EXHIBIT 99.1
FORM OF
LETTER OF TRANSMITTAL
THE KRYSTAL COMPANY
Offer to Exchange its 10 1/4% Senior Notes due 2007 ("Exchange Notes")
for any and all of its outstanding
10 1/4% Senior Notes due 2007 ("Private Notes")
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| THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT |
| 5:00 P.M., NEW YORK CITY TIME, ON ____________, 199_, |
| UNLESS THE OFFER IS EXTENDED. |
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To SunTrust Bank, Atlanta
(the "Exchange Agent")
By Registered or Certified Mail: By Hand:
SunTrust Bank, Atlanta SunTrust Bank, Atlanta
Corporate Trust Administration Corporate Trust Administration
P.O. Box 105036 58 Edgewood Avenue
Atlanta, Georgia 30348-5036 4th Floor Annex
Attention: David M. Kaye Atlanta, Georgia 30303
Attention: David M. Kaye
By Facsimile Transmission: By Overnight Courier:
SunTrust Bank, Atlanta SunTrust Bank, Atlanta
(For Eligible Institutions Only) Corporate Trust Administration
(404)332-3966 58 Edgewood Avenue
4th Floor Annex
Atlanta, Georgia 30303
Attention: David M. Kaye
Telephone Number:
(404)588-8060
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS 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
December __, 1997 (the "Prospectus") of The Krystal Company (the "Company") and
this Letter of Transmittal (the "Letter of Transmittal"), which together
constitute the Company's offer (the "Exchange Offer") to exchange $100 million
principal amount of its 10 1/4% Senior Notes due 2007 (the "Exchange Notes")
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Statement of which the Prospectus
is a part, for an equal principal amount of its outstanding 10 1/4% Senior Notes
due 2007 (the "Private Notes"). The term "Expiration Date" shall mean 5:00
p.m., New York City time, on ____________, 199__, unless the Company, in its
sole discretion, 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 but not defined herein have the meaning given to them in the
Prospectus.
This Letter of Transmittal is to be used by holders of Private Notes if (i)
certificates representing the Private Notes are to be physically delivered to
the Exchange Agent herewith, (ii) tender of the Private Notes is to be made by
book-entry transfer to the Exchange Agent's account at The Depository Trust
Company (the "Book-Entry Transfer Facility") pursuant to the procedures set
forth in the Prospectus under the caption "The Exchange Offer -- Procedures for
Tendering" by any financial institution that is a participant in the Book-Entry
Transfer Facility and whose name appears on a security position listing as the
owner of Private Notes (such participants, acting on behalf of holders, are
referred to herein, together with such holders, as "Acting Holders") or (iii)
tender of the Private 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 below. Delivery of
documents to the Book-Entry Transfer Facility does not constitute delivery to
the Exchange Agent.
2
ALL TENDERING HOLDERS COMPLETE THIS BOX
List below the Private Notes to which this Letter of Transmittal relates.
If the space provided below is inadequate, the certificate numbers and principal
amount of Private Notes should be listed on a separate signed schedule affixed
hereto.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING THE BOXES
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Box 1
DESCRIPTION OF PRIVATE NOTES
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NAMES(S) AND ADDRESS(ES) CERTIFICATE AGGREGATE PRINCIPAL PRINCIPAL AMOUNT TENDERED
OF REGISTERED HOLDER(S) NUMBER(S)* AMOUNT REPRESENTED (MUST BE IN INTEGRAL
(PLEASE FILL IN, IF BLANK) BY CERTIFICATE(S) MULTIPLE OF $1,000)**
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Total
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* Need not be completed by Holders tendering by book-entry transfer.
** Unless indicated in the column labeled "Principal Amount Tendered," any tendering Holder of 10
1/4% Senior Notes due 2007 will be deemed to have tendered the entire aggregate principal amount
represented by the column labeled "Aggregate Principal Amount Represented by Certificate(s)."
If the space provided above is inadequate, list the certificate numbers and principal amounts on
a separate signed schedule and affix the list to this Letter of Transmittal.
The minimum permitted tender is $1,000 in principal amount of 10 1/4% Senior Notes due 2007.
All other tenders must be in integral multiples of $1,000.
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[_] CHECK HERE IF TENDERED PRIVATE NOTES ARE ENCLOSED HEREWITH.
[_] CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
Account Number:
Transaction Code Number:
Principal Amount of Tendered Private Notes:
3
If holders desire to tender Private Notes pursuant to the Exchange Offer
and (i) time will not permit this Letter of Transmittal, certificates
representing Private Notes or other required documents to reach the Exchange
Agent prior to the Expiration Date or (ii) the procedures for book-entry
transfer cannot be completed prior to the Expiration Date, such holders may
effect a tender of such Private Notes in accordance with the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange Offer --
Guaranteed Delivery Procedures." See Instruction 2 below.
[_] CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY DELIVERED TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING (See Instruction 2):
Name of Registered or Acting Holder(s):
Window Ticket No. (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Eligible Institution
that Guaranteed Deliver:
If Delivered by Book-Entry Transfer,
the 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:
Attention:
4
BOX 2
SPECIAL REGISTRATION INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5, AND 6)
To be completed ONLY if certificates for Private Notes in a principal amount not
tendered, or Exchange Notes issued in exchange for Private Notes accepted for
exchange, are to be issued in the name of someone other than the undersigned.
Issue certificate(s) to:
Name
(Please Print)
Address
(Include Zip Code)
(Tax Identification or Social Security Number)
BOX 3
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5, AND 6)
To be completed ONLY if certificates for Private Notes in a principal amount not
tendered, or Exchange Notes issued in exchange for Private Notes accepted for
exchange, are to be sent to someone other than the undersigned, or to the
undersigned at an address other than that shown above.
Deliver certificate(s) to:
Name
(Please Print)
Address
(Include Zip Code)
(Tax Identification or Social Security Number)
5
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer as described in
the Prospectus, the undersigned hereby tenders to The Krystal Company, a
Tennessee corporation (the "Company"), the principal amount of Private Notes
indicated in Box 1 above.
Subject to and effective upon the acceptance for exchange of the principal
amount of Private Notes tendered in accordance with this Letter of Transmittal,
the undersigned sells, assigns and transfers to, or upon the order of, the
Company, all right, title and interest in and to the Private Notes tendered
hereby. The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent its agent and attorney-in-fact (with full knowledge that the
Exchange Agent also acts as the agent of the Company) with respect to the
tendered Private Notes with full power of substitution to (i) present such
Private Notes and all evidences of transfer and authenticity to, or transfer
ownership of, such Private Notes on the account books maintained by the Book-
Entry Transfer Facility to, or upon the order of, the Company, (ii) deliver
certificates for such Private Notes to the Company and deliver all accompanying
evidences of transfer and authenticity to, or upon the order of, the Company and
(iii) present such Private Notes for transfer on the books of the Company and
receive all benefits and otherwise exercise all rights of beneficial ownership
of such Private Notes, all in accordance with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Private Notes
tendered hereby and that the Company will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claims, when the same are acquired by the Company.
The undersigned hereby further represents that (i) the Exchange Notes to be
acquired by the undersigned and any beneficial owner(s) of the Private Notes
("Beneficial Owner(s)") in connection with the Exchange Offer are being acquired
by the undersigned and any Beneficial Owner(s) in the ordinary course of
business of the undersigned and any Beneficial Owner(s), (ii) the undersigned
and each Beneficial Owner are not participating, do not intend to participate,
and have no arrangement or understanding with any person to participate, in a
distribution of the Exchange Notes, (iii) the undersigned and each Beneficial
Owner acknowledge and agree that any person participating in the Exchange Offer
6
for the purpose of distributing the Exchange Notes must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction with respect to the Exchange
Notes acquired by such person, (iv) neither the undersigned nor any Beneficial
Owner is an "affiliate," as defined under Rule 405 of the Securities Act, of the
Company except as otherwise disclosed to the Company in writing, and (v) the
undersigned and each Beneficial Owner understands that a secondary resale
transaction by a broker-dealer that holds Private Notes acquired for its own
account as a result of market-making or trading activities or by affiliates of
the Company should be accompanied by delivery of a prospectus covered by an
effective registration statement containing the selling securityholder
information required by Item 507 or Item 508, as applicable, of Regulation S-K
of the Commission. Failure to comply with such requirements in such instance
could result in the undersigned or such person incurring liability under the
Securities Act for which the undersigned or such person is not indemnified by
the Company. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Exchange Agent or the Company to be necessary
or desirable to complete the assignment, transfer and purchase of the Private
Notes tendered hereby. If the undersigned is a Company affiliate or a broker-
dealer that will receive Exchange Notes for its own account in exchange for
Private 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 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.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Private Notes when, as and if the Company has given
oral or written notice thereof to the Exchange Agent.
If any Private Notes tendered herewith are not accepted for exchange
pursuant to the Exchange Offer for any reason, certificates for any such
unaccepted Private Notes will be returned, without expense, to the undersigned
at the address shown below or to a different address as may be indicated herein
in Box 3 under "Special Delivery Instructions" as promptly as practicable after
the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns.
7
The undersigned understands that tenders of Private Notes pursuant to the
procedures described under the caption "The Exchange Offer -- Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer, subject only to withdrawal of
such tenders on the terms set forth in the Prospectus under the caption "The
Exchange Offer -- Withdrawal of Tenders."
Unless otherwise indicated in Box 2 under "Special Registration
Instructions," please issue the certificates (or electronic transfers)
representing the Exchange Notes issued in exchange for the Private Notes
accepted for exchange and any certificates (or electronic transfers) for Private
Notes not tendered or not exchanged, in the name(s) of the undersigned.
Similarly, unless otherwise indicated in Box 3 under "Special Delivery
Instructions," please send the certificates representing the Exchange Notes
issued in exchange for the Private Notes accepted for exchange and any
certificates for Private Notes not tendered or not exchanged (and accompanying
documents, as appropriate) to the undersigned at the address shown below the
undersigned's signature(s). In the event that both "Special Registration
Instructions" and "Special Delivery Instructions" are completed, please issue
the certificates representing the Exchange Notes issued in exchange for the
Private Notes accepted for exchange in the name(s) of, and return any
certificates for Private Notes not tendered or not exchanged to the person(s) so
indicated. The undersigned recognizes that the Company has no obligation
pursuant to the "Special Registration Instructions" and "Special Delivery
Instructions" to transfer any Private Notes from the name of the registered
Holder(s) thereof if the Company does not accept for exchange any of the Private
Notes so tendered.
If Holders desire to tender Private Notes pursuant to the Exchange Offer
and (i) time will not permit this Letter of Transmittal, certificates
representing Private Notes or other required documents to reach the Exchange
Agent prior to the Expiration Date or (ii) the procedures for book-entry
transfer cannot be completed prior to the Expiration Date, such Holders may
effect a tender of such Private Notes in accordance with the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange Offer --
Guaranteed Delivery Procedures." See Instruction 2 below.
8
PLEASE SIGN HERE WHETHER OR NOT
PRIVATE NOTES ARE BEING PHYSICALLY TENDERED HEREBY
X
- ------------------------------------------------ ---------------
Date
X
- ------------------------------------------------ ---------------
(Signature of Owner(s)) Date
Area Code and Telephone Number: ________________________
The above lines must be signed by the registered holder(s) exactly as their
name(s) appear(s) on the Private Notes or by a participant in the Book-Entry
Transfer Facility, exactly as such participant's name appears on a security
position listing as the owner of the Private Notes, or by person(s) authorized
to become registered holder(s) by a properly completed bond power from the
registered holder(s), a copy of which must be transmitted with this Letter of
Transmittal. If Private Notes to which this Letter of Transmittal relate are
held of record by two or more joint holders, then all such holders must sign
this Letter of Transmittal.
If signature is by a trustee, executor, administrator, guardian, attorney-
in-fact, officer of a corporation or other person acting in a fiduciary or
representative capacity, then such person must (i) set forth his or her full
title below and (ii) unless waived by the Company, submit evidence satisfactory
to the Company of such person's authority so to act. See Instruction 5 below.
Name(s):
(Please Print)
Capacity:
Address:
(Include Zip Code)
Area Code and Telephone No.: (___)____________
Tax Identification or Social Security Nos.:____________________
9
SIGNATURE GUARANTEE
(if required by instruction 5)
Certain signatures must be guaranteed by an Eligible Institution
Signature(s) Guaranteed by an Eligible Institution:
(Authorized Signature)
(Title)
(Name of Firm)
(Address, include ZIP Code)
(Area Code and Telephone Number)
Dated:
10
TO BE COMPLETED BY ALL
TENDERING HOLDERS
(See Instruction 8 Below)
PAYOR'S NAME: THE KRYSTAL COMPANY
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SUBSTITUTE Name (if joint names, list first
and circle the name of the person
or entry whose number you enter in
Part 1 below. See instructions if
your name has changed.)
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Form W-9 Address
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Department of the Treasury City, State and ZIP Code
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List account number(s) here
(optional)
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Internal Revenue Service Part 1 -- PLEASE PROVIDE YOUR Social Security
TAXPAYER IDENTIFICATION NUMBER Number or TIN
("TIN") IN THE BOX AT RIGHT AND
CERTIFY BY SIGNING AND DATING BELOW
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Part 2 -- Check the box if you are
NOT subject to backup withholding
under the provisions of section
3408(a)(1)(C) of the Internal
Revenue Code because (1) you have
not been notified that you are
subject to backup withholding as a
result of failure to report all
interest or dividends or (2) the
Internal Revenue Service has
notified you that you are no longer
subject to backup withholding. [_]
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Payor's Request for TIN CERTIFICATION -- UNDER THE Part 3 -- AWAITING
PENALTIES OF PERJURY, I CERTIFY TIN [_]
THAT THE INFORMATION PROVIDED ON
THIS FORM IS TRUE, CORRECT AND
COMPLETE.
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SIGNATURE> DATE>
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Note
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY
PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
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11
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR PRIVATE
NOTES OR BOOK-ENTRY CONFIRMATIONS. Certificates representing the tendered
Private Notes (or a confirmation of book-entry transfer into the Exchange
Agent's account with the Book-Entry Transfer Facility for tendered Private Notes
transferred electronically), as well as a properly completed and duly executed
copy of this Letter of Transmittal (or facsimile thereof), a Substitute Form W-
9(or facsimile thereof) and any other documents required by this Letter of
Transmittal must be received by the Exchange Agent at its address set forth
herein prior to the Expiration Date. The method of delivery of certificates for
Private Notes and all other required documents is at the election and risk of
the tendering holder and 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, is recommended. INSTEAD OF DELIVERY
BY MAIL, IT IS RECOMMENDED THAT THE HOLDER USE AN OVERNIGHT OR HAND DELIVERY
SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY
DELIVERY. NEITHER THE COMPANY NOR THE EXCHANGE AGENT IS UNDER AN OBLIGATION TO
NOTIFY ANY TENDERING HOLDER OF THE COMPANY'S ACCEPTANCE OF TENDERED PRIVATE
NOTES PRIOR TO THE CLOSING OF THE EXCHANGE OFFER.
2. GUARANTEED DELIVERY PROCEDURES. Holders who wish to tender their
Private Notes but whose Private Notes are not immediately available and who
cannot deliver their certificates for Private Notes (or comply with the
procedures for book-entry transfer prior to the Expiration Date), the Letter of
Transmittal and any other documents required by the Letter of Transmittal to the
Exchange Agent prior to the Expiration Date must tender their Private Notes
according to the guaranteed delivery procedures set forth below. Pursuant to
such procedures:
(i) such tender must be made by or through a firm which is a member of
a registered national securities exchange or of the National Association of
Securities Dealers, Inc., or is a savings institution, commercial bank or
trust company having an office or correspondent in the United States and
which is a member of a recognized signature guarantee program (i.e.,
Securities Transfer Agents Medallion Program, Stock Exchanges Medallion
Program or New York Stock Exchange Medallion Signature Program) (an
"Eligible Institution");
12
(ii) prior to the Expiration Date, the Exchange Agent must have
received from the holder and the 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 certificate number or numbers of the tendered Private Notes, and the
principal amount of tendered Private Notes, and stating that the tender is
being made thereby and guaranteeing that, within five New York Stock
Exchange trading days after the Expiration Date, the Letter of Transmittal
(or facsimile thereof), together with the tendered Private Notes (or a
confirmation of book-entry transfer into the Exchange Agent's account with
the Book-Entry Transfer Facility for Private Notes transferred
electronically) and any other required documents will be deposited by the
Eligible Institution with the Exchange Agent; and
(iii) such properly completed and executed Letter of Transmittal and
certificates representing the tendered Private Notes in proper form for
transfer (or a confirmation of book-entry transfer into the Exchange
Agent's account with the Book-Entry Transfer Facility for Private Notes
transferred electronically) must be received by the Exchange Agent within
five New York Stock Exchange trading days after the Expiration Date.
Any holder who wishes to tender Private Notes pursuant to the guaranteed
delivery procedures described above must ensure that the Exchange Agent receives
the Notice of Guaranteed Delivery relating to such Private Notes prior to the
Expiration Date. Failure to complete 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 process.
3. TENDER BY HOLDER. Only a holder of Private Notes eligible to
participate in the Exchange Offer may tender such Private Notes in the Exchange
Offer. Any beneficial owner of Private Notes who is not the registered holder
and who wishes to tender should arrange with such holder to execute and deliver
this Letter of Transmittal on such owner's behalf or must, prior to completing
and executing this Letter of Transmittal and delivering such Private Notes,
either make appropriate arrangement to register ownership of the Private Notes
in such owner's name or obtain a properly completed bond power from the
registered holder.
4. PARTIAL TENDERS. Tenders of Private Notes will be accepted only in
integral multiples of $1,000 in principal amount. If less than the entire
principal amount of Private Notes is tendered, the tendering holder should fill
13
in the principal amount tendered in the column labeled "Principal Amount
Tendered" of the box entitled "Description of Private Notes" (Box 1) above.
The entire principal amount of Private Notes delivered to the Exchange Agent
will be deemed to have been tendered unless otherwise indicated. If the entire
principal amount of all Private Notes is not tendered, Private Notes for the
principal amount of Private Notes not tendered and Exchange Notes exchanged for
any Private Notes tendered will be sent to the holder at his or her registered
address (or transferred to the account of the Book-Entry Facility designated
above), unless a different address (or account) is provided in the appropriate
box on this Letter of Transmittal, as soon as practicable following the
Expiration Date.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed by the
registered holder(s) of the Private Notes tendered herewith, the signatures must
correspond with the name(s) as written on the face of the tendered Private Notes
without alteration, enlargement, or any change whatsoever. If this Letter of
Transmittal is signed by a participant in the Book-Entry Transfer Facility, the
signature must correspond with the name as it appears on the security position
listing as the owner of the Private Notes.
If any of the tendered Private Notes are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal. If any
tendered Private Notes are held in different names on several Private Notes, it
will be necessary to complete, sign, and submit as many separate copies of the
Letter of Transmittal documents as there are names in which tendered Private
Notes are held.
If this Letter of Transmittal is signed by the registered holder or Acting
Holder, and Exchange Notes are to be issued and any untendered or unaccepted
principal amount of Private Notes are to be reissued or returned to the
registered holder or Acting Holder, then the registered holder or Acting Holder
need not and should not endorse any tendered Private Notes nor provide a
separate bond power. In any other case (including if this Letter of Transmittal
is not signed by the Acting Holder), the registered holder or Acting Holder must
either properly endorse the Private Notes tendered or transmit a properly
completed separate bond power with this Letter of Transmittal (in either case,
executed exactly as the name(s) of the registered holder(s) on such Private
Notes, and, with respect to a participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Private Notes,
exactly as the name(s) of the participant(s) appear(s) on such security position
listings), with the signature(s) on the endorsement or bond power guaranteed by
an Eligible Institution unless such certificates or bond powers are signed by an
Eligible Institution.
14
If this Letter of Transmittal or any Private 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, unless waived by the
Company, evidence satisfactory to the Company of their authority to so act must
be submitted with this Letter of Transmittal.
No signature guarantee is required if (i) this Letter of Transmittal is
signed by the registered holder(s) of the Private Notes tendered herewith (or by
a participant in the Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of the tendered Private Notes) and the
issuance of Exchange Notes (and any Private Notes not tendered or not accepted)
are to be issued directly to such registered holder(s) (or, if signed by a
participant in the Book-Entry Transfer Facility, any Exchange Notes or Private
Notes not tendered or not accepted are to be deposited to such participant's
account at such Book-Entry Transfer Facility) and neither the "Special Delivery
Instructions" (Box 3) nor the "Special Registration Instructions" (Box 2) has
been completed, or (ii) such Private Notes are tendered for the account of an
Eligible Institution. In all other cases, all signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution.
6. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering holders
should indicate, in the applicable box, the name and address (or account at the
Book-Entry Transfer Facility) to which the Exchange Notes and/or Private Notes
for principal amounts not tendered or not accepted for exchange are to be sent
(or deposited), if different from the name and address or account 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 indicated person and the tendering holders
should complete the applicable box.
If no such instructions are given, the Exchange Notes (and any Private
Notes not tendered or not accepted) will be issued in the name of and sent to
the Acting Holder of the Private Notes or deposited at such Acting Holders'
account at the Book-Entry Transfer Facility.
15
7. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the sale and transfer of Private Notes to it or its order pursuant
to the Exchange Offer. If, however, a transfer tax is imposed for any reason
other than the transfer and sale of Private Notes to the Company or its order
pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered holder or on any other person) will be
payable by the tendering holder. If satisfactory evidence of payment of such
taxes or exemption from taxes therefrom is not submitted with this Letter of
Transmittal, the amount of transfer taxes will be billed directly to such
tendering holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Private Notes listed in this Letter of
Transmittal.
8. TAX IDENTIFICATION NUMBER. Federal income tax law requires that a
holder of any Private Notes which are accepted for exchange must provide the
Company (as payor) with its correct taxpayer identification number ("TIN"),
which , in the case of a holder who is an individual, is his or her social
security number. If the Company is not provided with the correct TIN, the
holder may be subject to a $50 penalty imposed by Internal Revenue Service. (If
withholding results in an over-payment of taxes, a refund may be obtained).
Certain holders (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional instructions.
To prevent backup withholding, each tendering holder must provide such
holder's correct TIN by completing the Substitute Form W-9 set forth herein,
certifying that the TIN provided is correct (or that such holder is awaiting a
TIN), and that (i) 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 (ii) the Internal Revenue Service
has notified the holder that such holder is no longer subject to backup
withholding. If the Private Notes are registered in more than one name or are
not in the name of the actual owner, see the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
information on which TIN to report.
The Company reserves the right in its sole discretion to take whatever
steps are necessary to comply with the Company's obligation regarding backup
withholding.
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9. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt), and acceptance of tendered Private
Notes will be determined by the Company, in its sole discretion, which
determination will be final and binding. The Company reserves the right to
reject any and all Private Notes not validly tendered or any Private Notes, the
Company's acceptance of which would, in the opinion of the Company or its
counsel, be unlawful. The Company also reserves the right to waive any
conditions of the Exchange Offer or defects or irregularities in tenders of
Private Notes as to any ineligibility of any holder who seeks to tender Private
Notes in the Exchange Offer. The interpretation of the terms and conditions of
the Exchange Offer (including this Letter of Transmittal and the instructions
hereto) by the Company shall be final and binding on all parties. Unless
waived, any defects or irregularities in connection with tenders of Private
Notes must be cured within such time as the Company shall determine, the Company
will use reasonable efforts to give notification of defects or irregularities
with respect to tenders of Private Notes, but shall not incur any liability for
failure to give such notification.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
amend, waive, or modify specified conditions in the Exchange Offer in the case
of any tendered Private Notes.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular, or
contingent tender of Private Notes or transmittal of this Letter of Transmittal
will be accepted.
12. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES. Any tendering
holder whose Private Notes have been mutilated, lost, stolen, or destroyed
should contact the Exchange Agent at the address indicated above for further
instruction.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus may be
directed to the Exchange Agent at the address indicated above. Holders may also
contact their broker, dealer, commercial bank, trust company, or other nominee
for assistance concerning the Exchange Offer.
14. ACCEPTANCES OF TENDERED PRIVATE NOTES AND ISSUANCE OF EXCHANGE NOTES;
RETURN OF PRIVATE NOTES. Subject to the terms and conditions of the Exchange
Offer, the Company will accept for exchange all validly tendered Private Notes
as soon as practicable after the Expiration Date and will issue Exchange Notes
therefor as soon as practicable thereafter. For purposes of the Exchange Offer,
the Company shall be deemed to have accepted tendered Private Notes when, as and
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if the Company has given written or oral notice thereof to the Exchange Agent.
If any tendered Private Notes are not exchanged pursuant to the Exchange Offer
for any reason, such unexchanged Private Notes will be returned, without
expense, to the undersigned at the address shown above (or credited to the
undersigned's account at the Book-Entry Transfer Facility designated above) or
at a different address as may be indicated under "Special Delivery Instructions"
(Box 3).
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the limited
withdrawal rights set forth in the Prospectus under the caption "The Exchange
Offer -- Withdrawal of Tenders."
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