FORM OF CONSENT AND LETTER OF TRANSMITTAL
ATLANTIC COAST ENTERTAINMENT HOLDINGS, INC.
CONSENT SOLICITATION
AND
OFFER TO EXCHANGE
$110,000,000 3% Notes due 2008 of Atlantic Coast Entertainment Holdings, Inc.
for any and all outstanding 11% Notes due 2005 of GB Property Funding Corp.,
which have been registered under the Securities Act of 1933
-------------------------------------------------------------------------------
THE CONSENT SOLICITATION AND EXCHANGE OFFER AND WITHDRAWAL
RIGHTS EXPIRES AT 5:00 P.M., NEW YORK CITY TIME, ON _______________
("EXPIRATION DATE"), UNLESS EXTENDED
-------------------------------------------------------------------------------
THE EXCHANGE AGENT FOR THE CONSENT SOLICITATION AND EXCHANGE OFFER IS:
[---------------]
By Registered or Certified Mail or By Hand or Overnight Delivery:
[Name]
[Address]
[Address]
Attention: _______________
By Facsimile (for Eligible Institution Only):
(---) ----------
Attention: _______________
Confirm by Telephone:
(----) ---------------
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE
OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS ACCOMPANYING THIS CONSENT AND LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS CONSENT AND LETTER OF TRANSMITTAL IS COMPLETED.
Questions and requests for assistance or for additional copies of the
solicitation statement and prospectus or this Consent and Letter of Transmittal
may be directed to the information agent at:
[name]
[address]
[address]
[telephone number]
The undersigned acknowledges that it has received this Consent and
Letter of Transmittal and the solicitation statement and prospectus dated
________, 2003 of Atlantic Coast Entertainment Holdings,
Inc., a Delaware corporation ("Atlantic"), relating to its offer to exchange
$1,000 principal amount of 11% Notes due 2005 (the "Existing Notes") of GB
Property Funding Corp., a Delaware corporation ("Funding"), for $1,000 principal
amount of Atlantic's newly issued 3% Notes due 2008 (the "New Notes") plus $100
in cash, as well as cash in respect of all accrued but unpaid interest on the
Existing Notes through the date the exchange offer is completed, that are
properly tendered and accepted for exchange on the terms and conditions set
forth in the solicitation statement and prospectus and this Consent and Letter
of Transmittal. Concurrently with the exchange offer, Atlantic is also
soliciting consents from holders of the Existing Notes, to certain amendments to
the indenture governing the Existing Notes (the "Existing Indenture") to
eliminate certain restrictive covenants and release the collateral securing the
Existing Notes, as described in the solicitation statement and prospectus. This
Consent and Letter of Transmittal and the solicitation statement and prospectus
together constitute Atlantic's offer to exchange the New Notes for the Existing
Notes, as the same may be amended or supplemented from time to time.
If a holder tenders its Existing Notes in the exchange offer, it must
deliver a corresponding consent to the elimination of certain restrictive
covenants of the Existing Indenture, the release of the liens on the collateral
securing the Existing Notes pursuant to the Existing Indenture under which the
Existing Notes were issued and the terms of the new indenture governing the New
Notes (the "New Indenture"). A holder's completion, execution and delivery of
this Consent and Letter of Transmittal will be deemed to constitute its consent
to the elimination of certain restrictive covenants of the Existing Indenture,
the release of the liens on the collateral securing the Existing Notes pursuant
to the Existing Indenture under which the Existing Notes were issued and the
terms of the New Indenture, unless properly revoked in the manner and during the
periods described herein.
Atlantic will issue New Notes for Existing Notes that it has accepted
for exchange under the exchange offer only after the exchange agent timely
receives:
(1) Existing Notes or a timely book-entry confirmation that Existing
Notes have been transferred in the exchange agent's account at
The Depository Trust Company ("DTC"); and
(2) this Consent and Letter of Transmittal, properly completed and
duly executed, and all other required documents or a properly
transmitted agent's message. "Agent's message" means a message,
transmitted by DTC and received by the exchange agent and forming
part of a book-entry confirmation, which states that DTC has
received an express acknowledgment from a participant tendering
Existing Notes that are the subject of the book-entry
confirmation that the participant has received and agrees to be
bound by the terms of the Consent and Letter of Transmittal, and
that Atlantic may enforce that agreement against the participant.
Delivery of the agent's message will satisfy the terms of the
consent solicitation and exchange offer as to execution and
delivery of a Consent and Letter of Transmittal by the
participant identified in the agent's message.
See Instruction 1.
This Consent and Letter of Transmittal is to be completed by a holder
either (i) if the Existing Notes are to be forwarded herewith or (ii) if a
tender of the Existing Notes, if available, is to be made by book-entry transfer
to the account maintained by the exchange agent at DTC pursuant to the
procedures set forth in "THE CONSENT SOLICITATION AND EXCHANGE OFFER --
Procedures for Tendering and Consenting" section of the solicitation statement
and prospectus.
Holders whose Existing Notes are not immediately available, or who are
unable to deliver their Existing Notes or confirmation of the book-entry tender
of their Existing Notes into the exchange agent's account at DTC and all other
documents required by this Consent and Letter of Transmittal to the exchange
agent on or prior to the Expiration Date, must tender their Existing Notes
according to the guaranteed delivery procedures set forth in the solicitation
statement and prospectus under the caption "THE CONSENT SOLICITATION AND
EXCHANGE OFFER -- Guaranteed Delivery." See
2
Instruction 2. Holders of Existing Notes tendered via the guaranteed delivery
procedure will still be required to properly complete and execute this Consent
and Letter of Transmittal.
Any beneficial owner whose Existing Notes are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered holder of the Existing Notes promptly
and instruct such registered holder of the Existing Notes to tender on behalf of
the beneficial owner. If such beneficial owner wishes to tender on its own
behalf, such beneficial owner must, before completing and executing this Consent
and Letter of Transmittal and delivering its Existing Notes, either make
appropriate arrangements to register ownership of the Existing Notes in such
beneficial owner's name or obtain a properly completed bond power from the
registered holder of the Existing Notes. The transfer of record ownership may
take considerable time.
HOLDERS WHO DESIRE TO TENDER THEIR EXISTING NOTES IN THE EXCHANGE OFFER
ARE REQUIRED TO CONSENT TO THE ELIMINATION OF CERTAIN RESTRICTIVE COVENANTS OF
THE EXISTING INDENTURE, THE RELEASE OF THE LIENS ON THE COLLATERAL SECURING THE
EXISTING NOTES PURSUANT TO THE EXISTING INDENTURE UNDER WHICH THE EXISTING NOTES
WERE ISSUED AND THE TERMS OF THE NEW INDENTURE. THE COMPLETION, EXECUTION AND
DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL CONSTITUTES A CONSENT TO THE
ELIMINATION OF CERTAIN RESTRICTIVE COVENANTS OF THE EXISTING INDENTURE, THE
RELEASE OF THE LIENS ON THE COLLATERAL SECURING THE EXISTING NOTES PURSUANT TO
THE EXISTING INDENTURE UNDER WHICH THE EXISTING NOTES WERE ISSUED AND THE TERMS
OF THE NEW INDENTURE. HOLDERS MAY NOT DELIVER CONSENTS WITHOUT TENDERING
EXISTING NOTES.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
3
List below the Existing Notes to which this Consent and Letter of
Transmittal relates. If the space provided below is inadequate, certificate or
registration numbers and principal amounts should be listed on a separately
signed schedule affixed hereto.
- ------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF 11% NOTES DUE 2005 TENDERED HEREBY
- ------------------------------------------------------------------------------------------------------------------------
AGGREGATE
PRINCIPAL
NAME(S) AND ADDRESS(ES) OF REGISTERED EXISTING AMOUNT
NOTE HOLDER(S) CERTIFICATE OR REPRESENTED
REGISTRATION BY PRINCIPAL AMOUNT
(PLEASE FILL IN) NUMBER(S)* EXISTING NOTES* TENDERED**
- ------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
TOTAL
- ------------------------------------------------------------------------------------------------------------------------
* Need not be completed by holders tendering by book-entry transfer.
** Unless otherwise indicated, the holder will be deemed to have tendered the
total principal amount of the Existing Note represented by the Existing Note
indicated. All tenders must be in integral multiples of $1,000.
- --------------------------------------------------------------------------------
|_| CHECK HERE IF THE TENDERED EXISTING NOTES ARE ENCLOSED HEREWITH.
|_| CHECK HERE IF TENDERED EXISTING NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution:__________________________________________________
Account Number:_________________________________________________________________
Transaction Code Number: _______________________________________________________
By crediting the Existing Notes to the exchange agent's account at DTC
using the Automated Tender Offer Program ("ATOP") and by complying with
applicable ATOP procedures with respect to the exchange offer, including
transmitting to the exchange agent an agent's message in which the holder of the
Existing Notes acknowledges and agrees to be bound by the terms of, and makes
the representations and warranties contained in, this Consent and Letter of
Transmittal, the participant at DTC confirms on behalf of itself and the
beneficial owners of such Existing Notes all provisions of this Consent and
Letter of Transmittal (including all representations and warranties) applicable
to it and such beneficial owner as fully as if it had completed the information
required herein and executed and transmitted this Consent and Letter of
Transmittal to the exchange agent. Delivery of the agent's message will satisfy
the terms of the consent solicitation and exchange offer as to execution and
delivery of a Consent and Letter of Transmittal by the participant identified in
the agent's message.
4
[_] CHECK HERE IF TENDERED EXISTING NOTES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s): __________________________________________________
Name of Eligible Institution that Guaranteed Delivery: _________________________
If delivery by book-entry transfer -
Account Number: ________________________________________________________________
Transaction Code Number: _______________________________________________________
5
NOTE: SIGNATURE MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the consent
solicitation and exchange offer, the undersigned hereby (1) tenders to Atlantic
the principal amount of the Existing Notes indicated above and (2) consents to
the elimination of certain restrictive covenants of the Existing Indenture, the
release of the liens on the collateral securing the Existing Notes pursuant to
the Existing Indenture under which the Existing Notes were issued and the terms
of the New Indenture, as described in the solicitation statement and prospectus.
Subject to, and effective upon, the acceptance for exchange of such Existing
Notes tendered hereby, the undersigned hereby exchanges, assigns and transfers
to, or upon the order of, Atlantic all right, title and interest in and to such
Existing Notes as are being tendered hereby. To amend the Existing Indenture,
Atlantic must receive consent to exchange from the registered holders of a
majority in aggregate principal amount of all outstanding debt securities issued
under the Existing Indenture, voting as a single class (the "Required
Consents"). The undersigned understands that the proposed amendments to the
Existing Indenture will not become operative unless and until Atlantic accepts
for exchange or purchase debt securities issued under the Existing Indenture
that represent at least the Required Consents. The undersigned hereby
irrevocably constitutes and appoints the exchange agent the true and lawful
agent and attorney-in-fact of the undersigned (with full knowledge that said
exchange agent acts as our agent in connection with the consent solicitation and
exchange offer) with full power of substitution, among other things, to cause
the Existing Notes to be assigned, transferred and exchanged. Such appointment
is effective when and only to the extent that Atlantic accepts for exchange the
Existing Notes that you have tendered with the exchange agent. The undersigned
represents and warrants that it has full power and authority to tender,
exchange, assign and transfer the Existing Notes and to acquire the New Notes
issuable upon the exchange of such tendered Existing Notes, and that when the
same are accepted for exchange, Atlantic will acquire good and unencumbered
title to the tendered Existing Notes, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim.
The undersigned agrees and acknowledges that, by the execution and
delivery of this Consent and Letter of Transmittal, the undersigned grants
written consent to the elimination of certain restrictive covenants of the
Existing Indenture, the release of the liens on the collateral securing the
Existing Notes pursuant to the Existing Indenture under which the Existing Notes
were issued and the terms of the New Indenture, as described in the solicitation
statement and prospectus and hereby also consents to the execution of the New
Indenture and the Second Amended and Restated Indenture which implements the
elimination of certain restrictive covenants of the Existing Indenture and the
release of the liens on the collateral securing the Existing Notes. The forms of
the Second Amended and Restated Indenture and the New Indenture are attached as
exhibits to the solicitation statement and prospectus. The undersigned
understands that the consent provided hereby shall remain in full force and
effect unless and until such consent is revoked in accordance with the
procedures set forth in the solicitation statement and prospectus and this
Consent and Letter of Transmittal. The undersigned understands that after the
Expiration Date, no consents may be revoked.
Subject to, and effective upon, the acceptance for exchange of the
Existing Notes for the New Notes, the undersigned unconditionally waives and
releases, and forever discharges and acquits, to the extent permitted by law,
Atlantic, Funding, their affiliates, and any of their respective directors,
officers, executives, employees, attorneys, advisors or representatives (the
"Released Persons"), from all, and all manner of, actions, suits, debts, claims,
duties, payment and performance of all obligations, liabilities and indebtedness
of every kind, direct or indirect, determined and undetermined, at law or in
equity, whether or not asserted or raised and existing or alleged to exist or to
have existed, at any time, which such holder of the Existing Notes ever had or
has or may have at this time against any released person, arising out of,
relating to, or incurred in connection with, the Existing Notes, the Existing
Indenture governing the Existing Notes, the consent solicitation and exchange
offer, or any transaction entered into hereunder or thereunder or any action
taken or omitted to be taken by the released persons hereunder or thereunder.
The waiver and release are part of the consideration for exchange of the
Existing Notes. The waiver may not be effective to waive liabilities under the
federal securities laws.
6
The undersigned understands that prior to the expiration date, tenders
of Existing Notes may be withdrawn and, prior to the Expiration Date, consents
may be revoked, by written notice of withdrawal received by the exchange agent
at any time prior to such date. A valid withdrawal of tendered Existing Notes
prior to the Expiration Date will constitute the concurrent valid revocation of
such holder's related consent to the elimination of certain restrictive
covenants of the Existing Indenture, the release of the liens on the collateral
securing the Existing Notes pursuant to the Existing Indenture under which the
Existing Notes were issued and the terms of the New Indenture. In order for a
holder to revoke a consent, such holder must withdraw the related Existing
Notes. In the event of a termination of the consent solicitation and exchange
offer, any consent will automatically be deemed revoked and the Existing Notes
pursuant to the exchange offer will be returned to the tendering holders
promptly or, in the case of Existing Notes tendered by book-entry transfer, such
Existing Notes will be credited to the account maintained at the DTC from which
such Existing Notes were delivered.
The undersigned understands that we shall not be required to accept any
tender of Existing Notes and we may terminate or amend the exchange offer and
consent solicitation at any time prior to the completion of the exchange offer.
The undersigned represents that (1) the New Notes acquired pursuant to
the exchange offer are being obtained in the ordinary course of business of the
person receiving such New Notes, whether or not such person is the undersigned,
and (2) neither the undersigned nor any such other person is engaged or intends
to engage in, or has an arrangement or understanding with any person to
participate in, the distribution of such New Notes. If the undersigned or the
person receiving the New Notes covered hereby is a broker-dealer that is
receiving the New Notes for its own account in exchange for Existing Notes that
were acquired as a result of market-making activities or other trading
activities, the undersigned acknowledges that it or such other person will
deliver a prospectus in connection with any resale of such New Notes; however,
by so acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act of 1933 (the "Securities Act"). The undersigned and any such other person
acknowledges that, if they are participating in the exchange offer for the
purposes of distributing the New Notes, (i) they must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with the resale transaction and (ii) failure to comply with such
requirements in such instance could result in the undersigned or any such other
person incurring liability under the Securities Act for which such persons are
not indemnified by Atlantic. If the undersigned or the person receiving the New
Notes covered by this Consent and Letter of Transmittal is an affiliate (as
defined under Rule 405 of the Securities Act) of Atlantic, the undersigned
represents that the undersigned understands and acknowledges that such New Notes
may not be offered for resale, resold or otherwise transferred by the
undersigned or such other person without registration under the Securities Act
or an exemption therefrom.
Subject to the foregoing representations and based on interpretations
of the Securities and Exchange Commission ("SEC") staff, New Notes issued
pursuant to the consent solicitation and exchange offer may be offered for
resale, resold or otherwise transferred by their holders without compliance with
the registration and prospectus delivery requirements of the Securities Act. Any
holder who tenders in the exchange offer for the purpose of participating in a
distribution of the New Notes:
(1) cannot rely on the applicable interpretations of the SEC; and
(2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary
resale transaction.
The undersigned also warrants that it will, upon request, execute and
deliver any additional documents deemed by the exchange agent or Atlantic to be
necessary or desirable to complete the exchange, assignment and transfer of
tendered Existing Notes or transfer ownership of such Existing Notes on the
account books maintained by a book-entry transfer facility.
All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned and every obligation of the
undersigned hereunder shall be binding upon the heirs,
7
personal representatives, successors and assigns of the undersigned. Tendered
Existing Notes may be withdrawn at any time prior to the Expiration Date.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please issue the Existing Notes, and if applicable,
substitute certificates representing Existing Notes not exchanged, and a check
in the amount of the cash payment to which the undersigned is entitled plus all
accrued but unpaid interest on the Existing Notes through the date the exchange
offer is completed in the name of the undersigned or, in the case of book-entry
delivery of the Existing Notes, please credit the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under the box entitled
"Special Delivery Instructions" below, please send the New Notes, and if
applicable, substitute certificates representing Existing Notes for any Existing
Notes not exchanged, and a check in the amount of the cash payment to which the
undersigned is entitled plus all accrued but unpaid interest on the Existing
Notes through the date the exchange offer is completed to the undersigned at the
address shown above in the table entitled "Description of 11% Notes due 2005
Tendered Hereby."
[To be determined if necessary]
STATE INVESTOR SUITABILITY
FOR RESIDENTS OF:
ARIZONA ARKANSAS GEORGIA IDAHO ILLINOIS
INDIANA KENTUCKY MINNESOTA NEW JERSEY NORTH DAKOTA
OREGON PENNSYLVANIA TENNESSEE TEXAS UTAH
WISCONSIN
If the undersigned is a resident of any of the above states and the
undersigned is tendering any Existing Notes, we have been instructed by Atlantic
not to accept the undersigned's instruction unless either (1) the undersigned's
state securities regulatory authority has qualified the offer and sale of the
New Notes in the undersigned's state; or (2) the undersigned has checked one of
the following boxes:
|_| The undersigned is a "Qualified Institutional Buyer", as defined in
Rule 144A under the Securities Act of 1933, as amended.
|_| The undersigned is a bank, savings institution, trust company,
insurance company, "investment company" (as defined under the Investment Company
Act of 1940, as amended), pension or profit-sharing trust, financial institution
or institutional buyer (in each case, as defined in the securities laws of the
undersigned's state of residence).
FOR RESIDENTS OF CALIFORNIA:
If the undersigned is a resident of CALIFORNIA and the undersigned is
tendering any Existing Notes, we have been instructed by Atlantic not to accept
the undersigned's instruction unless either (1) the California Department of
Corporations has qualified the sale of the New Notes in California; or (2) the
undersigned has checked one of the following boxes:
|_| The undersigned is a bank, savings and loan association, trust
company, insurance company, investment company registered under the Investment
Company Act of 1940, pension or profit-sharing trust (other than a pension or
profit-sharing trust of the issuer, a self-employed individual retirement plan,
or individual retirement account), in each case, within the meaning of Section
25102(i) of the California Corporate Securities Law of 1968.
|_| The undersigned is an organization described in Section 501(c)(3)
of the Internal Revenue Code, as amended on December 29, 1981, which has total
assets (including endowment, annuity and life income funds) of not less than
$5,000,000 according to its most recent audited financial statements, as
described in Rule 260.102.10(a) of the Blue Sky Regulations promulgated under
the California Corporate Securities Law of 1968.
8
|_| The undersigned is a corporation which has a net worth on a
consolidated basis according to its most recent audited financial statements of
not less than $14,000,000, as described in Rule 260.102.10(b) of the Blue Sky
Regulations promulgated under the California Corporate Securities Law of 1968.
FOR RESIDENTS OF OHIO:
If the undersigned is a resident of OHIO and you are tendering any
Existing Notes, we have been instructed by Atlantic not to accept the
undersigned's instruction unless either (1) the Ohio Commissioner of Securities
has qualified the sale of the New Notes in Ohio; or (2) the undersigned has
checked one of the following boxes:
|_| The undersigned is a "Qualified Institutional Buyer", as defined in
Rule 144A under the Securities Act of 1933, as amended.
|_| The undersigned is a corporation, bank, insurance company, any
corporation, bank, insurance company, pension fund or profit fund, employees'
profit-sharing trust, any association engaged (as a substantial part of its
business or operations) in purchasing or holding securities or any trust in
respect of which a bank is trustee or co-trustee (in each case, as defined in
Ohio Securities Act).
FOR RESIDENTS OF MICHIGAN:
If the undersigned is a resident of MICHIGAN and the undersigned is
tendering any Existing Notes, we have been instructed by Atlantic not to accept
the undersigned's instruction unless either (1) the Michigan Commissioner of
Securities has qualified the sale of the New Notes in Michigan; or (2) the
undersigned has checked the following box:
|_| The undersigned is a bank, savings institution, trust company,
insurance company, investment company (as defined in the Investment Company Act
of 1940, as amended) the federal national mortgage association, the federal home
loan mortgage corporation, the government national mortgage association, a
pension or profit-sharing trust the assets of which are managed by an
institutional manager, the treasurer of the State of Michigan, an other
financial institution, a broker-dealer (whether the purchaser is acting for
itself or in some fiduciary capacity), or a lender approved by the federal
housing administration and who has satisfied any additional requirements
established by the administrator by rule or order.
THE FOLLOWING REPRESENTATIONS SHALL BE DEEMED TO BE MADE BY DTC
PARTICIPANTS TENDERING AS INSTRUCTED BY BENEFICIAL HOLDERS OF EXISTING NOTES:
REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN THE FOLLOWING
STATES:
ARIZONA ARKANSAS GEORGIA IDAHO ILLINOIS
INDIANA KENTUCKY MINNESOTA NEW JERSEY NORTH DAKOTA
OREGON PENNSYLVANIA TENNESSEE TEXAS UTAH
WISCONSIN
If the undersigned is tendering any Existing Notes on behalf of
beneficial holders who are residents of any of the above states, the undersigned
hereby represents and warrants with respect to each beneficial holder on whose
behalf it is tendering Existing Notes that either (1) Atlantic has notified the
undersigned IN WRITING that Atlantic will accept tenders of Existing Notes from
all holders in such beneficial holder's state of residence; or (2) such
beneficial holder has represented to the undersigned in its instruction to the
undersigned that:
o it is a "Qualified Institutional Buyer", as defined in Rule 144A
under the Securities Act of 1933, as amended; or
9
o it is a bank, savings institution, trust company, insurance company,
"investment company" (as defined under the Investment Company Act of 1940, as
amended), pension or profit-sharing trust, financial institution or
institutional buyer (in each case, as defined in the laws of my state of
residence).
REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN CALIFORNIA:
If the undersigned is tendering any Existing Notes on behalf of
beneficial holders who are resident in CALIFORNIA, the undersigned hereby
represents and warrants with respect to each beneficial holder on whose behalf
it is tendering Existing Notes that either (1) Atlantic has notified the
undersigned IN WRITING that Atlantic will accept tenders of Existing Notes from
all holders in California; or (2) such beneficial holder has represented to the
undersigned in its instruction to the undersigned that:
o it is a bank, savings and loan association, trust company, insurance
company, investment company registered under the Investment Company Act of 1940,
pension or profit-sharing trust (other than a pension or profit-sharing trust of
the issuer, a self-employed individual retirement plan, or individual retirement
account), in each case, within the meaning of Section 25102(i) of the California
Corporate Securities Law of 1968;
o it is an organization described in Section 501(c)(3) of the Internal
Revenue Code, as amended on December 29, 1981, which has total assets (including
endowment, annuity and life income funds) of not less than $5,000,000 according
to its most recent audited financial statements, as described in Rule
260.102.10(a) of the Blue Sky Regulations promulgated under the California
Corporate Securities Law of 1968; or
o it is a corporation which has a net worth on a consolidated basis
according to its most recent audited financial statements of not less than
$14,000,000, as described in Rule 260.102.10(b) of the Blue Sky Regulations
promulgated under the California Corporate Securities Law of 1968.
|_| The undersigned has read the above representation and represents
and warrants that it is true and correct.
REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN OHIO:
If the undersigned is tendering any Existing Notes on behalf of
beneficial holders who are resident in OHIO, the undersigned hereby represents
and warrants with respect to each beneficial holder on whose behalf it is
tendering Existing Notes that either (1) Atlantic has notified the undersigned
IN WRITING that Atlantic will accept tenders of Existing Notes from all holders
in Ohio; or (2) such beneficial holder has represented to the undersigned in its
instruction to the undersigned that:
o It is a "Qualified Institutional Buyer", as defined in Rule 144A
under the Securities Act of 1933, as amended; or
o It is a corporation, bank, insurance company, any corporation, bank,
insurance company, pension fund or profit fund, employees' profit-sharing trust,
any association engaged (as a substantial part of its business or operations) in
purchasing or holding securities or any trust in respect of which a bank is
trustee or co-trustee (in each case, as defined in Ohio Securities Act).
REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN MICHIGAN:
If the undersigned is tendering any Existing Notes on behalf of
beneficial holders who are resident in MICHIGAN, the undersigned hereby
represents and warrants with respect to each beneficial holder on whose behalf
it is tendering Existing Notes that either (1) Atlantic has notified the
undersigned IN WRITING that Atlantic will accept tenders of Existing Notes from
all holders in Michigan; or (2) such beneficial holder has represented to the
undersigned in its instruction to the undersigned that:
o It is a bank, savings institution, trust company, insurance company,
investment company (as defined in the Investment Company Act of 1940, as
amended) the federal national mortgage association,
10
the federal home loan mortgage corporation, the government national mortgage
association, a pension or profit-sharing trust the assets of which are managed
by an institutional manager, the treasurer of the State of Michigan, an other
financial institution, a broker-dealer (whether the purchaser is acting for
itself or in some fiduciary capacity), or a lender approved by the federal
housing administration and who has satisfied any additional requirements
established by the administrator by rule or order.
The undersigned understands that tenders of the Existing Notes pursuant
to any one of the procedures described under "THE CONSENT SOLICITATION AND
EXCHANGE OFFER -- Procedures for Tendering and Consenting" in the solicitation
statement and prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Atlantic in accordance with
the terms and subject to the conditions of the consent solicitation and exchange
offer.
All authority conferred or agreed to be conferred by this Consent and
Letter of Transmittal shall survive the death or incapacity of the undersigned,
and every obligation of the undersigned under this Consent and Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns. Tenders may be withdrawn only in
accordance with the procedures set forth in the Instructions contained in this
Consent and Letter of Transmittal.
Unless otherwise indicated under "Special Delivery Instructions" below,
the exchange agent will deliver New Notes (and, if applicable, a certificate for
any Existing Notes not tendered but represented by a certificate also
encompassing Existing Notes which are tendered) to the undersigned at the
address set forth in Box 1.
The undersigned acknowledges that the consent solicitation and exchange
offer is subject to the more detailed terms set forth in the solicitation
statement and prospectus and, in case of any conflict between the terms of the
solicitation statement and prospectus and this Consent and Letter of
Transmittal, the solicitation statement and prospectus shall prevail.
THE UNDERSIGNED, BY COMPLETING THE TABLE ENTITLED "DESCRIPTION OF 11%
NOTES DUE 2005 TENDERED HEREBY" ABOVE AND SIGNING THIS CONSENT AND LETTER OF
TRANSMITTAL, WILL BE DEEMED TO HAVE TENDERED THE EXISTING NOTES AS SET FORTH IN
SUCH TABLE ABOVE.
11
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING AND CONSENTING HOLDERS)
By completing, executing and delivering this Consent and Letter of
Transmittal, the undersigned hereby (1) consents to the approval of the proposed
amendments to the Existing Indenture, as described in the solicitation statement
and prospectus, dated ________________, and (2) tenders the Existing Notes
listed above in the table entitled "Description of 11% Notes Due 2005 Tendered
Hereby" under the column heading "Principal Amount Tendered" or, if nothing is
indicated in such column, with respect to the total principal amount represented
by the Existing Notes described in such table.
X ______________________________________________________________________
X ______________________________________________________________________
Must be signed by registered holder(s) exactly as name(s) appear(s) on the
Existing Notes or on a security position listing as the owner of the
Existing Notes or by person(s) authorized to become registered holders(s)
by properly completed bond powers transmitted herewith. If signature is by
attorney-in-fact, trustee, executor, administrator, guardian, officer of a
corporation or other person acting in a fiduciary capacity, please provide
the following information (please print or type):
-------------------------------------------------- SIGNATURE GUARANTEE
Name and Capacity (full title) (If Required - See Instruction 4)
-------------------------------------------------- ------------------------------------------------
(Signature of Representative of
Signature Guarantor)
--------------------------------------------------
-------------------------------------------------- ------------------------------------------------
Address (including zip code) (Name and Title)
-------------------------------------------------- ------------------------------------------------
(Area Code and Telephone Number) (Name of Plan)
-------------------------------------------------- ------------------------------------------------
(Taxpayer Identification or Social (Area Code and Telephone Number)
Security No.)
Dated:____________________, 2003 Dated:____________________, 2003
- --------------------------------------------------------------------------------
12
- ----------------------------------------------------------------------------------------------------------------------
PAYOR'S NAME: [NEWCO INC.]
- ----------------------------------------------------------------------------------------------------------------------
PART 1 - PLEASE PROVIDE YOUR TAX IDENTIFICATION Social Security Number
SUBSTITUTE NUMBER ("TIN") IN THE BOX AT RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW
FORM W-9 ____________________________________
OR
____________________________________
Employer Identification Number
------------------------------------------------------------------------------------------
PART 2 - CERTIFICATION -- Under Penalties of Perjury, I certify that:
(1) The number shown on this form is my correct TIN (or I am waiting for a number to be issued to me).
(2) I am not subject to backup withholding because (a) I am exempt from backup withholding,
(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.
(3) I am a U.S. person.
------------------------------------------------------------------------------------------
PAYER'S REQUEST FOR TIN CERTIFICATION INSTRUCTIONS -- You must cross out item (2) in Part 2 PART 3--
above if you have been notified by the IRS that you are subject to
backup withholding because you have failed to report all interest or
dividends on your tax return. However, if after being notified by Awaiting TIN |_|
the IRS that you were 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 , 2003
------------------------------ ---------------
--------------------------------------------------------------------
Name (Please Print)
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE CONSENT
SOLICITATION AND 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 CHECKED THE
BOX IN PART 3 OF 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 IRS 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 have not provided a
taxpayer identification number, 28% of all reportable payments made to me will
be withheld until I provide a number.
, 2003
- -------------------------------------------------------------- -------------------------------------------
Signature Date
- --------------------------------------------------------------------------------
Name (Please Print)
- --------------------------------------------------------------------------------
13
- --------------------------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 2, 3, 4 AND 6)
To be completed ONLY if certificates for Existing Notes not exchanged or
accepted for exchange and/or New Notes issued pursuant to the consent
solicitation and exchange offer are to be issued in the name of, or checks in
the amount of the cash payment and all accrued but unpaid interest are to be
issued to the order of, someone other than the person or persons whose
signature(s) appear(s) on this Consent and Letter of Transmittal above, or
issued to an address different from that shown in the table entitled
"Description of 11% Notes due 2005 Tendered Hereby" if Existing Notes delivered
by book-entry transfer which are not accepted for exchange are to be returned by
credit to an account maintained at DTC other than the account indicated above.
Issue: (please check one or more)
|_| Existing Notes
|_| New Notes
|_| Cash/Check
in the name of:
________________________________________________________________________________
Name and Capacity (full title)
________________________________________________________________________________
Address (including zip code)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Area Code and Telephone Number)
________________________________________________________________________________
Taxpayer Identification or Social Security No.
(Complete Substitute W-9)
________________________________________________________________________________
Date
- --------------------------------------------------------------------------------
14
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 2, 4 AND 5)
To be completed ONLY if certificates for Existing Notes not exchanged
or accepted for exchange and/or New Notes issued pursuant to the consent
solicitation and exchange offer or checks in the amount of the cash payment and
all accrued but unpaid interest are to be sent to someone other than the person
or persons at an address other than that shown in the table entitled
"Description of 11% Notes due 2005 Tendered Hereby" on this Consent and Letter
of Transmittal above.
Issue: (please check one or more)
|_| Existing Notes
|_| New Notes
|_| Cash/Check
in the name of:
________________________________________________________________________________
Name and Capacity (full title)
________________________________________________________________________________
Address (including zip code)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Area Code and Telephone Number)
________________________________________________________________________________
Taxpayer Identification or Social Security No.
(Complete Substitute W-9)
________________________________________________________________________________
Date
IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS CONSENT
AND LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATES
FOR THE EXISTING NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED
DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK
CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
15
INSTRUCTIONS TO CONSENT AND LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS
OF THE CONSENT SOLICITATION AND EXCHANGE OFFER
1. DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL AND EXISTING NOTES.
If you wish to tender your Existing Notes for exchange in the consent
solicitation and exchange offer, you must transmit to the exchange agent on or
before 5:00 p.m., New York City time, on the Expiration Date either:
(a) an original or a facsimile of a properly completed and duly executed
copy of this Consent and Letter of Transmittal, together with your Existing
Notes and any other documentation required by this Consent and Letter of
Transmittal, at the address provided on the cover page of this Consent and
Letter of Transmittal, or
(b) if the Existing Notes you own are held of record by DTC in book-entry
form and you are making delivery, by book-entry transfer, a computer-generated
message transmitted by means of DTC's ATOP program in which you acknowledge and
agree to be bound by the terms of this Consent and Letter of Transmittal and
which, when received by the exchange agent, will form a part of a confirmation
of book-entry transfer, DTC will facilitate the exchange of your Existing Notes
and update your account to reflect the issuance of the New Notes to you. ATOP
allows you to electronically transmit your acceptance of the Exchange offer to
DTC instead of physically completing and delivering this Consent and Letter of
Transmittal to the exchange agent.
THE METHOD OF DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL, THE
EXISTING NOTES AND ANY OTHER REQUIRED DOCUMENTS IS AT YOUR ELECTION AND RISK,
AND EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, IT IS
SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED,
BE USED.
Delivery to an address other than as set forth herein, or instruction via a
facsimile number other than the one set forth herein, will not constitute a
valid delivery.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders, by execution of this Consent and Letter of
Transmittal (or facsimile thereof) or otherwise complying with the tender
procedures set forth in the solicitation statement and prospectus, shall waive
any right to receive notice of the acceptance of the Existing Notes for
exchange.
See "THE CONSENT SOLICITATION AND EXCHANGE OFFER" as set forth in the
solicitation statement and prospectus.
2. GUARANTEED DELIVERY PROCEDURES. Guarantee of delivery procedures are
applicable to the Existing Notes. Holders who wish to tender their Existing
Notes, but whose Existing Notes are not immediately available and thus cannot
deliver their Existing Notes, this Consent and Letter of Transmittal or any
other required documents to the exchange agent (or comply with the procedures
for book-entry transfer) prior to the Expiration Date, may effect a tender if:
(a) the tender is made through a member firm of a registered national
securities exchange or of NASD 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 Exchange Act of 1934
(an "Eligible Institution");
(b) prior to the Expiration Date, the exchange agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery) setting
forth the name and address of the holder, the registration number(s) of such
Existing Notes and the principal amount of Existing Notes tendered, stating that
the
16
tender is being made thereby and guaranteeing that, within three New York
Stock Exchange trading days after the Expiration Date, the Consent and Letter of
Transmittal (or facsimile thereof), together with the Existing Notes (or a
confirmation of book-entry transfer of such Notes into the exchange agent's
account at DTC) and any other documents required by the Consent and Letter of
Transmittal, will be deposited by the Eligible Institution with the exchange
agent; and
(c) such properly completed and executed Consent and Letter of
Transmittal (or facsimile thereof), as well as tendered Existing Notes in proper
form for transfer (or a confirmation of book-entry transfer of such Existing
Notes into the exchange agent's account at DTC) and all other documents required
by the Consent and Letter of Transmittal, are received by the exchange agent
within three New York Stock Exchange trading days after the Expiration Date.
Upon written request to the exchange agent, a Notice of Guaranteed Delivery
will be sent to holders who wish to tender their Existing Notes according to the
guaranteed delivery procedures set forth above. Any holder who wishes to tender
Existing Notes pursuant to the guaranteed delivery procedures described above
must ensure that the exchange agent receives the Notice of Guaranteed Delivery
relating to such Existing Notes prior to the Expiration Date. Failure to comply
with the guaranteed delivery procedures outlined above will not, of itself,
affect the validity or effect a revocation of any Consent and Letter of
Transmittal form properly completed and executed by a holder who attempted to
use the guaranteed delivery procedures.
3. PARTIAL TENDERS; WITHDRAWALS. If less than the entire principal amount
of Existing Notes evidenced by a submitted certificate is tendered, the
tendering holder should fill in the principal amount tendered in the column
entitled "Principal Amount Tendered" in the box entitled "Description of 11%
Notes due 2005 Tendered Hereby." A newly issued Existing Note for the principal
amount of Existing Notes submitted but not tendered will be sent to such holder
as soon as practicable after the Expiration Date. All Existing Notes delivered
to the exchange agent will be deemed to have been tendered in full unless
otherwise indicated. No partial tenders for exchange by a beneficial owner will
be accepted by the exchange agent.
Existing Notes tendered pursuant to the consent solicitation and exchange
offer may be withdrawn at any time prior to the Expiration Date, after which
tenders of Existing Notes are irrevocable. The valid withdrawal of tendered
Existing Notes prior to the Expiration Date will be deemed to be a revocation
with respect to such Existing Notes and of the consent to the elimination of
certain restrictive covenants of the Existing Indenture, the release of the
liens on the collateral securing the Existing Notes pursuant to the Existing
Indenture under which the Existing Notes were issued and the terms of the New
Indenture. To be effective, a written, telegraphic or facsimile transmission
notice of withdrawal must be timely received by the exchange agent or the holder
must otherwise comply with the withdrawal procedures of DTC, as described in the
solicitation statement and prospectus. Any such notice of withdrawal must (a)
specify the name of the person having deposited the Existing Notes to be
withdrawn (the "Depositor"), (b) identify the Existing Notes to be withdrawn
(including the registration number(s) and principal amount of such Existing
Notes, or, in the case of Existing Notes transferred by book-entry transfer, the
name and number of the account at DTC, to be credited), (c) be signed by the
holder in the same manner as the original signature on this Consent and Letter
of Transmittal (including any required signature guarantees) or be accompanied
by documents of transfer sufficient to have the trustee with respect to the
Existing Notes register the transfer of such Existing Notes into the name of the
person withdrawing the tender and (d) specify the name in which any such
Existing Notes are to be registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by us, such determination shall be
final and binding on all parties. Any Existing Notes so withdrawn will be deemed
not to have been validly tendered for purposes of the consent solicitation and
exchange offer and no New Notes will be issued with respect thereto unless the
Existing Notes so withdrawn are validly retendered. Any Existing Notes which
have been tendered but which are not accepted for exchange will be returned to
the holder thereof without cost to such holder as soon as practicable after
withdrawal, rejection of tender or termination of the consent solicitation and
exchange offer. Withdrawals will not be accepted after the Expiration Date.
17
4. SIGNATURE ON THIS CONSENT AND LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS
AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Consent and Letter of
Transmittal is signed by the registered holder(s) of the Existing Notes tendered
hereby, the signature must correspond with the name(s) as written on the face of
the certificates without alteration or enlargement or any change whatsoever. If
this Consent and Letter of Transmittal is signed by a participant in DTC, the
signature must correspond with the name as it appears on the security position
listing as the owner of the Existing Notes.
If any of the Existing Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Consent and Letter of
Transmittal.
If a number of Existing Notes registered in different names are tendered,
it will be necessary to complete, sign and submit as many separate copies of
this Consent and Letter of Transmittal as there are different registrations of
Existing Notes.
Signatures on this Consent and Letter of Transmittal or a notice of
withdrawal, as the case may be, must be guaranteed by an Eligible Institution
unless the Existing Notes tendered hereby are tendered (i) by a registered
holder who has not completed the box entitled "Special Issuance Instructions" on
the Consent and Letter of Transmittal or (ii) for the account of an Eligible
Institution.
If this Consent and Letter of Transmittal is signed by the registered
holder or holders of Existing Notes (which term, for the purposes described
herein, shall include a participant in DTC whose name appears on a security
position listing as the owner of the Existing Notes) listed and tendered hereby,
no endorsements of the tendered Existing Notes or separate written instruments
of transfer or exchange are required. In any other case, the registered holder
(or acting holder) must either properly endorse the Existing Notes or transmit
properly completed bond powers with this Consent and Letter of Transmittal (in
either case, executed exactly as the name(s) of the registered holder(s)
appear(s) on the Existing Notes, and, with respect to a participant in DTC,
whose name appears on a security position listing as the owner of the Existing
Notes, exactly as the name of the participant appears on such security position
listing), with the signature on the Existing Notes or bond power guaranteed by
an Eligible Institution (except where the Existing Notes are tendered for the
account of an Eligible Institution).
If this Consent and Letter of Transmittal, any certificates or separate
written instruments of transfer or exchange 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, unless waived by us, proper evidence satisfactory to
us of their authority so to act must be submitted.
5. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering holders should
indicate, in the applicable box, the name and address (or account at DTC) in
which the New Notes or substitute Existing Notes for principal amounts not
tendered or not accepted for exchange and checks are to be issued (or
deposited), if different from the names and addresses or accounts of the person
signing this Consent and Letter of Transmittal. In the case of issuance in a
different name, the employer identification number or social security number of
the person named must also be indicated and the tendering holder should complete
the applicable box.
If no instructions are given, the New Notes (and any Existing Notes not
tendered or not accepted) and checks will be issued in the name of and sent to
the acting holder of the Existing Notes or deposited at such holder's account at
DTC.
6. TRANSFER TAXES. Atlantic will pay all transfer taxes, if any, applicable
to the transfer and exchange of Existing Notes to it or its order pursuant to
the consent solicitation and exchange offer. If a transfer tax is imposed for
any reason other than the transfer and exchange of Existing Notes to us or our
order pursuant to the consent solicitation and exchange offer, the amount of any
such transfer taxes (whether imposed on the registered holder or any other
person) will be payable by the tendering holder. If satisfactory evidence of
payment of such taxes or exception therefrom is not submitted herewith, the
amount of such transfer taxes will be collected from the tendering holder by the
exchange agent.
18
Except as provided in this Instruction 6, it will not be necessary for
transfer stamps to be affixed to the Existing Notes listed in this Consent and
Letter of Transmittal.
7. WAIVER OF CONDITIONS. Atlantic reserves the right, in its reasonable
judgment, to waive, in whole or in part, any of the conditions to the consent
solicitation and exchange offer set forth in the solicitation statement and
prospectus.
8. MUTILATED, LOST, STOLEN OR DESTROYED EXISTING NOTES. Any holder whose
Existing 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
solicitation statement and prospectus or this Consent and Letter of Transmittal
and requests for notices of guaranteed delivery and other related documents may
be directed to the information agent at the address and telephone number set
forth above.
10. VALIDITY AND FORM. All questions as to the validity, form, eligibility
(including time of receipt), acceptance of tendered Existing Notes and
withdrawal of tendered Existing Notes will be determined by Atlantic in its sole
discretion, which determination will be final and binding. We reserve the
absolute right to reject any and all Existing Notes not properly tendered or any
Existing Notes acceptance of which would, in the opinion of counsel, be
unlawful. Atlantic also reserves the right, in its reasonable judgment, to waive
any defects, irregularities or conditions of tender as to particular Existing
Notes. Atlantic's interpretation of the terms and conditions of the consent
solicitation and exchange offer (including the instructions in this Consent and
Letter of Transmittal) will be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of Existing Notes must
be cured within such time as Atlantic shall determine. Although Atlantic intends
to notify holders of defects or irregularities with respect to tenders of
Existing Notes, neither Atlantic, the exchange agent nor any other person shall
incur any liability for failure to give such notification. Tenders of Existing
Notes will not be deemed to have been made until such defects or irregularities
have been cured or waived. Any Existing Notes received by the exchange agent
that are not properly tendered and as to which the defects or irregularities
have not been cured or waived will be returned by the exchange agent to the
tendering holder as soon as practicable following the Expiration Date.
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder tendering Existing Notes is required
to provide the exchange agent with such holder's correct Tax Identification
Number ("TIN") on Substitute Form W-9 above. If such holder is an individual,
the TIN is the holder's social security number. The Certificate of Awaiting
Taxpayer Identification Number should be completed if the tendering holder has
not been issued a TIN and has applied for a number or intends to apply for a
number in the near future. 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 ("IRS"). In addition, payments that are made to such holder with
respect to Existing Notes exchanged pursuant to the consent solicitation and
exchange offer may be subject to backup withholding.
Certain holders (including, among others, U.S. corporations, financial
institutions and certain non-U.S. individuals and non-U.S. entities) generally
are not subject to these backup withholding and reporting requirements. Such
holders should complete the Substitute Form W-9 and write "Exempt" on the face
thereof. A United States holder who satisfies one or more of the conditions set
forth in Part 2 of the Substitute Form W-9 should execute the certification
following such Part 2. Non-United States holders must submit a properly
completed IRS Form W-8BEN or other appropriate IRS Form W-8 to avoid backup
withholding. IRS Form W-8BEN or such other appropriate IRS Form W-8 may be
obtained by contacting the exchange agent at the address on the face of this
Consent and Letter of Transmittal.
If backup withholding applies, the exchange agent is required to withhold
28% of any amounts otherwise payable to the holder. Backup withholding is not an
additional tax. Rather, the tax liability of
19
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the IRS.
PURPOSE OF SUBSTITUTE FORM W-9. To prevent backup withholding on payments
that are made to a holder with respect to Existing Notes exchanged pursuant to
the exchange offer, the holder is required to notify the exchange agent of his
or her correct TIN by completing the form herein certifying that the TIN
provided on Substitute Form W-9 is correct (or that such holder is awaiting a
TIN) and that (i) such holder is exempt, (ii) such holder has not been notified
by the IRS that he or she is subject to backup withholding as a result of
failure to report all interest or dividends or (iii) the IRS has notified such
holder that he or she is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT? Each holder is required to give the
exchange agent the social security number or employer identification number of
the record holder(s) of the Notes. If Existing Notes are in more than one name
or are not in the name of the actual holder, consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 or the
instructions on IRS Form W-9, which may be obtained from the exchange agent, for
additional guidance on which number to report.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER. If the
tendering holder has not been issued a TIN and has applied for a number or
intends to apply for a number in the near future, write "APPLIED FOR" in the
space for the TIN on Substitute Form W-9, sign and date the form and the
Certificate of Awaiting Taxpayer Identification Number and return them to the
exchange agent. Notwithstanding that the box in Part 2 is checked and the box
captioned Certificate of Awaiting Taxpayer Identification Number is completed,
the holder will be subject to backup withholding on 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, backup withholding will apply to
all payments made thereafter until a correct TIN is provided.
IMPORTANT: This Consent and Letter of Transmittal or a facsimile thereof
(together with Existing Notes or confirmation of book-entry transfer and all
other required documents) or a Notice of Guaranteed Delivery must be received by
the exchange agent on or prior to the Expiration Date.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
- --------------------------------------------------------------- -------------------------------------------------------------
Give the Give the EMPLOYER
SOCIAL SECURITY IDENTIFICATION
For this type of account: number of-- For this type of account: number of--
- --------------------------------------------------------------- -------------------------------------------------------------
1. An individual's account The individual 6. A valid trust, estate or Legal entity (4)
pension trust account
2. Two or more The actual owner of the
individuals (joint account or, if combined 7. Corporate or LLC The corporation
account) funds, the first individual electing corporate
on the account(1) status account
3. Custodian account of The minor(2)
a minor (Uniform Gift to 8. Association, club, The organization
Minors Act) religious, charitable,
educational or other
4. a. The usual The grantor-trustee(1) tax-exempt organization
revocable savings account
trust account (grantor
is also a trustee) 9. Partnership or The partnership
multi-member LLC
b. So-called trust The actual owner(1) account
account that is not a
legal or valid trust 10. A broker or The broker or nominee
under State law registered nominee
5. Sole proprietorship The owner(3) 11. Account with the The public entity
or single-owner LLC Department of
account Agriculture in the name
of a public entity (such
as a State or local
government, school
district or prison) that
receives agricultural
program payments
- --------------------------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security Number, that
person's number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name, but you may also enter the business or
"doing business as" name. You may use either your social security number or
employer identification number (if you have one).
(4) List first and circle the name of the legal trust, estate or pension trust.
Do not furnish the identifying number of the personal representative or
trustee unless the legal entity itself is not designated in the account
title.
Note: If no name is circled when there is more than one name, the number
will be considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
o Payments to partnerships not engaged in a U.S.
If you don't have a taxpayer identification number or you don't know your trade or business and that have at least one
number, obtain Form SS-5, Application for a Social Security Number Card, or Form non-resident alien
SS-4, Application for Employer Identification Number, at the local office of
the Social Security Administration or the IRS and apply for a number. o Payments of patronage dividends where the
amount received is not paid in money.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Backup withholding is not required on any payments made to the o Payments made by certain foreign organizations.
following:
o An organization exempt from tax under section 501(a), an o Section 404(k) payments made by an ESOP.
individual retirement account (IRA), or a custodial account under
section 403(b)(7), if the account satisfies the requirements of Payments of interest including the following:
section 401(f)(2).
o Payments of interest on obligations issued by
individuals. However, you may be subject to
o The United States or any agency or instrumentality thereof. backup withholding if this interest is $600 or
or more and is paid in the course of the
o A State, the District of Columbia, a possession of the in the course of the payer's trade or business and you have not
instrumentality have not provided your correct taxpayer identification provided your correct taxpayer identification
thereof. number to the payer.
o A foreign government, a political subdivision of a foreign
government, or any agency or instrumentality thereof.
o Payments of tax-exempt interest (including
o An international organization or any agency, or exempt-interest dividends under section 852).
instrumentality thereof.
o Payments described in section 6049(b)(5) to
non-resident aliens.
o Payments on tax-free convenant bonds under
section 1451.
Other payees that may be exempt from backup withholding:
o A corporation. o Payments made by certain foreign organizations.
o Mortgage or student loan interest paid to you.
o A financial institution.
Certain payments other than interest, dividends, and
o A dealer in securities or commodities required to register patronage dividends, that are not subject to
in the U.S., the District of Columbia or a possession of information reporting are also not subject to backup
the U.S. withholding. For details, see the regulations under
sections 6041, 6041A, 6045, 6050A and 6050N.
o A real estate investment trust.
PRIVACY ACT NOTICE. Section 6019 requires most
recipients of dividend, interest, or other payments
o A common trust fund operated by a bank under section to give taxpayer identification numbers to payers
584(a). who must report the payments to the IRS. The IRS
uses the numbers for identification purposes. Payers
must be given the numbers whether or not recipients
are required to file tax returns. Payers must
o A trust exempt from tax under section 664 or described in generally withhold 28% of taxable interest,
section 4947. dividend, and certain other payments to a payee who
does not furnish a taxpayer identification number to
a payer. Certain penalties may also apply.
PENALTIES
o An entity registered at all times during the tax year under the
Investment Company Act of 1940. (1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION
NUMBER. If you fail to furnish your taxpayer
identification number to a payer, you are subject to
a penalty of $50 for each such failure unless your
o A middleman known in the investment community as a failure is due to reasonable cause and not to
nominee or custodian willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT
o A foreign central bank of issue. TO WITHHOLDING. If you make a false statement with
no reasonable basis that results in no backup
Exempt payees described above should file Form W-9 to avoid withholding, you are subject to a penalty of $500.
possible erroneous backup withholding. SIGN, DATE AND FILE THIS
FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.
WRITE "EXEMPT" ON THE FORM, AND RETURN IT TO THE PAYER. Willfully falsifying certifications or affirmations
may subject you to criminal penalties including
fines and/or imprisonment.
PAYMENTS EXEMPT FROM BACKUP WITHHOLDING
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
Payments of dividends and patronage dividends including the CONSULTANT OR THE IRS.
following:
o Payments to nonresident aliens subject to withholding under
section 1441.