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Exhibit 99.1
LETTER OF TRANSMITTAL
ANKER COAL GROUP, INC.
Offer To Exchange Anker's
14.25% Series B Second Priority Senior Secured Notes due 2007
(PIK through April 1, 2000)
That Have Been Registered Under the Securities Act of 1933
For Any and All of Anker's
14.25% Series A Second Priority Senior Secured Notes due 2007
(PIK through April 1, 2000)
Pursuant to the Prospectus Dated , 1999
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , UNLESS THE EXCHANGE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
BY HAND BY OVERNIGHT COURIER BY FACSIMILE TO CONFIRM BY
DELIVERY: OR REGISTERED/CERTIFIED TRANSMISSION: TELEPHONE OR FOR
The Bank of New York MAIL: (212) 815-6339 INFORMATION:
101 Barclay Street The Bank of New York (212) 815-6331
New York, New York 10286 101 Barclay Street
Ground Level New York, New York 10286
Corporate Trust Services Window Attn: Reorganization Unit -- 7E
Attn: Reorganization Unit -- 7E
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A NUMBER
OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Old Notes (as
defined below) either if Old Notes are to be forwarded herewith or if tenders of
Old Notes are to be made by book-entry transfer to an account maintained by The
Bank of New York (the "Exchange Agent") at The Depository Trust Company ("DTC")
pursuant to the procedures set forth in "The Exchange Offer -- Procedures for
Tendering Old Notes" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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Please list below the Old Notes to which this Letter of Transmittal relates.
If the space provided below is inadequate, please list the certificate numbers
and aggregate principal amounts on a separately executed schedule and affix the
schedule to this Letter of Transmittal.
DESCRIPTION OF NOTES TENDERED
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AGGREGATE
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S), EXACTLY CERTIFICATE AGGREGATE PRINCIPAL PRINCIPAL AMOUNT
AS NAME APPEAR(S) ON CERTIFICATE(S) (PLEASE FILL IN, IF NUMBER(S)* AMOUNT OF OLD NOTES OF OLD NOTES
BLANK) DELIVERED TENDERED FOR
EXCHANGE**
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* Need not be completed by book-entry holders. Such holders should check
the appropriate box below and provide the requested information.
** Need not be completed if tendering for exchange all Old Notes delivered
to the Exchange Agent. All Old Notes delivered shall be deemed tendered
unless a lesser number is specified in this column. The minimum
permitted tender is $1,000 in principal amount of Old Notes. All other
tenders must be in integral multiples of $1,000 of principal amount.
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TENDER OF OLD NOTES
[ ] Check here if tendered Old Notes are enclosed herewith.
[ ] Check here if tendered Old Notes are being delivered by book-entry
transfer made to the account maintained by the Exchange Agent at DTC
and complete the following:
Name of Tendering Institution:_________________________________________
DTC Account Number:____________________________________________________
Transaction Code Number:_______________________________________________
[ ] Check here if tendered Old Notes are being delivered pursuant to a
Notice of Guaranteed Delivery previously delivered to the Exchange
Agent. In such case, please enclose a photocopy of the Notice of
Guaranteed Delivery and complete the following:
Name of Registered Holder(s):__________________________________________
Window Ticket Number (if any):_________________________________________
Date of Execution of Notice of Guaranteed Delivery:____________________
Name of Eligible Institution that Guaranteed Delivery:_________________
[ ] Check here if you are a broker-dealer that acquired the Old Notes for
its own account as a result of market making or other trading
activities (a "Participating Broker-Dealer") and wish to receive 10
additional copies of the Prospectus and 10 copies of any amendments or
supplements thereto. In such case, please complete the following:
Name:__________________________________________________________________
Address:_______________________________________________________________
Area Code and Telephone Number:________________________________________
Contact Person:________________________________________________________
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LADIES AND GENTLEMEN:
The undersigned hereby tenders to Anker Coal Group, Inc., a Delaware corporation
(the "Company") the above described aggregate principal value of the Company's
14.25% Series A Second Priority Senior Secured Notes due 2007 (PIK through April
l, 2000) (the "Old Notes") in exchange for a like aggregate principal value of
the Company's 14.25% Series B Second Priority Senior Secured Notes due 2007 (PIK
through April 1, 2000) (the "New Notes") which have been registered under the
Securities Act 1933 (the "Securities Act"), upon the terms and subject to the
conditions set forth in the Prospectus dated , 1999 (as the same may
be amended or supplemented from time to time, the "Prospectus"), receipt of
which is acknowledged, and in this Letter of Transmittal (which, together with
the Prospectus, constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any portion
of the Old Notes tendered herewith in accordance with the terms and conditions
of the Exchange Offer (including, if the Exchange Offer is extended or amended,
the terms and conditions of any such extension or amendment), the undersigned
hereby sells, assigns and transfers to or upon the order of the Company all
right, title and interest in and to such Old Notes as are being tendered
herewith. The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as its agent and attorney-in-fact (with full knowledge that the
Exchange Agent is also acting as agent of the Company in connection with the
Exchange Offer) with respect to the tendered Old Notes, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver certificates for Old Notes to the Company
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Company, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Notes to be issued in exchange for such Old
Notes, (ii) present certificates for such Old Notes for transfer, and to
transfer the Old Notes on the books of the Company, and (iii) receive for the
account of the Company all benefits and otherwise exercise all rights of
beneficial ownership of such Old Notes, all in accordance with the terms and
conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENT(S) AND WARRANT(S) THAT THE UNDERSIGNED HAS FULL
POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD NOTES
TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE, THE COMPANY
WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF
ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES, AND THAT THE OLD NOTES
TENDERED HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE
UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS
DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO
COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD NOTES TENDERED HEREBY,
AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION
RIGHTS AGREEMENT DATED AS OF OCTOBER 26, 1999, BY AND AMONG THE COMPANY, THE
GUARANTORS LISTED ON SCHEDULE A THERETO AND THE PURCHASERS AND EXCHANGING
NOTEHOLDERS LISTED ON SCHEDULE B THERETO (THE "REGISTRATION RIGHTS AGREEMENT").
THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old Notes
tendered hereby should be printed on page 2, if they are not already set forth
there, as they appear on the certificates (or, in the case of book-entry
securities, on the relevant security position listing) representing such Old
Notes. The certificate number(s) and the principal amount of Old Notes that the
undersigned wishes to tender should be indicated in the appropriate boxes on
page 2.
If any tendered Old Notes are not exchanged pursuant to the Exchange Offer for
any reasons, or if certificates are submitted for more Old Notes than are
tendered or accepted for exchange, certificates for such nonexchanged or
nontendered Old Notes will be returned (or, in the case of Old Notes tendered by
book-entry transfer, such Old Notes will be credited to the appropriate account
maintained at DTC), without expense to the tendering holder, promptly following
the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Notes pursuant to any one of the
procedures described in "The Exchange Offer -- Procedures for Tendering Old
Notes" in the Prospectus and in the instructions hereto will, upon the Company's
acceptance for exchange of such tendered Old Notes, constitute a binding
agreement between the undersigned and the Company upon the terms and subject to
the conditions of the Exchange Offer. The undersigned recognizes that, under
certain circumstances set forth in the Prospectus, the Company may not be
required to accept for exchange any of the Old Notes tendered hereby.
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Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Notes be issued
in the name(s) of the undersigned or, in the case of a book-entry transfer of
Old Notes, that such New Notes be credited to the account indicated above
maintained at DTC. If applicable, substitute certificates representing Old Notes
not tendered or not accepted for exchange will be issued to the undersigned or,
in the case of a book-entry transfer of Old Notes, will be credited to the
account indicated above maintained at DTC. Similarly, unless otherwise indicated
under "Special Delivery Instructions," the undersigned hereby directs that New
Notes be delivered to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING OLD NOTES AND EXECUTING THIS LETTER OF TRANSMITTAL, THE UNDERSIGNED
HEREBY REPRESENTS AND AGREES THAT (i) THE UNDERSIGNED IS NOT AN "AFFILIATE" OF
THE COMPANY WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES ACT, (ii) ANY
NEW NOTES TO BE RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY
COURSE OF ITS BUSINESS, AND (iii) THE UNDERSIGNED HAS NO ARRANGEMENT OR
UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE
MEANING OF THE SECURITIES ACT) OF NEW NOTES TO BE RECEIVED IN THE EXCHANGE
OFFER. BY TENDERING OLD NOTES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS
LETTER OF TRANSMITTAL, A HOLDER OF OLD NOTES THAT IS A BROKER-DEALER REPRESENTS
AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF
THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE COMMISSION
(THE "STAFF") TO THIRD PARTIES, THAT (a) SUCH OLD NOTES HELD BY THE
BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (b) SUCH OLD NOTES WERE ACQUIRED BY
SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES
OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER A PROSPECTUS (AS AMENDED OR
SUPPLEMENTED FROM TIME TO TIME) MEETING THE REQUIREMENTS OF THE SECURITIES ACT
IN CONNECTION WITH ANY SALE OF SUCH NEW NOTES (PROVIDED THAT, BY SO
ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE
DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES
ACT).
THE COMPANY HAS AGREED THAT, SUBJECT TO THE PROVISIONS OF THE REGISTRATION
RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR SUPPLEMENTED FROM TIME
TO TIME, MAY BE USED BY A PARTICIPATING BROKER-DEALER (AS DEFINED BELOW) IN
CONNECTION WITH RESALES OF THE NEW NOTES RECEIVED IN EXCHANGE FOR OLD NOTES
WHERE SUCH OLD NOTES WERE ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES,
FOR A PERIOD ENDING 180 DAYS FROM THE DATE ON WHICH THE REGISTRATION STATEMENT
UNDER WHICH THE EXCHANGE OFFER IS MADE IS DECLARED EFFECTIVE, OR, IF EARLIER,
WHEN ALL SUCH NEW NOTES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING
BROKER-DEALER. IN THAT REGARD, EACH BROKER-DEALER THAT ACQUIRED OLD NOTES FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER"), BY TENDERING SUCH OLD NOTES AND EXECUTING THIS
LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY OF
THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT THAT MAKES ANY
STATEMENT CONTAINED IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR THAT
CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO
MAKE THE STATEMENTS CONTAINED THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THEY WERE MADE, NOT MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS
SPECIFIED IN THE REGISTRATION RIGHTS AGREEMENT, SUCH PARTICIPATING BROKER-DEALER
WILL SUSPEND THE SALE OF NEW NOTES PURSUANT TO THE PROSPECTUS UNTIL THE COMPANY
HAS AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR
OMISSION AND HAS FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO
THE PARTICIPATING BROKER-DEALER OR THE COMPANY HAS GIVEN NOTICE THAT THE SALE OF
THE NEW NOTES MAY BE RESUMED, AS THE CASE MAY BE. IF THE COMPANY GIVES SUCH
NOTICE TO SUSPEND THE SALE OF THE NEW NOTES, IT SHALL EXTEND THE 180-DAY PERIOD
REFERRED TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE
THE PROSPECTUS IN CONNECTION WITH THE RESALE OF NEW NOTES BY THE NUMBER OF DAYS
DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO
AND INCLUDING THE DATE WHEN PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED
COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF
THE NEW NOTES OR TO AND INCLUDING THE DATE ON WHICH THE COMPANY HAS GIVEN NOTICE
THAT THE SALE OF NEW NOTES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Notes whose Old Notes are accepted for exchange will receive
accrued interest thereon to, but not including, the date of issuance of the New
Notes. Such interest will be paid with the first interest payment on the New
Notes, which interest payment will be made by issuing additional New Notes,
instead of cash, as set forth in the Prospectus. Interest on the Old Notes
accepted for exchange will cease to accrue upon issuance of the New Notes.
Interest on the New Notes is payable semi-annually on each April 1 and October 1
of each year.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned, and any
obligation of the undersigned hereunder shall be binding upon the heirs,
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executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned.
Please be advised that the Company is registering the New Notes in reliance on
the position of the Staff enunciated in Exxon Capital Holdings Corp. (available
April 13, 1989) and Morgan Stanley & Co. Incorporated (available June 5, 1991).
The Company has not entered into any arrangement or understanding with any
person to distribute the New Notes to be received in the Exchange Offer and, to
the best of its information and belief, each person participating in the
Exchange Offer is acquiring the New Notes in its ordinary course of business and
has no arrangement or understanding with any person to participate in the
distribution of the New Notes to be received in the Exchange Offer. In this
regard, the undersigned is aware that if the undersigned is participating in the
Exchange Offer for the purpose of distributing the New Notes to be acquired in
the Exchange Offer, the undersigned (a) may not rely on the Staff position
enunciated in Exxon Capital Holdings Corp. or interpretative letters to similar
effect and (b) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction. The undersigned is aware that such a secondary resale transaction
by a person participating in the Exchange Offer for the purpose of distributing
the New Notes should be covered by an effective registration statement
containing the selling securityholder information required by Item 507 of
Regulation S-K.
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, AND 6)
To be completed ONLY if the New Notes or any Old Notes delivered but not
tendered for exchange are to be sent to someone other than the registered holder
of the Old Notes whose name(s) appear(s) above, or such registered holder(s) at
an address other than that shown above.
Issue: [ ] New Notes and/or
[ ] Old Notes delivered but not tendered for exchange
Name(s):________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
(Please Print)
________________________________________________________________________________
________________________________________________________________________________
(Please include ZIP code)
________________________________________________________________________________
Telephone Number with Area Code
________________________________________________________________________________
Tax ID Number
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, AND 6)
To be completed ONLY if the New Notes or any Old Notes delivered but not
tendered for exchange are to be issued in the name of someone other than the
registered holder of the Old Notes whose name(s) appear(s) above.
Issue: [ ] New Notes and/or
[ ] Old Notes delivered but not tendered for exchange
Name(s):________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
(Please Print)
________________________________________________________________________________
________________________________________________________________________________
(Please include ZIP code)
________________________________________________________________________________
Telephone Number with Area Code
________________________________________________________________________________
Tax ID Number
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HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(Please Complete Substitute Form W-9 Contained Herein)
(Note: Signatures Must be Guaranteed if Required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
certificates for the Old Notes tendered (or, in the case of book-entry
securities, on the relevant security position listing), or by any person(s)
authorized to become the registered holder(s) by endorsements and documents
transmitted herewith (including such opinions of counsel, certifications and
other information as may be required by the Company to comply with the
restrictions on transfer applicable to the Old Notes). If signature is by an
attorney-in-fact, executor, administrator, trustee, guardian, officer or a
corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
X ______________________________________________________________________________
X ______________________________________________________________________________
(SIGNATURE(S) OF HOLDER(S) OR AUTHORIZED SIGNATORY)
Date:_____________________________, 1999
Name: __________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT)
Capacity:_______________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
(PLEASE INCLUDE ZIP CODE)
Telephone No. (with area code):_________________________________________________
Tax ID No:______________________________________________________________________
GUARANTEE OF SIGNATURES
(See Instructions 2 and 5 below)
Certain Signatures Must be Guaranteed by an Eligible Institution
________________________________________________________________________________
(AUTHORIZED SIGNATURE)
________________________________________________________________________________
(CAPACITY (FULL TITLE))
________________________________________________________________________________
________________________________________________________________________________
(NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURE)
________________________________________________________________________________
(ADDRESS OF FIRM -- PLEASE INCLUDE ZIP CODE)
________________________________________________________________________________
(TELEPHONE NO. (WITH AREA CODE) OF FIRM)
Date: __________________________, 1999
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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 Old Notes" in the Prospectus. Certificates, or
timely confirmation of a book-entry transfer of such Old Notes into the Exchange
Agent's account at DTC, as well as this Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, and any other documents required by this Letter of Transmittal, must
be received by the Exchange Agent at its address set forth herein on or prior to
the expiration date set forth in the Prospectus (the "Expiration Date").
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver their Old Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent on or prior
to the Expiration Date or (iii) who cannot complete the procedures for delivery
by book-entry transfer on a timely basis, may tender their Old Notes by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth in "The Exchange Offer -- Procedures
for Tendering Old Notes" in the Prospectus. Pursuant to such procedures: (x)
such tender must be made by or through an Eligible Institution (as defined
below); (y) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Company, must be
received by the Exchange Agent on or prior to the Expiration Date; and (z) the
certificates (or a book-entry confirmation (as defined in the Prospectus))
representing all tendered Old Notes, in proper form for transfer, together with
a Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
within three New York Stock Exchange trading days after the date of execution of
such Notice of Guaranteed Delivery, all as provided in "The Exchange Offer --
Procedures for Tendering Old Notes" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Notes to be
properly tendered pursuant to the guaranteed delivery procedure, the Exchange
Agent must receive a Notice of Guaranteed Delivery on or prior to the Expiration
Date. As used herein and in the Prospectus, "Eligible Institution" means a firm
or other entity identified in Rule 17Ad-15 under the Exchange Act as "an
eligible guarantor institution," including (as such terms are defined therein)
(i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency; or
(v) a savings association that is a participant in a Securities Transfer
Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER, AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE
AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
The Company will not accept any alternative, conditional or contingent tenders.
Each tendering holder, by executing 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 the relevant security
position listing as the owner of the Old Notes) of Old Notes
tendered herewith, unless such holder(s) has completed either
the box entitled "Special Issuance Instructions" or the box
entitled "Special Delivery Instructions" above, or
(ii) such Old Notes are tendered for the account of a firm that is
an Eligible Institution.
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In all other cases, an Eligible Institution must guarantee the signature(s) on
this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned "Description of
Old Notes" is inadequate, the certificate number(s) and/or the aggregate
principal amount of Old Notes and any other required information should be
listed on a separate signed schedule that is attached to this Letter of
Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. If less than all the Old Notes
evidenced by any certificate submitted are to be tendered, fill in the aggregate
principal amount of Old Notes that are to be tendered in the box entitled
"Aggregate Principal Amount of Old Notes Tendered for Exchange." In such case,
new certificates(s) for the remainder of the Old Notes that were evidenced by
your old certificate(s) will be sent to the holder of the Old Notes (or such
other party as you identify in the box captioned "Special Delivery
Instructions") promptly after the Expiration Date. All Old Notes represented by
certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Notes may be withdrawn at
any time on or prior to the Expiration Date. In order for a withdrawal to be
effective, a written or facsimile transmission of such notice of withdrawal must
be timely received by the Exchange Agent at its address set forth above on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Old Notes to be withdrawn, the aggregate
principal amount of Old Notes to be withdrawn and (if certificates for Old Notes
have been tendered) the name of the registered holder of the Old Notes as set
forth on the certificate for the Old Notes, if different from that of the person
that tendered such Old Notes. If certificates for the Old Notes have been
delivered or otherwise identified to the Exchange Agent, then prior to the
physical release of such certificates for the Old Notes, the tendering holder
must submit the serial numbers shown on the particular certificates for the Old
Notes to be withdrawn and the signature on the notice of withdrawal must be
guaranteed by an Eligible Institution, except in the case of Old Notes tendered
for the account of an Eligible Institution. If Old Notes have been tendered
pursuant to the procedures for book-entry transfer set forth in "The Exchange
Offer -- Procedures for Tendering 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, in which case a notice of withdrawal will be effective
if delivered to the Exchange Agent by written or facsimile transmission.
Withdrawals of tenders of Old Notes may not be rescinded. Old Notes properly
withdrawn will not be deemed validly tendered for purposes of the Exchange Offer
but may be retendered at any subsequent time on or prior to the Expiration Date
by following any of the procedures described in the Prospectus under "The
Exchange Offer -- Procedures for Tendering Old Notes."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
The Company, any affiliates or assigns of the Company, the Exchange Agent or any
other person shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification. Any Old Notes that have been tendered but that are
withdrawn will be returned to the holder thereof without cost to such holder
promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If this
Letter of Transmittal is signed by the registered holder(s) of the Old Notes
tendered hereby, the signatures(s) must correspond exactly with the name(s) as
written on the face of the certificate(s) (or, in the case of book-entry
securities, on the relevant security position listing) without alteration,
enlargement or any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different name(s) on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal (or facsimiles thereof) as there are different
registrations of certificates.
If this Letter of Transmittal or any certificates or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
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persons should so indicate when signing and must submit proper evidence
satisfactory to the Company, in its sole discretion, of such persons' authority
to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the Old
Notes listed and transmitted hereby, no endorsement(s) of certificate(s) or
separate bond power(s) are required unless New Notes are to be issued in the
name of a person other than the registered holder(s). Signature(s) on such
certificate(s) or bond power(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered
owner(s) of the Old Notes listed, the certificates must be endorsed or
accompanied by appropriate bond powers, signed exactly as the name or names of
the registered owner(s) appear(s) on the certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company may require in accordance with the restrictions on transfer
applicable to the Old Notes. Signatures on such certificates or bond powers must
be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTION. If New Notes are to be issued in
the name of a person other than the signer of this Letter of Transmittal, or if
New Notes are to be sent to someone other than the signer of this Letter of
Transmittal or to an address other than that shown above, the appropriate boxes
on this Letter of Transmittal should be completed. Certificates for Old Notes
not exchanged will be returned by mail or, if tendered by book-entry transfer,
by crediting the account indicated above maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Old Notes, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for, may, in the view of
counsel to the Company, be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer -- Conditions;
Extension; Amendments" or any conditions or irregularity in any tender of Old
Notes of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders. The Company's
interpretation of the terms and conditions of the Exchange Offer (including this
Letter of Transmittal and the instructions hereto) will be final and binding. No
tender of Old Notes will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. The
Company, any affiliates or assigns of the Company, the Exchange Agent or any
other person shall not be under any duty to give notification of any
irregularities in tenders or incur any liability for failure to give such
notification.
8. QUESTIONS, REQUEST FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s) representing
Old Notes have been lost, destroyed or stolen, the holder should promptly notify
the Exchange Agent. The holder will then be instructed as to the steps that must
be taken in order to replace the certificate(s). This Letter of Transmittal and
related documents cannot be processed until the procedures for replacing lost,
destroyed or stolen certificate(s) have been followed.
10. SECURITY TRANSFER TAXES. Holders that tender their Old Notes for exchange
will not be obligated to pay any transfer taxes in connection therewith. If,
however, New Notes are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Notes tendered, or if a
transfer tax is imposed for any reason other than the exchange of Old Notes in
connection with the Exchange Offer, then the amount of any such transfer tax
(whether imposed on the registered holder or any other persons) will be payable
by the tendering holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE
EXPIRATION DATE.
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IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Old Notes are accepted for
exchange is required by law to provide the Exchange Agent with such holder's
correct taxpayer identification number ("TIN") on Substitute Form W-9 included
herein or otherwise establish a basis for exemption from backup withholding. If
such holder is an individual, the TIN is his or her social security number. If
the Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service may subject the holder or transferee to a $50.00 penalty. In addition,
delivery of such holder's New Notes may be subject to backup withholding.
Failure to comply truthfully with the backup withholding requirements also may
result in the imposition of severe criminal and/or civil fines and penalties.
Certain holders (including, among others, all corporations and certain foreign
persons) are not subject to these backup withholding and reporting requirements.
Exempt holders should furnish their TIN, write "Exempt" on the face of the
Substitute Form W-9, and sign, date and return the Substitute Form W-9 to the
Exchange Agent. A foreign person, including entities, may qualify as an exempt
recipient by submitting to the Exchange Agent a properly completed Internal
Revenue Service Form W-8, signed under penalties of perjury, attesting to that
holder's foreign status. A Form W-8 can be obtained from the Exchange Agent. See
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional instruction.
If backup withholding applies, the Exchange Agent is required to withhold 31% of
any payments made to the holder or other transferee. Backup withholding is not
an additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to Old Notes
exchanged in the Exchange Offer, the holder is required to provide the Exchange
Agent with either: (i) the holder's correct TIN by completing the form included
herein, certifying that the TIN provided on Substitute Form W-9 is correct (or
that such holder is awaiting a TIN) and that (A) the holder has not been
notified by the Internal Revenue Service that the holder is subject to backup
withholding as a result of failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the holder that the holder is no
longer subject to backup withholding; or (ii) an adequate basis for exemption.
NUMBER TO GIVE THE EXCHANGE AGENT
The holder is required to give the Exchange Agent the TIN (e.g., social security
number or employer identification number) of the registered holder of the Old
Notes. If the Old Notes are held in more than one name or are held not in the
name of the actual owner, consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which number to report.
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PAYER'S NAME:
SUBSTITUTE
FORM W-9
PAYER'S REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER (TIN)
Social Security Number or
Part I: PLEASE PROVIDE Employer Identification Number:
YOUR TIN IN THE BOX
AT RIGHT AND CERTIFY ______________________________________
BY SIGNING AND
DATING BELOW
Part II: 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)
and
(2) I am not subject to backup withholding because (i) I have not been
notified by the Internal Revenue Service ("IRS") that I am subject to
backup withholding as a result of failure to report all interest or
dividends, or (ii) the IRS has notified me that I am no longer subject
to backup withholding.
________________________________________________________________________________
Part III: Awaiting TIN: [ ]
CERTIFICATE INSTRUCTIONS -- You must cross out item (2) in Part II above if you
have been notified by the IRS that you are subject to backup withholding because
of underreporting interest or dividends on your tax return. However, if after
being notified by the IRS that you are subject to backup withholding you
received another notification from the IRS stating that you are no longer
subject to backup withholding, do not cross out item (2).
Signature:_____________________________ Date:_________________________, 1999
Name:_____________________________
(please print)
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART III OF THIS SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all payments made to me on account of the New Notes shall be retained until I
provide a taxpayer identification number to the Exchange Agent and that, if I do
not provide my taxpayer identification number with 60 days, such retained
amounts shall be remitted to the Internal Revenue Service as backup withholding
and 31% of all reportable payments made to me thereafter will be withheld and
remitted to the Internal Revenue Service until I provide a taxpayer
identification number.
Signature:________________________________ Date:_______________________, 1999
Name:_____________________________________
(please print)
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