Proposed Amendments
have been received. The withdrawal of Discount Notes in accordance with the
procedures set forth in the Offer to Purchase under "The Offer to Purchase and
Solicitation -- Withdrawals of
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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 Discount Notes to which such
Consents relate defective and Holdings 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 Offer to Purchase, Holdings may not be required to accept any of the
Discount Notes tendered (as described in the Offer to Purchase under the caption
"The Offer to Purchase and Solicitation -- Conditions"). Discount Notes not
accepted for purchase 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 PAYMENT INSTRUCTIONS" or "SPECIAL
DELIVERY INSTRUCTIONS" below, the Depositary will deliver the Cash Consideration
(and, if applicable, return Discount Notes for any principal amount of Discount
Notes not accepted for purchase) to the undersigned at the address set forth
above. The undersigned understands that holders who tender Discount Notes by
book-entry transfer ("Book-Entry Holders") may request that any Discount Notes
not accepted for purchase 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 PAYMENT INSTRUCTIONS" below.
The undersigned recognizes that Holdings has no obligation pursuant to "SPECIAL
PAYMENT INSTRUCTIONS" to transfer any Discount Notes from the name of the
registered holder thereof if Holdings does not accept for purchase any of such
Discount Notes. See Instruction 5.
The undersigned understands that tenders of Discount Notes pursuant to any
one of the procedures described under "The Offer to Purchase and
Solicitation -- Procedures for Tendering and Consenting" in the Offer to
Purchase and in the instructions hereto will constitute a binding agreement
between the undersigned and Holdings in accordance with the terms and subject to
the conditions of the contained in the Offer to Purchase and this Letter of
Transmittal.
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THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF DISCOUNT
NOTES" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL, WILL BE DEEMED TO HAVE
TENDERED SUCH DISCOUNT NOTES, CONSENTED TO THE PROPOSED AMENDMENTS WITH RESPECT
TO SUCH DISCOUNT NOTES AND MADE CERTAIN REPRESENTATIONS AS DESCRIBED HEREIN AND
IN THE PROSPECTUS. ONLY REGISTERED HOLDERS OF DISCOUNT NOTES ARE ENTITLED TO
CONSENT TO THE PROPOSED AMENDMENTS. IF THE UNDERSIGNED IS NOT THE REGISTERED
HOLDER OF THE DISCOUNT NOTES TENDERED PURSUANT HERETO, THE UNDERSIGNED MUST
EITHER HAVE THE DISCOUNT 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 Discount Notes as their name(s) appear(s) on certificates for
Discount 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 Discount 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 Discount 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
Address of beneficial holder(s):
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IF THIS LETTER OF TRANSMITTAL IS SIGNED BY A HOLDER OF DISCOUNT NOTES WHO
IS NOT THE REGISTERED HOLDER THEREOF, THEN THE REGISTERED HOLDER MUST SIGN THE
FOLLOWING CONSENT OR A VALID PROXY:
Pursuant to the Offer and the Solicitation of Consents to the Proposed
Amendments, the undersigned hereby consents to the Proposed Amendments with
respect to the Discount Notes tendered hereby and with respect to the Discount
Note Indenture. This consent shall not be deemed to be effective if the
above-described Discount Notes are not accepted for purchase pursuant to the
Offer.
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Signature of Registered Holder
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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 Discount 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 PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Discount Notes not accepted for payment
and/or the check for the Cash Consideration are to be issued in the name of
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
DISCOUNT NOTES" above in this Letter of Transmittal or if Discount 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 DISCOUNT 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 certificates evidencing Discount Notes for amounts not
accepted for payment and/or the check for the Cash Consideration are to be sent
to someone other than the person who submits this Letter of Transmittal at an
address other than that shown in the box entitled "DESCRIPTION OF DISCOUNT
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
OFFER AND THE SOLICITATION
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES. Certificates for
Discount Notes, or any book-entry transfer into the Depositary's account at DTC,
MSTC or PDTC of Discount 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 Depositary 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 Offer and the Solicitation, except as otherwise provided
in Instruction 2, "Guaranteed Delivery Procedures."
Tenders of Discount Notes into the Offer will be accepted only in principal
amounts equal to $1,000 (at maturity) or integral multiples thereof.
The method of delivery of this Letter of Transmittal, certificates for
Discount 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 Depositary. Instead of
effecting delivery by mail, it is recommended that tendering Noteholders use an
overnight or hand delivery service. If Discount 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 Holdings, the Information Agent, the
Dealer Managers, or the Trustee.
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 Depositary 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 Discount Notes and
delivered Consents to the Proposed Amendments will be resolved by Holdings,
whose determination will be final and binding. Holdings reserves the absolute
right to reject any or all tenders and withdrawals of Discount 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 Holdings or
counsel for Holdings, be unlawful. Holdings also reserves the right to waive any
irregularities or conditions of tender, consent or proxy as to particular
Discount Notes. Holdings interpretation of the terms and conditions of the Offer
(including the instructions in this Letter of Transmittal) will be final and
binding. Unless waived, any irregularities in connection with tenders and
withdrawals of Discount Notes and revocations of Consents to the Proposed
Amendments must be cured within such time as Holdings shall determine. Neither
Holdings nor the Depositary 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
Discount 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 Discount Notes received by the Depositary that are not
properly tendered or delivered and to which the irregularities have not been
cured or waived will be returned by the Depositary to the tendering Noteholders
unless otherwise provided in this Letter of Transmittal as soon as practicable
following the Expiration Date.
None of Holdings, the Depositary, 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 Discount Notes
desires to tender such Discount Notes and consent to the Proposed Amendments,
and such holder's Discount Notes are not immediately available, or if time will
not permit such holder's Discount Notes or any other required documents to be
delivered to the Depositary prior to 12:00 Midnight, New York City time, on the
Expiration Date, then such Discount Notes may nevertheless be tendered for
purchase and Consents may be effected if all of the following guaranteed
delivery procedure conditions are met:
(i) the tender for purchase 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 Depositary 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 Holdings herewith, that contains a signature guaranteed by
an Eligible Institution in the form set forth in such Notice of Guaranteed
Delivery, unless such tender is for the account of an Eligible Institution
(in which case no signature guarantee shall be required), and
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sets forth the name and address of the holder of Discount Notes and the
principal amount of Discount Notes tendered for purchase, 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 Discount
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 Depositary; and
(iii) all tendered Discount Notes, or a confirmation of a book-entry
transfer of such Discount Notes into the Depositary'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 Depositary within five NYSE trading
days after the date of execution of the Notice of Guaranteed Delivery.
The YELLOW Notice of Guaranteed Delivery provided herewith shall be used in
connection with tenders of Discount Notes.
Notwithstanding any other provision hereof, the purchase of Discount Notes
pursuant to the Offer will in all cases be made only after timely receipt by the
Depositary of certificates for such Discount 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 Offer to Purchase 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 Discount 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 Discount Notes
pursuant to the Offer will not be eligible to Consent to the Proposed
Amendments. Tendering holders who sign this Letter of Transmittal and tender any
Discount Notes shall be deemed to have Consented to the Proposed Amendments with
respect to such Discount Notes tendered.
Tenders of Discount Notes pursuant to the Offer may be withdrawn and
Consents may be revoked at any time until the "Consent Date," which shall be
such time as the Requisite Consents (Consents of holders representing at least a
majority in aggregate principal amount of the outstanding Discount Notes held by
persons other than Holdings and its affiliates) have been delivered by Holdings
to the Trustee and the Supplemental Indenture has been executed. Thereafter,
such tenders may be withdrawn and Consents may be revoked if the Offer is
terminated without any Discount Notes being accepted for purchase thereunder.
The withdrawal of Discount Notes prior to the 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 Discount Notes to which such Consents relate defective and
Holdings will have the right, which it may waive, to reject such tender as
invalid and ineffective.
Any holder of Discount Notes who has tendered Discount Notes or who
succeeds to the record ownership of Discount Notes in respect of which such
tenders or Consents previously have been given may withdraw such Discount Notes
or revoke such Consents prior to the 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 Depositary at one of its addresses
set forth on the front cover hereof or prior to the time provided herein with
respect to the Discount Notes, (ii) specify the name of the person having
tendered the Discount Notes to be withdrawn or as to which Consents are revoked,
the principal amount of such Discount Notes to be withdrawn and, if certificates
for Discount Notes have been tendered, the name of the registered holder(s) of
such Discount Notes as set forth in such certificates, if different from that of
the person who tendered such Discount Notes, (iii) identify the Discount 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 Discount Notes were tendered (including any required signature guarantees)
or (b) be accompanied by evidence satisfactory to Holdings and the Depositary
that the holder withdrawing such tender or revoking such Consents has succeeded
to beneficial ownership of such Discount Notes. If certificates representing
Discount Notes to be withdrawn or Consents to be revoked have been delivered or
otherwise identified to the Depositary, then the name of the registered holder
and the serial numbers of the particular certificate evidencing the Discount
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 Discount Notes tendered by an Eligible Institution (in which case no
signature guarantee shall be required), must also be so furnished to the
Depositary as aforesaid prior to the physical release of the certificates for
the withdrawn Discount Notes. If Discount 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 Discount Notes.
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Holdings reserves the right to contest the validity of any revocation. A
purported notice of revocation which is not received by the Depositary in a
timely fashion will not be effective to revoke a Consent previously given.
Any permitted withdrawals of tenders of Discount Notes and revocation of
Consents may not be rescinded, and any Discount Notes properly withdrawn will
thereafter be deemed not validly tendered and any Consents revoked will be
deemed not validly delivered for purposes of the Offer or the Solicitation;
provided, however, that withdrawn Discount 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 Holdings shall decide to decrease the amount of Discount Notes being
sought in the Offer or to increase or decrease the consideration offered to the
Discount Noteholders, and if, at the time that notice of such increase or
decrease is first published, sent or given to Discount Noteholders in the manner
specified in the Offer to Purchase, the 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 the
Offer will be extended for such purposes until the expiration of such period of
ten Business Days. As used in the Offer to Purchase, "Business Day" has the
meaning set forth in Rule 14d-1 (and applicable to Regulation 14E) under the
Exchange Act. In addition, if the Offer or the Solicitation is amended in a
manner determined by Holdings to constitute a material adverse change to the
Discount Noteholders, Holdings promptly will disclose such amendment in a public
announcement and will extend the Offer or the Solicitation for a period deemed
by it to be adequate to permit the Discount Noteholders to properly deliver or
withdraw their Discount Notes and give or revoke Consents.
If Holdings extends the Offer, is delayed in its acceptance for purchase of
Discount Notes or is unable to purchase Discount Notes pursuant to the Offer,
for any reason, then, without prejudice to Holdings' rights under the Offer, the
Depositary may, subject to applicable law, retain tendered Discount Notes on
behalf of Holdings, and such Discount Notes may not be withdrawn (subject to
Rule 14e-1 under the Exchange Act, which requires that Holdings deliver the
consideration offered or return the Discount Notes deposited by or on behalf of
the Noteholders promptly after the termination or withdrawal of the 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 Holdings, whose determination will be final and binding on all
parties. None of Holdings, the Depositary, 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 Discount 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 Discount 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 Discount 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 Discount Notes are registered.
If tendered Discount Notes are registered in the name of a person other
than the person signing this Letter of Transmittal, the tendered Discount Notes
must be endorsed or accompanied by appropriate bond powers, signed by the
registered holder or holders of the Discount 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
Holdings of their authority so to act must be submitted.
Endorsements on certificates of Discount Notes or signatures on bond powers
required by this Instruction 4 must be guaranteed by an Eligible Institution.
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 Discount 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
Discount Notes) of Discount Notes who has not completed the box entitled
"SPECIAL PAYMENT INSTRUCTIONS" or "SPECIAL DELIVERY INSTRUCTIONS" on this Letter
of Transmittal or (ii) for the account of an Eligible
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Institution. If Discount 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 Discount Notes not
purchased are to be issued or returned to a person other than the registered
holder, then the Discount 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 Holdings 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 PAYMENT AND DELIVERY INSTRUCTIONS. Tendering Noteholders should
indicate, in the applicable box, the name and address to which the Cash
Consideration and/or Discount Notes for principal amounts not accepted for
purchase 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, the Cash
Consideration and/or Discount Notes not accepted for purchase will be sent to
the name and address of the person signing this Letter of Transmittal or, at
Holdings' option, by crediting the account at DTC, MSTC or PDTC designated above
in the box entitled "SPECIAL PAYMENT INSTRUCTIONS."
6. SUBSTITUTE FORM W-9. The tendering Noteholder is required to provide the
Depositary (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
PAYMENT INSTRUCTIONS" above, however, the correct TIN on Form W-9 should be
provided for the recipient of the securities and/or payment delivered pursuant
to such instructions. Failure to provide the information on the form will cause
the Depositary 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. Holdings will pay all transfer taxes, if any, applicable
to the purchase of Discount Notes pursuant to the Offer. If, however, the Cash
Consideration and/or Discount Notes not accepted for purchase 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 Discount Notes, or if tendered Discount 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 purchase of Discount Notes pursuant to 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 Cash Consideration and/or otherwise
payable 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. Holdings reserves the absolute right to amend in
any respect or waive any of the specified conditions in the Offer and the
Solicitation in the case of any Discount Notes tendered.
9. MUTILATED, LOST, STOLEN OR DESTROYED DISCOUNT NOTES. If a Noteholder
desires to tender Discount Notes pursuant to the Offer, but any such Discount
Note has been mutilated, lost, stolen or destroyed, such holder should write to
or telephone the Trustee under the Discount Note Indenture, at the address
listed below, concerning the procedures for obtaining replacement certificates
for such Discount Note, arranging for indemnification or any other matter that
requires handling by the Trustee:
United States Trust Company of New York
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 Offer
to Purchase 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 Discount Notes are
accepted for purchase is required to provide the Depositary 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 Depositary 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 Discount Notes may be subject to backup withholding.
Certain holders of Discount 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 Depositary. See the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies, the Depositary 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 Depositary the social security number or
employer identification number of the registered holder of the Discount Notes.
If the certificates for Discount 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 DISCOUNT NOTES
(SEE INSTRUCTION 6)
- --------------------------------------------------------------------------------
PAYOR'S NAME: BANKERS TRUST COMPANY
- --------------------------------------------------------------------------------
SUBSTITUTE
Social Security Number
FORM W-9
-----------------------
PART I -- PLEASE PROVIDE OR
YOUR TAXPAYER IDENTIFICATION
DEPARTMENT OF THE TREASURY NUMBER IN THE BOX AT THE
INTERNAL REVENUE SERVICE RIGHT AND CERTIFY BY
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
Discount Notes and all other required documents) must be received by the
Depositary 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 Offer to Purchase 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 Offer 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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