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EXHIBIT 99.1
LETTER OF TRANSMITTAL
SIMONDS INDUSTRIES, INC.
OFFER TO EXCHANGE ITS
10 1/4% SENIOR SUBORDINATED NOTES DUE JULY 1, 2008
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
FOR AN EQUAL PRINCIPAL AMOUNT OF ITS
10 1/4% SENIOR SUBORDINATED NOTES DUE JULY 1, 2008
WHICH HAVE NOT BEEN SO REGISTERED
PURSUANT TO THE PROSPECTUS
DATED SEPTEMBER , 1998
The Exchange Agent for the Exchange Offer is:
STATE STREET BANK AND TRUST COMPANY
By Registered or Certified Mail
or Hand or Overnight Delivery:
State Street Bank and Trust Company
Two International Place
Fourth Floor
Boston, MA 02110
Attention: Corporate Trust Department
Facsimile Transmissions:
(Eligible Institutions Only)
[______________]
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.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON _______, 1998, UNLESS THE OFFER IS EXTENDED.
Capitalized terms used but not defined herein shall have the same meaning given
them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Original Notes (as
defined below) either if Original Notes are to be forwarded herewith or if
tenders of Original Notes are to be made by book-entry transfer to an account
maintained by State Street Bank and Trust Company (the "Exchange Agent") at The
Depository Trust Company ("DTC") pursuant to the procedures set forth in "The
Exchange Offer--Procedures for Tendering" in the Prospectus and an Agent's
Message (as defined herein) is not delivered.
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Holders of Original Notes whose certificates (the "Certificates") for such
Original Notes are not immediately available or who cannot deliver their
Certificates and all other required documents to the Exchange Agent on or prior
to the Expiration Date (as defined in the Prospectus) or who cannot complete the
procedures for book-entry transfer on a timely basis, must tender their Original
Notes according to the guaranteed delivery procedures set forth in "The Exchange
Offer--Procedures for Tendering" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF ORIGINAL NOTES TENDERED
--------------------------------------
IF BLANK, PLEASE PRINT NAME AND ADDRESS ORIGINAL NOTES
OF REGISTERED HOLDER. (ATTACH ADDITIONAL LIST)
--------------------- ------------------------
PRINCIPAL AMOUNT
CERTIFICATE OF ORIGINAL NOTES
NUMBER(S)* TENDERED**
----------
TOTAL AMOUNT
TENDERED:
---------
* Need not be completed by book-entry holders. ** All Original Notes held shall
be deemed tendered unless a lesser number is specified in this column.
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(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution _______________________________________________
DTC Account Number __________________________________________________________
Transaction Code Number _____________________________________________________
[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s) ___________________________________________
Window Ticket Number (if any) _____________________________________________
Date of Execution of Notice of Guaranteed Delivery ________________________
Name of Institution which Guaranteed Delivery _____________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution _____________________________________________
DTC Account Number ________________________________________________________
Transaction Code Number ___________________________________________________
[_] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED ORIGINAL
NOTES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[_] CHECK HERE 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: ____________________________________________________________________
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Ladies and Gentlemen:
The undersigned hereby tenders to Simonds Industries Inc., a Delaware
corporation (the "Company"), the above described principal amount of the
Company's outstanding 10 1/4% Senior Subordinated Notes due July 1, 2008 (the
"Original Notes") in exchange for a like principal amount of the Company's
10 1/4% Senior Subordinated Notes due July 1, 2008 (the "Exchange Notes") which
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), upon the terms and subject to the conditions set forth in the
Prospectus dated , 1998 (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, constitutes the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any portion
of the Original 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 transfer to or upon the order of the
Company all right, title and interest in and to such Original 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 Original 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 Original 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 Exchange Notes to be issued in exchange for such
Original Notes, (ii) present Certificates for such Original Notes for transfer,
and to transfer the Original 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 Original Notes, all in accordance with
the terms and conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS FULL
POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE ORIGINAL
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
ORIGINAL 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 ORIGINAL NOTES TENDERED
HEREBY, AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE
REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE
TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Original Notes
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Original Notes. The
Certificate number(s) and the Original Notes that the undersigned wishes to
tender should be indicated in the appropriate boxes above.
If any tendered Original Notes are not exchanged pursuant to the Exchange Offer
for any reason, or if Certificates are submitted for more Original Notes than
are tendered or accepted for exchange, Certificates for such nonexchanged or
nontendered Original Notes will be returned (or, in the case of Original Notes
tendered by
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book-entry transfer, such Original Notes will be credited to an account
maintained at DTC), without expense to the tendering holder, promptly following
the expiration or termination of the Exchange Offer.
If the undersigned is a broker-dealer holding Original Notes acquired for its
own account as a result of market-making activities or other trading activities,
it agrees to deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of Exchange Notes received in respect of such
Original Notes pursuant to the Exchange Offer.
The undersigned understands that tenders of Original Notes pursuant to any one
of the procedures described in "The Exchange Offer--Procedures for Tendering" in
the Prospectus and in the instructions will, upon the Company's acceptance for
exchange of such tendered Original 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 Original Notes tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Notes be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Original Notes, that such Exchange Notes be credited to the account
indicated above maintained at DTC. If applicable, substitute Certificates
representing Original Notes not exchanged or not accepted for exchange will be
issued to the undersigned or, in the case of a book-entry transfer of Original
Notes, will be credited to the account indicated above maintained at DTC.
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please deliver Exchange Notes to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING ORIGINAL NOTES AND EXECUTING THIS LETTER OF TRANSMITTAL, THE
UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE UNDERSIGNED IS NOT AN
"AFFILIATE" OF THE COMPANY, (II) ANY EXCHANGE NOTES TO BE RECEIVED BY THE
UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS, FOR THE
UNDERSIGNED'S OWN ACCOUNT, FOR INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN
CONNECTION WITH ANY DISTRIBUTION OF THE EXCHANGE NOTES, (III) THE UNDERSIGNED
HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN THE
DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF EXCHANGE NOTES TO BE
RECEIVED IN THE EXCHANGE OFFER, (IV) IF THE UNDERSIGNED IS NOT A BROKER-DEALER,
THE UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT INTEND TO ENGAGE IN, A
DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF SUCH EXCHANGE NOTES,
AND (V) THE UNDERSIGNED WILL PROVIDE THE COMPANY WITH ANY ADDITIONAL
REPRESENTATIONS SO REQUESTED IN ORDER FOR THE COMPANY TO ENSURE COMPLIANCE WITH
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS. ANY HOLDER OF ORIGINAL NOTES
WHICH IS NOT A BROKER-DEALER, AND WHICH IS USING THE EXCHANGE OFFER TO
PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF
EXCHANGE NOTES, IS HEREBY NOTIFIED (1) THAT IT WILL NOT BE ABLE TO RELY ON THE
POSITION OF THE STAFF OF THE DIVISION OF CORPORATE FINANCE OF THE SECURITIES AND
EXCHANGE COMMISSION (THE "STAFF") SET FORTH IN EXXON CAPITAL HOLDINGS
CORPORATION (AVAIL. APRIL 13, 1989) AND SIMILAR LETTERS AND (2) THAT IT MUST
COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION WITH ANY RESALE OF EXCHANGE NOTES.
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IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED REPRESENTS THAT IT IS
NOT ENGAGED IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION OF EXCHANGE
NOTES. ANY HOLDER OF ORIGINAL NOTES WHICH IS A BROKER-DEALER BY TENDERING
ORIGINAL NOTES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF
TRANSMITTAL, REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS
ISSUED BY THE STAFF TO THIRD PARTIES, THAT (A) SUCH ORIGINAL NOTES HELD BY THE
BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (B) SUCH ORIGINAL NOTES WERE
ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING
ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS (AS
AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH EXCHANGE 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).
ALL RESALES MUST BE MADE IN COMPLIANCE WITH APPLICABLE STATE SECURITIES OR "BLUE
SKY" LAWS. SUCH COMPLIANCE MAY REQUIRE THAT THE EXCHANGE NOTES BE REGISTERED OR
QUALIFIED IN A PARTICULAR STATE OR THAT THE RESALE BE MADE BY OR THROUGH A
LICENSED BROKER-DEALER, UNLESS EXEMPTIONS FROM THESE REQUIREMENTS ARE AVAILABLE.
THE COMPANY ASSUMES NO RESPONSIBILITY WITH REGARD TO COMPLIANCE WITH SUCH
REQUIREMENTS.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT SURRENDERS
FOR EXCHANGE FROM, HOLDERS OF ORIGINAL NOTES IN ANY JURISDICTION IN WHICH THE
EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
[ORIGINAL NOTES MAY ONLY BE TENDERED BY HOLDERS IN NEW MEXICO AND PENNSYLVANIA
WHO ARE HOLDERS OF THE KIND DESCRIBED IN APPENDIX A HERETO. BY SIGNING THIS
LETTER OF TRANSMITTAL, SUCH HOLDERS WILL BE DEEMED TO REPRESENT THAT THEY ARE
HOLDERS OF THE KIND DESCRIBED IN APPENDIX A HERETO. ]
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 broker-dealer in connection with resales of Exchange
Notes received in exchange for Original Notes, where such Original Notes were
acquired by such broker-dealer for its own account as a result of market- making
activities or other trading activities, for a period ending 90 days after the
Expiration Date (subject to extension under certain limited circumstances
described in the Prospectus) or, if earlier, when all such Exchange Notes have
been disposed of by such broker-dealer. In that regard, each broker-dealer who
acquired Original Notes for its own account and as a result of market-making or
other trading activities, by tendering such Original Notes and executing this
letter of transmittal, agrees that, upon receipt of notice from the Company of
the occurrence of any event or the discovery of any fact which makes any
statement contained or incorporated by reference therein, in light of the
circumstances under which they were made, misleading or of the occurrence of
certain other events specified in the Registration Rights Agreement, such
broker-dealer will suspend the sale of Exchange 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 broker-dealer or the
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Company given notice that the sale of the Exchange Notes may be resumed, as the
case may be. If the Company gives such notice to suspend the sale of the
Exchange Notes, it shall extend the 90-day period referred to above during which
broker-dealers are entitled to use the Prospectus in connection with the resale
of Exchange 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 broker-dealers
shall have received copies of the supplemented or amended Prospectus necessary
to permit resales of the Exchange Notes or to and including the date on which
the Company has given notice that the sale of Exchange Notes may be resumed, as
the case may be. As a result, a broker-dealer who intends to use the Prospectus
in connection with resales of Exchange Notes received in exchange for Original
Notes pursuant to the Exchange Offer must notify the Company, or cause the
Company to be notified, on or prior to the Expiration Date, that it is a broker-
dealer. Such notice may be given in the space provided above or may be delivered
to the Exchange Agent at the address set forth in the Prospectus under "The
Exchange Offer--Exchange Agent."
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
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HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Original Notes hereby tendered or on a security
position listing, or by any person(s) authorized to become the registered
holder(s) by endorsements and documents transmitted herewith (including
such opinions of counsel, certificates and other information as may be
required by the Company for the Original Notes to comply with any
restrictions on transfer applicable to the Original Notes). If signature is
by an attorney-in-fact, executor, administrator, trustee, guardian, officer
of a corporation or another acting in a fiduciary capacity or
representative capacity, please set forth the signer's full title. See
Instruction 5.
(SIGNATURE(S) OF HOLDER(S))
Date _______________________ , 1998
Name(s) _____________________________________________________________________
(PLEASE PRINT)
Capacity or Title ___________________________________________________________
Address _____________________________________________________________________
(INCLUDE ZIP CODE)
Area Code(s) and Telephone Number ___________________________________________
TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER(S) _____________________________
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 2 AND 5)
Authorized Signature ________________________________________________________
Name ________________________________________________________________________
(PLEASE PRINT)
Date _______________________ , 1998
Capacity or Title ___________________________________________________________
Name of Firm ________________________________________________________________
Address _____________________________________________________________________
(INCLUDE ZIP CODE)
Area Code(s) and Telephone Number ___________________________________________
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6) (SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if Exchange To be completed ONLY if Exchange
Notes or any Original Notes that Notes or any Original Notes that
are not tendered are to be issued are not tendered are to be sent to
in the name of someone other than someone other than the registered
the registered holder of the holder of the Original Notes whose
Original Notes whose name(s) name(s) appear(s) above, or to the
appear(s) above. registered holder(s) at an address
other than that shown above.
ISSUE: MAIL:
[_] Exchange Notes to: [_] Exchange Notes to:
[_] Original Notes not tendered [_] Original Notes not tendered
to: to:
Name(s): _________________________ Name(s): _________________________
(PLEASE PRINT)
__________________________________
(PLEASE PRINT)
Address: _________________________ Address: _________________________
(ZIP CODE) _______________________ (ZIP CODE) _______________________
TAXPAYER IDENTIFICATION OR SOCIAL
SECURITY NUMBER ___________________
(SEE ENCLOSED SUBSTITUTE FORM W-9)
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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) tenders
are to be made pursuant to the procedures for tender by book-entry transfer set
forth in "The Exchange Offer--Procedures for Tendering" in the Prospectus and an
Agent's Message is not delivered or (b) Certificates are to be forwarded
herewith. Timely confirmation of a book-entry transfer of such Original Notes
into the Exchange Agent's account at DTC, or Certificates 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 addresses
set forth herein on or prior to the Expiration Date. Tenders by book-entry
transfer may also be made by delivering an Agent's Message in lieu of this
Letter of Transmittal. The term "Agent's Message" means a message, transmitted
by DTC to and received by the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment from
the tendering Participant, which acknowledgment states that such Participant has
received and agrees to be bound by the Letter of Transmittal and that the
Company may enforce the Letter of Transmittal against such Participant. The term
"book-entry confirmation" means a timely confirmation of book-entry transfer of
Original Notes into the Exchange Agent's account at DTC.
Holders who wish to tender their Original Notes and (i) who cannot deliver their
Original Notes, this Letter of Transmittal and all other required documents to
the Exchange Agent on or prior to the Expiration Date or (ii) whose Original
Notes are not immediately available may tender their Original Notes by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth in "The Exchange Offer--Guaranteed
Delivery Procedures" in the Prospectus. Pursuant to such procedures: (a) such
tender must be made through an Eligible Institution (as defined below); (b) on
or prior to the applicable Expiration Date, the Exchange Agent must receive from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by mail, hand delivery or facsimile transmission) setting
forth the name and address of the holder, the certificate number(s) of such
Original Notes and the principal amount of the Original Notes being tendered,
stating that the tender is being made thereby and guaranteeing that, within five
business days after the applicable Expiration Date, the applicable Letter of
Transmittal together with the certificate(s) representing the Original Notes (or
Book-Entry Confirmation) and any other documents required by the applicable
Letter of Transmittal will be delivered by the Eligible Institution to the
Exchange Agent; and (c) such properly completed and executed Letter of
Transmittal, as well as the Certificate(s) representing the tendered Original
Notes in proper form for transfer (or Book-Entry Confirmation) and all other
documents required by the Letter of Transmittal are received by the Exchange
Agent within five business days after the applicable Expiration Date, all as
provided in "The Exchange Offer--Guaranteed Delivery Procedures" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by mail, hand delivery or
facsimile transmission to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Original 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.
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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 EXECUTION OF A LETTER OF TRANSMITTAL (OR FACSIMILE
THEREOF OR AGENT'S MESSAGE IN LIEU 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:
a. this Letter of Transmittal is signed by the registered holder (which
term, for purposes of this document, shall include any participant in DTC
whose name appears on a security position listing as the owner of the
Original Notes) of Original 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
b. such Original Notes are tendered for the account of a firm that is an
Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned "Description of
Original Notes Tendered" is inadequate, the Certificate number(s) and/or the
principal amount of Original Notes and any other required information should be
listed on a separate signed schedule which is attached to this Letter of
Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. If less than all the Original Notes
evidenced by any Certificate submitted are to be tendered, fill in the principal
amount of Original Notes which are to be tendered in the box entitled "Principal
Amount of Original Notes Tendered." In such case, new Certificate(s) for the
remainder of the Original Notes that were evidenced by your old Certificate(s)
will be sent to the holder of the Original Notes, promptly after the Expiration
Date. All Original 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 Original Notes pursuant to an
Exchange Offer may be withdrawn, unless theretofore accepted for exchange as
provided in the applicable Exchange Offer, at any time prior to the Expiration
Date of that Exchange Offer.
To be effective, a written or facsimile transmission notice of withdrawal must
be received by the Exchange Agent at its address set forth herein prior to the
Expiration Date. Any such notice of withdrawal must (i) specify the name of the
person having deposited the Original Notes to be withdrawn (the "Depositor"),
(ii) identify the Original Notes to be withdrawn (including the Certificate
number or numbers and aggregate principal amount of such Original Notes), and
(iii) be signed by the holder in the same manner as the original signature on
the applicable Letter of Transmittal (including any required signature
guarantees). All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by the Company in its sole
respective discretion, which determination shall be final and binding on all
parties. Any Original Notes so withdrawn will be deemed not to have been validly
tendered for purposes of the Exchange Offer and no
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Exchange Notes will be issued with respect thereto unless the Original Notes so
withdrawn are retendered. Properly withdrawn Original Notes may be retendered by
following one of the procedures described in the Prospectus under "The Exchange
Offer--Procedures for Tendering" at any time prior to the applicable Expiration
Date.
Any Original Notes which have been tendered but which are not accepted for
exchange due to the rejection of the tender due to uncured defects or the prior
termination of the applicable Exchange Offer, or which have been validly
withdrawn, will be returned to the holder thereof (unless otherwise provided in
the Letter of Transmittal), as soon as practicable following the applicable
Expiration Date or, if so requested in the notice of withdrawal, promptly after
receipt by the issuer of the Original Notes of notice of withdrawal without cost
to such holder.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If this
Letter of Transmittal is signed by the registered holder(s) of the Original
Notes tendered hereby, the signature(s) must correspond exactly with the name(s)
as written on the face of the Certificate(s) or on a security position listing
without alteration, enlargement or any change whatsoever.
If any of the Original 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 Original 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 or Agent's Message in lieu
thereof) as there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and must submit proper evidence
satisfactory to the Company, in its sole discretion, of such persons' authority
to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Original Notes listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless Exchange 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 Original 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 Original Notes. Signatures on such Certificates or bond powers
must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Notes are to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange 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 Original 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 Original Notes
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which determination shall be final and binding on all parties. The Company
reserves the absolute right, in its sole and absolute discretion, 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 of the Exchange Offer" or any conditions
or irregularity in any tender of Original 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 Original Notes will be deemed to
have been validly made until all irregularities with respect to such tender have
been cured or waived. Neither the Company, any affiliates or assigns of the
Company, the Exchange Agent, or any other person shall be under any duty to give
notification of any irregularities in tenders or incur any liability for failure
to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, this Letter of Transmittal and the Notice
of Guaranteed Delivery may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income tax
law, a holder whose tendered Original Notes are accepted for exchange is
required to provide the Exchange Agent with such holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. If the Exchange
Agent is not provided with the correct TIN, the Internal Revenue Service (the
"IRS") may subject the holder or other payee to a $50 penalty. In addition,
payments to such holders or other payees with respect to Original Notes
exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the tendering
holder has not been issued a TIN and has applied for a TIN or intends to apply
for a TIN in the near future. If the box in Part 2 is checked, the holder or
other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the Substitute Form W-
9. If the holder furnishes the Exchange Agent with its TIN within 60 days after
the date of the Substitute Form W-9, the amounts retained during the 60 day
period will be remitted to the holder and no further amounts shall be retained
or withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent with its TIN within such 60 day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g., social security
number or employer identification number) of the registered owner of the
Original Notes or of the last transferee appearing on the transfers attached to,
or endorsed on, the Original Notes. If the Original Notes are registered in more
than one name or are not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
Certain holders (including, among others, corporations, financial institutions
and certain foreign persons) may not be subject to these backup withholding and
reporting requirements. Such holders should nevertheless complete the attached
Substitute Form W-9 below, and write "exempt" on the face thereof, to avoid
possible
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erroneous backup withholding. A foreign person may qualify as an exempt
recipient by submitting a properly completed IRS Form W-8, signed under
penalties of perjury, attesting to that holder's exempt status. Please consult
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which holders are exempt from
backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather, the
U.S. Federal income tax liability of a person subject to backup withholding will
be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s) representing
Original 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.
11. SECURITY TRANSFER TAXES. Holders who tender their Original Notes for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange Notes are to be delivered to, or are to be
issued in the name of, any person other than the registered holder of the
Original Notes tendered, or if a transfer tax is imposed for any reason other
than the exchange of Original 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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PAYOR'S NAME: STATE STREET BANK AND TRUST COMPANY, AS EXCHANGE AGENT
PART I--PLEASE PROVIDE YOUR SOCIAL SECURITY OR
TIN IN THE BOX AT RIGHT AND EMPLOYER
CERTIFY BY SIGNING AND IDENTIFICATION NUMBER
DATING BELOW.
SUBSTITUTE
FORM W-9
DEPARTMENT OF THE ____________________
TREASURY INTERNAL (If awaiting TIN
REVENUE SERVICE WRITE "APPLIED FOR")
NAME (PLEASE PRINT)
PAYOR'S REQUEST FOR ------------------------------------------------------------
TAXPAYER IDENTIFICATION ADDRESS
NUMBER ("TIN") AND -------------------------------------------------------------
CERTIFICATION CITY STATE ZIP CODE
PART II--For Payees NOT subject to backup withholding,
see the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9
and complete as instructed therein.
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.
CERTIFICATION INSTRUCTIONS--You must cross out item (2)
above if you have been notified by the IRS that you are
subject to backup withholding because of
under-reporting interest or dividends on your tax
return. However, if after being notified by the IRS
that you were subject to backup withholding you
received another notification from the IRS that you are
no longer subject to backup withholding, do not cross
out item (2).
Signature: __________________ Date: ________ , 1998
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE
OFFER. 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 WROTE "APPLIED FOR" IN PART
I OF SUBSTITUTE FORM W-9.
PAYOR'S NAME: STATE STREET BANK AND TRUST COMPANY, AS EXCHANGE AGENT
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 within
sixty (60) days, 31% of all reportable payments made to me thereafter will
be withheld until I provide a number.
Signature: _________________________ Date: ________________________, 1998
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APPENDIX A
NEW MEXICO HOLDERS
Any "financial or institutional investor" (as defined below) or broker- dealer.
The term "financial or institutional investor" means any of the following
whether acting for itself or others in a fiduciary capacity other than as an
agent; depository institution (as defined), insurance company, insurance company
separate account, investment company as defined in the Investment Company Act of
1940; an employee pension, profit-sharing or benefit plan (i) if the plan has
total assets in excess of $5,000,000, or (ii) if the investment decisions are
made by a plan fiduciary, as defined in the Employee Retirement Income Security
Act of 1974, which is either a broker-dealer registered under the Securities
Exchange Act of 1934, an investment adviser registered or exempt from
registration under the Investment Advisers Act of 1940, a depository institution
or an insurance company; a business development company as defined in the
Investment Company Act of 1940, a small business investment company licensed by
the United States Small Business Administration under Section 301(c) or 301(d)
of the United States Small Business Investment Act of 1958; or any other
financial or institutional investor as the Director of the New Mexico Securities
Division by rule or order designates. The Director has designated the following
additional "financial or institutional investors:" an entity, other than a
natural person, which is directly engaged in the business of, and derives at
least eighty percent of its annual gross income from, investing, purchasing,
selling or trading in securities of more than one issuer and not of its own
issue, and that has gross assets in excess of five million dollars ($5,000,000)
at the end of its latest fiscal year; an entity organized and operated not for
private profit as described in Section 501(c)(3) of the Internal Revenue Code
with total assets in excess of five million dollars ($5,000,000); a state, a
political subdivision of a state or an agency or corporate or other
instrumentality of a state or a political subdivision of a state; and an
employee pension, profit sharing or benefit plan, if the investment decisions
are made by one or more plan fiduciaries, as defined in the Employee Retirement
Income Security Act of 1974, so long as at least one of such plan fiduciaries is
either a broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the Investment
Advisers Act of 1940, a depository institution, or an insurance company.
PENNSYLVANIA HOLDERS
Any bank as defined, insurance company, pension or profit-sharing plan or trust,
investment company as defined in the Investment Company Act of 1940, other
financial institution or any person, other than an individual, which controls
any of the foregoing, the federal government, the State or any agency or
political subdivision thereof, any other person so designated by regulation of
the Pennsylvania Securities Commission, or any broker-dealer, whether the buyer
is acting for itself or in some fiduciary capacity. Entities so designated by
regulation include: (i) a corporation or business trust or a wholly-owned
subsidiary of the person which has been in existence for 18 months and which has
a tangible net worth on a consolidated basis, as reflected in its most recent
audited financial statements, of $10,000,000 or more; (ii) a college, university
or other public or private institution which has received exempt status under
section 501(c)(3) of the Internal Revenue Code of 1954 and which has total
endowment or trust funds, including annuity and life income funds, of $5,000,000
or more according to its most recent audited financial statements; provided that
the aggregate dollar amount of securities being sold to purchasers in this
category may not exceed 5% of the endowment or trust funds; (iii) a Small
Business Investment Company as that term is defined in section 103 of the Small
Business Investment Act of 1958 which either; (1) has a total capital of
$1,000,000 or more; or (2) is controlled by institutional investors as defined
herein; (iv) a Seed Capital Fund, as defined in section 2 and authorized in
section 6 of the Small Business Incubators Act; (v) a Business Development
Credit Corporation, as authorized by the Business Development Credit Corporation
Law; (vi) a person whose securityholders consist solely of institutional
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investors as defined herein or broker-dealers; or (vii) a qualified
institutional buyer as that term is defined in 17 CFR 230.144A (relating to
private resales of securities to institutions), or any successor rule thereto.
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