<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
FOR
8.75% SENIOR NOTES DUE 2008
OF
COGENTRIX ENERGY, INC.
PURSUANT TO THE EXCHANGE OFFER IN RESPECT OF
ALL OF ITS OUTSTANDING 8.75% SENIOR NOTES DUE 2008
FOR
8.75% SENIOR NOTES DUE 2008
----------------------------------
PURSUANT TO THE PROSPECTUS DATED , 2000
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON , 2000,
UNLESS THE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
FIRST UNION NATIONAL BANK
<TABLE>
<S> <C> <C>
By Mail: By Facsimile: (704) 590-7628 By Hand:
Laura Richardson (For Eligible Institutions only) Laura Richardson
First Union National Bank Confirming by Telephone: (704) 590-7414 First Union National Bank
Corporate Trust Department Corporate Trust Department
1525 West W.T. Harris Blvd, 3C3 1525 West W.T. Harris Blvd, 3C3
Charlotte, North Carolina 28288-1153 Charlotte, North Carolina 28288-1153
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY. THE
INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. CAPITALIZED TERMS USED BUT NOT
DEFINED HEREIN SHALL HAVE THE SAME MEANING GIVEN THEM IN THE PROSPECTUS (AS
DEFINED BELOW).
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<CAPTION>
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DESCRIPTION OF OLD SENIOR NOTES TENDERED*
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Name Exactly as it Appears on Your Old Senior Note(s) Old Senior Note(s) Enclosed
and Address of Registered Holder (Please list below -- attach
(Please fill in, if blank) additional list if necessary)
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<S> <C> <C>
Certificate Principal Amount of Old
Number(s)* Senior Notes Tendered**
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Total Amount Tendered:
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</TABLE>
* Need not be completed by book-entry holders.
** Old Senior Notes may be tendered in whole or in part in denominations
of $1,000 and integral multiples thereof. All Old Senior Notes held
shall be deemed tendered unless a lesser number is specified in this
column.
<PAGE> 2
This Letter of Transmittal is to be completed by holders of Old Senior
Notes (as defined below) either if Old Senior Notes are to be forwarded herewith
or if tenders of Old Senior Notes are to be made by book-entry transfer to an
account maintained by First Union National Bank (the "Exchange Agent") at The
Depository Trust Company ("DTC") pursuant to the procedures set forth in "The
Exchange Offer -- Procedures for Tendering" in the Prospectus.
Holders of Old Senior Notes whose certificates (the "Certificates") for
such Old Senior Notes are not immediately available or who cannot deliver their
Certificates and all other required documents to the Exchange Agent on or prior
to the Expiration Date (as defined in the Prospectus) or who cannot complete the
procedures for book-entry transfer on a timely basis, must tender their Old
Senior Notes according to the guaranteed delivery procedures set forth in "The
Exchange Offer -- Procedures for Tendering" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT. NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE
ACCOMPANYING INSTRUCTIONS CAREFULLY.
[ ] CHECK HERE IF TENDERED OLD SENIOR NOTES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
-----------------------------------------------------------------------
DTC Account No.:
-----------------------------------------------------------------------
Transaction Code No.:
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[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED OLD SENIOR NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s):
-----------------------------------------------------------------------
Window Ticket Number (if any):
-----------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
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Name of Institution which Guaranteed Delivery:
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IF GUARANTEED DELIVERY IS TO BE MADE BY BOOK-ENTRY TRANSFER:
Name of Tendering Institution:
-----------------------------------------------------------------------
DTC Account No.:
-----------------------------------------------------------------------
Transaction Code No.:
-----------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD
SENIOR NOTES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET
FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD SENIOR NOTES
FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING
ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
-----------------------------------------------------------------------
Address:
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2
<PAGE> 3
NOTE: SIGNATURE MUST BE PROVIDED ON PAGE 6
AND ON THE SUBSTITUTE FORM W-9 ON PAGE 11
Please Read the Accompanying Instructions Carefully
To First Union National Bank:
The undersigned hereby tenders to Cogentrix Energy, Inc., a North
Carolina corporation (the "Company"), the above described aggregate principal
amount of the Company's 8.75% Senior Notes due 2008 (the "Old Senior Notes") in
exchange for a like aggregate principal amount of the Company's 8.75% Senior
Notes due 2008 (the "Exchange Senior Notes") which have been registered under
Securities Act of 1933, as amended (the "Securities Act"), upon the terms and
subject to the conditions set forth in the Prospectus dated ______________, 2000
(as the same may be amended or supplemented from time to time, the
"Prospectus"), receipt of which is acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitute the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Senior Notes tendered herewith in accordance with the terms
and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Old Senior
Notes as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company in connection with the Exchange Offer) with respect to the tendered Old
Senior Notes, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), subject only to the
right of withdrawal described in the Prospectus, to (i) deliver Certificates for
Old Senior Notes to the Company together with all accompanying evidences of
transfer and authenticity to, or upon the order of, the Company, upon receipt by
the Exchange Agent, as the undersigned's agent, of the Exchange Senior Notes to
be issued in exchange for such Old Senior Notes, (ii) present Certificates for
such Old Senior Notes for transfer, and to transfer the Old Senior Notes on the
books of the Company, and (iii) receive for the account of the Company all
benefits and otherwise exercise all rights of beneficial ownership of such Old
Senior Notes, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
SENIOR NOTES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE,
THE COMPANY WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE
AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES, AND THAT THE OLD
SENIOR NOTES TENDERED HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES.
THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS
DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO
COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD SENIOR NOTES TENDERED
HEREBY, AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE
REGISTRATION AGREEMENT DATED AS OF SEPTEMBER 22, 2000 BY AND AMONG THE COMPANY,
SALOMON SMITH BARNEY INC. AND CIBC WORLD MARKETS CORP. (THE "REGISTRATION
AGREEMENT") AND AGREES THAT ACCEPTANCE OF TENDERED OLD SENIOR NOTES BY THE
COMPANY AND THE ISSUANCE OF THE EXCHANGE SENIOR NOTES THEREFOR SHALL INSTITUTE
FULL PERFORMANCE BY THE COMPANY OF CERTAIN OF ITS OBLIGATIONS UNDER THE
REGISTRATION AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS
OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old
Senior Notes tendered hereby should be printed above, if they are not already
set forth above, as they appear on the Certificates representing such Old Senior
Notes. The Certificate number(s) and the Old Senior Notes that the undersigned
wishes to tender should be indicated in the appropriate boxes above.
If any tendered Old Senior Notes are not exchanged pursuant to the
Exchange Offer for any reason, or if Certificates are submitted for more Old
Senior Notes than are tendered or accepted for exchange, Certificates for such
nonexchanged or nontendered Old Senior Notes will be returned (or, in the case
of Old Senior Notes tendered by book-entry transfer, such Old Senior Notes will
be credited to an account maintained at DTC), without expense to the tendering
holder, promptly following the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Senior Notes pursuant
to any one of the procedures described in "The Exchange Offer -- Procedures for
Tendering" in the Prospectus and in the instructions hereto will, upon the
Company's acceptance for exchange of such tendered Old Senior Notes, constitute
a binding agreement between the undersigned and the Company upon the
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<PAGE> 4
terms and subject to the conditions of the Exchange Offer. The undersigned
recognizes that, under certain circumstances set forth in the Prospectus, the
Company may not be required to accept for exchange any of the Old Senior Notes
tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Senior
Notes be issued in the name(s) of the undersigned or, in the case of book-entry
transfer of Old Senior Notes, that such Exchange Senior Notes be credited to the
account indicated above maintained at DTC. If applicable, substitute
Certificates representing Old Senior Notes not exchanged or not accepted for
exchange will be issued to the undersigned or, in the case of a book-entry
transfer of Old Senior Notes, will be credited to the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under "Special Delivery
Instructions," the undersigned hereby directs the Exchange Agent to deliver
Exchange Senior Notes to the undersigned at the address shown below the
undersigned's signature.
By tendering Old Senior Notes and executing this Letter of Transmittal,
the undersigned hereby represents and agrees that (i) the undersigned is not an
"affiliate" (as defined in Rule 405 under the Securities Act) of the Company or
any of its subsidiaries, or if it is an affiliate, it will comply with the
registration and prospectus requirements of the Securities Act to the extent
applicable, (ii) any Exchange Senior Notes to be received by the undersigned are
being acquired in the ordinary course of its business, (iii) the undersigned has
no arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of Exchange Senior Notes to be
received in the Exchange Offer, and (iv) if the undersigned is not a
broker-dealer, the undersigned is not engaged in, and does not intend to engage
in, a distribution (within the meaning of the Securities Act) of such Exchange
Senior Notes. By tendering Old Senior Notes pursuant to the Exchange Offer and
executing this Letter of Transmittal, a holder of Old Senior Notes which is a
broker-dealer represents and agrees, consistent with certain interpretive
letters issued by the staff of the Division of Corporation Finance of the
Securities and Exchange Commission to third parties, that (a) such Old Senior
Notes held by the broker-dealer are held only as a nominee or (b) such Old
Senior Notes were acquired by such broker-dealer for its own account as a result
of market-making activities or other trading activities and it will deliver the
Prospectus (as amended or supplemented from time to time) meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Senior Notes (provided that, by so acknowledging and by delivering a
prospectus, such broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act).
The Company has agreed that, subject to the provisions of the
Registration Agreement, the Prospectus, as it may be amended or supplemented
from time to time, may be used by a Participating Broker-Dealer (as defined
below) in connection with resales of Exchange Senior Notes received in exchange
for Old Senior Notes, where such Old Senior Notes were acquired by such
Participating Broker-Dealer for its own account as a result of market-making
activities or other trading activities, for a period ending 180 days after the
Expiration Date (subject to extension under certain limited circumstances
described in the Prospectus) or, if earlier, when all such Exchange Senior Notes
have been disposed of by such Participating Broker-Dealer. However, a
Participating Broker-Dealer who intends to use the Prospectus in connection with
the resale of Exchange Senior Notes received in exchange for Old Senior Notes
pursuant to the Exchange Offer must notify the Company, or cause the Company to
be notified, on or prior to the Expiration Date, that it is a Participating
Broker-Dealer. Such notice may be given in the space provided herein for that
purpose or may be delivered to the Exchange Agent at one of the addresses set
forth in the Prospectus under "The Exchange Offer -- Exchange Agent." In that
regard, each broker-dealer who acquired Old Senior Notes for its own account as
a result of market-making or other trading activities (a "Participating
Broker-Dealer"), by tendering such Old Senior 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 Agreement, such Participating Broker-Dealer will suspend the sale
of Exchange Senior Notes pursuant to the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to the
Participating Broker-Dealer or the Company has given notice that the sale of the
Exchange Senior Notes may be resumed, as the case may be. If the Company gives
such notice to suspend the sale of the Exchange Senior Notes, it shall extend
the 180-day period referred to above during which Participating Broker-Dealers
are entitled to use the Prospectus in connection with the resale of Exchange
Senior Notes by the number of days in the period from and including the date of
the giving of such notice to and including the date when the Company shall have
made available to Participating Broker-Dealers copies of the supplemented or
amended Prospectus necessary to resume resales of the Exchange Senior Notes or
to and including the date on which the Company has given notice that the use of
the applicable Prospectus may be resumed, as the case may be.
Holders of Old Senior Notes whose Old Senior Notes are accepted for
exchange will not receive accrued interest on such Old Senior Notes for any
period from and after the last Interest Payment Date to which interest has been
paid or duly provided for on such Old Senior Notes prior to the original issue
date of the Exchange Senior Notes or, if no such interest has been paid or duly
provided for, will not receive any accrued interest on such Old Senior Notes,
and the undersigned waives the right to receive any interest on
4
<PAGE> 5
such Old Senior Notes accrued from and after such Interest Payment Date.
All authority herein conferred or agreed to be conferred in this Letter
of Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
5
<PAGE> 6
--------------------------------------------------------------------------------
IMPORTANT
SIGN IMMEDIATELY BELOW
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X
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(Signature(s) of Owner(s))
(This Letter of Transmittal must be signed immediately above by the registered
holder(s) as name(s) appear(s) on the certificate(s) for the Old Senior Notes
hereby tendered or on a security position listing, or by any person(s)
authorized to become the registered holder(s) by endorsements and documents
transmitted herewith (including such opinions of counsel, certifications and
other information as may be required by the Company or the Trustee for the Old
Senior Notes to comply with the restrictions on transfer applicable to the Old
Senior Notes)). If signed by an attorney, trustee, executor, administrator,
guardian, officer, custodian or other person acting in a representative capacity
and the shares submitted herewith are registered in the name of such signatory
expressly in such capacity (e.g., John Doe, as Trustee), such capacity should be
indicated. (Please read Instruction 5 on page 8 before you sign.)
Dated: , 2000
----------------------------
Name(s):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print)
Capacity, if applicable:
--------------------------------------------------------------------------------
Area Code and Telephone Number:
--------------------------------------------------------------------------------
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MEDALLION SIGNATURE GUARANTEE
(Required only if either "Special Issuance Instructions" or "Special
Delivery Instructions" are provided below. See Instruction 1)
Medallion
Signature(s)
Guaranteed:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Name of Firm Providing Signature
Guarantee - Please Print)
--------------------------------------------------------------------------------
(Authorized Signature)
Dated: , 2000
----------------------------
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SPECIAL ISSUANCE
INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if the Exchange Senior Notes are to be issued in the name
of someone other than the undersigned.
Issue the Exchange Senior Notes to:
Name
--------------------------------------------------------------------------------
(Please Print)
Address
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------------
(Tax Identification or Social Security No.)
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SPECIAL DELIVERY
INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if the Exchange Senior Notes are to be sent to someone
other than the undersigned or to the undersigned at an address other than that
shown above.
Mail the Exchange Senior Notes to:
Name:
--------------------------------------------------------------------------------
(Please Print)
Address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------------
(Tax Identification or Social Security No.)
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6
<PAGE> 7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of Letter of Transmittal And Certificates; Guaranteed
Delivery Procedures. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth in "The Exchange
Offer -- Procedures for Tendering" in the Prospectus. Certificates, or timely
confirmation of a book-entry transfer of such Old Senior Notes into the Exchange
Agent's account at DTC, as well as this Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, and any other documents required by this Letter of Transmittal, must
be received by the Exchange Agent at one of its addresses set forth herein on or
prior to the Expiration Date. Old Senior Notes may be tendered in whole or in
part in the principal amount of $l,000 and integral multiples thereof.
Holders who wish to tender their Old Senior Notes and (i) whose Old
Senior Notes are not immediately available or (ii) who cannot deliver their Old
Senior Notes, this Letter of Transmittal and all other required documents to the
Exchange Agent on or prior to the Expiration Date or (iii) who cannot complete
the procedures for delivery by book-entry transfer on a timely basis, may tender
their Old Senior Notes by properly completing and duly executing a Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in
"The Exchange Offer -- Procedures for Tendering" in the Prospectus. Pursuant to
such procedures: (i) such tender must be made by or through an Eligible
Institution (as defined below); (ii) a properly completed and duly executed
Notice of Guaranteed Delivery, substantially in the form made available by the
Company, must be received by the Exchange Agent on or prior to the Expiration
Date; and (iii) the Certificates (or a book-entry confirmation (as defined in
the Prospectus)) representing all tendered Old Senior Notes, in proper form for
transfer, together with a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees and any
other documents required by this Letter of Transmittal, must be received by the
Exchange Agent within three (3) New York Stock Exchange trading days after the
date of execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer -- Procedures for Tendering" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice of
Guaranteed Delivery. For Old Senior Notes to be properly tendered pursuant to
the guaranteed delivery procedure, the Exchange Agent must receive a Notice of
Guaranteed Delivery on or prior to the Expiration Date. As used herein and in
the Prospectus, "Eligible Institution" means a firm or other entity identified
in Rule l7Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank; (ii) a broker, dealer,
municipal securities broker or dealer or government securities broker or dealer;
(iii) a credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered holder
(which term, for purposes of this document, shall include any
participant in DTC whose name appears on a security position
listing as the owner of the Old Senior Notes) of Old Senior
Notes tendered herewith, unless such holder(s) has completed
either the box entitled "Special Issuance Instructions" or the
box entitled "Special Delivery Instructions" above, or
(ii) such Old Senior Notes are tendered for the account of a firm
that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned
"Description of Old Senior Notes Tendered" is inadequate, the Certificate
number(s) and/or the principal amount of Old Senior Notes and any other required
information should be listed on a separate signed schedule which is attached to
this Letter of Transmittal.
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<PAGE> 8
4. Partial Tenders and Withdrawal Rights. Tenders of Old Senior Notes
will be accepted only in the principal amount of $1,000 and integral multiples
thereof. If less than all the Old Senior Notes evidenced by any Certificate
submitted are to be tendered, fill in the principal amount of Old Senior Notes
which are to be tendered in the box entitled "Principal Amount of Old Senior
Notes Tendered." In such case, new Certificate(s) for the remainder of the Old
Senior Notes that were evidenced by your old Certificate(s) will only be sent to
the holder of the Old Senior Notes, promptly after the Expiration Date. All Old
Senior Notes represented by Certificates delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Senior Notes may be
withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written, telegraphic,
telex or facsimile transmission of such notice of withdrawal must be timely
received by the Exchange Agent at one of its addresses set forth above or in the
Prospectus on or prior to the Expiration Date. Any such notice of withdrawal
must specify the name of the person who tendered the Old Senior Notes to be
withdrawn, the aggregate principal amount of Old Senior Notes to be withdrawn,
and (if Certificates for Old Senior Notes have been tendered) the name of the
registered holder of the Old Senior Notes as set forth on the Certificate for
the Old Senior Notes, if different from that of the person who tendered such Old
Senior Notes. If Certificates for the Old Senior Notes have been delivered or
otherwise identified to the Exchange Agent, then prior to the physical release
of such Certificates for the Old Senior Notes, the tendering holder must submit
the serial numbers shown on the particular Certificates for the Old Senior Notes
to be withdrawn and the signature on the notice of withdrawal must be guaranteed
by an Eligible Institution, except in the case of Old Senior Notes tendered for
the account of an Eligible Institution. If Old Senior Notes have been tendered
pursuant to the procedures for book-entry transfer set forth in "The Exchange
Offer -- Procedures for Tendering," the notice of withdrawal must specify the
name and number of the account at DTC to be credited with the withdrawal of Old
Senior Notes, in which case a notice of withdrawal will be effective if
delivered to the Exchange Agent by written, telegraphic, telex or facsimile
transmission. Withdrawals of tenders of Old Senior Notes may not be rescinded.
Old Senior Notes properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent time on
or prior to the Expiration Date by following any of the procedures described in
the Prospectus under "The Exchange Offer -- Procedures for Tendering."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
Neither the Company, any affiliates or assigns of the Company, the Exchange
Agent nor any other person shall be under any duty to give any notification of
any irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any Old Senior Notes which have been
tendered but which are withdrawn will be returned to the holder thereof without
cost to such holder promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments and Endorsements.
If this Letter of Transmittal is signed by the registered holder(s) of the Old
Senior Notes tendered hereby, the signature(s) must correspond exactly with the
name(s) as written on the face of the Certificate(s) without alteration,
enlargement or any change whatsoever.
If any of the Old Senior Notes tendered hereby are owned of record by
two or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Senior Notes are registered in different name(s) on
several Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Company, in its sole discretion, of such persons'
authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of
the Old Senior Notes listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless Exchange Senior
Notes are to be issued in the name of a person other than the registered
holder(s). Signature(s) on such Certificate(s) or bond power(s) must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Senior Notes listed, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
or names of the registered owner(s) appear(s) on the Certificates, and also must
be accompanied by such opinions of counsel, certifications and other information
as the Company or the Trustee for the Old Senior Notes may require in accordance
with the restrictions on transfer applicable to the Old Senior Notes. Signatures
on such Certificates or bond powers must be guaranteed by an Eligible
Institution.
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<PAGE> 9
6. Special Issuance and Delivery Instructions. If Exchange Senior Notes
are to be issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange Senior Notes are to be sent to someone other than
the signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Senior Notes not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. Irregularities. The Company will determine, in its sole discretion,
all questions as to the form of documents, validity, eligibility (including time
of receipt) and acceptance for exchange of any tender of Old Senior Notes, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for, may, in the view of
counsel to the Company, be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer -- Conditions" or
any conditions or irregularity in any tender of Old Senior Notes of any
particular holder whether or not similar conditions or irregularities are waived
in the case of other holders. The Company's interpretation of the terms and
conditions of the Exchange Offer (including this Letter of Transmittal and the
instructions hereto) will be final and binding. No tender of Old Senior Notes
will be deemed to have been validly made until all irregularities with respect
to such tender have been cured or waived. Neither the Company, any affiliates or
assigns of the Company, the Exchange Agent, nor any other person shall be under
any duty to give notification of any irregularities in tenders or incur any
liability for failure to give such notification.
8. Questions, Requests for Assistance and Additional Copies. Questions
and requests for assistance may be directed to the Exchange Agent at one of its
addresses and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. 31% Backup Withholding; Substitute Form W-9. Under U.S. income tax
law, a holder whose tendered Old Senior Notes are accepted for exchange is
required to provide the Exchange Agent with such holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. If the Exchange
Agent is not provided with the correct TIN, the Internal Revenue Service (the
"IRS") may subject the holder or other payee to a $50 penalty. In addition,
payments to such holders or other payees with respect to Old Senior Notes
exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-9.
If the holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60 day period
will be remitted to the holder and no further amounts shall be retained or
withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent with its TIN within such 60 day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Senior Notes or of the last transferee appearing on the transfers
attached to, or endorsed on, the Old Senior Notes. If the Old Senior Notes are
registered in more than one name or are not in the name of the actual owner,
consult the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional guidance on which number to
report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
holders are exempt from backup withholding.
Backup withholding is not an additional U.S. income tax. Rather, the
U.S. 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.
9
<PAGE> 10
10. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Old Senior Notes have been lost, destroyed or stolen, the holder
should promptly notify the Exchange Agent. The holder will then be instructed as
to the steps that must be taken in order to replace the Certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen Certificate(s) have been
followed.
11. Security Transfer Taxes. Holders who tender their Old Senior Notes
for exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange Senior Notes are to be delivered to, or are to
be issued in the name of, any person other than the registered holder of the Old
Senior Notes tendered, or if a transfer tax is imposed for any reason other than
the exchange of Old Senior Notes in connection with the Exchange Offer, then the
amount of any such transfer tax (whether imposed on the registered holder or any
other persons) will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with the Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL
OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO
THE EXPIRATION DATE.
10
<PAGE> 11
<TABLE>
<S> <C> <C>
-----------------------------------------------------------------------------------------------------------------------------------
EXCHANGE AGENT'S NAME: FIRST UNION NATIONAL BANK
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN IN THE BOX AT
RIGHT AND CERTIFY BY SIGNING AND DATING BELOW
--------------------------------
Form W-9 Social Security Number
(See Instruction 9)
OR
Please fill in your ---------------------------
name and address below Employer Identification Number
-------------------------------------------------------------------------------------------
Part 2 -- Certification -- Under Penalties of Perjury, Part 3 --
I certify that:
---------------------------------
Name
Awaiting TIN [ ]
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am
waiting for a number to be issued to me) and
(if joint names, circle the
name of the person or
entity whose TIN is
entered in Part 1)
-------------------------------------------------------------------------------------------
(2) I am not subject to backup withholding Part 4 --
because (a) I am exempt from backup
withholding or (b) I have not been notified Exempt [ ]
by the Internal Revenue Service ("IRS") that
I am subject to backup withholding as a
result of failure to report all interest or
dividends, or (c) the IRS has notified me
--------------------------------- that I am no longer subject to backup withholding.
Address (number and street)
---------------------------------
City, State and Zip Code
-------------------------------------------------------------------------------------------
Department of the Treasury
Internal Revenue Service
Certification instructions - You must cross out Item (2) in Part 2
above if you have been notified by the IRS that you are subject to
backup withholding because of under-reporting interest or dividends on
your tax return. However, if you have been notified by the IRS that you
are no longer subject to backup withholding, do not cross out Item (2).
If you are exempt from backup withholding, check the box in Part 4
above.
Payer's Request for Taxpayer
Identification Number (TIN)
SIGNATURE DATE , 2000
--------------------------- --------------------
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE MERGER. 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 THE SUBSTITUTE FORM W-9
--------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
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.
, 2000
------------------------------------------------------------------------
Signature Date
--------------------------------------------------------------------------------
11
