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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% SUBORDINATED PAY-IN-KIND DEBENTURES DUE MARCH 15, 2002
(THE "SUBORDINATED DEBENTURES")
OF
▇▇▇▇ REAL ESTATE GROUP, INC.
(FORMERLY, THE BOLSA CHICA COMPANY)
(CUSIP NO. 097679 AB 0)
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
SUBORDINATED DEBENTURES MUST TENDER THEIR SUBORDINATED 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 TENDERED SUBORDINATED DEBENTURES MAY BE WITHDRAWN AND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) ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ 13th Floor
Attn: Reorganization Dept. CONFIRM BY TELEPHONE: New York, New York 10271
(▇▇▇) ▇▇▇-▇▇▇▇ 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 ▇▇▇▇ Real Estate Group, Inc., a Delaware corporation (the
"Company").
List below the Subordinated 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 SUBORDINATED 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 Subordinated 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 AFFIDAVIT 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
1,151,864 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% Subordinated Debentures due March 15, 2002 (the
"Subordinated Debentures"), on a 28 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 Subordinated Debentures are
registered on the books of the registrar for the Subordinated Debentures (the
"Holders") to certain amendments (the "Proposed Amendments") to the Indenture
(the "Indenture") pursuant to which the Subordinated Debentures were issued. The
consideration payable by the Company for the Subordinated Debentures is set
forth in the Prospectus. HOLDERS WHO TENDER THEIR SUBORDINATED 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
SUBORDINATED DEBENTURES. Holders who do not tender their Subordinated 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 Subordinated 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 Subordinated
Debentures as promptly as practicable after such Subordinated 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 Subordinated 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
▇▇▇▇▇▇'s Subordinated 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
Subordinated Debentures if certificates representing such Subordinated
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 Subordinated 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 Subordinated 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
Subordinated 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 SUBORDINATED DEBENTURES
ARE ENCLOSED HEREWITH. IF ONLY SOME SUCH CERTIFICATES ARE ENCLOSED
HEREWITH, PLEASE CHECK THE BOX ON PAGE 1 HEREOF AND EXECUTE AN AFFIDAVIT OF
LOSS.
/ / CHECK HERE IF TENDERED SUBORDINATED 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
SUBORDINATED DEBENTURES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ____________________________________________
Account Number ___________________________________________________________
Transaction Code Number __________________________________________________
/ / CHECK HERE IF TENDERED SUBORDINATED 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
3
Only Holders are entitled to tender their Subordinated 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
Subordinated Debentures and who wishes to make book-entry delivery of the
Subordinated 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 Subordinated
Debentures but are not Holders and who seek to tender Subordinated Debentures
and deliver Consents to the Proposed Amendments should (i) contact the Holder of
such Subordinated 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 Subordinated 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 Subordinated Debentures
from the Holder to such beneficial owner and comply with the requirements
applicable to Holders for tendering Subordinated 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 SUBORDINATED 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 SUBORDINATED 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: ▇▇▇▇ 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
Subordinated Debentures indicated on page 1 above. Subject to, and effective
upon, acceptance for exchange for the Subordinated 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 Subordinated
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 Subordinated 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 Subordinated Debentures, or transfer ownership of such
Subordinated 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 Subordinated 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 Subordinated 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 SUBORDINATED
DEBENTURES TENDERED HEREBY AND TO GIVE THE CONSENT CONTAINED HEREIN
4
AND, THAT WHEN THE SAME ARE ACCEPTED FOR EXCHANGE BY THE COMPANY, THE COMPANY
WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND 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 SUBORDINATED 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
SUBORDINATED DEBENTURES SHALL BE EFFECTED, AND RISK OF LOSS AND TITLE TO SUCH
SUBORDINATED 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. Subordinated 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
Subordinated Debentures properly tendered hereby. In such event, the tendered
Subordinated 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 Subordinated 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 Subordinated Debentures
tendered hereby and accepted for exchange, and/or return any certificates
representing Subordinated Debentures not tendered or not accepted for exchange
in the name(s) of the Holder(s) and to the addressees appearing under
"Description of Subordinated 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 Subordinated Debentures tendered hereby and/or return
any certificates representing Subordinated 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 Subordinated Debentures, please credit the account maintained at DTC
with any Subordinated 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 Subordinated Debentures from
the name of the Holder thereof if the Company does not accept for exchange any
of the Subordinated 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 Subordinated Debentures to be issued in exchange for the Subordinated Debentures
accepted for exchange, and/or certificates representing accepted for exchange, and/or certificates representing
Subordinated Debentures not accepted for exchange are to be Subordinated Debentures not accepted for exchange are to be
issued in the name of someone other than the undersigned, or sent to someone other than the undersigned or to the
if Subordinated Debentures delivered by book-entry transfer undersigned at an address other than that indicated on page
not accepted for exchange are to be returned by credit to an 1 above.
account maintained at DTC other than the account indicated Mail: Common Stock Share Certificate(s) to
on page 1 above. Name:
Issue: Common Stock Share Certificate(s) to (Please Print)
Name: Address:
(Please Print)
Address: (Include Zip Code)
(Include Zip Code) (Taxpayer Identification or Social Security Number)
(Taxpayer Identification or Social Security Number)
Credit unpurchased Subordinated Debentures delivered by
book-entry transfer to the DTC account set forth below:
6
AFFIDAVIT OF LOST OR DESTROYED DEBENTURE CERTIFICATE
AND AGREEMENT OF INDEMNITY
NAME ___________________________________________________________________________
ADDRESS ________________________________________________________________________
CITY/STATE/ZIP _________________________________________________________________
CERTIFICATE NUMBER(S) __________________________________________________________
PRINCIPAL AMOUNT OF_____________________________________________________________
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 accruing 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 SUBORDINATED 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 Subordinated 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
Subordinated Debentures tendered hereby are tendered (i) by a Holder of
Subordinated Debentures (or by a participant in DTC whose name appears on a
security position listing as the owner of such Subordinated 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 Subordinated Debentures are registered in the
name of a person other than the signer of this Consent and Letter of Transmittal
or if Subordinated 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 Subordinated
Debentures must be guaranteed by an Eligible Institution as described above.
Persons who are beneficial owners of Subordinated Debentures but are not Holders
and who seek to tender Subordinated Debentures and deliver Consents to the
Proposed Amendments should (i) contact the Holder of such Subordinated
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,
Subordinated 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 Subordinated Debentures from the Holder to such
beneficial owner and comply with the requirements applicable to Holders for
tendering Subordinated 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 Subordinated Debentures if
certificates representing such Subordinated 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 Subordinated 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 Subordinated Debentures to the Exchange Agent, or if a tender
of a Subordinated 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 SUBORDINATED
DEBENTURES SO TENDERED.
Notwithstanding the foregoing paragraph, Holders whose certificates
representing Subordinated 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 Subordinated
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
9
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 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 Subordinated 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 Subordinated Debentures into the
Exchange Agent's account at DTC and an Agent's Message stating that such Holder
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 Subordinated
Debentures who wishes to make book-entry delivery of Subordinated 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
Subordinated 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 Subordinated
Debentures for exchange). A valid withdrawal of tendered Subordinated 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 Subordinated Debentures. Tenders of Subordinated 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
Subordinated Debentures may be validly withdrawn if the Exchange Offer is
terminated without any Subordinated Debentures being purchased thereunder. In
the event of a termination of the Exchange Offer, the Subordinated 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 Subordinated 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
Subordinated Debentures to be withdrawn, (ii) contain the description of the
Subordinated Debentures to be withdrawn and identify the certificate number or
numbers shown on the particular certificates evidencing such Subordinated
Debentures (unless such Subordinated Debentures were tendered by book-entry
transfer) and the aggregate principal amount represented by such Subordinated
Debentures and (iii) be signed by the holder of such
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Subordinated Debentures in the same manner as the original signature on the
Consent and Letter of Transmittal by which such Subordinated 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 Subordinated Debentures into the name of the person
withdrawing such Subordinated Debentures and (b) a properly completed
irrevocable proxy that authorized such person to effect such revocation on
behalf of such Holder. If the Subordinated 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 Subordinated Debentures have been tendered pursuant to the book-entry
transfer procedures, any notice of withdrawal must specify the name and number
of the account at DTC to be credited with the withdrawn Subordinated Debentures.
Any such notice of withdrawal must be signed by the Holder 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 Subordinated Debentures.
Any Subordinated 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 Subordinated
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 Subordinated Debentures and revocation of Consents may
not be rescinded, and any Subordinated 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 Subordinated 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 Subordinated Debentures or is unable to exchange Subordinated
Debentures pursuant to the Exchange Offer for any reason, then, without
prejudice to the Company's rights hereunder, tendered Subordinated 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 Subordinated Debentures or the prompt return of
tendered Subordinated 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 SUBORDINATED DEBENTURES
WHO TENDER BY BOOK-ENTRY TRANSFER). If less than the entire principal amount of
any Subordinated Debentures evidenced by a submitted certificate is tendered,
the tendering Holder should fill in the applicable principal amount of the
Subordinated Debentures that are to be tendered in the box entitled "Description
of Subordinated Debentures Tendered." The entire principal amount represented by
the certificates for all Subordinated Debentures delivered to the Exchange Agent
will be deemed to have been tendered unless otherwise indicated. If the entire
principal amount of all Subordinated Debentures is not tendered or not accepted
for exchange, new certificate(s) representing the remainder of the principal
amount of the Subordinated 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 Subordinated 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.
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If any of the Subordinated 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 Subordinated 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 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
Subordinated Debentures listed and transmitted hereby, no endorsement of
certificates or separate bond powers are required unless payment is to be made
to, or certificates for Subordinated 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 Subordinated Debentures listed, the certificates
representing such Subordinated 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 Subordinated Debentures to it or its order
pursuant to the Exchange Offer. If, however, certificates representing shares of
Common Stock issued in exchange for tendered Subordinated Debentures or
certificates representing Subordinated 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 Subordinated 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 Subordinated Debentures are to be issued
in the name of, and/or certificates representing Subordinated 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 Subordinated Debentures delivering Subordinated Debentures by
book-entry transfer may request that Subordinated 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 Subordinated
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 Subordinated Debentures
tendered.
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10. TAX IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Federal income tax
law generally requires that a Holder whose tendered Subordinated Debentures are
accepted for exchange, or such ▇▇▇▇▇▇'s assignee (in either case, the "Payee"),
provide the Exchange Agent (the "Payor"), with such Payee's correct Taxpayer
Identification Number ("TIN"), which, in the case of a Payee who is an
individual, is such ▇▇▇▇▇'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 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 ▇▇▇▇▇'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 Subordinated 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 ▇▇▇▇▇
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 SUBORDINATED DEBENTURES. Holders
of Subordinated 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 SUBORDINATED 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.
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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 / /, 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
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THE INFORMATION AGENT IS:
▇▇▇▇▇▇▇▇▇ & COMPANY INC.
Wall Street Plaza
New York, NY 10005
Banks and Brokers Call Collect: (▇▇▇) ▇▇▇-▇▇▇▇
All Others Call Toll Free: (▇▇▇) ▇▇▇-▇▇▇▇
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) ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ 13th Floor
Attn: Reorganization Dept. CONFIRM BY TELEPHONE: New York, New York 10271
(▇▇▇) ▇▇▇-▇▇▇▇ Attn: Reorganization Dept.