Exhibit (a)(1)(ii)
LETTER OF TRANSMITTAL
To Tender All Outstanding Units of Beneficial Interest
in
HUGOTON ROYALTY TRUST
at
$0.20 Net Per Unit
Pursuant to the Offer to Purchase dated April 1, 2020
by
XTO ENERGY INC.
THE OFFER EXPIRES AT ONE MINUTE AFTER 11:59 PM NEW YORK CITY TIME, AT THE END OF THE DAY ON TUESDAY, APRIL 28, 2020, UNLESS EXTENDED BY THE OFFEROR AS DESCRIBED IN THE OFFER TO PURCHASE (AS IT MAY BE EXTENDED, THE “EXPIRATION DATE”).
The Depositary for the Tender Offer is:
Computershare Trust Company, N.A.
If delivering by mail: | If delivering by courier: | |
Computershare Trust Company, N.A. Providence, Rhode Island 02940-3011 | Computershare Trust Company, N.A. Canton, Massachusetts 02021 |
For assistance call Georgeson LLC at (800)676-0281.
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILLNOT CONSTITUTEA VALID DELIVERY TO THE DEPOSITARY. YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE PROVIDED BELOW, WITH SIGNATURE GUARANTEE, IF REQUIRED, AND COMPLETE THE ENCLOSED IRS FORMW-9 OR AN APPROPRIATE IRS FORMW-8, AS APPLICABLE. THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
THE TENDER OFFER IS NOT BEING MADE TO (NOR WILL TENDER OF UNITS BE ACCEPTED FROM OR ON BEHALF OF) UNITHOLDERS IN ANY JURISDICTION WHERE IT WOULD BE ILLEGAL TO DO SO.
DESCRIPTION OF UNITS TENDERED
|
| |||||||||||||||
Name(s) and Address(es) of Registered Holder(s) (Please fill in, if blank, exactly as name(s) appear(s) on certificate(s)) (Attach additional signed list if necessary)
| Units Tendered
| Total Number
| ||||||||||||||
Certificate
| Total Number of
| Book Entry Tendered
| ||||||||||||||
| Total Units |
| ||||||||||||||
* Unless otherwise indicated, it will be assumed that all Units described in the chart above are being tendered. See Instruction 4.
|
|
This Letter of Transmittal is to be used by unitholders of Hugoton Royalty Trust (the “Trust”) (i) if certificates (the “Certificates”) for units of beneficial interest in the Trust (the “Units”) are to be tendered herewith or (ii) if delivery of Units is to be made by book-entry transfer at Computershare Trust Company, N.A. (the “Depositary”).
Unitholders whose Certificates are not immediately available, or who cannot complete the procedure for book-entry transfer on a timely basis, or who cannot deliver all other required documents to the Depositary prior to the Expiration Date, must tender their Units according to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase in order to participate in the Offer. Units tendered by the Notice of Guaranteed Delivery (as defined below) will be excluded from the calculation of the Minimum Condition (as defined in the Offer to Purchase), unless such Units and other required documents are received by the Depositary by the Expiration Date. See Instruction 2.Delivery of documents to DTCdoes not constitute delivery to the Depositary.
If Certificates you are tendering with this Letter of Transmittal have been lost, stolen, destroyed or mutilated, you should contact American Stock Transfer & Trust Company LLC, in its capacity as transfer agent (the “Transfer Agent”), toll-free at (866)737-9819 regarding the requirements for replacement. You may be required to post a bond to secure against the risk that the Certificates may be subsequently recirculated.You are urged to contact the Transfer Agent immediately in order to receive further instructions, for a determination of whether you will need to post a bond and to permit timely processing of this documentation. See Instruction 11.
☐ | CHECK HERE IF TENDERED UNITS ARE BEING DELIVERED HEREWITH. |
☐ | CHECK HERE IF TENDERED UNITS ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH DTC AND COMPLETE THE FOLLOWING (NOTE THAT ONLY FINANCIAL INSTITUTIONS THAT ARE PARTICIPANTS IN THE SYSTEM OF DTC MAY DELIVER UNITS BY BOOK-ENTRY TRANSFER): |
Name of Tendering Institution: |
| |||||
DTC Account Number: |
| |||||
Transaction Code Number: |
|
PLEASE NOTE — IF YOU HOLD YOUR UNITS IN BOOK-ENTRY FORM AT DTC, YOU ARE NOT OBLIGATED TO SUBMIT THIS LETTER OF TRANSMITTAL BUT YOU MUST (1) SUBMIT AN AGENT’S MESSAGE AND (2) DELIVER YOUR UNITS INTO THE DEPOSITARY’S ACCOUNT AT DTC IN ACCORDANCE WITH THE PROCEDURES SETFORTH IN SECTION 3 OF THE OFFER TO PURCHASE IN ORDER TO TENDER YOURUNITS.FURTHER, IF THE BENEFICIAL OWNER OF THE TENDERED UNITS DOES NOT SUBMIT AN IRS FORMW-9, THE PAYMENT FOR SUCH TENDERED UNITS WILL BE SUBJECT TO TAX WITHHOLDING.
☐ | CHECK HERE IF TENDERED UNITS ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: |
Name(s) of Tendering Unitholder(s): |
| |||||
Window Ticket Number (if any): |
| |||||
Date of Execution of Notice of Guaranteed Delivery: |
| |||||
Name of Eligible Institution that Guaranteed Delivery: |
|
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ
ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to XTO Energy Inc. (the “Offeror”), the above described units of beneficial interest (the “Units”), in Hugoton Royalty Trust, a Texas express trust (the “Trust”), pursuant to the Offeror’s offer to purchase all of the outstanding Units, at a purchase price of $0.20 per Unit, net to the seller in cash, without interest, subject to any withholding of taxes, and upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 1, 2020, receipt of which is hereby acknowledged, and in this Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”). The Offer expires at one minute after 11:59 pm, New York City time, at the end on the day on Tuesday, April 28, 2020, unless extended by the Offeror as described in the Offer to Purchase (as it may be extended, the “Expiration Date”). The Offeror reserves the right to transfer or assign, in whole or from time to time in part, to one or more of its affiliates the right to purchase Units tendered pursuant to the Offer, but any such transfer or assignment will not relieve the Offeror of its obligations under the Offer or prejudice your rights to receive payment for Units validly tendered and accepted for payment.
Upon the terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms of any such extension or amendment), and effective upon acceptance for payment of the Units validly tendered herewith and not validly withdrawn prior to the Expiration Date (as defined in the Offer to Purchase) in accordance with the terms of the Offer, the undersigned hereby sells, assigns and transfers to or upon the order of the Offeror that accepts such Units all right, title and interest in and to all of the Units that are being tendered hereby (and any and all dividends, distributions, rights, other Units or other securities issued or issuable in respect thereof on or after the date hereof, other than regular cash distributions declared by the Trust having a record date prior to the date of transfer to the Offeror or its nominees or assignees of the Units tendered herewith as provided in the Offer to Purchase (collectively, other than such regular cash distributions, “Distributions”)) and irrevocably constitutes and appoints the Offeror the true and lawful agent andattorney-in-fact of the undersigned with respect to such Units (and any and all Distributions), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest in the Units tendered by this Letter of Transmittal), to (1) deliver such Units (and any and all Distributions) or transfer ownership of such Units (and any and all Distributions) on the account books maintained by DTC or otherwise held in book-entry form, together, in any such case, with all accompanying evidences of transfer and authenticity, to or upon the order of the Offeror, (2) present such Units (and any and all Distributions) for transfer on the books of the Trust and (3) receive all benefits and otherwise exercise all rights of beneficial ownership of such Units (and any and all Distributions), all in accordance with the terms and subject to the conditions of the Offer.
By executing this Letter of Transmittal, the undersigned hereby irrevocably appoints each of the designees of the Offeror theattorneys-in-fact and proxies of the undersigned, each with full power of substitution, (1) to vote at any meeting of the Trust’s unitholders or otherwise in such manner as each suchattorney-in-fact and proxy or its, his or her substitute, in its, his or her sole discretion deems proper, (2) to execute any written consent concerning any matter as each suchattorney-in-fact and proxy or its, his or her substitute, in its, his or her sole discretion deems proper, and (3) to otherwise act as each suchattorney-in-fact and proxy or its, his or her substitute, in its, his or her sole discretion deems proper, in each case, with respect to all of the Units (and any and all Distributions) tendered hereby and accepted for payment by the Offeror. This appointment will be effective if and when, and only to the extent that, the Offeror accepts such Units for payment pursuant to the Offer. This power of attorney and proxy are irrevocable and are granted in consideration of the acceptance for payment of such Units in accordance with the terms of the Offer. Such acceptance for payment will, without further action, revoke any prior powers of attorney and proxies granted by the undersigned at any time with respect to such Units (and any and all Distributions), and no subsequent powers of attorney, proxies, consents or revocations may be given by the undersigned with respect thereto (and, if given, will not be deemed effective). The Offeror reserves the right to require that, in order for the Units to be deemed validly tendered, immediately upon the Offeror’s acceptance for payment of such Units, the Offeror or its designees must be able to exercise full voting, consent and other rights with respect to such Units (and any and all Distributions), including voting at any meeting of the Trust’s unitholders.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer any and all of the Units tendered hereby (and any and all Distributions) and that, when the same are accepted for payment by the Offeror, the Offeror will acquire good, marketable and unencumbered title to such Units (and such Distributions), free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claims. The undersigned hereby represents and warrants that the undersigned is the registered owner of the Units, or the Certificate(s) have been endorsed to the undersigned in blank, or the undersigned is a participant in DTC whose name appears on a security position listing as the owner of the Units. The undersigned will, upon request, execute and deliver any additional documents deemed by Computershare Trust Company, N.A. (the “Depositary”) or the Offeror to be necessary or desirable to complete the sale, assignment and transfer of the Units tendered hereby (and any and all Distributions). In addition, the undersigned will remit and transfer promptly to the Offeror all Distributions in respect of any and all of the Units tendered hereby, accompanied by appropriate documentation of transfer, and, pending such remittance and transfer or appropriate assurance thereof, the Offeror will be entitled to all rights and privileges as owner of each such Distribution and may withhold the entire purchase price of the Units tendered hereby or deduct from such purchase price the amount or value of such Distribution as determined by the Offeror in its sole discretion.
All authority herein conferred or agreed to be conferred will not be affected by, and will survive the death or incapacity of the undersigned, and any obligation of the undersigned hereunder will be binding upon the heirs, executors, administrators, personal representatives, trustees in bankruptcy, successors and assigns of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned hereby acknowledges that delivery of any Certificate shall be effected, and risk of loss and title to such Certificate shall pass, only upon the proper delivery of such Certificate to the Depositary.
The undersigned unitholder hereby acknowledges that (1) the method of delivery of this Letter of Transmittal and all other required documents, including delivery through DTC, is at the option and risk of the tendering unitholder, and the delivery of all such documents will be deemed made (and the risk of loss and the title of Units will pass, subject to acceptance by the Offeror pursuant to the terms of the Offer) only when actually received by the Depositary (including, in the case of a book-entry transfer, receipt of a book-entry confirmation), and (2) this Letter of Transmittal will be of no force and effect in respect of Units tendered by such unitholder but validly withdrawn pursuant to the Offer.
The undersigned understands that tenders of Units pursuant to any one of the procedures described in Section 3 of the Offer to Purchase and in the Instructions hereto will constitute the undersigned’s acceptance of the terms and conditions of the Offer. The Offeror’s acceptance of such Units for payment will constitute a binding agreement between the undersigned and the Offeror upon the terms and subject to the conditions of the Offer. Without limiting the foregoing, if, prior to the Expiration Date, the Offeror increases the consideration being paid for Units accepted for payment pursuant to the Offer, such increased consideration will be paid to the undersigned notwithstanding the fact that a different price is stated in this Letter of Transmittal. The undersigned recognizes that under certain circumstances set forth in the Offer, the Offeror may not be required to accept for exchange any Units tendered hereby.
Unless otherwise indicated under “Special Payment Instructions,” please issue a check for the purchase price of all Units purchased and, if appropriate, return Certificates not tendered or accepted for payment in the name(s) of the registered holder(s) appearing above under “Description of Units Tendered.” Similarly, unless otherwise indicated under “Special Payment Instructions,” please mail the check for the purchase price of all Units purchased and, if appropriate, return any Certificates not tendered or not accepted for payment (and any accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing above under “Description of Units Tendered.” In the event that the box entitled “Special Payment Instructions” is completed, please issue the check for the purchase price of all Units purchased and, if appropriate, return any Certificates not tendered or not accepted for payment (and any accompanying documents, as appropriate) in the name(s) of, and deliver such check and, if appropriate, return any Certificates (and any accompanying documents, as appropriate) to, the person(s) so indicated. Unless otherwise indicated herein in the box entitled “Special Payment Instructions,” please credit any Units tendered herewith by book-entry transfer that are not accepted for payment
by crediting the account at DTC designated above. The undersigned recognizes that the Offeror has no obligation, pursuant to the “Special Payment Instructions,” to transfer any Units from the name of the registered holder thereof if the Offeror does not accept for payment any of the Units so tendered.
SPECIAL PAYMENT INSTRUCTIONS (See Instructions 1, 5, 6 and 7)
| SPECIAL DELIVERY INSTRUCTIONS (See Instructions 1, 5, 6 and 7)
| |||||||||||
CompleteONLYif the check is to be issued in the name of someone other than the undersigned. Issue to: | CompleteONLYif check is to be mailed to some address other than the address reflected above. Mail to: | |||||||||||
Name: |
| Name: |
| |||||||||
Address: |
| Address: |
| |||||||||
|
| |||||||||||
|
| |||||||||||
|
| |||||||||||
(Please also complete IRS FormW-9 or the appropriate IRS FormW-8, as applicable, AND see instructions regarding signature guarantee.)
| ☐ | Please check here if address change is permanent. |
YOU MUST SIGN IN THE BOX BELOW AND COMPLETE IRS FORMW-9 OR THE APPROPRIATE IRS FORMW-8
SIGNATURE(S) REQUIRED Signature(s) of Registered Holder(s) or Agent
| SIGNATURE(S) GUARANTEED (IF REQUIRED)
| |||||||||||
Must be signed by the registered holder(s) EXACTLY as name(s) appear(s) on Certificate(s) or in the applicable records for Units held in book-entry form in lieu of physical Certificates or on a security position listing or by a person authorized to become a registered holder of the Certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian,attorney-in-fact, officer for a corporation acting in a fiduciary or representative capacity, or other person, please set forth full title.See Instructions 1, 2 and 5.
| Unless the Units are tendered by the registered holder(s) of the Unit, or for the account of a participant in the Securities Transfer Agent’s Medallion Program (“STAMP”), Stock Exchange Medallion Program (“SEMP”) or New York Stock Exchange Medallion Signature Program (“MSP”) (an “Eligible Institution”), the signature(s) must be guaranteed by an Eligible Institution.See Instructions 1, 2 and 5. | |||||||||||
Registered Holder | — Authorized Signature | |||||||||||
Registered Holder | – Name of Firm | |||||||||||
Title, if any |
Address of Firm - Please Print | |||||||||||
Date: | ||||||||||||
Phone No.: | ||||||||||||
INSTRUCTIONS FOR SURRENDERING CERTIFICATES
(Please read carefully the instructions below)
1.Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal (a) if this Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Instruction 1, includes any participant in DTC’s systems whose name(s) appear(s) on a security position listing as the owner(s) of Units) of Units tendered herewith, unless such registered holder(s) has completed either the box entitled “Special Payment Instructions” on this Letter of Transmittal or (b) if such Units are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member of or participant in a recognized “Medallion Program” approved by the Securities Transfer Association Inc., including the Security Transfer Agents Medallion Program, the Stock Exchange Medallion Program and the New York Stock Exchange Medallion Signature Program, or any other “eligible guarantor institution,” as such term is defined in Rule17Ad-15 under the U.S. Securities Exchange Act of 1934, as amended (each, an “Eligible Institution”). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5.
2.Requirements of Tender. No alternative, conditional or contingent tenders will be accepted. In order for Units to be validly tendered pursuant to the Offer, one of the following procedures must be followed:
For Units held as physical certificates, the Certificates representing tendered Units, a properly completed and duly executed Letter of Transmittal, together with any required signature guarantees, and any other documents required by this Letter of Transmittal, must be received by the Depositary at one of its addresses set forth on the front page of this Letter of Transmittal before the Expiration Date.
For Units held in book-entry form, a properly completed and duly executed Letter of Transmittal, together with any required signature guarantees, or, in the case of Units held of record in book-entry form by a clearing corporation as nominee, an agent’s message in lieu of this Letter of Transmittal, and any other required documents, must be received by the Depositary at the appropriate address set forth on the front page of this Letter of Transmittal, and such Units must be delivered according to the book-entry transfer procedures (as set forth in Section 3 of the Offer to Purchase) and a timely confirmation of a book-entry transfer of Units into the Depositary’s account at DTC (a “Book-Entry Confirmation”) must be received by the Depositary, in each case before the Expiration Date.
Unitholders whose Certificates are not immediately available, or who cannot complete the procedure for delivery by book-entry transfer prior to the Expiration Date or who cannot deliver all other required documents to the Depositary prior to the Expiration Date, may tender their Units by properly completing and duly executing a notice of guaranteed delivery (a “Notice of Guaranteed Delivery”) pursuant to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) such tender must be made by or through an Eligible Institution, (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form made available by the Offeror, must be received by the Depositary prior to the Expiration Date and (iii) Certificates (or a Book-Entry Confirmation) evidencing all tendered Units, in proper form for transfer, in each case together with this Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees (or, in the case of book-entry transfer of Units held of record by a clearing corporation as nominee, an agent’s message in lieu of this Letter of Transmittal), and any other documents required by this Letter of Transmittal, must be received by the Depositary within two New York Stock Exchange trading days after the date of execution of such Notice of Guaranteed Delivery. A Notice of Guaranteed Delivery may be delivered by overnight courier or mailed to the Depositary and must include a guarantee by an Eligible Institution in the form set forth in the form of Notice of Guaranteed Delivery made available by the Offeror. In the case of Units held through DTC, the Notice of Guaranteed Delivery must be delivered to the Depositary by a participant by means of the confirmation system of DTC. Units tendered by the Notice of Guaranteed Delivery will be excluded from the calculation of the Minimum Condition, unless such Units and other required documents are received by the Depositary by the Expiration Date.
The method of delivery of Units, this Letter of Transmittal and all other required documents, including delivery through DTC, is at the election and risk of the tendering unitholder. Units will be deemed delivered (and the risk of loss of Certificates will pass) only when actually received by the Depositary (including, in the case of a book-entry transfer, by Book-Entry Confirmation). If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
No fractional Units will be purchased. By executing this Letter of Transmittal, the tendering unitholder waives any right to receive any notice of the acceptance for payment of Units.
3.Inadequate Space. If the space provided herein is inadequate, Certificate numbers, the number of Units represented by such Certificates and/or the number of Units tendered should be listed on a separate signed schedule attached hereto.
4.Partial Tenders (Not Applicable to Unitholders who Tender by Book-Entry Transfer). If fewer than all the Units represented by any Certificate delivered to the Depositary are to be tendered, fill in the number of Units which are to be tendered in the box entitled “Total Number of Units Tendered.” In such case, a new Certificate for the remainder of the Units represented by the old Certificate will be sent to the person(s) signing this Letter of Transmittal, unless otherwise provided in the appropriate box on this Letter of Transmittal, as promptly as practicable following the expiration or termination of the Offer. All Units represented by Certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated.
5.Signatures on Letter of Transmittal; Unit Powers and Endorsements.
(a)Exact Signatures. If this Letter of Transmittal is signed by the registered holder(s) of the Units tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the Certificates without alteration, enlargement or any change whatsoever.
(b)Joint Holders. If any of the Units tendered hereby are held of record by two or more persons, all such persons must sign this Letter of Transmittal.
(c)Different Names on Certificates. If any of the Units tendered hereby are registered in different names on different Certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of Certificates.
(d)Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Units tendered hereby, no endorsements of Certificates or separate unit powers are required unless payment of the purchase price is to be made, or Units not tendered or not purchased are to be returned, in the name of any person other than the registered holder(s). Signatures on any such Certificates or unit powers must be guaranteed by an Eligible Institution.
(e)Unit Powers. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Units tendered hereby, Certificates must be endorsed or accompanied by appropriate unit powers, in either case, signed exactly as the name(s) of the registered holder(s) appear(s) on the Certificates for such Units. Signature(s) on any such Certificates or unit powers must be guaranteed by an Eligible Institution. See Instruction 1.
(f)Evidence of Fiduciary or Representative Capacity. If this Letter of Transmittal or any Certificate or unit power is signed by a trustee, executor, administrator, guardian,attorney-in-fact, officer of a corporation or other legal entity or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Depositary of the authority of such person so to act must be submitted. Proper evidence of authority includes a power of attorney, a letter of testamentary or a letter of appointment. The signature may need to be guaranteed by an Eligible Institution.
6.Unit Transfer Taxes. If payment is to be made to any person other than the registered holder of the Units, or if surrendered Certificates are registered in the name of any person other than the person(s) signing the Letter of Transmittal, the amount of any transfer taxes (whether imposed on the registered holder or such person) payable as a result of the transfer to such person will be deducted from the payment for such securities if satisfactory evidence of the payment of such taxes, or exemption therefrom, is not submitted. Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Certificates listed in the Letter of Transmittal.
7.Special Payment and Delivery Instructions. If a check is to be issued for the purchase price of any Units tendered by this Letter of Transmittal in the name of, and, if appropriate, Certificates for Units not tendered or not accepted for payment are to be issued or returned to, any person(s) other than the signer of this Letter of Transmittal or if a check and, if appropriate, such Certificates are to be returned to any person(s) other than the person(s) signing this Letter of Transmittal or to an address other than that shown in this Letter of Transmittal, the appropriate boxes on this Letter of Transmittal must be completed. If Special Payment Instructions have been completed, an IRS FormW-9 or IRS FormW-8, as applicable, must also be completed for the person named therein, and that person will be considered the record owner.
8.Backup Withholding and FIRPTA Certification. Under the U.S. federal income tax laws, each tendering unitholder, and, if applicable, each other payee, that is a U.S. person must provide the Depositary with such unitholder’s or payee’s correct taxpayer identification number and certify that such unitholder or payee is not subject to such backup withholding by completing the IRS FormW-9 provided herewith. In general, if such unitholder or payee is an individual, the taxpayer identification number is the social security number of such individual. While certain unitholders or payees (including, generally,non-U.S. unitholders and domestic corporations) may be exempt from backup withholding and reporting requirements, such unitholders are required to establish this exemption by submitting to the Depositary the applicable certification.Non-U.S. persons must submit an IRS FormW-8, properly completed and signed under penalties of perjury, attesting to that unitholder’snon-U.S. status. An IRS FormW-8 can be obtained from the Depositary or the Internal Revenue Service (www.irs.gov/formspubs/index.html). A domestic corporation must submit to the Depositary an enclosed IRS FormW-9 with an applicable exempt payee code. The instructions to the enclosed IRS FormW-9 contain further information concerning backup withholding and instructions for completing the IRS FormW-9 (including how to obtain a taxpayer identification number if you do not have one and how to complete the IRS FormW-9 if Units are held in more than one name).
Failure to provide an IRS FormW-9 or the appropriate IRS FormW-8 will not, by itself, cause Units to be deemed invalidly tendered, but may require the Depositary to withhold 24% of the amount of any payments made pursuant to the Offer. If the unitholder or payee does not provide the Depositary with its correct taxpayer identification number, the unitholder or payee may also be subject to a $50 penalty imposed by the Internal Revenue Service. Backup withholding is not an additional U.S. federal income tax. Rather, the U.S. federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained provided that the required information is timely furnished to the Internal Revenue Service.Failure to complete and provide an IRS FormW-9 or the appropriate IRS FormW-8 may result in backup withholding of 24% of any payments made to you pursuant to the Offer.
Further, in accordance with the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”), if the beneficial owner of tendered Units does not provide the Offeror (or the Depositary as agent of the Offeror) a complete and properly executed IRS FormW-9 described above (or other certification satisfying the requirements of FIRPTA) certifying under penalties of perjury that such beneficial owner is a U.S. person, payments to, or on behalf of, such beneficial owner will be subject to withholding at a rate of 15% of the amount realized. However, if the Offeror (or the Depositary as agent of the Offeror) receives such certification, and neither the Offeror nor the Depositary has actual knowledge that such certification is inaccurate, no amounts in respect of FIRPTA will be withheld from the payment made by the Depositary to the unitholder with respect to such tendering beneficial owner.Failure to complete and provide a satisfactory IRS FormW-9 or alternativenon-foreign status certification (if applicable) will
result in FIRPTA withholding on payments made to you pursuant to the Offer. Unitholders are urged to consult their own tax advisors regarding the tax consequences of the Offer. See Section 5 of the Offer to Purchase.
9.Irregularities. All questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Units will be determined by the Offeror, in its sole discretion, which determination shall be final and binding on all parties. However, unitholders may challenge the Offeror’s determinations in a court of competent jurisdiction. The Offeror reserves the absolute right to reject any and all tenders determined by it not to be in proper form or the acceptance for payment of which may, in the opinion of its counsel, be unlawful. The Offeror also reserves the absolute right to waive any defect or irregularity in the tender of any Units of any particular unitholder, whether or not similar defects or irregularities are waived in the case of other unitholders. No tender of Units will be deemed to have been validly made until all defects and irregularities have been waived or cured within such time as the Offeror shall determine. None of the Offeror, the Depositary, the Information Agent or any other person will be under any duty to give notice of any defects or irregularities in tenders or incur any liability for failure to give any such notice. The Offeror’s interpretation of the terms and conditions of the Offer (including this Letter of Transmittal and the instructions hereto) will be final and binding.
10.Questions and Requests for Additional Copies. The Information Agent may be contacted at the address and telephone number set forth on the last page of this Letter of Transmittal for questions and/or requests for additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and other tender offer materials. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance. Such copies will be furnished promptly at the Offeror’s expense.
11.Lost, Stolen Destroyed or Mutilated Certificates. If any Certificate has been lost, stolen, destroyed or mutilated, the unitholder should promptly notify the Transfer Agent toll-free at (866)737-9819. The unitholder will then be instructed as to the steps that must be taken in order to replace such Certificates. You may be required to post a bond to secure against the risk that the Certificates(s) may be subsequently recirculated. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen certificates have been followed. You are urged to contact the Transfer Agent immediately in order to receive further instructions and for a determination of whether you will need to post a bond and to permit timely processing of this documentation. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed, mutilated or stolen Certificates have been followed.
Certificates evidencing tendered Units, or a Book-Entry Confirmation into the Depositary’s account at DTC, as well as this Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or, in the case of uncertificated Units held of record by a clearing corporation as nominee, an agent’s message, and any other documents required by this Letter of Transmittal, must be received before the Expiration Date, or the tendering unitholder must comply with the procedures for guaranteed delivery.
The Depositary for the Offer is:
If delivering by mail: | If delivering by courier: | |
Computershare Trust Company, N.A. Providence, Rhode Island 02940-3011 | Computershare Trust Company, N.A. Canton, Massachusetts 02021 |
Questions and requests for assistance may be directed to the Information Agent at its addresses and telephone numbers set forth below. Requests for copies of the Offer to Purchase, the related Letter of Transmittal, the Notice of Guaranteed Delivery and other materials related to the Offer may be directed to the Information Agent. Such copies will be furnished promptly at the Offeror’s expense. Unitholders may also contact brokers, dealers, commercial banks or trust companies for assistance concerning the Offer. The Offeror will not pay any fees or commissions to any broker or dealer or any other person (other than the Information Agent or the Depositary) for soliciting tenders of Units pursuant to the Offer.
The Information Agent for the Offer is:
1290 Avenue of the Americas, 9th Floor
New York, New York 10104
Unitholders, Banks and Brokers
Call Toll-Free: (800)676-0281
Email: hugoton@georgeson.com