EXHIBIT 99.1
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., EASTERN STANDARD TIME, ON
, 2005, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN
PRIOR TO THE EXPIRATION DATE.
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ECHOSTAR DBS CORPORATION
9601 South Meridien Blvd.
Englewood, Colorado 80112
LETTER OF TRANSMITTAL
To Exchange
6 5/8% Senior Notes due 2014
Exchange Agent:
U.S. BANK NATIONAL ASSOCIATION
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TO: U.S. BANK NATIONAL ASSOCIATION
By Facsimile: By mail/hand delivery/overnight delivery:
(651) 495-8158 U.S. Bank National Association
Attention: Specialized Finance Group Attn: Specialized Finance Group
60 Livingston Avenue
Confirm by telephone to: St. Paul, Minnesota 55107
(800) 934-6802
Delivery of this instrument to an address other than as set forth above does not
constitute a valid delivery.
1
The undersigned acknowledges receipt of the Prospectus dated
, 2005 (the "Prospectus") of EchoStar DBS Corporation, a Colorado
corporation (the "Issuer"), and this Letter of Transmittal (this "Letter") for
the Issuer's 6 5/8% Senior Notes due 2014 (the "Old Notes") which may be amended
from time to time, which together constitute the Issuer's offer (the "Exchange
Offer") to exchange $1,000 principal amount of its newly issued 6 5/8% Senior
Notes due 2014 (the "Exchange Notes") for each $1,000 in principal amount of its
outstanding Old Notes that were issued and sold in a transaction exempt from
registration under the Securities Act of 1933, as amended (the "Securities
Act").
The undersigned has completed, executed and delivered this
Letter to indicate the action he or she desires to take with respect to the
Exchange Offer.
All holders of Old Notes who wish to tender their Old Notes
must, prior to the Expiration Date: (1) complete, sign, date and deliver this
Letter, or a facsimile thereof, to the Exchange Agent, in person or to the
address set forth above; and (2) tender his or her Old Notes or, if a tender of
Old Notes is to be made by book-entry transfer to the account maintained by the
Exchange Agent at The Depository Trust Company (the "Book-Entry Transfer
Facility"), confirm such book-entry transfer (a "Book-Entry Confirmation"), in
each case in accordance with the procedures for tendering described in the
Instructions to this Letter. Holders of Old Notes whose certificates are not
immediately available, or who are unable to deliver their certificates or
Book-Entry Confirmation and all other documents required by this Letter to be
delivered to the Exchange Agent on or prior to the Expiration Date, must tender
their Old Notes according to the guaranteed delivery procedures set forth under
the caption "The Exchange Offer-How to Tender" in the Prospectus. (See
Instruction 1).
Upon the terms and subject to the conditions of the Exchange
Offer, the acceptance for exchange of Old Notes validly tendered and not
withdrawn and the issuance of the Exchange Notes will be made on the Exchange
Date. For the purposes of the Exchange Offer, the Issuer shall be deemed to have
accepted for exchange validly tendered Old Notes when, as and if the Issuer has
given written notice thereof to the Exchange Agent. The Instructions included
with this Letter must be followed in their entirety. Questions and requests for
assistance or for additional copies of the Prospectus or this Letter may be
directed to the Exchange Agent, at the address listed above, or David K.
Moskowitz, Executive Vice President, General Counsel and Secretary, EchoStar DBS
Corporation, 9601 South Meridien Blvd., Englewood, Colorado 80112.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE INSTRUCTIONS TO THIS
LETTER, CAREFULLY BEFORE CHECKING ANY BOX BELOW.
Capitalized terms used in this Letter and not defined herein
shall have the respective meanings ascribed to them in the Prospectus. List in
Box 1 below the Old Notes of which you are the holder. If the space provided in
Box 1 is inadequate, list the certificate numbers and principal amount of Old
Notes on a separate signed schedule and affix that schedule to this Letter.
2
BOX 1
TO BE COMPLETED BY ALL TENDERING HOLDERS
<Table>
<Caption>
Name(s) and Certificate Number(s)(1) Aggregate Principal Principal Amount of Old
Address(es) of Amount of Old Notes Notes Tendered if less
Registered Holder(s) than all(2)
(Please fill in if blank)
- ------------------------- ------------------------- ------------------------- -------------------------
- ------------------------- ------------------------- ------------------------- -------------------------
- ------------------------- ------------------------- ------------------------- -------------------------
- ------------------------- ------------------------- ------------------------- -------------------------
- ------------------------- ------------------------- ------------------------- -------------------------
- ------------------------- ------------------------- ------------------------- -------------------------
</Table>
TOTAL:
1. Need not be completed if Old Notes are being tendered by book-entry.
2. Unless otherwise indicated, the entire principal amount of Old Notes
represented by a certificate or Book-Entry Confirmation delivered to the
Exchange Agent will be deemed to have been tendered.
3
The Exchange Offer is subject to the more detailed terms set
forth in the Prospectus and, in case of any conflict between the terms of the
terms of the Prospectus and this Letter, the Prospectus shall prevail.
[] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:_________________________________________
DTC Account Number:____________________________________________________
Transaction Code Number:_______________________________________________
[] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):________________________________________
Date of Execution of Notice of Guaranteed Delivery:____________________
Window Ticket Number (if available):___________________________________
Name of Eligible Institution which Guaranteed Delivery:________________
[] CHECK HERE IF OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
AND NON-EXCHANGED OR UNTENDERED OLD NOTES ARE TO BE RETURNED BY
CREDITING THE DTC ACCOUNT NUMBER(S) SET FORTH ABOVE.
4
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange
Offer, the undersigned tenders to the Issuer the principal amount of Old Notes
indicated above. Subject to, and effective upon, the acceptance for exchange of
the Old Notes tendered with this Letter, the undersigned exchanges, assigns and
transfers to, or upon the order of, the Issuer all right, title and interest in
and to the Old Notes tendered. The undersigned constitutes and appoints the
Exchange Agent as his or her agent and attorney-in-fact (with full knowledge
that the Exchange Agent also acts as the agent of the Issuer) with respect to
the tendered Old Notes, with full power of substitution, to: (a) deliver
certificates for such Old Notes; (b) deliver Old Notes and all accompanying
evidence of transfer and authenticity to or upon the order of the Issuer upon
receipt by the Exchange Agent, as the undersigned's agent, of the Exchange Notes
to which the undersigned is entitled upon the acceptance by the Issuer of the
Old Notes tendered under the Exchange Offer; and (c) receive all benefits and
otherwise exercise all rights of beneficial ownership of the Old Notes, all in
accordance with the terms of the Exchange Offer. The power of attorney granted
in this paragraph shall be deemed irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she
has full power and authority to tender, exchange, assign and transfer the Old
Notes tendered hereby and to acquire the Exchange Notes and that the Issuer will
acquire good, marketable and unencumbered title thereto, free and clear of all
security interests, liens, restrictions, charges and encumbrances and not
subject to any adverse claim. The undersigned will, upon request, execute and
deliver any additional documents deemed by the Issuer to be necessary or
desirable to complete the exchange, assignment and transfer of the Old Notes
tendered for exchange hereby. The undersigned agrees that acceptance of any
tendered Old Notes by the Issuer and the issuance of Exchange Notes in exchange
therefor shall constitute performance in full by the Issuer of its obligations
under the Registration Rights Agreement (as defined in the Prospectus) and that,
upon the issuance of the Exchange Notes, the Issuer will have no further
obligations or liabilities thereunder (except in certain limited circumstances).
The undersigned hereby further represents to the Issuer that
(i) the Exchange Notes to be acquired pursuant to the Exchange Offer will be
acquired in the ordinary course of business of the person acquiring the Exchange
Notes, whether or not such person is the undersigned, (ii) neither the
undersigned nor any person receiving any Exchange Notes directly or indirectly
from the undersigned pursuant to the Exchange is engaging or intends to engage
in the distribution of the Exchange Notes and none of them have any arrangement
or understanding with any person to participate in the distribution of the
Exchange Notes, (iii) the undersigned and each person receiving any Exchange
Notes directly or indirectly from the undersigned pursuant to the Exchange Offer
acknowledge and agree that any broker-dealer or any person participating in the
Exchange Offer for the purpose of distributing the Exchange Notes (x) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction of the Exchange
Notes acquired by such person and (y) cannot rely on the position of the staff
of the Securities and Exchange Commission (the "Commission") set forth in the
Exxon Capital Holdings Corporation no-action letter (available May 13, 1988) and
the Morgan Stanley and Co., Inc. no-action letter (available June 5, 1991), as
interpreted in the Commission's no-action letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters, (iv) the undersigned and each
person receiving any Exchange Notes directly or indirectly from the undersigned
pursuant to the Exchange Offer understand that a secondary resale transaction
described in clause (iii) above should be covered by an effective registration
statement and (v) neither the undersigned nor any person receiving any Exchange
Notes directly or indirectly from the undersigned pursuant to the Exchange Offer
is an "affiliate" of the Company, as defined under Rule 405 under the Securities
Act of 1933, as amended (the "Securities Act"). If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Old Notes that were acquired as a result of market making or other trading
activities, it acknowledges that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Notes received in respect of such Old Notes pursuant to the Exchange
Offer; 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.
All authority conferred or agreed to be conferred by this
Letter shall survive the death, incapacity, liquidation, dissolution, winding up
or any other event relating to the undersigned, and every obligation of the
undersigned under this Letter shall be binding upon the undersigned's heirs,
personal representatives, successors, assigns, executors and administrators.
Tenders may be withdrawn only in connection with the procedures set forth in the
Instructions contained this Letter. Except as otherwise stated in the
Prospectus, this tender is irrevocable.
5
Unless otherwise indicated under "Special Delivery
Instructions" below, the Exchange Agent will deliver Exchange Notes (and, if
applicable, a certificate for any Old Notes not tendered but represented by a
certificate also encompassing Old Notes which are tendered) to the undersigned
at the address set forth in Box 1.
6
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
BOX 2
PLEASE SIGN HERE WHETHER OR NOT OLD NOTES ARE BEING PHYSICALLY TENDERED HEREBY
This box must be signed by registered holder(s) of Old Notes
exactly as their name(s) appear(s) on certificate(s) for Old Notes, or by
person(s) authorized to become registered holder(s) by endorsement and documents
transmitted with this Letter. If signature is by a trustee, executor,
administrator, attorney-in-fact, guardian, officer or other person acting in a
fiduciary or representative capacity, such person must set forth his or her full
title below. (See Instruction 3)
X____________________________________________________________________________
X____________________________________________________________________________
(Signature(s) of Owner(s) or Authorized Signatory)
Date:__________________________________, 2005
Name(s)_______________________________________________________________________
(Please Print)
Capacity (Full Title):___________________________________
Address:______________________________________________________________________
(Include Zip Code)
Area Code and Telephone No.:__________________
Taxpayer Identification Number or Social Security Number: ___________________
SIGNATURE GUARANTEE (SEE INSTRUCTION 3 BELOW)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
______________________________________________________________________________
(Name of Eligible Institution Guaranteeing Signatures)
______________________________________________________________________________
Address (Including Zip Code)
Telephone Number (Including Area Code) of Firm:__________________
______________________________________________________________________________
(Authorized Signature)
______________________________________________________________________________
(Title)
______________________________________________________________________________
(Print Name)
Date:_______________________________, 2005
7
BOX 3
THE SUBSTITUTE FORM W-9 BELOW MUST BE COMPLETED AND SIGNED. Please provide your
social security number or other taxpayer identification number ("TIN") and
certify that you are not subject to backup withholding.
<Table>
SUBSTITUTE FORM W-9
DEPARTMENT OF THE TREASURY INTERNATIONAL REVENUE SERVICE
PAYER'S REQUEST FOR TIN AND CERTIFICATION
Name:____________________________________________
Please check the appropriate box indicating your status: [] Exempt from backup
[] Individual/Sole proprietor [] Corporation [] Partnership [] Other withholding
Address (number, street, and apt. or suite no.)__________________________________________
City, State, and ZIP code________________________________________________________________
PART I TIN
PLEASE PROVIDE YOUR TIN ON THE APPROPRIATE LINE AT THE RIGHT. For most ___________________
individuals, this is your social security number. If you do not have a ____________
number, see the enclosed Guidelines for Certification of Taxpayer Social Security Number
Identification Number on Substitute Form W-9. If you are awaiting a TIN, OR
write "Applied For" in this Part I, complete the "Certification of Awaiting ___________________
Taxpayer Identification Number" below and see "IMPORTANT TAX INFORMATION" ____________
below. Employer Identification Number
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: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a
result of a 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).
CERTIFICATION INSTRUCTIONS-- You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because
you have failed to report all interest and dividends on your tax return.
The IRS does not require your consent to any provision of this document other
than the certifications required to avoid backup withholding.
SIGN
HERE Signature of U.S. person___________________________________Date________________
</Table>
NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE EXCHANGE
NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS, AND PLEASE
SEE "IMPORTANT TAX INFORMATION" BELOW.
8
COMPLETE THE FOLLOWING CERTIFICATION IF YOU WROTE "APPLIED FOR"
INSTEAD OF A TIN ON THE SUBSTITUE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFCATION NUMBER
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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 TIN 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 TIN by the time of
payment, 28% of all reportable payments made to me will be withheld.
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SIGN
HERE Signature of U.S. person Date
- ----- ------------------------------ ------------
9
BOX 4
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Old Notes in a
principal amount not exchanged, or Exchange Notes, are to be issued in the name
of someone other than the person whose signature appears in Box 2, or if Old
Notes delivered by book-entry transfer which are not accepted for exchange are
to be returned by credit to an account maintained at the Book-Entry Transfer
facility other than the account indicated above.
Issue and deliver:
(Check appropriate boxes)
[] Old Notes not tendered
[] Exchange Notes, to:
(Please Print)
Name:________________________________________________________________________
Address:_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Please complete the Substitute Form W-9 at Box 3.
Tax I.D. or Social Security Number:__________________________________________
BOX 5
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if the Exchange Notes and/or any Old
Notes that are not tendered are to be sent to someone other than the registered
holder of the Old Notes whose signature appears in Box 2, or to such registered
holder at an address other than that shown in Box 2.
Mail:
(Check appropriate boxes)
[] Old Notes not tendered
[] Exchange Notes, to:
(Please Print)
Name:________________________________________________________________________
Address:_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Please complete the Substitute Form W-9 at Box 3.
Tax I.D. or Social Security Number:__________________________________________
10
INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER AND CERTIFICATES. Certificates for
Old Notes or a Book-Entry Confirmation, as the case may be, as well as a
properly completed and duly executed copy of this Letter and any other documents
required by this Letter, must be received by the Exchange Agent at one of its
addresses set forth herein on or before the Expiration Date. The method of
delivery of this Letter, certificates for Old Notes or a Book- Entry
Confirmation, as the case may be, and any other required documents is at the
election and risk of the tendering holder, but except as otherwise provided
below, the delivery will be deemed made when actually received by the Exchange
Agent. If delivery is by mail, the use of registered mail with return receipt
requested, properly insured, is suggested.
If tendered Old Notes are registered in the name of the signer
of the Letter of Transmittal and the Exchange Notes to be issued in exchange
therefor are to be issued (and any untendered Old Notes are to be reissued) in
the name of the registered holder and delivered to the registered holder's
address as set forth in Box 2 or if the Old Notes are tendered for the account
of an Eligible Institution (as defined below), the signature of such signer need
not be guaranteed. In any other case, the tendered Old Notes must be endorsed or
accompanied by written instruments or transfer in form satisfactory to the
Issuer and duly executed by the registered holder and the signature on the
endorsement or instrument of transfer must be guaranteed by a bank, broker,
dealer, credit union, savings association, clearing agency or other institution
(each an "Eligible Institution") that is a member of a recognized signature
guarantee medallion program within the meaning of Rule 17Ad-15 under the
Exchange Act. In all other cases, the signature on the Letter of Transmittal
must be guaranteed by an Eligible Institution. Any beneficial owner whose Old
Notes are registered in the name of a broker, dealer, commercial bank, trust
company or other nominee and who wishes to tender Old Notes should contact such
registered holder promptly and instruct such holder to tender Old Notes on such
beneficial owner's behalf. If such beneficial owner wishes to tender such Old
Notes himself, such beneficial owner must, prior to completing and executing the
Letter of Transmittal and delivering such Old Notes, either make appropriate
arrangements to register ownership of the Old Notes in such beneficial owner's
name or follow the procedures described in the immediately preceding paragraph.
The transfer of record ownership may take considerable time.
Holders whose Old Notes are not immediately available or who
cannot deliver their Old Notes or a Book-Entry Confirmation, as the case may be,
and all other required documents to be Exchange Agent on or before the
Expiration Date may tender their Old Notes pursuant to the guaranteed delivery
procedures set forth in the Prospectus. Pursuant to such procedure: (i) tender
must be made by or through an Eligible Institution; (ii) prior to 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 or hand delivery) (x) setting forth the name and address of
the holder, the description of the Old Notes and the principal amount of Old
Notes tendered, (y) stating that the tender is being made thereby and (z)
guaranteeing that, within three New York Stock Exchange trading days after the
date of execution of such Notice of Guaranteed Delivery, this Letter together
with the certificates representing the Old Notes or a Book-Entry Confirmation,
as the case may be, and any other documents required by this Letter will be
deposited by the Eligible Institution with the Exchange Agent; and (iii) the
certificates for all tendered Old Notes or a Book-Entry Confirmation, as the
case may be, as well as all other documents required by this Letter, 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 Prospectus under the caption "The Exchange Offer-How to Tender."
The method of delivery of Old Notes and all other documents is at the election
and risk of the holder. If sent by mail, it is recommended that registered mail,
return receipt requested, be used, proper insurance be obtained, and the mailing
be made sufficiently in advance of the Expiration Date to permit delivery to the
Exchange Agent on or before the Expiration Date.
A tender will be deemed to have been received as of the date
when the tendering holder's properly completed and duly signed Letter of
Transmittal accompanied by the Old Notes (or a timely Book-Entry Confirmation)
is received by the Exchange Agent. Issuances of Exchange Notes in exchange for
Old Notes tendered pursuant to a Notice of Guaranteed Delivery or letter or
facsimile transmission to similar effect (as provided above) by an Eligible
Institution will be made only against deposit of the Letter of Transmittal (and
any other required documents) and the tendered Old Notes (or a timely Book-Entry
Confirmation).
All questions as to the validity, form, eligibility (including
time of receipt), acceptance and withdrawal of tendered Old Notes will be
determined by the Issuer, in its sole discretion, whose determination will
11
be final and binding. The Issuer reserves the absolute right to reject any or
all tenders that are not in proper form or the acceptance of which, in the
opinion of the Issuer or its counsel, would be unlawful. The Issuer also
reserves the right to waive any irregularities or conditions of tender as to
particular Old Notes. All tendering holders, by execution of this Letter, waive
any right to receive notice of acceptance of their Old Notes. The Issuer's
interpretation of the terms and conditions of the Exchange Offer (including the
Letter of Transmittal and the instructions thereto) will be final and binding.
Neither the Issuer, the Exchange Agent nor any other person
shall be 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.
2. PARTIAL TENDERS; WITHDRAWALS. Tenders of Old Notes will be
accepted only in integral multiples of $1,000 principal amount. If less than the
entire principal amount of any Old Note evidenced by a submitted certificate or
by a Book-Entry Confirmation is tendered, the tendering holder must fill in the
principal amount tendered in the fourth column of Box 1 above. All of the Old
Notes represented by a certificate or by a Book-Entry Confirmation delivered to
the Exchange Agent will be deemed to have been tendered unless otherwise
indicated. A certificate for Old Notes not tendered will be sent to the holder,
unless otherwise provided in Box 5, as soon as practicable after the Expiration
Date, in the event that less than the entire principal amount of Old Notes
represented by a submitted certificate is tendered (or, in the case of Old Notes
tendered by book-entry transfer, such non-exchanged Old Notes will be credited
to an account maintained by the holder with the Book-Entry Transfer Facility).
If not yet accepted, a tender pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date. For a withdrawal to
be effective, a written or facsimile transmission notice of withdrawal must be
timely received by the Exchange Agent at its address set forth in the back cover
of the Prospectus prior to the Expiration Date. Any such notice of withdrawal
must specify the person named in the Letter of Transmittal as having tendered
Old Notes to be withdrawn, the certificate numbers of Old Notes to be withdrawn,
the principal amount of Old Notes to be withdrawn, a statement that such holder
is withdrawing his election to have such Old Notes exchanged, and the name of
the registered holder of such Old Notes, and must be signed by the holder in the
same manner as the original signature on the Letter of Transmittal (including
any required signature guarantees) or be accompanied by evidence satisfactory to
the Issuer that the person withdrawing the tender has succeeded to the
beneficial ownership of the Old Notes being withdrawn. The Exchange Agent will
return the properly withdrawn Old Notes promptly following receipt of notice of
withdrawal. All questions as to the validity of notices of withdrawals,
including time of receipt, will be determined by the Issuer, and such
determination will be final and binding on all parties.
3. SIGNATURES ON THIS LETTER; ASSIGNMENTS; GUARANTEE OF
SIGNATURES. If this Letter is signed by the holder(s) of Old Notes tendered
hereby, the signature must correspond with the name(s) as written on the face of
the certificate(s) for such Old Notes, without alteration, enlargement or any
change whatsoever.
If any of the Old Notes tendered hereby are owned by two or
more joint owners, all owners must sign this Letter. If any tendered Old Notes
are held in different names on several certificates, it will be necessary to
complete, sign and submit as many separate copies of this Letter as there are
names in which certificates are held.
If this Letter is signed by the holder of record and (i) the
entire principal amount of the holder's Old Notes are tendered; and/or (ii)
untendered Old Notes, if any, are to be issued to the holder of record, then the
holder of record need not endorse any certificates for tendered Old Notes, nor
provide a separate bond power. In any other case, the holder of record must
transmit a separate bond power with this Letter.
If this Letter or any certificate or assignment is 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 proper evidence satisfactory to the
Issuer of their authority to so act must be submitted, unless waived by the
Issuer.
Signatures on this Letter must be guaranteed by an Eligible
Institution, unless Old Notes are tendered: (i) by a holder who has not
completed the Box entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on this Letter; or (ii) for the account of an Eligible
Institution. In the event that the signatures
12
in this Letter or a notice of withdrawal, as the case may be, are required to be
guaranteed, such guarantees must be by an Eligible Institution. If Old Notes are
registered in the name of a person other than the signer of this Letter, the Old
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 Issuer, in its sole discretion, duly executed by the
registered holder with the signature thereon guaranteed by an Eligible
Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering
holders should indicate, in Box 4 or 5, as applicable, the name and address to
which the Exchange Notes or certificates for Old Notes not exchanged are to be
issued or sent, if different from the name and address of the person signing
this Letter. In the case of issuance in a different name, the tax identification
number of the person named must also be indicated. Holders tendering Old Notes
by book-entry transfer may request that Old Notes not exchanged be credited to
such account maintained at the Book-Entry Transfer Facility as such holder may
designate.
5. TAX IDENTIFICATION NUMBER. Federal income tax law requires
that a holder whose tendered Old Notes are accepted for exchange must provide
the Exchange Agent (as payor) with his or her correct taxpayer identification
number ("TIN"), which, in the case of the holder who is an individual, is his or
her social security number. If the Exchange Agent is not provided with the
correct TIN, the holder may be subject to a $50 penalty imposed by the Internal
Revenue Service. In addition, delivery to the holder of the Exchange Notes
pursuant to the Exchange Offer may be subject to back-up withholding on all
reportable payments made after the exchange. (If withholding results in
overpayment of taxes, a refund may be obtained). Exempt holders (including,
among others, all corporations and certain foreign individuals) are not subject
to these back-up withholding and reporting requirements. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions.
Under federal income tax laws, payments that may be made by
the Issuer on account of Exchange Notes issued pursuant to the Exchange Offer
may be subject to back-up withholding at a rate of 28%. In order to prevent
back-up withholding, each tendering holder must provide his or her correct TIN
by completing the "Substitute Form W-9" referred to above, certifying that the
TIN provided is correct (or that the holder is awaiting a TIN) and that: (i) the
holder has not been notified by the Internal Revenue Service that he or she is
subject to back- up withholding as a result of failure to report all interest or
dividends; (ii) the Internal Revenue Service has notified the holder that he or
she is no longer subject to back-up withholding; or (iii) in accordance with the
Guidelines, such holder is exempt from back-up withholding. If the Old Notes are
in more than one name or are not in the name of the actual owner, consult the
enclosed Guidelines for information on which TIN to report.
6. TRANSFER TAXES. The Issuer will pay all transfer taxes, if
any, applicable to the transfer of Old Notes to it or its order pursuant to the
Exchange Offer. If, however, the Exchange Notes or certificates for Old Notes
not exchanged are to be delivered to, or are to be issued in the name of, any
person other than the record holder, or if tendered certificates are recorded in
the name of any person other than the person signing this Letter, or if a
transfer tax is imposed by any reason other than the transfer of Old Notes to
the Issuer or its order pursuant to the Exchange Offer, then the amount of such
transfer taxes (whether imposed on the record holder or any other person) will
be payable by the tendering holder. If satisfactory evidence of payment of taxes
or exemption from taxes is not submitted with this Letter, the amount of
transfer taxes will be billed directly to the tendering holder. Except as
provided in this Instruction 6, it will not be necessary for transfer tax stamps
to be affixed to the certificates listed in this Letter.
7. WAIVER OF CONDITIONS. The Issuer reserves the absolute
right to amend or waive any of the specified conditions in the Exchange Offer in
the case of any Old Notes tendered.
8. MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES. Any
holder whose certificates for Old Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above, for
further instructions.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions
relating to the procedure for tendering, as well as requests for additional
copies of the Prospectus or this Letter, may be directed to the Exchange Agent.
IMPORTANT: THIS LETTER (TOGETHER WITH CERTIFICATES REPRESENTING TENDERED OLD
NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS) MUST BE
RECEIVED BY THE EXCHANGE AGENT ON OR BEFORE THE EXPIRATION DATE.
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