Exhibit 99.1
LETTER OF TRANSMITTAL
CARROLS RESTAURANT GROUP, INC.
OFFER TO EXCHANGE
All Outstanding 8.00% Senior Secured Second Lien Notes due 2022
($75,000,000 Principal Amount)
CUSIP NOS, 14574X AE4 and U14539 AC1
for
8.00% Senior Secured Second Lien Notes due 2022
($75,000,000 Principal Amount)
CUSIP NO. 14574X AD6
Which have been Registered under the Securities Act of 1933, as amended,
pursuant to the Prospectus dated , 2017
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2017 UNLESS THE OFFER IS EXTENDED |
The Exchange Agent for the Exchange Offer is:
The Bank of New York Mellon Trust Company, N.A.
By Registered or Certified Mail or By Hand or Overnight Delivery:
The Bank of New York Mellon Trust Company, N.A., as Exchange Agent
c/o The Bank of New York Mellon Corporation
Corporate Trust Operations-Reorganization Unit
111 Sanders Creek Parkway
East Syracuse, New York 13057
Attention: Eric Herr
By Facsimile (for Eligible Institution Only):
(732) 667-9408
Attention: Eric Herr
Confirm by Telephone:
(315) 414-3362
Email: CT_REORG_UNIT_INQUIRIES@BNYMELLON.COM
Delivery of this Letter of Transmittal to an address other than as set forth above or transmission of instructions via a facsimile number other than the one listed above will not constitute a valid delivery. The instructions accompanying this Letter of Transmittal should be read carefully before this Letter of Transmittal is completed.
The undersigned hereby acknowledges receipt of the Prospectus dated , 2017 (as it may be amended or supplemented from time to time, the “Prospectus”) of Carrols Restaurant Group, Inc., a Delaware corporation (the “Company”), and this Letter of Transmittal (this “Letter of Transmittal”), which together describe the Company's offer (the “Exchange Offer”) to exchange $75,000,000 aggregate principal amount of its 8.00% Senior Secured Second Lien Notes due 2022 (the “New Exchange Notes”),
guaranteed by certain subsidiaries of the Company (collectively, the “Guarantors”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of its outstanding $75,000,000 aggregate principal amount of 8.00% Senior Secured Second Lien Notes due 2022 (CUSIP Nos. 14574X AE4 and U14539 AC1) issued on June 23, 2017 (the “Outstanding New Notes”), guaranteed by the Guarantors, in integral multiples of $2,000 and multiples of $1,000 in excess thereof, from the registered holders thereof. The Outstanding New Notes are unconditionally guaranteed (the “Outstanding New Notes Guarantees”) by the Guarantors on a senior secured second lien basis, and the New Exchange Notes will be unconditionally guaranteed (the “New Exchange Notes Guarantees”) by the Guarantors on a senior secured second lien basis. The term “Expiration Date” shall mean 5:00 p.m., New York City time, on , 2017, unless the Company extends the Exchange Offer, in which case the term shall mean the latest date and time to which the Exchange Offer is extended. Capitalized terms used herein, but not otherwise defined shall have the meaning set forth in the Prospectus. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Exchange Notes Guarantees with respect to all New Exchange Notes issued in the Exchange Offer in exchange for the Outstanding New Notes Guarantees with respect to all Outstanding New Notes for which such New Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires, references to the “Exchange Offer” include the Guarantors' offer to exchange the New Exchange Notes Guarantees for the Outstanding New Notes Guarantees, references to the “New Exchange Notes” include the related New Exchange Notes Guarantees, and references to the “Outstanding New Notes” include the related Outstanding New Notes Guarantees.
For each Outstanding Note accepted for exchange, the Holder of such Outstanding Note will receive a New Exchange Note having a principal amount equal to the principal amount at maturity of the surrendered Outstanding Note. Interest on the New Exchange Notes will accrue from the last interest payment date on which interest was paid on the Outstanding New Notes surrendered for them, or, if no interest has been paid on such Outstanding New Notes, from May 1, 2017. The Company will not pay interest on the Outstanding New Notes accepted for exchange. Interest is payable on the New Exchange Notes on May 1 and November 1 of each year, commencing November 1, 2017.
The term “Holder” with respect to the Exchange Offer means any person in whose name Outstanding New Notes are registered on the books of the Company or any other person who has obtained a properly completed bond power from the registered holder. The undersigned has completed, executed and delivered this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer. Holders who wish to tender their Outstanding New Notes must complete this Letter of Transmittal in its entirety.
The terms of the New Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding New Notes for which they may be exchanged pursuant to the Exchange Offer, except that the New Exchange Notes are freely transferable by holders thereof (except as provided herein or in the Prospectus) and are not subject to any covenant regarding registration under the Securities Act.
The Company will issue New Exchange Notes for Outstanding New Notes that it has accepted for exchange under the Exchange Offer only after the Exchange Agent timely receives:
(1) | Outstanding New Notes or a timely book-entry confirmation that Outstanding New Notes have been transferred in the Exchange Agent's account at The Depository Trust Company (“DTC”); and |
(2) | this Letter of Transmittal, properly completed and duly executed, and all other required documents or a properly transmitted agent's message. “Agent's message” means a message, transmitted by DTC and received by the Exchange Agent and forming part of a book-entry confirmation, which states that DTC has received an express acknowledgment from a participant tendering Outstanding New Notes that are the subject of the book-entry confirmation that the participant has received and agrees to be bound by the terms of the Letter of Transmittal, and that the Company may enforce that agreement against the participant. See Instruction 1. |
Holders of Outstanding New Notes whose certificates are not immediately available, or who are unable to deliver their certificates or confirmation of the book-entry tender of their Outstanding New Notes into the Exchange Agent's account at DTC and all other documents required by this Letter of Transmittal to the Exchange Agent on or prior to the Expiration Date, must tender their Outstanding New Notes according to the guaranteed delivery procedures set forth in the Prospectus under the caption “The Exchange Offer-Guaranteed Delivery Procedures.” See Instruction 2.
Your bank or broker can assist you in completing this form. The instructions included with this Letter of Transmittal must be followed. Questions and requests for assistance or for additional copies of the Prospectus or this Letter of Transmittal may be directed to the Exchange Agent which address and telephone number appear on the front page of this Letter of Transmittal.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
List below the Outstanding New Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, certificate or registration numbers and aggregate principal amounts should be listed on a separately signed schedule affixed hereto.
DESCRIPTION OF 8.00% SENIOR SECURED SECOND LIEN NOTES DUE 2022 ISSUED ON JUNE 23, 2017 TENDERED HEREBY | |||
Name(s) and Address(es) of Registered Outstanding New Note Holder(s) (Please fill in) | Certificate or Registration Number(s)* | Aggregate Principal Amount Represented by Outstanding New Notes* | Principal Amount Tendered** |
Total | |||
* Need not be completed by Holders tendering by book-entry transfer. * Unless otherwise indicated, the Holder will be deemed to have tendered ALL of the Outstanding New Notes represented by the Outstanding Note indicated. All tenders must be in the principal amount of $2,000 and integral multiples of $1,000 in excess thereof for the Notes. |
This Letter of Transmittal is to be used (i) if certificates for Outstanding New Notes are to be forwarded herewith or (ii) tender of the Outstanding New Notes is to be made according to the guaranteed delivery procedures described in the Prospectus under the caption “The Exchange Offer-Guaranteed Delivery Procedures.” See Instruction 2. Delivery of documents to a book-entry transfer facility does not constitute delivery to the Exchange Agent.
¨ | CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING: |
Name of Tendering Institution: | ||
Account Number: | ||
Transaction Code Number: |
Holders of Outstanding New Notes that are tendering by book-entry transfer to the Exchange Agent's account at DTC can execute the tender through DTC's Automated Tender Offer Program (“ATOP”), for which the transaction will be eligible. DTC participants that are accepting the Exchange Offer must transmit their acceptances to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange Agent's account at DTC. DTC will then send a computer-generated message (an “Agent's Message”) to the Exchange Agent for its acceptance in which the holder of the Outstanding New Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal, and the DTC participant confirms on behalf of itself and the beneficial owners of such Outstanding New Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent. Each DTC participant transmitting an acceptance of the Exchange Offer through the ATOP procedures will be deemed to have agreed on behalf of itself and the beneficial owners of any tendered Outstanding New Notes to be bound by the terms of this Letter of Transmittal. Delivery of an Agent's Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agent's Message. DTC participants may also accept the Exchange Offer by submitting a Notice of Guaranteed Delivery through an Agent's Message via ATOP.
¨ CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder (s): | ||||
Name of Eligible Institution that Guaranteed Delivery: | ||||
If delivery by book-entry transfer- | ||||
Account Number: | ||||
Transaction Code Number: |
¨ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO:
Name: | ||
Address: |
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of New Exchange Notes. If the undersigned is a broker-dealer that will receive New Exchange Notes for its own account in exchange for Outstanding New Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such New Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. A broker-dealer may not participate in the Exchange Offer with respect to Outstanding New Notes acquired other than as a result of market-making activities or other trading activities. Any holder who is an “affiliate” of the Company or who has an arrangement or understanding with respect to the distribution of the New Exchange Notes to be acquired pursuant to the Exchange Offer, or any broker-dealer who purchased Outstanding New Notes from the Company to
resell pursuant to Rule 144A under the Securities Act (“Rule 144A”) or any other available exemption under the Securities Act must comply with the registration and prospectus delivery requirements under the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the principal amount of the Outstanding New Notes indicated above. Subject to, and effective upon, the acceptance for exchange of such Outstanding New Notes tendered hereby, the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Outstanding New Notes as are being tendered hereby, including all rights to accrued and unpaid interest thereon as of the Expiration Date.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as its true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Company and the Guarantors, in connection with the Exchange Offer) with respect to the tendered Outstanding New Notes, with full power of substitution and resubstitution (such power of attorney being deemed an irrevocable power coupled with an interest) to (a) deliver certificates representing such Outstanding New Notes, or transfer ownership of such Outstanding New Notes on the account books maintained by the book-entry transfer facility specified by the holder(s) of the Outstanding New Notes, together, in each such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Company and (b) present and deliver such Outstanding New Notes for transfer on the books of the Company, all in accordance with the terms of the Exchange Offer.
The undersigned also warrants that it will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Company to be necessary or desirable to complete the exchange, assignment and transfer of the tendered Outstanding New Notes or transfer ownership of such Outstanding New Notes on the account books maintained by the book-entry transfer facility. The undersigned further agrees that acceptance of any and all validly tendered Outstanding New Notes by the Company and the issuance of the New Exchange Notes in exchange therefor shall constitute performance in full by the Company of its obligations, with respect to such validly tendered Outstanding New Notes accepted for exchange, set forth in the Registration Rights Agreement dated as of June 23, 2017, among the Company, the Guarantors and Wells Fargo Securities, LLC, as initial purchaser (the “Registration Rights Agreement”), and if all of the Outstanding New Notes are validly tendered for exchange, the Company shall have no further obligations or liabilities thereunder except as provided in Section 8 of such agreement. The undersigned will comply with its obligations under the Registration Rights Agreement. The undersigned has read and agrees to all terms of the Exchange Offer.
The Exchange Offer is subject to certain conditions set forth in the Prospectus under the caption “The Exchange Offer-Conditions.” The undersigned recognizes that as a result of those conditions (which may be waived, in whole or in part, by the Company), as more particularly set forth in the Prospectus, the Company may not be required to exchange any of the Outstanding New Notes tendered hereby and, in such event, the Outstanding New Notes not exchanged will be returned to the undersigned at the address shown below the signature of the undersigned promptly following the expiration or termination of the Exchange Offer. In addition, the Company may amend the Exchange Offer at any time prior to the Expiration Date if any of the conditions set forth under “The Exchange Offer-Conditions” occur.
The undersigned understands that tenders of Outstanding New Notes pursuant to any one of the procedures described in the Prospectus and in the instructions attached hereto will, upon the Company's acceptance for exchange of such tendered Outstanding New Notes, constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the Exchange Offer. By tendering the Outstanding New Notes and executing this Letter of Transmittal, the undersigned represents that (1) the New Exchange Notes acquired in the exchange will be obtained in the ordinary course of business of the undersigned, (2) the undersigned is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of such New Exchange Notes, (3) the
undersigned is not an “affiliate” of the Company within the meaning of Rule 405 under the Securities Act and (4) if the undersigned or the person receiving such New Exchange Notes, whether or not such person is the undersigned, is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of the New Exchange Notes. If the undersigned or the person receiving such New Exchange Notes, whether or not such person is the undersigned, is a broker-dealer that will receive New Exchange Notes for its own account in exchange for Outstanding New Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that (1) it has not entered into any arrangement or understanding with the Company or an affiliate of the Company to distribute the New Exchange Notes and (2) it will deliver a Prospectus in connection with any resale of such New Exchange Notes; however, by so acknowledging and by delivering a Prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. If the undersigned is a person in the United Kingdom, the undersigned represents that its ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business.
The Company has agreed that, subject to the provisions of the Registration Rights Agreement relating to the Outstanding New Notes, the Prospectus, as it may be amended or supplemented from time to time, may be used by a Participating Broker-Dealer (as defined below) in connection with resales of New Exchange Notes received in exchange for Outstanding New Notes, where such Outstanding New Notes were acquired by such Participating Broker-Dealer for its own account as a result of market-making activities or other trading activities, for a period ending 180 days after the date on which the registration statement of which the Prospectus forms a part is declared effective by the Securities and Exchange Commission or, if earlier, the date on which a broker-dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities. In that regard, each broker-dealer who acquired Outstanding New Notes for its own account as a result of market-making or other trading activities (a “Participating Broker-Dealer”), by tendering such Outstanding New Notes and executing this Letter of Transmittal or effecting delivery of an Agent's message in lieu thereof, agrees that, upon receipt of notice from the Company of the occurrence of any event or the discovery of any fact which makes any statement contained or incorporated by reference in the Prospectus untrue in any material respect or which causes the Prospectus to omit to state a material fact necessary in order to make the statements contained or incorporated by reference therein, in light of the circumstances under which they were made, not misleading or of the occurrence of certain other events specified in the Registration Rights Agreement relating to the Outstanding New Notes, such Participating Broker-Dealer will suspend the sale of New Exchange Notes pursuant to the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or omission and has furnished copies of the amended or supplemented Prospectus to the Participating Broker-Dealer or the Company has given notice that the sale of the New Exchange Notes may be resumed, as the case may be. If the Company gives such notice to suspend the sale of the New Exchange Notes, it shall extend the 180-day period referred to above during which Participating Broker-Dealers are entitled to use the Prospectus in connection with the resale of New Exchange Notes by the number of days during the period from and including the date of the giving of such notice and including the date when Participating Broker-Dealers shall have received copies of the supplemented or amended Prospectus necessary to permit resales of the New Exchange Notes or to and including the date on which the Company has given notice that the sale of New Exchange Notes may be resumed, as the case may be.
As a result, a Participating Broker-Dealer who intends to use the Prospectus in connection with resales of New Exchange Notes received in exchange for Outstanding New Notes pursuant to the Exchange Offer must notify the Company, or cause the Company to be notified, on or prior to the Expiration Date, that it is a Participating Broker-Dealer. Such notice may be given in the space provided above or may be delivered to the Exchange Agent at the address set forth in the Prospectus under “The Exchange Offer-Exchange Agent.”
The undersigned acknowledges that this Exchange Offer is being made in reliance on interpretations by the staff of the Securities and Exchange Commission (the “SEC”), as set forth in no-action letters issued to third parties, that the New Exchange Notes issued in exchange for the Outstanding New Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by holders thereof (other than (i) any such holder that is an “affiliate” of the Company within the meaning of Rule
405 under the Securities Act or (ii) any broker-dealer that purchases Outstanding New Notes from the Company to resell pursuant to Rule 144A or any other available exemption), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Exchange Notes are acquired in the ordinary course of such holders’ business and such holders have no arrangement with any person to participate in the distribution of such New Exchange Notes and are not participating in, and do not intend to participate in, the distribution of the New Exchange Notes. The undersigned acknowledges that the Company does not intend to request the SEC to consider, and the SEC has not considered the Exchange Offer in the context of a no-action letter, and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offer as in other circumstances.
An “affiliate” of the Company or any holder of Outstanding New Notes tendering its Outstanding New Notes in the Exchange Offer with the intention to participate, or for the purpose of participating, in a distribution of the New Exchange Notes or any broker-dealer that acquired the Outstanding New Notes directly from the Company and not as a result of market-making activities or other trading activities (i) cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in its interpretive letter with respect to Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley & Co. Incorporated (available June 5, 1991) and Shearman & Sterling (available July 2, 1993) or similar interpretive letters and (ii) absent an exemption under the Securities Act, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the New Exchange Notes. Such broker-dealers may not use the Prospectus for the exchange offer in connection with such resales.
All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Tendered Outstanding New Notes may be withdrawn at any time prior to the Expiration Date, after which tenders of Outstanding New Notes are irrevocable as provided in the Prospectus.
Unless otherwise indicated in the box entitled “Special Registration Instructions” or the box entitled “Special Delivery Instructions” in this Letter of Transmittal, certificates for all New Exchange Notes delivered in exchange for tendered Outstanding New Notes, and any Outstanding New Notes delivered herewith but not exchanged, will be registered in the name of the undersigned and shall be delivered to the undersigned at the address shown below the signature of the undersigned. If a New Exchange Note is to be issued to a person other than the person(s) signing this Letter of Transmittal, or if a New Exchange Note is to be mailed to someone other than the person(s) signing this Letter of Transmittal or to the person(s) signing this Letter of Transmittal at an address different than the address shown on this Letter of Transmittal, the appropriate boxes of this Letter of Transmittal should be completed. If Outstanding New Notes are surrendered by Holder(s) that have completed either the box entitled “Special Registration Instructions” or the box entitled “Special Delivery Instructions” in this Letter of Transmittal, signatures(s) on this Letter of Transmittal must be guaranteed by an Eligible Institution (defined in Instruction 2).
SPECIAL REGISTRATION INSTRUCTIONS | ||
To be completed ONLY if the New Exchange Notes are to be issued in the name of someone other than the undersigned. | ||
Name: | ||
Address: | ||
Book-Entry Transfer Facility Account: | ||
Employer Identification or Social Security Number: | ||
(please print or type) |
SPECIAL DELIVERY INSTRUCTIONS | ||
To be completed ONLY if the New Exchange Notes are to be sent to someone other than the undersigned, or the undersigned at an address other than that shown under “Description of 8.00% Senior Secured Second Lien Notes due 2022 Tendered Hereby” | ||
Name: | ||
Address: | ||
Employer Identification or Social Security Number: | ||
(please print or type) |
REGISTERED HOLDER(S) OF OUTSTANDING NOTES SIGN HERE (In addition, complete Form W-9 below) | ||
X | ||
X | ||
Must be signed by registered holder(s) exactly as name(s) appear(s) on the Outstanding New Notes or on a security position listing as the owner of the Outstanding New Notes or by person(s) authorized to become registered holders(s) by properly completed bond powers transmitted herewith. If signature is by attorney-in-fact, trustee, executor, administrator, guardian, officer of a corporation or other person acting in a fiduciary capacity, please provide the following information (please print or type): |
SIGNATURE GUARANTEE | ||
Name and Capacity (full title) | (If Required-See Instruction 4) | |
(Signature of Representative of Signature Guarantor) | ||
Address (including zip code) | (Name and Title) | |
(Area Code and Telephone Number) | (Name of Plan) | |
(Taxpayer Identification or Social Security No.) | (Area Code and Telephone Number) | |
Dated: ______________, 2017 | Dated: _____________, 2017 |
TRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
General
Please do not send certificates for Outstanding New Notes directly to the Company. Your certificates for Outstanding New Notes, together with your signed and completed Letter of Transmittal and any required supporting documents, should be mailed or otherwise delivered to the Exchange Agent at the address set forth on the first page hereof. The method of delivery of Outstanding New Notes, this Letter of Transmittal and all other required documents is at your sole option and risk and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, or overnight or hand delivery service is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
1. Delivery of this Letter of Transmittal and Outstanding New Notes. A holder of Outstanding New Notes may tender the same by (i) properly completing and signing this Letter of Transmittal or a facsimile hereof (all references in the Prospectus to the Letter of Transmittal shall be deemed to include a facsimile thereof) and delivering the same, together with the certificate or certificates, if applicable, representing the Outstanding New Notes being tendered and any required signature guarantees and any other documents required by this Letter of Transmittal, to the Exchange Agent at its address set forth on the first page hereof on or prior to the Expiration Date, or (ii) complying with the procedure for book-entry transfer described below, or (iii) complying with the guaranteed delivery procedures described below.
Holders of Outstanding New Notes may tender Outstanding New Notes by book-entry transfer by crediting the Outstanding New Notes to the Exchange Agent's account at DTC in accordance with ATOP and by complying with applicable ATOP procedures with respect to the Exchange Offer. DTC participants that are accepting the Exchange Offer should transmit their acceptance to DTC, which will edit and 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 to the Exchange Agent for its acceptance in which the holder of the Outstanding New Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal, the DTC participant confirms on behalf of itself and the beneficial owners of such Outstanding New Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent.
DELIVERY OF THE AGENT'S MESSAGE BY DTC WILL SATISFY THE TERMS OF THE EXCHANGE OFFER AS TO EXECUTION AND DELIVERY OF A LETTER OF TRANSMITTAL BY THE PARTICIPANT IDENTIFIED IN THE AGENT'S MESSAGE. DTC PARTICIPANTS MAY ALSO ACCEPT THE EXCHANGE OFFER BY SUBMITTING A NOTICE OF GUARANTEED DELIVERY THROUGH ATOP.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE OUTSTANDING NEW NOTES AND ANY OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER, AND EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, IT IS SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT OR HAND DELIVERY SERVICE BE USED. IN ALL CASES SUFFICIENT TIME SHOULD BE ALLOWED TO PERMIT TIMELY DELIVERY. NO OUTSTANDING NOTES OR LETTERS OF TRANSMITTAL SHOULD BE SENT TO THE COMPANY.
Delivery to an address other than as set forth herein, or instruction via a facsimile number other than the one set forth herein, will not constitute a valid delivery.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal (or facsimile thereof) or otherwise complying with the tender procedures set forth in the Prospectus, shall waive any right to receive notice of the acceptance of the Outstanding New Notes for exchange.
See the “The Exchange Offer” section of the Prospectus.
2. Guaranteed Delivery Procedures. Guarantee of delivery procedures are applicable to the Outstanding New Notes. Holders who wish to tender their Outstanding New Notes, but whose Outstanding New Notes are not immediately available and thus cannot deliver their Outstanding New Notes, this Letter of Transmittal or any other required documents to the Exchange Agent (or comply with the procedures for book-entry transfer) prior to the Expiration Date, may effect a tender if:
(a) the tender is made through a member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, Inc., a commercial bank or trust company having an office or correspondent in the United States or an “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Exchange Act (an “Eligible Institution”);
(b) prior to the Expiration Date, the Exchange Agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery) setting forth the name and address of the Holder, the registration number(s) of such Outstanding New Notes and the principal amount of Outstanding New Notes tendered, stating that the tender is being made thereby and guaranteeing that, within three New York Stock Exchange trading days after the Expiration Date, the Letter of Transmittal (or facsimile thereof), together with the Outstanding New Notes (or a confirmation of book-entry transfer of such Notes into the Exchange Agent's account at DTC) and any other documents required by the Letter of Transmittal or a book-entry confirmation and Agent's Message, will be deposited by the Eligible Institution with the Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal (or facsimile thereof), as well as tendered Outstanding New Notes in proper form for transfer (or a confirmation of book-entry transfer of such Outstanding New Notes into the Exchange Agent's account at DTC) and all other documents required by the Letter of Transmittal or a confirmation of book-entry transfer of the Outstanding New Notes into the Exchange Agent's account at the appropriate book-entry transfer facility and Agent's Message, are received by the Exchange Agent within three New York Stock Exchange trading days after the Expiration Date.
A Notice of Guaranteed Delivery will be sent to Holders who wish to tender their Outstanding New Notes according to the guaranteed delivery procedures set forth above. Any Holder who wishes to tender Outstanding New Notes pursuant to the guaranteed delivery procedures described above must ensure that the Exchange Agent receives the Notice of Guaranteed Delivery relating to such Outstanding New Notes prior to the Expiration Date. Failure to comply with the guaranteed delivery procedures outlined above will not, of itself, affect the validity or effect a revocation of any Letter of Transmittal form properly completed and executed by a Holder who attempted to use the guaranteed delivery procedures.
3. Partial Tenders; Withdrawals. Tenders of Outstanding New Notes will be accepted only in the principal amount of $2,000 and integral multiples of $1,000 in excess thereof. If less than the entire principal amount of Outstanding New Notes evidenced by a submitted certificate is tendered, the tendering Holder should fill in the principal amount tendered in the column entitled “Principal Amount Tendered” in the box entitled “Description of 8.00% Senior Secured Second Lien Notes due 2022 Issued on June 23, 2017 Tendered Hereby.” A newly issued Outstanding Note for the principal amount of Outstanding New Notes submitted but not tendered will be sent to such Holder as soon as practicable after the Expiration Date. All Outstanding New Notes delivered to the Exchange Agent will be deemed to have been tendered in full unless otherwise indicated.
Outstanding New Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date, after which tenders of Outstanding New Notes are irrevocable.
To be effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Exchange Agent or the Holder must otherwise comply with the withdrawal procedures of DTC, as described in the Prospectus. Any such notice of withdrawal must (a) specify the name of the person having deposited the Outstanding New Notes to be withdrawn (the “Depositor”), (b) identify the Outstanding New Notes to be withdrawn (including the registration number(s) and principal amount of such Outstanding New Notes, or, in the case of Outstanding New Notes transferred by book-entry transfer, the name and number of the account at DTC, to be credited, or otherwise comply with the book-entry transfer facility's procedures), (c) be signed by the Holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Trustee with respect to the Outstanding New Notes register the transfer of such Outstanding New Notes into the name of the person withdrawing the tender, (d) include a statement that such holder is withdrawing its election to have such Outstanding New Notes exchanged, and (e) specify the name in which any such Outstanding New Notes are to be registered, if different from that of the Depositor. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Outstanding New Notes so withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offer and no New Exchange Notes will be issued with respect thereto unless the Outstanding New Notes so withdrawn are validly retendered. Any Outstanding New Notes which have been tendered but which are not accepted for exchange will be returned to the Holder thereof without cost to such Holder as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer (or , in the case of Outstanding New Notes tendered by book-entry transfer into the Exchange Agent's account at the book entry transfer facility pursuant to the book-entry transfer procedures described above, such Outstanding New Notes will be credited to an account with such book-entry transfer facility specified by the holder) promptly after withdrawal, rejection of tender or termination of the Exchange Offers. Properly withdrawn Outstanding New Notes may be retendered by following one of the procedures described under the caption “The Exchange Offer-Procedures for Tendering” in the Prospectus at any time prior to the Expiration Date.
4. Signature on this Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures. If this Letter of Transmittal is signed by the registered Holder(s) of the Outstanding New Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the certificates without alteration or enlargement or any change whatsoever. If this Letter of Transmittal is signed by a participant in DTC, the signature must correspond with the name as it appears on the security position listing as the owner of the Outstanding New Notes.
If any of the Outstanding New Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Outstanding New Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of Outstanding New Notes.
Signatures on this Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed by an Eligible Institution unless the Outstanding New Notes tendered hereby are tendered (i) by a registered Holder who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on the Letter of Transmittal or (ii) for the account of an Eligible Institution.
If this Letter of Transmittal is signed by the registered Holder or Holders of Outstanding New Notes (which term, for the purposes described herein, shall include a participant in DTC whose name appears on a security position listing as the owner of the Outstanding New Notes) listed and tendered hereby, no endorsements of the tendered Outstanding New Notes or separate written instruments of transfer or exchange are required.
If this Letter of Transmittal is signed by a person other than the registered holder or holders of the Outstanding New Notes listed, such Outstanding New Notes must be endorsed or accompanied by separate written instruments of transfer or exchange in form
satisfactory to the Company and duly executed by the registered holder, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the Outstanding New Notes.
Endorsements on certificates or signatures on separate written instruments of transfer or exchange required by this Instruction 4 must be guaranteed by an Eligible Institution. Signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution, unless Outstanding New Notes are tendered: (i) by a holder who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on this Letter of Transmittal; or (ii) for the account of an Eligible Institution. If Outstanding New Notes are registered in the name of a person other than the signer of this Letter of Transmittal, the Outstanding New Notes surrendered for exchange must be endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange, in satisfactory form as determined by the Company, in its sole discretion, duly executed by the registered holder with the signature thereon guaranteed by an Eligible Institution.
If this Letter of Transmittal, any certificates or separate written instruments of transfer or exchange 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, unless waived by the Company, proper evidence satisfactory to the Company of their authority so to act must be submitted.
5. Special Registration and Delivery Instructions. Tendering Holders should indicate, in the applicable box, the name and address (or account at DTC) in which the New Exchange Notes or substitute Outstanding New Notes for principal amounts not tendered or not accepted for exchange are to be issued (or deposited), if different from the names and addresses or accounts of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification number or social security number of the person named must also be indicated and the tendering Holder should complete the applicable box. Holders tendering Outstanding New Notes by book-entry transfer may request that Outstanding New Notes not exchanged be credited to such account maintained at the book-entry transfer facility as such holder may designate.
If no instructions are given, the New Exchange Notes (and any Outstanding New Notes not tendered or not accepted) will be issued in the name of and sent to the acting Holder of the Outstanding New Notes or deposited at such Holder's account at DTC.
6. Transfer Taxes. The Company shall pay all transfer taxes, if any, applicable to the transfer and exchange of Outstanding New Notes to it or its order pursuant to the Exchange Offer. If a transfer tax is imposed for any reason other than the transfer and exchange of Outstanding New Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered Holder or any other person) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exception therefrom is not submitted herewith, the amount of such transfer taxes will be collected from the tendering Holder by the Exchange Agent.
Except as provided in this Instruction 6, it will not be necessary for transfer stamps to be affixed to the Outstanding New Notes listed in this Letter of Transmittal.
7. IRS Form W-9. Under U.S. federal income tax law, payments made in respect of New Exchange Notes issued pursuant to the Exchange Offer may be subject to backup withholding at the rate, currently 28%, specified in Section 3406(a)(1) (the “Specified Rate”) of the Internal Revenue Code of 1986, as amended ("Code"). In order to avoid such backup withholding, each tendering holder (or other payee) that is a United States person (as defined in Section 7701(a)(30) of the Code) should complete and sign the Internal Revenue Service (“IRS”) Form W-9 included with this Letter, on which form such holder must provide the correct taxpayer identification number (“TIN”) and certify, under penalties of perjury, that: (a) the TIN provided is correct or that such holder is awaiting a TIN; (b) the holder is not subject to backup withholding because (i) the holder has not been notified by the IRS that the holder is subject to backup withholding as a result of failure to report interest or dividends, (ii) the IRS has notified the holder that the holder is no longer subject to backup withholding, or (iii) the holder is exempt from backup
withholding; (c) the holder is a United States person; and (d) the FATCA code entered on the form, if any, indicating an exemption from FATCA withholding is correct. If a holder has been notified by the IRS that it is subject to backup withholding, it must follow the applicable instructions included with the IRS Form W-9.
The holder (other than an exempt or foreign holder subject to the requirements described below) is required to give the TIN (in general, if an individual, the holder’s Social Security number, otherwise, the holder’s employer identification number) of the record holder of the Outstanding New Notes. If the tendering holder has not been issued a TIN and has applied for one or intends to apply for one in the near future, such holder should follow the applicable instructions included with the IRS Form W-9. If the Exchange Agent or the Company is not provided with the correct TIN, the holder may be subject to a $50 penalty imposed by the Code in addition to backup withholding at the Specified Rate on payments to such holder.
Certain holders (including all corporations and certain holders that are not United States persons (“foreign holders”)) are not subject to these backup withholding and reporting requirements. Such an exempt holder, other than a foreign holder, should enter the holder’s name, address, status, exempt payee code and TIN on the IRS Form W-9, and sign, date and return the IRS Form W-9 to the Exchange Agent and should follow the additional instructions included with the IRS Form W-9. A foreign holder should not complete the IRS Form W-9. A foreign holder should complete IRS Form W-8BEN, W-8BEN-E, or other applicable W-8. In order for a foreign holder to qualify as an exempt recipient, such holder must submit a statement (generally, the IRS Form W-8BEN, W-8BEN-E, or other applicable W-8), signed under penalties of perjury, attesting to that person’s exempt status. Such statements can be obtained from the Exchange Agent or online from the IRS at www.irs.gov. For further information concerning backup withholding and instructions for completing the IRS Form W-9 (including how to obtain a TIN if you do not have one and how to complete the IRS Form W-9 if Outstanding New Notes are registered in more than one name), consult the instructions included with the IRS Form W-9.
Failure to complete the IRS Form W-9 will not, by itself, cause Outstanding New Notes to be deemed invalidly tendered, but may require the Company (or the Exchange Agent) to withhold at the Specified Rate on payments made in respect of New Exchange Notes. Backup withholding is not an additional tax. Rather, if the required information is furnished to the IRS, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained provided that the required information is timely furnished to the IRS.
8. Waiver of Conditions. The Company reserves the right, in its reasonable judgment, to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.
9. Mutilated, Lost, Stolen or Destroyed Outstanding New Notes. Any Holder whose Outstanding New Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions.
10. Requests for Assistance or Additional Copies. Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus or this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number(s) set forth on the first page hereof.
11. Validity and Form. All questions as to the validity, form, eligibility (including time of receipt), acceptance of Letters of Transmittal and tendered Outstanding New Notes and withdrawal of tendered Outstanding New Notes will be determined by the Company in its sole discretion, which determination will be final and binding. The Company reserves the absolute right to reject any and all Outstanding New Notes not properly tendered or any Outstanding New Notes the Company's acceptance of which would, in the opinion of counsel for the Company, be unlawful. The Company also reserves the right to waive any defects, irregularities or conditions of tender as to particular Outstanding New Notes. The Company's interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding on all parties.
Unless waived, any defects or irregularities in connection with tenders of Outstanding New Notes must be cured within such time as the Company shall determine. Although the Company intends to notify Holders of defects or irregularities with respect to tenders of Outstanding New Notes, neither the Company, the Exchange Agent nor any other person shall incur any liability for failure to give such notification. Tenders of Outstanding New Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Outstanding New Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holder as soon as practicable following the Expiration Date.
IMPORTANT: | THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER WITH OUTSTANDING NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE. |