Exhibit 99.1
LETTER OF TRANSMITTAL
To Tender For Exchange
5.500% Senior Notes due 2017
5.200% Senior Notes due 2021
3.375% Senior Notes due 2023
3.875% Senior Notes due 2024
5.200% Senior Notes due 2021
3.375% Senior Notes due 2023
3.875% Senior Notes due 2024
of
ESSEX PORTFOLIO, L.P.
Pursuant To The Prospectus Dated , 2014
THE EXCHANGE OFFERS AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2014, UNLESS EXTENDED (THE “EXPIRATION DATE”).
The Exchange Agent for the Exchange Offers is:
U.S. BANK NATIONAL ASSOCIATION | |
By Hand, Overnight Delivery or Mail | By Facsimile Transmission |
(Registered or Certified Mail Recommended): | (for eligible institutions only): |
West Side Flats Operations Center | |
III Fillmore Avenue East | (651) 466-7372 |
St. Paul, MN 55107 | Attn: Specialized Finance |
Attn.: Specialized Finance |
For Information Call:
800-934-6802
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY OF THIS LETTER OF TRANSMITTAL. DELIVERY OF DOCUMENTS TO THE DEPOSITORY TRUST COMPANY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The undersigned hereby acknowledges receipt of the prospectus, dated , 2014, of Essex Portfolio, L.P., a California limited partnership (the “Company”), which, together with this letter of transmittal, constitute the Company’s offer to exchange (the “Exchange Offers”) up to (i) $274,188,000 aggregate principal amount of its new 5.500% Senior Notes due 2017 (CUSIP No.: 29717P AG2) (the “New 2017 Notes”), (ii) $282,577,000 aggregate principal amount of its new 5.200% Senior Notes due 2021 (CUSIP No.: 29717P AJ6) (the “New 2021 Notes”), (iii) $290,962,000 aggregate principal amount of its new 3.375% Senior Notes due 2023 (CUSIP No.: 29717P AL1) (the “New 2023 Notes”) and (iv) $400,000,000 aggregate principal amount of its new 3.875% Senior Notes due 2024 (CUSIP No.: 29717P AN9) (the “New 2024 Notes” and, together with the New 2017 Notes, the New 2021 Notes and the New 2023 Notes, the “New Notes”), which, in each case, have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of its outstanding unregistered (i) 5.500% Senior Notes due 2017 (CUSIP Nos.: U2843M AB1 and 29717P AF4) (the “Original 2017 Notes”), (ii) 5.200% Senior Notes due 2021 (CUSIP Nos.: U2843M AC9 and 29717P AH0) (the “Original 2021 Notes”), (iii) 3.375% Senior Notes due 2023 (CUSIP Nos.: U2843M AD7 and 29717P AK3) (the “Original 2023 Notes”) and (iv) 3.875% Senior Notes due 2024 (CUSIP Nos.: 29717P AM9 and U2843M AE5) (the “Original 2024 Notes” and, together with the Original 2017 Notes, the Original 2021 Notes and the Original 2023 Notes, the “Original Notes”), respectively. Original Notes may be tendered in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
IF YOU DESIRE TO EXCHANGE YOUR ORIGINAL NOTES FOR AN EQUAL AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF NEW NOTES, YOU MUST VALIDLY TENDER (AND NOT VALIDLY WITHDRAW) YOUR ORIGINAL NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
YOU MUST SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW. PLEASE READ THE INSTRUCTIONS SET FORTH BELOW CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.
This letter of transmittal is to be completed by holders of the Company’s Original Notes if certificates representing such notes are to be forwarded herewith pursuant to the procedures set forth in the prospectus under the headings “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering” and “The 2024 Exchange Offer — Procedures for Tendering.”
Holders that are tendering Original Notes by book-entry transfer to the exchange agent’s account at DTC must execute the tender through the DTC Automated Tender Offer Program (“ATOP”), for which the Exchange Offers are eligible. DTC participants that are tendering Original Notes pursuant to an Exchange Offer must transmit their acceptance through the ATOP to DTC, which will edit and verify the acceptance and send an agent’s message to the exchange agent for its acceptance. Accordingly, this letter of transmittal need not be completed by a holder tendering through the DTC ATOP. However, any such holder will be bound by the terms of this letter of transmittal and the terms of the applicable Exchange Offer, as described in the prospectus and this letter of transmittal. Delivery by a holder of documents to DTC does not constitute delivery to the exchange agent.
The undersigned has completed, executed and delivered this letter of transmittal to indicate the action the undersigned desires to take with respect to the applicable Exchange Offer.
In order to properly complete this letter of transmittal, a holder of Original Notes must:
● | complete the box entitled “Description of Original Notes”; |
● | if appropriate, check and complete the boxes relating to guaranteed delivery, Special Issuance Instructions and Special Delivery Instructions; |
● | sign the letter of transmittal; and |
● | complete the included Form W-9 (or provide an IRS Form W-8). |
If a holder desires to tender Original Notes pursuant to an Exchange Offer and (1) certificates representing such notes are not immediately available, (2) time will not permit this letter of transmittal, certificates representing such notes or other required documents to reach the exchange agent on or prior to the expiration date, or (3) the procedures for book-entry transfer (including delivery of an agent’s message) cannot be completed on or prior to the expiration date of the applicable Exchange Offer, such holder may nevertheless tender such notes with the effect that such tender will be deemed to have been received on or prior to the expiration date of the applicable Exchange Offer if the guaranteed delivery procedures described in the prospectus under “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering — Guaranteed Delivery” and “The 2024 Exchange Offer — Procedures for Tendering — Guaranteed Delivery” are followed. See Instruction 1 below.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE INSTRUCTIONS, AND THE PROSPECTUS CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL OR CHECKING ANY BOX BELOW. The instructions included with this letter of transmittal must be followed. Questions and requests for assistance or for additional copies of the prospectus and this letter of transmittal, the Notice of Guaranteed Delivery and related documents may be directed to U.S. Bank National Association, at the address and telephone number set forth on the cover page of this letter of transmittal. See Instruction 11 below.
List below the Original Notes to which this letter of transmittal relates. If the space provided is inadequate, list the certificate numbers and principal amounts at maturity on a separately executed schedule and affix the schedule to this letter of transmittal. Tenders of Original Notes will be accepted only in minimum principal amounts at maturity equal to $2,000 or integral multiples of $1,000 in excess thereof.
DESCRIPTION OF ORIGINAL NOTES |
NAME(S) AND ADDRESS(ES) OFREGISTERED HOLDER(S (PLEASE FILL IN) | SERIES AND CERTIFICATE NUMBER(S) | AGGREGATE PRINCIPAL AMOUNT AT MATURITY REPRESENTED* | PRINCIPAL AMOUNT AT MATURITY TENDERED* |
* | Unless otherwise indicated in the column “Principal Amount at Maturity Tendered” and subject to the terms and conditions of the applicable Exchange Offer, the holder will be deemed to have tendered the entire aggregate principal amount at maturity represented by each Original Note listed above and delivered to the exchange agent. See Instruction 4. |
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING THE BOXES BELOW
o | CHECK HERE IF CERTIFICATES FOR TENDERED ORIGINAL NOTES ARE ENCLOSED HEREWITH. | |||||||
o | CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: | |||||||
Name(s) of Registered Holder(s): | ||||||||
Window Ticket Number(s) (if any): | ||||||||
Date of Execution of the Notice of Guaranteed Delivery: | ||||||||
Name of Eligible Institution that Guaranteed Delivery: | ||||||||
o | PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE TEN ADDITIONAL COPIES OF THE PROSPECTUS AND TEN ADDITIONAL COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. | |||||||
Name: | ||||||||
Address: | ||||||||
Area Code and Telephone Number: |
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the applicable Exchange Offer, the undersigned hereby tenders to Essex Portfolio, L.P., a California limited partnership (the “Company”), the principal amount of Original Notes described above. Subject to, and effective upon, the acceptance for exchange of the Original Notes tendered herewith, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Original Notes.
The undersigned hereby irrevocably constitutes and appoints the exchange agent as the 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 as trustee under the applicable indenture(s) relating to the Original Notes) with respect to such tendered Original Notes, with full power of substitution and resubstitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), subject only to the right of withdrawal described in the prospectus, to (1) deliver certificates representing such tendered Original Notes, or transfer ownership of such notes, on the account books maintained by The Depository Trust Company (“DTC”), and to deliver all accompanying evidence of transfer and authenticity to, or upon the order of, the Company upon receipt by the exchange agent, as the undersigned’s agent, of the New Notes to which the undersigned is entitled upon the acceptance by the Company of such Original Notes for exchange pursuant to the applicable Exchange Offer, (2) receive all benefits and otherwise to exercise all rights of beneficial ownership of such Original Notes, all in accordance with the terms and conditions of the applicable Exchange Offer, and (3) present such Original Notes for transfer, and transfer such Original Notes, on the relevant security register.
The undersigned hereby represents and warrants that the undersigned (1) owns the Original Notes tendered and is entitled to tender such notes, and (2) has full power and authority to tender, sell, exchange, assign and transfer the Original Notes and to acquire New Notes issuable upon the exchange of such tendered Original Notes, and that, when the same are accepted for exchange, the Company will acquire good, marketable and unencumbered title to the tendered Original Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim or right or restriction or proxy of any kind. 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 sale, exchange, assignment and transfer of tendered Original Notes or to transfer ownership of such notes on the account books maintained by DTC. The undersigned agrees to all of the terms of the applicable Exchange Offer, as described in the prospectus and this letter of transmittal.
Tenders of the Original Notes pursuant to any one of the procedures described in the prospectus under the captions “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering” and “The 2024 Exchange Offer — Procedures for Tendering” and in the instructions to this letter of transmittal will, upon the Company’s acceptance of the Original Notes for exchange, constitute a binding agreement between the undersigned and the Company in accordance with the terms and subject to the conditions of the applicable Exchange Offer.
Each Exchange Offer is subject to the conditions set forth in the prospectus under the captions “The 2017, 2021 and 2023 Exchange Offers — Conditions” and “The 2024 Exchange Offer — Conditions.” As a result of these 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 Original Notes tendered by this letter of transmittal and, in such event, the Original Notes not exchanged will be returned to the undersigned at the address shown below the signature of the undersigned.
Unless a box under the heading “Special Issuance Instructions” is checked, by tendering Original Notes and executing this letter of transmittal, the undersigned hereby represents and warrants that:
(1) | the undersigned or any beneficial owner of the Original Notes is acquiring the New Notes in the ordinary course of business of the undersigned (or such other beneficial owner); |
(2) | neither the undersigned nor any beneficial owner is engaging in or intends to engage in a distribution of the Original Notes within the meaning of the federal securities laws; |
(3) | neither the undersigned nor any beneficial owner has an arrangement or understanding with any person or entity to participate in a distribution of the Original Notes; |
(4) | neither the undersigned nor any beneficial owner is an “affiliate,” as such term is defined under Rule 405 promulgated under the Securities Act, of the Company or Essex Property Trust, Inc. Upon request by the Company, the undersigned or such beneficial owner will deliver to the Company a legal opinion confirming it is not such an affiliate; |
(5) | the undersigned and each beneficial owner acknowledges and agrees that any person who is a broker-dealer registered under the Securities Exchange Act of 1934, as amended, or is participating in an Exchange Offer for the purpose of distributing any New Notes, must comply with the registration and delivery requirements of the Securities Act in connection with a secondary resale transaction of any New Notes or interests therein acquired by such person and cannot rely on the position of the staff of the Securities and Exchange Commission (the “SEC”) set forth in certain no-action letters; |
(6) | a secondary resale transaction described in clause (7) above and any resales of New Notes or interests therein obtained by such holder in exchange for Original Notes or interests therein originally acquired by such holder directly from the Company should be covered by an effective registration statement containing the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K or the SEC; and |
(7) | the undersigned is not acting on behalf of any person or entity who could not truthfully make the foregoing representations. |
The undersigned may, IF AND ONLY IF UNABLE TO MAKE ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN CLAUSES (1)-(7) ABOVE, elect to have its Original Notes registered in the shelf registration described in each of the three Registration Rights Agreements, dated as of April 4, 2014, by and among the Company, Essex Property Trust, Inc., as guarantor, and Citigroup Global Markets Inc., J.P. Morgan Securities LLC, UBS Securities LLC and Wells Fargo Securities, LLC, as dealer managers and in the Registration Rights Agreement, dated as of April 15, 2014, by and among Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC as representatives of the several initial purchasers, in the forms filed or incorporated by reference as exhibits to the registration statement of which the prospectus is a part (the “Registration Statement”). Such election may be made by checking a box under “Special Issuance Instructions” below. By making such election, the undersigned agrees, as a holder of restricted securities participating in a shelf registration, severally and not jointly, to indemnify and hold harmless the Company, the guarantor, their respective agents, employees, directors and officers and each person who controls the Company or the guarantor, within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended, against any and all losses, claims, damages, liabilities and judgments caused by (1) any untrue statement or alleged untrue statement of any material fact contained in the shelf registration statement filed with respect to such Original Notes or the prospectus or in any amendment thereof or supplement thereto or (2) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that any such loss, claim, damage, liability or judgment arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made therein based on information relating to the undersigned furnished to the Company in writing by or on behalf of the undersigned expressly for use therein. Any such indemnification shall be governed by the terms and subject to the conditions set forth in the applicable Registration Rights Agreement, including, without limitation, the provisions regarding notice, retention of counsel, contribution and payment of expenses set forth therein. The above summary of the indemnification provision of the Registration Rights Agreements is not intended to be exhaustive and is qualified in its entirety by reference to the Registration Rights Agreements.
If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Original Notes, it represents that the Original Notes were acquired as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes, however, by so acknowledging and 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 broker-dealer and Original Notes held for its own account were not acquired as a result of market-making or other trading activities, such Original Notes cannot be exchanged pursuant to any Exchange Offer.
All authority herein conferred or agreed to be conferred shall not be affected by, and shall survive the death, bankruptcy or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, executors, administrators, successors, assigns, trustees in bankruptcy and other legal representatives of the undersigned.
Tendered Original Notes may be withdrawn at any time prior to 5:00 p.m., New York City time on , 2014, or on such later date or time to which the Company may extend the applicable Exchange Offer.
Unless otherwise indicated herein under the box entitled “Special Issuance Instructions” below, New Notes, and Original Notes not tendered or accepted for exchange, will be issued in the name of the undersigned. Similarly, unless otherwise indicated under the box entitled “Special Delivery Instructions” below, New Notes, and Original Notes not tendered or accepted for exchange, will be delivered to the undersigned at the address shown below the signature of the undersigned. In the case of a book-entry delivery of New Notes, the exchange agent will credit the account maintained by DTC with any Original Notes not tendered. The Company has no obligation pursuant to the “Special Issuance Instructions” to transfer any Original Notes from the name of the registered holder thereof if the Company does not accept for exchange any of the principal amount at maturity of such Original Notes so tendered.
The New Notes will bear interest from the date of original issuance of the Original Notes or, if interest has already been paid on the Original Notes, from the date interest was most recently paid. Interest on the Original Notes accepted for exchange will cease to accrue (as of the later of the date of original issuance or the date interest was most recently paid on the Original Notes) upon the issuance of the New Notes.
PLEASE SIGN HERE
(To Be Completed By All Tendering Holders of Original Notes)
This letter of transmittal must be signed by the registered holder(s) of Original Notes exactly as their name(s) appear(s) on certificate(s) for Original Notes, or by person(s) authorized to become registered holder(s) by endorsements and documents transmitted with this letter of transmittal, including such opinions of counsel, certifications and other information as may be required by the Company or the trustee for the Original Notes to comply with the restrictions on transfer applicable to the Original Notes. If the signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below under “Capacity” and submit evidence satisfactory to the exchange agent of such person’s authority to so act. See Instruction 5 below. If the signature appearing below is not of the registered holder(s) of the Original Notes, then the registered holder(s) must sign a valid power of attorney.
X | |||
X | |||
Signature(s) of Holder(s) or Authorized Signatory | |||
Dated: _______________, 2014 | |||
Name(s): | |||
Capacity: | |||
Address: | |||
(Zip Code) | |||
Area Code and Telephone | |||
No.: |
GUARANTEE OF SIGNATURE(S)
(If required—see Instructions 2 and 5 below)
Certain Signatures Must Be Guaranteed by a Signature Guarantor
(Name of Signature Guarantor Guaranteeing Signatures) |
(Address (including zip code) and Telephone Number (including area code) of Firm) |
(Authorized Signature) |
(Printed Name) |
(Title) |
Dated: _______________, 2014
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 4 through 7)
To be completed ONLY if certificates for Original Notes in a principal amount at maturity not tendered are to be issued in the name of, or New Notes issued pursuant to an Exchange Offer are to be issued in the name of, someone other than the person or persons whose name(s) appear(s) within this letter of transmittal or issued to an address different from that shown in the box entitled “Description of Original Notes” within this letter of transmittal.
Issue:
o New Notes, to:
o Original Notes, to:
Name(s) | |
Address | |
Telephone Number: | |
(Tax Identification or Social Security Number) | |
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 Through 7)
To be completed ONLY if certificates for Original Notes in a principal amount at maturity not tendered, or New Notes, are to be sent to someone other than the person or persons whose name(s) appear(s) within this letter of transmittal to an address different from that shown in the box entitled “Description of Original Notes” within this letter of transmittal.
Deliver:
o New Notes, to:
o Original Notes, to:
Name(s) | |
Address | |
Telephone Number: | |
(Tax Identification or Social Security Number) | |
Is this a permanent address change? (check one box)
o Yes
o No
INSTRUCTIONS TO LETTER OF TRANSMITTAL
(Forming part of the terms and conditions of the Exchange Offers)
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND ORIGINAL NOTES. This letter of transmittal is to be completed by holders of Original Notes if certificates representing such Original Notes are to be forwarded herewith, pursuant to the procedures set forth in the prospectus under “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering” and “The 2024 Exchange Offer — Procedures for Tendering.” For a holder to properly tender Original Notes pursuant to an Exchange Offer, either (1) a properly completed and duly executed letter of transmittal (or a manually signed facsimile thereof), together with any signature guarantees and any other documents required by these Instructions and certificates representing such Original Notes must be received by the exchange agent at its address, or (2) in the case of a book-entry transfer, a properly transmitted agent’s message must be received by the exchange agent at its address set forth herein on or prior to the expiration date, such Original Notes must be transferred pursuant to the procedures for book-entry transfer described in the prospectus under “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering — Book-Entry Transfer” and “The 2024 Exchange Offer — Procedures for Tendering — Book-Entry Transfer” and a book-entry confirmation must be received by the exchange agent on or prior to the expiration date. A holder who desires to tender Original Notes and who cannot comply with procedures set forth herein for tender on a timely basis or whose Original Notes are not immediately available must comply with the guaranteed delivery procedures discussed below.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE ORIGINAL NOTES AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND SOLE RISK OF THE HOLDER AND DELIVERY WILL BE DEEMED TO BE MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. INSTEAD OF DELIVERY BY MAIL, HOLDERS SHOULD USE AN OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, HOLDERS SHOULD ALLOW FOR SUFFICIENT TIME TO ENSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION OF THE APPLICABLE EXCHANGE OFFER AND PROPER INSURANCE SHOULD BE OBTAINED. HOLDERS MAY REQUEST THEIR BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR NOMINEE TO EFFECT THESE TRANSACTIONS FOR SUCH HOLDER. HOLDERS SHOULD NOT SEND ANY ORIGINAL NOTE, LETTER OF TRANSMITTAL OR OTHER REQUIRED DOCUMENT TO THE COMPANY.
If a holder desires to tender Original Notes pursuant to an Exchange Offer and (1) certificates representing such Original Notes are not immediately available, (2) time will not permit such holder’s letter of transmittal, certificates representing such Original Notes or other required documents to reach the exchange agent on or prior to the expiration date of the applicable Exchange Offer, or (3) the procedures for book-entry transfer (including delivery of an agent’s message) cannot be completed on or prior to the expiration date, such holder may nevertheless tender such Original Notes with the effect that such tender will be deemed to have been received on or prior to the expiration date of the applicable Exchange Offer if the guaranteed delivery procedures set forth in the prospectus under “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering — Guaranteed Delivery” and “The 2024 Exchange Offer — Procedures for Tendering — Guaranteed Delivery” are followed. Pursuant to such procedures, (1) the tender must be made by or through an eligible guarantor institution (as defined below), (2) a properly completed and duly executed notice of guaranteed delivery, substantially in the form provided by the Company herewith, or a message with respect to a guaranteed delivery that is accepted by the Company, must be received by the exchange agent on or prior to the expiration date, and (3) the certificates for the tendered Original Notes, in proper form for transfer together with a letter of transmittal (or manually signed facsimile thereof) properly completed and duly executed, with any required signature guarantees and any other documents required by the letter of transmittal (or a book-entry confirmation of the transfer of such Original Notes into the exchange agent’s account at DTC as described in the prospectus and a properly transmitted agent’s message), must be received by the exchange agent within three New York Stock Exchange, Inc. trading days after the expiration date of the applicable Exchange Offer.
The notice of guaranteed delivery may be delivered by hand or transmitted by facsimile or mail to the exchange agent and must include a guarantee by an eligible guarantor institution in the form set forth in the notice of guaranteed delivery. For Original Notes to be properly tendered pursuant to the guaranteed delivery procedure, the exchange agent must receive a notice of guaranteed delivery prior to the expiration date of the applicable Exchange Offer. As used herein and in the prospectus, an “eligible institution” is an “eligible guarantor institution” meeting the requirements of the registrar for the notes, which requirements include membership or participation in the Securities Transfer Agents Medallion Program, or STAMP, or such other “signature guarantee program” as may be determined by the registrar for the Original Notes in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
2. GUARANTEE OF SIGNATURES. Signatures on this letter of transmittal must be guaranteed by a member of or participant in STAMP, the New York Stock Exchange, Inc. Medallion Signature Program or the Stock Exchange Medallion Program or by an eligible guarantor institution unless the Original Notes tendered hereby are tendered (1) by a registered holder of Original Notes who has signed this letter of transmittal and who has not completed any of the boxes entitled “Special Issuance Instructions” or “Special Delivery Instructions,” on the letter of transmittal, or (2) for the account of an eligible guarantor institution. If the Original Notes are registered in the name of a person other than the signer of the letter of transmittal or if Original Notes not tendered are to be returned to, or are to be issued to the order of, a person other than the registered holder or if Original Notes not tendered are to be sent to someone other than the registered holder, then the signature on this letter of transmittal accompanying the tendered Original Notes must be guaranteed as described above. Beneficial owners whose Original Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact such broker, dealer, commercial bank, trust company or other nominee if they desire to tender Original Notes. See “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering” and “The 2024 Exchange Offer — Procedures for Tendering” in the prospectus.
3. WITHDRAWAL OF TENDERS. Tenders of Original Notes may be withdrawn at any time on or prior to the expiration date. For a withdrawal of tendered Original Notes to be effective, the exchange agent must receive on or prior to the expiration date of the applicable Exchange Offer either (1) a computer generated notice of withdrawal, transmitted on behalf of DTC on behalf of the holder in accordance with DTC’s procedures or (2) a written, telegraphic or facsimile transmission notice of withdrawal at its address set forth on the cover of this letter of transmittal. Any such written, telegraphic or facsimile notice of withdrawal must (1) specify the name of the person who tendered the Original Notes to be withdrawn, (2) identify the Original Notes to be withdrawn, including the certificate number or numbers shown on the particular certificates evidencing such Original Notes, the aggregate principal amount at maturity represented by such Original Notes and the name of the registered holder of such Original Notes, if different from that of the person who tendered such Original Notes, (3) be signed by the holder of such Original Notes in the same manner as the original signature on the letter of transmittal by which such Original Notes were tendered (including any required signature guarantees), or be accompanied by (a) documents of transfer sufficient to have the trustee register the transfer of the Original Notes into the name of the person withdrawing such Original Notes, and (b) a properly completed irrevocable proxy authorizing such person to effect such withdrawal on behalf of such holder, and (4) specify the name in which any such Original Notes are to be registered, if different from that of the registered holder. If the Original Notes were tendered pursuant to the procedures for book-entry transfer set forth in “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering — Book-Entry Transfer” and “The 2024 Exchange Offer — Procedures for Tendering — Book-Entry Transfer” in the prospectus, the notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawal of Original Notes and must otherwise comply with the procedures of DTC. If the Original Notes 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 such withdrawal even if physical release is not yet effected.
Any permitted withdrawal of Original Notes may not be rescinded. Any Original Notes properly withdrawn will thereafter be deemed not validly tendered for purposes of the applicable Exchange Offer. However, properly withdrawn Original Notes may be retendered by following one of the procedures described in the prospectus under the captions “The 2017, 2021 and 2023 Exchange Offers — Procedures for Tendering” and “The 2024 Exchange Offer — Procedures for Tendering” at any time prior to the expiration date.
All questions as to the validity, form and eligibility (including time of receipt) of such withdrawal notices will be determined by the Company, in its sole discretion, which determination shall be final and binding on all parties. Neither the Company, any affiliates of the Company, the exchange agent nor any other person shall be under any duty to give any notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.
4. PARTIAL TENDERS. Tenders of less than a holder’s entire principal amount of Original Notes pursuant to the any Exchange Offer will be accepted only in minimum principal amounts at maturity equal to $2,000 or integral multiples of $1,000 in excess thereof. If less than the entire principal amount at maturity of any Original Notes evidenced by a submitted certificate is tendered, the tendering holder must fill in the principal amount at maturity tendered in the last column of the box entitled “Description of Original Notes” herein. The entire principal amount at maturity represented by the certificates for all Original Notes delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated. If the entire principal amount at maturity of all Original Notes held by the holder is not tendered, new certificates for the principal amount at maturity of Original Notes not tendered and New Notes issued in exchange for any Original Notes tendered and accepted will be sent (or, if tendered by book-entry transfer, returned by credit to the holder’s account at DTC) to the holder unless otherwise provided in the appropriate box on this letter of transmittal (see Instruction 6), as soon as practicable following the expiration date.
5. SIGNATURE ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this letter of transmittal is signed by the registered holder(s) of the Original Notes tendered hereby, the signature must correspond exactly with the name(s) as written on the face of certificates without alteration, enlargement or change whatsoever.
If any of the Original Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this letter of transmittal.
If any tendered Original Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many copies of this letter of transmittal and any necessary accompanying documents as there are different names in which certificates are held.
If this letter of transmittal is signed by the registered holder, and the certificates for any principal amount at maturity of Original Notes not tendered are to be issued (or if any principal amount at maturity of Original Notes that is not tendered is to be reissued or returned) to the order of the registered holder and New Notes exchanged for Original Notes in connection with an Exchange Offer are to be issued to the order of the registered holder, then the registered holder need not endorse any certificates for tendered Original Notes nor provide a separate bond power. In any other case (including if this letter of transmittal is not signed by the registered holder), the registered holder must either properly endorse the certificates for Original Notes tendered or transmit a separate properly completed bond power with this letter of transmittal (in either case, executed exactly as the name(s) of the registered holder(s) appear(s) on such Original Notes), with the signature on the endorsement or bond power guaranteed by a signature guarantor or an eligible guarantor institution, unless such certificates or bond powers are executed by an eligible guarantor institution, and must also be accompanied by such opinions of counsel, certifications and other information as the Company or the trustee for the Original Notes may require in accordance with the restrictions on transfer applicable to the Original Notes. See Instruction 2.
Endorsements on certificates for Original Notes and signatures on bond powers provided in accordance with this Instruction 5 by registered holders not executing this letter of transmittal must be guaranteed by an eligible institution. See Instruction 2.
If this letter of transmittal or any certificates representing Original Notes 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 exchange agent, in its sole discretion, of their authority so to act must be submitted with this letter of transmittal.
6. SPECIAL ISSUANCE AND SPECIAL DELIVERY INSTRUCTIONS. Tendering holders should indicate in the applicable box or boxes the name and address to which Original Notes for principal amounts at maturity not tendered or New Notes exchanged for Original Notes in connection with an Exchange Offer are to be issued or sent, if different from the name and address of the holder signing this letter of transmittal. In the case of issuance in a different name, the taxpayer-identification number of the person named must also be indicated. If no instructions are given, Original Notes not tendered and accepted for exchange will be returned to the registered holder of the Original Notes tendered. For holders of Original Notes tendered by book-entry transfer, Original Notes not tendered and accepted for exchange will be returned by crediting the holder’s account at DTC.
7. TAXPAYER IDENTIFICATION NUMBER AND IRS FORM W-9. Each tendering holder should provide the exchange agent with its correct taxpayer identification number, which, in the case of a holder who is an individual, is his or her U.S. social security number. If the exchange agent is not provided with the correct taxpayer identification number or an adequate basis for an exemption, the holder may be subject to backup withholding at the applicable backup withholding rate. If withholding results in an over-payment of taxes, a refund may be obtained.
To prevent backup withholding on any reportable payments, each holder tendering Original Notes must provide such holder’s correct taxpayer identification number by completing the included IRS Form W-9, certifying (under penalties of perjury) that such holder is a U.S. person (including a resident alien), that the taxpayer identification number provided is correct (or that such holder is awaiting a taxpayer identification number), and that (1) such holder is exempt from backup withholding, (2) the holder has not been notified by the Internal Revenue Service that such holder is subject to backup withholding as a result of failure to report all interest or dividends or (3) the Internal Revenue Service has notified the holder that such holder is no longer subject to backup withholding. See the instructions to the included IRS Form W-9.
Certain holders (including, among others, certain non-United States individuals) tendering Original Notes are exempt from these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt holder that is a U.S. person (as defined in the instructions to the IRS Form W-9) should provide its correct taxpayer identification number and enter the appropriate “Exempt payee code” on the IRS Form W-9. In order for a non-U.S. person to qualify as exempt, such person must submit an appropriate IRS Form W-8 (for example, an IRS Form W-8BEN). An IRS Form W-8 may be obtained from the Internal Revenue Service website at www.irs.gov.
The Company reserves the right in its sole discretion to take whatever steps are necessary to comply with its obligation regarding backup withholding. Holders are urged to consult with their own tax advisors to determine if they are exempt from backup withholding.
8. TRANSFER TAXES. The Company will pay all transfer taxes, if any, required to be paid by the Company in connection with the exchange of the Original Notes for the New Notes. If, however, New Notes, or Original Notes for principal amounts at maturity not tendered or accepted for exchange, are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the Original Notes tendered, or if a transfer tax is imposed for any reason other than the exchange of the Original Notes in connection with the applicable Exchange Offer, then the amount of any transfer tax (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of the transfer taxes or exemption therefrom is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed directly to the tendering holder.
9. MUTILATED, LOST, STOLEN OR DESTROYED ORIGINAL NOTES. If any certificate representing Original Notes has been mutilated, lost, stolen or destroyed, the holder should promptly contact the exchange agent at the address indicated above. The holder will then be instructed as to the steps that must be taken in order to replace the certificate. This letter of transmittal and related documents cannot be processed until the procedures for replacing mutilated, lost, stolen or destroyed certificates have been followed.
10. IRREGULARITIES. All questions as to the validity, form, eligibility, time of receipt, acceptance and withdrawal of any tenders of Original Notes pursuant to the procedures described in the prospectus and the form and validity of all documents will be determined by the Company, in its sole discretion, which determination shall be final and binding on all parties. The Company reserves the absolute right, in its sole and absolute discretion, to reject any or all tenders of any Original Notes determined by it not to be in proper form or the acceptance of which may, in the opinion of the Company’s counsel, be unlawful. The Company also reserves the absolute right, in its sole discretion subject to applicable law, to waive or amend any of the conditions of any Exchange Offer for all holders of Original Notes or to waive any defects or irregularities of tender for any Original Notes. The Company’s interpretations of the terms and conditions of any Exchange Offer (including, without limitation, the instructions in this letter of transmittal) shall be final and binding. No alternative, conditional or contingent tenders will be accepted. Unless waived, any irregularities in connection with tenders must be cured within such time as the Company shall determine. Each tendering holder, by execution of a letter of transmittal (or a manually signed facsimile thereof) or by delivery of an agent’s message, waives any right to receive any notice of the acceptance of such tender. Tenders of such Original Notes shall not be deemed to have been made until such irregularities have been cured or waived. Any Original Notes received by the exchange agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent to the tendering holders, unless such holders have otherwise provided herein, promptly following the expiration date of the applicable Exchange Offer. None of the Company, any of its affiliates, the exchange agent or any other person will be under any duty to give notification of any defects or irregularities in such tenders or will incur any liability to holders for failure to give such notification.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the procedure for tendering, as well as requests for assistance or additional copies of the prospectus, this letter of transmittal and the notice of guaranteed delivery may be directed to the exchange agent at the address and telephone number set forth above. Holders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning an Exchange Offer.
IMPORTANT: IN ORDER FOR YOU TO PARTICIPATE IN ANY EXCHANGE OFFER, THE EXCHANGE AGENT MUST RECEIVE, ON OR PRIOR TO 5:00 P.M., NEW YORK CITY TIME ON THE EXPIRATION DATE OF THE APPLICABLE EXCHANGE OFFER, ALONG WITH ALL OTHER REQUIRED DOCUMENTS, EITHER (I) THIS LETTER OF TRANSMITTAL, OR A FACSIMILE THEREOF, TOGETHER WITH CERTIFICATES FOR ORIGINAL NOTES OR (II) IN THE CASE OF ORIGINAL NOTES DELIVERED BY BOOK-ENTRY TRANSFER THROUGH DTC, AN APPROPRIATE AGENT’S MESSAGE AND BOOK-ENTRY CONFIRMATION (UNLESS THE EXCHANGE AGENT HAS RECEIVED A NOTICE OF GUARANTEED DELIVERY ON OR PRIOR TO 5:00 P.M., NEW YORK CITY TIME ON THE EXPIRATION DATE).
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