EXHIBIT 99.1
LETTER OF TRANSMITTAL
XM SATELLITE RADIO INC.
Offer To Exchange XM Satellite Radio Inc.'s
14% Senior Secured Notes due 2010
That Have Been Registered Under the Securities Act of 1933
For Any and All of XM Satellite Radio Inc.'s
14% Senior Secured Notes due 2010
Pursuant to the Prospectus Dated ________, 2000
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The Exchange Offer and withdrawal rights will expire at 5:00 P.M., New York City
time, on _______, 2000, unless the Exchange Offer is extended.
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The Exchange Agent for the Exchange Offer is:
United States Trust Company of New York
By Mail: By Hand before 4:30
p.m.:
United States Trust United States Trust
Company of New York Company of New York
P.O. Box 843 111 Broadway
Cooper Station New York, New York
New York, New York 10006
10276 Attn: Lower Level
Attn: Corporate Corporate Trust
Trust Services Window
By Overnight Courier
By Facsimile: and By Hand after
4:30 p.m.:
(212) 780-0592 United States Trust
Attn: Customer Service Company of New York
Confirm by telephone: 770 Broadway, 13/th/ Floor
(800) 548-6565 New York, New York
10003
Delivery of this Letter of Transmittal to an address other than as set forth
above or transmission of this Letter of Transmittal via facsimile to a number
other than as set forth above does not constitute a valid delivery. The
instructions contained herein should be read carefully before this Letter of
Transmittal is completed. Capitalized terms used but not defined herein shall
have the same meaning given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old Notes (as
defined below) either if Old Notes are to be forwarded herewith or if tenders of
Old Notes are to be made by book-entry transfer to an account maintained by
United States Trust Company of New York (the "Exchange Agent") at The Depository
Trust Company ("DTC") pursuant to the procedures set forth in "The Exchange
Offer -- Procedures for Tendering Outstanding Notes" in the Prospectus.
Delivery of documents to DTC does not constitute delivery to the
Exchange Agent.
Note Signatures must be provided below.
Please read the accompanying instructions carefully.
_________________________
Please list below the Old Notes to which this Letter of Transmittal relates.
If the space provided below is inadequate, please list the certificate numbers
and aggregate principal amounts on a separately executed schedule and affix the
schedule to this Letter of Transmittal.
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Description of Notes Tendered
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Aggregate
Name(s) and Address(es) of Registered Aggregate Principal
Holder(s), exactly as name(s) Certificate Principal Amount of Old
appear(s) on Certificate(s) Number(s)* Amount of Notes Tendered
(please fill in, if blank) Old Notes for Exchange**
Delivered
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* Need not be completed by book-entry holders. Such holders should check the
appropriate box below and provide the requested information.
** Need not be completed if tendering for exchange all Old Notes delivered to
the Exchange Agent. All Old Notes delivered shall be deemed tendered unless
a lesser number is specified in this column. The minimum permitted tender
is $1,000 in principal amount of Old Notes. All other tenders must be in
integral multiples of $1,000 of principal amount.
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TENDER OF OLD NOTES
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. Check here if tendered Old Notes are enclosed herewith.
. Check here if tendered Old Notes are being delivered by book-entry transfer
made to the account maintained by the Exchange Agent at DTC and complete the
following:
Name of Tendering Institution ____________________________________________
DTC Account Number: ______________________________________________________
Transaction Code Number: _________________________________________________
. Check here if tendered Old Notes are being delivered pursuant to a Notice of
Guaranteed Delivery previously delivered to the Exchange Agent. In such case,
please enclose a photocopy of the Notice of Guaranteed Delivery and complete
the following:
Name of Registered Note Holder(s): _______________________________________
Window Ticket Number (if any): ___________________________________________
Date of Execution of Notice of Guaranteed Delivery: ______________________
Name of Eligible Institution that Guaranteed Delivery: ___________________
. Check here if you are a broker-dealer who acquired the Old Notes for its own
account as a result of market making or other trading activities (a
"Participating Broker-Dealer") and wish to receive 10 additional copies of
the Prospectus and 10 copies of any amendments or supplements thereto. In
such case, please complete the following:
Name: ____________________________________________________________________
Address: _________________________________________________________________
Area Code and Telephone Number: __________________________________________
Contact Person: __________________________________________________________
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Ladies and Gentlemen:
The undersigned hereby tenders to XM Satellite Radio Inc., a Delaware
corporation (the "Company"), the above described aggregate principal value of
the Company's 14% Senior Secured Notes (the "Old Notes") in exchange for a like
aggregate principal value of the Company's 14% Senior Secured Notes (the "New
Notes") which have been registered under the Securities Act of 1933 (the
"Securities Act"), upon the terms and subject to the conditions set forth in the
Prospectus dated ________, 2000 (as the same may be amended or supplemented from
time to time, the "Prospectus"), receipt of which is acknowledged, and in this
Letter of Transmittal (which, together with the Prospectus, constitute the
"Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Notes tendered herewith in accordance with the terms and
conditions of the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
undersigned hereby sells, assigns and transfers to or upon the order of the
Company all right, title and interest in and to such Old Notes as are being
tendered herewith. The undersigned hereby irrevocably constitutes and appoints
the Exchange Agent as its agent and attorney-in-fact (with full knowledge that
the Exchange Agent is also acting as agent of the Company in connection with the
Exchange Offer) with respect to the tendered Old Notes, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver Certificates for Old Notes to the Company
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Company, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Notes to be issued in exchange for such Old
Notes, (ii) present Certificates for such Old Notes for transfer, and to
transfer the Old Notes on the books of the Company, and (iii) receive for the
account of the Company all benefits and otherwise exercise all rights of
beneficial ownership of such Old Notes, all in accordance with the terms and
conditions of the Exchange Offer.
The undersigned hereby represent(s) and warrant(s) that the undersigned has
full power and authority to tender, exchange, sell, assign and transfer the Old
Notes tendered hereby and that, when the same are accepted for exchange, the
Company will acquire good, marketable and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances, and that the Old
Notes tendered hereby are not subject to any adverse claims or proxies. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Company or the Exchange Agent to be necessary or desirable to
complete the exchange, assignment and transfer of the Old Notes tendered hereby,
and the undersigned will comply with its obligations under the registration
rights agreement. The undersigned has read and agrees to all of the terms of
the Exchange Offer.
The name(s) and address(es) of the registered holder(s) of the Old Notes
tendered hereby should be printed on page 2, if they are not already set forth
there, as they appear on the Certificates (or, in the case of book-entry
securities, on the relevant security position listing) representing such Old
Notes. The Certificate number(s) and the Old Notes that the undersigned wishes
to tender should be indicated in the appropriate boxes on page 2.
If any tendered Old Notes are not exchanged pursuant to the Exchange Offer
for any reasons, or if Certificates are submitted for more Old Notes than are
tendered or accepted for exchange, Certificates for such nonexchanged or
nontendered Old Notes will be returned (or, in the case of Old Notes tendered by
book-entry transfer, such Old Notes will be credited to the appropriate account
maintained at DTC), without expense to the tendering holder, promptly following
the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Notes pursuant to any one of
the procedures described in "The Exchange Offer -- Procedures for Tendering
Outstanding Notes" in the Prospectus and in the instructions hereto will, upon
the Company's acceptance for exchange of such tendered Old Notes, constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer. The undersigned recognizes
that, under certain circumstances set forth in the Prospectus, the Company may
not be required to accept for exchange any of the Old Notes tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Notes be issued
in the name(s) of the undersigned or, in the case of a book-entry transfer of
Old Notes, that such New Notes be credited to the account indicated above
maintained at DTC. If applicable,
substitute Certificates representing Old Notes not tendered or not accepted for
exchange will be issued to the undersigned or, in the case of a book-entry
transfer of Old Notes, will be credited to the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under "Special Delivery
Instructions," the undersigned hereby directs that New Notes be delivered to the
undersigned at the address shown below the undersigned's signature.
By tendering Old Notes and executing this Letter of Transmittal, the
undersigned hereby represents and agrees that (i) the undersigned is not an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act (ii) any New Notes to be received by the undersigned are being acquired in
the ordinary course of its business, and (iii) the undersigned has no
arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of New Notes to be received in the
Exchange Offer. By tendering Old Notes pursuant to the Exchange Offer and
executing this Letter of Transmittal, a holder of Old Notes that is a Broker-
Dealer represents and agrees, consistent with certain interpretive letters
issued by the staff of the Division of Corporation Finance of the Securities and
Exchange Commission (the "Staff") to third parties, that (a) such Old Notes held
by the Broker-Dealer are held only as a nominee, or (b) such Old Notes were
acquired by such Broker-Dealer for its own account as a result of market-making
activities or other trading activities and it will deliver a Prospectus (as
amended or supplemented from time to time) meeting the requirements of the
Securities Act in connection with any sale of such New Notes, provided that, by
so acknowledging and by delivering a Prospectus, such Broker-Dealer will not be
deemed to admit that it is an "Underwriter" within the meaning of the Securities
Act.
The Company has agreed that, subject to the provisions of its registration
rights agreement with the initial purchasers of the Old Notes (the "Registration
Rights Agreement"), the Prospectus, as it may be amended or supplemented from
time to time, may be used by a participating Broker-Dealer (as defined below) in
connection with resales of the New Notes received in exchange for Old Notes
where such Old 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 ending 180 days after the Expiration Date (subject to extension
under certain limited circumstances described in the Prospectus) of, if earlier,
when all such New Notes have been disposed of by such participating Broker-
Dealer. In that regard, each Broker-Dealer who acquired Old Notes for its own
account as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), by tendering such Old 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 New 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 New Notes may
be resumed, as the case may be. If the Company gives such notice to suspend the
sale of the New Notes, it shall extend the 180-day period referred to above
during which participating Broker-Dealers are entitled to use the Prospectus in
connection with the resale of New Notes 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 New Notes
or to and including the date on which the Company has given notice that the sale
of New Notes may be resumed, as the case may be.
Holders of Old Notes whose Old Notes are accepted for exchange will receive,
in cash, accrued interest thereon to, but not including, the date of issuance of
the New Notes. Such interest will be paid with the first interest payment on
the New Notes. Interest on the Old Notes accepted for exchange will cease to
accrue upon issuance of the New Notes. Interest on the New Notes is payable
semi-annually on each March 15 and September 15 of each year.
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.
Please be advised that the Company is registering the New Notes in reliance
on the position of the Staff enunciated in Exxon Capital Holdings Corp.
(available April 13, 1989) and Morgan Stanley & Co. Incorporated (available June
5, 1991). The Company has not entered into any arrangement or understanding with
any person to distribute the New Notes to be received in the Exchange Offer and,
to the best of its information and belief, each person participating in the
Exchange Offer is acquiring the New Notes in its ordinary course of business and
has no arrangement or understanding with any person to participate in the
distribution of the New Notes to be received in the Exchange Offer. In this
regard, the undersigned is aware that if the undersigned is participating in the
Exchange Offer for the purpose of distributing the New Notes to be acquired in
the Exchange Offer, the undersigned (a) may not rely on the Staff position
enunciated in Exxon Capital Holdings Corp. or interpretative letters to similar
effect and (b) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction. The undersigned is aware that such a secondary resale transaction
by a person participating in the Exchange Offer for the purpose of distributing
the New Notes should be covered by an effective registration statement
containing the selling securityholder information required by Item 507 of
Regulation S-K.
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SPECIAL ISSUANCE SPECIAL ISSUANCE
INSTRUCTIONS INSTRUCTIONS
(See Instructions 1, 5, and 6) (See Instructions 1, 5, and 6)
To be completed ONLY if the New Notes or any Old To be completed ONLY if the New Notes or any Old
Notes delivered, but not tendered for exchange are Notes delivered, but not tendered for exchange are to
to be sent to someone other than the registered be issued in the name of someone other than the
holder of the Old Notes whose name(s) appear(s) registered holder of the Old Notes whose name(s)
above, or such registered holder(s) at an address appear(s) above.
other than that shown above.
Issue: . New Notes and/or
Issue: . New Notes and/or . Old Notes delivered but not
. Old Notes delivered but not tendered for exchange:
tendered for exchange:
Name(s) _____________________________________________ Name(s) ______________________________________________
(Please Print) (Please Print)
Address: ____________________________________________ Address: _____________________________________________
(Please Print) (Please Print)
_____________________________________________________ ______________________________________________________
(Please include ZIP code) (Please include ZIP code)
______________________________________________________
_____________________________________________________ Telephone Number with Area Code
Telephone Number with Area Code
______________________________________________________
Tax ID Number
_____________________________________________________
Tax ID Number
_____________________________________________________ ________________________________________________________
HOLDER(S) SIGN HERE
(See Instructions 2, 5 and 6)
(Please Complete Substitute Form W-9 Contained Herein)
(Note: Signatures Must be Guaranteed if Required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificates for the Old Notes tendered (or, in the case of book-entry
securities, on the relevant security position listing), or by any person(s)
authorized to become the registered holder(s) by endorsements and documents
transmitted herewith (including such opinions of counsel, certifications and
other information as may be required by the Company to comply with the
restrictions on transfer applicable to the Old Notes). If signature is by an
attorney-in-fact, executor, administrator, trustee, guardian, officer or a
corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
GUARANTEE OF SIGNATURES
(See Instruction 2 and 5 below
X ___________________________________________________ Certain Signatures Must be Guaranteed
by an Eligible Instruction
X ___________________________________________________
(Signature(s) of Holder(s) or Authorized Signatory) ______________________________________________________
(Authorized Signature)
_____________________________________________________
______________________________________________________
Date: _________________________________________, 1998 (Capacity (full title))
Name(s) _____________________________________________ ______________________________________________________
_____________________________________________________ ______________________________________________________
(Please print) (Name of Eligible Institution Guaranteeing Signature)
Capacity: ___________________________________________
______________________________________________________
Address: ____________________________________________ (Address of Firm -- Please include ZIP code)
_____________________________________________________ ______________________________________________________
(Please include Zip Code) Telephone No. (with area code) of Firm:
Telephone No. (with area code): ______________________________________________________
_____________________________________________________ Date: __________________________________________, 1998
Tax ID No.: _________________________________________
INSTRUCTION
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth in "The Exchange
Offer -- Procedures for Tendering Outstanding Notes" in the Prospectus.
Certificates, or timely confirmation of a book-entry transfer of such Old Notes
into the Exchange Agent's account at DTC, as well as this Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, 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 Date.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver their Old Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent on or prior
to the Expiration Date or (iii) who cannot complete the procedures for delivery
by book-entry transfer on a timely basis, may tender their Old Notes by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth in "The Exchange Offer -- Procedures
for Tendering Outstanding Notes" in the Prospectus. Pursuant to such
procedures: (i) such tender must be made by or through an Eligible Institution
(as defined below); (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form made available by the Company,
must be received by the Exchange Agent on or prior to the Expiration Date; and
(iii) the Certificates (or a book-entry confirmation (as defined in the
Prospectus)) representing all tendered Old Notes, in proper form for transfer,
together with a Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees and any other
documents required by this Letter of Transmittal, must be received by the
Exchange Agent within three New York Stock Exchange trading days after the date
of execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer -- Procedures for Tendering Outstanding Notes" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Notes to be
properly tendered pursuant to the guaranteed delivery procedure, the Exchange
Agent must receive a Notice of Guaranteed Delivery on or prior to the Expiration
Date. As used herein and in the Prospectus, "Eligible Institution" means a firm
or other entity identified in Rule 17Ad-15 under the Exchange Act as "an
eligible guarantor institution," including (as such terms are defined therein)
(i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency; or
(v) a savings association that is a participant in a Securities Transfer
Association.
The method of delivery of certificates, this Letter of Transmittal and all
other required documents is at the option and sole risk of the tendering holder
and the delivery will be deemed made only when actually received by the Exchange
Agent, if delivery is by mail, registered mail with return receipt requested,
properly insured, or overnight delivery service is recommended. In all cases,
sufficient time should be allowed to ensure 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. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Consent and Letter of Transmittal is signed by the registered
holder (which term, for purposes of this document, shall include any
participant in DTC whose name appears on the relevant security position
listing as the owner of the Old Notes) of Old Notes tendered herewith,
unless such holder(s) has completed either the box entitled "Special
Issuance Instructions" or the box entitled "Special Delivery
Instructions" above, or
(ii) such Old Notes are tendered for the account of a firm that is an
Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned
"Description of Old Notes" is inadequate, the Certificate number(s) and/or the
aggregate principal amount of Old Notes and any other required information
should be listed on a separate signed schedule which is attached to this Letter
of Transmittal.
4. Partial Tenders and Withdrawal Rights. If less than all the Old Notes
evidenced by any Certificate submitted are to be tendered, fill in the aggregate
principal amount of Old Notes which are to be tendered in the box entitled
"Aggregate Principal Amount of Old Notes Tendered for Exchange." In such case,
new Certificates (s) for the remainder of the Old Notes that were evidenced by
your old Certificate(s) will be sent to the holder of the Old Notes (or such
other party as you identify in the box captioned "Special Delivery
Instructions"), promptly after the Expiration Date. All Old Notes represented
by Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Notes may be withdrawn
at any time on or prior to the Expiration Date. In order for a withdrawal to be
effective, a written, telegraphic, telex or facsimile transmission of such
notice of withdrawal must be timely received by the Exchange Agent at its
address set forth above on or prior to the Expiration Date. Any such notice of
withdrawal must specify the name of the person who tendered the Old Notes to be
withdrawn, the aggregate principal amount of Old Notes to be withdrawn, and (if
Certificates for Old Notes have been tendered) the name of the registered holder
of the Old Notes as set forth on the Certificate for the Old Notes, if different
from that of the person who tendered such Old Notes. If Certificates for the Old
Notes have been delivered or otherwise identified to the Exchange Agent, then
prior to the physical release of such Certificates for the Old Notes, the
tendering holder must submit the serial numbers shown on the particular
Certificates for the Old Notes to be withdrawn and the signature on the notice
of withdrawal must be guaranteed by an Eligible Institution, except in the case
of Old Notes tendered for the account of an Eligible Institution. If Old Notes
have been tendered pursuant to the procedures for book-entry transfer set forth
in "The Exchange Offer -- Procedures for Tendering Outstanding Notes," the
notice of withdrawal must specify the name and number of the account at DTC to
be credited with the withdrawal of Old Notes, in which case a notice of
withdrawal will be effective if delivered to the Exchange Agent by written,
telegraphic, telex or facsimile transmission. Withdrawals of tenders of Old
Notes may not be rescinded. Old Notes properly withdrawn will not be deemed
validly tendered for purposes of the Exchange Offer, but may be retendered at
any subsequent time on or prior to the Expiration Date by following any of the
procedures described in the Prospectus under "The Exchange Offer -- Procedures
for Tendering Outstanding Notes."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
The Company, any affiliates or assigns of the Company, the Exchange Agent or any
other person shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification. Any Old Notes which have been tendered but which
are withdrawn will be returned to the holder thereof without cost to such holder
promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Old
Notes tendered hereby, the signatures(s) must correspond exactly with the
name(s) as written on the face of the Certificate(s) (or, in the case of book-
entry securities, on the relevant security position listing) without alteration,
enlargement or any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different name(s) on several
Certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If this Letter of Transmittal or any Certificates 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 must submit proper evidence
satisfactory to the Company, in its sole discretion, of such persons' authority
to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Old Notes listed and transmitted hereby, no endorsement(s) of Certificate(s) or
separate bond power(s) are required unless New Notes are to be issued in the
name of a person other than the registered holder(s). Signature(s) on such
Certificate(s) or bond power(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Notes listed, the Certificates must be endorsed
or accompanied by appropriate bond powers, signed exactly as the name or names
of the registered owner(s) appear(s) on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company may require in accordance with the restrictions on transfer
applicable to the Old Notes. Signatures on such Certificates or bond powers must
be guaranteed by an Eligible Institution.
6. Special Issuance and Delivery Instruction. If New Notes are to be issued
in the name of a person other than the signer of this Letter of Transmittal, or
if New Notes are to be sent to someone other than the signer of this Letter of
Transmittal or to an address other than shown above, the appropriate boxes on
this Letter of Transmittal should be completed. Certificates for Old Notes not
exchanged will be returned by mail or, if tendered by book-entry transfer, by
crediting the account indicated above maintained at DTC. See Instruction 4.
7. Irregularities. The company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Old Notes, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for, may, in the view of
counsel to the Company, be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer --Conditions to the
Exchange Offer" or any conditions or irregularity in any tender of Old Notes of
any particular holder whether or not similar conditions or irregularities are
waived in the case of other holders. The Company's interpretation of the terms
and conditions of the Exchange Offer (including this Letter of Transmittal and
the instructions hereto) will be final and binding. No tender of Old Notes will
be deemed to have been validly made until all irregularities with respect to
such tender have been cured or waived. The Company, any affiliates or assigns
of the Company, the Exchange Agent, or any other person shall not be under any
duty to give notification of any irregularities in tenders or incur any
liability for failure to give such notification.
8. Questions, Request for Assistance and Additional Copies. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Old Notes have been lost, destroyed or stolen, the holder should
promptly notify the Exchange Agent. The holder will then be instructed as to
the steps that must be taken in order to replace the Certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen Certificate(s) have been
followed.
10. Security Transfer Taxes. Holders who tender their Old Notes for exchange
will not be obligated to pay any transfer taxes in connection therewith. If,
however, New Notes are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Notes tendered, or if a
transfer tax is imposed for any reason other than the exchange of Old Notes in
connection with the Exchange Offer, then the amount of any such transfer tax
(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 with the Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering holder.
Important: This Letter of Transmittal (or facsimile thereof) and all other
required documents must be received by the Exchange Agent on or prior to the
Expiration Date.
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Old Notes are accepted
for exchange is required by law to provide the Exchange Agent with such holder's
correct taxpayer identification number ("TIN") on Substitute Form W-9 included
herein or otherwise establish a basis for exemption from backup withholding. If
such holder is an individual, the TIN is his or her social security number. If
the Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service may subject the holder or transferee to a $50.00 penalty. In addition,
delivery of such holder's New Notes may be subject to backup withholding.
Failure to comply truthfully with the backup withholding requirements also may
result in the imposition of severe criminal and/or civil fines and penalties.
Certain holders (including, among others, all corporaions and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt holders should furnish their TIN, write "Exempt" on the
face of the Substitute Form W-9, and sign, date and return the Substitute
Form W- 9 to the Exchange Agent. A foreign person, including entities, may
qualify as an exempt recipient by submitting to the Exchange Agent a properly
completed Internal Revenue Service Form W-8, signed under penalties of perjury,
attesting to that holder's foreign status. A Form W-8 can be obtained from the
Exchange Agent. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional instruction.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the holder or other transferee. Backup withholding
is not an additional federal income tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained from the Internal Revenue Service.
Purpose of Substitute Form W-9
To prevent backup withholding on payments made with respect to Old Notes
exchanged in the Exchange Offer, the holder is required to provide the Exchange
Agent with either: (i) the holder's correct TIN by completing the form included
herein, certifying that the TIN provided on Substitute Form W-9 is correct (or
that such holder is awaiting a TIN) and that (A) the holder has not been
notified by the Internal Revenue Service that the holder is subject to backup
withholding as a result of failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the holder that the holder is no
longer subject to back withholding; or (ii) an adequate basis for exemption.
Number to Give the Depository
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered holder of
the Old Notes. If the Old Notes are held in more than one name or are held not
in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
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Payer's Name:
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SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN Social Security number or
Form W-9 IN THE BOX AT RIGHT AND CERTIFY BY _________/_________/_________
SIGNING AND DATING BELOW. Employer identification
number
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Payer's Part 2 -- Certification -- Under penalties of perjury, I certify that:
Request for (1) The number shown on this form is my correct Taxpayer Number (or I
Taxpayer am waiting for a number to be issued to me) and
Identification (2) I am not subject to backup withholding because (i) I have not been
Number (TIN) notified by the Internal Revenue Service ("IRS") that I am subject to
backup withholding as a result of failure to report all interest of
dividends, or (ii) the IRS has notified me that I am no longer subject
to backup withholding.
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Certificate Instructions -- You must cross out item (2)
in Part 2 above if you have been notified by the IRS
that you are subject to backup withholding because of Part 3 __
underreporting interest or dividends on your tax return. Awaiting TIN
However, if after being notified by the IRS that you are .
subject to backup withholding you received another
notification from the IRS stating that you are no longer
subject to backup withholding, do not cross out item
(2).
_________________________________ Date _____________, 1998
Signature
_________________________________
Name (please print)
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NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
You Must Complete the Following Certificate
if you checked the Box in Part 3 of this Substitute Form W-9
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CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) 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
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments made to me on account of the New Notes
shall be retained until I provide a taxpayer identification number to the
Exchange Agent and that, if I do not provide my taxpayer identification number
within 60 days, such retained amounts shall be remitted to the Internal
Revenue Service as backup withholding and 31% 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: ____________________________________ Date ____________, 1998
Name (please print) _______________________________
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