EXHIBIT 99.1
LETTER OF TRANSMITTAL
AEI RESOURCES, INC.
AND
AEI HOLDING COMPANY, INC.
OFFER TO EXCHANGE $150,000,000 OF ITS
11 1/2% SENIOR SUBORDINATED NOTES DUE 2006
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933,
FOR $150,000,000 OF ITS OUTSTANDING
11 1/2% SENIOR SUBORDINATED NOTES DUE 2006
PURSUANT TO THE PROSPECTUS DATED _______________, 1999
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ___________, 1999 (THE "EXPIRATION DATE"), UNLESS THE OFFER IS
EXTENDED.
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The Exchange Agent for the Exchange Offer is:
IBJ WHITEHALL BANK & TRUST COMPANY
By Mail: By Hand/Overnight Courier: By Facsimile:
IBJ Whitehall IBJ Whitehall IBJ Whitehall
Bank & Trust Company Bank & Trust Company Bank & Trust Company
P.O. Box 84 One State Street Attention:
Bowling Green Station New York, NY 10004 Reorganization Operations
New York, NY 10274-0084 Attention: Facsimile Number:
Attention: Securities Processing Window (212) 858-2611
Reorganization Operations Subcellar One (SC-1) Confirmation Number:
(212) 858-2103
For Further Information Call:
(212) 858-2103
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 ACCOMPANYING THIS LETTER OF TRANSMITTAL 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).
The undersigned acknowledges receipt of the Prospectus, dated ___________,
1999 (as the same may be amended or supplemented from time to time, the
"Prospectus"), of AEI Resources, Inc. (the "Company"), and this Letter of
Transmittal, which together constitute the Company's offer (the "Exchange
Offer") to exchange an aggregate of up to $150,000,000 principal amount of 11
1/2% Senior Subordinated Notes, due 2006 (the "New Notes") of the Company which
have been registered under the Securities Act of 1933 (the "Securities Act") for
an identical face amount of the issued and outstanding 11 1/2% Senior
Subordinated Notes, due 2006 (the "Old Notes") of the Company. The terms of the
New Notes are identical in all material respects (including principal amount,
interest rate and maturity) to the terms of the Old Notes for which they may be
exchanged pursuant to the Exchange Offer, except that the New Notes will have
been registered under the Securities Act and, therefore, will not bear legends
restricting the transfer thereof.
Unless the context requires otherwise, the term "holder" for purposes of
this Letter of Transmittal means any person in whose name Old Notes are
registered or any other person who has obtained a properly completed bond power
and any other required documents from the registered holder.
The Exchange Offer is being made pursuant to the Registration Rights
Agreement dated as of December 14, 1998 (the "Registration Rights Agreement"),
and all Old Notes validly tendered will be accepted for exchange. Any Old Notes
not tendered will remain outstanding and continue to accrue interest, but
generally will not retain any rights under the Registration Rights Agreement.
Holders electing to have Old Notes exchanged pursuant to the Exchange Offer will
be required to surrender such Old Notes, together with this Letter of
Transmittal, to the Exchange Agent at the address specified herein prior to 5:00
p.m., New York City time, on the Expiration Date. Holders will be entitled to
withdraw their election at any time prior to 5:00 p.m., New York City time, on
the Expiration Date by sending to the Exchange Agent at the address specified
herein a facsimile transmission or letter setting forth the name of such holder,
the principal amount of Old Notes delivered for exchange and a statement that
such holder is withdrawing the election to have such Old Notes exchanged.
This Letter of Transmittal is to be used either if certificates
representing Old Notes (the "Certificates") are to be forwarded herewith or if
delivery of Old Notes is to be made by book-entry transfer to an account
maintained by the Exchange Agent at The Depository Trust Company ("DTC"),
pursuant to the procedures set forth in "The Exchange Offer -- Procedures for
Tendering" in the Prospectus.
Holders of Old Notes whose Certificates are not immediately available, or
who cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or who cannot complete the
procedures for book-entry transfer on a timely basis must tender their Old Notes
according to the guaranteed delivery procedures set forth in "The Exchange Offer
- -- Procedures for Tendering" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE INSTRUCTIONS CONTAINED
HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
The undersigned has completed the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
ALL TENDERING HOLDERS COMPLETE THIS BOX
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DESCRIPTION OF OLD NOTES TENDERED HEREWITH
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Name(s) and Address(es) Aggregate Principal
of Registered Holder(s) Certificate Amount Represented Principal Amount
(Please fill in) Number(s) by Old Notes Tendered*
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Total
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* Unless otherwise indicated, the holder will be deemed to have tendered the
full aggregate principal amount represented by the Old Notes. See
Instruction 2. Old Notes may be tendered in whole or in part in
integral multiples of $1,000, provided that, if any Old Notes are tendered
for exchange in part, the untendered principal amount thereof must be
an integral multiple of $1,000.
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[ ] CHECK HERE IF TENDERED OLD 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 OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s):_____________________________________________
Window Ticket Number (if any):____________________________________________
Date of Execution of Notice of Guaranteed Delivery:_______________________
Name of Institution which Guaranteed Delivery:____________________________
IF GUARANTEED DELIVERY IS TO BE MADE BY BOOK-ENTRY TRANSFER:
Name of Tendering Institution:_____________________________________________
DTC Account Number:________________________________________________________
Transaction Code Number:___________________________________________________
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
AND NON-EXCHANGED OLD NOTES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT
NUMBER SET FORTH ABOVE.
[ ] 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 AND
WISH TO RECEIVE ADDITIONAL COPIES OF THE PROSPECTUS AND ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:______________________________________________________________________
Address:___________________________________________________________________
Number of Copies:___________________
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PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the above described aggregate
principal amount of Old Notes in exchange for a like aggregate principal amount
of New Notes.
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 exchanges, 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 and
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 REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
NOTES TENDERED HEREBY AND TO ACQUIRE NEW NOTES UPON THE EXCHANGE OF SUCH
TENDERED OLD NOTES, AND THAT, WHEN THE OLD NOTES 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 COMPLETE 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 above, if they are not already set forth
above, as they appear on the Certificates representing such Old Notes. The Old
Notes, along with Certificate number(s), that the undersigned wishes to tender
should be indicated in the appropriate boxes above.
The Exchange Offer is subject to certain conditions as set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange
Offer." The undersigned recognizes that, as a result of these conditions (which
may be waived, in whole or in part, by the Company), as more particularly set
forth in the Prospectus, the Company may not be required to exchange any of the
Old Notes tendered hereby. If any tendered Old Notes are not exchanged pursuant
to the Exchange Offer for any reason, or if Certificates are submitted for more
Old Notes than are tendered or accepted for exchange, Certificates for such non-
exchanged or non-tendered Old Notes will be returned (or, in the case of Old
Notes tendered by book-entry transfer, such Old Notes will be credited to an
account maintained at DTC), without expense to the tendering holder, as soon as
practicable 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"
in the Prospectus and in the instructions attached hereto will, upon the
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Company's acceptance for exchange of such tendered Old Notes, constitute a
binding agreement among the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer.
Unless otherwise indicated herein under the section entitled "Special
Issuance Instructions" below, the undersigned hereby directs that: (i) 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; and (ii) if applicable, substitute
Certificates representing Old Notes not exchanged or not accepted for exchange
be issued to the undersigned or, in the case of a book-entry transfer of Old
Notes, be credited to the account indicated above maintained at DTC. Similarly,
unless otherwise indicated under "Special Delivery Instructions," the
undersigned hereby directs that the New Notes or any Old Notes tendered herewith
but not accepted be delivered to the undersigned at the address shown below the
undersigned's signature or, in the case of a book-entry transfer of Old Notes,
that such New Notes or Old Notes be credited to the account indicated above
maintained at DTC.
BY TENDERING OLD NOTES AND EXECUTING THIS LETTER OF TRANSMITTAL, THE
UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (A) NEITHER THE UNDERSIGNED NOR
ANY PERSON RECEIVING NEW NOTES IS AN AFFILIATE OF THE COMPANY WITHIN THE MEANING
OF RULE 405 OF THE SECURITIES ACT (AN "AFFILIATE"), (B) THE NEW NOTES TO BE
RECEIVED PURSUANT TO THE EXCHANGE OFFER ARE BEING ACQUIRED IN THE ORDINARY
COURSE OF BUSINESS OF THE PERSON RECEIVING SUCH NEW NOTES, WHETHER OR NOT SUCH
PERSON IS THE UNDERSIGNED, (C) NEITHER THE UNDERSIGNED NOR ANY SUCH OTHER PERSON
HAS ANY ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A
DISTRIBUTION, WITHIN THE MEANING OF THE SECURITIES ACT, (A "DISTRIBUTION") OF
NEW NOTES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (D) IF THE UNDERSIGNED IS
NOT A BROKER-DEALER OR IS A BROKER-DEALER BUT WILL NOT RECEIVE NEW NOTES FOR ITS
OWN ACCOUNT IN EXCHANGE FOR OLD NOTES, NEITHER THE UNDERSIGNED NOR ANY SUCH
OTHER PERSON IS ENGAGED IN, OR INTENDS TO ENGAGE IN, A DISTRIBUTION OF SUCH NEW
NOTES. BY TENDERING OLD NOTES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS
LETTER OF TRANSMITTAL, A HOLDER OF OLD NOTES WHICH 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 TO
THIRD PARTIES, THAT (X) SUCH OLD NOTES HELD BY THE BROKER-DEALER ARE HELD ONLY
AS A NOMINEE, OR (Y) 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 THE PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO
TIME) IN CONNECTION WITH ANY RESALE 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 UNDERSIGNED ACKNOWLEDGES THAT THIS EXCHANGE OFFER IS BEING MADE BY THE
COMPANY BASED UPON THE COMPANY'S UNDERSTANDING OF AN INTERPRETATION BY THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"), AS SET FORTH IN NO-ACTION
LETTERS ISSUED TO THIRD PARTIES, THAT THE NEW NOTES ISSUED IN EXCHANGE FOR OLD
NOTES TO HOLDERS THEREOF (OTHER THAN TO HOLDERS THAT ARE AFFILIATES OF THE
COMPANY) MAY BE OFFERED FOR RESALE, RESOLD AND OTHERWISE TRANSFERRED WITHOUT
COMPLIANCE WITH THE REGISTRATION AND PROSPECTUS DELIVERY PROVISIONS OF THE
SECURITIES ACT, PROVIDED THAT (A) SUCH HOLDERS ARE NOT AFFILIATES OF THE
COMPANY, (B) SUCH NEW NOTES ARE ACQUIRED IN THE ORDINARY COURSE OF SUCH HOLDERS'
BUSINESS, AND (C) SUCH HOLDERS ARE NOT ENGAGED IN, AND DO NOT INTEND TO ENGAGE
IN, A DISTRIBUTION OF SUCH NEW NOTES AND HAVE NO ARRANGEMENT OR UNDERSTANDING
WITH ANY PERSON TO PARTICIPATE IN THE DISTRIBUTION OF SUCH NEW NOTES. HOWEVER,
THE COMMISSION HAS NOT CONSIDERED THE EXCHANGE OFFER IN THE CONTEXT OF A NO-
ACTION LETTER AND THERE CAN BE NO ASSURANCE THAT THE COMMISSION WOULD MAKE A
SIMILAR DETERMINATION WITH RESPECT TO THE EXCHANGE OFFER AS IN OTHER
CIRCUMSTANCES. IF A HOLDER OF OLD NOTES IS AN AFFILIATE OF THE COMPANY, OR IS
ENGAGED IN OR INTENDS TO ENGAGE IN A DISTRIBUTION OF THE NEW NOTES OR HAS ANY
ARRANGEMENT OR UNDERSTANDING WITH RESPECT TO THE DISTRIBUTION
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OF THE NEW NOTES TO BE ACQUIRED PURSUANT TO THE EXCHANGE OFFER, SUCH HOLDER
COULD NOT RELY ON THE APPLICABLE INTERPRETATIONS OF THE COMMISSION AND MUST
COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION WITH ANY SECONDARY RESALE TRANSACTION.
THE COMPANY HAS AGREED THAT, SUBJECT TO THE PROVISIONS OF 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 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 OR OTHER TRADING ACTIVITIES, FOR A PERIOD
ENDING ONE YEAR FROM THE DATE ON WHICH THE EXCHANGE OFFER IS CONSUMMATED OR, IF
EARLIER, WHEN ALL SUCH NEW NOTES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING
BROKER-DEALER. IN THAT REGARD, EACH BROKER-DEALER WHO RECEIVES NEW NOTES IN THE
EXCHANGE OFFER IN EXCHANGE FOR OLD NOTES ACQUIRED 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 (A) 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 (B)
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 ONE-YEAR 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 not
receive accumulated interest on such Old Notes for any period from and after the
last date to which interest has been paid or duly provided for (the "Interest
Payment Date") on such Old Notes prior to the original issue date of the New
Notes or, if no such interest has been paid or duly provided for, will not
receive any accumulated interest on such Old Notes, and the undersigned waives
the right to receive any interest on such Old Notes accumulated, from and after
such Interest Payment Date or, if no such interest has been paid or duly
provided for, from June 15, 1999.
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. Except as
stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES
TENDERED HEREWITH" ABOVE AND BY SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX. HOLDER(S) SIGN HERE (SEE
INSTRUCTIONS 2, 5 AND 6) (PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 9) (NOTE:
SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2):
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This Letter of Transmittal must be signed by a registered holder(s) exactly
as its name(s) appear(s) on the Certificate(s) for the Old Notes hereby tendered
or on a 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 or the Exchange Agent for the Old Notes 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 of a
corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
________________________________________________________________________________
________________________________________________________________________________
(SIGNATURE(S) OF HOLDER(S))
Date: ______________________________________, 1999
Name(s):________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT)
Capacity (full title):__________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_________________________________________________
Tax Identification or Social Security Number(s):________________________________
GUARANTEE OF SIGNATURE(S) ( IF REQUIRED) (SEE INSTRUCTIONS 2 AND 5):
________________________________________________________________________________
(AUTHORIZED SIGNATURE)
Name:
____________________________________________________________________________
(PLEASE PRINT)
Date:________________________, 1999
Name of Firm: __________________________________________________________________
Capacity (full title):__________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_________________________________________________
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Tax Identification or Social Security Number(s):________________________________
SPECIAL REGISTRATION INSTRUCTIONS: (SEE INSTRUCTIONS 1, 5 AND 6):
To be completed ONLY if Old Notes that are not tendered or New Notes are to be
issued in the name of someone other than the registered holder(s) of the Old
Notes whose name(s) appear(s) above.
Issue
[ ] Old Notes not tendered to:
[ ] New Notes, to:
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_________________________________________________
Tax Identification or Social Security Number(s):________________________________
SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5 AND 6):
To be completed ONLY if Old Notes that are not tendered or New Notes are to be
sent to someone other than the registered holder(s) of the Old Notes whose
name(s) appear(s) above, or such registered holder(s) at an address other than
that shown above.
Mail
[ ] Old Notes not tendered to:
[ ] New Notes, to:
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_________________________________________________
Tax Identification or Social Security Number(s):________________________________
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TO BE COMPLETED BY ALL TENDERING SECURITY HOLDERS (SEE INSTRUCTION 9)
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PAYOR'S NAME: IBJ WHITEHALL BANK & TRUST COMPANY, AS PAYING AGENT
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SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN _________________________
ON THE LINE AT RIGHT AND CERTIFY Social Security Number
Form W-9 BY SIGNING AND DATING BELOW
OR
__________________________
Department of the Treasury Employer Identification Number
Internal Revenue Service
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Part 2 -- Certification -- Under penalties of perjury, I certify that:
(1) the number shown on this form is my correct taxpayer identification number
(or I am waiting for a number to be issued to me);
Payor's Request for (2) I am not subject to backup withholding either because (i) I am exempt from
Taxpayer Identification Number backup withholding, (ii) I have not been notified by the Internal Revenue
(TIN) and Certification Service ("IRS") that I am subject to backup withholding as a result of a failure
to report all interest or dividends, or (iii) the IRS has notified me that I am no
longer subject to backup withholding; and
(3) any other information provided on this form is true and correct.
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Certification Instructions -- You must cross Part 3 --
out item (2) in Part 2 above if you have been Awaiting TIN [ ]
notified by the IRS that you are subject to
backup withholding because of underreporting
interest or dividends on your tax return and you
have not been notified by the IRS that you are
no longer subject to backup withholding
______________________________________
Signature
Name:________________________________
(Please Print)
Date:____________________________, 1999
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO
THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED "GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9"
FOR ADD DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF 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 (i) 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 (ii) 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.
__________________________________________________ Date:_________________________, 1999
Signature
Name:_____________________________________________
(Please Print)
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INSTRUCTIONS
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" in the Prospectus. Certificates, or timely
book-entry 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 5:00 p.m., New York City time, on the Expiration Date.
The term "book-entry confirmation" means a timely written confirmation from DTC
of book-entry transfer of Old Notes into the Exchange Agent's account at DTC.
Old Notes may be tendered in whole or in part in integral multiples of $1,000,
provided that, if any Old Notes are tendered for exchange in part, the
untendered principal amount thereof must be an integral multiple of $1,000.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, (ii) who cannot deliver their Old Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent on or prior
to 5:00 p.m., New York City time, on 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" in the Prospectus. Pursuant to
such procedures: (a) such tender must be made by or through an Eligible
Institution (as defined below); (b) 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 5:00 p.m., New
York City time, on the Expiration Date; and (c) the Certificates (or a book-
entry confirmation) representing all tendered Old Notes, in proper form for
transfer, together with 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 within three business days after the Expiration Date, all as
provided in "The Exchange Offer -- Procedures for Tendering" in the Prospectus.
The Notice of Guaranteed Delivery (the "Notice") 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
5:00 p.m., New York City time, on 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 OLD
NOTES, 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. INSTEAD OF DELIVERY BY
MAIL, 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 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 a security position listing as the owner of the Old
Notes) of Old Notes tendered herewith, unless such holder(s) has completed
either the section entitled "Special Registration Instructions" or the section
entitled "Special Delivery Instructions" above; or
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(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 Tendered Herewith" is inadequate, the Certificate number(s) and/or
the 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. Tenders of Old Notes will be
accepted only in integral multiples of $1,000, provided that if any Old Notes
are tendered for exchange in part, the untendered principal amount thereof must
be an integral multiple of $1,000. If less than all the Old Notes evidenced by
any Certificate submitted are to be tendered, fill in the principal amount of
Old Notes which are to be tendered in the column entitled "Principal Amount
Tendered." In such case, new Certificate(s) for the remainder of the Old Notes
that were evidenced by the old Certificate(s) will be sent only to the holder of
the Old Notes, as soon as practicable after the Expiration Date, unless the
appropriate boxes on this Letter of Transmittal are completed. 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 prior to 5:00 p.m., New York City time, on the Expiration Date. In
order for a withdrawal to be effective on or prior to that time, a written or
(for DTC participants) electronic ATOP transmission of such notice of withdrawal
must be timely received by the Exchange Agent at one of its addresses set forth
above on or prior to 5:00 p.m., New York City time, on the Expiration Date. Any
such notice of withdrawal must: (i) specify the name of the person having
deposited the Old Notes to be withdrawn (the "Depositor"); (ii) identify the Old
Notes to be withdrawn (including the Certificate number(s) and principal amount
of such Old Notes); (iii) be signed by the holder in the same manner as the
original signature on the Letter of Transmittal by which such Old Notes were
tendered (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the Trustee with respect to the Old
Notes register the transfer of such Old Notes in the name of the person
withdrawing the tender; and (iv) specify the name in which any such Old Notes
are to be registered, if different from that of the Depositor. If Old Notes
have been tendered pursuant to the procedures for book-entry transfer set forth
in "The Exchange Offer -- Procedures for Tendering Old 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. 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 5:00 p.m., New York City time, on the Expiration Date by
following any of the procedures described in the Prospectus under "The Exchange
Offer -- Procedures for Tendering Old Notes."
All questions as to the validity, form and eligibility (including time of
receipt) of such notices of withdrawal 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 not accepted for exchange will be returned to the holder thereof without
cost to such holder as soon as practicable after withdrawal, rejection of tender
or termination of the Exchange Offer.
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 signature(s) must correspond exactly with the name(s) as
written on the face of the Certificate(s) 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 each such person's authority to so act.
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When this Letter of Transmittal is signed by the registered holder(s) of the
Old Notes listed and transmitted hereby, no endorsement(s) of Certificate(s) or
separate bond power(s) are required, unless Old Notes not tendered or 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 the Old Notes not tendered or the New Notes are to be issued in the name of
a person other than, or delivered to an address other than that of, the
registered holder(s) appearing on the note register for the Old Notes, the
signature in this Letter of Transmittal must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the registered
holder(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 or the Exchange Agent 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 REGISTRATION AND DELIVERY INSTRUCTIONS. If Old Notes not tendered
or New Notes are to be issued in the name of a person other than the registered
holder(s), or if New Notes are to be sent to someone other than the registered
holder(s) or to an address other than the address shown above for the registered
holder(s), 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, unless the appropriate boxes on this Letter of Transmittal
are completed. 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 -- Certain
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, REQUESTS 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. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income tax
law, a holder whose tendered Old Notes are accepted for exchange is required to
provide the Exchange Agent with such holder's correct taxpayer identification
number ("TIN") on the Substitute Form W-9 above. If the Exchange Agent is not
provided with the correct TIN, the Internal Revenue Service (the "IRS") may
subject the holder or other payee to a $50 penalty. In addition, payments to
such holders or other payees with respect to Old Notes exchanged pursuant to the
Exchange Offer may be subject to 31% backup withholding.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
holder 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, the holder or
other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number above in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a
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properly certified TIN is provided to the Exchange Agent. The Exchange Agent
will retain such amounts withheld during the 60-day period following the date of
the Substitute Form W-9. If the holder furnishes the Exchange Agent with its TIN
within 60 days after the date of the Substitute Form W-9, the amounts retained
during the 60 day period will be remitted to the holder and no further amounts
shall be retained or withheld from payments made to the holder thereafter. If,
however, the holder has not provided the Exchange Agent with its TIN within such
60 day period, amounts withheld will be remitted to the IRS as backup
withholding. In addition, 31% of all payments made thereafter will be withheld
and remitted to the IRS until a correct TIN is provided.
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 or of the last transferee appearing on the transfers attached to,
or endorsed on, the Old Notes. If the Old Notes are registered in more than one
name or are 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.
Certain holders (including, among others, corporations, financial institutions
and certain foreign persons) may not be subject to these backup withholding and
reporting requirements. Such holders should nevertheless complete the attached
Substitute Form W-9 above, and write "exempt" on the face thereof, to avoid
possible erroneous backup withholding. A foreign person may qualify as an
exempt recipient by submitting a properly completed IRS Form W-8, signed under
penalties of perjury, attesting to that holder's exempt status. Please consult
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which holders are exempt from
backup withholding. By completing the Substitute Form W-9, the tendering holder
certifies that the TIN provided is correct (or that such holder is awaiting a
TIN), and that (i) the holder has not been notified by the Internal Revenue
Service that such holder is subject to backup withholding as a result of a
failure to report all interest or dividends, or (ii) the Internal Revenue
Service has notified the holder that such holder is no longer subject to backup
withholding. The Substitute Form W-9 must be signed, even if the holder is
exempt from backup withholding.
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.
The Company reserves the right in its sole discretion to take whatever steps
are necessary to comply with its obligation regarding backup withholding.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
waive satisfaction of any or all conditions enumerated in the Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Old Notes, by
execution and delivery of this Letter of Transmittal, shall waive any right to
receive notice of the acceptance of their Old Notes for exchange.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Notes has 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.
13. 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.
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IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO 5:00
P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
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