Exhibit 4.7
LETTER OF TRANSMITTAL
OFFER TO EXCHANGE UP TO
$125,000,000 PRINCIPAL AMOUNT FLOATING RATE
SENIOR SECURED NOTES DUE 2009,
SERIES B AND GUARANTEES THEREOF FOR
ANY AND ALL OUTSTANDING
$125,000,000 PRINCIPAL AMOUNT FLOATING RATE SENIOR SECURED NOTES DUE 2009,
SERIES A AND GUARANTEES THEREOF
ABRAXAS PETROLEUM CORPORATION
Pursuant to the Offer to Exchange Dated December , 2004
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THE EXCHANGE OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON , 2005
UNLESS EXTENDED (THE "EXPIRATION TIME"). HOLDERS OF THE $125,000,000 FLOATING
RATE SENIOR Secured Notes due 2009, Series A ("OUTSTANDING NOTES"), MUST TENDER
THEIR OUTSTANDING NOTES ON OR PRIOR TO THE EXPIRATION TIME IN ORDER TO
PARTICIPATE IN THE EXCHANGE OFFER AND RECEIVE THE EXCHANGE NOTES.
IF YOU TENDER YOUR OUTSTANDING NOTES, YOUR TENDER MAY NOT BE WITHDRAWN EXCEPT
UNDER THE CIRCUMSTANCES DESCRIBED IN THE SECTION ENTITLED "The Series A/B
Exchange Offer--PROCEDURES FOR TENDERING OUTSTANDING NOTES--Withdrawal Rights"
OF THE OFFER TO EXCHANGE (AS IT MAY BE SUPPLEMENTED FROM TIME TO TIME) THAT
ACCOMPANIES THIS LETTER OF TRANSMITTAL (THE "OFFER").
HOLDERS THAT DESIRE TO PARTICIPATE IN THE EXCHANGE OFFER ("NOTEHOLDERS") MUST
TENDER THEIR OUTSTANDING NOTES BY DELIVERING THIS LETTER OF TRANSMITTAL OR MUST
CAUSE AN AGENT'S MESSAGE TO BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE
EXPIRATION TIME.
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The Exchange Agent for the Exchange Offer is:
U.S. Bank National Association
By Mail(Whether Certified or Registered): By Hand Delivery or Overnight Courier:
U.S. Bank National Association U.S. Bank National Association
60 Livingston Avenue 60 Livingston Avenue
St. Paul, MN 55107 St. Paul, MN 55107
Attn.: Specialized Finance Attn.: Specialized Finance
By Facsimile(For Eligible Institutions Only): Confirm by Telephone:
(651) 495-8158 (800) 934-6802
Attn: Specialized Finance
As set forth in the Offer to Exchange dated December , 2004 (as it may be
supplemented from time to time, the "Offer") of Abraxas Petroleum Corporation, a
Nevada corporation ("Abraxas" or the "Company"), this Letter of Transmittal (the
"Letter of Transmittal" and, together with the Offer, the "Exchange Offer") must
be used to tender the Outstanding Notes in response to the Company's offer to
exchange $125,000,000 principal amount of Floating Rate Senior Secured Notes due
2009, Series B (the "Exchange Notes"), for all Outstanding Notes tendered, if
(i) certificates representing Outstanding Notes are to be physically delivered
to the Exchange Agent herewith by such Noteholders; (ii) tender of Outstanding
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 under
the caption "The Series A/B Exchange Offer--Procedures for Tendering Outstanding
Notes--Valid Tender" in the Offer; or (iii) tender of Outstanding Notes is to be
made according to the guaranteed delivery procedures set forth under the caption
"The Series A/B Exchange Offer--Procedures for Tendering Outstanding
Notes--Guaranteed Delivery Procedures" in the Offer; and, in each case,
instructions are not being transmitted through the DTC Automated Tender Offer
Program ("ATOP").
Noteholders that are tendering by book-entry transfer to the Exchange
Agent's account at DTC can execute the tender through ATOP for which the
transaction will be eligible. DTC participants that are accepting the Exchange
Offer must transmit their acceptance to DTC, which will verify the acceptance
and execute a book-entry delivery to the Exchange Agent's account at DTC. DTC
will then send an agent's message to the Exchange Agent for its acceptance.
Delivery of the agent's message by DTC will satisfy the terms of the Exchange
Offer as to execution and delivery of a Letter of Transmittal by the participant
identified in the agent's message. DTC participants may also accept the Exchange
Offer by submitting a notice of guaranteed delivery through ATOP.
If a Noteholder desires to tender Outstanding Notes and (i) such
Outstanding Notes are not lost but are not immediately available, (ii) time will
not permit the Noteholder's Outstanding Notes or other required documents to
reach the Exchange Agent before the Expiration Time, or (iii) the procedures for
book-entry transfer cannot be completed on a timely basis, a tender may be
effected if the following conditions are satisfied:
o the tender is made by or through an Eligible Institution;
o prior to the Expiration Time, the Exchange Agent receives from
the Eligible Institution a properly completed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) substantially in the form the Company provides which
sets forth the name and address of the Noteholder and the amount
of the Outstanding Notes tendered; and
o a Letter of Transmittal (or a manually signed facsimile thereof),
properly completed and validly executed with any required
signature guarantees, or, in the case of a book-entry transfer,
an agent's message, together with certificates for all
Outstanding Notes in proper form for transfer (or a book-entry
confirmation with respect to all tendered Outstanding Notes), and
any other required documents are received by the Exchange Agent
within three business days after the date of execution of the
notice of guaranteed delivery. See Instruction 2.
The undersigned should complete, execute and deliver this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
Each capitalized term used and not defined herein shall have the meaning
ascribed to it in the Offer.
2
TENDER OF OUTSTANDING NOTES
/ / CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY
DELIVERY OF CERTIFICATES REPRESENTING THE OUTSTANDING NOTES TO THE
EXCHANGE AGENT.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
/ / CHECK HERE IF TENDERED OUTSTANDING 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__________________________________________
DTC Account Number ____________________________________________________
Transaction Code Number _______________________________________________
/ / CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT
AND COMPLETE THE FOLLOWING:
Name of Registered Owner(s) ___________________________________________
Date of Execution of Notice of Guaranteed Delivery ____________________
Name of Institution which Guaranteed Delivery _________________________
If Delivered By Book-Entry Transfer:
Name of Tendering Institution _________________________________________
DTC Account Number ____________________________________________________
Transaction Code Number _______________________________________________
3
DESCRIPTION OF OUTSTANDING NOTES TENDERED
(Must be completed. If space is insufficient, please attach a signed
list in the form below.)
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Name(s) and Address(es) of Outstanding Aggregate Principal Amount
Registered Holder(s) Note(s) Principal of Outstanding
(please print) Certificate Amount of Notes
Number(s)* Outstanding Tendered**
Notes Held
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* Need not be completed by Book-Entry Holders
** Unless otherwise specified, the aggregate principal amount of all Outstanding
Notes held shall be deemed tendered.
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PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tender(s) to Abraxas, upon the terms and subject to
the conditions set forth in the Offer, receipt of which is hereby acknowledged,
and in accordance with this Letter of Transmittal, the principal amount of
Outstanding Notes indicated in the table above entitled "Description of
Outstanding Notes Tendered" under the column heading "Principal Amount of
Outstanding Notes Tendered" in exchange for the Exchange Notes. The Exchange
Notes evidence the same debt as the Outstanding Notes (which they replace).
Capitalized terms used but not defined herein have the respective meanings given
such terms in the Offer. The undersigned understand(s) that tender of
Outstanding Notes may not be withdrawn except under the circumstances described
in the Offer.
Subject to, and effective upon, the acceptance for purchase of, and payment
for, the principal amount of Outstanding Notes tendered herewith in accordance
with the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby sell(s), assign(s) and transfer(s) to, or upon the order of,
the Company, all right, title and interest in and to all of the Outstanding
Notes tendered hereby. The undersigned hereby irrevocably constitute(s) and
appoint(s) the Exchange Agent as true and lawful agent and attorney-in-fact
(with full knowledge that the Exchange Agent also acts as the agent of the
Company) with respect to such Outstanding Notes, with full powers of
substitution and revocation (such power of attorney being deemed to be an
irrevocable power coupled with an interest) to (i) present such Outstanding
Notes and all evidences of transfer and authenticity to, or transfer ownership
of, such Outstanding Notes on the account books maintained by DTC to, or upon
the order of, the Company, (ii) present such Outstanding Notes for transfer of
ownership on the books of the Company, and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Outstanding Notes,
all in accordance with the terms and conditions of the Exchange Offer as
described in the Offer.
In the event of a termination of the Exchange Offer, the Outstanding Notes
tendered pursuant to the Exchange Offer will be returned to the tendering
Noteholders promptly (or, in the case of Outstanding Notes tendered by
book-entry transfer, such Outstanding Notes will be credited to the account
maintained at DTC from which such Outstanding Notes were delivered). If the
Company reduces the principal amount of the Exchange Notes to be exchanged for
the Outstanding Notes, reduces the principal amount of the notes subject to the
Exchange Offer or is otherwise required by law to permit withdrawal, the Company
will disseminate additional Exchange Offer materials and extend such Exchange
Offer to the extent required by law.
The undersigned understand(s) that tender of Outstanding Notes pursuant to
any of the procedures described in the Offer and in the instructions hereto and
acceptance of such Outstanding Notes by the Company will constitute a binding
agreement between the undersigned and the Company upon the terms and subject to
the conditions of the Exchange Offer. For purposes of the Exchange Offer, the
undersigned understand(s) that validly tendered Outstanding Notes (or
defectively tendered Outstanding Notes with respect to which the Company has
waived such defect, or has caused such defect to be waived), will be deemed to
have been accepted by the Company if, as and when the Company gives oral or
written notice thereof to the Exchange Agent.
The undersigned hereby represent(s) and warrant(s) that it has full
power and authority to tender, exchange, sell, assign and transfer the
Outstanding Notes tendered hereby, and that when such tendered Outstanding Notes
are accepted for purchase and payment by the Company, the Company will acquire
good, marketable and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claim,
right or proxy. 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 sale, exchange, assignment and transfer of the
Outstanding Notes tendered hereby.
5
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall not be affected by, and shall survive, the undersigned's death
or incapacity, and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, trustees in bankruptcy, personal and
legal representatives, successors and assigns of the undersigned.
The undersigned understand(s) that the delivery and surrender of any
Outstanding Notes is not effective, and the risk of loss of the Outstanding
Notes does not pass to the Exchange Agent, until receipt by the Exchange Agent
of this Letter of Transmittal (or a manually signed facsimile hereof), properly
completed and duly executed, together with all accompanying evidences of
authority and any other required documents in form satisfactory to the Company.
All questions as to the form of all documents and the validity (including time
of receipt) and acceptance of tenders and withdrawals will be determined by the
Company, in its sole discretion, which determination shall be final and binding.
For purposes of the Exchange Offer, the Company will be deemed to have accepted
validly tendered Outstanding Notes if and when the Company gives notice to the
Exchange Agent.
The undersigned understand(s) that notwithstanding any other provisions of
the Exchange Offer to the contrary, delivery of the Exchange Notes for
Outstanding Notes accepted for tender pursuant to the Exchange Offer will in all
cases be made only after timely receipt by the Exchange Agent of (a)
certificates for (or a timely book-entry confirmation with respect to) such
Outstanding Notes, (b) a Letter of Transmittal (or a manually signed facsimile
thereof), properly completed and validly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an agent's message, and
(c) any other documents required by the applicable Letter of Transmittal and the
instructions thereto. Accordingly, tendering Noteholders whose certificates for
Outstanding Notes or book-entry confirmation with respect to such Outstanding
Notes are actually received by the Exchange Agent after the Expiration Time may
be paid later than other tendering Noteholders. Under no circumstances will
interest be paid on the Exchange Notes to be paid by the Company because of any
delay in making such delivery or otherwise.
Unless otherwise indicated herein under "Special Issuance/Delivery
Instructions," the undersigned hereby request(s) that the Exchange Notes and any
Outstanding Notes representing principal amounts not tendered or not accepted
for purchase be issued in the name(s) of, and delivered to, the undersigned at
the address indicated under "Description of Outstanding Notes Tendered" above
(and in the case of Outstanding Notes tendered by book-entry transfer, by credit
to the account of DTC).
In the event that the "Special Issuance/Delivery Instructions" box is
completed, the undersigned hereby request(s) that the Exchange Notes and any
Outstanding Notes representing principal amounts not tendered or not accepted
for purchase be issued in the name(s) of, and be delivered to, the person(s) at
the address(es) therein indicated. The undersigned recognize(s) that the Company
has no obligation pursuant to the "Special Issuance/Delivery Instructions" box
to transfer any Outstanding Notes from the names of the registered Noteholder(s)
thereof if the Company does not accept for purchase any of the principal amount
of such Outstanding Notes so tendered.
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SIGNATURES
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Signature guaranteed by: Dated:_______________________________, 200__
(See Instruction 1)
__________________________________ ____________________________________________
Authorized Signature Signature of Noteholder or Authorized
Representative (See Instruction 1)
__________________________________ ____________________________________________
Name of Eligible Institution Name of Noteholder (please print or type)
(please print or type)
__________________________________ ____________________________________________
Address (please print or type) Name of Authorized Representative,
if applicable
(please print or type)
__________________________________ ____________________________________________
City, State/Province, Country, Area Code and Telephone No.
Postal Code (please print or type) (please print or type)
____________________________________________
Social Insurance Number or Taxpayer
Identification Number or Social Security
Number of U.S. Resident
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SPECIAL ISSUANCE/DELIVERY INSTRUCTIONS
SPECIAL ISSUANCE/DELIVERY SPECIAL ISSUANCE/DELIVERY
INSTRUCTIONS INSTRUCTIONS
(See Instruction 1, 4, 5 and 6) (See Instruction 1, 4, 5 and 6)
To be completed ONLY in Exchange Notes To be completed ONLY if Exchanbe Notes
or Outstanding Notes representing or Outstanding Notes representing
principal amounts not tendered or not principal amounts not tendered or not
accepted for purchase be issued in the accepted for purchase be sent to someone
name of, or transferred to, someone other than the undersigned or to the
other than the undersigned, Issue/ undersigned at an adderss other than
transfer to: that appearing under "Description of
Outstanding Notes Tendered" above, or
are to be held by the Exchange Agent for
Name:________________________ pick-up by the undersigned or by any
(pleae print) person designated by the undersigned
in writing.
Address:_____________________ Send to:
_____________________________
_____________________________
(include postal code) Name:___________________________
(please print)
U.S. Residents/Citizens must
provide their Social Security Address:________________________
Number or Tax Payer Identification
Number here: ________________________
________________________
(include postal code)
__________________________________
DEPOSIT PURSUANT TO NOTICE OF
GUARANTEED DELIVERY (See Instruction 1) [ ] Hold for pick-up at the
office at which the Tendered
[ ] Check here only if Outstanding Notes Notes were deposited, against
are being delivered pursuant to a Notice Counter receipt.
of Guaranteed Delivery previously sent
to the Exchange Agent and complete the
following:
Name(s) of Registered Holder(s):
________________________________
Date of Execution of Notice of Guaranteed
Delivery:
________________________________
Name of Eligible Institution which
Guaranteed Delivery:
_________________________________
8
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Signature Guarantees. Signatures on this Letter of Transmittal must be
guaranteed by an Eligible Institution, unless the Outstanding Notes tendered
hereby are tendered by a registered Noteholder (or by a participant in DTC whose
name appears on a security position listing as the owner of such Outstanding
Notes) that has not completed any of the boxes entitled "Special
Issuance/Delivery Instructions" on this Letter of Transmittal or for the account
of an Eligible Institution. If the Outstanding Notes are registered in the name
of a person other than the signer of this Letter of Transmittal or if
Outstanding Notes not accepted for payment or not tendered are to be returned to
a person other than the registered Noteholder, then the signatures on this
Letter of Transmittal accompanying the tendered Outstanding Notes must be
guaranteed by an Eligible Institution as described above. See Instruction 4.
2. Delivery of Letter of Transmittal and Outstanding Notes. This Letter of
Transmittal is to be completed by Noteholders if (i) certificates representing
Outstanding Notes are to be physically delivered to the Exchange Agent herewith
by such Noteholders; (ii) tender of Outstanding Notes is to be made by
book-entry transfer to the Exchange Agent's account at DTC pursuant to the
procedures set forth under the caption "The Series A/B Exchange
Offer--Procedures for Tendering Outstanding Notes--Valid Tender" in the Offer;
or (iii) tender of Outstanding Notes is to be made according to the guaranteed
delivery procedures set forth under the caption "The Series A/B Exchange
Offer--Procedures for Tendering Outstanding Notes--Guaranteed Delivery
Procedures" in the Offer; and, in each case instructions are not being
transmitted through ATOP. All physically delivered Outstanding Notes, or a
confirmation of a book-entry transfer into the Exchange Agent's account at DTC
of all Outstanding Notes delivered electronically, as well as a properly
completed and duly executed Letter of Transmittal (or manually signed 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 prior to
the Expiration Time, or the tendering Noteholder must comply with the guaranteed
delivery procedures set forth below. Delivery of documents to DTC or the Company
does not constitute delivery to the Exchange Agent.
If a Noteholder desires to tender the Outstanding Notes pursuant to the
Exchange Offer and (i) the Noteholder's Outstanding Notes are not lost but are
not immediately available, (ii) time will not permit the Noteholder's
Outstanding Notes or other required documents to reach the Exchange Agent before
the Expiration Time, or (iii) the procedures for book-entry transfer cannot be
completed, on or prior to the Expiration Time, then such Noteholder must tender
such Outstanding Notes pursuant to the guaranteed delivery procedures set forth
under the caption "The Series A/B Exchange Offer--Procedures for Tendering
Outstanding Notes--Guaranteed Delivery Procedures" in the Offer. Pursuant to
such procedures (i) such tender must be made by or through an Eligible
Institution, (ii) the Exchange Agent must receive from the Eligible Institution
a properly completed Notice of Guaranteed Delivery (by telegram, telex,
facsimile transmission, mail or hand delivery), substantially in the form
provided by the Company, which sets forth the name and address of the Noteholder
and the amount of the Outstanding Notes tendered, prior to the Expiration Time,
and (iii) the Exchange Agent must receive a Letter of Transmittal (or a manually
signed facsimile thereof), properly completed and validly executed with any
required signature guarantees, or, in the case of a book-entry transfer, an
agent's message, together with certificates for all Outstanding Notes in proper
form for transfer (or a book-entry confirmation with respect to all tendered
Outstanding Notes), and any other required documents within three business days
after the date of execution of the Notice of Guaranteed Delivery.
The method of delivery of this Letter of Transmittal, the Outstanding Notes
and all other required documents, including delivery through DTC and any
acceptance of agent's message delivered through ATOP, is at the option and risk
of the tendering Noteholder. Instead of delivery by mail, we recommend that the
undersigned use(s) an overnight or hand delivery service. If delivery is by
mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed for such documents
to reach the Exchange Agent prior to the Expiration Time. Except as otherwise
provided in this Instruction 2, delivery will be deemed made only when actually
received by the Exchange Agent.
9
No alternative, conditional or contingent tenders will be accepted. All
tendering Noteholders, by execution of this Letter of Transmittal (or a
facsimile thereof), waive any right to receive any notice of the acceptance of
their Outstanding Notes for payment.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the principal amount represented by Outstanding Notes
should be listed on a separate signed schedule attached hereto.
4. Signatures on Letter of Transmittal, Instruments of Transfer and
Endorsements. If this Letter of Transmittal is signed by the registered
Noteholder(s) of the Outstanding Notes tendered hereby, the signature(s) must
correspond with the name(s) as written on the face of the certificate(s) without
alteration, enlargement or any change whatsoever. If this Letter of Transmittal
is signed by a participant in DTC whose name is shown as the owner of the
Outstanding Notes tendered hereby, the signature must correspond with the name
shown on the security position listing as the owner of the Outstanding Notes.
If any of the Outstanding Notes tendered hereby are registered in the name
of two or more Noteholders, all such Noteholders must sign this Letter of
Transmittal. If any of the Outstanding Notes tendered hereby are registered in
different names on several certificates, it will be necessary to complete, sign
and submit as many separate Letters of Transmittal as there are different
registrations of certificates.
If this Letter of Transmittal or any Outstanding Notes or instrument of
transfer is signed by a trustee, executor, administrator, guardian,
attorney-in-fact, agent, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person should so indicate when
signing, and proper evidence satisfactory to the Company of such person's
authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered Noteholders of
the Outstanding Notes listed and transmitted hereby, no endorsements of
Outstanding Notes or separate instruments of transfer are required unless
payment is to be made, or Outstanding Notes not tendered or purchased are to be
issued, to a person other than the registered Noteholders, in which case
signatures on such Outstanding Notes or instruments of transfer must be
guaranteed by a recognized member of the Medallion Signature Guarantee Program.
If this Letter of Transmittal is signed other than by the registered
Noteholders listed, the Outstanding Notes must be endorsed or accompanied by
appropriate instruments of transfer, in either case signed exactly as the name
or names of the registered Noteholders appear on the Outstanding Notes and
signatures on such Outstanding Notes or instruments of transfer are required and
must be guaranteed by an Eligible Institution.
5. Special Issuance and Delivery Instructions. If certificates for
unpurchased or untendered Outstanding Notes are to be issued in the name of a
person other than the signer of this Letter of Transmittal, or if such
Outstanding Notes are to be returned to someone other than the signer of this
Letter of Transmittal or to an address other than that shown above, the
appropriate "Special Issuance/Delivery Instructions" boxes on this Letter of
Transmittal should be completed. All Outstanding Notes tendered by book-entry
transfer and not accepted for payment will be returned by crediting the account
at DTC designated above as the account for which such Outstanding Notes were
delivered or by sending certificates for such Outstanding Notes to the tendering
Noteholder, as applicable.
6. Transfer Taxes. Except as set forth in this Instruction 6, the Company
will pay or cause to be paid any transfer taxes with respect to the transfer and
sale of Outstanding Notes to it, or to its order, pursuant to the Exchange
Offer. If payment of the Exchange Notes is to be made to, or if Outstanding
Notes not tendered or purchased are to be registered in the name of, any persons
other than the registered owners, or if tendered Outstanding Notes are
registered in the name of any persons other than the persons signing this Letter
of Transmittal, the amount of any transfer taxes (whether imposed on the
registered Noteholder or such other person) payable on account of the transfer
to such other person shall be deducted from the Exchange Notes unless
satisfactory evidence of the payment of such taxes or exemption therefrom is
submitted.
10
7. Waiver of Conditions. The conditions of the Exchange Offer may be
amended or waived by the Company, in whole or in part, at any time and from time
to time in the Company's sole discretion, in the case of any Outstanding Notes
tendered.
8. Substitute Form W-9. Each tendering Noteholder (or other payee) is
required to provide the Exchange Agent with a correct taxpayer identification
number ("TIN"), generally the Noteholder's Social Security or federal employer
identification number, and with certain other information, on Substitute Form
W-9, which is provided under "Important Tax Information" below, and to certify
that the Noteholder (or other payee) is not subject to backup withholding.
Failure to provide the information on the Substitute Form W-9 may subject the
tendering Noteholder (or other payee) to a $50 penalty imposed by the Internal
Revenue Service and 28% federal income tax backup withholding on the payment of
the Exchange Notes. The box in Part 3 of the Substitute Form W-9 may be checked
if the tendering Noteholder (or other payee) has not been issued a TIN and has
applied for a TIN or intends to apply for a TIN in the near future. If the box
in Part 3 is checked and the Exchange Agent is not provided with a TIN by the
time of payment, the Exchange Agent will withhold 28% on all such payments of
the Exchange Notes until a TIN is provided to the Exchange Agent.
9. Requests for Assistance or Additional Copies. Any questions or requests
for assistance or additional copies of the Offer, this Letter of Transmittal or
the Notice of Guaranteed Delivery, may be directed to the Exchange Agent at the
telephone number and location listed above. A Noteholder may also contact such
Noteholder's broker, dealer, commercial bank or trust company or nominee for
assistance concerning the Exchange Offer.
IMPORTANT: This Letter of Transmittal (or a facsimile hereof), together
with Outstanding Notes and all other required documents or the Notice of
Guaranteed Delivery, must be received by the Exchange Agent at or prior to the
Expiration Time in order to receive the Exchange Notes.
IMPORTANT TAX INFORMATION
Under federal income tax law, a Noteholder whose tendered Outstanding Notes
are accepted for payment or exchange is required to provide the Exchange Agent
with such Noteholder's current TIN on Substitute Form W-9 below. If such
Noteholder is an individual, the TIN is his or her Social Security number. If
the Exchange Agent is not provided with the correct TIN, the Noteholder or other
payee may be subject to a $50 penalty imposed by the Internal Revenue Service.
In addition, any Exchange Notes paid to such Noteholder or other payee with
respect to Outstanding Notes pursuant to the Exchange Offer may be subject to
28% backup withholding tax.
Certain Noteholders (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, that Noteholder must submit to the Exchange Agent a properly
completed Internal Revenue Service Form W-8BEN, Certificate of Foreign Status of
Beneficial Owner for United States Tax Withholding, (a "Form W-8"), signed under
penalties of perjury, attesting to that individual's exempt status. A Form W-8
can be obtained from the Exchange Agent.
If backup withholding applies, the Exchange Agent is required to withhold
28% of any Exchange Notes paid to the Noteholder or other payee. Backup
withholding is not an additional 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.
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Purpose of Substitute Form W-9
To prevent backup withholding on any Exchange Notes paid to a Noteholder or
other payee with respect to Outstanding Notes purchased pursuant to the Exchange
Offer, the Noteholder is required to notify the Exchange Agent of the
Noteholder's current TIN (or the TIN of any other payee) by completing the form
below, certifying that the TIN provided on Substitute Form W-9 is correct (or
that such Noteholder is awaiting a TIN), and that (i) the Noteholder has not
been notified by the Internal Revenue Service that the Noteholder is subject to
backup withholding as a result of failure to report all interest or dividends or
(ii) the Internal Revenue Service has notified the Noteholder that the
Noteholder is no longer subject to backup withholding.
What Number to Give the Exchange Agent
The Noteholder is required to give the Exchange Agent the TIN (e.g., Social
Security number or Employer Identification Number) of the record owner of the
Outstanding Notes.
Certificate of Awaiting Taxpayer Identification Number
If the tendering Noteholder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future, check the box
"Awaiting TIN" provided in Part 2 on Substitute Form W-9, sign and date the form
and the Certificate of Awaiting Taxpayer Identification Number and return them
to the Exchange Agent. If such certificate is completed and the Exchange Agent
is not provided with the TIN within 60 days, the Exchange Agent will withhold
28% of all payments made thereafter until a TIN is provided to the Exchange
Agent.
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PAYER'S NAME: U.S. BANK NATIONAL ASSOCIATION
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SUBSTITUTE Part 1--PLEASE PROVIDE YOUR Social Security Number
Form W-9 TIN IN THE BOX AT RIGHT AND
Department of the Treasury CERTIFY BY SIGNING AND OR
Internal Revenue Service AND DATING BELOW. Employer Identification
Number
Payor's Request for Taxpayer
Identification Number ("TIN")
and Certification
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Name as shown on account (if joint, list first and
circle name of the person or entity whose number you
enter above.
Name (please print)_________________________________
Address_____________________________________________
____________________________________________________
City State Zip Code
Part 2--Awaiting TIN ?
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Part 3--CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT (1) the
number shown on this form is my correct TIN (or a TIN has not been issued to me
but I have mailed or delivered an application to receive a TIN or intend to do
so in the near future), (2) I am not subject to backup withholding because I am
exempt from backup withholding, 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, and (3) all other information
provided on this form is true, correct and complete.
Signature________________________________________ Date_________________________
You must cross out item (2) above if you have been notified by the IRS that you
are currently subject to backup withholding because of under-reported interest
or dividends on your tax return and you have not been advised by the IRS that
such backup withholding has been terminated.
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FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECKED THE BOX IN PART 2 OF SUBSTITUTE FORM W-9
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CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under the 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 an application in the near future. I understand that
if I do not provide a taxpayer identification number within sixty (60) days, 28%
of all reportable payments made to me thereafter will be withheld until I
provide a number.
______________________________________ ________________________
Signature Date
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<Page>
Exhibit 4.8
NOTICE OF GUARANTEED DELIVERY
OFFER TO EXCHANGE UP TO
$125,000,000 PRINCIPAL AMOUNT FLOATING RATE
SENIOR SECURED NOTES DUE 2009,
SERIES B AND GUARANTEES THEREOF FOR
ANY AND ALL OUTSTANDING
$125,000,000 PRINCIPAL AMOUNT FLOATING RATE SENIOR SECURED NOTES DUE 2009,
SERIES A AND GUARANTEES THEREOF
ABRAXAS PETROLEUM CORPORATION
Pursuant to the Offer to Exchange
Dated December , 2004
The Exchange Agent for the Exchange Offer is: U.S. Bank National Association
By Mail (Whether Certified or Registered): Hand Delivery or Overnight Courier:
U.S. Bank National Association U.S. Bank National Association
60 Livingston Avenue 60 Livingston Avenue
St. Paul, MN 55107 St. Paul, MN 55107
Attn.: Specialized Finance Attn.: Specialized Finance
By Facsimile(For Eligible Institutions Only): Confirm by Telephone:
(651) 495-8158 (800) 934-6802
Attn: Specialized Finance
Delivery of this Notice of Guaranteed Delivery (the "Notice") to an
address, or transmission via facsimile, other than as set forth above will not
constitute a valid delivery.
As set forth in the Offer to Exchange dated December , 2004 (as it may be
supplemented from time to time, the "Offer") of Abraxas Petroleum Corporation, a
Nevada corporation ("Abraxas" or the "Company"), that accompanies this Notice,
and in the related Letter of Transmittal (the "Letter of Transmittal" and,
together with the Offer, the "Exchange Offer"), this Notice must be used to
accept the Company's offer to exchange $125,000,000 principal amount Floating
Rate Senior Secured Notes due 2009, Series B ("Exchange Notes"), for all
outstanding Floating Rate Senior Secured Notes due 2009, Series A (the
"Outstanding Notes"), subject to the terms and conditions of the Exchange Offer,
if (i) the Outstanding Notes are not lost, but are not immediately available,
(ii) time will not permit the Outstanding Notes or other required documents to
reach the Exchange Agent at or before 12:00 Midnight, New York City Time, on ,
2005 (the "Expiration Time"), or (iii) the procedures for book-entry transfer
cannot be completed before the Expiration Time.
This Notice must be delivered by an Eligible Institution by telegram,
telex, facsimile transmission, mail or hand delivery to the Exchange Agent as
set forth above at or before the Expiration Time. See the section entitled "The
Series A/B Exchange Offer--Procedures for Tendering Outstanding
Notes--Guaranteed Delivery Procedures" in the Offer.
This Notice is not to be used to guarantee signatures. If a signature on
the Letter of Transmittal is required to be guaranteed by an Eligible
Institution under the instructions to the Letter of Transmittal, such signature
guarantee must appear in the applicable space provided in the Letter of
Transmittal.
1
The terms and conditions used in the accompanying Offer are
incorporated by reference into and form an integral part of this Notice. Each
capitalized term used and not defined herein shall have the meaning ascribed to
it in the Offer.
2
Ladies and Gentlemen:
The undersigned hereby tender(s) to the Company, upon the terms and subject
to the conditions set forth in the Offer and the Letter of Transmittal (receipt
of which is hereby acknowledged), the principal amount of the Outstanding Notes
specified below, pursuant to the guaranteed delivery procedures set forth under
the section entitled "The Series A/B Exchange Offer--Procedures for Tendering
Outstanding Notes--Guaranteed Delivery Procedures" in the Offer.
The undersigned understand(s) that the tender of Outstanding Notes may not
be withdrawn except under the circumstances described in the Offer. In the event
of a termination of the Exchange Offer, the Outstanding Notes tendered pursuant
to the Exchange Offer will be returned to the tendering Noteholders promptly
(or, in the case of Outstanding Notes tendered by book-entry transfer, such
Outstanding Notes will be credited to the account maintained at DTC from which
such Outstanding Notes were delivered).
The undersigned understand(s) that exchange by the Exchange Agent of
Exchange Notes for Outstanding Notes tendered and accepted for payment pursuant
to the Exchange Offer will be made only after timely receipt by the Exchange
Agent of such Outstanding Notes, or Book-Entry Confirmation of the transfer of
such Outstanding Notes into the Exchange Agent's account at DTC, and a Letter of
Transmittal (or facsimile thereof) with respect to such Outstanding Notes
properly completed and duly executed with any required signature guarantees and
any other documents required by the Letter of Transmittal or a properly
transmitted agent's message.
All authority conferred or agreed to be conferred by this Notice shall not
be affected by, and shall survive, the death or incapacity of the undersigned,
and every obligation of the undersigned under this Notice shall be binding upon
the heirs, executors, administrators, trustees in bankruptcy, personal and legal
representatives, successors and assigns of the undersigned. Photocopies of this
Notice may be used if multiples are required.
DESCRIPTION OF OUTSTANDING NOTES TENDERED
(Must be completed. If space is insufficient, please attach a signed
list in the form below.)
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Outstanding Note(s) Aggregate Principal
Name(s) and Address(es) of Registered Holder(s) Certificate Number(s)* Principal Amount Amount of
(please print) of Outstanding Outstanding
Notes Notes
Tendered**
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- ------------------------------------------------- ------------------------- ------------------ ----------------
- -------------------------------------------------- ------------------------- ------------------ ----------------
- -------------------------------------------------- ------------------------- ------------------ ----------------
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* Need not be completed by Book-Entry Holders.
** Unless otherwise specified, it will be assumed that the entire aggregate
principal amount represented by the Outstanding Notes described above is being
tendered.
3
SIGNATURES
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-----------------------------------------------------
Signature of Holder or Authorized Representative
-----------------------------------------------------
Name of Holder
(please print or type)
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Name of Authorized Representative, if applicable
(please print or type)
-----------------------------------------------------
Area Code and Telephone No.
(please print or type)
-----------------------------------------------------
Social Insurance Number or Taxpayer Identification
Number or Social Security Number of U.S. Resident
Dated:___________________, 200_
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This Notice must be signed by the Noteholder(s) exactly as their name(s)
appear on certificate(s) for Outstanding Notes or, if tendered by a participant
in DTC, exactly as such participant's name appears on a security position
listing as the owner of Outstanding Notes, or by person(s) authorized to become
Noteholder(s) by endorsements and documents transmitted with this Notice. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer or other person acting in a fiduciary or representative capacity, such
person must provide the following information:
Name(s):_________________________________________________________________
_________________________________________________________________________
Capacity:________________________________________________________________
Address(es):_____________________________________________________________
_________________________________________________________________________
DO NOT SEND OUTSTANDING NOTES WITH THIS FORM. OUTSTANDING NOTES SHOULD BE SENT
TO THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED
LETTER OF TRANSMITTAL.
4
GUARANTEE
(Not To Be Used for Signature Guarantee)
The undersigned, a recognized member of the Medallion Signature Guarantee
Program or any other "eligible guarantor institution" (each, an "Eligible
Institution"), as such term is defined in Rule 17Ad-15 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), hereby (i)
represents that the above-named persons are deemed to own the Outstanding Notes
tendered hereby within the meaning of Rule 14e-4, as promulgated under the
Exchange Act ("Rule 14e-4"), (ii) represents that such tender of Outstanding
Notes complies with Rule 14e-4, and (iii) guarantees that the Outstanding Notes
tendered hereby are in proper form for transfer (pursuant to the procedures set
forth in the Offer under the caption "The Series A/B Exchange Offer--Procedures
for Tendering Outstanding Notes--Guaranteed Delivery Procedures"), together with
a properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantee and any other documents
required by the Letter of Transmittal or a properly transmitted agent's message,
will be received by the Exchange Agent at one of its addresses set forth above
within two business days after the date of execution hereof.
The Eligible Institution that completes this Notice must communicate the
guarantee to the Exchange Agent and must deliver the Letter of Transmittal or
agent's message and Outstanding Notes to the Exchange Agent within the time
period shown herein. Failure to do so could result in a financial loss to such
Eligible Institution.
You must complete this Notice
___________________________________________________
Name of Eligible Institution (please print or type)
___________________________________________________
Authorized Signature
___________________________________________________
Name and Title of Authorized Signatory
(please print or type)
___________________________________________________
Address (please print or type)
___________________________________________________
City, State / Province, Country and Postal Code
(please print or type)
___________________________________________________
Area Code and Telephone Number
Date:____________________________ , 200_
5