Exhibit 99.1
LETTER OF TRANSMITTAL
AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC
AMERICAN CASINO & ENTERTAINMENT PROPERTIES FINANCE CORP.
OFFER TO EXCHANGE ALL OUTSTANDING
7.85% SENIOR SECURED NOTES DUE 2012
FOR
7.85% SENIOR SECURED NOTES DUE 2012
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS DATED _____, 2004
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON _____, 2004
OR SUCH LATER DATE AND TIME TO WHICH THE EXCHANGE OFFER MAY BE EXTENDED (THE
"EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
The Exchange Agent for the Exchange Offer is:
WILMINGTON TRUST COMPANY
By Certified or Registered Mail: By Overnight Courier or Hand: By Facsimile Transmission:
Wilmington Trust Company Wilmington Trust Company (302) 636-4145
DC-1626 Processing Unit Corporate Capital Markets Attention: Exchanges
P.O. Box 8861 1100 North Market Street Confirm by Telephone:
Wilmington, DE 19899-8861 Wilmington, DE 19890-1626 (302) 636-6470
For Information Call:
(302) 636-6470
Delivery of this letter of transmittal to an address other than as set
forth above, or transmission of instructions via facsimile other than as set
forth above, does not constitute a valid delivery to the exchange agent.
The undersigned acknowledges that the undersigned has received the
Prospectus dated ____, 2004 (as amended or supplemented from time to time, the
"Prospectus"), of American Casino & Entertainment Properties LLC, a Delaware
limited liability company ("ACEP"), and American Casino & Entertainment
Properties Finance Corp. ("ACEP Finance") a Delaware corporation (and together
with ACEP, the "Company"), and this Letter of Transmittal (as amended or
supplemented from time to time, the "Letter of Transmittal"), which together
constitute the Company's offer (the "Exchange Offer") to exchange up to
$215,000,000 aggregate principal amount of 7.85% Senior Secured Notes due 2012
(the "New Notes") of the Company, for an equal principal amount of the Company's
issued and outstanding 7.85% Senior Secured Notes due 2012 (the "Private
Notes"). The terms of the New Notes are substantially identical to those of the
Private Notes, except that (1) the New Notes will be registered under the
Securities Act of 1933, as amended (the "Securities Act"), (2) the transfer
restrictions and registration rights relating to the Private Notes will not
apply to the New Notes and (3) the New Notes will not provide for the payment of
liquidated damages under circumstances related to the timing and completion of
the Exchange Offer.
Holders of New Notes will not be entitled to certain rights of holders of
the Private Notes under the Registration Rights Agreement, dated January 29,
2004, as amended by the Addendum to the Registration Rights Agreement, dated May
26, 2004, among the Company, certain subsidiaries of the
Company and Bear, Stearns & Co. Inc. as initial purchaser (the "Registration
Rights Agreement"), which rights will be terminated upon consummation of the
Exchange Offer.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein have the meanings given to
such terms in the Prospectus.
This Letter of Transmittal is to be completed by holders of Private Notes
(a) if Private Notes are to be forwarded herewith or (b) if tenders of Private
Notes are to be made by book-entry transfer to an account maintained by
Wilmington Trust Company (the "Exchange Agent") at The Depository Trust Company
("DTC" or "Book-Entry Transfer Facility") pursuant to the procedures set forth
in the Prospectus under "The Exchange Offer -- Procedures for Tendering."
Delivery of this Letter of Transmittal and any other required documents should
be made to the Exchange Agent.
If a holder desires to tender Private Notes pursuant to the Exchange Offer
but the Private Notes are not immediately available, or time will not permit
this Letter of Transmittal, the certificates representing Private Notes or other
required documents to reach the Exchange Agent on or before the Expiration Date,
or the procedure for book-entry transfer cannot be completed on a timely basis,
such holder may effect a tender of such Private Notes in accordance with the
guaranteed delivery procedures set forth in the Prospectus under "The Exchange
Offer -- Guaranteed Delivery Procedures."
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
The undersigned has completed the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
List below the Private Notes to which the Letter of Transmittal relates.
If the space provided below is inadequate, the certificate numbers and principal
amount of Private Notes should be listed on a separate schedule affixed hereto.
DESCRIPTION OF PRIVATE NOTES
(1) (2) (3)
Name(s) and Address(es) of Registered Holder(s) Aggregate Principal Amount
(Please fill in, if blank) Certificate Principal of Private Notes
Number(s)* Amount of Tendered
Private Notes (if less than all)**
_______________ _______________ _______________
_______________ _______________ _______________
_______________ _______________ _______________
_______________ _______________ _______________
_______________ _______________ _______________
* Need not be completed if Private Notes are being tendered by book-entry
holders.
2
** Private Notes may be tendered in whole or in part in integral multiples of
$1,000. Unless this column is completed, a holder will be deemed to have
tendered the full aggregate principal amount of the Private Notes
represented by the Private Notes indicated in column 2.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH "DTC"
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:____________________________________________
Account Number:___________________________________________________________
Transaction Code Number:__________________________________________________
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED PRIVATE NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s):__________________________________________
Window Ticket Number (if any):____________________________________________
Name of Eligible Institution that Guaranteed Delivery:____________________
Date of Execution of Notice of Guaranteed Delivery:_______________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution:____________________________________________
DTC Account Number:_______________________________________________________
Transaction Code Number:__________________________________________________
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED PRIVATE
NOTES ARE TO BE RETURNED BY CREDITING DTC ACCOUNT NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER THAT ACQUIRED THE PRIVATE NOTES
FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING
ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:_____________________________________________________________________
Address:__________________________________________________________________
Area Code and Telephone Number:___________________________________________
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Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of
Private Notes indicated above in exchange for a like aggregate principal amount
of New Notes. Subject to, and effective upon, the acceptance for exchange of the
Private Notes tendered hereby, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to such Private Notes.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as the undersigned's 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 the tendered Private Notes with the full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), to (i) deliver certificates for such Private Notes to the Company and
deliver all accompanying evidences of transfer and authenticity to, or upon the
order of, the Company, (ii) present such Private Notes for transfer on the books
of the Company, and (iii) receive all benefits and otherwise exercise all rights
of beneficial ownership of such Private Notes, all in accordance with the terms
of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the Private
Notes tendered hereby and that, when the same are accepted for exchange, the
Company will acquire good and unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claims or proxies. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Exchange Agent or the Company to be necessary
or desirable to complete the exchange, assignment and transfer of the Private
Notes tendered hereby, and the undersigned will comply with its obligations
under the Registration Rights Agreement. The undersigned has read and agreed to
all of the terms of the Exchange Offer.
The undersigned agrees that acceptance of any tendered Private Notes by
the Company and the issuance of New Notes in exchange for Private Notes will
constitute performance in full by the Company of its obligations under the
Registration Rights Agreement and that the Company will have no further
obligations or liabilities thereunder.
The name(s) and address(es) of the registered holders of the Private Notes
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Private Notes. The certificate number(s) and the
principal amount(s) of the Private Notes that the undersigned wishes to tender
should be indicated in the appropriate boxes above.
THE UNDERSIGNED ALSO ACKNOWLEDGES THAT THIS EXCHANGE OFFER IS BEING MADE
IN RELIANCE ON CERTAIN INTERPRETIVE LETTERS BY THE STAFF OF THE SECURITIES AND
EXCHANGE COMMISSION (THE "SEC") TO THIRD PARTIES IN UNRELATED TRANSACTIONS. ON
THE BASIS THEREOF, THE NEW NOTES ISSUED IN EXCHANGE FOR THE PRIVATE NOTES
PURSUANT TO THE EXCHANGE OFFER MAY BE OFFERED FOR RESALE, RESOLD AND OTHERWISE
TRANSFERRED BY HOLDERS OF THE NEW NOTES (OTHER THAN ANY SUCH HOLDER THAT IS AN
"AFFILIATE" OF THE COMPANY WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES
ACT) WITHOUT COMPLIANCE WITH THE REGISTRATION AND PROSPECTUS DELIVERY PROVISIONS
OF THE SECURITIES ACT, PROVIDED THAT SUCH NEW NOTES ARE ACQUIRED IN THE ORDINARY
COURSE OF SUCH HOLDERS' BUSINESS AND SUCH HOLDERS ARE NOT PARTICIPATING IN, AND
HAVE NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN, THE
DISTRIBUTION OF SUCH NEW NOTES.
THE UNDERSIGNED ACKNOWLEDGES THAT ANY HOLDER OF PRIVATE NOTES USING THE
EXCHANGE OFFER TO PARTICIPATE IN A DISTRIBUTION OF THE NEW NOTES (i) CANNOT RELY
ON THE POSITION OF THE STAFF OF THE SEC ENUNCIATED IN ITS INTERPRETIVE LETTERS
AND (ii) MUST COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF THE SECURITIES ACT IN CONNECTION WITH A SECONDARY RESALE TRANSACTION.
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If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of New
Notes.
If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Private Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such New Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
The undersigned represents that: (i) it is not an affiliate (as defined in
Rule 405 under the Securities Act) of the Company; (ii) it is not a
broker-dealer tendering Private Notes acquired for its own account directly from
the Company; (iii) any New Notes to be received by it will be acquired in the
ordinary course of its business whether or not such person is the holder; and
(iv) it is not engaged in, and does not intend to engage in, a distribution of
such New Notes and has no arrangement or understanding with any person to
participate in a distribution of Notes.
If a holder of Private Notes is engaged in or intends to engage in a
distribution of New Notes or has any arrangement or understanding with respect
to the distribution of New Notes to be acquired pursuant to the Exchange Offer,
such holder may not rely on the applicable interpretations of the staff of the
Commission and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any secondary resale
transaction.
The Company agrees that, subject to the provisions of the Registration
Rights Agreement, the Prospectus may be used by a Participating Broker-Dealer
(as defined below) in connection with resales of New Notes received in exchange
for Private Notes, where such Private Notes were acquired by such Participating
Broker-Dealer for its own account as a result of market-making activities or
other trading activities and has not entered into any arrangement or
understanding with the Company or any "affiliate" of the Company (within the
meaning of Rule 405 under the Securities Act) to distribute the New Notes to be
received in the Exchange Offer, for a period of time of up to 270 days after 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 acquired Private Notes for its own account as a
result of market-making or other trading activities (a "Participating
Broker-Dealer"), by tendering such Private Notes and executing this Letter of
Transmittal, agrees that, upon receipt of notice from the Company of the
occurrence of any event or the discovery of any fact which makes any statement
contained or incorporated by reference in the Prospectus untrue in any material
respect or which causes the Prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
therein, in light of the circumstances under which they were made, not
misleading or of the occurrence of certain other events specified in the
Registration Rights Agreement, such Participating Broker-Dealer will suspend the
sale of New Notes pursuant to the Prospectus until the Company has amended or
supplemented the Prospectus 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.
The undersigned understands that tenders of the Private Notes pursuant to
any one of the procedures described under "The Exchange Offer-Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Company in accordance with the
terms and subject to the conditions set forth herein and in the Prospectus.
The undersigned recognizes that under certain circumstances set forth in
the Prospectus under "The Exchange Offer-Conditions" the Company will not be
required to accept for exchange any of the Private Notes tendered. Private Notes
not accepted for exchange or withdrawn will be returned to the undersigned at
the address set forth below unless otherwise indicated under "Special Delivery
5
Instructions" below (or, in the case of Private Notes tendered by book-entry
transfer, credited to an account maintained by the tendering holder at DTC).
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Notes (and, if
applicable, any substitute certificates representing Private Notes not exchanged
or not accepted for exchange) be issued in the name(s) of the undersigned and be
delivered to the undersigned at the address, or, in the case of book-entry
transfer of Private Notes, be credited to the account at DTC shown above in the
box entitled "Description of Private Notes."
Holders of the Private Notes whose Private Notes are accepted for exchange
will not receive accrued interest on such Private Notes for any period from and
after the last interest payment date to which interest has been paid or duly
provided for on such Private Notes prior to the original issue date of the New
Notes or, if no such interest has been paid or duly provided for, will not
receive any accrued interest on such Private Notes. The undersigned waives the
right to receive any interest on such Private Notes accrued from and after such
interest payment date or, if no such interest has been paid or duly provided
for, from and after the original issue date of the New Notes. Interest on the
New Notes will accrue from the last interest payment date on which interest was
paid on the Private Notes surrendered in exchange for New Notes.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Private Notes tendered hereby. All
authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. This tender
may be withdrawn only in accordance with the procedures set forth in the
Prospectus and in the instructions contained in this Letter of Transmittal.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF PRIVATE
NOTES" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL AND DELIVERING SUCH PRIVATE
NOTES AND THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT, WILL BE DEEMED TO
HAVE TENDERED THE PRIVATE NOTES AS SET FORTH IN SUCH BOX ABOVE. ANY FINANCIAL
INSTITUTION THAT IS A PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY'S SYSTEM
MAY MAKE BOOK-ENTRY DELIVERY OF PRIVATE NOTES BY CAUSING THE BOOK-ENTRY TRANSFER
FACILITY TO TRANSFER SUCH PRIVATE NOTES INTO THE EXCHANGE AGENT'S ACCOUNT AT THE
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES. ALTHOUGH DELIVERY OF PRIVATE NOTES MAY BE EFFECTED
THROUGH BOOK-ENTRY TRANSFER AT THE BOOK-ENTRY TRANSFER FACILITY, THIS LETTER OF
TRANSMITTAL WITH ALL REQUIRED SIGNATURE GUARANTEES AND ALL OTHER REQUIRED
DOCUMENTS MUST BE TRANSMITTED TO AND RECEIVED BY THE EXCHANGE AGENT.
6
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
X___________________________ Date: _________________, 2004
X___________________________ Date: _________________, 2004
Signature(s) of Owner
The above lines must be signed by the registered holder(s) exactly as
their name(s) appear(s) on the Private Notes, or by person(s) authorized to
become registered holder(s) by a properly completed bond power from the
registered holder(s), a copy of which must be transmitted with this Letter of
Transmittal. If Private Notes to which this Letter of Transmittal relate are
held of record by two or more joint holders, then all such holders must sign
this Letter of Transmittal. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, then please set forth
full title. See Instruction 4.
Name(s):________________________________________________________
________________________________________________________________
(Please Type or Print)
Capacity:_______________________________________________________
Address:________________________________________________________
________________________________________________________________
(Including Zip Code)
Area Code and Telephone Number:_________________________________
Tax Identification or Social Security Number(s):________________
SIGNATURE GUARANTEED
(IF REQUIRED BY INSTRUCTION 4)
Signatures Guaranteed
by an Eligible Institution:_____________________________________
(Authorized Signature)
________________________________________________________________
(Title)
________________________________________________________________
(Name of Firm)
________________________________________________________________
(Address and Telephone Number)
Dated: _______________, 2004
7
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Private Notes not exchanged and/or New
Notes are to be issued in the name of and sent to someone other than the person
or persons whose signature(s) appear(s) on the Letter of Transmittal above.
Issue New Notes and/or Private Notes to:
Name(s):____________________________________
(Please Type or Print)
____________________________________________
(Please Type or Print)
Address:____________________________________
____________________________________________
(Zip Code)
Telephone Number:___________________________
Tax Identification or
Social Security Number(s):__________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Private Notes not exchanged and/or New
Notes are to be sent to someone other than the person or persons whose
signature(s) appear(s) on the Letter of Transmittal above or to such person or
persons at an address other than that shown in the box above entitled
"Description of Private Notes".
Deliver New Notes and/or Private Notes to:
Name(s):____________________________________
(Please Type or Print)
____________________________________________
(Please Type or Print)
Address:____________________________________
____________________________________________
(Zip Code)
Telephone Number:___________________________
Tax Identification or
Social Security Number(s):__________________
(Complete Substitute Form W-9)
IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS
LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATE(S)
FOR PRIVATE NOTES AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE
EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND PRIVATE NOTES.
This Letter of Transmittal must accompany (i) all certificates
representing Private Notes tendered pursuant to the Exchange Offer and (ii) all
tenders of Private Notes made pursuant to the procedures for book-entry transfer
set forth in the Prospectus under "The Exchange Offer--Procedures for
Tendering." Certificates representing the Private Notes in proper form for
transfer, or a timely confirmation of a book-entry transfer of such Private
Notes into the Exchange Agent's account at DTC, as well as a properly completed
and duly executed copy of this Letter of Transmittal (or facsimile thereof),
with any required signature guarantees, a Substitute Form W-9 (or facsimile
thereof) and any other documents required by this Letter of Transmittal must be
received by the Exchange Agent at its address set forth herein on or before the
Expiration Date.
The method of delivery of this Letter of Transmittal, the Private Notes
and all other required documents is at the election and risk of the tendering
holders, but delivery will be deemed made only when actually received or
confirmed by the Exchange Agent. If such delivery is by mail, it is recommended
that registered mail properly insured, with return receipt requested, be used.
In all cases, sufficient time should be allowed to permit timely delivery.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEED DELIVERY PROCEDURES.
If a holder desires to tender Private Notes, but time will not permit a
Letter of Transmittal, certificates representing the Private Notes to be
tendered or other required documents to reach the Exchange Agent on or before
the Expiration Date, or if the procedure for book-entry transfer cannot be
completed on or prior to the Expiration Date, such holder's tender may be
effected if:
(a) such tender is made by or through an Eligible Institution (as
defined below);
(b) on or before the Expiration Date, the Exchange Agent has
received a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Company (or a
facsimile thereof with receipt confirmed by telephone and an original
delivered by guaranteed overnight courier) from such Eligible Institution
setting forth the name and address of the holder of such Private Notes,
the name(s) in which the Private Notes are registered and the principal
amount of Private Notes tendered and stating that the tender is being made
thereby and guaranteeing that, within three New York Stock Exchange
trading days after the Expiration Date, certificates representing Private
Notes to be tendered, in proper form for transfer, or a Book-Entry
confirmation, as the case may be, together with a duly executed Letter of
Transmittal and any other documents required by this Letter of Transmittal
and the instructions hereto, will be deposited by such Eligible
Institution with the Exchange Agent; and
(c) a Letter of Transmittal (or a facsimile thereof) and
certificates representing the Private Notes to be tendered, in proper form
for transfer, or a book-entry confirmation, as the case may be, and all
other required documents are received by the Exchange Agent within three
New York Stock Exchange trading days after the Expiration Date.
3. PARTIAL TENDERS AND WITHDRAWAL RIGHTS.
9
Tenders of Private Notes will be accepted only in integral multiples of
$1,000. If less than all the Private Notes evidenced by any Certificate
submitted are to be tendered, fill in the principal amount of Private Notes
which are to be tendered in the box entitled "Principal Amount of Private Notes
Tendered (if less than all)". In such case, new certificate(s) for the remainder
of the Private Notes that were evidenced by your old certificate(s) will only be
sent to the holder of the Private Notes (or, in the case of Private Notes
tendered pursuant to book-entry transfer, will only be credited to the account
at DTC maintained by the holder of the Private Notes) promptly after the
Expiration Date. All Private Notes represented by certificates or subject to a
book-entry confirmation delivered to the Exchange Agent will be deemed to have
been tendered unless otherwise indicated.
Any holder who has tendered Private Notes may withdraw the tender by
delivering written notice of withdrawal (which may be sent by facsimile) to the
Exchange Agent at its address set forth herein prior to the Expiration Date. Any
such notice of withdrawal must specify the name of the person having tendered
the Private Notes to be withdrawn, identify the Private Notes to be withdrawn
(including the principal amount of such Private Notes) and (where certificates
for Private Notes have been transmitted) specify the name in which such Private
Notes are registered, if different from that of the withdrawing holder. If
certificates for Private Notes have been delivered or otherwise identified to
the Exchange Agent, then, prior to the withdrawal of such certificates, the
withdrawing holder must also submit the serial numbers of the particular
certificates to be withdrawn and a signed notice of withdrawal with signatures
guaranteed by an Eligible Institution unless such holder is an Eligible
Institution. If Private Notes have been tendered pursuant to the procedure for
book-entry transfer described above, any notice of withdrawal must specify the
name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Private Notes and otherwise comply with the
procedures of such facility. All questions as to the validity, form and
eligibility (including time of receipt) of such notices will be determined by
the Company, whose determination shall be final and binding on all parties. Any
Private Notes so withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the Exchange Offer. Any Private Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder (or, in the case of
Private Notes tendered by book-entry transfer into the Exchange Agent's account
at the book-entry transfer facility pursuant to the book-entry transfer
procedures described above, such Private Notes will be credited to an account
maintained with such book-entry transfer facility for the Private Notes) as soon
as practicable after withdrawal, rejection of tender or termination of the
Exchange Offer. Properly withdrawn Private Notes may be retendered following one
of the procedures described in the Prospectus under "The Exchange
Offer--Procedures for Tendering".
4. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered holder of the
Private Notes tendered herewith, the signature must correspond exactly with the
name as written on the face of the certificates without any alteration,
enlargement or change whatsoever.
If any tendered Private Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any tendered
Private Notes are registered in different names on several certificates, it will
be necessary to complete, sign and submit as many separate copies of this Letter
of Transmittal as there are names in which tendered Private Notes are
registered.
If this Letter of Transmittal is signed by the registered holder, and New
Notes are to be issued and any untendered or unaccepted principal amount of
Private Notes are to be reissued or returned to the registered holder, then the
registered holder need not and should not endorse any tendered Private Notes nor
provide a separate bond power. In any other case, the registered holder must
either properly endorse the Private Notes tendered or transmit a properly
completed separate bond power with this Letter of Transmittal (in either case,
executed exactly as the name of the registered holder appears on such Private
10
Notes), with the signature on the endorsement or bond power guaranteed by an
Eligible Institution, unless such certificates or bond powers are signed by an
Eligible Institution.
If this Letter of Transmittal or any Private Notes or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and submit with this
Letter of Transmittal evidence satisfactory to the Company of their authority to
so act.
The signatures on this Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed unless the Private Notes surrendered for
exchange pursuant thereto are tendered (i) by a registered holder (which term,
for purposes of this document, shall include any participant in DTC whose name
appears on the register of holders maintained by the Company as owner of the
Private Notes) who has not completed the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in this Letter of Transmittal
or (ii) for the account of an Eligible Institution. In the event that the
signatures in this Letter of Transmittal or a notice of withdrawal, as the case
may be, are required to be guaranteed, such guarantees must be by a commercial
bank or trust company located or having an office or correspondent in the United
States, or by a member firm of a national securities exchange or of the National
Association of Securities Dealers, Inc., or which is otherwise an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the United
States Securities Exchange Act of 1934, as amended (any of the foregoing being
referred to herein as an "Eligible Institution"). If Private Notes are
registered in the name of a person other than the signer of this Letter of
Transmittal, the Private Notes surrendered for exchange must be endorsed by, or
be accompanied by a written instrument or instruments of transfer or exchange,
in satisfactory form as determined by the Company in its sole discretion, duly
executed by the registered holder with the signature thereon guaranteed by an
Eligible Institution.
5. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Private Notes should indicate in the applicable box
the name and address or account at DTC to which New Notes issued pursuant to the
Exchange Offer and/or substitute Private Notes for principal amounts not
tendered or not accepted for exchange are to be issued, sent or deposited if
different from the name and address or account of the person signing this Letter
of Transmittal. In the case of issuance in a different name, the employer
identification or Social Security number of the person named must also be
indicated. If no such instructions are given, any New Notes will be issued in
the name of, and delivered to, the name and address (or account at DTC, in the
case of any tender by book-entry transfer) of the person signing this Letter of
Transmittal, and any Private Notes not accepted for exchange will be returned to
the name and address (or account at DTC, in the case of any tender by book-entry
transfer) of the person signing this Letter of Transmittal.
6. BACKUP FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM W-9.
Under the federal income tax laws, payments that may be made by the
Company on account of New Notes issued pursuant to the Exchange Offer may be
subject to backup withholding. Currently, the backup withholding rate is 28%. In
order to avoid such backup withholding, each tendering holder should complete
and sign the Substitute Form W-9 included in this Letter of Transmittal and
either (a) provide the correct taxpayer identification number ("TIN") and
certify, under penalties of perjury, that the TIN provided is correct and that
(i) the holder has not been notified by the Internal Revenue Service (the "IRS")
that the holder is subject to backup withholding as a result of failure to
report all interest or dividends or (ii) the IRS has notified the holder that
the holder is no longer subject to backup withholding; or (b) provide an
adequate basis for exemption. If the tendering holder has not been issued a TIN
and has applied for one, or intends to apply for one in the near future, such
holder should write "Applied For" in the space provided for the TIN in Part I of
the Substitute Form W-9, sign and date the Substitute Form W-9 and sign the
Certificate of Payee Awaiting Taxpayer Identification Number. If "Applied For"
is written in Part I, the Company (or the Paying Agent under the Indenture
governing the
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New Notes) will retain a portion of payments made to the tendering holder during
the 60-day period following the date of the Substitute Form W-9 in an amount
sufficient to cover the backup withholding tax on such payments. If the holder
furnishes the Exchange Agent or the Company with its TIN within 60 days after
the date of the Substitute Form W-9, the Company (or Paying Agent) will remit
such amounts retained during the 60-day period to the holder and no further
amounts shall be retained or withheld from payments made to the holder
thereafter. If, however, the holder has not provided the Exchange Agent or the
Company with its TIN within such 60-day period, the Company (or the Paying
Agent) will remit such previously retained amounts to the IRS as backup
withholding. In general, if a holder is an individual, the taxpayer
identification number is the Social Security Number of such individual. If the
Exchange Agent or the Company is not provided with the correct taxpayer
identification number, the holder may be subject to a U.S. $50 penalty imposed
by the IRS. Certain holders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such holder must submit a statement (generally, IRS Form
W-8BEN), signed under penalties of perjury, attesting to that individual's
exempt status. Such statements can be obtained from the Exchange Agent. For
further information concerning backup withholding and instructions for
completing the Substitute Form W-9 (including how to obtain a taxpayer
identification number if you do not have one and how to complete the Substitute
Form W-9 if Private Notes are registered in more than one name), consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (the "Guidelines").
Failure to complete the Substitute Form W-9 will not, by itself, cause
Private Notes to be deemed invalidly tendered, but may require the Company (or
the Paying Agent) to backup withhold with respect to any payments made on
account of the New Notes. Backup withholding is not an additional federal income
tax. Rather, the federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
7. TRANSFER TAXES.
We will pay all transfer taxes, if any, applicable to the exchange of
Private Notes for New Notes pursuant to the exchange offer. If, however,
certificates representing New Notes or Private Notes for principal amounts not
tendered or accepted for exchange are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered holder
of the Private Notes tendered, or if tendered Private Notes are registered in
the name of any person other than the person signing the letter of transmittal,
or if a transfer tax is imposed for any reason other than the exchange of
Private Notes pursuant to the Exchange Offer, then the amount of any such
transfer taxes, whether imposed on the registered holder or any other persons,
will be payable by the tendering holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted with the letter of
transmittal, the amount of such transfer taxes will be billed by us directly to
such tendering holder.
8. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive, in whole or in part, any
of the conditions to the Exchange Offer set forth in the Prospectus.
9. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders of Private
Notes or transmittals of this Letter of Transmittal will be accepted. All
tendering holders of Private Notes, by execution of this Letter of Transmittal,
shall waive any right to receive notice of the acceptance of their Private Notes
for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of defects or irregularities in any tender, nor shall any of them
incur any liability for failure to give any such notice.
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10. INADEQUATE SPACE.
If the space provided herein is inadequate, the aggregate principal amount
of Private Notes being tendered and the certificate number or numbers (if
applicable) should be listed on a separate schedule attached hereto and
separately signed by all parties required to sign this Letter of Transmittal.
11. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES.
If any certificate has been lost, mutilated, destroyed or stolen, the
holder should promptly notify Wilmington Trust Company at (302) 636-6470. The
holder will then be instructed as to the steps that must be taken to replace the
certificate. This Letter of Transmittal and related documents cannot be
processed until the Private Notes have been replaced.
12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent at the address and telephone number indicated
above.
13. VALIDITY OF TENDERS.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of tendered Private Notes will be determined by the
Company, in its sole discretion, which determination will be final and binding.
The Company reserves the right to reject any and all Private Notes not validly
tendered or any Private Notes, the Company's acceptance of which may, in the
opinion of the Company or counsel to the Company, be unlawful. The Company also
reserves the right to waive any conditions of the Exchange Offer or defects or
irregularities in tenders of Private Notes as to any ineligibility of any holder
who seeks to tender Private Notes in the Exchange Offer, whether or not similar
conditions or irregularities are waived in the case of other holders. Any such
waiver shall not constitute a general waiver of the conditions of the Exchange
Offer by the Company. The interpretation of the terms and conditions of the
Exchange Offer (including this Letter of Transmittal and the instructions
hereto) by the Company shall be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of Private Notes must
be cured within such time as the Company shall determine. The Company will use
reasonable efforts to give notification of defects or irregularities with
respect to tenders of Private Notes, but neither the Company nor the Exchange
Agent shall incur any liability for failure to give such notification.
14. ACCEPTANCE OF TENDERED PRIVATE NOTES AND ISSUANCE OF NEW NOTES; RETURN OF
PRIVATE NOTES.
Subject to the terms and conditions of the Exchange Offer, the Company
will accept for exchange all validly tendered Private Notes as soon as
practicable after the Expiration Date and will issue New Notes therefor as soon
as practicable thereafter. For purposes of the Exchange Offer, the Company shall
be deemed to have accepted tendered Private Notes when, as and if the Company
has given written and oral notice thereof to the Exchange Agent. If any tendered
Private Notes are not exchanged pursuant to the Exchange Offer for any reason,
such unexchanged Private Notes will be returned, without expense, to the name
and address shown above or, if Private Notes have been tendered by book-entry
transfer, to the account at DTC shown above, or at a different address or
account at DTC as may be indicated under "Special Delivery Instructions".
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TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 6)
PAYOR'S NAME:
SUBSTITUTE FORM W-9 PART I -- TAXPAYER IDENTIFICATION NUMBER
Department of the Treasury Enter your taxpayer
Internal Revenue Service identification number in the _______________________
appropriate box. For most Social Security Number
individuals, this is your social
security number. If you do not OR
have a number, see how to
obtain a "TIN" in the enclosed _______________________
Guidelines. Employer Identification
Number
NOTE: If the account is in
more than one name, see the
chart on page 2 of the enclosed
Guidelines to determine what
number to give.
--------------------------------------------------------------
PART II--FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING
(SEE ENCLOSED GUIDELINES)
--------------------------------------------------------------
Payor's Request for Taxpayer CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I
Identification Number (TIN) CERTIFY THAT:
and Certification (1) I am a U.S. person and the number shown on this
form is my correct Taxpayer Identification Number (or
I am waiting for a number to be issued to me), and
(2) I am not subject to backup withholding either
because I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject to
backup withholding as a result of a failure to report
all interest or dividends or the IRS has notified me
that I am no longer subject to backup withholding.
SIGNATURE __________________________ DATE ____________________
________________________________________________________________________________
Certificate Guidelines --You must cross out Item (2) of the above certification
if you have been notified by the IRS that you are subject to backup withholding
because of under-reporting of interest on dividends on your tax return. However,
if after being notified by the IRS that you were subject to backup withholding,
you received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out Item 2.
________________________________________________________________________________
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CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification
Number has not been issued to me and that I mailed or delivered an application
to receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail or
deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payor, an amount sufficient to
cover the backup withholding tax at the specified rate, currently 28%, will be
retained on payments made to me on account of the New Notes until I provide a
Taxpayer Identification Number to the payor 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 a backup withholding and all
reportable payments made to me thereafter will be subject to backup withholding
and remitted to the Internal Revenue Service until I provide a Taxpayer
Identification Number.
SIGNATURE __________________________ DATE _____________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING ON ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE NEW NOTES. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
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