EXHIBIT 99.1
FORM OF
LETTER OF TRANSMITTAL
for
13% Senior Notes Due 2007
of
EQUINIX, INC.
Pursuant to the Exchange Offer for
All of Its Outstanding 13% Senior Notes Due 2007
for
13% Senior Notes Due 2007
___________________________
Pursuant to the Prospectus Dated ___________________, 2000
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME ON ______ __, 2000 UNLESS THE OFFER IS EXTENDED
(THE "EXPIRATION DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M. ON THE EXPIRATION
DATE.
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To: State Street Bank and Trust Company of California, N.A., Exchange Agent
By Registered or Certified Mail: The Exchange Agent
State Street Bank and Trust Company of State Street Bank and Trust Company of
California, N.A California, N.A
c/o State Street Bank and Trust Company
P.O. Box 778
Boston, MA 02102-0778 By Facsimile:
Attn: Ralph Jones (For Eligible Institutions Only)
(617) 662-1452
By Hand or Overnight Carrier:
State Street Bank and Trust Company of
California, N.A.
c/o State Street Bank and Trust Company Confirm by Telephone: (617) 662-1548
2 Avenue de Lafayette, LCC5 Attn: Ralph Jones
Boston, MA 02111-1724
Attn: Ralph Jones
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION VIA
FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY. THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE NOTES FOR THEIR INITIAL
NOTES PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW)
THEIR INITIAL NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
By execution hereof, the undersigned acknowledges receipt of the Prospectus
dated _______ ___, 2000 (the "Prospectus") of Equinix, Inc., a Delaware
corporation (the "Company"), which, together with this Letter of Transmittal and
the instructions hereto (the "Letter of Transmittal"), constitutes the
Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of
its new 13% Senior Notes Due 2007 (the "Exchange Notes"), which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a Registration Statement of which the Prospectus constitutes a part,
for each $1,000 principal amount of its
outstanding 13% Senior Notes Due 2007 (the "Initial Notes"), upon the terms and
subject to the conditions set forth in the Prospectus. Capitalized terms used
but not defined herein have the meaning given to them in the Prospectus.
This Letter of Transmittal is to be used if certificates for the Initial Notes
are to be forwarded herewith. If delivery of the Initial Notes is to be made
through book-entry transfer into the Exchange Agent's account at The Depository
Trust Company ("DTC"), this Letter of Transmittal need not be delivered;
provided, however, that tenders of the Initial Notes must be effected in
accordance with DTC's Automated Tender Offer Program procedures and the
procedures set forth in the Prospectus under the caption "The Exchange Offer--
Procedures for Tendering Initial Notes" and "--Book-Entry Transfer."
For each Initial Note accepted for exchange, the holder of such Initial Note
will receive an Exchange Note having a principal amount equal to that of the
surrendered Initial Note. If (a) the Company fails to file any of the
Registration Statements required by the Registration Rights Agreement on or
before the date specified for such filing, (b) any of such Registration
Statements is not declared effective by the Commission on or prior to the date
specified for such effectiveness (the "Effectiveness Target Date"), (c) the
Company fails to consummate the Exchange Offer within 30 business days of the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement, or (d) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to be
effective or usable in connection with resales of Initial Notes during the
periods specified in the Registration Rights Agreement (each such event referred
to in clauses (a) through (d) above a "Registration Default"), then interest
("Additional Interest") will accrue on the Initial Notes and the Exchange Notes
(in addition to the stated interest on the Initial Notes and the Exchange Notes)
at a rate of 0.50% per annum commencing upon the occurrence of such Registration
Default, which rate will increase by 0.50% at the end of each 90-day period in
which such Registration Default is not cured, provided that the maximum
aggregate Additional Interest that so accrues as a result of all Registration
Defaults will in no event exceed 1.50% per annum.
This Letter of Transmittal is to be completed by a holder of Initial Notes if
certificates are to be forwarded herewith. Holders of Initial Notes whose
certificates are not immediately available, or who are unable to deliver their
certificates and all other documents required by this Letter of Transmittal or
confirmation of the book-entry tender of their Initial Notes into the Exchange
Agent's account at DTC (a "Book-Entry Confirmation") to the Exchange Agent on or
prior to the Expiration Date, must tender their Initial Notes according to the
guaranteed delivery procedures set forth in "The Exchange Offer--Guaranteed
Delivery Procedure" section of the Prospectus. See Instruction 2. Delivery of
documents to DTC does not constitute delivery to the Exchange Agent.
The undersigned has completed the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
2
List below the Initial Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the certificate numbers and principal
amount of Initial Notes should be listed on a separate signed schedule affixed
hereto.
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DESCRIPTION OF INITIAL NOTES TENDERED HEREBY
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(1) (2) (3) (4)
Name(s) and Address(s) Certificate Aggregate Principal Principal Amount
of Registered Owner(s) or Registration Amount Represented by Tendered**
(Please Fill In) Numbers* Initial Notes
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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 Initial Notes. All tenders must be in integral multiples of $1,000. See
Instruction 1.
[_] CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY
THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution____________________________________________________________________________________
Account Number___________________________________________________________________________________________________
Transaction Code Number__________________________________________________________________________________________
[_] CHECK HERE IF INITIAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s)______________________________________________________________________________________
Window Ticket (if any)____________________________________________________________________________________________
Date of Execution of Notice of Guaranteed Delivery________________________________________________________________
Name of Institution which guaranteed delivery_____________________________________________________________________
IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number___________________________________________________________________________________________________
Transaction Code Number__________________________________________________________________________________________
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:____________________________________________________________________________________________________________
Address:_________________________________________________________________________________________________________
Telephone Number:________________________________________________________________________________________________
3
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
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 Initial
Notes indicated above. Subject to, and effective upon, the acceptance for
exchange of such Initial Notes tendered hereby, the undersigned hereby
exchanges, assigns and transfers to, or upon the order of, the Company all
right, title in and interest in and to such Initial Notes as are being tendered
hereby, including all rights to accrued and unpaid interest thereon as of the
Expiration Date. 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 the agent of the Company
in connection with the Exchange Offer) to cause the Initial 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 Initial Notes and to acquire Exchange Notes issuable upon the exchange of
such tendered Initial Notes, and that when the same are accepted for exchange,
the Company will acquire good and unencumbered title to the tendered Initial
Notes, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim.
The undersigned represents to the Company that (i) the Exchange Notes acquired
pursuant to the Exchange Offer are being obtained in the ordinary course of
business of the person receiving such Exchange Notes, whether or not such person
is the undersigned, and (ii) neither the undersigned nor any such other person
has an arrangement or understanding with any person to participate in a
distribution of such Exchange Notes. If the undersigned is not a broker-dealer,
the undersigned represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the undersigned is a broker-
dealer that will receive Exchange Notes for its own account in exchange for
Initial Notes, it represents that the Initial Notes to be exchanged for Exchange
Notes were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Notes pursuant to the Exchange Offer; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. The undersigned
and any such other person acknowledge that, if they are participating in the
Exchange Offer for the purpose of distributing the Exchange Notes, (i) they
cannot rely on the position of the staff of the Securities and Exchange
Commission enunciated in Exxon Capital Holdings Corporation (available April 13,
1989), Morgan Stanley & Co., Inc. (available June 5, 1991), Sherman & Sterling
(available July 2, 1993) or similar no-action letters and, in the absence of an
exemption therefrom, must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any 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 the Company. If
the undersigned or the person receiving the Exchange Notes covered by this
letter is an "affiliate" (as defined under Rule 405 of the Securities Act) of
the Company, the undersigned represents to the Company that the undersigned
understands and acknowledges that such Exchange 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.
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
Initial Notes tendered hereby or transfer ownership of such Initial Notes on the
account books maintained by a book-entry transfer facility. The undersigned
further agrees that acceptance of any tendered Initial Notes by the Company and
the issuance of Exchange Notes in exchange therefor shall constitute performance
in full by the Company of its obligations under the Registration Rights
Agreement and that the Company shall have no further obligations or liabilities
thereunder for the registration of the Initial Notes or the Exchange Notes.
The Exchange Offer is subject to certain conditions 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 Initial Notes tendered
hereby and, in such event, the Initial Notes not exchanged will be returned to
the undersigned at the address shown above in the box entitled "Description of
Initial Notes Tendered Hereby."
4
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, personal representatives, successors
and assigns of the undersigned. This tender may be withdrawn only in accordance
with the procedures set forth in "The Exchange Offer--Withdrawal of Tenders"
section of the Prospectus.
Unless otherwise indicated in the box entitled "Special Issuance Instructions"
or the box entitled "Special Delivery Instructions" in this Letter of
Transmittal, certificates for all Exchange Notes delivered in exchange for
tendered Initial Notes, and any Initial Notes delivered herewith but not
exchanged, will be registered in the name of the undersigned and shall be
delivered to the undersigned at the address shown above in the box entitled
"Description of Initial Notes Tendered Hereby." If an Exchange Note is to be
issued to a person other than the person(s) signing this Letter of Transmittal,
or if the Exchange Note is to be mailed to someone other than the person(s)
signing this Letter of Transmittal or to the person(s) signing this Letter of
Transmittal at an address different than the address shown on this Letter of
Transmittal, the appropriate boxes of this Letter of Transmittal should be
completed. If Initial Notes are surrendered by Holder(s) that have completed
either the box entitled "Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" in this Letter of Transmittal, signature(s) on
this Letter of Transmittal must be guaranteed by an Eligible Institution
(defined in Instruction 4).
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF INITIAL NOTES
TENDERED HEREBY" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL, WILL BE DEEMED TO
HAVE TENDERED THE INITIAL NOTES AS SET FORTH IN SUCH BOX ABOVE.
5
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5) (SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Initial To be completed ONLY if certificates for Initial
Notes not exchanged and/or Exchange Notes are to be Notes not exchanged and/or Exchange Notes are to be sent
issued in the name of and sent to someone other than to someone other than the person(s) whose signature(s)
the person(s) whose signature(s) appear(s) on this appear(s) on this Letter above or to such person(s) at
Letter above, or if Initial Notes delivered by an address other than shown in the box entitled
book-entry transfer which are not accepted for "Description of Initial Notes Tendered Hereby" on this
exchange are to be returned by credit to an account Letter above.
maintained at the Book-Entry Transfer Facility other
than the account indicated above Mail Exchange Notes and/or Initial Notes to:
Name(s):__________________________________________
Issue Exchange Notes and/or Initial Notes to: (PLEASE TYPE OR PRINT)
Name(s):______________________________________________ __________________________________________
(PLEASE TYPE OR PRINT) (PLEASE TYPE OR PRINT)
_____________________________________________________ Address:_________________________________________
(PLEASE TYPE OR PRINT)
Address:____________________________________________ _________________________________________
(INCLUDING ZIP CODE)
____________________________________________________
(INCLUDING ZIP CODE)
(Complete accompanying Substitute Form W-9) Credit
unexchanged Initial Notes delivered by book-entry
transfer to the Book-Entry Transfer Facility account
set forth below.
___________________________________________________
(BOOK-ENTRY TRANSFER FACILITY
ACCOUNT NUMBER, IF APPLICABLE)
6
REGISTERED HOLDER(S) OF NOTES SIGN HERE
(IN ADDITION, COMPLETE SUBSTITUTE FORM W-9 BELOW)
Dated:__________________________ ____________________________, 2000
X_________________________ ____________________________, 2000
X_________________________ ____________________________, 2000
Signature(s) of Owner(s) Date
Area Code and Telephone Number:__________________________________________
SIGNATURE(S) OF REGISTERED HOLDER(S):
Must be signed by registered holder(s) exactly as name(s) appear(s) on the
Initial Notes or on a security position listing as the owner of the Initial
Notes or by person(s) authorized to become registered holder(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 OF TYPE)
Name(s):___________________________________________________________________
___________________________________________________________________________
Capacity (full title):____________________________________________________
Address (including zip code):_____________________________________________
___________________________________________________________________________
___________________________________________________________________________
Area Code and Telephone Number:____________________________________________
Tax Identification or Social Security No.__________________________________
Dated:_____________________________________________________________________
SIGNATURE GUARANTEE
(IF REQUIRED--SEE INSTRUCTION 4)
Authorized Signature:_______________________________________________________
(Signature of Representative of Signature Guarantor)
Name and Title:_____________________________________________________________
Name of Plan:_______________________________________________________________
Area Code and Telephone Number:_____________________________________________
Dated:______________________________________________________________________
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE
CERTIFICATES FOR INITIAL NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL
OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY) MUST
BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE
7
PAYOR'S NAME: EQUINIX, INC.
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 subject to backup withholding.
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Name
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Business Name, if different from above
Check appropriate box: [_] Individual/Sole Proprietor [_] Corporation [_] Partnership [_] Other
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Address (number, street, and apt. or suite no.)
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City, state and ZIP Code
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Substitute Part 1 -- PLEASE PROVIDE YOUR Social security number OR
Form W-9 TIN IN THE BOX AT RIGHT AND Employer identification number
CERTIFY BY SIGNING AND DATING _____________________________
BELOW
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Department of the Treasury PART 2 -- CHECK THE BOX AND CERTIFY BY SIGNING AND DATING
Internal Revenue Service BELOW IF YOU ARE NOT SUBJECT TO BACKUP WITHHOLDING UNDER THE
PROVISIONS OF SECTION 3406 OF THE INTERNAL REVENUE CODE
BECAUSE (1) YOU ARE EXEMPT FROM BACKUP WITHHOLDING, (2) YOU
HAVE NOT BEEN NOTIFIED 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 YOU ARE NO LONGER SUBJECT TO BACKUP WITHHOLDING.
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PAYER'S REQUEST FOR TAXPAYER Part 3 - CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I
IDENTIFICATION NUMBER (TIN) CERTIFY THAT THE INFORMATION PROVIDED ON THIS FORM IS TRUE,
CORRECT AND COMPLETE.
Awaiting TIN [_]
SIGNATURE_____________________________ Date:________________
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF PAYMENTS
MADE TO YOU.
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
I certify under penalties of perjury that a taxpayer identification number has not been issued to me,
and either (a) I have mailed or delivered an application to receive a taxpayer identification number
to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (b) I
intend to mail or deliver an application in the near future. I understand that if I do not provide a
taxpayer identification number within 60 days, 31% of all reportable payments made to me thereafter
will be withheld, until I provide a number.
Signature____________________________________ Date:_________________________
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8
INSTRUCTIONS
FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES
All physically delivered Initial Notes or confirmation of any book-entry
transfer to the Exchange Agent's account at a book-entry transfer facility of
Initial Notes tendered by book-entry transfer, as well as a properly completed
and duly executed copy of this Letter of Transmittal or facsimile thereof, and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent at its address set forth herein on or prior to the Expiration
Date. The method of delivery of this Letter of Transmittal, the Initial 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 by the Exchange Agent. If such delivery is by mail, it is
suggested that registered mail with return receipt requested, properly insured,
be used. Initial Notes tendered hereby must be in denominations of principal
amount of $1,000 and any integral multiple thereof.
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
Initial Notes for exchange.
Delivery to an address of the Trustee other than as set forth herein, or
instructions via a facsimile number other than the ones set forth herein, will
not constitute a valid delivery.
2. GUARANTEED DELIVERY PROCEDURES.
Holders who wish to tender their Initial Notes and (i) whose Initial Notes are
not immediately available, or (ii) who cannot deliver their Initial Notes, the
Letter of Transmittal or any other required documents to the Exchange Agent
prior to the Expiration Date, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from such
Eligible Institution a properly completed and duly executed Letter of
Transmittal and Notice of Guaranteed Delivery (by facsimile transmission, mail
or hand delivery) setting forth the name and address of the Holder of the
Initial Notes, the certificate number or numbers of such Initial Notes and the
principal amount of Initial Notes tendered, stating that the tender is being
made thereby and guaranteeing that, within five business days after the
Expiration Date, the Letter of Transmittal (or facsimile thereof) together with
the certificate(s) representing the Initial Notes to be tendered in proper form
for transfer and any other documents required by the Letter of Transmittal, or a
Book-Entry Confirmation, as the case may be, will be delivered by the Eligible
Institution to the Exchange Agent; and
(c) The certificate(s) representing all tendered Initial Notes in proper
form for transfer and all other documents required by the Letter of Transmittal,
or a Book-Entry Confirmation, as the case may be, are received by the Exchange
Agent within five business days after the Expiration Date.
Upon request of the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to Holders who wish to tender their Initial Notes according to the
guaranteed delivery procedures set forth above. Any Holder who wishes to tender
Initial Notes pursuant to the guaranteed delivery procedures described above
must ensure that the Exchange Agent receives the Notice of Guaranteed Delivery
relating to such Initial Notes prior to the Expiration Date. Failure to
complete the guaranteed delivery procedures outlined above will not, of itself,
affect the validity or effect a revocation of any Letter of Transmittal form
properly completed and executed by a Holder who attempted to use the guaranteed
delivery procedures.
9
3. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER); WITHDRAWALS.
If less than all of the Initial Notes evidenced by a submitted certificate are
to be tendered, the tendering holder(s) should fill in the aggregate principal
amount at maturity of Initial Notes to be tendered in the column entitled
"Principal Amount Tendered" of the box above entitled "Description of Initial
Notes Tendered Hereby." A reissued certificate representing the balance of
untendered Initial Notes will be sent to such tendering holder, unless otherwise
provided in the appropriate box on this Letter of Transmittal, promptly after
the Expiration Date. All of the Initial Notes delivered to the Exchange Agent
will be deemed to have been tendered unless otherwise indicated.
Initial Notes tendered pursuant to the Exchange Offer may be withdrawn at any
time prior to the Expiration Date as described in the Prospectus, after which
tenders of Initial Notes are irrevocable.
4. SIGNATURE ON THIS LETTER OF TRANSMITTAL, WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered Holder(s) of the
Initial Notes tendered hereby, the signature must correspond exactly with the
name(s) as written on the face of the certificates without alternation or
enlargement or any change whatsoever. If this Letter of Transmittal is signed
by a participant in the Depository, the signature must correspond with the name
as it appears on the security position listing as the owner of the Initial
Notes.
If any of the Initial 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 Initial 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 Initial Notes.
Signatures on this Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution unless the Initial
Notes tendered hereby are tendered (i) by a registered Holder (which term, for
the purposes described herein, shall include a participant in the Depository
whose name appears on a security listing as the owner of the Initial Notes) 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.
When this Letter of Transmittal is signed by the registered holder or holders
of the Initial Notes specified herein and tendered hereby, no endorsements of
certificates or separate bond powers are required. If, however, the Exchange
Notes are to be issued, or any untendered Initial Notes are to be reissued, to a
person other than the registered holder, then endorsements of any certificates
transmitted hereby or separate bond powers are required. Signatures on such
certificate(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered
holder or holders of any certificate(s) specified herein, such certificate(s)
must be endorsed or accompanied by appropriate bond powers, in either case
signed exactly as the name or names of the registered holder or holders
appear(s) on the certificate(s) and signatures on such certificate(s) must be
guaranteed by an Eligible Institution.
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
indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
Please contact the Company if there are any questions regarding what constitutes
proper evidence.
Endorsements on certificates for Initial Notes or signatures on bond powers
required by this Instruction 4 must be guaranteed by a firm which is a member of
a registered national securities exchange or a member of the National
Association of Securities Dealers, Inc. or by a commercial bank or trust company
having an office or correspondent
10
in the United States or by such other Eligible Institution within the meaning of
Rule 17(A)(d)-15 under the Securities Exchange Act of 1934, as amended (each an
"Eligible Institution").
5. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering Holders should indicate, in the applicable box, the name and address
(or account at the Depository) in which the Exchange Notes issued pursuant to
the Exchange Offer and/or substitute certificates evidencing Initial Notes not
exchanged are to be issued (or deposited), if different from the names and
addresses or accounts of the person signing this 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. Holders tendering Initial
Notes by book-entry transfer may request that Initial Notes not exchanged be
credited to such account maintained at DTC as such holder may designate hereon.
If no such instructions are given, such Initial Notes not exchanged will be
returned to the name and address of the person signing this Letter of
transmittal.
6. TRANSFER TAXES.
The Company shall pay all transfer taxes, if any, applicable to the transfer
and exchange of Initial Notes to it or its order pursuant to the Exchange Offer.
If, however, Exchange Notes and/or substitute Initial Notes not exchanged are to
be delivered to, or are to be registered or issued in the name of, any person
other than the registered holder of the Initial Notes tendered hereby, or if
tendered Initial Notes are registered in the name of any person other than the
person signing this Letter of Transmittal, or if a transfer tax is imposed for
any reason other than the transfer of Initial 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 persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted herewith, the amount of such transfer taxes
will be collected from the tendering Holder by the Exchange Agent.
Except as provided in this Instruction 6, it will not be necessary for
transfer stamps to be affixed to the Initial Notes listed in this Letter of
Transmittal.
7. WAIVER OF CONDITIONS.
The Company reserves the right, in its reasonable judgment, to waive, in whole
or in part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
8. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be accepted.
All tendering holders of Initial Notes, by execution of this Letter of
Transmittal, shall waive any right to reserve notice of the acceptance of their
Initial Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated to
give notice of any defect or irregularity with respect to any tender of Initial
Notes nor shall any of them incur any liability for failure to give any such
notice.
9. MUTILATED, LOST, STOLEN OR DESTROYED INITIAL NOTES.
Any Holder whose Initial Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated above for further
instructions.
10. 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(s) set forth
above.
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11. VALIDITY AND FORM.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Initial Notes and withdrawal of tendered
Initial Notes will be determined by the Company in its sole discretion, which
determination will be final and binding. The Company reserves the absolute
right to reject any and all Initial Notes not properly tendered or any Initial
Notes the Company's acceptance of which would, in the opinion of counsel for the
Company, be unlawful. The Company also reserves the right, in its reasonable
judgment, to waive any defects, irregularities or conditions of tender as to
particular Initial Notes. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in this Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Initial Notes must be
cured within such time as the Company shall determine. Although the Company
intends to notify Holders of defects or irregularities with respect to tenders
of Initial Notes, neither the Company, the Exchange Agent nor any other person
shall incur any liability for failure to give such notification. Tenders of
Initial Notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Initial 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 Initial Notes is required to
provide the Exchange Agent with such Holder's correct Taxpayer Identification
Number ("TIN") on Substitute Form W-9 above. If such Holder is an individual,
the TIN is generally 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. In addition, payments that are made to such Holder
with respect to tendered Initial Notes may be subject to backup withholding.
Certain Holders (including, among others, all domestic corporations and
certain foreign individuals and foreign entities) are not subject to these
backup withholding and reporting requirements. Such a 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. In order for a non-resident
alien Holder or a foreign entity Holder to qualify as an exempt recipient, that
Holder must submit to the Exchange Agent a properly completed Internal Revenue
Service Form W-8 (certificate of foreign status), signed under penalties of
perjury, attesting to that Holder's exempt status. Such forms can be obtained
from the Exchange Agent.
If backup withholding applies, the Exchange Agent is required to withhold 31%
of any amounts otherwise payable to the Holder. 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.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a Holder with
respect to Initial Notes tendered for exchange, 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) each Holder is exempt, (ii) such Holder
has not been notified by the Internal Revenue Service that he or she is subject
to backup withholding as a result of failure to report all interest or dividends
or (iii) the Internal Revenue Service 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 Initial Notes.
If Initial Notes are in more than one name or are not in the name
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of the actual Holder, consult the instructions on Internal Revenue Service 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 or Substitute Form W-9, sign and date the form and the
Certificate of Awaiting Taxpayer Identification Number and return them to the
Exchange Agent. If such certificate is completed and the Exchange Agent is not
provided with the TIN within 60 days, the Exchange Agent will withhold 31% of
all payments made thereafter until a TIN is provided to the Exchange Agent.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER WITH
INITIAL 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 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
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