EXHIBIT 99.1
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
10 3/4% SENIOR NOTES DUE 2008
OF
NE RESTAURANT COMPANY, INC.
PURSUANT TO THE PROSPECTUS DATED _____ __, 1998
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON __________, ___________ __, 1998 (THE "EXPIRATION DATE"), UNLESS THE
EXCHANGE OFFER IS EXTENDED, IN WHICH CASE THE TERM "EXPIRATION DATE" SHALL MEAN
THE LATEST DATE AND TIME TO WHICH THE EXCHANGE OFFER IS EXTENDED. TENDERS MAY BE
WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
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If you desire to accept the Exchange Offer, this Letter of Transmittal
should be completed, signed, and submitted to the Exchange Agent.
THE EXCHANGE AGENT IS:
UNITED STATES TRUST COMPANY OF NEW YORK
BY REGISTERED OR BY OVERNIGHT COURIER BY HAND BEFORE 4:30 P.M.:
CERTIFIED MAIL: AND BY HAND AFTER United States Trust
United States Trust 4:30 P.M. ON THE Company of New York
Company of New York EXPIRATION DATE: 111 Broadway, Lower
P.O. Box 844 United States Trust Company Level
Attn: Corporate Trust of New York Attn: Corporate Trust
Services 770 Broadway, 13th Floor Services
Cooper Station New York, New York New York, New York
New York, New York 10003 10006
10276-0844 Attn: Corporate Trust
Services
BY FACSIMILE TRANSMISSION:
212-780-0592
(For Eligible Institutions Only)
Confirm by Telephone:
800-548-6565
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 SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned hereby acknowledges receipt of the prospectus
dated ________, 1998 (the "Prospectus"), of NE Restaurant Company, Inc., a
Delaware corporation (the "Company"), and this letter of transmittal (the
"Letter of Transmittal"), which together with the Prospectus constitute the
Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of
its 10 3/4% Senior Notes due 2008 (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 each
$1,000 principal amount of its 10 3/4% Senior Notes due 2008 (the "Private
Notes") of which $100,000,000 aggregate principal amount is outstanding.
Recipients of the Prospectus should read the requirements described in such
Prospectus with respect to eligibility to participate in the Exchange Offer.
Capitalized terms used but not defined herein have the meaning given to them in
the Prospectus.
The undersigned hereby tenders the Private Notes described in the
box entitled "Description of Private Notes" below pursuant to the terms and
conditions described in the Prospectus and this Letter of Transmittal. The
undersigned is the registered owner of such the Private Notes and the
undersigned represents that it has received from each beneficial owner of
Private Notes (the "Beneficial Owners") a duly completed and executed form of
"Instruction to Registered Holder from Beneficial Owner" accompanying this
Letter of Transmittal, instructing the undersigned to take the action described
in this Letter of Transmittal.
This Letter of Transmittal is to be used only by a holder of
Private Notes (i) if certificates representing Private Notes are to be forwarded
herewith or (ii) if delivery of Private Notes is to be made by book- entry
transfer to the Exchange Agent's account at The Depository Trust Company
("DTC"), pursuant to the procedures set forth in the section of the Prospectus
entitled "The Exchange Offer -- Procedures for Tendering." If delivery of the
Private Notes is to be made by book-entry transfer to the account maintained by
the Exchange Agent at DTC, this Letter of Transmittal need not be manually
executed; PROVIDED, HOWEVER, that tenders of the Private Notes must be effected
in accordance with the procedures mandated by DTC's Automated Tender Offer
Program and the procedures set forth in the Prospectus under the caption "The
Exchange Offer -- Book-Entry Transfer."
Any beneficial owner whose Private Notes are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
who wishes to tender should contact such registered holder of Private Notes
promptly and instruct such registered holder of Private Notes to tender on
behalf of the beneficial owner. If such beneficial owner wishes to tender on its
own behalf, such beneficial owner must, prior to completing and executing this
Letter of Transmittal and delivering its Private Notes, either make appropriate
arrangements to register ownership of the Private Notes in such beneficial
owner's name or obtain a properly completed bond power from the registered
holder of Private Notes. The transfer of record ownership may take considerable
time.
In order to properly complete this Letter of Transmittal, a
holder of Private Notes must (i) complete the box entitled "Description of
Private Notes," (ii) if appropriate, check and complete the boxes relating to
book-entry transfer, guaranteed delivery, Special Issuance Instructions and
Special Delivery Instructions, (iii) sign the Letter of Transmittal by
completing the box entitled "Sign Here" and (iv) complete the Substitute Form
W-9. Each holder of Private Notes should carefully read the detailed
instructions below prior to completing the Letter of Transmittal.
Holders of Private Notes who desire to tender their Private Notes
for exchange and (i) whose Private Notes are not immediately available, (ii) who
cannot deliver their Private Notes and all other documents required hereby to
the Exchange Agent on or prior to the Expiration Date or (iii) who are unable to
complete the procedure for book-entry transfer on a timely basis, must tender
the Private Notes pursuant to the guaranteed delivery procedures set forth in
the section of the Prospectus entitled "The Exchange Offer -- Guaranteed
Delivery Procedures." See Instruction 2 of the Instructions beginning on page 8
hereof.
Holders of Private Notes who wish to tender their Private Notes
for exchange must, at a minimum, complete columns (1), (2), if applicable (see
footnote 1 below), and (3) in the box below entitled "Description of Private
Notes" and sign the box on page 7 under the words "Sign Here." If only those
columns are completed, such holder of Private Notes will have tendered for
exchange all Private Notes listed in column (3) below. If the holder of Private
Notes wishes to tender for exchange less than all of such Private Notes, column
(4) must be completed in full. In such case, such holder of Private Notes should
refer to Instruction 5 on page 9.
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DESCRIPTION OF PRIVATE NOTES
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(1) (2) (3) (4)
Name(s) and Address(es) Principal Amount
of Registered Holder(s) Tendered For Exchange
of Private Note(s), (only if different
exactly as name(s) amount from column
appear(s) on Private Private Note (3)) (must be in
Note Certificate(s) Number(s) (1) integral multiples
(Please fill in, (Attach signed list Aggregate of $1,000) (2)
if blank) if necessary) Principal
Amount
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(1) Column (2) need not be completed by holders of Private Notes tendering
Private Notes for exchange by book-entry transfer. Please check the
appropriate box on the next page and provide the requested information.
(2) Column (4) need not be completed by holders of Private Notes who wish to
tender for exchange the principal amount of Private Notes listed in column
(3). Completion of column (4) will indicate that the holder of Private
Notes wishes to tender for exchange only the principal amount of Private
Notes indicated in column (4).
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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 DTC
AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS (AS
HEREINAFTER DEFINED) ONLY):
Name of Tendering Institution: _______________________________________
Account Number: _______________________________________
Transaction Code Number: _______________________________________
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY ENCLOSED HEREWITH AND COMPLETE THE
FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
Name of Registered Holder of Private Note(s): ________________________
Date of Execution of Notice of Guaranteed
Delivery: ________________________
Window Ticket Number (if available): ________________________
Name of Institution with Guaranteed Delivery:
Account Number (if delivered by book-entry transfer):
|_| 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: ___________________________________________________________
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 6, 7 and 8) (See Instructions 1, 6, 7 and 8)
To be completed ONLY if (i) To be completed ONLY if the
the Exchange Notes issued Exchange Notes issued in
in exchange for Private exchange for Private Notes,
Notes, certificates for certificates for Private
Private Notes in a principal Notes in a principal
amount not exchanged for amount not exchanged for
Exchange Notes, or Private Exchange Notes, or Private
Notes (if any) not tendered Notes (if any) not tendered
for exchange, are to be for exchange, are to be
issued in the name of mailed or delivered to:
someone other than the (i) someone other than the
undersigned, or undersigned, or
(ii) Private Notes tendered by (ii) the undersigned at an
book-entry transfer which address other than the
are not exchanged are to be address shown below the
returned by credit to an undersigned's signature.
account maintained at DTC.
Issue to: Mail or deliver to:
Name___________________________ Name_____________________________
(Please Print) (Please Print)
Address________________________ Address__________________________
_______________________________ _________________________________
_______________________________ _________________________________
(Include Zip Code) (Include Zip Code)
_______________________________ _________________________________
(Tax Identification or (Tax Identification or
Social Security No.) Social Security No.)
|_| Credit Private Notes not
exchanged and delivered
by book-entry transfer to
the DTC account set forth
below:
_______________________________
(Account Number)
================================= ===================================
If delivery of Private Notes is to be made by book-entry transfer
to the account maintained by the Exchange Agent at DTC, then tenders of Private
Notes must be effected in accordance with the procedures mandated by DTC's
Automated Tender Offer Program and the procedures set forth in the Prospectus
under the caption "The Exchange Offer -- Book-Entry Transfer."
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
Pursuant to the offer by NE Restaurant Company, Inc., a Delaware
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the prospectus dated ______, 1998 (the "Prospectus") and this letter of
transmittal (the "Letter of Transmittal"), which together with the Prospectus
constitutes the Company's offer (the "Exchange Offer") to exchange $1,000
principal amount of its 10 3/4% Senior Notes due 2008 (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 each $1,000 principal amount of its outstanding 10 3/4% Senior
Notes due 2008 (the "Private Notes"), the undersigned hereby tenders to the
Company for exchange the Private Notes.
By executing this Letter of Transmittal and subject to and
effective upon acceptance for exchange of the Private Notes tendered for
exchange herewith, the undersigned (A) acknowledges and agrees that, except as
set forth in the Prospectus under the caption "The Exchange Offer -- Terms of
the Exchange Offer," all of the rights of such undersigned pursuant to that
certain Exchange and Registration Rights Agreement, dated as of July 20, 1998,
as amended on July 21, 1998, between the Company, the Initial Purchasers and the
Guarantors (each as defined in the Prospectus), will have been satisfied and
extinguished in all respects and (B) will have irrevocably sold, assigned,
transferred and exchanged, to the Company, all right, title and interest in, to
and under all of the Private Notes tendered for exchange hereby, and hereby
appoints the Exchange Agent as the true and lawful agent and attorney-in- fact
(with full knowledge that the Exchange Agent also acts as agent of the Company)
of such holder of Private Notes with respect to such Private Notes, with full
power of substitution to (i) deliver certificates representing such Private
Notes, or transfer ownership of such Private Notes on the account books
maintained by DTC (together, in any such case, with all accompanying evidences
of transfer and authenticity), to the Company, (ii) present and deliver such
Private Notes for transfer on the books of the Company and (iii) receive all
benefits and otherwise exercise all rights and incidents of beneficial ownership
with respect to such Private Notes, all in accordance with the terms of the
Exchange Offer. The power of attorney granted in this paragraph shall be deemed
to be irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that (i) the
undersigned is the owner of the Private Notes tendered hereby; (ii) has a net
long position within the meaning of Rule 14e-4 under the Securities Exchange Act
of 1934, as amended ("Rule 14e-4") equal to or greater than the principal amount
of Private Notes tendered hereby; (iii) the tender of such Private Notes
complies with Rule 14e-4 (to the extent that Rule 14e-4 is applicable to such
exchange); (iv) the undersigned has full power and authority to tender,
exchange, assign and transfer the Private Notes; and (v) that when such Private
Notes are accepted for exchange by the Company, the Company will acquire good
and marketable title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claims. The undersigned will,
upon receipt, 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 Private Notes tendered for exchange
hereby.
The undersigned hereby further represents to the Company that (i)
the Exchange Notes to be acquired by the undersigned in exchange for the Private
Notes tendered hereby and by any beneficial owner(s) of such Private Notes in
connection with the Exchange Offer will be acquired by the undersigned and such
beneficial owner(s) in the ordinary course of business of the undersigned, (ii)
the undersigned (if not a broker-dealer referred to in the last sentence of this
paragraph) is not currently participating, does not intend to participate, and
has no arrangement or understanding with any person to participate, in the
distribution of the Exchange Notes, (iii) the undersigned and each beneficial
owner acknowledge and agree that any person participating in the Exchange Offer
for the purpose of distributing the Exchange Notes must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction of the Exchange Notes acquired by such
person and cannot rely on the position of the staff of the Securities and
Exchange Commission (the "Commission") set forth in certain no-action letters
(see the section of the Prospectus entitled "The Exchange Offer -- Resale of the
Exchange Notes"), (iv) the undersigned and each beneficial owner understand that
a secondary resale transaction described in clause (iii) above should be covered
by an effective registration statement containing the selling securityholder
information required by Item 507 or 508, as applicable, of Regulation S-K of the
Commission and (v) neither the undersigned nor any beneficial owner is an
"affiliate" of the Company, as defined under Rule 405 under the Securities Act.
If the undersigned is 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 meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes received in respect of such
Private Notes pursuant to the Exchange Offer; 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 will be deemed to
have accepted for exchange, and to have exchanged, validly tendered Private
Notes, if, as and when the Company gives oral or written notice thereof to the
Exchange Agent. Tenders of Private Notes for exchange may be withdrawn at any
time prior to 5:00 p.m., New York City time, on the Expiration Date. See the
section of the Prospectus entitled "The Exchange Offer -- Withdrawal of
Tenders." Any Private Notes tendered by the undersigned and not accepted for
exchange will be returned to the undersigned at the address set forth above
unless otherwise indicated in the box above entitled "Special Delivery
Instructions."
The undersigned acknowledges that the Company's acceptance of
Private Notes validly tendered for exchange pursuant to any one of the
procedures described in the section of the Prospectus entitled "The Exchange
Offer" 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.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions," please return any Private Notes not tendered for exchange in the
name(s) of the undersigned. Similarly, unless otherwise indicated in the box
entitled "Special Delivery Instructions," please mail any certificates for
Private Notes not tendered or 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 Issuance 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 Private Notes not
tendered for exchange or not exchanged to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Private Notes from the name of the holder of Private Note(s) thereof if the
Company does not accept for exchange any of the Private Notes so tendered for
exchange or if such transfer would not be in compliance with any transfer
restrictions applicable to such Private Note(s).
IN ORDER TO VALIDLY TENDER PRIVATE NOTES FOR EXCHANGE, HOLDERS OF
PRIVATE NOTES MUST COMPLETE, EXECUTE, AND DELIVER THIS LETTER OF TRANSMITTAL.
Except as stated in the Prospectus, all authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned, and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as otherwise stated in the Prospectus, this tender for
exchange of Private Notes is irrevocable.
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SIGN HERE
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(Signature(s) of Owner(s))
Date: , 1998
Must be signed by the registered holder(s) of Private Notes exactly as name(s)
appear(s) on certificate(s) representing the Private Notes or on a security
position listing or by person(s) authorized to become registered Private Note
holder(s) by certificates and documents transmitted herewith. If signature is by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, please
provide the following information. (See Instruction 6)
Name(s):______________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please Print)
Capacity (full title):________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Address:______________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Include Zip Code)
Area Code and Telephone No. (____)____________________________________________
Tax Identification or Social Security Nos.:___________________________________
Please complete Substitute Form W-9
GUARANTEE OF SIGNATURE(S)
(Signature(s) must be guaranteed if required by Instruction 1)
Authorized Signature:_________________________________________________________
Dated:________________________________________________________________________
Name and Title:_______________________________________________________________
(Please Print)
Name of Firm:_________________________________________________________________
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by an institution
which is an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, which is a member of one
of the following recognized Signature Guarantee Programs (an "Eligible
Institution"):
a. The Securities Transfer Agents Medallion Program (STAMP)
b. The New York Stock Exchange Medallion Signature Program (MSP)
c. The Stock Exchange Medallion Program (SEMP)
Signatures on this Letter of Transmittal need not be guaranteed (i) if this
Letter of Transmittal is signed by the registered holder(s) of the Private Notes
tendered herewith and such registered holder(s) have not completed the box
entitled "Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (ii) if such Private Notes are
tendered for the account of an Eligible Institution. IN ALL OTHER CASES, ALL
SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND PRIVATE NOTES;
GUARANTEED DELIVERY PROCEDURE. This Letter of Transmittal is to be completed by
holders of Private Notes (i) if certificates are to be forwarded herewith or
(ii) if tenders are to be made pursuant to the procedures for tender by
book-entry transfer or guaranteed delivery set forth in the section of the
Prospectus entitled "The Exchange Offer." Certificates for all physically
tendered Private Notes or any confirmation of a book-entry transfer (a
"Book-Entry Confirmation"), as well as a properly completed and duly executed
copy of this Letter of Transmittal or facsimile hereof, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth on the cover of this Letter of Transmittal prior to
5:00 p.m., New York City time, on the Expiration Date. Holders of Private Notes
who elect to tender Private Notes and (i) whose Private Notes are not
immediately available, (ii) who cannot deliver the Private Notes or other
required documents to the Exchange Agent prior to 5:00 p.m., New York City time,
on the Expiration Date or (iii) who are unable to complete the procedure for
book-entry transfer on a timely basis, may have such tender effected if: (a)
such tender is made by or through an Eligible Institution; (b) prior to 5:00
p.m., New York time, on the Expiration Date, the Exchange Agent has received
from such Eligible Institution a properly completed and duly executed Letter of
Transmittal (or a facsimile hereof) and Notice of Guaranteed Delivery (by
telegram, telex, facsimile transmission, mail or hand delivery) setting forth
the name and address of the holder of such Private Notes, the certificate
number(s) of such Private Notes and the principal amount of Private Notes
tendered for exchange, stating that tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days after the
Expiration Date, the certificates representing such Private Notes (or a
Book-Entry Confirmation), in proper form for transfer, and any other documents
required by this Letter of Transmittal, will be deposited by such Eligible
Institution with the Exchange Agent; and (c) certificates for all tendered
Private Notes, or a Book-Entry Confirmation, together with a copy of the
previously executed Letter of Transmittal (or facsimile thereof) and any other
documents required by this Letter of Transmittal are received by the Exchange
Agent within three New York Stock Exchange trading days after the Expiration
Date.
THE METHOD OF DELIVERY OF PRIVATE NOTES, THIS LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING
HOLDER OF PRIVATE NOTES. EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL
BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT.
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. NEITHER THIS LETTER OF TRANSMITTAL NOR ANY PRIVATE
NOTES SHOULD BE SENT TO THE COMPANY.
No alternative, conditional or contingent tenders will be accepted.
All tendering holders of Private Notes, by execution of this Letter of
Transmittal (or facsimile hereof, if applicable), waive any right to receive
notice of the acceptance of their Private Notes for exchange.
3. INADEQUATE SPACE. If the space provided in the box entitled
"Description of Private Notes" above is inadequate, the certificate numbers and
principal amounts of the Private Notes being tendered should be listed on a
separate signed schedule affixed hereto.
4. WITHDRAWALS. A tender of Private Notes may be withdrawn at any time
prior to 5:00 p.m., New York City time, on the Expiration Date by delivery of
written notice of withdrawal to the Exchange Agent at the address set forth on
the cover of this Letter of Transmittal. To be effective, a notice of withdrawal
of Private Notes must (i) specify the name of the person who tendered the
Private Notes to be withdrawn (the "Depositor"), (ii) identify the Private Notes
to be withdrawn (including the certificate number or numbers and aggregate
principal amount of such Private Notes), (iii) be signed by the holder of
Private Notes in the same manner as the original signature on the Letter of
Transmittal by which such Private Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer sufficient to
have the applicable transfer agent register the transfer of such Private Notes
into the name of the person withdrawing the tender. Withdrawals of tenders of
Private Notes may not be rescinded, and any Private Notes withdrawn will
thereafter be deemed not validly tendered for purposes of the Exchange Offer and
no Exchange Notes will be issued with respect thereto unless the Private Notes
so withdrawn are validly retendered. Properly withdrawn Private Notes may be
retendered by following one of the procedures described in the section of the
Prospectus entitled "The Exchange Offer -- Procedures for Tendering" at any time
prior to 5:00 p.m., New York City time, on the Expiration Date.
5. PARTIAL TENDERS. (Not applicable to holders of Private Notes who
tender Private Notes by book-entry transfer.) Tenders of Private Notes will be
accepted only in integral multiples of $1,000 principal amount. If a tender for
exchange is to be made with respect to less than the entire principal amount of
any Private Notes, fill in the principal amount of Private Notes which are
tendered for exchange in column (4) of the box entitled "Description of Private
Notes" on page 3, as more fully described in the footnotes thereto. In case of a
partial tender for exchange, a new certificate, in fully registered form, for
the remainder of the principal amount of the Private Notes, will be sent to the
holders of Private Notes unless otherwise indicated in the appropriate box on
this Letter of Transmittal as promptly as practicable after the expiration or
termination of the Exchange Offer.
6. SIGNATURES ON THIS LETTER OF TRANSMITTAL, POWERS OF ATTORNEY AND
ENDORSEMENTS.
(a) The signature(s) of the holder of Private Notes on this Letter of
Transmittal must correspond with the name(s) as written on the face of the
Private Notes without alteration, enlargement or any change whatsoever.
(b) If tendered Private Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
(c) If any tendered Private Notes are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter of Transmittal and any necessary or required
documents as there are different registrations or certificates.
(d) When this Letter of Transmittal is signed by the holder of the
Private Notes listed and transmitted hereby, no endorsements of Private Notes or
separate powers of attorney are required. If, however, Private Notes not
tendered or not accepted are to be issued or returned in the name of a person
other than the holder of Private Notes, then the Private Notes transmitted
hereby must be endorsed or accompanied by appropriate powers of attorney in a
form satisfactory to the Company, in either case signed exactly as the name(s)
of the holder of Private Notes appear(s) on the Private Notes. Signatures on
such Private Notes or powers of attorney must be guaranteed by an Eligible
Institution (unless signed by an Eligible Institution).
(e) If this Letter of Transmittal or Private Notes or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
proper evidence satisfactory to the Company of their authority so to act must be
submitted.
(f) If this Letter of Transmittal is signed by a person other than the
registered holder of Private Notes listed, the Private Notes must be endorsed or
accompanied by appropriate powers of attorney, in either case signed exactly as
the name(s) of the registered holder of Private Notes appear(s) on the
certificates. Signatures on such Private Notes or powers of attorney must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
7. TRANSFER TAXES. Except as set forth in this Instruction 7, the
Company will pay all transfer taxes, if any, applicable to the transfer and
exchange of Private Notes pursuant to the Exchange Offer. If, however, issuance
of Exchange Notes is to be made to, or Private Notes not tendered for exchange
are to be issued or returned in the name of, any person other than the holder of
Private Notes, and satisfactory evidence of payment of such taxes or exemptions
from taxes therefrom is not submitted with this Letter of Transmittal, the
amount of any transfer taxes payable on account of the transfer to such person
will be imposed on and payable by the holder of Private Notes tendering Private
Notes for exchange prior to the issuance of the Exchange Notes.
8. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If the Exchange Notes
are to be issued, or if any Private Notes not tendered for exchange are to be
issued or sent to, someone other than the holder of Private Notes or to an
address other than that shown above, the appropriate boxes on this Letter of
Transmittal should be completed. Holders of Private Notes tendering Private
Notes by book-entry transfer may request that Private Notes not accepted be
credited to such account maintained at DTC as such holder of Private Notes may
designate.
9. IRREGULARITIES. All questions as to the form of documents and the
validity, eligibility (including time of receipt), acceptance and withdrawal of
Private Notes will be determined by the Company, in its sole discretion, whose
determination shall be final and binding. The Company reserves the absolute
right to reject any or all tenders for exchange of any particular Private Notes
that are not in proper form, or the acceptance of which would, in the opinion of
the Company or its counsel, be unlawful. The Company reserves the absolute right
to waive any defect, irregularity or condition of tender for exchange with
regard to any particular Private Notes. The Company's interpretation of the
terms of, and conditions to, the Exchange Offer (including the instructions
herein) will be final and binding. Unless waived, any defects or irregularities
in connection with the Exchange Offer must be cured within such time as the
Company shall determine. Neither the Company, the Exchange Agent nor any other
person shall be under any duty to give notice of any defects or irregularities
in Private Notes tendered for exchange, nor shall any of them incur any
liability for failure to give such notice. A tender of Private Notes will not be
deemed to have been made until all defects and irregularities with respect to
such tender have been cured or waived. Any Private 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 holders, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
waive, amend or modify certain of the specified conditions as described under
"The Exchange Offer -- Conditions" in the Prospectus in the case of any Private
Notes tendered (except as otherwise provided in the Prospectus).
11. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES. If a holder of
Private Notes desires to tender Private Notes pursuant to the Exchange Offer,
but any of such Private Notes has been mutilated, lost, stolen or destroyed,
such holder of Private Notes should write to or telephone the Trustee at the
address or telephone number listed below, concerning the procedures for
obtaining replacement certificates for such Private Notes, arranging for
indemnification or any other matter that requires handling by the Trustee:
United States Trust Company of New York
P.O. Box 844, Attn: Corporate Trust Services
Cooper Station
New York, NY 10276-0844
Telephone: 800-548-6565
12. REQUESTS FOR INFORMATION OR ADDITIONAL COPIES. Requests for
information or for additional copies of the Prospectus and this Letter of
Transmittal may be directed to the Exchange Agent at the address or telephone
number set forth on the cover of this Letter of Transmittal.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE THEREOF, IF
APPLICABLE) TOGETHER WITH CERTIFICATES, OR CONFIRMATION OF BOOK-ENTRY OR THE
NOTICE OF GUARANTEED DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED
BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
IMPORTANT TAX INFORMATION
Under United States federal income tax law, a holder of Private
Notes whose tendered Private Notes are accepted for exchange may be subject to
backup withholding unless the holder provides the Company (as payor), through
the Exchange Agent, with either (i) such holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 attached hereto, certifying
that (A) the TIN provided on Substitute Form W-9 is correct (or that such holder
of Private Notes is awaiting a TIN) and that (B) the holder is not subject to
backup withholding because (a) the holder is exempt from backup withholding, (b)
the holder of Private Notes has not been notified by the Internal Revenue
Service that he or she is subject to backup withholding as a result of a failure
to report all interest or dividends or (c) the Internal Revenue Service has
notified the holder of Private Notes that he or she is no longer subject to
backup withholding; or (ii) an adequate basis for exemption from backup
withholding. If such holder of Private Notes is an individual, the TIN is
generally such holder's social security number. If the Exchange Agent is not
provided with the correct taxpayer identification number, the holder of Private
Notes may be subject to backup withholding and a $50 penalty imposed by the
Internal Revenue Service.
Certain holders of Private Notes (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. Exempt holders of Private Notes should
furnish their TIN, write "Exempt" on the face of the Substitute Form W-9, and
sign, date and return the Substitute Form W-9 to the Exchange Agent. A foreign
individual may qualify as an exempt recipient by submitting to the Exchange
Agent a properly completed Internal Revenue Service Form W-8 (the terms of which
the Exchange Agent will provide upon request) signed under penalty of perjury,
attesting to the holder's exempt status. See the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 (the
"Guidelines") for additional instructions.
If backup withholding applies, the Company is required to
withhold 31% of any reportable payment made to the holder of Private Notes or
other payee. Backup withholding is not an additional federal income tax. Rather,
the federal income tax liability of persons 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 from the Internal Revenue
Service. 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.
The holder of Private Notes is required to give the Exchange
Agent the TIN (e.g., social security number or employer identification number)
of the record owner of the Private Notes. If the Private Notes are held in more
than one name or are not held in the name of the actual owner, consult the
enclosed Guidelines for additional guidance regarding which number to report.
- ------------------------------------------------------------------------------
PAYER'S NAME:____________________________________
- ------------------------------------------------------------------------------
SUBSTITUTE Part 1 - PLEASE PROVIDE
Form W-9 YOUR TIN IN THE BOX AT ______________________
Department of RIGHT AND CERTIFY BY Social Security
the Treasury SIGNING AND DATING BELOW Number
Internal
Revenue Service OR
Payer's Request ______________________
for Taxpayer Employer
Identification Identification
Number (TIN) Number
--------------------------------------------------------
Part 2 - Part 3 -
Certification Under Awaiting |_|
Penalties of Perjury, I TIN
certify that:
(1) The number shown on
this form is my current
taxpayer identification
number (or I am waiting
for a number to be
issued to me), and
(2) I am not subject to backup
withholding because
(a) I am exempt from
backup withholding or
(b) Ihave not been
notified by the Internal
Revenue Service (the "IRS")
that I am subject to
backup withholding as a
result of a failure to
report all interest or
dividends, or (c) the IRS has
notified me that I am
no longer subject to backup
withholding.
--------------------------------------------------------
Certification instructions - You must cross out
item (2) in Part 2 above if you have been
notified by the IRS that you are subject to
backup withholding because of underreporting
interest or dividends on your tax return.
However, if after being notified by the IRS that
you are subject to backup withholding you
receive another notification from the IRS
stating that you are no longer subject to backup
withholding, do not cross out item (2).
- ------------------------------------------------------------------------------
SIGNATURE___________________________________ DATE_______________
NAME____________________________________________________________
ADDRESS_________________________________________________________
CITY_______________________ STATE___________ ZIP CODE___________
- ------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENT 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.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECK THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
- ------------------------------------------------------------------------------
PAYOR'S NAME:
- ------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver such an application in the near future. I understand that until I
provide a taxpayer identification number, 31% of all reportable payments made to
me will be withheld, but that such withheld amount shall be refunded to me if I
provide my taxpayer identification number within 60 days.
- ------------------------------------------------------------------------------
Signature Date
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