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CONSENT AND
LETTER OF TRANSMITTAL
TO TENDER AND TO GIVE CONSENT TO PROPOSED AMENDMENTS TO THE INDENTURE IN RESPECT
OF 12% SENIOR SUBORDINATED PAY-IN-KIND DEBENTURES DUE MARCH 15, 2002
(THE "SENIOR DEBENTURES")
OF
XXXX REAL ESTATE GROUP, INC.
(FORMERLY, THE BOLSA CHICA COMPANY)
(CUSIP NO. 097679 AA 2)
PURSUANT TO THE PROXY STATEMENT/PROSPECTUS AND DISCLOSURE STATEMENT
DATED , 1997
THE OFFER TO EXCHANGE WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN DAYLIGHT TIME, ON
JUNE , 1997 (THE "EXPIRATION DATE"), UNLESS EXTENDED. HOLDERS OF SENIOR
DEBENTURES MUST TENDER THEIR SENIOR DEBENTURES AND PROVIDE THEIR CONSENTS TO
THE PROPOSED AMENDMENTS ON OR PRIOR TO 12:00 MIDNIGHT EASTERN DAYLIGHT TIME ON
THE EXPIRATION DATE IN ORDER TO RECEIVE THE EXCHANGE OFFER CONSIDERATION.
TENDERED SENIOR DEBENTURES MAY BE WITHDRAWN AND CONSENTS MAY BE REVOKED AT ANY
TIME PRIOR TO 12:00 MIDNIGHT, EASTERN DAYLIGHT TIME, ON THE EXPIRATION DATE,
BUT NOT THEREAFTER. THE EXCHANGE OFFER IS CONDITIONED UPON THE SATISFACTION OF
CERTAIN CONDITIONS, INCLUDING AMONG OTHER THINGS, THE VALID TENDER OF AT LEAST
90% IN AGGREGATE PRINCIPAL AMOUNT OF ALL OUTSTANDING DEBENTURES OF THE COMPANY
OWNED BY PERSONS OTHER THAN THE COMPANY, ITS SUBSIDIARIES AND CERTAIN OF THEIR
AFFILIATES.
TO EXCHANGE AGENT: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
BY MAIL: FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT DELIVERY:
P.O. Box 3301 (FOR ELIGIBLE INSTITUTIONS ONLY) 000 Xxxxxxxx
Xxxxx Xxxxxxxxxx, XX 00000 (000) 000-0000 13th Floor
Attn: Reorganization Dept. CONFIRM BY TELEPHONE: New York, New York 10271
(000) 000-0000 Attn: Reorganization Dept.
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL
NOT CONSTITUTE A VALID DELIVERY. The accompanying instructions should be read
carefully before this Consent and Letter of Transmittal is completed.
Capitalized terms used in this Consent and Letter of Transmittal not otherwise
defined herein shall have the meanings provided in the Proxy
Statement/Prospectus and Disclosure Statement dated April , 1997 (the
"Prospectus") of Xxxx Real Estate Group, Inc., a Delaware corporation (the
"Company").
List below the Senior Debentures that are to be tendered pursuant to this
Consent and Letter of Transmittal. If the space below is inadequate, list the
information requested below on a separate signed schedule and affix the list to
this Consent and Letter of Transmittal.
DESCRIPTION OF SENIOR DEBENTURES TENDERED
PRINCIPAL AMOUNT
TENDERED AND
AGGREGATE PRINCIPAL AS TO WHICH
NAMES AND ADDRESS(ES) OF HOLDER(S) CERTIFICATE NUMBER(S) AMOUNT REPRESENTED BY CONSENTS ARE
(PLEASE FILL IN, BLANK) (1) CERTIFICATES (2) DELIVERED (2)
TOTAL PRINCIPAL AMOUNT TENDERED
(1) Need not be completed by Holders who tender by book-entry.
(2) Unless otherwise indicated in this column, any tendering Holder will be deemed to have tendered, and delivered Consents with
respect to, the entire principal amount represented by the Senior Debentures indicated in this column. See Instruction 5.
/ / IF THE PRINCIPAL AMOUNT PRESENTED HEREWITH DOES NOT EQUAL THE AMOUNT
PRINTED ON THE LABEL ABOVE, AND YOU ARE UNABLE TO LOCATE SUCH
CERTIFICATE(S) TO SUBMIT HEREWITH AND YOU WISH TO TENDER SUCH
CERTIFICATE(S), PLEASE CHECK THIS BOX AND COMPLETE THE AFFADAVIT OF LOSS.
The undersigned acknowledges that he or she has received the Prospectus and
this Consent and Letter of Transmittal, which together constitute (i) the
Company's offer (the "Exchange Offer") to exchange an aggregate of up to
9,217,320 shares of the Company's post-Capital Stock Combination and
post-Reverse Stock Split Common Stock (the "Common Stock") for up to all of the
Company's outstanding 12% Senior Subordinated Debentures due March 15, 2002 (the
"Senior Debentures"), on a 56 shares per $1000 principal amount basis, and (ii)
the Company's solicitation (the "Consent Solicitation") of consents (the
"Consents") from persons in whose names the Senior Debentures are registered on
the books of the registrar for the Senior Debentures (the "Holders") to certain
amendments (the "Proposed Amendments") to the Indenture (the "Indenture")
pursuant to which the Senior Debentures were issued. The consideration payable
by the Company for the Senior Debentures is set forth in the Prospectus. HOLDERS
WHO TENDER THEIR SENIOR DEBENTURES PURSUANT TO THE EXCHANGE OFFER WILL BE
DEEMED, BY ACCEPTANCE OF THE EXCHANGE OFFER, TO CONSENT TO THE PROPOSED
AMENDMENTS.
HOLDERS MAY NOT CONSENT TO THE PROPOSED AMENDMENTS WITHOUT TENDERING THEIR
SENIOR DEBENTURES. Holders who do not tender their Senior Debentures and deliver
their Consents and Letters of Transmittal on or prior to 12:00 midnight, Eastern
Daylight Time, on the Expiration Date will not receive the Exchange Offer
consideration. See "Procedure for Tendering Outstanding Debentures and Giving
Consents" in the Prospectus. No Holder may withdraw any tendered Senior
Debentures or revoke a Consent following 12:00 midnight, Eastern Daylight Time,
on the Expiration Date. The Company will issue certificates for shares of Common
Stock in exchange for tendered Senior Debentures as promptly as practicable
after such Senior Debentures are accepted for exchange pursuant to the Exchange
Offer.
The Exchange Offer or Consent Solicitation may be extended, terminated or
amended, as provided in the Prospectus. During any such extension of the
Exchange Offer or Consent Solicitation, all Senior Debentures previously
tendered and Consents delivered and not withdrawn or revoked pursuant to the
Exchange Offer that have not been accepted for exchange will remain subject to
the Exchange Offer and may be accepted thereafter for exchange by the Company.
No alternative, conditional or contingent tenders will be accepted. A
tendering Holder, by execution of this Consent and Letter of Transmittal, or
facsimile thereof, waives all rights to receive notice of acceptance of such
Xxxxxx's Senior Debentures for exchange.
PLEASE READ THIS ENTIRE CONSENT AND LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY INFORMATION REQUESTED HEREIN
This Consent and Letter of Transmittal is to be completed by Holders of
Senior Debentures if certificates representing such Senior Debentures are to be
forwarded herewith or if delivery of such certificates are to be made by
book-entry transfer to the account established by the Exchange Agent at The
Depository Trust Company ("DTC"), pursuant to the procedures set forth in this
Consent and Letter of Transmittal and in the Prospectus under the caption
"Procedure for Tendering Outstanding Debentures and Giving Consents," or
"Book-Entry Transfer Procedures." PURSUANT TO THE TERMS OF THE EXCHANGE OFFER
AND CONSENT SOLICITATION, THE COMPLETION, EXECUTION AND DELIVERY OF THIS CONSENT
AND LETTER OF TRANSMITTAL WILL BE DEEMED TO CONSTITUTE A CONSENT TO THE PROPOSED
AMENDMENTS.
Holders of Senior Debentures that are tendering by book-entry transfer to
the Exchange Agent's account at DTC can execute the tender through the DTC
Automated Tender Offer Program ("ATOP"), for which the transaction will be
eligible. DTC participants that are accepting the Exchange Offer must transmit
their acceptance to DTC (in accordance with DTC procedures) which will verify
the acceptance and execute a book-entry delivery to the Exchange Agent's account
at DTC. DTC will then send an agent's message ("Agent's Message") to the
Exchange Agent, which Agent's Message shall state that DTC has received an
express acceptance from each Holder tendering through ATOP that each such Holder
has received this Consent and Letter of Transmittal and has agreed to be bound
by the terms and conditions hereof. Delivery by DTC of the Agent's Message, and
receipt thereof by the Exchange Agent will satisfy the terms of the Exchange
Offer as to execution and delivery of a Consent and Letter of Transmittal by
each Holder identified in the Agent's Message.
2
Holders whose certificates representing the Senior Debentures are not
immediately available or who cannot deliver certificates and all other required
documents to the Exchange Agent or complete the procedure for book-entry
transfer on or prior to the Expiration Date, may nevertheless tender Senior
Debentures pursuant to the guaranteed delivery procedure set forth in the
Prospectus under the caption "Guaranteed Delivery Procedures." See Instruction 2
on pages 9 and 10 below.
/ / CHECK HERE IF ALL OR SOME CERTIFICATES FOR TENDERED SENIOR DEBENTURES ARE
ENCLOSED HEREWITH. IF ONLY SOME SUCH CERTIFICATES ARE ENCLOSED HEREWITH,
PLEASE CHECK BOX BELOW AND EXECUTE AN AFFIDAVIT OF LOSS.
/ / CHECK HERE IF TENDERED SENIOR DEBENTURES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN DTC MAY DELIVER SENIOR
DEBENTURES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ____________________________________________
Account Number ___________________________________________________________
Transaction Code Number __________________________________________________
/ / CHECK HERE IF TENDERED SENIOR DEBENTURES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Holders _______________________________________________________
Window Ticket Number (if any) ____________________________________________
Date of Execution of Notice of Guaranteed Delivery and Consent ___________
Name of Eligible Institution that guaranteed delivery ____________________
If delivery by book-entry transfer, check box here: / /
Account Number ___________________________________________________________
Transaction Code Number __________________________________________________
NOTE: SIGNATURE(S) AND
TAXPAYER IDENTIFICATION NUMBER MUST BE PROVIDED.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
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Only Holders are entitled to tender their Senior Debentures in the Exchange
Offer and consent to the Proposed Amendments in the Consent Solicitation. Any
financial institution that is a participant in DTC's system and whose name
appears on a security position listing as the record owner of the Senior
Debentures and who wishes to make book-entry delivery of the Senior Debentures
as described above and to consent to the Proposed Amendments must complete,
execute and deliver this Consent and Letter of Transmittal to DTC, which will
then send an Agent's message to the Exchange Agent (as described above). Persons
who are beneficial owners of Senior Debentures but are not Holders and who seek
to tender Senior Debentures and deliver Consents to the Proposed Amendments
should (i) contact the Holder of such Senior Debentures and instruct such Holder
to tender and consent on his or her behalf, (ii) obtain and include with this
Consent and Letter of Transmittal Senior Debentures properly endorsed for
transfer by the Holder or accompanied by a properly completed bond power from
the Holder, together with a properly completed irrevocable proxy that authorizes
such person to consent to the Proposed Amendments on behalf of such Holder, with
signatures on the endorsement or bond power guaranteed by a firm that is a
member of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc. or by a commercial bank, trust company,
credit union or savings association having an office in the United States (each,
an "Eligible Institution") or (iii) effect a record transfer of such Senior
Debentures from the Holder to such beneficial owner and comply with the
requirements applicable to Holders for tendering Senior Debentures and
delivering Consents prior to 12:00 midnight, Eastern Daylight Time, on the
Expiration Date, as the case may be.
A HOLDER WHO TENDERS SENIOR DEBENTURES PURSUANT TO THE EXCHANGE OFFER WILL
BE DEEMED, BY ACCEPTANCE OF THE EXCHANGE OFFER TO CONSENT TO THE PROPOSED
AMENDMENTS. HOLDERS WHO WISH TO RECEIVE COMMON STOCK PURSUANT TO THE EXCHANGE
OFFER MUST TENDER THEIR SENIOR DEBENTURES AND DELIVER CONSENTS PRIOR TO 12:00
MIDNIGHT, EASTERN DAYLIGHT TIME, ON THE EXPIRATION DATE. SEE "PROCEDURE FOR
TENDERING OUTSTANDING DEBENTURES AND GIVING CONSENTS" IN THE PROSPECTUS.
TO: XXXX REAL ESTATE GROUP, INC.
Upon the terms and subject to the conditions of the Exchange Offer and
Consent Solicitation, the undersigned hereby tenders to the Company the Senior
Debentures indicated on page 1 above. Subject to, and effective upon, acceptance
for exchange for the Senior Debentures tendered herewith, the undersigned hereby
sells, assigns and transfers to or upon the order of the Company all rights,
title and interest in and to all such Senior Debentures tendered hereby. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent the
true and lawful agent and attorney-in-fact of the undersigned (with full
knowledge that the Exchange Agent also acts as agent of the Company) with
respect to such Senior Debentures, with full power of substitution and
resubstitution (such power of attorney being, deemed to be an irrevocable power
coupled with an interest) to (a) deliver certificates representing such Senior
Debentures, or transfer ownership of such Senior Debentures on the account books
maintained by DTC, together, in each such case, with all accompanying evidences
of transfer and authenticity to or upon the order of the Company, (b) present
such Senior Debentures for transfer on the relevant security registrar and (c)
receive all benefits or otherwise exercise all rights of beneficial ownership on
behalf of the Company of such Senior Debentures all in accordance with the terms
of the Exchange Offer and Consent Solicitation. EXECUTION AND DELIVERY OF THIS
CONSENT AND LETTER OF TRANSMITTAL WILL ALSO BE DEEMED TO CONSTITUTE A CONSENT TO
THE PROPOSED AMENDMENTS.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS FULL
POWER AND AUTHORITY TO TENDER, SELL, ASSIGN AND TRANSFER THE SENIOR DEBENTURES
TENDERED HEREBY AND TO GIVE THE CONSENT CONTAINED HEREIN AND, THAT WHEN THE SAME
ARE ACCEPTED FOR EXCHANGE BY THE COMPANY, THE COMPANY WILL ACQUIRE GOOD,
MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND
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CLEAR OF ALL SECURITY INTERESTS, LIENS, RESTRICTIONS, CLAIMS, CHARGES,
ENCUMBRANCES, CONDITIONAL SALES AGREEMENTS OR OTHER OBLIGATIONS RELATING TO THE
SALE OR TRANSFER THEREOF, AND NOT BE SUBJECT TO ANY ADVERSE CLAIM. 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 ASSIGNMENT, TRANSFER AND EXCHANGE OF THE SENIOR DEBENTURES TENDERED
HEREBY. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER AND CONSENT SOLICITATION. DELIVERY OF THE ENCLOSED SENIOR
DEBENTURES SHALL BE EFFECTED, AND RISK OF LOSS AND TITLE TO SUCH SENIOR
DEBENTURES SHALL PASS, ONLY UPON PROPER DELIVERY THEREOF TO THE EXCHANGE AGENT
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER.
All authority conferred or agreed to be conferred pursuant to this Consent
and Letter of Transmittal and every obligation of the undersigned hereunder
shall be binding, upon the successors, assigns, heirs, executors,
administrators, trustees in bankruptcy, and personal and legal representatives
of the undersigned and shall not be affected by, and shall survive, the death or
incapacity of the undersigned. Senior Debentures properly tendered may be
withdrawn and Consents may be revoked at any time prior to 12:00 midnight,
Eastern Daylight Time, on the Expiration Date.
The Exchange Offer and Consent Solicitation are subject to a number of
conditions, each of which may be waived or modified by the Company, in whole or
in part, at any time and from time to time, as described in the Prospectus under
the caption "Conditions of the Exchange Offers." The undersigned recognizes that
as a result of such conditions the Company may not be required to accept the
Senior Debentures properly tendered hereby. In such event, the tendered Senior
Debentures not accepted for exchange will be returned to the undersigned without
cost to the undersigned as soon as practicable following the earlier to occur of
the Expiration Date or the date on which the Exchange Offer is terminated
without any Senior Debentures being purchased thereunder, at the address shown
below the undersigned's signature(s) unless otherwise indicated under "Special
Payments Instructions" below.
Unless otherwise indicated below under "Special Payment Instructions" or
"Special Delivery Instructions," as applicable, please send share certificates
for Common Stock to be issued in exchange for any Senior Debentures tendered
hereby and accepted for exchange, and/or return any certificates representing
Senior Debentures not tendered or not accepted for exchange in the name(s) of
the Holder(s) and to the addressees appearing under "Description of Senior
Debentures Tendered" herein. In the event that both the Special Payment
Instructions and the Special Delivery Instructions are completed, please issue
and send the share certificates for Common Stock to be issued in exchange for
any Senior Debentures tendered hereby and/or return any certificates
representing Senior Debentures not tendered or not accepted for exchange to, the
person or persons so indicated. Unless otherwise indicated under "Special
Payment Instructions," in the case of a book-entry delivery of Senior
Debentures, please credit the account maintained at DTC with any Senior
Debentures not tendered or not accepted for exchange. The undersigned recognizes
that the Company does not have any obligation pursuant to the Special Payment
Instructions to transfer any Senior Debentures from the name of the Holder
thereof if the Company does not accept for exchange any of the Senior Debentures
so tendered.
5
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8) (SEE INSTRUCTIONS 1, 6, 7 AND 8)
To be completed ONLY if Common Stock share certificates to To be completed ONLY if the Common Stock share certificates
be issued in exchange for the Senior Debentures accepted for to be issued in exchange for the Subordinated Debentures
exchange, and/or certificates representing Senior Debentures accepted for exchange, and/or certificates representing
not accepted for exchange are to be issued in the name of Subordinated Debentures not accepted for exchange are to be
someone other than the undersigned, or if Senior Debentures sent to someone other than the undersigned or to the
delivered by book-entry transfer not accepted for exchange undersigned at an address other than that indicated on page
are to be returned by credit to an account maintained at DTC 1 above.
other than the account indicated on page 1 above. Mail: Common Stock Share Certificate(s) to
Issue: Common Stock Share Certificate(s) to Name:
Name: (Please Print)
(Please Print) Address:
Address:
(Include Zip Code)
(Including Zip Code)
(Taxpayer Identification or Social Security Number)
(Taxpayer Identification or Social Security Number)
Credit unpurchased Senior Debentures delivered by
book-entry transfer to the DTC account set forth below:
(Account Number)
6
AFFIDAVIT OF LOST OR DESTROYED DEBENTURE CERTIFICATE
AND AGREEMENT OF INDEMNITY
NAME ___________________________________________________________________________
ADDRESS ________________________________________________________________________
CITY/STATE/ZIP _________________________________________________________________
CERTIFICATE NUMBER(S) __________________________________________________________
PRINCIPAL AMOUNT _______________________________________________________________
REGISTERED IN THE NAME OF ______________________________________________________
The undersigned person(s), being first duly sworn, deposes and says that: I am
the lawful owner of the above described certificate(s) and Debentures. The
certificate(s) (WERE NOT) (WERE) [circle appropriate word(s)] endorsed, cashed
negotiated, transferred, assigned, or otherwise disposed of. I have made a
diligent search for the certificate(s) and have been unable to find it and make
this affidavit for the purpose of including the cancellation and replacement or
liquidation of the certificate(s) and the exchange of the Debentures represented
thereby without the surrender of the certificate(s), and hereby agree to
surrender the certificate(s) for cancellation should I, at any time, find the
certificate(s).
I, hereby agree, for myself, my heirs, assigns and personal representatives,
that in consideration of the proceeds of the sale of the replacement of the
Debentures representative by the certificate(s) agree to completely indemnify,
protect and hold harmless Federal Insurance Company (the Surety), the Exchange
Agent, the Company, and any other party to the transaction (the "obligees"),
from and against all loss, costs and damages, including court costs and
attorneys' fees, which they may be subject to or liable for in respect of the
cancellation and replacement of the certificate(s). The right accuring to the
Obligees under the preceding sentence shall not be limited by the negligence,
inadvertence, accident, oversight or breach of any duty or obligation on the
part of the obligees or their respective officers, employees and agents or their
failure to inquire into, contest, or litigate any claims, whichever such
negligence, inadvertence, accident, oversight, breach or failure may occur or
have occurred. I agree that this Affidavit is delivered to accompany a bond of
indemnity #8302-00-67 underwritten by Federal Insurance Company to protect the
foregoing obligees.
Any person who, knowingly and with intent to defraud any insurance company or
other person, files an application for insurance, containing any materially
false information, or conceals for the purpose of misleading, information
concerning any fact material thereto, commits a fraudulent insurance act, which
is a crime.
Signed, sealed, and delivered by affiant this _________ day of
___________________ 19____
______________________________________
Signature of Affiant (S.S. #: )
YOUR SIGNATURE MUST BE NOTARIZED
On this _________ day of ___________________ 19____ before me personally
appeared ______________________________________ known to me to be the
individual(s) who executed the foregoing instrument, and being duly sworn, did
depose and say that the statements contained therein are true.
(Affix Notarial Seal) ______________________________________
My Commission Expires ________________
7
HOLDERS OF SENIOR DEBENTURES SIGN HERE
IMPORTANT: COMPLETE AND SIGN THE SUBSTITUTE FORM W-9 IN
THIS CONSENT AND LETTER OF TRANSMITTAL
X_______________________________________________________________________________
X_______________________________________________________________________________
Signature(s) of Holder(s) of Securities
Dated: , 1997 (Must be signed by the Holder(s) exactly as name(s)
appear(s) on certificates) representing the Senior Debentures or on a security
position listing or by person(s) authorized to become Holder(s) by certificates
and documents transmitted herewith. If signature is by attorney-in-fact,
executor, administrator, trustee, guardian, officer of a corporation or other
person acting in a fiduciary or representative capacity, please provide the
following information and see Instruction 6.)
Capacity (Full Title) __________________________________________________________
Name(s) ________________________________________________________________________
(Please Type or Print)
Address ________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number _________________________________________________
Tax Identification or Social Security No. ______________________________________
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 6)
Authorized Signature ___________________________________________________________
Name ___________________________________________________________________________
(Please Type or Print)
Address ________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number _________________________________________________
Dated: ____________________________
8
INSTRUCTIONS
1. GUARANTEE OF SIGNATURES. Signatures on this Consent and Letter of
Transmittal must be guaranteed by an Eligible Institution unless the Senior
Debentures tendered hereby are tendered (i) by a Holder of Senior Debentures (or
by a participant in DTC whose name appears on a security position listing as the
owner of such Senior Debentures) who has not completed either the box entitled
"Special Delivery Instructions" or "Special Payment Instructions" above, or (ii)
for the account of a member firm of an Eligible Institution. If the Senior
Debentures are registered in the name of a person other than the signer of this
Consent and Letter of Transmittal or if Senior Debentures not accepted for
exchange or not tendered are to be returned to a person other than the
registered Holder, then the signatures on the Consents and Letters of
Transmittal accompanying the tendered Senior Debentures must be guaranteed by an
Eligible Institution as described above. Persons who are beneficial owners of
Senior Debentures but are not Holders and who seek to tender Senior Debentures
and deliver Consents to the Proposed Amendments should (i) contact the Holder of
such Senior Debentures and instruct such Holder to tender and consent on his or
her behalf, (ii) obtain and include with this Consent and Letter of Transmittal,
Senior Debentures properly endorsed for transfer by the Holder or accompanied by
a properly completed bond power from the Holder, together with a properly
completed irrevocable proxy that authorizes such person to consent to the
Proposed Amendments on behalf of such Holder, with signatures on the endorsement
or bond power guaranteed by an Eligible Institution or (iii) effect a record
transfer of such Senior Debentures from the Holder to such beneficial owner and
comply with the requirements applicable to Holders for tendering Senior
Debentures and delivering Consents prior to 12:00 midnight, Eastern Daylight
Time, on the Expiration Date. See Instruction 6.
2. REQUIREMENTS OF TENDER AND CONSENT. This Consent and Letter of
Transmittal is to be completed by Holders of Senior Debentures if certificates
representing such Senior Debentures are to be forwarded herewith or if delivery
is to be made by book-entry transfer to the account maintained by DTC, pursuant
to the procedures set forth in the Prospectus under the captions "Procedure for
Tendering Outstanding Debentures and Giving Consents" and "Book-Entry Transfer
Procedures." All Holders who wish to tender their Senior Debentures must, prior
to 12:00 midnight, Eastern Daylight Time, on the Expiration Date: (i) complete,
sign and deliver this Consent and Letter of Transmittal, or a facsimile thereof,
to the Exchange Agent, in person or to the address set forth on page 1 hereof,
together with any signature guarantees and any other documents required in
Instructions 1-12 hereof, and (ii) tender (and not withdraw) his or her properly
endorsed certificates representing such Senior Debentures to the Exchange Agent,
or if a tender of a Senior Debenture is to be made by book-entry transfer to the
Exchange Agent's account at DTC, confirm such book-entry transfer and the
receipt by the Exchange Agent of the Agent's Message, in each case in accordance
with the procedures set forth in this Consent and Letter of Transmittal.
PURSUANT TO THE TERMS OF THE EXCHANGE OFFER AND CONSENT SOLICITATION, THE
COMPLETION, EXECUTION AND DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL OR
TENDER PURSUANT TO THE BOOK-ENTRY TRANSFER OR GUARANTEED DELIVERY PROCEDURES
WILL BE DEEMED TO CONSTITUTE A CONSENT TO THE PROPOSED AMENDMENTS WITH RESPECT
TO ANY SENIOR DEBENTURES SO TENDERED.
Notwithstanding the foregoing paragraph, Holders whose certificates
representing Senior Debentures are not immediately available or who cannot
deliver such certificates and all other required documents to the Exchange Agent
or participants in the DTC who cannot complete the procedure for book-entry
transfer on or prior to the Expiration Date may nevertheless tender Senior
Debentures by properly completing and duly executing the Notice of Guaranteed
Delivery pursuant to the guaranteed delivery procedure set forth in the
Prospectus under the caption "Guaranteed Delivery Procedures." Pursuant to such
procedures, (i) the tender must be made by or through an Eligible Institution,
(ii) a Notice of Guaranteed Delivery, substantially in the form provided
herewith, properly completed and duly executed, must be received by the Exchange
Agent on or prior to 12:00 midnight, Eastern Daylight Time, on the Expiration
Date or, in the case of DTC participants, a Notice of Guaranteed Delivery is
properly
9
completed, duly executed and delivered to DTC (in accordance with DTC
procedures) and confirmation of such delivery to DTC is received by the Exchange
Agent on or prior to 12:00 midnight, Eastern Daylight Time, on the Expiration
Date and (iii) the certificates for the tendered Senior Debentures, in proper
form for transfer, together with this Consent and Letter of Transmittal,
properly completed and duly executed, with any required signature guarantees and
any other documents required by this Consent and Letter of Transmittal, or a
book-entry confirmation of the transfer of such Senior Debentures into the
Exchange Agent's account at DTC and an Agent's Message stating that such Xxxxxx
has received this Consent and Letter of Transmittal and has agreed to be bound
by the terms hereof, are received by the Exchange Agent within three (3)
business days after the date of execution of the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THE OUTSTANDING DEBENTURES AND ALL OTHER REQUIRED
DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF THE HOLDER OF THE
OUTSTANDING DEBENTURES, BUT, IF SUCH DELIVERY IS EFFECTED BY MAIL, IT IS
RECOMMENDED THAT THE HOLDER USE PROPERLY INSURED, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, AND THAT THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE
EXPIRATION DATE AS TO ASSURE DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE
EXPIRATION DATE.
3. CONSENTS TO PROPOSED AMENDMENTS. A valid Consent to the Proposed
Amendments may be given only by the Holder or by his or her attorney-in-fact. A
beneficial owner who is not a Holder must arrange with the Holder to execute and
deliver a Consent and Letter of Transmittal on his or her behalf, obtain a
properly completed irrevocable proxy that authorizes such beneficial owner to
consent to the Proposed Amendments on behalf of such Holder or become a Holder.
Any financial institution that is a participant in DTC's system and whose name
appears on a security position listing as the record owner of the Senior
Debentures who wishes to make book-entry delivery of Senior Debentures as
described above and who wishes to consent to the Proposed Amendments must
complete and execute a participant's letter (which will be distributed to
participants by DTC) instructing the DTC's nominee to complete and sign the
proxy attached thereto.
4. WITHDRAWAL OF TENDERS AND REVOCATION OF CONSENTS. Tenders of Senior
Debentures may be withdrawn and the concurrent Consents may be revoked at any
time prior to 12:00 midnight, Eastern Daylight Time, on the Expiration Date (but
not thereafter if the Company accepts the Senior Debentures for exchange). A
valid withdrawal of tendered Senior Debentures effected prior to 12:00 midnight,
Eastern Daylight Time, on the Expiration Date will constitute the concurrent
valid revocation of such Holder's related Consent. In order for a Holder to
revoke a Consent, such Holder must withdraw the related tendered Senior
Debentures. Tenders of Senior Debentures may not be withdrawn, and Consents may
not be revoked, after 12:00 midnight, Eastern Daylight Time, on the Expiration
Date. In addition, tenders of Senior Debentures may be validly withdrawn if the
Exchange Offer is terminated without any Senior Debentures being purchased
thereunder. In the event of a termination of the Exchange Offer, the Senior
Debentures tendered pursuant to the Exchange Offer will be promptly returned to
the tendering Holder and any Consents given will not be effective.
For a withdrawal of a tender of Senior Debentures (and the concurrent
revocation of Consents) to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be received by the Exchange Agent prior
to 12:00 midnight, Eastern Daylight Time, on the Expiration Date at its address
set forth on the back cover of this Consent and Letter of Transmittal. Any such
notice of withdrawal must (i) specify the name of the person who tendered the
Senior Debentures to be withdrawn, (ii) contain the description of the Senior
Debentures to be withdrawn and identify the certificate number or numbers shown
on the particular certificates evidencing such Senior Debentures (unless such
Senior Debentures were tendered by book-entry transfer) and the aggregate
principal amount represented by such Senior Debentures and (iii) be signed by
the holder of such Senior Debentures in the same manner as the original
signature on the Consent and Letter of Transmittal by which such Senior
Debentures were tendered (including any required signature guarantees), if any,
or be accompanied by (a) documents of transfer sufficient to have the Trustee
register the transfer of the Senior Debentures into the name of the person
withdrawing such Senior Debentures and (b) a properly completed irrevocable
proxy that authorized such
10
person to effect such revocation on behalf of such Holder. If the Senior
Debentures to be withdrawn have been delivered or otherwise identified to the
Exchange Agent, a signed notice of withdrawal is effective immediately upon
written or facsimile notice of withdrawal even if physical release is not yet
effected.
If Senior Debentures have been tendered pursuant to the procedures for
book-entry transfer, any notice of withdrawal must specify the name and number
of the account at DTC to be credited with the withdrawn Senior Debentures. Any
such notice of withdrawal must be signed by the registered holder of Senior
Debentures in the same manner as the original signature on this Consent and
Letter of Transmittal (including any required signature guarantees) or be
accompanied by evidence satisfactory to the Company that the person withdrawing
the tender has succeeded to the ownership of the Senior Debentures.
Any Senior Debentures properly withdrawn will be deemed to be not validly
tendered for purposes of the Exchange Offer, and will constitute the concurrent
valid revocation of such Holder's Consent. Any valid revocation of Consents will
automatically render the prior tender for the Senior Debentures to which such
Consents relate defective and the Company will have the right, which it may
waive, to reject such tender as invalid and ineffective. Any permitted
withdrawal of Senior Debentures and revocation of Consents may not be rescinded,
and any Senior Debentures properly withdrawn will thereafter be deemed not
validly tendered and any Consents revoked will be deemed not validly delivered
for purposes of the Exchange Offer; PROVIDED, HOWEVER, that withdrawn Senior
Debentures may be re-tendered and revoked Consents may be delivered by again
following one of the appropriate procedures described herein at any time on or
prior to the Expiration Date.
If the Company extends the Exchange Offer or is delayed in its acceptance
for exchange of Senior Debentures or is unable to exchange Senior Debentures
pursuant to the Exchange Offer for any reason, then, without prejudice to the
Company's rights hereunder, tendered Senior Debentures may be retained by the
Exchange Agent on behalf of the Company and may not be withdrawn (subject to the
prompt acceptance and delivery of shares of Common Stock in exchange for
tendered Senior Debentures or the prompt return of tendered Senior Debentures
which are not accepted after the termination or withdrawal of the Exchange
Offer), except as otherwise provided in this section.
5. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS OF SENIOR DEBENTURES WHO
TENDER BY BOOK-ENTRY TRANSFER). If less than the entire principal amount of any
Senior Debentures evidenced by a submitted certificate is tendered, the
tendering Holder should fill in the applicable principal amount of the Senior
Debentures that are to be tendered in the box entitled "Description of Senior
Debentures Tendered." The entire principal amount represented by the
certificates for all Senior Debentures delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated. If the entire principal
amount of all Senior Debentures is not tendered or not accepted for exchange,
new certificate(s) representing the remainder of the principal amount of the
Senior Debentures that were evidenced by the old certificate(s) will be sent to
the Holder, unless otherwise provided in the boxes entitled "Special Payment
Instructions" or "Special Delivery Instructions" above, as soon as practicable
after the expiration of the Exchange Offer.
6. SIGNATURES ON THIS CONSENT AND LETTER OF TRANSMITTAL; BOND POWERS AND
ENDORSEMENTS. If this Consent and Letter of Transmittal is signed by the
Holder(s) of the Senior Debentures tendered hereby, the signature(s) must
correspond exactly with the name(s) as written on the face of the certificate(s)
without alteration, enlargement or any change whatsoever.
If any of the Senior Debentures tendered hereby are owned of record by two
or more joint owners, all such owners must sign this Consent and Letter of
Transmittal. If any tendered Senior Debentures are registered in different names
on several certificates, it will be necessary to complete, sign and submit as
many separate Consents and Letters of Transmittal as there are names in which
certificates are held.
If this Consent and Letter of Transmittal or any certificates or bond powers
are signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a
11
fiduciary or representative capacity, such persons should so indicate when
signing, and proper evidence satisfactory to the Company of its authority so to
act must be submitted, unless waived by the Company.
If this Consent and Letter of Transmittal is signed by the Holder(s) of the
Senior Debentures listed and transmitted hereby, no endorsement of certificates
or separate bond powers are required unless exchange is to be made to, or
certificates for Senior Debentures not tendered or not accepted for exchange are
to be issued to, a person other than the Holder(s). Signatures on such
certificates must be guaranteed by an Eligible Institution (unless signed by an
Eligible Institution).
If this Consent and Letter of Transmittal is signed by a person other than
the Holder(s) of the Senior Debentures listed, the certificates representing
such Senior Debentures must be properly endorsed for transfer by the Holder or
be accompanied by a properly completed bond power from the Holder, together with
a properly completed irrevocable proxy that authorizes such person to consent to
the Proposed Amendments on behalf of such Holder, with signatures on the
endorsement or bond power guaranteed by an Eligible Institution.
7. TRANSFER TAXES. The Company will pay or cause to be paid any transfer
taxes with respect to the exchange of Senior Debentures to it or its order
pursuant to the Exchange Offer. If, however, certificates representing shares of
Common Stock issued in exchange for tendered Senior Debentures or certificates
representing Senior Debentures not tendered or not accepted for exchange are to
be registered in the name of, any person other than the Holder(s), or if
tendered certificates re-registered in the name of any person other than the
person(s) signing this Consent and Letter of Transmittal, the number of shares
or amount of Senior Debentures will be reduced by a number sufficient when sold
by the Exchange Agent to satisfy the amount of any transfer taxes (whether
imposed on the Holder(s) or such other person) payable on account of the
transfer to such person unless satisfactory evidence of the payment of such
taxes or exemption therefrom is submitted.
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 CONSENT AND
LETTER OF TRANSMITTAL.
8. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If certificates for shares
of Common Stock exchanged for tendered Senior Debentures are to be issued in the
name of, and/or certificates representing Senior Debentures not accepted for
exchange are to be returned to, a person other than the person(s) signing this
Consent and Letter of Transmittal, or are to be sent and/or are to be returned
to a person other than the person(s) signing this Consent and Letter of
Transmittal or to an address other than that shown on page 1 hereof, the
appropriate boxes on this Consent and Letter of Transmittal should be completed.
Holders of Senior Debentures delivering Senior Debentures by book-entry transfer
may request that Senior Debentures not accepted for exchange be credited to such
account maintained at DTC as such Holder(s) may designate hereon. If no such
instructions are given, such Senior Debentures not accepted for payment will be
returned by crediting the account at DTC designated above.
9. WAIVER OF CONDITIONS. To the extent permitted by applicable law, the
Company reserves the right to waive any and all conditions to the Exchange Offer
and Consent Solicitation and accept for exchange any Senior Debentures tendered.
10. TAX IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Federal income tax
law generally requires that a Holder whose tendered Senior Debentures are
accepted for exchange, or such Xxxxxx's assignee (in either case, the "Payee"),
provide the Exchange Agent (the "Payor"), with such Xxxxx's correct Taxpayer
Identification Number ("TIN"), which, in the case of a Payee who is an
individual, is such Xxxxx's social security number. If the Payor is not provided
with the correct TIN or an adequate basis for an exemption, such Payee may be
subject to a $50 penalty imposed by the Internal Revenue Service and backup
withholding in an amount equal to 31% of the gross proceeds received
12
pursuant to the Exchange Offer and Consent Solicitation. If withholding results
in an overpayment of taxes, a refund may be obtained.
To prevent backup withholding, each Payee must provide such Payee's correct
TIN by completing the "Substitute Form W-9" set forth herein certifying that the
TIN provided is correct (or that such Payee is awaiting a TIN) and that (i) the
Payee is exempt from backup withholding, (ii) the Payee has not been notified by
the Internal Revenue Service that such Payee is subject to backup withholding as
a result of a failure to report all interest or dividends, or (iii) the Internal
Revenue Service has notified the Payee that such Payee is no longer subject to
backup withholding.
If the Payee does not have a TIN, such Payee should refer to the enclosed
copy of the Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (the "W-9 Guidelines") for instructions on applying for a
TIN, write "Applied For" in the space for the TIN in Part I of the Substitute
Form W-9, and sign and date the Substitute Form W-9 and the Certificate of
Awaiting Taxpayer Identification Number set forth herein. If the Payee does not
provide such Xxxxx's TIN to the Payor within 60 days, backup withholding will
begin and continue until such Payee furnishes such Payee 's TIN to the Payor.
Note: Writing "Applied For" on the form means that the Payee has already applied
for a TIN or that such Payee intends to apply for one in the near future.
If the Senior Debentures are held in more than one name or are not in the
name of the actual owner, consult the W-9 Guidelines for information on which
TIN to report.
Exempt Payees (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. To prevent possible erroneous backup withholding, an exempt Xxxxx
should write "Exempt" in Part 2 of Substitute Form W-9. Refer to the enclosed
copy of the W-9 Guidelines for additional instructions. In order for a
nonresident alien or foreign entity to qualify as exempt, such person must
complete the Form W-8, "Certificate of Foreign Status," signed under penalty of
perjury attesting to such exempt status.
11. MUTILATED, LOST, STOLEN OR DESTROYED SENIOR DEBENTURES. Holders of
Senior Debentures which have been mutilated, lost stolen or destroyed should
complete the Affidavit of Loss.
12. REQUESTS FOR ASSISTANCE OF ADDITIONAL COPIES. Requests for assistance
may be directed to the Information Agent as set forth on the last page hereof or
from the tendering Holder's broker, dealer, commercial bank or trust company.
Additional copies of the Prospectus, this Consent and Letter of Transmittal, and
the Notice of Guaranteed Delivery may be obtained from the Information Agent.
IMPORTANT: THIS CONSENT AND LETTER OF TRANSMITTAL, TOGETHER WITH
CERTIFICATES FOR, OR CONFIRMATION OF BOOK-ENTRY TRANSFER WITH RESPECT TO, ANY
TENDERED SENIOR DEBENTURES, WITH ANY REQUIRED SIGNATURE GUARANTEES AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT, OR THE NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT, ON OR PRIOR TO 12:00
MIDNIGHT, EASTERN DAYLIGHT TIME, ON THE EXPIRATION DATE.
13
PAYOR'S NAME: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN ON THE LINE BELOW AND CERTIFY
FORM W-9 BY SIGNING AND DATING IN PART 3.
DEPARTMENT OF THE TREASURY TIN
INTERNAL REVENUE SERVICE (Social Security Number or Employer Identification Number)
PAYOR'S REQUEST FOR PART 2--FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING PLEASE WRITE
TAXPAYER IDENTIFICATION "EXEMPT" HERE (SEE INSTRUCTIONS):
NUMBER) ("TIN") AND .
CERTIFICATION
PART 3-- CERTIFICATION UNDER PENALTIES OF PERJURY, I CERTIFY THAT (1) The number shown on
this form is my correct TIN (or I am waiting for a number to be issued to me), and (2) I am
not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I
have not been notified by the Internal Revenue Service (the "IRS") that I am subject to
backup withholding as a result of a failure to report all interest or dividends or (c) the
IRS has notified me that I am no longer subject to backup withholding.
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION OF THIS DOCUMENT
OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID BACKUP WITHHOLDING.
SIGNATURE DATE , 1997
You must cross out item (2) above if you have been notified by the IRS that you are
currently subject to backup withholding because of under reporting interest or dividends on
your tax return and you have not been notified by the IRS that you are no longer subject to
backup withholding.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE
"APPLIED FOR" IN PART 1 OF THE 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 that I mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service Center or Social Security
Administration office (or 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 payor, 31% of
all reportable payments made to me will be withheld until I provide a number.
SIGNATURE DATE , 1997
SUBSTITUTE FORM W-8
By checking this box / /, the person signing this Consent and Letter of Transmittal hereby
certifies under penalties of perjury that the Holder is an "exempt foreign person" for
purposes of the backup withholding rules under U.S. federal income tax laws, because the
Holder:
(i) is a nonresident alien individual or a foreign corporation, partnership, estate or
trust;
(ii) If an individual, has not been and plans not to be present in the U.S. for a total of
183 days or more during the calendar year; and:
(iii) Neither engages, nor plans to engage, in a U.S. trade or business that has
effectively connected gains from transactions with a broker or banter exchange.
In order for a Holder who is a FOREIGN PERSON (i.e., not a United States citizen or a
resident alien, a domestic corporation, a domestic partnership, a domestic trust or a
domestic estate to qualify as exempt from 31% backup withholding, such foreign Unitholder
must certify, under penalties of perjury, the statement in BOX C of this Letter of
Transmittal attesting to that foreign person's status by checking the box in such statement.
UNLESS THE BOX IS CHECKED, SUCH FOREIGN PERSON WILL BE SUBJECT TO 31% WITHHOLDING OF TAX
UNDER SECTION 1445 OF THE CODE.
14
THE INFORMATION AGENT IS:
XXXXXXXXX & COMPANY INC.
Wall Street Plaza
New York, NY 10005
Banks and Brokers Call Collect: (000) 000-0000
All Others Call Toll Free: (000) 000-0000
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER AND CONSENT SOLICITATION IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
BY MAIL: FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT DELIVERY:
P.O. Box 3301 (FOR ELIGIBLE INSTITUTIONS ONLY) 000 Xxxxxxxx
Xxxxx Xxxxxxxxxx XX 00000 (000) 000-0000 13th Floor
Attn: Reorganization Dept. CONFIRM BY TELEPHONE: New York, New York 10271
(000) 000-0000 Attn: Reorganization Dept.
