EXHIBIT (99)-1
LETTER OF TRANSMITTAL
HEALTHSOUTH CORPORATION
OFFER TO EXCHANGE UP TO $200,000,000 AGGREGATE PRINCIPAL AMOUNT OF
7 3/8% SENIOR NOTES DUE 2006
AND UP TO $400,000,000 AGGREGATE PRINCIPAL AMOUNT OF 8 3/8% SENIOR NOTES DUE
2011,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
PURSUANT TO THE PROSPECTUS DATED , 2001,
FOR AN EQUAL PRINCIPAL AMOUNT OF OUTSTANDING
7 3/8% SENIOR NOTES DUE 2006 AND 8 3/8% SENIOR NOTES DUE 2011, RESPECTIVELY
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2002 OR SUCH LATER DATE AND TIME TO WHICH THE EXCHANGE OFFER MAY BE EXTENDED
(THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO THE EXPIRATION
DATE.
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NATIONAL CITY BANK
By Registered or Certified Mail: Facsimile Transmission Number: By Hand/Overnight Delivery:
National City Bank (502) 581-4198 National City Bank
c/o Mellon Securities Trust Company c/o Mellon Securities Trust Company
120 Broadway, 13th Floor 120 Broadway, 13th Floor
New York, New York 10271 New York, New York 10271
Attention: Charles Lush Attention: Charles Lush
For Information Call:
Charles Lush
(502) 581-7354
Delivery of this letter of transmittal to an address other than as set
forth above, or transmission of instructions via facsimile other than as set
forth above, does not constitute a valid delivery.
The undersigned acknowledges that the undersigned has received the
Prospectus dated , 2001 (as amended or supplemented from time to time, the
"Prospectus"), of HEALTHSOUTH Corporation, a Delaware corporation (the
"Company"), and this letter of transmittal (as amended or supplemented from time
to time, the "Letter of Transmittal"), which together constitute the Company's
offer (the "Exchange Offer") to exchange up to $200,000,000 aggregate principal
amount of the Company's 7 3/8% Senior Notes due 2006 and up to $400,000,000
aggregate principal amount of the Company's 8 3/8% Senior Notes due 2011
(collectively, the "Exchange Notes"), for an equal principal amount of the
Company's issued and outstanding 7 3/8% Senior Notes due 2006 and 8 3/8% Senior
Notes due 2011, respectively (collectively, the "Private Notes"). The terms of
the Exchange Notes are identical in all material respects (including principal
amount, interest rate and maturity) to those of the Private Notes, except that
the Exchange Notes will be registered under the Securities Act of 1933, as
amended (the "Securities Act").
Holders of Exchange Notes will not be entitled to certain rights of
holders of the Private Notes under the Registration Rights Agreement, dated
September 28, 2001, among the Company and UBS Warburg LLC, Deutsche Banc Alex.
Brown Inc., First Union Securities, Inc., J.P. Morgan Securities, Inc., Lehman
Brothers Inc., Scotia Capital (USA) Inc., Jefferies & Company, Inc., BNY Capital
Markets, Inc., Fleet Securities, Inc., and NatCity Investments, Inc. (the
"Registration Rights Agreement"), which rights will be terminated upon
consummation of the Exchange Offer.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein have the meanings given to
such terms in the Prospectus.
This Letter of Transmittal is to be completed by holders of Private Notes
(a) if Private Notes are to be forwarded herewith or (b) if tenders of Private
Notes are to be made by book-entry transfer to an account maintained by National
City Bank (the "Exchange Agent") at The Depository Trust Company ("DTC")
pursuant to the procedures set forth in the Prospectus under "The Exchange
Offer-Procedures for Tendering". Delivery of this Letter of Transmittal and any
other required documents should be made to the Exchange Agent.
If a holder desires to tender Private Notes pursuant to the Exchange Offer
but time will not permit this Letter of Transmittal, the certificates
representing Private Notes or other required documents to reach the Exchange
Agent on or before the Expiration Date, or the procedure for book-entry transfer
cannot be completed on a timely basis, such holder may effect a tender of such
Private Notes in accordance with the guaranteed delivery procedures set forth in
the Prospectus under "The Exchange Offer-Guaranteed Delivery Procedures".
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
The undersigned has completed the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
List below the Private Notes to which the 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 schedule affixed hereto.
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DESCRIPTION OF PRIVATE NOTES (1) (2) (3) (4)
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Name(s) and Address(es) of Registered Holder(s) Aggregate Principal Amount
(Please fill in, if blank) Principal of Private Notes
Certificate Maturity Amount of Tendered
Number(s)* Date Private Notes (if less than all)**
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* Need not be completed if Private Notes are being tendered by book-entry
holders.
** Private Notes may be tendered in whole or in part in integral multiples
of $1,000. Unless this column is completed, a holder will be deemed to
have tendered the full aggregate principal amount of the Private Notes
represented by the Private Notes indicated in column 3.
2
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] 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:
Name of Tendering Institution: --------------------------------------------
Account Number: -----------------------------------------------------------
Transaction Code Number: --------------------------------------------------
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED PRIVATE 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 (if any): -----------------------------------------
Name of Eligible Institution that Guaranteed Delivery: -------------------
Date of Execution of Notice of Guaranteed Delivery: ----------------------
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution: -------------------------------------------
Account Number: ----------------------------------------------------------
Transaction Code Number: -------------------------------------------------
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED PRIVATE
NOTES ARE TO BE RETURNED BY CREDITING DTC ACCOUNT NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER THAT ACQUIRED THE PRIVATE NOTES FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES
AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ---------------------------------------------------------------------
Address: ------------------------------------------------------------------
3
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of
Private Notes indicated above in exchange for a like aggregate principal amount
of Exchange Notes of the same maturity. Subject to, and effective upon, the
acceptance for exchange of the Private Notes tendered hereby, the undersigned
hereby exchanges, assigns and transfers to, or upon the order of, the Company
all right, title and interest in and to such Private Notes.
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 the full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to (i) 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,
(ii) present such Private Notes for transfer on the books of the Company, and
(iii) 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, exchange, assign and transfer the Private
Notes tendered hereby and that, when the same are accepted for exchange, 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 or proxies. 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 exchange, assignment and transfer of the Private
Notes tendered hereby, and the undersigned will comply with its obligations
under the Registration Rights Agreement. The undersigned has read and agreed to
all of the terms of the Exchange Offer.
The undersigned agrees that acceptance of any tendered Private Notes by the
Company and the issuance of Exchange Notes in exchange therefor will constitute
performance in full by the Company of its obligations under the Registration
Rights Agreement and that the Company will have no further obligations or
liabilities thereunder.
The name(s) and address(es) of the registered holders of the Private Notes
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Private Notes. The certificate number(s) and the
principal amount(s) of the Private Notes that the undersigned wishes to tender
should be indicated in the appropriate boxes above.
The undersigned also acknowledges that this Exchange Offer is being made in
reliance on certain interpretive letters by the staff of the Securities and
Exchange Commission (the "SEC") to third parties in unrelated transactions. On
the basis thereof, the Exchange Notes issued in exchange for the Private Notes
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such Exchange Notes are acquired in the
ordinary course of such holders' business and such holders are not participating
in, and have no arrangement or understanding with any person to participate in,
the distribution of such Exchange Notes. THE UNDERSIGNED ACKNOWLEDGES THAT ANY
HOLDER OF PRIVATE NOTES USING THE EXCHANGE OFFER TO PARTICIPATE IN A
DISTRIBUTION OF THE EXCHANGE NOTES (I) CANNOT RELY ON THE POSITION OF THE STAFF
OF THE SEC ENUNCIATED IN ITS INTERPRETIVE LETTERS AND (II) MUST COMPLY WITH THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT IN
CONNECTION WITH A SECONDARY RESALE TRANSACTION. If the undersigned is not a
broker-dealer, the undersigned represents that it is not engaged in, and does
not intend to engage in, a distribution of Exchange Notes. 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 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.
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The undersigned represents that (i) it is not an affiliate (as defined in
Rule 405 under the Securities Act) of the Company; (ii) it is not a
broker-dealer tendering Private Notes acquired for its own account directly from
the Company; (iii) any Exchange Notes to be received by it will be acquired in
the ordinary course of its business; and (iv) it is not engaged in, and does not
intend to engage in, a distribution of such Exchange Notes and has no
arrangement or understanding to participate in a distribution of Exchange Notes.
If a holder of Private Notes is engaged in or intends to engage in a
distribution of Exchange Notes or has any arrangement or understanding with
respect to the distribution of Exchange Notes to be acquired pursuant to the
Exchange Offer, such holder may not rely on the applicable interpretations of
the staff of the Commission and must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any secondary
resale transaction.
The Company agrees that, subject to the provisions of the Registration
Rights Agreement, the Prospectus may be used by a Participating Broker-Dealer
(as defined below) in connection with resales of Exchange Notes received in
exchange for Private Notes, where such Private Notes were acquired by such
Participating Broker-Dealer for its own account as a result of market-making
activities or other trading activities, for a period of time of up to 180 days
after the date on which the registration statement of which the Prospectus is a
part is declared effective (subject to extension under certain circumstances
described in the Prospectus) or, if earlier, when all such Exchange Notes have
been disposed of by such Participating Broker-Dealer. In that regard, each
broker-dealer who acquired Private Notes for its own account as a result of
market-making or other trading activities (a "Participating Broker-Dealer"), by
tendering such Private Notes and executing this Letter of Transmittal, agrees
that, upon receipt of notice from the Company of the occurrence of any event or
the discovery of any fact which makes any statement contained or incorporated by
reference in the Prospectus untrue in any material respect or which causes the
Prospectus to omit to state a material fact necessary in order to make the
statements contained or incorporated by reference therein, in light of the
circumstances under which they were made, not misleading or of the occurrence of
certain other events specified in the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale of Exchange Notes pursuant to
the Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to the Participating Broker-Dealer or the Company has
given notice that the sale of the Exchange Notes may be resumed, as the case may
be. If the Company gives such notice to suspend the sale of the Exchange Notes,
the 180-day period referred to above during which Participating Broker-Dealers
are entitled to use the Prospectus in connection with the resale of Exchange
Notes shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
Participating Broker-Dealers shall have received copies of the supplemented or
amended Prospectus necessary to permit resales of the Exchange Notes or to and
including the date on which the Company has given notice that the sale of
Exchange Notes may be resumed, as the case may be.
The undersigned understands that tenders of the Private Notes pursuant to
any one of the procedures described under "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 in accordance with the
terms and subject to the conditions set forth herein and in the Prospectus.
The undersigned recognizes that under certain circumstances set forth in
the Prospectus under "The Exchange Offer-Conditions" the Company will not be
required to accept for exchange any of the Private Notes tendered. Private Notes
not accepted for exchange or withdrawn will be returned to the undersigned at
the address set forth below unless otherwise indicated under "Special Delivery
Instructions" below (or, in the case of Private Notes tendered by book-entry
transfer, credited to an account maintained by the tendering holder at DTC).
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Notes
(and, if applicable, any substitute certificates representing Private Notes not
exchanged or not accepted for exchange) be issued in the name(s) of the
undersigned and be delivered to the undersigned at the address, or, in the case
of book-entry transfer of Private Notes, be credited to the account at DTC shown
above in the box entitled "Description of Private Notes".
5
Holders of the Private Notes whose Private Notes are accepted for exchange
will not receive accrued interest on such Private Notes for any period from and
after the last interest payment date to which interest has been paid or duly
provided for on such Private Notes prior to the original issue date of the
Exchange Notes or, if no such interest has been paid or duly provided for, will
not receive any accrued interest on such Private Notes, and the undersigned
waives the right to receive any interest on such Private Notes accrued from and
after such interest payment date or, if no such interest has been paid or duly
provided for, from and after the original issue date of the Exchange Notes.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Private Notes tendered hereby. All
authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. This tender
may be withdrawn only in accordance with the procedures set forth in the
Prospectus and in the instructions contained in this Letter of Transmittal.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF PRIVATE
NOTES" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL AND DELIVERING SUCH PRIVATE
NOTES AND THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT, WILL BE DEEMED TO
HAVE TENDERED THE PRIVATE NOTES AS SET FORTH IN SUCH BOX ABOVE. ANY FINANCIAL
INSTITUTION THAT IS A PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY'S SYSTEMS
MAY MAKE BOOK-ENTRY DELIVERY OF PRIVATE NOTES BY CAUSING THE BOOK-ENTRY TRANSFER
FACILITY TO TRANSFER SUCH PRIVATE NOTES INTO THE EXCHANGE AGENT'S ACCOUNT AT THE
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES. ALTHOUGH DELIVERY OF PRIVATE NOTES MAY BE EFFECTED
THROUGH BOOK-ENTRY TRANSFER AT THE BOOK-ENTRY TRANSFER FACILITY, THIS LETTER OF
TRANSMITTAL WITH ALL REQUIRED SIGNATURE GUARANTEES AND ALL OTHER REQUIRED
DOCUMENTS MUST BE TRANSMITTED TO AND RECEIVED BY THE EXCHANGE AGENT.
6
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PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
X ------------------------------------- Date: ------------------ , 200_
X ------------------------------------- Date: ------------------ , 200_
Signature(s) of Owner
The above lines must be signed by the registered holder(s) exactly as their
name(s) appear(s) on 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. 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 please set forth full title. See Instruction 4.
Name(s): -------------------------------------------------------------------
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(Please Type or Print)
Capacity: -------------------------------------------------------------------
Address: --------------------------------------------------------------------
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(Including Zip Code)
Area Code and Telephone Number: --------------------------------------------
Tax Identification or Social Security Number(s): --------------------------
SIGNATURE GUARANTEED
(IF REQUIRED BY INSTRUCTION 4)
Signatures Guaranteed
by an Eligible Institution: ----------------------------------------------
(Authorized Signature)
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(Title)
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(Name of Firm)
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(Address and Telephone Number)
Dated: ------------------------- , 200
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7
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5) (SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Private To be completed ONLY if certificates for Private
Notes not exchanged and/or Exchange Notes are to Notes not exchanged and/or Exchange Notes are to
be issued in the name of and sent to someone other be sent to someone other than the person or persons
than the person or persons whose signature(s) whose signature(s) appear(s) on this Letter of
appear(s) on the Letter of Transmittal above. Transmittal above or to such person or persons at an
address other than that shown in the box above entitled
"Description of Private Notes".
Issue Exchange Notes and/or Private Notes to: Deliver Exchange Notes and/or Private Notes to:
Name(s): .......................................... Name(s): ...............................................
(Please Type or Print) (Please Type or Print)
................................................... ........................................................
(Please Type or Print) (Please Type or Print)
Address: .......................................... Address: ...............................................
.................................................... ........................................................
(Zip Code) (Zip Code)
Telephone Number: ................................. Telephone Number: ......................................
Tax Identification or Tax Identification or
Social Security Number(s):......................... Social Security Number(s):..............................
(Complete Substitute Form W-9)
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IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS
LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATE(S)
FOR PRIVATE NOTES 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.
8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND PRIVATE NOTES.
This Letter of Transmittal must accompany, (i) all certificates
representing Private Notes tendered pursuant to the Exchange Offer and (ii) all
tenders of Private Notes made pursuant to the procedures for book-entry transfer
set forth in the Prospectus under "The Exchange Offer--Procedures for
Tendering". Certificates representing the Private Notes in proper form for
transfer, or a timely confirmation of a book-entry transfer of such Private
Notes into the Exchange Agent's account at DTC, as well as a properly completed
and duly executed copy of this Letter of Transmittal (or facsimile thereof),
with any required signature guarantees, 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 on or before the
Expiration Date.
The method of delivery of this Letter of Transmittal, the Private Notes and
all other required documents is at the election and risk of the tendering
holders, but delivery will be deemed made only when actually received or
confirmed by the Exchange Agent. If such delivery is by mail, it is recommended
that registered mail properly insured, with return receipt requested, be used.
In all cases, sufficient time should be allowed to permit timely delivery.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEED DELIVERY PROCEDURES.
If a holder desires to tender Private Notes, but time will not permit a
Letter of Transmittal, certificates representing the Private Notes to be
tendered or other required documents to reach the Exchange Agent on or before
the Expiration Date, or if the procedure for book-entry transfer cannot be
completed on or prior to the Expiration Date, such holder's tender may be
effected if:
(a) such tender is made by or through an Eligible Institution (as
defined below);
(b) on or before the Expiration Date, the Exchange Agent has received a
properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by the Company (or a facsimile
thereof with receipt confirmed by telephone and an original delivered by
guaranteed overnight courier) from such Eligible Institution setting forth
the name and address of the holder of such Private Notes, the name(s) in
which the Private Notes are registered and the principal amount of Private
Notes tendered and stating that the tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days after
the Expiration Date, certificates representing Private Notes to be tendered,
in proper form for transfer, or a Book-Entry confirmation, as the case may
be, together with a duly executed Letter of Transmittal and any other
documents required by this Letter of Transmittal and the instructions
hereto, will be deposited by such Eligible Institution with the Exchange
Agent; and
(c) a Letter of Transmittal (or a facsimile thereof) and certificates
representing the Private Notes to be tendered, in proper form for transfer,
or a Book-Entry Confirmation, as the case may be, and all other required
documents are received by the Exchange Agent within three New York Stock
Exchange trading days after the Expiration Date.
3. PARTIAL TENDERS AND WITHDRAWAL RIGHTS.
Tenders of Private Notes will be accepted only in integral multiples of
$1,000. If less than all the Private Notes evidenced by any Certificate
submitted are to be tendered, fill in the principal amount of Private Notes
which are to be tendered in the box entitled "Principal Amount of Private Notes
Tendered (if less than all)". In such case, new certificate(s) for the remainder
of the Private Notes that were evidenced by your old certificate(s) will only be
sent to the holder of the Private Notes (or, in the case
9
of Private Notes tendered pursuant to book-entry transfer, will only be credited
to the account at DTC maintained by the holder of the Private Notes) promptly
after the Expiration Date. All Private Notes represented by certificates or
subject to a Book-Entry Confirmation delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
Any holder who has tendered Private Notes may withdraw the tender by
delivering written notice of withdrawal (which may be sent by facsimile) to the
Exchange Agent at its address set forth herein prior to the Expiration Date. Any
such notice of withdrawal must specify the name of the person having tendered
the Private Notes to be withdrawn, identify the Private Notes to be withdrawn
(including the principal amount of such Private Notes) and (where certificates
for Private Notes have been transmitted) specify the name in which such Private
Notes are registered, if different from that of the withdrawing holder. If
certificates for Private Notes have been delivered or otherwise identified to
the Exchange Agent, then, prior to the withdrawal of such certificates, the
withdrawing holder must also submit the serial numbers of the particular
certificates to be withdrawn and a signed notice of withdrawal with signatures
guaranteed by an Eligible Institution unless such holder is an Eligible
Institution. If Private Notes have been tendered pursuant to the procedure for
book-entry transfer described above, any notice of withdrawal must specify the
name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Private Notes and otherwise comply with the
procedures of such facility. All questions as to the validity, form and
eligibility (including time of receipt) of such notices will be determined by
the Company, whose determination shall be final and binding on all parties. Any
Private Notes so withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the Exchange Offer. Any Private Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder (or, in the case of
Private Notes tendered by book-entry transfer into the Exchange Agent's account
at the Book-Entry Transfer Facility pursuant to the book-entry transfer
procedures described above, such Private Notes will be credited to an account
maintained with such Book-Entry Transfer Facility for the Private Notes) as soon
as practicable after withdrawal, rejection of tender or termination of the
Exchange Offer. Properly withdrawn Private Notes may be retendered following one
of the procedures described in the Prospectus under "The Exchange
Offer--Procedures for Tendering".
4. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered holder of the
Private Notes tendered herewith, the signature must correspond exactly with the
name as written on the face of the certificates without any alteration,
enlargement or change whatsoever.
If any 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 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 as there are names in which tendered Private Notes are
registered.
If this Letter of Transmittal is signed by the registered 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,
then the registered holder need not and should not endorse any tendered Private
Notes nor provide a separate bond power. In any other case, the registered
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 of the registered holder appears on
such Private Notes), with the signature on the endorsement or bond power
guaranteed by an Eligible Institution, unless such certificates or bond powers
are signed by an Eligible Institution.
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 submit with this
Letter of Transmittal evidence satisfactory to the Company of their authority to
so act.
The signatures on this Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed unless the Private Notes surrendered for
exchange pursuant thereto are tendered (i) by a registered holder (which term,
for purposes of this document, shall include any participant in DTC whose
10
name appears on the register of holders maintained by the Company as owner of
the Private Notes) who has not completed the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in this Letter of Transmittal
or (ii) for the account of an Eligible Institution. In the event that the
signatures in this Letter of Transmittal or a notice of withdrawal, as the case
may be, are required to be guaranteed, such guarantees must be by a commercial
bank or trust company located or having an office or correspondent in the United
States, or by a member firm of a national securities exchange or of the National
Association of Securities Dealers, Inc., or by a member of a signature medallion
program such as "STAMP" (any of the foregoing being referred to herein as an
"Eligible Institution"). If Private Notes are registered in the name of a person
other than the signer of this Letter of Transmittal, the Private Notes
surrendered for exchange must be endorsed by, or be accompanied by a written
instrument or instruments of transfer or exchange, in satisfactory form as
determined by the Company in its sole discretion, duly executed by the
registered holder with the signature thereon guaranteed by an Eligible
Institution.
5. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Private Notes should indicate in the applicable box
the name and address or account at DTC to which Exchange Notes issued pursuant
to the Exchange Offer and/or substitute Private Notes for principal amounts not
tendered or not accepted for exchange are to be issued, 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 or Social Security number of the person named must also be
indicated. If no such instructions are given, any Exchange Notes will be issued
in the name of, and delivered to, the name and address (or account at DTC, in
the case of any tender by book-entry transfer) of the person signing this Letter
of Transmittal, and any Private Notes not accepted for exchange will be returned
to the name and address (or account at DTC, in the case of any tender by
book-entry transfer) of the person signing this Letter of Transmittal.
6. BACKUP FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM W-9.
Under the federal income tax laws, payments that may be made by the Company
on account of Exchange Notes issued pursuant to the Exchange Offer may be
subject to backup withholding. In order to avoid such backup withholding, each
tendering holder should complete and sign the Substitute Form W-9 included in
this Letter of Transmittal and either (a) provide the correct taxpayer
identification number ("TIN") and certify, under penalties of perjury, that the
TIN provided is correct and that (i) the holder has not been notified by the
Internal Revenue Service (the "IRS") that the holder is subject to backup
withholding as a result of failure to report all interest or dividends or (ii)
the IRS has notified the holder that the holder is no longer subject to backup
withholding; or (b) provide an adequate basis for exemption. If the tendering
holder has not been issued a TIN and has applied for one, or intends to apply
for one in the near future, such holder should write "Applied For" in the space
provided for the TIN in Part I of the Substitute Form W-9, sign and date the
Substitute Form W-9 and sign the Certificate of Payee Awaiting Taxpayer
Identification Number. If "Applied For" is written in Part I, the Company (or
the Paying Agent under the Indenture governing the Exchange Notes) will retain
the currently applicable backup withholding statutory percentage of payments
made to the tendering holder during the 30-day period following the date of the
Substitute Form W-9. If the holder furnishes the Exchange Agent or the Company
with its TIN within 30 days after the date of the Substitute Form W-9, the
Company (or Paying Agent) will remit such amounts retained during the 30-day
period to the holder and no further amounts shall be retained or withheld from
payments made to the holder thereafter. If, however, the holder has not provided
the Exchange Agent or the Company with its TIN within such 30-day period, the
Company (or the Paying Agent) will remit such previously retained amounts to the
IRS as backup withholding. In general, if a holder is an individual, the
taxpayer identification number is the Social Security Number of such individual.
If the Exchange Agent or the Company is not provided with the correct taxpayer
identification number, the holder may be subject to a U.S. $50 penalty imposed
by the IRS. Certain holders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such holder must submit a statement (generally, IRS Form W-8),
signed under penalties of perjury, attesting to that individual's exempt status.
Such statements can be obtained from the Exchange
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Agent. For further information concerning backup withholding and instructions
for completing the Substitute Form W-9 (including how to obtain a taxpayer
identification number if you do not have one and how to complete the Substitute
Form W-9 if Private Notes are registered in more than one name), consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (the "Guidelines").
Failure to complete the Substitute Form W-9 will not, by itself, cause
Private Notes to be deemed invalidly tendered, but may require the Company (or
the Paying Agent) to withhold the currently applicable backup withholding
statutory percentage of the amount of any payments made on account of the
Exchange Notes. Backup withholding is not an additional federal income tax.
Rather, the federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
7. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Private Notes to it or its order pursuant to the Exchange Offer. If, however,
Exchange Notes and/or substitute Private Notes not exchanged are to be delivered
to, or are to be registered or issued in the name of, any person other than the
registered holder of the Private Notes tendered herewith, or if tendered Private
Notes are registered in the name of any person other than the person signing
this Letter of Transmittal, or if a transfer tax is imposed for any reason other
than the transfer of Private Notes to the Company or its order pursuant to the
Exchange Offer, the amount of any such transfer taxes (whether imposed on the
registered holder or any other persons) will be payable by the tendering holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted herewith, the amount of such 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 specified in this Letter
of Transmittal.
8. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive, in whole or in part, any
of the conditions to the Exchange Offer set forth in the Prospectus.
9. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders of Private
Notes or transmittals of this Letter of Transmittal will be accepted. All
tendering holders of Private Notes, by execution of this Letter of Transmittal,
shall waive any right to receive notice of the acceptance of their Private Notes
for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of defects or irregularities in any tender, nor shall any of them
incur any liability for failure to give any such notice.
10. INADEQUATE SPACE.
If the space provided herein is inadequate, the aggregate principal amount
of Private Notes being tendered and the certificate number or numbers (if
applicable) should be listed on a separate schedule attached hereto and
separately signed by all parties required to sign this Letter of Transmittal.
11. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES.
If any certificate has been lost, mutilated, destroyed or stolen, the
holder should promptly notify Charles Lush at National City Bank, telephone
(502) 581-7354. The holder will then be instructed as to the steps that must be
taken to replace the certificate. This Letter of Transmittal and related
documents cannot be processed until the Private Notes have been replaced.
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12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent at the address and telephone number indicated
above.
13. 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 may, in the
opinion of the Company or counsel to the Company, 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, whether or not similar
conditions or irregularities are waived in the case of other holders. Any such
waiver shall not constitute a general waiver of the conditions of the Exchange
Offer by the Company. 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 neither the Company nor the Exchange
Agent shall incur any liability for failure to give such notification.
14. ACCEPTANCE 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 if the Company has
given written and 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 name
and address shown above or, if Private Notes have been tendered by book-entry
transfer, to the account at DTC shown above, or at a different address or
account at DTC as may be indicated under "Special Delivery Instructions".
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TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 6)
PAYOR'S NAME:
SUBSTITUTE FORM W-9 PART I--TAXPAYER IDENTIFICATION
NUMBER
Department of the Treasury
Internal Revenue Service Enter your taxpayer identification ---------------------------
number in the appropriate box. For Social Security Number
most individuals, this is your social
security number. If you do not have a OR
number, see how to obtain a "TIN" in
the enclosed Guidelines. ---------------------------
Employer Identification
NOTE: If the account is in more than Number
one name, see the chart on page 2 of
the enclosed Guidelines to determine
what number to give.
-------------------------------------------------------------------------------
PART II--FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING (SEE ENCLOSED
GUIDELINES)
-------------------------------------------------------------------------------
Payor's Request for Taxpayer CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I
Identification Number (TIN) CERTIFY THAT:
and Certification
(1) the number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me), and
(2) I am not subject to backup withholding either because I have not been
notified by the Internal Revenue Service (the "IRS") that I am subject to
backup withholding as a result of a failure to report all interest or
dividends or the IRS has notified me that I am no longer subject to backup
withholding.
SIGNATURE DATE
-------------------------------------- ----------------
- ---------------------------------------------------------------------------------------------------------------------
Certificate Guidelines --You must cross out Item (2) of the above certification
if you have been notified by the IRS that you are subject to backup withholding
because of under-reporting of interest on dividends on your tax return.
However, if after being notified by the IRS that you were subject to backup
withholding, you received another notification from the IRS that you are no
longer subject to backup withholding, do not cross out Item 2.
- ---------------------------------------------------------------------------------------------------------------------
14
CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification
Number has not been issued to me and that I mailed or delivered an application
to receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail or
deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payor, the currently applicable
backup withholding statutory percentage of all payments made to me on account of
the Exchange Notes shall be retained until I provide a Taxpayer Identification
Number to the payor and that, if I do not provide my Taxpayer Identification
Number within 30 days, such retained amounts shall be remitted to the Internal
Revenue Service as a backup withholding and the currently applicable backup
withholding statutory percentage of all reportable payments made to me
thereafter will be withheld and remitted to the Internal Revenue Service until I
provide a Taxpayer Identification Number.
SIGNATURE DATE
------------------------------------- ------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF THE CURRENTLY APPLICABLE BACKUP WITHHOLDING STATUTORY PERCENTAGE
OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE EXCHANGE NOTES. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
15