EXHIBIT 99.1
FORM OF LETTER OF TRANSMITTAL
FOR
$700,000,000
6 3/4% SENIOR NOTES DUE 2013
OF
ARCH WESTERN FINANCE, LLC
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON __________, 2003 (THE "EXPIRATION DATE"),
UNLESS EXTENDED BY ARCH WESTERN FINANCE, LLC
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The Exchange Agent is:
THE BANK OF NEW YORK.
By Registered or Certified Mail: By Hand or Overnight Courier:
Corporate Trust Operations Corporate Trust Operations
Reorganization Unit Reorganization Unit
101 Barclay Street - 7 East 101 Barclay Street - 7 East
New York, New York 10286 New York, New York 10286
Attention: William Buckley Attention: William Buckley
By Facsimile:
(212) 298-1915
(For Eligible Institutions Only)
By Telephone:
(212) 815-5788
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges receipt of the Prospectus dated _______
__, 2003 (the "Prospectus") of Arch Western Finance, LLC (the "Company") and
this Letter of Transmittal (the "Letter of Transmittal"), which together
describe the Company's offer (the "Exchange Offer") to exchange its 6 3/4%
Senior Notes Due 2013, which have been registered under the Securities Act of
1933, as amended (the "Registered Notes"), for each of its 6 3/4% Senior Notes
Due 2013 (the "Outstanding Notes" and, together with the Registered Notes, the
"Notes") from the holders thereof.
The terms of the Registered Notes are substantially identical in all
material respects (including principal amount, interest rate and maturity) to
the terms of the Outstanding Notes for which they may be exchanged pursuant to
the Exchange Offer, except that the Registered Notes are freely transferable by
holders thereof (except as provided herein or in the Prospectus) and are not
subject to any covenant regarding registration under the Securities Act.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
The undersigned has checked the appropriate boxes below and signed this
Letter of Transmittal to indicate that action the undersigned desires to take
with respect to the Exchange Offer.
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PLEASE READ THE ENTIRE
LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW
List below the Outstanding Notes to which this Letter of Transmittal
relates. If the space indicated is inadequate, the certificate numbers and
aggregate principal amounts should be listed on a separately signed schedule
affixed hereto.
DESCRIPTION OF OUTSTANDING NOTES TENDERED HEREBY
Name(s) and Aggregate
Address(es) of Principal Amount Principal
Registered Holder(s) Certificate Represented by Amount
(Please fill in) Number(s)* Outstanding Notes Tendered**
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Total
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* Need not be completed by book-entry holders.
** Unless otherwise indicated, the holder will be deemed to have tendered
the full aggregate principal amount represented by such Outstanding
Notes. See Instruction 2.
Holders of Outstanding Notes whose Outstanding Notes are not
immediately available or who cannot deliver all other required documents to the
Exchange Agent on or prior to the Expiration Date or who cannot complete the
procedures for book-entry transfer on a timely basis, must tender their
Outstanding Notes according to the guaranteed delivery procedures set forth in
the Prospectus.
Unless the context otherwise requires, the term "holder" for purposes
of this Letter of Transmittal means any person in whose name Outstanding Notes
are registered or any other person who has obtained a properly completed bond
power from the registered holder or any person whose Outstanding Notes are held
by record by The Depository Trust Company ("DTC").
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[ ] CHECK HERE IF TENDERED OUTSTANDING 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: _____________________________________________
Date of Execution of Notice
of Guaranteed Delivery: _______________________________________________
If Delivered by Book Entry Transfer:
Name of Tendering
Institution: __________________________________________________________
Account Number: _______________________________________________________
Transaction Code Number: ______________________________________________
[ ] CHECK HERE IF REGISTERED NOTES ARE TO BE DELIVERED TO A PERSON OTHER
THAN THE PERSON SIGNING THIS LETTER OF TRANSMITTAL:
Name: _________________________________________________________________
Address: ______________________________________________________________
[ ] CHECK HERE IF REGISTERED NOTES ARE TO BE DELIVERED TO AN ADDRESS
DIFFERENT FROM THAT LISTED ELSEWHERE IN THIS LETTER OF TRANSMITTAL:
Name: _________________________________________________________________
Address: ______________________________________________________________
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED OUTSTANDING NOTES
FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET- MAKING OR OTHER TRADING
ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO:
Name: _________________________________________________________________
Address: ______________________________________________________________
If the undersigned is not a broker-dealer, the undersigned represents
that it acquired the Outstanding Notes in the ordinary course of its business,
is not engaged in, and does not intend
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to engage in, a distribution of Registered Notes, and it has no arrangements or
understandings with any person to participate in a distribution of Registered
Notes. If the undersigned is a broker-dealer that will receive Registered Notes
for its own account in exchange for Outstanding Notes, it represents that the
Outstanding Notes to be exchanged for Registered Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such
Registered 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. A broker-dealer may not participate in the
Exchange Offer with respect to Outstanding Notes acquired other than as a result
of market-making activities or other trading activities. Any holder who is an
"affiliate" of the Company or who has an arrangement or understanding with
respect to the distribution of the Exchange Notes to be acquired pursuant to the
Exchange Offer, or any broker-dealer who purchased Outstanding Notes from the
Company to resell pursuant to Rule 144A under the Securities Act or any other
available exemption under the Securities Act must comply with the registration
and prospectus delivery requirements under the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
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LADIES AND GENTLEMEN:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of the
Outstanding Notes indicated above. Subject to, and effective upon, the
acceptance for exchange of all or any portion of the Outstanding 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
exchanges, assigns and transfers to, or upon the order of, the Company all
right, title and interest in and to such Outstanding Notes as are being tendered
herewith. 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 also acts as the agent of the
Company in connection with the Exchange Offer) to cause the Outstanding Notes to
be assigned, transferred and exchanged.
The undersigned represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Outstanding Notes and to
acquire Registered Notes issuable upon the exchange of such tendered Outstanding
Notes, and that when the same are accepted for exchange, the Company will
acquire good and unencumbered title to the tendered Outstanding Notes, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed by the Exchange Agent or the
Company to be necessary or desirable to complete the exchange, assignment and
transfer of the tendered Outstanding Notes or transfer ownership of such
Outstanding Notes on the account books maintained by DTC. The undersigned
further agrees that the acceptance of any and all validly tendered Outstanding
Notes by the Company and the issuance of Exchange Notes in exchange therefore
shall constitute performance in full by all parties to that Registration Rights
Agreement, dated as of June 25, 2003 (the "Registration Rights Agreement"), by
and among the Company, Arch Coal, Inc., the guarantors named therein and the
initial purchasers of the Outstanding Notes and that no such party shall have
any further obligations or liabilities thereunder except as provided in Section
3 of such agreement. The undersigned will comply with its obligations under the
Registration Rights Agreement. The Exchange Offer is subject to certain
conditions as set forth in the Prospectus under the caption "The Exchange Offer
- - Conditions." The undersigned recognizes that as a result of these conditions
(which may be waived, in whole or in part, by the Company), as more particularly
set forth in the Prospectus, the Company may not be required to exchange any of
the Outstanding Notes tendered hereby and, in such event, the Outstanding Notes
not exchanged will be returned to the undersigned at the address shown below
unless indicated otherwise above, promptly following the expiration or
termination of the Exchange Offer. In addition, the Company may amend the
Exchange Offer at any time prior to the Expiration Date if any of the conditions
set forth in the Prospectus under "The Exchange Offer - Conditions" occur.
The undersigned understands that tenders of Outstanding Notes pursuant
to any one of the procedures described in the Prospectus and in the instructions
attached hereto will, upon the Company's acceptance for exchange of such
tendered Outstanding 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 circumstances set
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forth in the Prospectus, the Company may not be required to accept for exchange
any of the Outstanding Notes.
By tendering Outstanding Notes and executing this Letter of
Transmittal, the undersigned represents that Exchange Notes acquired in the
exchange will be obtained in the ordinary course of business of the undersigned,
that the undersigned has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of such
Exchange Notes, that the undersigned is not an "affiliate" of the Company within
the meaning of Rule 405 under the Securities Act and that if the undersigned or
the person receiving such Exchange Notes, whether or not such person is the
undersigned, is not a broker-dealer, the undersigned represents that it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes.
If the undersigned or the person receiving such Exchange Notes, whether or not
such person is the undersigned, is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Outstanding Notes that were acquired
as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. If the undersigned is a
person in the United Kingdom, the undersigned represents that its ordinary
activities involve it in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of its business.
Any holder of Outstanding Notes using the Exchange Offer to participate
in a distribution of the Exchange Notes (1) cannot rely on the position of the
staff of the Securities and Exchange Commission enunciated in its interpretive
letter with respect to Exxon Capital Holdings Corporation (available April 13,
1989) or similar interpretive letters and (ii) must comply with the registration
and prospectus requirements of the Securities Act in connection with a secondary
resale transaction.
All authority herein conferred or agreed to be conferred shall survive
the death, bankruptcy or incapacity of the undersigned and every obligation of
the undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned. Tendered Outstanding
Notes may be withdrawn at any time prior to the Expiration Date in accordance
with the terms of this Letter of Transmittal. Except as stated in the
Prospectus, this tender is irrevocable.
Certificates for all Exchange Notes delivered in exchange for tendered
Outstanding Notes and any Outstanding Notes delivered herewith but not
exchanged, and registered in the name of the undersigned, shall be delivered to
the undersigned at the address shown below the signature of the undersigned.
The undersigned, by completing the box entitled "Description of
Outstanding Notes Tendered Herewith" above and signing this Letter of
Transmittal will be deemed to have tendered the Outstanding Notes as set forth
in such box.
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TENDERING HOLDER(S) SIGN HERE
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON
CERTIFICATE(S) FOR OUTSTANDING NOTES HEREBY TENDERED OR IN WHOSE NAME
OUTSTANDING NOTES ARE REGISTERED ON THE BOOKS OF DTC OR ONE OF ITS PARTICIPANTS,
OR BY ANY PERSON(S) AUTHORIZED TO BECOME THE REGISTERED HOLDER(S) BY
ENDORSEMETNS AND DOCUMENTS TRANSMITTED HEREWTH. IF SIGNATURE IS BY A TRUSTEE,
EXECUTOR, ADMINISTRATOR, GUARDIAN, ATTORNEY-IN-FACT, OFFICER OF A CORPORATION OR
OTHER PERSON ACTING IN A FIDUCIARY OR REPRESENTATIVE CAPACITY, PLEASE SET FORTH
THE FULL TITLE OF SUCH PERSON. SEE INSTRUCTION 3.
________________________________________________________________________________
________________________________________________________________________________
(Signature(s) of Holder(s))
Date: __________________________________________________________________________
Name(s): _______________________________________________________________________
________________________________________________________________________________
Capacity (full title): _________________________________________________________
Address: _______________________________________________________________________
________________________________________________________________________________
(Including Zip Code)
Daytime Area Code
and Telephone Number: __________________________________________________________
Taxpayer Identification No.: ___________________________________________________
GUARANTEE OF SIGNATURE(S)
(If Required -- See Instruction 3)
Authorized Signature: __________________________________________________________
Date: __________________________________________________________________________
Name(s): _______________________________________________________________________
Title: _________________________________________________________________________
Name of Firm: __________________________________________________________________
Address: _______________________________________________________________________
(Including Zip Code)
Area Code and Telephone No.: ___________________________________________________
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SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if Exchange Notes or Outstanding Notes not tendered are to
be issued in the name of someone other than the registered holder of the
Outstanding Notes whose name(s) appear(s) above.
Issue: [ ] Outstanding Notes not tendered to:
[ ] Exchange Notes to:
Name(s): _______________________________________________________________________
(Please Print)
Address: _______________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Daytime Area Code
and Telephone Number: __________________________________________________________
Taxpayer Identification No.: ___________________________________________________
________________________________________________________________________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if Exchange Notes or Outstanding Notes not tendered are to
be sent to someone other than the registered holder of the Outstanding Notes
whose name(s) appear(s) above, or such registered holder(s) at an address other
than that shown above.
Mail: [ ] Outstanding Notes not tendered to:
[ ] Exchange Notes to:
Name(s): _______________________________________________________________________
(Please Print)
Address: _______________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and
Telephone Number: ______________________________________________________________
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. A holder of Outstanding Notes may tender the same by (i)
properly completing and signing this Letter of Transmittal or a facsimile hereof
(all references in the Prospectus to the Letter of Transmittal shall be deemed
to include a facsimile thereof) and delivering the same, together with the
certificate or certificates, if applicable, representing the Outstanding Notes
being tendered and any required signature guarantees and any other documents
required by this Letter of Transmittal, to the Exchange Agent at its address set
forth above on or prior to the Expiration Date, or (ii) complying with the
procedure for book-entry transfer described below, or (iii) complying with the
guaranteed delivery procedures described below.
Holders of Outstanding Notes may tender Outstanding Notes by book-entry
transfer by crediting the Outstanding Notes to the Exchange Agent's account at
DTC in accordance with DTC's Automated Tender Offer Program ("ATOP") and by
complying with applicable ATOP procedures with respect to the Exchange Offer.
DTC participants that are accepting the Exchange Offer should transmit their
acceptance to DTC, which will edit and verify the acceptance and execute a
book-entry delivery to the Exchange Agent's account at DTC. DTC will then send a
computer-generated message (an "Agent's Message") to the Exchange Agent for its
acceptance in which the holder of the Outstanding Notes acknowledges and agrees
to be bound by the terms of, and makes the representations and warranties
contained in, this Letter of Transmittal, the DTC participant confirms on behalf
of itself and the beneficial owners of such Outstanding Notes all provisions of
this Letter of Transmittal (including any 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 Letter of
Transmittal to the Exchange Agent.
DELIVERY OF THE AGENT'S MESSAGE BY DTC WILL SATISFY THE TERMS OF THE
EXCHANGE OFFER AS TO EXECUTION AND DELIVERY OF A LETTER OF TRANSMITTAL BY THE
PARTICIPANT IDENTIFIED IN THE AGENT'S MESSAGE. DTC PARTICIPANTS MAY ALSO ACCEPT
THE EXCHANGE OFFER BY SUBMITTING A NOTICE OF GUARANTEED DELIVERY THROUGH ATOP.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE OUTSTANDING
NOTES AND ANY OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER
AND, EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS
BY MAIL, IT IS SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, BE USED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
PERMIT TIMELY DELIVERY. NO OUTSTANDING NOTES OR LETTERS OF TRANSMITTAL SHOULD BE
SENT TO THE COMPANY.
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Holders whose Outstanding Notes are not immediately available or who
cannot deliver their Outstanding Notes and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or comply with book-entry
transfer procedures on a timely basis, must tender their Outstanding Notes
pursuant to the guaranteed delivery procedure set forth in the Prospectus.
Pursuant to such procedure: (i) such tender must be made by or through an
Eligible Institution (as defined below); (ii) on or prior to the Expiration
Date, the Exchange Agent must have received from such Eligible Institution a
letter, telegram or facsimile transmission (receipt confirmed by telephone and
an original delivered by guaranteed overnight courier) setting forth the name
and address of the tendering holder, the names in which such Outstanding Notes
are registered, and, if applicable, the certificate numbers of the Outstanding
Notes to be tendered; and (iii) all tendered Outstanding Notes (or a
confirmation of any book-entry transfer of such Outstanding Notes into the
Exchange Agent's account at a book-entry transfer facility) as well as this
Letter of Transmittal and all other documents required by this Letter of
Transmittal, must be received by the Exchange Agent within three New York Stock
Exchange trading days after the date of execution of such letter, telegram or
facsimile transmission, all as provided in the Prospectus.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders, by execution of this Letter of Transmittal (or
facsimile thereof), shall waive any right to receive notice of the acceptance of
the Outstanding Notes for exchange.
2. PARTIAL TENDERS; WITHDRAWALS. If less than the entire principal
amount of Outstanding Notes evidenced by a submitted certificate is tendered,
the tendering holder must fill in the aggregate principal amount of Outstanding
Notes tendered in the box entitled "Description of Outstanding Notes Tendered
Herewith." A newly issued certificate for the Outstanding Notes submitted but
not tendered will be sent to such holder as soon as practicable after the
Expiration Date. All Outstanding Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise clearly indicated.
If not yet accepted, a tender pursuant to the Exchange Offer may be
withdrawn prior to the Expiration Date.
To be effective with respect to the tender of Outstanding Notes, a
written notice of withdrawal must: (i) be received by the Exchange Agent at one
of the addresses for the Exchange Agent set forth above before the Company
notifies the Exchange Agent that it has accepted the tender of Outstanding Notes
Pursuant to the Exchange Offer; (ii) specify the name of the person who tendered
the Outstanding Notes to be withdrawn; (iii) identify the Outstanding Notes to
be withdrawn (including the principal amount of such Outstanding Notes, or, if
applicable, the certificate numbers shown on the particular certificates
evidencing such Outstanding Notes and the principal amount of Outstanding Notes
represented by such certificates); (iv) include a statement that such holder is
withdrawing its election to have such Outstanding Notes exchanged; and (v) be
signed by the holder in the same manner as the original signature on this Letter
of Transmittal (including any required signature guarantee). The Exchange Agent
will return the properly withdrawn Outstanding Notes promptly following receipt
of a notice of withdrawal. If Outstanding Notes have been tendered pursuant to
the procedure for book-entry transfer, any notice of withdrawal must specify the
name and number of the account at the book-
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entry transfer facility to be credited with the withdrawn Outstanding Notes or
otherwise comply with the book-entry transfer facility's procedures. All
questions as to the validity of notices of withdrawals, including time of
receipt, will be determined by the Company, and such determination will be final
and binding on all parties.
Any Outstanding Notes so withdrawn will be deemed not to have been
validly tendered for exchange for purposes of the Exchange Offer. Any
Outstanding Notes which have been tendered for exchange but which are not
exchanged for any reason will be returned to the holder thereof without cost to
such holder (or, in the case of Outstanding Notes tendered by book-entry
transfer into the Exchange Agent's account at the book-entry transfer facility
pursuant to the book-entry transfer procedures described above, such Outstanding
Notes will be credited to an account with such book-entry transfer facility
specified by the holder) as soon as practicable after withdrawal, rejection of
tender or termination of the Exchange Offer. Properly withdrawn Outstanding
Notes may be retendered by following one of the procedures described under the
caption "The Exchange Offer -- Procedures for Tendering" in the Prospectus at
any time prior to the Expiration Date.
3. SIGNATURES ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEES OF SIGNATURES. If this Letter of Transmittal is signed
by the registered holder(s) of the Outstanding Notes tendered hereby, the
signature must correspond with the name(s) as written on the face of the
certificates without alteration, enlargement or any change whatsoever.
If any of the Outstanding Notes tendered hereby are owned of record by
two or more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Outstanding Notes registered in different names are
tendered, it will be necessary to complete, sign and submit as many separate
copies of this Letter of Transmittal as there are different registrations of
Outstanding Notes.
When this Letter of Transmittal is signed by the registered holder or
holders (which term, for the purposes described herein, shall include the
book-entry transfer facility whose name appears on a security listing as the
owner of the Outstanding Notes) of Outstanding Notes listed and tendered hereby,
no endorsements of certificates or separate written instruments of transfer or
exchange are required.
If this Letter of Transmittal is signed by a person other than the
registered holder or holders of the Outstanding Notes listed, such Outstanding
Notes must be endorsed or accompanied by separate written instruments of
transfer or exchange in form satisfactory to the Company and duly executed by
the registered holder, in either case signed exactly as the name or names of the
registered holder or holders appear(s) on the Outstanding Notes.
If this 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
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indicate when signing and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
Endorsements on certificates or signatures on separate written
instruments of transfer or exchange required by this Instruction 3 must be
guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal must be guaranteed by an
Eligible Institution unless Outstanding Notes are tendered: (i) by a holder who
has not completed the box entitled "Special Issuance Instructions" or "Special
Delivery Instructions" on this Letter of Transmittal; or (ii) for the account of
an Eligible Institution (as defined below). In the event that the signatures in
this Letter of Transmittal or a notice of withdrawal, as the case may be, are
required to be guaranteed, such guarantees must be by an eligible guarantor
institution which is a member of a firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or another "eligible institution" within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended (an "Eligible
Institution"). If Outstanding Notes are registered in the name of a person other
than the signer of this Letter of Transmittal, the Outstanding Notes surrendered
for exchange must be endorsed by, or be accompanied by a written instrument or
instruments of transfer or exchange, in satisfactory form as determined by the
Company, in its sole discretion, duly executed by the registered holder with the
signature thereon guaranteed by an Eligible Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering holders should
indicate, as applicable, the name and address to which the Exchange Notes or
certificates for Outstanding Notes not exchanged are to be issued or sent, if
different from the name and address of the person signing this Letter of
Transmittal. In the case of issuance in a different name, the tax identification
number of the person named must also be indicated. Holders tendering Outstanding
Notes by book-entry transfer may request that Outstanding Notes not exchanged be
credited to such account maintained at the book-entry transfer facility as such
holder may designate.
5. TRANSFER TAXES. The Company shall pay all transfer taxes, if any,
applicable to the transfer and exchange of Outstanding Notes to it or its order
pursuant to the Exchange Offer, except in the case of deliveries of certificates
for Outstanding Notes for Exchange Notes that are to be registered or issued in
the name of any person other than the holder of Outstanding Notes tendered
thereby. If a transfer tax is imposed for any reason other than the transfer and
exchange of Outstanding Notes to the Company or its order pursuant to the
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 billed directly to
such tendering holder.
6. WAIVER OF CONDITIONS. The Company reserves the absolute right to
waive, in whole or in part, any of the conditions to the Exchange Offer set
forth in the Prospectus. To the extent that the Company waives any of the
conditions to the Exchange Offer with respect to any tender of Outstanding
Notes, the Company also will waive that condition for all other tenders of
Outstanding Notes.
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7. MUTILATED, LOST, STOLEN OR DESTROYED SECURITIES. Any holder whose
Outstanding Notes have been mutilated, lost, stolen or destroyed should contact
the Exchange Agent at the address indicated below for further instructions.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to
the procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent
at the address and telephone number set forth above. In addition, all questions
relating to the Exchange Offer, as well as requests for assistance or additional
copies of the Prospectus and this Letter of Transmittal, may be directed to the
Exchange Agent at the address and telephone number indicated above.
If backup withholding applies, the Exchange Agent is required to
withhold 28% of any payments to be made to the holder of Outstanding Notes.
Backup withholding is not an additional tax. Rather, the tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained by filing a tax return with the Internal Revenue Service. The Exchange
Agent cannot refund amounts withheld by reason of backup withholding.
9. IRREGULARITIES. All questions as to the validity, form, eligibility
(including time of receipt), and acceptance of Letters of Transmittal or
Outstanding Notes will be resolved by the Company, whose determination will be
final and binding. The Company reserves the absolute right to reject any or all
Letters of Transmittal or tenders that are not in proper form or the acceptance
of which would, in the opinion of the Company's counsel, be unlawful. The
Company also reserves the right to waive any irregularities or conditions of
tender as to the particular Outstanding Notes covered by any Letter of
Transmittal or tendered pursuant to such Letter of Transmittal. Neither the
Company, the Exchange Agent nor any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Company's interpretation of the
terms and conditions of the Exchange Offer shall be final and binding.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE OR COPY THEREOF
(TOGETHER WITH CERTIFICATES OF OUTSTANDING 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 PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under U.S. federal income tax law, a holder of Outstanding Notes whose
Outstanding Notes are accepted for exchange may be subject to backup withholding
unless the holder provides The Bank of New York, as Paying Agent (the "Paying
Agent"), through the Exchange Agent, with either (i) such holder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 attached hereto,
certifying (A) that the TIN provided on Substitute Form W-9 is correct (or that
such holder of Outstanding Notes is awaiting a TIN), (B) that the holder of
Outstanding Notes is not subject to backup withholding because (x) such holder
of Outstanding
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Notes is exempt from backup withholding, (y) such holder of Outstanding Notes
has not been notified by the Internal Revenue Service that he or she is subject
to backup withholding as a result of a failure to report all interest or
dividends, or (z) the Internal Revenue Service has notified the holder of
Outstanding Notes that he or she is no longer subject to backup withholding and
(C) that the holder of Outstanding Notes is a U.S. person (including a U.S.
resident alien); or (ii) an adequate basis for exemption from backup
withholding. If such holder of Outstanding Notes is an individual, the TIN is
such holder's social security number. If the Paying Agent is not provided with
the correct TIN, the holder of Outstanding Notes may also be subject to certain
penalties imposed by the Internal Revenue Service.
Certain holders of Outstanding Notes (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. However, exempt holders of Outstanding
Notes should indicate their exempt status on Substitute Form W-9. For example, a
corporation should complete the Substitute Form W-9, providing its TIN and
indicating that it is exempt from backup withholding. In order for a foreign
individual to qualify as an exempt recipient, the holder must submit a Form
W-8BEN, signed under penalties of perjury, attesting to that individual's exempt
status. A Form W-8BEN can be obtained from the Paying Agent. See the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for more instructions.
If backup withholding applies, the Paying Agent is required to withhold
28% of any payments made to the holder of Outstanding Notes or other payee.
Backup withholding is not an additional tax. Rather, the tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service, provided the required information is
furnished.
The box in Part 3 of the Substitute Form W-9 may be checked if the
surrendering holder of Outstanding Notes 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 3 is checked, the holder of Outstanding Notes 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 3 is
checked and the Certificate of Awaiting Taxpayer Identification Number is
completed, the Paying Agent will withhold 28% of all payments made prior to the
time a properly certified TIN is provided to the Paying Agent and, if the Paying
Agent is not provided with a TIN within 60 days, such amounts will be paid over
to the Internal Revenue Service.
The holder of Outstanding Notes is required to give the Paying Agent
the TIN (e.g., social security number or employer identification number) of the
record owner of the Outstanding Notes. If the Outstanding Notes are 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.
15
THIS SUBSTITUTE FORM W-9 MUST BE COMPLETED AND SIGNED. PLEASE PROVIDE
YOUR SOCIAL SECURITY NUMBER OR OTHER TAXPAYER IDENTIFICATION NUMBER ON THE
FOLLOWING SUBSTITUTE FORM W-9 AND CERTIFY THEREIN THAT YOU ARE NOT SUBJECT TO
BACKUP WITHHOLDING.
SUBSTITUTE FORM W-9 Part 1--PLEASE PROVIDE ____________________
YOUR TIN IN THE BOX AT Name
RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW.
Part 2 -- Check the box if you are ______________________
not subject to backup withholding Social Security Number
under the provisions of
the Internal Revenue OR _______________________
Code because (1) you are Employer Identification
exempt from backup Number
withholding, (2) you
DEPARTMENT OF THE TREASURY have not been notified
INTERNAL REVENUE SERVICE that you are subject to
backup withholding as a
result of failure to
report all interest or
dividends or (3) the
Internal Revenue Service
has notified you that
PAYOR'S REQUEST FOR you are no longer
TAXPAYER IDENTIFICATION subject to backup
NUMBER (TIN) withholding. ( )
The Internal Revenue Service does not
require your consent to any provision
of this document other than the
certifications required to avoid
backup withholding.
CERTIFICATION: Under penalties
of perjury, I certify that I am a U.S. Part 3 -
person and that the information Awaiting TIN [ ]
provided on this form
is true, correct and complete.
Signature:___________________
Date:_______________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE 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 TAX IDENTIFICATION NUMBER
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I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Officer or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 28%
of all reportable payments made to me thereafter will be withheld.
SIGNATURE: ______________________________________ DATE______________
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