1
EXHIBIT 99.1
FITZGERALDS GAMING CORPORATION
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
12 1/4% SENIOR SECURED NOTES DUE 2004, SERIES A
OF
FITZGERALDS GAMING CORPORATION
CUSIP NOS. 338271-AD-1, 338271-AE-9 AND U33785-AA-1
PURSUANT TO THE PROSPECTUS
DATED JUNE ___, 1998
FITZGERALDS GAMING CORPORATION WILL ACCEPT ALL OLD NOTES (AS HEREINAFTER
DEFINED) TENDERED AND NOT WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON
JULY __, 1998, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN
AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent is:
The Bank of New York
By Facsimile: By Hand Delivery or Overnight Courier By Mail
212-815-5915 The Bank of New York The Bank of New York
Confirm by Telephone: 101 Barclay Street, Floor 2100 101 Barclay Street, Floor 2100
212-815-3800 New York, New York 10286 New York, New York 10286
Attention: Corporate Trust Administration Attention: Corporate Trust Administration
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS SET FORTH IN THIS
LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL
IS COMPLETED.
The undersigned acknowledges receipt of the Prospectus dated
June ___, 1998 (the "Prospectus"), of Fitzgeralds Gaming Corporation (the
"Company"), and this Letter of Transmittal (the "Letter of Transmittal"), which
together with the Prospectus constitute the Company's offer (the "Exchange
Offer") to exchange $1,000 principal amount of its 12 1/4% Senior Secured Notes
due 2004, Series B (the "New Notes") for each $1,000 principal amount of the
Company's outstanding 12 1/4% Senior Secured Notes due 2004, Series A (the "Old
Notes"). Recipients of the Prospectus should read the requirements described in
such Prospectus with respect to eligibility to participate in the Exchange
Offer. Capitalized terms used but not defined herein have the meaning given to
them in the Prospectus.
This Letter of Transmittal is to be used by Holders of Old Notes
(each, an "Old Noteholder") if certificates representing Old Notes are to be
forwarded herewith pursuant to the procedures set forth in the section of the
Prospectus entitled "The Exchange Offer - Procedures for Tendering."
Any beneficial owner whose Old Notes are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact such registered Old Noteholder promptly and instruct
such registered Old Noteholder to tender on behalf of the beneficial owner. If
such beneficial owner wishes to tender on his own behalf, such beneficial owner
must, prior to completing and executing this Letter of Transmittal and
delivering his Old Notes, either make appropriate arrangements to register
ownership of the Old Notes in such beneficial owner's name or obtain a properly
completed bond power from the registered Old Noteholder. The transfer of record
ownership may take considerable time.
-1-
2
In order to properly complete this Letter of Transmittal, an Old
Noteholder must (i) complete the box entitled "Description of Old Notes," (ii)
if appropriate, check and complete the boxes relating to guaranteed delivery,
Special Issuance Instructions and Special Delivery Instructions, (iii) sign the
Letter Of Transmittal by completing the box entitled "Sign Here" and (iv)
complete the Substitute Form W-9. Each Old Noteholder should carefully read the
detailed Instructions below prior to completing this Letter of Transmittal.
Old Noteholders who desire to tender their Old Notes for exchange
and whose Old Notes are not immediately available or who cannot deliver their
Old Notes and all other documents required hereby to the Exchange Agent on or
prior to the Expiration Date must tender the Old Notes pursuant to the
guaranteed delivery procedures set forth in the section of the Prospectus
entitled "The Exchange Offer - Guaranteed Delivery Procedures." See
Instruction 2.
Old Noteholders who wish to tender their Old Notes for exchange
must, at a minimum, complete columns (1) through (3) in the box below entitled
"Description of Old Notes" and sign the box below entitled "Sign Here." If only
those columns are completed, such Old Noteholder will have tendered for exchange
all Old Notes listed in column (3) below. If the Old Noteholder wishes to tender
for exchange less than all of such Old Notes, column (4) must be completed in
full. In such case, such Old Noteholder should refer to Instruction 5.
- ------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES
- ------------------------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4)
NAME(S) AND ADDRESS(ES) OF REGISTERED OLD NOTEHOLDER(S) OLD NOTE AGGREGATE PRINCIPAL AMOUNT
(PLEASE FILL IN, IF BLANK) NUMBER(S) PRINCIPAL AMOUNT TENDERED FOR EXCHANGE
(ATTACH SIGNED LIST (ONLY IF DIFFERENT
IF NECESSARY) AMOUNT FROM COLUMN (3))
(MUST BE IN INTEGRAL
MULTIPLES OF $1,000)*
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
* Column (4) need not be completed by Old Noteholders who wish to tender for
exchange the principal amount of Old Notes listed in column (3). Completion
of column (4) will indicate that the Old Noteholder wishes to tender for
exchange only the principal amount of Old Notes indicated in column (4).
[ ] CHECK HERE IF TENDERED OLD NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY ENCLOSED HEREWITH AND COMPLETE THE FOLLOWING (FOR
USE BY ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Old Noteholder(s)____________________________
Date of Execution of Notice of Guaranteed Delivery_________________
Window Ticket Number (if available)________________________________
Name of Institution which Guaranteed Delivery______________________
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name_______________________________________________________________
Address____________________________________________________________
-2-
3
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8)
_______________________________________________________________________________
To be completed ONLY if the New Notes issued in exchange for Old Notes,
certificates for Old Notes in a principal amount not exchanged for New Notes or
Old Notes (if any) not tendered for exchange, are to be issued in the name of
someone other than the undersigned.
Issue to:
Name___________________________________________________________________________
(Please Print)
Address________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Include Zip Cope)
_______________________________________________________________________________
(Tax Identification or Social Security No.)
_______________________________________________________________________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8)
_______________________________________________________________________________
To be completed ONLY if the New Notes issued in exchange for Old Notes,
certificates for Old Notes in a principal amount not exchanged for New Notes or
Old Notes (if any) not tendered for exchange, are to be mailed or delivered to
someone other than the undersigned or to the undersigned at an address other
than the address shown below the undersigned's signature.
Mail or deliver to:
Name___________________________________________________________________________
(Please Print)
Address________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Include Zip Cope)
_______________________________________________________________________________
(Tax Identification or Social Security No.)
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Pursuant to the offer by Fitzgeralds Gaming Corporation (the
"Company"), upon the terms and subject to the conditions set forth in the
Prospectus dated June ___, 1998 (the "Prospectus") and this Letter of
Transmittal (the "Letter of Transmittal"), which together with the Prospectus
constitute the Company's offer (the "Exchange Offer") to exchange $1,000
principal amount of its 12 1/4% Senior Secured Notes due 2004, Series B (the
"New Notes") for each $1,000 principal amount of its outstanding 12 1/4% Senior
Secured Notes due 2004, Series A (the "Old Notes"). The undersigned hereby
tenders to the Company for exchange the Old Notes indicated above.
By executing this Letter of Transmittal and subject to and
effective upon acceptance for exchange of the Old Notes tendered for exchange
herewith, the undersigned will have irrevocably sold, assigned, transferred and
exchanged, to the Company all right, title and interest in, to and under all of
the Old Notes tendered for exchange hereby, and hereby appoints the Exchange
Agent as the true and lawful agent and attorney-in-fact (with full knowledge
that the Exchange Agent also acts as agent of the Company) of such Old
Noteholder with respect to such Old Notes, with full power of substitution to
(i) deliver certificates representing such Old Notes to the Company, (ii)
present and deliver such Old Notes for transfer on the books of the Company and
(iii) receive all benefits and otherwise exercise all rights and incidents of
beneficial ownership with respect to such Old Notes, all in accordance with the
terms of the Exchange Offer. The power of attorney granted in this paragraph
shall be deemed to be irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that the undersigned
is the owner, and has a net long position (within the meaning of Rule 14e-4
under the Securities Exchange Act, as amended ("Rule 14e-4")) equal to or
greater than the principal amount of the Old Notes tendered hereby, and has full
power and authority to exchange, assign and transfer the Old Notes tendered for
exchange hereby, and that when such Old Notes are accepted for exchange by the
Company, the Company will acquire good and marketable title thereto, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claims. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Exchange Agent or the Company to be necessary
or desirable to complete the exchange, assignment and transfer of the Old Notes
tendered for exchange hereby.
The undersigned hereby further represents to the Company that (i)
the New Notes to be acquired by the undersigned in exchange for the Old Notes
tendered hereby and any beneficial owner(s) of such Old Notes ("Beneficial
Owner(s)") in
-3-
4
connection with the Exchange Offer will be acquired by the undersigned and such
Beneficial Owner(s) in the ordinary course of business of the undersigned and
such Beneficial Owner(s), (ii) the undersigned (if not a broker-dealer referred
to in the last sentence of this paragraph) and each Beneficial Owner are not
participating and do not intend to participate in the distribution of the New
Notes, (iii) the undersigned and each Beneficial Owner have no arrangement or
understanding with any person to participate in the distribution of the New
Notes, (iv) the undersigned and each Beneficial Owner acknowledge and agree that
any person participating in the Exchange Offer for the purpose of distributing
the New Notes must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction of the New Notes acquired by such person, (v) the undersigned and
each Beneficial Owner understand that a secondary resale transaction described
in clause (iv) above should be covered by an effective registration statement
containing the selling securityholder information required by Item 507 of
Regulation S-K of the SEC and (vi) neither the undersigned nor any Beneficial
Owner is an "affiliate" of the Company, as defined under Rule 405 of the
Securities Act, except as otherwise disclosed to the Company, as the case may
be, in writing. If the undersigned is a broker-dealer that will receive New
Notes for its own account in exchange for Old Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus in connection with any resale of such New
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. BROKER-DEALERS MAY NOT RECEIVE NEW NOTES IN
EXCHANGE FOR OLD NOTES THAT SUCH BROKER-DEALER ACQUIRED DIRECTLY FROM THE
COMPANY IN CONNECTION WITH THEIR ORIGINAL ISSUANCE AND SALE.
For purposes of the Exchange Offer, the Company will be deemed to
have accepted for exchange, and to have exchanged, validly tendered Old Notes,
if, as and when the Company gives oral or written notice thereof to the Exchange
Agent. Tenders of Old Notes for exchange may be withdrawn at any time prior to
5:00 p.m., New York City time, on the Expiration Date. See "The Exchange
Offer -- Withdrawal of Tenders" in the Prospectus. Any Old Notes tendered by the
undersigned and not accepted for exchange will be returned to the undersigned at
the address set forth above unless otherwise indicated in the box above entitled
"Special Delivery Instructions."
The undersigned acknowledges that the Company's acceptance of Old
Notes validly tendered for exchange pursuant to any one of the procedures
described in the section of the Prospectus entitled "The Exchange Offer" and in
the instructions hereto will constitute a binding agreement between the
undersigned and the Company upon the terms and subject to the conditions of the
Exchange Offer.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions," please return any Old Notes not tendered for exchange in the
name(s) of the undersigned. Similarly, unless otherwise indicated in the box
entitled "Special Delivery Instructions," please mail any certificates for Old
Notes not tendered or exchanged (and accompanying documents, as appropriate) to
the undersigned at the address shown below the undersigned's signature(s). In
the event that both "Special Issuance Instructions" and "Special Delivery
Instructions" are completed, please issue the certificates representing the New
Notes issued in exchange for the Old Notes accepted for exchange in the name(s)
of, and return any Old Notes not tendered for exchange or not exchanged to, the
person(s) so indicated. The undersigned recognizes that the Company has no
obligation pursuant to the "Special Issuance Instructions" and "Special Delivery
Instructions" to transfer any Old Notes from the name of the Old Noteholder(s)
thereof if the Company does not accept for exchange any of the Old Notes so
tendered for exchange.
A tender for exchange of Old Notes pursuant to any one of the
procedures set forth in the section of the Prospectus entitled "The Exchange
Offer" will constitute the tendering Old Noteholder's acceptance of the terms
and conditions of the Exchange Offer as well as the tendering Old Noteholder's
representation and warranty that (i) such Old Noteholder has net long position
(within the meaning of Rule 14e-4) equal to or greater than the principal amount
of the Old Notes being tendered hereby and (ii) the tender of such Old Notes
complies with Rule 14e-4 (to the extent that Rule 14e-4 is applicable to such
exchange).
IN ORDER TO VALIDLY TENDER OLD NOTES FOR EXCHANGE, OLD NOTEHOLDERS
MUST COMPLETE, EXECUTE, AND DELIVER THIS LETTER OF TRANSMITTAL.
Except as stated in the Prospectus, all authority herein conferred
or agreed to be conferred shall survive the death 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. Except as otherwise stated in the Prospectus, this tender for
exchange of Old Notes is irrevocable.
-4-
5
SIGN HERE
_______________________________________________________________________________
_______________________________________________________________________________
Signature(s) of Owner(s)
Dated: _______________________, 1994
Must be signed by the registered Old Noteholder(s) exactly as
name(s) appear(s) on certificate(s) representing the Old Notes or on a security
position listing or by person(s) authorized to become registered Old
Noteholder(s) by certificates and documents transmitted herewith. If signature
is by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, please provide the following information. See Instruction 6.
Name(s)________________________________________________________________________
_______________________________________________________________________________
(Please Print)
Capacity (full title)__________________________________________________________
Address________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(Include Zip Code)
Area Code and Telephone No.____________________________________________________
Tax Identification or
Social Security Nos.___________________________________________________________
PLEASE COMPLETE SUBSTITUTE FORM W-9
GUARANTEE OF SIGNATURE(S) (SIGNATURE(S)
MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 1)
Authorized Signature___________________________________________________________
Dated:_________________________________________________________________________
Name and Title_________________________________________________________________
(Please Print)
Name of Firm___________________________________________________________________
-5-
6
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all signatures
on this Letter of Transmittal must be guaranteed by a firm that is a member of a
registered national securities exchange or a member of the National Association
of Securities Dealers, Inc., or by a commercial bank or trust company having an
office or correspondent in the United States (an "Eligible Institution").
Signatures on this Letter of Transmittal need not be guaranteed (i) if this
Letter of Transmittal is signed by the registered holder(s) of the Old Notes
tendered herewith and such registered holder(s) have not completed the box
entitled "Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (ii) if such Old Notes are
tendered for the account of an Eligible Institution. IN ALL OTHER CASES, ALL
SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES: GUARANTEED DELIVERY
PROCEDURE. This Letter of Transmittal is to be completed by Old Noteholders (i)
if certificates are to be forwarded herewith or (ii) if tenders are to be made
pursuant to the procedures for tender by guaranteed delivery set forth in the
section of the Prospectus entitled "The Exchange Offer." Certificates for all
physically tendered Old Notes as well as a properly completed and duly executed
copy of this Letter of Transmittal or facsimile hereof, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth on the cover of this Letter of Transmittal prior to
5:00 p.m., New York City time, on the Expiration Date. Old Noteholders who elect
to tender Old Notes and whose Old Notes are not immediately available or who
cannot deliver the Old Notes or other required documents to the Exchange Agent
prior to 5:00 p.m., New York City time, on the Expiration Date may have such
tender effected if: (a) such tender is made by or through an Eligible
Institution; (b) prior to 5:00 p.m., New York City time, on the Expiration Date,
the Exchange Agent has received from such Eligible Institution a properly
completed and duly executed Letter of Transmittal (or a facsimile hereof) and
Notice of Guaranteed Delivery (by telegram, telex, facsimile transmission, mail
or hand delivery) setting forth the name and address of the holder of such Old
Notes and the principal amount of Old Notes tendered for exchange, stating that
tender is being made thereby and guaranteeing that, within five New York Stock
Exchange trading days after the Expiration Date, the certificates representing
such Old Notes in proper form for transfer, and any other documents required by
this Letter of Transmittal, will be deposited by such Eligible Institution with
the Exchange Agent; and (c) certificates for all tendered Old Notes, together
with a copy of the previously executed Letter of Transmittal and any other
documents required by this Letter of Transmittal are received by the Exchange
Agent within five New York Stock Exchange trading days after the Expiration
Date.
THE METHOD OF DELIVERY OF OLD NOTES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING OLD
NOTEHOLDER. EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE
ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. NEITHER THIS LETTER OF TRANSMITTAL NOR ANY OLD NOTES SHOULD BE SENT
TO THE COMPANY.
No alternative, conditional or contingent tenders will be accepted.
All tendering Old Noteholders, by execution of this Letter of Transmittal (or
facsimile hereof, if applicable), waive any right to receive notice of the
acceptance of their Old Notes for exchange.
3. INADEQUATE SPACE. If the space provided in the box entitled "Description of
Old Notes" above is inadequate, the certificate numbers and principal amounts of
the Old Notes being tendered should be listed on a separate signed schedule
affixed hereto.
4. WITHDRAWALS. A tender of Old Notes may be withdrawn at any time prior to 5:00
p.m., New York City time, on the Expiration Date by delivery of written notice
of withdrawal to the Exchange Agent at the address set forth on the cover of the
Letter of Transmittal. To be effective, a notice of withdrawal of Old Notes must
(i) specify the name of the person who tendered the Old Notes to be withdrawn
(the "Depositor"), (ii) identify the Old Notes to be withdrawn (including the
certificate number or numbers and aggregate principal amount of such Old Notes,
(iii) be signed by the Old Noteholder in the same manner as the original
signature on the Letter of Transmittal by which such Old Notes were tendered
(including any required signature guarantees) or be accompanied by documents of
transfer sufficient to have the applicable transfer agent register the transfer
of such Old Notes into the name of the person withdrawing the tender and (iv)
specify the name in which any such Old Notes are to be registered, if different
from that of the Depositor. Withdrawals of tenders of Old Notes may not be
rescinded, and any Old Notes withdrawn will thereafter be deemed not validly
tendered for purposes of the Exchange Offer and no New Notes will be issued with
respect thereto unless the Old Notes so withdrawn are validly retendered.
Properly withdrawn Old Notes may be retendered by following one of the
procedures described in the section of the Prospectus entitled "The Exchange
Offer-Procedures for Tendering" at any time prior to 5:00 p.m., New York City
time, on the Expiration Date.
-6-
7
5. PARTIAL TENDERS. Tenders of Old Notes will be accepted only in integral
multiples of S1,000 principal amount. If a tender for exchange is to be made
with respect to less than the entire principal amount of any Old Notes, fill in
the principal amount of Old Notes which are tendered for exchange in column (4)
of the box entitled "Description of Old Notes," as more fully described in the
footnotes thereto. In case of a partial tender for exchange, a new certificate,
in fully registered form, for the remainder of the principal amount of the Old
Notes, will be sent to the Old Noteholder unless otherwise indicated in the
appropriate box on this Letter of Transmittal as promptly as practicable after
the expiration or termination of the Exchange Offer.
6. SIGNATURES ON THIS LETTER OF TRANSMITTAL, POWERS OF ATTORNEY AND
ENDORSEMENTS.
(a) The signature(s) of the Old Noteholder(s) on this Letter of
Transmittal must correspond with the name(s) as written on the face of the Old
Notes without alteration, enlargement or any change whatsoever.
(b) If any tendered Old Notes are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
(c) If any tendered Old Notes are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter of Transmittal and any necessary or required
documents as there are different registrations of certificates.
(d) When this Letter of Transmittal is signed by the Old
Noteholder(s) of the Old Notes listed and transmitted hereby, no endorsements of
Old Notes or separate powers of attorney are required. If, however, Old Notes
not tendered or not accepted, are to be issued or returned in the name of a
person other than the Old Noteholder(s), then the Old Notes transmitted hereby
must be endorsed or accompanied by appropriate powers of attorney in a form
satisfactory to the Company, in either case signed exactly as the name(s) of the
Old Noteholder(s) appear(s) on the Old Notes. Signatures on such Old Notes or
powers of attorney must be guaranteed by an Eligible Institution (unless signed
by an Eligible Institution).
(e) If this Letter of Transmittal or Old Notes or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
proper evidence satisfactory to the Company of their authority so to act must be
submitted.
(f) If this Letter of Transmittal is signed by a person other than
the registered Old Noteholder(s) of the Old Notes listed, the Old Notes must be
endorsed or accompanied by appropriate powers of attorney, in either case signed
exactly as the name(s) of the registered Old Noteholder(s) appear(s) on the
certificates. Signatures on such Old Notes or powers of attorney must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
7. TRANSFER TAXES. Except as set forth in this Instruction 7, the Company will
pay all transfer taxes, if any, applicable to the transfer and exchange of Old
Notes pursuant to the Exchange Offer. If, however, issuance of New Notes is to
be made to, or Old Notes not tendered for exchange are to be issued or returned
in the name of, any person other than the Old Noteholder, the amount of any
transfer taxes payable on account of the transfer to such person will be imposed
on and payable by the Old Noteholder(s) tendering Old Notes for exchange prior
to the issuance of the New Notes.
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
8. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If the New Notes are to be
issued, or if any Old Notes not tendered for exchange are to be issued or sent,
to someone other than the Old Noteholder or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
9. IRREGULARITIES. All questions as to the form of documents and the validity,
eligibility (including time of receipt), acceptance and withdrawal of Old Notes
will be determined by the Company, in its sole discretion, whose determination
shall be final and binding. the Company reserves the absolute right to reject
any or all tenders for exchange of any particular Old Notes that are not in
proper form, or the acceptance of which would, in the opinion of the Company or
its counsel, be unlawful. The Company reserves the absolute right to waive any
defect, irregularity or condition of tender for exchange with regard to any
particular Old Notes. The Company's interpretation of the terms of, and
conditions to, the Exchange Officer (including the instructions herein) will be
final and binding. Unless waived, any defects or irregularities in connection
with the Exchange Offer must be cured within such time as the Company shall
determine. None of the Company, the Exchange Agent or any other person shall be
under any duty to give notice of any defects or irregularities in Old Notes
tendered for exchange, nor shall any of them incur any liability for failure to
give any such notice. A tender of Old Notes will not be deemed to have been made
until all defects and irregularities with respect to such tender have been cured
or waived. Any Old Notes received by the Exchange
-7-
8
Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering holders, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive
certain of the specified conditions as described under "The Exchange
Offer-Conditions of the Exchange Offer" in the Prospectus in the case of any Old
Notes tendered (except as otherwise provided in the Prospectus).
11. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. If an Old Noteholder desires
to tender an Old Note pursuant to the Exchange Offer, but the Old Note has been
mutilated, lost, stolen or destroyed, such Old Noteholder should write to or
telephone the Trustee at the address listed below, concerning the procedures for
obtaining replacement certificates for such Old Notes, arranging for
indemnification or any other matter that requires handling by the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-3800
12. REQUESTS FOR INFORMATION OR ADDITIONAL COPIES. Requests for information or
for additional copies of the Prospectus and this Letter of Transmittal may be
directed to the Exchange Agent at the address or telephone number set forth on
the cover of this Letter of Transmittal.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE THEREOF, IF
APPLICABLE) TOGETHER WITH CERTIFICATES, OR THE NOTICE OF GUARANTEED DELIVERY,
AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under current federal income tax law, an Old Noteholder whose
tendered Old Notes are accepted for exchange is required to provide the Company
(as payor), through the Exchange Agent, with such Old Noteholder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 or otherwise
establish a basis for exemption from backup withholding. If such Old Noteholder
is an individual, the TIN is such Old Noteholder's social security number. If
the Exchange Agent is not provided with the correct taxpayer identification
number, the Old Noteholder may be subject to a $50 penalty imposed by the
Internal Revenue Service. In addition, delivery of such Old Noteholder's New
Notes may be subject to backup withholding.
Certain Old Noteholders (including, among others, all corporations
and certain foreign individuals) are not subject to these backup withholding and
reporting requirements. Exempt Old Noteholders should indicate their exempt
status on Substitute Form W-9. A foreign individual may qualify as an exempt
recipient by submitting to the Exchange Agent a properly completed Internal
Revenue Service Form W-8 (which the Exchange Agent will provide upon request)
signed under penalty of perjury, attesting to the Old Noteholder's exempt
status. See the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional instructions.
If backup withholding applies, the Company is required to withhold
31% of any payment made to the Old Noteholder or other payee. Backup withholding
is not an additional federal income tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made with
respect to Old Notes exchanged in the Exchange Offer, each Old Noteholder is
required to provide the Exchange Agent with either: (i) the Old Noteholder's
correct TIN by completing the form below, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such Old Noteholder is awaiting a TIN)
and that (A) the Old Noteholder has not been notified by the Internal Revenue
Service that he or she is subject to backup withholding as a result of a failure
to report all interest or dividends or (B) the Internal Revenue Service has
notified the Old Noteholder that he or she is no longer subject to backup
withholding; or (ii) an adequate basis for exemption.
-8-
9
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Old Noteholder is required to give the Exchange Agent the TIN
(e.g., social security number or employer identification number) of the record
owner of the Old Notes. If the Old Notes are held in more than one name or are
not held 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 regarding which number to report.
- ----------------------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK
- ----------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 - PLEASE PROVIDE YOUR
FORM W-9 TIN IN THE BOX AT RIGHT AND
DEPARTMENT OF THE TREASURY CERTIFY BY SIGNING AND DATING BELOW. Social Security Number
INTERNAL REVENUE SERVICE OR
Employer Identification Number
--------------------------------------------------------------------------------------
PAYER'S REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER (TIN) PART 2 - Certification - Under PART 3 -
Penalties of Perjury, I certify that: Awaiting TIN [ ]
(1) The number shown on this form is my
correct Taxpayer Identification Number
(or I am waiting for a number to be
issued to me) and
(2) I am not subject to backup withholding
either because I have not been notified
by the Internal Revenue Service (the
"lRS") 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.
Certificate Instructions - You must cross out
item (2) in Part 2 above if you have
been notified by the IRS that you are
subject to backup withholding because of
underreporting interest or dividends on
your tax return. However, if after being
notified by the IRS that you were
subject to backup withholding you
received another notification from the
IRS stating that you are no longer
subject to backup withholding, do not
cross out item (2).
SIGNATURE___________________________ DATE_________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENT MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
-9-
10
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and 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 such an application in the near future. I understand
that if I do not provide a taxpayer identification number within sixty (60)
days, 31% of all reportable payments made to me thereafter will be withheld
until I provide such a number.
- ---------------------------------------- ---------------------------------
Signature Date
-10-
11
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempt from backup withholding on ALL payments include the
following: A corporation. A finance institution. An organization exempt from tax
under Section 501(a), or an individual retirement plan, or a custodial account
under Section 403(b)(7). The United States or any agency or instrumentality
thereof. A State, the District of Columbia, a possession of the United States,
or any subdivision or instrumentality thereof. A foreign government, a political
subdivision of a foreign government, or any agency or instrumentality thereof An
international organization or any agency, or instrumentality thereof A dealer in
securities or commodities required to register in the U.S. or a possession of
the U.S. A real estate investment trust. A common trust fund operated by a bank
under Section 584(a). A trust exempt from tax under Section 664 or described in
Section 4947. An entity registered at all times during the tax year under the
Investment Company Act of 1940. A foreign central bank of issue. Payments made
to a middleman known in the investment community as a nominee or listed in the
most recent publication of the American Society of Corporate Secretaries, Inc.,
Nominee List. A futures commission merchant registered with the Commodity
Futures Trading Commission.
Payments of dividends and patronage dividends not generally subject
to backup withholding include the following: Payments to nonresidential aliens
subject to withholding under Section 1441. Payments to partnerships not engaged
in a trade or business in the U.S. and which have at least one nonresident
partner. Payments of patronage dividends where the amount received is not paid
in money. Payments made by certain foreign organizations.
Payments made to a nominee.
Payments of interest not generally subject to backup withholding
include the following: Payments of interest on obligations issued by
individuals. Note: You may be subject to backup withholding if this interest is
$600 or more and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the payer.
Payments of tax-exempt interest (including exempt interest dividends under
Section 852). Payments described in Section 6049(b)(5) to nonresident aliens.
Payments of tax-free covenant bonds under Section 1451. Payments made by certain
foreign organizations. Mortgage interest paid by you. Payments made to a
nominee.
Exempt payees described above should file Form W-9 to avoid
possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage
dividends that are not subject to information reporting are also not subject to
backup withholding. For details, see Sections 6041, 6041(a), 6042, 6044, 6045,
6049, 6050A and 6050N, and the regulations thereunder.
PRIVACY ACT NOTICE--Section 6109 requires most recipients of
dividend interest, or other payments to give taxpayer identification numbers to
payers who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold 20%
of certain taxable payments to a payee who does not furnish a taxpayer
identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of S50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN PAYMENTS--If you fail to include properly on your
tax return certain items reported to the IRS such failure will be treated as
being due to negligence and will be subject to a penalty of 20% on any portion
of an underpayment of tax attributable to that failure unless there is clear and
convincing evidence to the contrary.
-11-
12
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING--If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE TAX SERVICE.
-12-