EXHIBIT 99.1
LETTER OF TRANSMITTAL
CONSOL ENERGY INC.
OFFER TO EXCHANGE ALL OUTSTANDING
7.875% NOTES DUE 2012
FOR
7.875% NOTES DUE 2012
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS DATED , 2002
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON __________,
2002 OR SUCH LATER DATE AND TIME TO WHICH THE EXCHANGE OFFER MAY BE EXTENDED
(THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO THE EXPIRATION DATE.
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The exchange agent for the exchange offer is The Bank of Nova Scotia Trust
Company of New York
By Mail, Hand or Overnight Delivery: By Facsimile Transmission (For
Eligible Institutions Only):
The Bank of Nova Scotia Trust Company (212) 225-5436
of New York Attention: Exchanges
One Liberty Plaza, 23/rd/ Floor Confirm by Telephone:
New, York, NY 10006 (212) 225-5427
For Information Call:
(212) 225-5427
Delivery of this letter of transmittal to an address other than as set
forth above, or transmission of instructions via facsimile other than as set
forth above, does not constitute a valid delivery.
The undersigned acknowledges that the undersigned has received the
Prospectus dated , 2002 (as amended or supplemented from time to time, the
"Prospectus"), of CONSOL Energy Inc., a Delaware corporation (the "Company"),
and this letter of transmittal (as amended or supplemented from time to time,
the "Letter of Transmittal"), which together constitute the Company's offer (the
"Exchange Offer") to exchange up to $250,000,000 aggregate principal amount of
7.875% Notes due 2012 (the "New Notes") of the Company, for an equal principal
amount of the Company's issued and outstanding 7.875% Notes due 2012 (the
"Private Notes"). The terms of the New Notes are identical in all material
respects (including principal amount, interest rate and maturity) to those of
the Private Notes, except that the New Notes will be registered under the
Securities Act of 1933, as amended (the "Securities Act").
Holders of New Notes will not be entitled to certain rights of holders of
the Private Notes under the Registration Rights Agreement, dated March 7, 2002,
among the Company, certain subsidiaries of the Company, Salomon Smith Barney
Inc., Dresdner Kleinwort Wasserstein--Grantchester, Inc., Mellon Financial
Markets, LLC, PNC Capital Markets, Inc., Scotia Capital Markets, Inc., Australia
and New Zealand Banking Group Limited--London Branch and NatCity Investments, as
initial purchasers (the "Registration Rights Agreement"), which rights will be
terminated upon consummation of the Exchange Offer.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein have the meanings given to
such terms in the Prospectus.
This Letter of Transmittal is to be completed by holders of Private Notes
(a) if Private Notes are to be forwarded herewith or (b) if tenders of Private
Notes are to be made by book-entry transfer to an account maintained by The Bank
of Nova Scotia Trust Company of New York (the "Exchange Agent") at The
Depository Trust Company ("DTC") pursuant to the procedures set forth in the
Prospectus under "The Exchange Offer-Procedures for Tendering." Delivery of
this Letter of Transmittal and any other required documents should be made to
the Exchange Agent.
If a holder desires to tender Private Notes pursuant to the Exchange Offer
but time will not permit this Letter of Transmittal, the certificates
representing Private Notes or other required documents to reach the Exchange
Agent on or before the Expiration Date, or the procedure for book-entry transfer
cannot be completed on a timely basis, such holder may effect a tender of such
Private Notes in accordance with the guaranteed delivery procedures set forth in
the Prospectus under "The Exchange Offer-Guaranteed Delivery Procedures."
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
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.
List below the Private Notes to which the Letter of Transmittal relates.
If the space provided below is inadequate, the certificate numbers and principal
amount of Private Notes should be listed on a separate schedule affixed hereto.
DESCRIPTION OF PRIVATE NOTES
(1) (2) (3)
Name(s) and Address(es) of Registered Holder(s) Aggregate Principal Amount of
(Please fill in, if blank) Certificate Principal Private Notes
Number(s)* Amount of Tendered
Private Notes (if less than all)**
_______________ _______________ ____________________
_______________ _______________ ____________________
_______________ _______________ ____________________
_______________ _______________ ____________________
_______________ _______________ ____________________
* Need not be completed if Private Notes are being tendered by book-
entry holders.
** Private Notes may be tendered in whole or in part in integral multiples
of $1,000. Unless this column is completed, a holder will be deemed to
have tendered the full aggregate principal amount of the Private Notes
represented by the Private Notes indicated in column 2.
2
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_] CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution:______________________________________
Account Number:_____________________________________________________
Transaction Code Number:____________________________________________
[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED PRIVATE NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s):____________________________________
Window Ticket Number (if any):______________________________________
Name of Eligible Institution that Guaranteed Delivery:______________
Date of Execution of Notice of Guaranteed Delivery:_________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution:______________________________________
DTC Account Number:_________________________________________________
Transaction Code Number:____________________________________________
[_] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED PRIVATE
NOTES ARE TO BE RETURNED BY CREDITING DTC ACCOUNT NUMBER SET FORTH ABOVE.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER THAT ACQUIRED THE PRIVATE NOTES FOR
ITS 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:____________________________________________________________
Area Code and Telephone Number:_____________________________________
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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 aggregate principal amount of
Private Notes indicated above in exchange for a like aggregate principal amount
of New Notes. Subject to, and effective upon, the acceptance for exchange of
the Private Notes tendered hereby, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to such Private Notes.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent its agent and attorney-in-fact (with full knowledge that the Exchange
Agent also acts as the agent of the Company) with respect to the tendered
Private Notes with the full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to (i) deliver
certificates for such Private Notes to the Company and deliver all accompanying
evidences of transfer and authenticity to, or upon the order of, the Company,
(ii) present such Private Notes for transfer on the books of the Company, and
(iii) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Private Notes, all in accordance with the terms of the
Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the Private
Notes tendered hereby and that, when the same are accepted for exchange, the
Company will acquire good and unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claims or proxies. The undersigned 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 Private
Notes tendered hereby, and the undersigned will comply with its obligations
under the Registration Rights Agreement. The undersigned has read and agreed to
all of the terms of the Exchange Offer.
The undersigned agrees that acceptance of any tendered Private Notes by the
Company and the issuance of New Notes in exchange for Private Notes will
constitute performance in full by the Company of its obligations under the
Registration Rights Agreement and that the Company will have no further
obligations or liabilities thereunder.
The name(s) and address(es) of the registered holders of the Private Notes
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Private Notes. The certificate number(s) and the
principal amount(s) of the Private Notes that the undersigned wishes to tender
should be indicated in the appropriate boxes above.
The undersigned also acknowledges that this Exchange Offer is being made in
reliance on certain interpretive letters by the staff of the Securities and
Exchange Commission (the "SEC") to third parties in unrelated transactions. On
the basis thereof, the New Notes issued in exchange for the Private Notes
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by holders of the New Notes (other than any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such New Notes are acquired in the ordinary
course of such holders' business and such holders are not participating in, and
have no arrangement or understanding with any person to participate in, the
distribution of such New Notes.
The undersigned acknowledges that any holder of Private Notes using the
Exchange Offer to participate in a distribution of the New Notes (i) cannot rely
on the position of the staff of the SEC enunciated in its interpretive letters
and (ii) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale transaction.
4
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 New
Notes.
If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Private 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 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.
The undersigned represents that (i) it is not an affiliate (as defined in
Rule 405 under the Securities Act) of the Company; (ii) it is not a broker-
dealer tendering Private Notes acquired for its own account directly from the
Company; (iii) any New Notes to be received by it will be acquired in the
ordinary course of its business whether or not such person is the holder; and
(iv) it is not engaged in, and does not intend to engage in, a distribution of
such New Notes and has no arrangement or understanding with any person to
participate in a distribution of Notes.
If a holder of Private Notes is engaged in or intends to engage in a
distribution of New Notes or has any arrangement or understanding with respect
to the distribution of New Notes to be acquired pursuant to the Exchange Offer,
such holder may not rely on the applicable interpretations of the staff of the
Commission and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any secondary resale
transaction.
The Company agrees that, subject to the provisions of the Registration
Rights Agreement, the Prospectus may be used by a Participating Broker-Dealer
(as defined below) in connection with resales of New Notes received in exchange
for Private Notes, where such Private Notes were acquired by such Participating
Broker-Dealer for its own account as a result of market-making activities or
other trading activities and has not entered into any arrangement or
understanding with the Company or any "affiliate" of the Company (within the
meaning of Rule 405 under the Securities Act) to distribute the New Notes to be
received in the Exchange Offer, for a period of time of up to one year after the
date on which the exchange offer is consummated (subject to extension under
certain circumstances described in the Prospectus) or, if earlier, when all such
New Notes have been disposed of by such Participating Broker-Dealer. In that
regard, each broker-dealer who acquired Private Notes for its own account as a
result of market-making or other trading activities (a "Participating Broker-
Dealer"), by tendering such Private Notes and executing this Letter of
Transmittal, agrees that, upon receipt of notice from the Company of the
occurrence of any event or the discovery of any fact which makes any statement
contained or incorporated by reference in the Prospectus untrue in any material
respect or which causes the Prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
therein, in light of the circumstances under which they were made, not
misleading or of the occurrence of certain other events specified in the
Registration Rights Agreement, such Participating Broker-Dealer will suspend the
sale of New Notes pursuant to the Prospectus until the Company has amended or
supplemented the Prospectus and has furnished copies of the amended or
supplemented Prospectus to the Participating Broker-Dealer or the Company has
given notice that the sale of the New Notes may be resumed, as the case may be.
If the Company gives such notice to suspend the sale of the New Notes, the one
year period referred to above during which Participating Broker-Dealers are
entitled to use the Prospectus in connection with the resale of New Notes shall
be extended by the number of days during the period from and including the date
of the giving of such notice to and including the date when Participating
Broker-Dealers shall have received copies of the supplemented or amended
Prospectus necessary to permit resales of the New Notes.
The undersigned understands that tenders of the Private Notes pursuant to
any one of the procedures described under "The Exchange Offer-Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Company in accordance with the
terms and subject to the conditions set forth herein and in the Prospectus.
5
The undersigned recognizes that under certain circumstances set forth in
the Prospectus under "The Exchange Offer-Conditions" the Company will not be
required to accept for exchange any of the Private Notes tendered. Private
Notes not accepted for exchange or withdrawn will be returned to the undersigned
at the address set forth below unless otherwise indicated under "Special
Delivery Instructions" below (or, in the case of Private Notes tendered by book-
entry transfer, credited to an account maintained by the tendering holder at
DTC).
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Notes (and, if
applicable, any substitute certificates representing Private Notes not exchanged
or not accepted for exchange) be issued in the name(s) of the undersigned and be
delivered to the undersigned at the address, or, in the case of book-entry
transfer of Private Notes, be credited to the account at DTC shown above in the
box entitled "Description of Private Notes".
Holders of the Private Notes whose Private Notes are accepted for exchange
will not receive accrued interest on such Private Notes for any period from and
after the last interest payment date to which interest has been paid or duly
provided for on such Private Notes prior to the original issue date of the New
Notes or, if no such interest has been paid or duly provided for, will not
receive any accrued interest on such Private Notes, and the undersigned waives
the right to receive any interest on such Private Notes accrued from and after
such interest payment date or, if no such interest has been paid or duly
provided for, from and after the original issue date of the New Notes.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Private Notes tendered hereby. All
authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. This tender
may be withdrawn only in accordance with the procedures set forth in the
Prospectus and in the instructions contained in this Letter of Transmittal.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF PRIVATE
NOTES" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL AND DELIVERING SUCH PRIVATE
NOTES AND THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT, WILL BE DEEMED TO
HAVE TENDERED THE PRIVATE NOTES AS SET FORTH IN SUCH BOX ABOVE. ANY FINANCIAL
INSTITUTION THAT IS A PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY'S SYSTEMS
MAY MAKE BOOK-ENTRY DELIVERY OF PRIVATE NOTES BY CAUSING THE BOOK-ENTRY TRANSFER
FACILITY TO TRANSFER SUCH PRIVATE NOTES INTO THE EXCHANGE AGENT'S ACCOUNT AT THE
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES. ALTHOUGH DELIVERY OF PRIVATE NOTES MAY BE EFFECTED
THROUGH BOOK-ENTRY TRANSFER AT THE BOOK-ENTRY TRANSFER FACILITY, THIS LETTER OF
TRANSMITTAL WITH ALL REQUIRED SIGNATURE GUARANTEES AND ALL OTHER REQUIRED
DOCUMENTS MUST BE TRANSMITTED TO AND RECEIVED BY THE EXCHANGE AGENT.
6
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
X___________________________ Date: _________________, 2002
X___________________________ Date: _________________, 2002
Signature(s) of Owner
The above lines must be signed by the registered holder(s) exactly as their
name(s) appear(s) on the Private Notes, or by person(s) authorized to become
registered holder(s) by a properly completed bond power from the registered
holder(s), a copy of which must be transmitted with this Letter of Transmittal.
If Private Notes to which this Letter of Transmittal relate are held of record
by two or more joint holders, then all such holders must sign this Letter of
Transmittal. 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, then please set forth full title. See Instruction 4.
Name(s): ______________________________________________________
_______________________________________________________________
(Please Type or Print)
Capacity:______________________________________________________
Address:_______________________________________________________
_______________________________________________________________
(Including Zip Code)
Area Code and Telephone Number: _______________________________
Tax Identification or Social Security Number(s): ______________
SIGNATURE GUARANTEED
(IF REQUIRED BY INSTRUCTION 4)
Signatures Guaranteed
by an Eligible Institution: ___________________________________
(Authorized Signature)
_______________________________________________________________
(Title)
_______________________________________________________________
(Name of Firm)
_______________________________________________________________
(Address and Telephone Number)
Dated: _______________, 2002
7
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Private Notes not exchanged and/or New
Notes are to be issued in the name of and sent to someone other than the person
persons whose signature(s) appear(s) on the Letter of Transmittal above.
Issue New Notes and/or Private Notes to:
Name(s):_________________________________________
(Please Type or Print)
______________________________________________
(Please Type or Print)
Address: ________________________________________
_____________________________________________
(Zip Code)
Telephone Number: _______________________________
Tax Identification or
Social Security Number(s):_______________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Private Notes not exchanged and/or New
Notes are to be sent to someone other than the person or persons whose
signature(s) appear(s) on the Letter of Transmittal above or to such person or
persons at an address other than that shown in the box above entitled
"Description of Private Notes".
Deliver New Notes and/or Private Notes to:
Name(s): ________________________________________
(Please Type or Print)
______________________________________________
(Please Type or Print)
Address: ________________________________________
______________________________________________
(Zip Code)
Telephone Number: _______________________________
Tax Identification or
Social Security Number(s): ______________________
(Complete Substitute Form W-9)
IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS
LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATE(S)
FOR PRIVATE NOTES 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.
8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND PRIVATE NOTES.
This Letter of Transmittal must accompany (i) all certificates representing
Private Notes tendered pursuant to the Exchange Offer and (ii) all tenders of
Private Notes made pursuant to the procedures for book-entry transfer set forth
in the Prospectus under "The Exchange Offer--Procedures for Tendering."
Certificates representing the Private Notes in proper form for transfer, or a
timely confirmation of a book-entry transfer of such Private Notes into the
Exchange Agent's account at DTC, as well as a properly completed and duly
executed copy of this Letter of Transmittal (or facsimile thereof), with any
required signature guarantees, a Substitute Form W-9 (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 before the Expiration
Date.
The method of delivery of this Letter of Transmittal, the Private Notes and
all other required documents is at the election and risk of the tendering
holders, but delivery will be deemed made only when actually received or
confirmed by the Exchange Agent. If such delivery is by mail, it is recommended
that registered mail properly insured, with return receipt requested, be used.
In all cases, sufficient time should be allowed to permit timely delivery.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEED DELIVERY PROCEDURES.
If a holder desires to tender Private Notes, but time will not permit a
Letter of Transmittal, certificates representing the Private Notes to be
tendered or other required documents to reach the Exchange Agent on or before
the Expiration Date, or if the procedure for book-entry transfer cannot be
completed on or prior to the Expiration Date, such holder's tender may be
effected if:
(a) such tender is made by or through an Eligible Institution (as
defined below);
(b) on or before the Expiration Date, the Exchange Agent has received
a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by the Company (or a facsimile
thereof with receipt confirmed by telephone and an original delivered by
guaranteed overnight courier) from such Eligible Institution setting forth
the name and address of the holder of such Private Notes, the name(s) in
which the Private Notes are registered and the principal amount of Private
Notes tendered and stating that the tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days after
the Expiration Date, certificates representing Private Notes to be
tendered, in proper form for transfer, or a Book-Entry confirmation, as the
case may be, together with a duly executed Letter of Transmittal and any
other documents required by this Letter of Transmittal and the instructions
hereto, will be deposited by such Eligible Institution with the Exchange
Agent; and
(c) a Letter of Transmittal (or a facsimile thereof) and certificates
representing the Private Notes to be tendered, in proper form for transfer,
or a book-entry confirmation, as the case may be, and all other required
documents are received by the Exchange Agent within three New York Stock
Exchange trading days after the Expiration Date.
9
3. PARTIAL TENDERS AND WITHDRAWAL RIGHTS.
Tenders of Private Notes will be accepted only in integral multiples of
$1,000. If less than all the Private Notes evidenced by any Certificate
submitted are to be tendered, fill in the principal amount of Private Notes
which are to be tendered in the box entitled "Principal Amount of Private Notes
Tendered (if less than all)". In such case, new certificate(s) for the
remainder of the Private Notes that were evidenced by your old certificate(s)
will only be sent to the holder of the Private Notes (or, in the case of Private
Notes tendered pursuant to book-entry transfer, will only be credited to the
account at DTC maintained by the holder of the Private Notes) promptly after the
Expiration Date. All Private Notes represented by certificates or subject to a
book-entry confirmation delivered to the Exchange Agent will be deemed to have
been tendered unless otherwise indicated.
Any holder who has tendered Private Notes may withdraw the tender by
delivering written notice of withdrawal (which may be sent by facsimile) to the
Exchange Agent at its address set forth herein prior to the Expiration Date.
Any such notice of withdrawal must specify the name of the person having
tendered the Private Notes to be withdrawn, identify the Private Notes to be
withdrawn (including the principal amount of such Private Notes) and (where
certificates for Private Notes have been transmitted) specify the name in which
such Private Notes are registered, if different from that of the withdrawing
holder. If certificates for Private Notes have been delivered or otherwise
identified to the Exchange Agent, then, prior to the withdrawal of such
certificates, the withdrawing holder must also submit the serial numbers of the
particular certificates to be withdrawn and a signed notice of withdrawal with
signatures guaranteed by an Eligible Institution unless such holder is an
Eligible Institution. If Private Notes have been tendered pursuant to the
procedure for book-entry transfer described above, any notice of withdrawal must
specify the name and number of the account at the Book-Entry Transfer Facility
to be credited with the withdrawn Private Notes and otherwise comply with the
procedures of such facility. All questions as to the validity, form and
eligibility (including time of receipt) of such notices will be determined by
the Company, whose determination shall be final and binding on all parties. Any
Private Notes so withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the Exchange Offer. Any Private 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
Private 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 Private Notes will be credited to an account
maintained with such book-entry transfer facility for the Private Notes) as soon
as practicable after withdrawal, rejection of tender or termination of the
Exchange Offer. Properly withdrawn Private Notes may be retendered following
one of the procedures described in the Prospectus under "The Exchange Offer--
Procedures for Tendering".
4. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered holder of the
Private Notes tendered herewith, the signature must correspond exactly with the
name as written on the face of the certificates without any alteration,
enlargement or change whatsoever.
If any tendered Private Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any tendered
Private Notes are registered in different names on several certificates, it will
be necessary to complete, sign and submit as many separate copies of this Letter
of Transmittal as there are names in which tendered Private Notes are
registered.
If this Letter of Transmittal is signed by the registered holder, and New
Notes are to be issued and any untendered or unaccepted principal amount of
Private Notes are to be reissued or returned to the registered holder, then the
registered holder need not and should not endorse any tendered Private Notes nor
provide a separate bond power. In any other case, the registered holder must
either properly endorse
10
the Private Notes tendered or transmit a properly completed separate bond power
with this Letter of Transmittal (in either case, executed exactly as the name of
the registered holder appears on such Private Notes), with the signature on the
endorsement or bond power guaranteed by an Eligible Institution, unless such
certificates or bond powers are signed by an Eligible Institution.
If this Letter of Transmittal or any Private Notes or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and submit with this
Letter of Transmittal evidence satisfactory to the Company of their authority to
so act.
The signatures on this Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed unless the Private Notes surrendered for
exchange pursuant thereto are tendered (i) by a registered holder (which term,
for purposes of this document, shall include any participant in DTC whose name
appears on the register of holders maintained by the Company as owner of the
Private Notes) who has not completed the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in this Letter of Transmittal
or (ii) for the account of an Eligible Institution. 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 a commercial
bank or trust company located or having an office or correspondent in the United
States, or by a member firm of a national securities exchange or of the National
Association of Securities Dealers, Inc., or which is otherwise an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the United
States Securities Exchange Act of 1934, as amended (any of the foregoing being
referred to herein as an "Eligible Institution"). If Private Notes are
registered in the name of a person other than the signer of this Letter of
Transmittal, the Private 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.
5. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Private Notes should indicate in the applicable box
the name and address or account at DTC to which New Notes issued pursuant to the
Exchange Offer and/or substitute Private Notes for principal amounts not
tendered or not accepted for exchange are to be issued, sent or deposited if
different from the name and address or account of the person signing this Letter
of Transmittal. In the case of issuance in a different name, the employer
identification or Social Security number of the person named must also be
indicated. If no such instructions are given, any New Notes will be issued in
the name of, and delivered to, the name and address (or account at DTC, in the
case of any tender by book-entry transfer) of the person signing this Letter of
Transmittal, and any Private Notes not accepted for exchange will be returned to
the name and address (or account at DTC, in the case of any tender by book-entry
transfer) of the person signing this Letter of Transmittal.
6. BACKUP FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM W-9.
Under the federal income tax laws, payments that may be made by the Company
on account of New Notes issued pursuant to the Exchange Offer may be subject to
backup withholding. Currently, the backup withholding rate is 30%. In order to
avoid such backup withholding, each tendering holder should complete and sign
the Substitute Form W-9 included in this Letter of Transmittal and either (a)
provide the correct taxpayer identification number ("TIN") and certify, under
penalties of perjury, that the TIN provided is correct and that (i) the holder
has not been notified by the Internal Revenue Service (the "IRS") that the
holder is subject to backup withholding as a result of failure to report all
interest or dividends or (ii) the IRS has notified the holder that the holder is
no longer subject to backup withholding; or (b) provide an adequate basis for
exemption. If the tendering holder has not been issued a TIN and has applied
for one, or intends to apply for one in the near future, such holder should
write "Applied For" in the space provided for the TIN in Part I of the
Substitute Form W-9, sign and date the
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Substitute Form W-9 and sign the Certificate of Payee Awaiting Taxpayer
Identification Number. If "Applied For" is written in Part I, the Company (or
the Paying Agent under the Indenture governing the New Notes) will retain a
portion of payments made to the tendering holder during the 60-day period
following the date of the Substitute Form W-9 in an amount sufficient to cover
the backup withholding tax on such payments. If the holder furnishes the
Exchange Agent or the Company with its TIN within 60 days after the date of the
Substitute Form W-9, the Company (or Paying Agent) will remit such amounts
retained during the 60-day period 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 or the Company with its TIN
within such 60-day period, the Company (or the Paying Agent) will remit such
previously retained amounts to the IRS as backup withholding. In general, if a
holder is an individual, the taxpayer identification number is the Social
Security Number of such individual. If the Exchange Agent or the Company is not
provided with the correct taxpayer identification number, the holder may be
subject to a U.S. $50 penalty imposed by the IRS. Certain holders (including,
among others, all corporations and certain foreign individuals) are not subject
to these backup withholding and reporting requirements. In order for a foreign
individual to qualify as an exempt recipient, such holder must submit a
statement (generally, IRS Form W-8BEN), signed under penalties of perjury,
attesting to that individual's exempt status. Such statements can be obtained
from the Exchange Agent. For further information concerning backup withholding
and instructions for completing the Substitute Form W-9 (including how to obtain
a taxpayer identification number if you do not have one and how to complete the
Substitute Form W-9 if Private Notes are registered in more than one name),
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 (the "Guidelines").
Failure to complete the Substitute Form W-9 will not, by itself, cause
Private Notes to be deemed invalidly tendered, but may require the Company (or
the Paying Agent) to backup withhold with respect to any payments made on
account of the New Notes. Backup withholding is not an additional federal
income tax. Rather, the federal income tax liability of a person subject to
backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained.
7. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Private Notes to it or its order pursuant to the Exchange Offer. If,
however, New Notes and/or substitute Private 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 Private Notes tendered herewith, or if
tendered Private 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 Private 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 billed directly to such tendering holder. Except as provided in this
Instruction 7, it will not be necessary for transfer tax stamps to be affixed to
the Private Notes specified in this Letter of Transmittal.
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8. 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.
9. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders of Private
Notes or transmittals of this Letter of Transmittal will be accepted. All
tendering holders of Private Notes, by execution of this Letter of Transmittal,
shall waive any right to receive notice of the acceptance of their Private Notes
for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of defects or irregularities in any tender, nor shall any of them
incur any liability for failure to give any such notice.
10. INADEQUATE SPACE.
If the space provided herein is inadequate, the aggregate principal amount
of Private Notes being tendered and the certificate number or numbers (if
applicable) should be listed on a separate schedule attached hereto and
separately signed by all parties required to sign this Letter of Transmittal.
11. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES.
If any certificate has been lost, mutilated, destroyed or stolen, the
holder should promptly notify The Bank of Nova Scotia Trust Company of New York,
telephone (212) 225-5427. The holder will then be instructed as to the steps
that must be taken to replace the certificate. This Letter of Transmittal and
related documents cannot be processed until the Private Notes have been
replaced.
12. 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 indicated
above.
13. VALIDITY OF TENDERS.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of tendered Private Notes will be determined by the
Company, in its sole discretion, which determination will be final and binding.
The Company reserves the right to reject any and all Private Notes not validly
tendered or any Private Notes, the Company's acceptance of which may, in the
opinion of the Company or counsel to the Company, be unlawful. The Company also
reserves the right to waive any conditions of the Exchange Offer or defects or
irregularities in tenders of Private Notes as to any ineligibility of any holder
who seeks to tender Private Notes in the Exchange Offer, whether or not similar
conditions or irregularities are waived in the case of other holders. Any such
waiver shall not constitute a general waiver of the conditions of the Exchange
Offer by the Company. The interpretation of the terms and conditions of the
Exchange Offer (including this Letter of Transmittal and the instructions
hereto) by the Company shall be final and binding on all parties. Unless
waived, any defects or irregularities in connection with tenders of Private
Notes must be cured within such time as the Company shall determine. The
Company will use reasonable efforts to give notification of defects or
irregularities with respect to tenders of Private Notes, but neither the Company
nor the Exchange Agent shall incur any liability for failure to give such
notification.
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14. ACCEPTANCE OF TENDERED PRIVATE NOTES AND ISSUANCE OF NEW NOTES; RETURN OF
PRIVATE NOTES.
Subject to the terms and conditions of the Exchange Offer, the Company will
accept for exchange all validly tendered Private Notes as soon as practicable
after the Expiration Date and will issue New Notes therefor as soon as
practicable thereafter. For purposes of the Exchange Offer, the Company shall
be deemed to have accepted tendered Private Notes when, as and if the Company
has given written and oral notice thereof to the Exchange Agent. If any
tendered Private Notes are not exchanged pursuant to the Exchange Offer for any
reason, such unexchanged Private Notes will be returned, without expense, to the
name and address shown above or, if Private Notes have been tendered by book-
entry transfer, to the account at DTC shown above, or at a different address or
account at DTC as may be indicated under "Special Delivery Instructions".
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TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 6)
PAYOR'S NAME:
SUBSTITUTE FORM W-9 PART I--TAXPAYER IDENTIFICATION
NUMBER
Department of the Treasury Enter your taxpayer
Internal Revenue Service identification number in
the appropriate box. For -------------------
most individuals, this is Social Security
your socil security number. Number
If you do not have a number, OR
see how to obtain a "TIN" in
the enclosed Guidelines. -------------------
Employer
Identification
Number
NOTE: If the account is in more
than one name, see the chart on
page 2 of the enclosed
Guidelines to determine what
number to give.
--------------------------------------------------
PART II--FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING
(SEE ENCLOSED GUIDELINES)
--------------------------------------------------
Payor's Request for Taxpayer CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I
Identification Number (TIN) CERTIFY THAT:
and Certification (1) I am a U.S. person and the number shown on
this form is my correct Taxpayer
Identification Number (or I am waiting for a
number to be issued to me), and
(2) I am not subject to backup withholding either
because I have not been notified by the
Internal Revenue Service (the "IRS") that I
am subject to backup withholding as a result
of a failure to report all interest or
dividends or the IRS has notified me that I
am no longer subject to backup withholding.
SIGNATURE _________________ DATE ________________
- --------------------------------------------------------------------------------
Certificate Guidelines --You must cross out Item (2) of the above certification
if you have been notified by the IRS that you are subject to backup withholding
because of under-reporting of interest on dividends on your tax return.
However, if after being notified by the IRS that you were subject to backup
withholding, you received another notification from the IRS that you are no
longer subject to backup withholding, do not cross out Item 2.
- --------------------------------------------------------------------------------
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CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification
Number has not been issued to me and that I mailed or delivered an application
to receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail or
deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payor, an amount sufficient to
cover the backup withholding tax will be retained on payments made to me on
account of the New Notes until I provide a Taxpayer Identification Number to the
payor and that, if I do not provide my Taxpayer Identification Number within 60
days, such retained amounts shall be remitted to the Internal Revenue Service as
a backup withholding and all reportable payments made to me thereafter will be
subject to backup withholding and remitted to the Internal Revenue Service until
I provide a Taxpayer Identification Number.
SIGNATURE ------------------------------------- DATE ------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING ON ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE NEW NOTES. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
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