EXHIBIT 99.4
ENCORE ACQUISITION COMPANY
LETTER OF TRANSMITTAL
FOR TENDER OF ALL OUTSTANDING
6.25% SENIOR SUBORDINATED NOTES DUE 2014
IN EXCHANGE FOR REGISTERED
6.25% SENIOR SUBORDINATED NOTES DUE 2014
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2004, UNLESS SOONER TERMINATED OR EXTENDED (THE "EXPIRATION DATE"). OUTSTANDING
NOTES TENDERED IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00
P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
If you wish to accept the Exchange Offer, this letter of transmittal should
be completed, signed and delivered to the Exchange Agent:
WELLS FARGO BANK, NATIONAL ASSOCIATION
(800) 344-5128
BY OVERNIGHT DELIVERY, COURIER OR MAIL
(OVERNIGHT DELIVERY OR COURIER RECOMMENDED;
IF BY MAIL, REGISTERED OR CERTIFIED MAIL RECOMMENDED):
Wells Fargo Bank, National Association
Corporate Trust Operations
MAC N9303-121
Sixth and Marquette
Minneapolis, MN 55479
REGISTERED OR CERTIFIED MAIL:
Wells Fargo Bank, National Association
Corporate Trust Operations
MAC N9303-121
P.O. Box 1517
Minneapolis, MN 55480-1517
BY FACSIMILE TRANSMISSION (ELIGIBLE INSTITUTIONS ONLY):
(612) 667-4927
Confirm by Telephone:
(800) 344-5128
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION VIA FACSIMILE TO A NUMBER OTHER THAN THE ONE LISTED ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF
TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THE LETTER OF TRANSMITTAL IS
COMPLETED.
The undersigned hereby acknowledges receipt and review of the prospectus
dated , 2004 (the "Prospectus"), of Encore Acquisition Company (the
"Issuer") and this letter of transmittal. These two documents together
constitute the offer by the Issuer and its restricted subsidiaries (the
"Guarantors") to exchange the Issuer's 6.25% Senior Subordinated Notes due 2014
fully and unconditionally guaranteed by the Guarantors (the "Exchange Notes"),
the issuance of which has been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like principal amount of the Issuer's
issued and outstanding unregistered 6.25% Senior Subordinated Notes due 2014
fully and unconditionally guaranteed by the Guarantors (the "Outstanding
Notes"). The offer to exchange the Exchange Notes for the Outstanding Notes is
referred to as the "Exchange Offer."
The Issuer reserves the right, at any time or from time to time, to extend
the period of time during which the Exchange Offer for the Outstanding Notes is
open, at its discretion, in which event the term "Expiration Date" shall mean
the latest date to which the Exchange Offer is extended. The Issuer shall notify
Wells Fargo Bank, National Association (the "Exchange Agent") of any extension
by oral or written notice and shall make a public announcement thereof no later
than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date.
This letter of transmittal is to be used by a holder of Outstanding Notes
if
- certificates of Outstanding Notes are to be forwarded herewith or
- delivery of Outstanding Notes is to be made by book-entry transfer to the
account maintained by the Exchange Agent at The Depository Trust Company
("DTC") pursuant to the procedures set forth in the Prospectus under the
caption "The Exchange Offer -- Procedures for Tendering -- Book-Entry
Transfer" and an "agent's message" is not delivered as described in the
Prospectus under the caption "The Exchange Offer -- Procedures for
Tendering -- Tendering Through DTC's Automated Tender Offer Program."
Tenders by book-entry transfer may also be made by delivering an agent's message
in lieu of this letter of transmittal pursuant to DTC's Automated Tender Offer
Program ("ATOP"). Holders of Outstanding Notes whose Outstanding Notes are not
immediately available, or who are unable to deliver their Outstanding Notes,
this letter of transmittal and all other documents required hereby to the
Exchange Agent or to comply with the applicable procedures under DTC's ATOP on
or prior to the Expiration Date, must tender their Outstanding Notes according
to the guaranteed delivery procedures set forth in the Prospectus under the
caption "The Exchange Offer -- Guaranteed Delivery Procedures." See Instruction
2 of this letter of transmittal. DELIVERY OF DOCUMENTS TO DTC DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The term "holder" with respect to the Exchange Offer for Outstanding Notes
means any person in whose name such Outstanding Notes are registered on the
books of the registrar for the Outstanding Notes, any person who holds such
Outstanding Notes and has obtained a properly completed bond power from the
registered holder or any participant in the DTC system whose name appears on a
security position listing as the holder of such Outstanding Notes and who
desires to deliver such Outstanding Notes by book-entry transfer at DTC. The
undersigned has completed, executed and delivered this letter of transmittal to
indicate the action the undersigned desires to take with respect to the Exchange
Offer. Holders who wish to tender their Outstanding Notes must complete this
letter of transmittal in its entirety (unless such Outstanding Notes are to be
tendered by book-entry transfer and an agent's message is delivered in lieu
hereof pursuant to DTC's ATOP).
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF
TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE
DIRECTED TO THE EXCHANGE AGENT.
2
List below the Outstanding Notes tendered under this letter of transmittal.
If the space below is inadequate, list the registered numbers and principal
amounts on a separate signed schedule and affix the list to this letter of
transmittal.
<Table>
<Caption>
- -------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OUTSTANDING NOTES TENDERED
- -------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF
REGISTERED HOLDER(S) EXACTLY
AS NAME(S) APPEAR(S) ON
OUTSTANDING NOTES (PLEASE FILL
IN, IF BLANK) OUTSTANDING NOTE(S) TENDERED
- -------------------------------------------------------------------------------------------------------------
AGGREGATE PRINCIPAL
AMOUNT
REPRESENTED PRINCIPAL AMOUNT
REGISTERED NUMBER(S)* BY NOTE(S) TENDERED**
-----------------------------------------------------------------------------
--------------------------------------------------
--------------------------------------------------
-----------------------------------------------------------------------------
Total
- -------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Unless otherwise indicated, any tendering holder of Outstanding Notes will be deemed to have tendered the
entire aggregate principal amount represented by such Outstanding Notes. All tenders must be in integral
multiples of $1,000.
- -------------------------------------------------------------------------------------------------------------
</Table>
[ ] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE AND COMPLETE THE FOLLOWING IF TENDERED OUTSTANDING NOTES ARE
BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY
THE EXCHANGE AGENT WITH DTC (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
Name of Tendering Institution:
- --------------------------------------------------------------------------------
DTC Account Number(s):
- --------------------------------------------------------------------------------
Transaction Code Number(s):
- --------------------------------------------------------------------------------
[ ] CHECK HERE AND COMPLETE THE FOLLOWING IF TENDERED OUTSTANDING NOTES ARE
BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY EITHER ENCLOSED
HEREWITH OR PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT (COPY ATTACHED) (FOR
USE BY ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Holder(s) of Outstanding Notes:
- --------------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
- --------------------------------------------------------------------------------
Window Ticket Number (if available):
- --------------------------------------------------------------------------------
Name of Eligible Institution that Guaranteed Delivery:
- --------------------------------------------------------------------------------
DTC Account Number(s) (if delivered by book-entry transfer):
- --------------------------------------------------------------------------------
Transaction Code Number(s) (if delivered by book-entry transfer):
- --------------------------------------------------------------------------------
3
Name of Tendering Institution (if delivered by book-entry transfer):
- --------------------------------------------------------------------------------
[ ] CHECK HERE AND COMPLETE THE FOLLOWING IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO:
Name:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
4
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to the Issuer and the Guarantors for exchange the principal
amount of Outstanding Notes (including the related guarantees) indicated above.
Subject to and effective upon the acceptance for exchange of the principal
amount of Outstanding Notes tendered in accordance with this letter of
transmittal, the undersigned hereby exchanges, assigns and transfers to, or upon
the order of, the Issuer and the Guarantors all right, title and interest in and
to such Outstanding Notes tendered for exchange hereby. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent the true and lawful
agent and attorney-in-fact for the undersigned (with full knowledge that said
Exchange Agent also acts as the agent for the Issuer and the Guarantors in
connection with the Exchange Offer) with respect to the tendered Outstanding
Notes with full power of substitution to
- deliver such Outstanding Notes, or transfer ownership of such Outstanding
Notes on the account books maintained by DTC, to the Issuer and the
Guarantors, as applicable, and deliver all accompanying evidences of
transfer and authenticity, and
- present such Outstanding Notes for transfer on the books of the Issuer
and receive all benefits and otherwise exercise all rights of beneficial
ownership of such Outstanding Notes, all in accordance with the terms of
the Exchange Offer.
The power of attorney granted in this paragraph shall be deemed to be
irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the
Outstanding Notes tendered hereby and to acquire the Exchange Notes issuable
upon the exchange of such tendered Outstanding Notes, and that the Issuer and
the Guarantors will acquire good and unencumbered title thereto, free and clear
of all liens, restrictions, charges and encumbrances and not subject to any
adverse claim, when the same are accepted for exchange by the Issuer and the
Guarantors.
The undersigned acknowledges that the Exchange Offer is being made in
reliance upon interpretations set forth in no-action letters issued to third
parties by the staff of the Securities and Exchange Commission (the "SEC"),
including Exxon Capital Holdings Corporation (available May 13, 1988), Morgan
Stanley & Co. Incorporated (available June 5, 1991), Mary Kay Cosmetics,
Inc. (available June 5, 1991), Shearman & Sterling (available July 2, 1993) and
similar no-action letters (the "Prior No-Action Letters"), that the Exchange
Notes issued in exchange for the Outstanding Notes pursuant to the Exchange
Offer may be offered for resale, resold and otherwise transferred by holders
thereof (other than any such holder that is an "affiliate" of the Issuer or any
Guarantor 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 Exchange Notes are acquired in the ordinary
course of such holders' business and such holders are not engaged in, and do not
intend to engage in, and have no arrangement or understanding with any person to
participate in, a distribution of such Exchange Notes. The SEC has not, however,
considered the Exchange Offer in the context of a no-action letter, and there
can be no assurance that the staff of the SEC would make a similar determination
with respect to the Exchange Offer as it has in other circumstances.
The undersigned hereby further represents to the Issuer and the Guarantors
that (i) any Exchange Notes received are being acquired in the ordinary course
of business of the person receiving such Exchange Notes, whether or not the
undersigned, (ii) neither the undersigned nor any such other person has an
arrangement or understanding with any person to participate in the distribution
of the Outstanding Notes or the Exchange Notes within the meaning of the
Securities Act and (iii) neither the holder nor any such other person is an
"affiliate," as defined in Rule 405 under the Securities Act, of the Issuer or
any Guarantor or, if it is such an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
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
Exchange Notes. If the undersigned is a broker-dealer, the undersigned
represents that it will receive Exchange Notes in exchange for Outstanding Notes
that were acquired for its own account as a result of market-making activities
or other trading activities, and it acknowledges that it will deliver a
5
prospectus in connection with any resale of such Exchange 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.
If the undersigned is a broker-dealer, the undersigned represents that it did
not purchase the Outstanding Notes to be exchanged for the Exchange Notes from
the Issuer or any Guarantor. Additionally, the undersigned represents that it is
not acting on behalf of any person who could not truthfully and completely make
the foregoing representations and the representations in the immediately
preceding paragraph.
The undersigned acknowledges that if the undersigned is tendering
Outstanding Notes in the Exchange Offer with the intention of participating in
any manner in a distribution of the Exchange Notes
- the undersigned cannot rely on the position of the staff of the SEC set
forth in the Prior No-Action Letters and, in the absence of an exemption
therefrom, must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction of the Exchange Notes, in which case the registration
statement must contain the selling security holder information required
by Item 507 or Item 508, as applicable, of Regulation S-K under the
Securities Act and
- failure to comply with such requirements in such instance could result in
the undersigned incurring liability for which the undersigned is not
indemnified by the Issuer or any Guarantor.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Issuer to be necessary or
desirable to complete the exchange, assignment and transfer of the Outstanding
Notes tendered hereby, including the transfer of such Outstanding Notes on the
account books maintained by DTC.
For purposes of the Exchange Offer, the Issuer and the Guarantors shall be
deemed to have accepted for exchange validly tendered Outstanding Notes when, as
and if the Issuer gives oral or written notice thereof to the Exchange Agent.
Any tendered Outstanding Notes that are not accepted for exchange pursuant to
the Exchange Offer for any reason will be returned, without expense, to the
undersigned as promptly as practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this letter of
transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this letter of
transmittal shall be binding upon the undersigned's successors, assigns, heirs,
executors, administrators, trustees in bankruptcy and legal representatives.
This tender may be withdrawn only in accordance with the procedures set forth in
the Prospectus under the caption "The Exchange Offer -- Withdrawal of Tenders."
The undersigned acknowledges that the acceptance by the Issuer and the
Guarantors of properly tendered Outstanding Notes pursuant to the procedures
described under the caption "The Exchange Offer -- Procedures for Tendering" in
the Prospectus and in the instructions hereto will constitute a binding
agreement between the undersigned, on one hand, and the Issuer and the
Guarantors, on the other, upon the terms and subject to the conditions of the
Exchange Offer.
The Exchange Offer is subject to certain conditions 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 Issuer), the Issuer and the
Guarantors may not be required to exchange any of the Outstanding Notes tendered
hereby.
Unless otherwise indicated under "Special Issuance Instructions," please
issue the Exchange Notes issued in exchange for the Outstanding Notes accepted
for exchange, and return any Outstanding Notes not tendered or not exchanged, in
the name(s) of the undersigned (or, in the case of a book-entry delivery of
Outstanding Notes, please credit the account indicated above maintained at DTC).
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail or deliver the Exchange Notes issued in exchange for the Outstanding
Notes accepted for exchange and any Outstanding Notes not tendered or not
exchanged (and accompanying documents, as appropriate) to the undersigned at the
address shown below the undersigned's signature(s). In the event that both
"Special Issuance Instructions" and "Special Delivery Instructions" are
completed, please issue the Exchange Notes issued in exchange for the
Outstanding Notes accepted for exchange in the name(s) of, and return any
Outstanding Notes not tendered or not exchanged to, the person(s) (or
account(s)) so indicated. The undersigned recognizes that neither the Issuer nor
any Guarantor has any obligation pursuant to the "Special Issuance Instructions"
and "Special
6
Delivery Instructions" to transfer any Outstanding Notes from the name of the
registered holder(s) thereof if the Issuer and the Guarantors do not accept for
exchange any of the Outstanding Notes so tendered for exchange.
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 6)
To be completed ONLY if (i) Outstanding Notes in a principal amount not
tendered, or Exchange Notes issued in exchange for Outstanding Notes accepted
for exchange, are to be issued in the name of someone other than the
undersigned, or (ii) Outstanding Notes tendered by book-entry transfer that are
not exchanged are to be returned by credit to an account maintained at DTC other
than the DTC Account Number set forth above. Issue Exchange Notes and/or
Outstanding Notes to:
Name:
--------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include ZIP Code)
- --------------------------------------------------------------------------------
(Tax Identification or Social Security Number)
(Please Type or Print)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 6)
To be completed ONLY if Outstanding Notes in a principal amount not
tendered, or Exchange Notes issued in exchange for Outstanding Notes accepted
for exchange, are to be mailed or delivered to someone other than the
undersigned, or to the undersigned at an address other than that shown below the
undersigned's signature. Mail or deliver Exchange Notes and/or Outstanding Notes
to:
Name:
--------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include ZIP Code)
- --------------------------------------------------------------------------------
(Tax Identification or Social Security Number)
(Please Type or Print)
[ ] Credit unexchanged Outstanding Notes delivered by book-entry transfer to
the DTC account number set forth below:
DTC Account
Number: ------------------------------------------------------------------------
7
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT
OUTSTANDING NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9 BELOW)
X ------------------------------------------------------------------------------
X ------------------------------------------------------------------------------
(Signature(s) of Registered Holder(s) of Outstanding Notes)
Dated: ---------------------------------------
(The above lines must be signed by the registered holder(s) of Outstanding Notes
as your/their name(s) appear(s) on the Outstanding Notes or on a security
position listing, 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 Outstanding 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 such person must (i) set forth his or her full title below and
(ii) unless waived by the Issuer, submit evidence satisfactory to the Issuer of
such person's authority so to act. See Instruction 5 regarding the completion of
this letter of transmittal, printed below.)
Name(s):
- --------------------------------------------------------------------------------
(Please Type or Print)
Capacity (full title):
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
Taxpayer Identification or Social Security Number:
- --------------------------------------------------------------------------------
8
MEDALLION SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 5)
Certain signatures must be guaranteed by an Eligible Institution. Please read
Instruction 5 of this letter of transmittal to determine whether a signature
guarantee is required for the tender of your Outstanding Notes.
Signature(s) Guaranteed by an Eligible
Institution: -------------------------------------------------------------------
(Authorized Signature)
- --------------------------------------------------------------------------------
(Title)
- --------------------------------------------------------------------------------
(Name of Firm)
- --------------------------------------------------------------------------------
(Address, Include ZIP Code)
- --------------------------------------------------------------------------------
(Area Code and Telephone Number)
Dated: ---------------------------------------
9
INSTRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Outstanding Notes or Agent's
Message and Book-Entry Confirmations. All physically delivered Outstanding
Notes or any confirmation of a book-entry transfer to the Exchange Agent's
account at DTC of Outstanding Notes tendered by book-entry transfer (a
"Book-Entry Confirmation"), as well as a properly completed and duly executed
copy of this letter of transmittal or facsimile hereof (or an agent's message in
lieu hereof pursuant to DTC's ATOP), and any other documents required by this
letter of transmittal, must be received by the Exchange Agent at its address set
forth herein prior to 5:00 p.m., New York City time, on the Expiration Date, or
the tendering holder must comply with the guaranteed delivery procedures set
forth below. THE METHOD OF DELIVERY OF THE TENDERED OUTSTANDING NOTES, THIS
LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS
AT THE ELECTION AND RISK OF THE HOLDER AND, EXCEPT AS OTHERWISE PROVIDED BELOW,
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE
EXCHANGE AGENT. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT THE HOLDER
USE AN OVERNIGHT OR COURIER SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO
LETTER OF TRANSMITTAL OR OUTSTANDING NOTES SHOULD BE SENT TO THE ISSUER OR ANY
GUARANTOR.
2. Guaranteed Delivery Procedures. Holders who wish to tender their
Outstanding Notes and (a) whose Outstanding Notes are not immediately available,
or (b) who cannot deliver their Outstanding Notes, this letter of transmittal or
any other documents required hereby to the Exchange Agent prior to the
Expiration Date or (c) who are unable to comply with the applicable procedures
under DTC's ATOP prior to the Expiration Date, must tender their Outstanding
Notes according to the guaranteed delivery procedures set forth in the
Prospectus.
Pursuant to such procedures:
- such tender must be made by or through a firm that is a member of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an
office or correspondent in the United States or an "eligible guarantor
institution" within the meaning of Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended, in each case that is a participant in
the Securities Transfer Agents' Medallion Program, the New York Stock
Exchange Medallion Program or the Stock Exchanges' Medallion Program
approved by the Securities Transfer Association Inc. (an "Eligible
Institution");
- prior to 5:00 p.m., New York City time, on the Expiration Date, the
Exchange Agent must have received from the Eligible Institution a
properly completed and duly executed notice of guaranteed delivery (by
facsimile transmission, mail, courier or overnight delivery) or a
properly transmitted agent's message and notice of guaranteed delivery
setting forth the name and address of the holder of the Outstanding
Notes, the registration number(s) of such Outstanding Notes and the total
principal amount of Outstanding Notes tendered, stating that the tender
is being made thereby and guaranteeing that, within three New York Stock
Exchange trading days after the Expiration Date, this letter of
transmittal (or facsimile hereof or an agent's message in lieu hereof)
together with the Outstanding Notes in proper form for transfer (or a
Book-Entry Confirmation) and any other documents required hereby, will be
deposited by the Eligible Institution with the Exchange Agent; and
- this letter of transmittal (or facsimile hereof or an agent's message in
lieu hereof) together with the certificates for all physically tendered
Outstanding Notes in proper form for transfer (or Book-Entry
Confirmation, as the case may be) and all other documents required hereby
are received by the Exchange Agent within three New York Stock Exchange
trading days after the Expiration Date.
Any holder of Outstanding Notes who wishes to tender Outstanding Notes
pursuant to the guaranteed delivery procedures described above must ensure that
the Exchange Agent receives the notice of guaranteed delivery prior to 5:00
p.m., New York City time, on the Expiration Date. Upon request of the Exchange
Agent, a notice of guaranteed delivery will be sent to holders who wish to
tender their Outstanding Notes according to the guaranteed delivery procedures
set forth above.
See "The Exchange Offer -- Guaranteed Delivery Procedures" section of the
Prospectus.
10
3. Tender by Holder. Only a registered holder of Outstanding Notes may
tender such Outstanding Notes in the Exchange Offer. Any beneficial holder of
Outstanding Notes who is not the registered holder and who wishes to tender
should arrange with the registered holder to execute and deliver this letter of
transmittal on his behalf or must, prior to completing and executing this letter
of transmittal and delivering his Outstanding Notes, either make appropriate
arrangements to register ownership of the Outstanding Notes in such holder's
name or obtain a properly completed bond power from the registered holder.
4. Partial Tenders. Tenders of Outstanding Notes will be accepted only in
integral multiples of $1,000. If less than the entire principal amount of any
Outstanding Notes is tendered, the tendering holder should fill in the principal
amount tendered in the fourth column of the box entitled "Description of
Outstanding Notes Tendered" above. The entire principal amount of Outstanding
Notes delivered to the Exchange Agent will be deemed to have been tendered
unless otherwise indicated. If the entire principal amount of all Outstanding
Notes is not tendered, then Outstanding Notes for the principal amount of
Outstanding Notes not tendered and Exchange Notes issued in exchange for any
Outstanding Notes accepted will be returned to the holder as promptly as
practicable after the Outstanding Notes are accepted for exchange.
5. Signatures on this Letter of Transmittal; Bond Powers and Endorsements;
Medallion Guarantee of Signatures. If this letter of transmittal (or facsimile
hereof) is signed by the record holder(s) of the Outstanding Notes tendered
hereby, the signature(s) must correspond exactly with the name(s) as written on
the face of the Outstanding Notes without alteration, enlargement or any change
whatsoever. If this letter of transmittal (or facsimile hereof) is signed by a
participant in DTC, the signature must correspond with the name as it appears on
the security position listing as the holder of the Outstanding Notes. If any
tendered Outstanding Notes are owned of record by two or more joint owners, all
of such owners must sign this letter of transmittal.
If this letter of transmittal (or facsimile hereof) is signed by the
registered holder(s) of Outstanding Notes listed and tendered hereby and the
Exchange Notes issued in exchange therefor are to be issued (or any untendered
principal amount of Outstanding Notes is to be reissued) to the registered
holder(s), then said holder(s) need not and should not endorse any tendered
Outstanding Notes, nor provide a separate bond power. In any other case, such
holder(s) must either properly endorse the Outstanding Notes tendered or
transmit a properly completed separate bond power with this letter of
transmittal, with the signatures on the endorsement or bond power guaranteed by
an Eligible Institution.
If this letter of transmittal (or facsimile hereof) or any Outstanding
Notes or bond powers are signed by one or more 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, unless waived by the Issuer, evidence satisfactory
to the Issuer of their authority to act must be submitted with this letter of
transmittal.
NO SIGNATURE GUARANTEE IS REQUIRED IF
- THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF) IS SIGNED BY THE
REGISTERED HOLDER(S) OF THE OUTSTANDING NOTES TENDERED HEREIN (OR BY A
PARTICIPANT IN DTC WHOSE NAME APPEARS ON A SECURITY POSITION LISTING AS
THE OWNER OF THE TENDERED OUTSTANDING NOTES) AND THE EXCHANGE NOTES ARE
TO BE ISSUED DIRECTLY TO SUCH REGISTERED HOLDER(S) (OR, IF SIGNED BY A
PARTICIPANT IN DTC, DEPOSITED TO SUCH PARTICIPANT'S ACCOUNT AT DTC) AND
NEITHER THE BOX ENTITLED "SPECIAL ISSUANCE INSTRUCTIONS" NOR THE BOX
ENTITLED "SPECIAL DELIVERY INSTRUCTIONS" HAS BEEN COMPLETED OR
- SUCH OUTSTANDING NOTES ARE TENDERED FOR THE ACCOUNT OF AN ELIGIBLE
INSTITUTION.
IN ALL OTHER CASES, ALL SIGNATURES ON THIS LETTER OF TRANSMITTAL (OR FACSIMILE
HEREOF) MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION.
6. Special Issuance and Delivery Instructions. Tendering holders should
indicate, in the applicable box or boxes, the name and address to which Exchange
Notes or substitute Outstanding Notes for principal amounts not tendered or not
accepted for exchange are to be issued or sent, if different from the name and
address of the person signing this letter of transmittal. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated. Holders tendering Outstanding
Notes by book-entry transfer may request that Outstanding Notes not exchanged be
credited to such account maintained at DTC as such noteholder
11
may designate hereon. If no such instructions are given, such Outstanding Notes
not exchanged will be returned to the name and address (or account number) of
the person signing this letter of transmittal.
7. Transfer Taxes. The Issuer and the Guarantors will pay or cause to be
paid all transfer taxes, if any, applicable to the exchange of Outstanding Notes
pursuant to the Exchange Offer. If, however, Exchange Notes or Outstanding 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 Outstanding Notes tendered hereby, or if tendered
Outstanding Notes are registered in the name of any person other than the person
signing this letter of transmittal, or if a transfer tax is imposed for any
reason other than the exchange of Outstanding 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 this letter of transmittal, the amount of such transfer taxes
will be billed directly to such tendering holder and the Exchange Agent will
retain possession of an amount of Exchange Notes with a face amount at least
equal to the amount of such transfer taxes due by such tendering holder pending
receipt by the Exchange Agent of the amount of such taxes.
8. Tax Identification Number. Federal income tax law requires that a
holder of any Outstanding Notes or Exchange Notes must provide the Issuer (as
payor) with its correct taxpayer identification number ("TIN"), which, in the
case of a holder who is an individual, is his or her social security number. If
the Issuer is not provided with the correct TIN, the holder may be subject to a
$50 penalty imposed by the Internal Revenue Service and backup withholding at
the applicable rate on interest and principal payments on the Exchange Notes as
provided by applicable law.
To prevent backup withholding, each tendering holder must provide such
holder's correct TIN by completing the Substitute Form W-9 set forth herein,
certifying 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 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.
If the Exchange Notes will be registered in more than one name or will not be in
the name of the actual owner, consult the instructions on Internal Revenue
Service Form W-9, which may be obtained from the Exchange Agent, for information
on which TIN to report.
If a tendering holder does not have a TIN, such holder should consult the
instructions on Form W-9 concerning applying for a TIN, check the box in Part 3
of the Substitute Form W-9, write "applied for" in lieu of its TIN and sign and
date the form and the Certificate of Awaiting Taxpayer Identification Number.
Checking this box, writing "applied for" on the form and signing such
certificate means that such holder has already applied for a TIN or that such
holder intends to apply for one in the near future. If such holder does not
provide its TIN to the Issuer within 60 days, backup withholding will begin and
continue until such holder furnishes its TIN to the Issuer.
Certain foreign individuals and entities will not be subject to backup
withholding or information reporting if they submit a Form W-8, signed under
penalties of perjury, attesting to their foreign status. A Form W-8 can be
obtained from the Exchange Agent.
The Issuer reserves the right in its sole discretion to take whatever steps
are necessary to comply with the Issuer's obligations regarding backup
withholding.
9. Validity of Tenders. All questions as to the validity, form,
eligibility, time of receipt, acceptance and withdrawal of tendered Outstanding
Notes will be determined by the Issuer in its sole discretion, which
determination will be final and binding. The Issuer reserves the absolute right
to reject any and all Outstanding Notes not properly tendered or any Outstanding
Notes the Issuer's acceptance of which would, in the opinion of the Issuer's
counsel, be unlawful. The Issuer also reserves the absolute right to waive any
conditions of the Exchange Offer or defects or irregularities of tenders as to
particular Outstanding Notes. The Issuer's interpretation of the terms and
conditions of the Exchange Offer (including this letter of transmittal and the
instructions hereto) shall be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of Outstanding Notes
must be cured within such time as the Issuer shall determine. Neither the
Issuer, any Guarantor, the Exchange Agent nor any other
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person shall be under any duty to give notification of defects or irregularities
with respect to tenders of Outstanding Notes nor shall any of them incur any
liability for failure to give such notification.
10. Waiver of Conditions. The Issuer reserves the absolute right to waive,
in whole or part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
11. No Conditional Tender. No alternative, conditional, irregular or
contingent tender of Outstanding Notes will be accepted.
12. Mutilated, Lost, Stolen or Destroyed Outstanding Notes. Any holder
whose Outstanding Notes have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated above for further
instructions. This letter of transmittal and related documents cannot be
processed until the procedures for replacing lost, stolen or destroyed
Outstanding Notes have been followed.
13. Requests for Assistance or Additional Copies. Requests for assistance
or for additional copies of the Prospectus or this letter of transmittal may be
directed to the Exchange Agent at the address or telephone number set forth on
the cover page of this letter of transmittal. Holders may also contact their
broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Exchange Offer.
14. Withdrawal. Tenders may be withdrawn only pursuant to the limited
withdrawal rights set forth in the Prospectus under the caption "The Exchange
Offer -- Withdrawal of Tenders."
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE HEREOF OR
AN AGENT'S MESSAGE IN LIEU HEREOF (TOGETHER WITH THE OUTSTANDING NOTES DELIVERED
BY BOOK-ENTRY TRANSFER OR IN ORIGINAL HARD COPY FORM) MUST BE RECEIVED BY THE
EXCHANGE AGENT, OR THE NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE
EXCHANGE AGENT, PRIOR TO THE EXPIRATION DATE.
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<Table>
<Caption>
- ------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- Please Provide Your TIN in the Box ---------------------------------
FORM W-9 at Right (or Complete Part 3) and Certify by Social Security Number
Signing and Dating Below or
---------------------------------
Employer Identification Number
--------------------------------------------------------------------------------------
</Table>
<Table>
DEPARTMENT OF THE TREASURY PART 2 -- Certification -- Under penalties of perjury, I PART 3
INTERNAL REVENUE SERVICE certify that: Awaiting TIN [ ]
PAYOR'S REQUEST FOR (1) The number shown on this form is my correct Taxpayer
TAXPAYER Identification Number (or I have checked the box in
IDENTIFICATION NUMBER (TIN) Part 3 and executed the Certificate of Awaiting
Taxpayer Identification Number below),
- ---------------------------
Name (2) I am not subject to backup withholding because: (a) Please complete the
- --------------------------- I am exempt from backup withholding, or (b) I have Certificate of Awaiting
Address (Number and Street) not been notified by the Internal Revenue Service Taxpayer Identification
- --------------------------- (IRS) that I am subject to backup withholding as a Number below.
City, State and ZIP Code result of failure to report all interest or
dividends, or (c) the IRS has notified me that I am
no longer subject to backup withholding, and
(3) I am a U.S. Person (including a U.S. resident
alien).
--------------------------------------------------------------------------------------
</Table>
<Table>
Certificate Instructions -- You must cross out item (2) in Part 2 above if you have
been notified by the IRS that you are subject to backup withholding because of
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 ------------------ , 200 --
- -------------------------------------------------------------------------------------------------------------------
</Table>
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING AT THE
APPLICABLE RATE OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE NOTES.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE 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 (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number to the payor within 60
days, the payor is required to withhold the applicable percentage of (1) any
reportable payments thereafter made to me until the payor receives a number and
(2) any withdrawal to the extent of reportable payments made to me during the
60-day period.
<Table>
------------------------------ ------------------------- , 200 ----------
SIGNATURE DATE
</Table>
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