EX-99.1 8 file007.txt CONSENT AND LETTER OF TRANSMITTAL FORM OF CONSENT AND LETTER OF TRANSMITTAL ATLANTIC COAST ENTERTAINMENT HOLDINGS, INC. CONSENT SOLICITATION AND OFFER TO EXCHANGE $110,000,000 3% Notes due 2008 of Atlantic Coast Entertainment Holdings, Inc. for any and all outstanding 11% Notes due 2005 of GB Property Funding Corp., which have been registered under the Securities Act of 1933 ------------------------------------------------------------------------------- THE CONSENT SOLICITATION AND EXCHANGE OFFER AND WITHDRAWAL RIGHTS EXPIRES AT 5:00 P.M., NEW YORK CITY TIME, ON _______________ ("EXPIRATION DATE"), UNLESS EXTENDED ------------------------------------------------------------------------------- THE EXCHANGE AGENT FOR THE CONSENT SOLICITATION AND EXCHANGE OFFER IS: [---------------] By Registered or Certified Mail or By Hand or Overnight Delivery: [Name] [Address] [Address] Attention: _______________ By Facsimile (for Eligible Institution Only): (---) ---------- Attention: _______________ Confirm by Telephone: (----) --------------- DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS ACCOMPANYING THIS CONSENT AND LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS CONSENT AND LETTER OF TRANSMITTAL IS COMPLETED. Questions and requests for assistance or for additional copies of the solicitation statement and prospectus or this Consent and Letter of Transmittal may be directed to the information agent at: [name] [address] [address] [telephone number] The undersigned acknowledges that it has received this Consent and Letter of Transmittal and the solicitation statement and prospectus dated ________, 2003 of Atlantic Coast Entertainment Holdings, Inc., a Delaware corporation ("Atlantic"), relating to its offer to exchange $1,000 principal amount of 11% Notes due 2005 (the "Existing Notes") of GB Property Funding Corp., a Delaware corporation ("Funding"), for $1,000 principal amount of Atlantic's newly issued 3% Notes due 2008 (the "New Notes") plus $100 in cash, as well as cash in respect of all accrued but unpaid interest on the Existing Notes through the date the exchange offer is completed, that are properly tendered and accepted for exchange on the terms and conditions set forth in the solicitation statement and prospectus and this Consent and Letter of Transmittal. Concurrently with the exchange offer, Atlantic is also soliciting consents from holders of the Existing Notes, to certain amendments to the indenture governing the Existing Notes (the "Existing Indenture") to eliminate certain restrictive covenants and release the collateral securing the Existing Notes, as described in the solicitation statement and prospectus. This Consent and Letter of Transmittal and the solicitation statement and prospectus together constitute Atlantic's offer to exchange the New Notes for the Existing Notes, as the same may be amended or supplemented from time to time. If a holder tenders its Existing Notes in the exchange offer, it must deliver a corresponding consent to the elimination of certain restrictive covenants of the Existing Indenture, the release of the liens on the collateral securing the Existing Notes pursuant to the Existing Indenture under which the Existing Notes were issued and the terms of the new indenture governing the New Notes (the "New Indenture"). A holder's completion, execution and delivery of this Consent and Letter of Transmittal will be deemed to constitute its consent to the elimination of certain restrictive covenants of the Existing Indenture, the release of the liens on the collateral securing the Existing Notes pursuant to the Existing Indenture under which the Existing Notes were issued and the terms of the New Indenture, unless properly revoked in the manner and during the periods described herein. Atlantic will issue New Notes for Existing Notes that it has accepted for exchange under the exchange offer only after the exchange agent timely receives: (1) Existing Notes or a timely book-entry confirmation that Existing Notes have been transferred in the exchange agent's account at The Depository Trust Company ("DTC"); and (2) this Consent and Letter of Transmittal, properly completed and duly executed, and all other required documents or a properly transmitted agent's message. "Agent's message" means a message, transmitted by DTC and received by the exchange agent and forming part of a book-entry confirmation, which states that DTC has received an express acknowledgment from a participant tendering Existing Notes that are the subject of the book-entry confirmation that the participant has received and agrees to be bound by the terms of the Consent and Letter of Transmittal, and that Atlantic may enforce that agreement against the participant. Delivery of the agent's message will satisfy the terms of the consent solicitation and exchange offer as to execution and delivery of a Consent and Letter of Transmittal by the participant identified in the agent's message. See Instruction 1. This Consent and Letter of Transmittal is to be completed by a holder either (i) if the Existing Notes are to be forwarded herewith or (ii) if a tender of the Existing Notes, if available, is to be made by book-entry transfer to the account maintained by the exchange agent at DTC pursuant to the procedures set forth in "THE CONSENT SOLICITATION AND EXCHANGE OFFER -- Procedures for Tendering and Consenting" section of the solicitation statement and prospectus. Holders whose Existing Notes are not immediately available, or who are unable to deliver their Existing Notes or confirmation of the book-entry tender of their Existing Notes into the exchange agent's account at DTC and all other documents required by this Consent and Letter of Transmittal to the exchange agent on or prior to the Expiration Date, must tender their Existing Notes according to the guaranteed delivery procedures set forth in the solicitation statement and prospectus under the caption "THE CONSENT SOLICITATION AND EXCHANGE OFFER -- Guaranteed Delivery." See 2 Instruction 2. Holders of Existing Notes tendered via the guaranteed delivery procedure will still be required to properly complete and execute this Consent and Letter of Transmittal. Any beneficial owner whose Existing Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact the registered holder of the Existing Notes promptly and instruct such registered holder of the Existing Notes to tender on behalf of the beneficial owner. If such beneficial owner wishes to tender on its own behalf, such beneficial owner must, before completing and executing this Consent and Letter of Transmittal and delivering its Existing Notes, either make appropriate arrangements to register ownership of the Existing Notes in such beneficial owner's name or obtain a properly completed bond power from the registered holder of the Existing Notes. The transfer of record ownership may take considerable time. HOLDERS WHO DESIRE TO TENDER THEIR EXISTING NOTES IN THE EXCHANGE OFFER ARE REQUIRED TO CONSENT TO THE ELIMINATION OF CERTAIN RESTRICTIVE COVENANTS OF THE EXISTING INDENTURE, THE RELEASE OF THE LIENS ON THE COLLATERAL SECURING THE EXISTING NOTES PURSUANT TO THE EXISTING INDENTURE UNDER WHICH THE EXISTING NOTES WERE ISSUED AND THE TERMS OF THE NEW INDENTURE. THE COMPLETION, EXECUTION AND DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL CONSTITUTES A CONSENT TO THE ELIMINATION OF CERTAIN RESTRICTIVE COVENANTS OF THE EXISTING INDENTURE, THE RELEASE OF THE LIENS ON THE COLLATERAL SECURING THE EXISTING NOTES PURSUANT TO THE EXISTING INDENTURE UNDER WHICH THE EXISTING NOTES WERE ISSUED AND THE TERMS OF THE NEW INDENTURE. HOLDERS MAY NOT DELIVER CONSENTS WITHOUT TENDERING EXISTING NOTES. DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT. 3 List below the Existing Notes to which this Consent and Letter of Transmittal relates. If the space provided below is inadequate, certificate or registration numbers and principal amounts should be listed on a separately signed schedule affixed hereto.
------------------------------------------------------------------------------------------------------------------------ DESCRIPTION OF 11% NOTES DUE 2005 TENDERED HEREBY ------------------------------------------------------------------------------------------------------------------------ AGGREGATE PRINCIPAL NAME(S) AND ADDRESS(ES) OF REGISTERED EXISTING AMOUNT NOTE HOLDER(S) CERTIFICATE OR REPRESENTED REGISTRATION BY PRINCIPAL AMOUNT (PLEASE FILL IN) NUMBER(S)* EXISTING NOTES* TENDERED** ------------------------------------------------------------------------------------------------------------------------ ----------------------------------------------------------------------- ----------------------------------------------------------------------- ----------------------------------------------------------------------- ----------------------------------------------------------------------- TOTAL ------------------------------------------------------------------------------------------------------------------------
* Need not be completed by holders tendering by book-entry transfer. ** Unless otherwise indicated, the holder will be deemed to have tendered the total principal amount of the Existing Note represented by the Existing Note indicated. All tenders must be in integral multiples of $1,000. -------------------------------------------------------------------------------- |_| CHECK HERE IF THE TENDERED EXISTING NOTES ARE ENCLOSED HEREWITH. |_| CHECK HERE IF TENDERED EXISTING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING: Name of Tendering Institution:__________________________________________________ Account Number:_________________________________________________________________ Transaction Code Number: _______________________________________________________ By crediting the Existing Notes to the exchange agent's account at DTC using the Automated Tender Offer Program ("ATOP") and by complying with applicable ATOP procedures with respect to the exchange offer, including transmitting to the exchange agent an agent's message in which the holder of the Existing Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Consent and Letter of Transmittal, the participant at DTC confirms on behalf of itself and the beneficial owners of such Existing Notes all provisions of this Consent and Letter of Transmittal (including all representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Consent and Letter of Transmittal to the exchange agent. Delivery of the agent's message will satisfy the terms of the consent solicitation and exchange offer as to execution and delivery of a Consent and Letter of Transmittal by the participant identified in the agent's message. 4 [_] CHECK HERE IF TENDERED EXISTING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING: Name of Registered Holder(s): __________________________________________________ Name of Eligible Institution that Guaranteed Delivery: _________________________ If delivery by book-entry transfer - Account Number: ________________________________________________________________ Transaction Code Number: _______________________________________________________ 5 NOTE: SIGNATURE MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: Upon the terms and subject to the conditions of the consent solicitation and exchange offer, the undersigned hereby (1) tenders to Atlantic the principal amount of the Existing Notes indicated above and (2) consents to the elimination of certain restrictive covenants of the Existing Indenture, the release of the liens on the collateral securing the Existing Notes pursuant to the Existing Indenture under which the Existing Notes were issued and the terms of the New Indenture, as described in the solicitation statement and prospectus. Subject to, and effective upon, the acceptance for exchange of such Existing Notes tendered hereby, the undersigned hereby exchanges, assigns and transfers to, or upon the order of, Atlantic all right, title and interest in and to such Existing Notes as are being tendered hereby. To amend the Existing Indenture, Atlantic must receive consent to exchange from the registered holders of a majority in aggregate principal amount of all outstanding debt securities issued under the Existing Indenture, voting as a single class (the "Required Consents"). The undersigned understands that the proposed amendments to the Existing Indenture will not become operative unless and until Atlantic accepts for exchange or purchase debt securities issued under the Existing Indenture that represent at least the Required Consents. The undersigned hereby irrevocably constitutes and appoints the exchange agent the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that said exchange agent acts as our agent in connection with the consent solicitation and exchange offer) with full power of substitution, among other things, to cause the Existing Notes to be assigned, transferred and exchanged. Such appointment is effective when and only to the extent that Atlantic accepts for exchange the Existing Notes that you have tendered with the exchange agent. The undersigned represents and warrants that it has full power and authority to tender, exchange, assign and transfer the Existing Notes and to acquire the New Notes issuable upon the exchange of such tendered Existing Notes, and that when the same are accepted for exchange, Atlantic will acquire good and unencumbered title to the tendered Existing Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned agrees and acknowledges that, by the execution and delivery of this Consent and Letter of Transmittal, the undersigned grants written consent to the elimination of certain restrictive covenants of the Existing Indenture, the release of the liens on the collateral securing the Existing Notes pursuant to the Existing Indenture under which the Existing Notes were issued and the terms of the New Indenture, as described in the solicitation statement and prospectus and hereby also consents to the execution of the New Indenture and the Second Amended and Restated Indenture which implements the elimination of certain restrictive covenants of the Existing Indenture and the release of the liens on the collateral securing the Existing Notes. The forms of the Second Amended and Restated Indenture and the New Indenture are attached as exhibits to the solicitation statement and prospectus. The undersigned understands that the consent provided hereby shall remain in full force and effect unless and until such consent is revoked in accordance with the procedures set forth in the solicitation statement and prospectus and this Consent and Letter of Transmittal. The undersigned understands that after the Expiration Date, no consents may be revoked. Subject to, and effective upon, the acceptance for exchange of the Existing Notes for the New Notes, the undersigned unconditionally waives and releases, and forever discharges and acquits, to the extent permitted by law, Atlantic, Funding, their affiliates, and any of their respective directors, officers, executives, employees, attorneys, advisors or representatives (the "Released Persons"), from all, and all manner of, actions, suits, debts, claims, duties, payment and performance of all obligations, liabilities and indebtedness of every kind, direct or indirect, determined and undetermined, at law or in equity, whether or not asserted or raised and existing or alleged to exist or to have existed, at any time, which such holder of the Existing Notes ever had or has or may have at this time against any released person, arising out of, relating to, or incurred in connection with, the Existing Notes, the Existing Indenture governing the Existing Notes, the consent solicitation and exchange offer, or any transaction entered into hereunder or thereunder or any action taken or omitted to be taken by the released persons hereunder or thereunder. The waiver and release are part of the consideration for exchange of the Existing Notes. The waiver may not be effective to waive liabilities under the federal securities laws. 6 The undersigned understands that prior to the expiration date, tenders of Existing Notes may be withdrawn and, prior to the Expiration Date, consents may be revoked, by written notice of withdrawal received by the exchange agent at any time prior to such date. A valid withdrawal of tendered Existing Notes prior to the Expiration Date will constitute the concurrent valid revocation of such holder's related consent to the elimination of certain restrictive covenants of the Existing Indenture, the release of the liens on the collateral securing the Existing Notes pursuant to the Existing Indenture under which the Existing Notes were issued and the terms of the New Indenture. In order for a holder to revoke a consent, such holder must withdraw the related Existing Notes. In the event of a termination of the consent solicitation and exchange offer, any consent will automatically be deemed revoked and the Existing Notes pursuant to the exchange offer will be returned to the tendering holders promptly or, in the case of Existing Notes tendered by book-entry transfer, such Existing Notes will be credited to the account maintained at the DTC from which such Existing Notes were delivered. The undersigned understands that we shall not be required to accept any tender of Existing Notes and we may terminate or amend the exchange offer and consent solicitation at any time prior to the completion of the exchange offer. The undersigned represents that (1) the New Notes acquired pursuant to the exchange offer are being obtained in the ordinary course of business of the person receiving such New Notes, whether or not such person is the undersigned, and (2) neither the undersigned nor any such other person is engaged or intends to engage in, or has an arrangement or understanding with any person to participate in, the distribution of such New Notes. If the undersigned or the person receiving the New Notes covered hereby is a broker-dealer that is receiving the New Notes for its own account in exchange for Existing Notes that were acquired as a result of market-making activities or other trading activities, the undersigned acknowledges that it or such other person will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act of 1933 (the "Securities Act"). The undersigned and any such other person acknowledges that, if they are participating in the exchange offer for the purposes of distributing the New Notes, (i) they must comply with the registration and prospectus delivery requirements of the Securities Act in connection with the resale transaction and (ii) failure to comply with such requirements in such instance could result in the undersigned or any such other person incurring liability under the Securities Act for which such persons are not indemnified by Atlantic. If the undersigned or the person receiving the New Notes covered by this Consent and Letter of Transmittal is an affiliate (as defined under Rule 405 of the Securities Act) of Atlantic, the undersigned represents that the undersigned understands and acknowledges that such New Notes may not be offered for resale, resold or otherwise transferred by the undersigned or such other person without registration under the Securities Act or an exemption therefrom. Subject to the foregoing representations and based on interpretations of the Securities and Exchange Commission ("SEC") staff, New Notes issued pursuant to the consent solicitation and exchange offer may be offered for resale, resold or otherwise transferred by their holders without compliance with the registration and prospectus delivery requirements of the Securities Act. Any holder who tenders in the exchange offer for the purpose of participating in a distribution of the New Notes: (1) cannot rely on the applicable interpretations of the SEC; and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction. The undersigned also warrants that it will, upon request, execute and deliver any additional documents deemed by the exchange agent or Atlantic to be necessary or desirable to complete the exchange, assignment and transfer of tendered Existing Notes or transfer ownership of such Existing Notes on the account books maintained by a book-entry transfer facility. All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, 7 personal representatives, successors and assigns of the undersigned. Tendered Existing Notes may be withdrawn at any time prior to the Expiration Date. Unless otherwise indicated herein in the box entitled "Special Issuance Instructions" below, please issue the Existing Notes, and if applicable, substitute certificates representing Existing Notes not exchanged, and a check in the amount of the cash payment to which the undersigned is entitled plus all accrued but unpaid interest on the Existing Notes through the date the exchange offer is completed in the name of the undersigned or, in the case of book-entry delivery of the Existing Notes, please credit the account indicated above maintained at DTC. Similarly, unless otherwise indicated under the box entitled "Special Delivery Instructions" below, please send the New Notes, and if applicable, substitute certificates representing Existing Notes for any Existing Notes not exchanged, and a check in the amount of the cash payment to which the undersigned is entitled plus all accrued but unpaid interest on the Existing Notes through the date the exchange offer is completed to the undersigned at the address shown above in the table entitled "Description of 11% Notes due 2005 Tendered Hereby." [To be determined if necessary] STATE INVESTOR SUITABILITY FOR RESIDENTS OF: ARIZONA ARKANSAS GEORGIA IDAHO ILLINOIS INDIANA KENTUCKY MINNESOTA NEW JERSEY NORTH DAKOTA OREGON PENNSYLVANIA TENNESSEE TEXAS UTAH WISCONSIN If the undersigned is a resident of any of the above states and the undersigned is tendering any Existing Notes, we have been instructed by Atlantic not to accept the undersigned's instruction unless either (1) the undersigned's state securities regulatory authority has qualified the offer and sale of the New Notes in the undersigned's state; or (2) the undersigned has checked one of the following boxes: |_| The undersigned is a "Qualified Institutional Buyer", as defined in Rule 144A under the Securities Act of 1933, as amended. |_| The undersigned is a bank, savings institution, trust company, insurance company, "investment company" (as defined under the Investment Company Act of 1940, as amended), pension or profit-sharing trust, financial institution or institutional buyer (in each case, as defined in the securities laws of the undersigned's state of residence). FOR RESIDENTS OF CALIFORNIA: If the undersigned is a resident of CALIFORNIA and the undersigned is tendering any Existing Notes, we have been instructed by Atlantic not to accept the undersigned's instruction unless either (1) the California Department of Corporations has qualified the sale of the New Notes in California; or (2) the undersigned has checked one of the following boxes: |_| The undersigned is a bank, savings and loan association, trust company, insurance company, investment company registered under the Investment Company Act of 1940, pension or profit-sharing trust (other than a pension or profit-sharing trust of the issuer, a self-employed individual retirement plan, or individual retirement account), in each case, within the meaning of Section 25102(i) of the California Corporate Securities Law of 1968. |_| The undersigned is an organization described in Section 501(c)(3) of the Internal Revenue Code, as amended on December 29, 1981, which has total assets (including endowment, annuity and life income funds) of not less than $5,000,000 according to its most recent audited financial statements, as described in Rule 260.102.10(a) of the Blue Sky Regulations promulgated under the California Corporate Securities Law of 1968. 8 |_| The undersigned is a corporation which has a net worth on a consolidated basis according to its most recent audited financial statements of not less than $14,000,000, as described in Rule 260.102.10(b) of the Blue Sky Regulations promulgated under the California Corporate Securities Law of 1968. FOR RESIDENTS OF OHIO: If the undersigned is a resident of OHIO and you are tendering any Existing Notes, we have been instructed by Atlantic not to accept the undersigned's instruction unless either (1) the Ohio Commissioner of Securities has qualified the sale of the New Notes in Ohio; or (2) the undersigned has checked one of the following boxes: |_| The undersigned is a "Qualified Institutional Buyer", as defined in Rule 144A under the Securities Act of 1933, as amended. |_| The undersigned is a corporation, bank, insurance company, any corporation, bank, insurance company, pension fund or profit fund, employees' profit-sharing trust, any association engaged (as a substantial part of its business or operations) in purchasing or holding securities or any trust in respect of which a bank is trustee or co-trustee (in each case, as defined in Ohio Securities Act). FOR RESIDENTS OF MICHIGAN: If the undersigned is a resident of MICHIGAN and the undersigned is tendering any Existing Notes, we have been instructed by Atlantic not to accept the undersigned's instruction unless either (1) the Michigan Commissioner of Securities has qualified the sale of the New Notes in Michigan; or (2) the undersigned has checked the following box: |_| The undersigned is a bank, savings institution, trust company, insurance company, investment company (as defined in the Investment Company Act of 1940, as amended) the federal national mortgage association, the federal home loan mortgage corporation, the government national mortgage association, a pension or profit-sharing trust the assets of which are managed by an institutional manager, the treasurer of the State of Michigan, an other financial institution, a broker-dealer (whether the purchaser is acting for itself or in some fiduciary capacity), or a lender approved by the federal housing administration and who has satisfied any additional requirements established by the administrator by rule or order. THE FOLLOWING REPRESENTATIONS SHALL BE DEEMED TO BE MADE BY DTC PARTICIPANTS TENDERING AS INSTRUCTED BY BENEFICIAL HOLDERS OF EXISTING NOTES: REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN THE FOLLOWING STATES: ARIZONA ARKANSAS GEORGIA IDAHO ILLINOIS INDIANA KENTUCKY MINNESOTA NEW JERSEY NORTH DAKOTA OREGON PENNSYLVANIA TENNESSEE TEXAS UTAH WISCONSIN If the undersigned is tendering any Existing Notes on behalf of beneficial holders who are residents of any of the above states, the undersigned hereby represents and warrants with respect to each beneficial holder on whose behalf it is tendering Existing Notes that either (1) Atlantic has notified the undersigned IN WRITING that Atlantic will accept tenders of Existing Notes from all holders in such beneficial holder's state of residence; or (2) such beneficial holder has represented to the undersigned in its instruction to the undersigned that: o it is a "Qualified Institutional Buyer", as defined in Rule 144A under the Securities Act of 1933, as amended; or 9 o it is a bank, savings institution, trust company, insurance company, "investment company" (as defined under the Investment Company Act of 1940, as amended), pension or profit-sharing trust, financial institution or institutional buyer (in each case, as defined in the laws of my state of residence). REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN CALIFORNIA: If the undersigned is tendering any Existing Notes on behalf of beneficial holders who are resident in CALIFORNIA, the undersigned hereby represents and warrants with respect to each beneficial holder on whose behalf it is tendering Existing Notes that either (1) Atlantic has notified the undersigned IN WRITING that Atlantic will accept tenders of Existing Notes from all holders in California; or (2) such beneficial holder has represented to the undersigned in its instruction to the undersigned that: o it is a bank, savings and loan association, trust company, insurance company, investment company registered under the Investment Company Act of 1940, pension or profit-sharing trust (other than a pension or profit-sharing trust of the issuer, a self-employed individual retirement plan, or individual retirement account), in each case, within the meaning of Section 25102(i) of the California Corporate Securities Law of 1968; o it is an organization described in Section 501(c)(3) of the Internal Revenue Code, as amended on December 29, 1981, which has total assets (including endowment, annuity and life income funds) of not less than $5,000,000 according to its most recent audited financial statements, as described in Rule 260.102.10(a) of the Blue Sky Regulations promulgated under the California Corporate Securities Law of 1968; or o it is a corporation which has a net worth on a consolidated basis according to its most recent audited financial statements of not less than $14,000,000, as described in Rule 260.102.10(b) of the Blue Sky Regulations promulgated under the California Corporate Securities Law of 1968. |_| The undersigned has read the above representation and represents and warrants that it is true and correct. REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN OHIO: If the undersigned is tendering any Existing Notes on behalf of beneficial holders who are resident in OHIO, the undersigned hereby represents and warrants with respect to each beneficial holder on whose behalf it is tendering Existing Notes that either (1) Atlantic has notified the undersigned IN WRITING that Atlantic will accept tenders of Existing Notes from all holders in Ohio; or (2) such beneficial holder has represented to the undersigned in its instruction to the undersigned that: o It is a "Qualified Institutional Buyer", as defined in Rule 144A under the Securities Act of 1933, as amended; or o It is a corporation, bank, insurance company, any corporation, bank, insurance company, pension fund or profit fund, employees' profit-sharing trust, any association engaged (as a substantial part of its business or operations) in purchasing or holding securities or any trust in respect of which a bank is trustee or co-trustee (in each case, as defined in Ohio Securities Act). REPRESENTATION RELATING TO BENEFICIAL HOLDERS RESIDENT IN MICHIGAN: If the undersigned is tendering any Existing Notes on behalf of beneficial holders who are resident in MICHIGAN, the undersigned hereby represents and warrants with respect to each beneficial holder on whose behalf it is tendering Existing Notes that either (1) Atlantic has notified the undersigned IN WRITING that Atlantic will accept tenders of Existing Notes from all holders in Michigan; or (2) such beneficial holder has represented to the undersigned in its instruction to the undersigned that: o It is a bank, savings institution, trust company, insurance company, investment company (as defined in the Investment Company Act of 1940, as amended) the federal national mortgage association, 10 the federal home loan mortgage corporation, the government national mortgage association, a pension or profit-sharing trust the assets of which are managed by an institutional manager, the treasurer of the State of Michigan, an other financial institution, a broker-dealer (whether the purchaser is acting for itself or in some fiduciary capacity), or a lender approved by the federal housing administration and who has satisfied any additional requirements established by the administrator by rule or order. The undersigned understands that tenders of the Existing Notes pursuant to any one of the procedures described under "THE CONSENT SOLICITATION AND EXCHANGE OFFER -- Procedures for Tendering and Consenting" in the solicitation statement and prospectus and in the instructions hereto will constitute a binding agreement between the undersigned and the Atlantic in accordance with the terms and subject to the conditions of the consent solicitation and exchange offer. All authority conferred or agreed to be conferred by this Consent and Letter of Transmittal shall survive the death or incapacity of the undersigned, and every obligation of the undersigned under this Consent and Letter of Transmittal shall be binding upon the undersigned's heirs, personal representatives, successors and assigns. Tenders may be withdrawn only in accordance with the procedures set forth in the Instructions contained in this Consent and Letter of Transmittal. Unless otherwise indicated under "Special Delivery Instructions" below, the exchange agent will deliver New Notes (and, if applicable, a certificate for any Existing Notes not tendered but represented by a certificate also encompassing Existing Notes which are tendered) to the undersigned at the address set forth in Box 1. The undersigned acknowledges that the consent solicitation and exchange offer is subject to the more detailed terms set forth in the solicitation statement and prospectus and, in case of any conflict between the terms of the solicitation statement and prospectus and this Consent and Letter of Transmittal, the solicitation statement and prospectus shall prevail. THE UNDERSIGNED, BY COMPLETING THE TABLE ENTITLED "DESCRIPTION OF 11% NOTES DUE 2005 TENDERED HEREBY" ABOVE AND SIGNING THIS CONSENT AND LETTER OF TRANSMITTAL, WILL BE DEEMED TO HAVE TENDERED THE EXISTING NOTES AS SET FORTH IN SUCH TABLE ABOVE. 11 -------------------------------------------------------------------------------- PLEASE SIGN HERE (TO BE COMPLETED BY ALL TENDERING AND CONSENTING HOLDERS) By completing, executing and delivering this Consent and Letter of Transmittal, the undersigned hereby (1) consents to the approval of the proposed amendments to the Existing Indenture, as described in the solicitation statement and prospectus, dated ________________, and (2) tenders the Existing Notes listed above in the table entitled "Description of 11% Notes Due 2005 Tendered Hereby" under the column heading "Principal Amount Tendered" or, if nothing is indicated in such column, with respect to the total principal amount represented by the Existing Notes described in such table. X ______________________________________________________________________ X ______________________________________________________________________ Must be signed by registered holder(s) exactly as name(s) appear(s) on the Existing Notes or on a security position listing as the owner of the Existing Notes or by person(s) authorized to become registered holders(s) by properly completed bond powers transmitted herewith. If signature is by attorney-in-fact, trustee, executor, administrator, guardian, officer of a corporation or other person acting in a fiduciary capacity, please provide the following information (please print or type):
-------------------------------------------------- SIGNATURE GUARANTEE Name and Capacity (full title) (If Required - See Instruction 4) -------------------------------------------------- ------------------------------------------------ (Signature of Representative of Signature Guarantor) -------------------------------------------------- -------------------------------------------------- ------------------------------------------------ Address (including zip code) (Name and Title) -------------------------------------------------- ------------------------------------------------ (Area Code and Telephone Number) (Name of Plan) -------------------------------------------------- ------------------------------------------------ (Taxpayer Identification or Social (Area Code and Telephone Number) Security No.) Dated:____________________, 2003 Dated:____________________, 2003
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---------------------------------------------------------------------------------------------------------------------- PAYOR'S NAME: [NEWCO INC.] ---------------------------------------------------------------------------------------------------------------------- PART 1 - PLEASE PROVIDE YOUR TAX IDENTIFICATION Social Security Number SUBSTITUTE NUMBER ("TIN") IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW FORM W-9 ____________________________________ OR ____________________________________ Employer Identification Number ------------------------------------------------------------------------------------------ PART 2 - CERTIFICATION -- Under Penalties of Perjury, I certify that: (1) The number shown on this form is my correct TIN (or I am waiting for a number to be issued to me). (2) I am not subject to backup withholding because (a) I am exempt from backup withholding, (b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding, as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding. (3) I am a U.S. person. ------------------------------------------------------------------------------------------ PAYER'S REQUEST FOR TIN CERTIFICATION INSTRUCTIONS -- You must cross out item (2) in Part 2 PART 3-- above if you have been notified by the IRS that you are subject to backup withholding because you have failed to report all interest or dividends on your tax return. However, if after being notified by Awaiting TIN |_| the IRS that you were subject to backup withholding you received another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out item (2). Signature Date , 2003 ------------------------------ --------------- -------------------------------------------------------------------- Name (Please Print) --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE CONSENT SOLICITATION AND EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate IRS Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I have not provided a taxpayer identification number, 28% of all reportable payments made to me will be withheld until I provide a number.
, 2003 -------------------------------------------------------------- ------------------------------------------- Signature Date -------------------------------------------------------------------------------- Name (Please Print)
-------------------------------------------------------------------------------- 13 -------------------------------------------------------------------------------- SPECIAL ISSUANCE INSTRUCTIONS (SEE INSTRUCTIONS 2, 3, 4 AND 6) To be completed ONLY if certificates for Existing Notes not exchanged or accepted for exchange and/or New Notes issued pursuant to the consent solicitation and exchange offer are to be issued in the name of, or checks in the amount of the cash payment and all accrued but unpaid interest are to be issued to the order of, someone other than the person or persons whose signature(s) appear(s) on this Consent and Letter of Transmittal above, or issued to an address different from that shown in the table entitled "Description of 11% Notes due 2005 Tendered Hereby" if Existing Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at DTC other than the account indicated above. Issue: (please check one or more) |_| Existing Notes |_| New Notes |_| Cash/Check in the name of: ________________________________________________________________________________ Name and Capacity (full title) ________________________________________________________________________________ Address (including zip code) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Area Code and Telephone Number) ________________________________________________________________________________ Taxpayer Identification or Social Security No. (Complete Substitute W-9) ________________________________________________________________________________ Date -------------------------------------------------------------------------------- 14 -------------------------------------------------------------------------------- SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 2, 4 AND 5) To be completed ONLY if certificates for Existing Notes not exchanged or accepted for exchange and/or New Notes issued pursuant to the consent solicitation and exchange offer or checks in the amount of the cash payment and all accrued but unpaid interest are to be sent to someone other than the person or persons at an address other than that shown in the table entitled "Description of 11% Notes due 2005 Tendered Hereby" on this Consent and Letter of Transmittal above. Issue: (please check one or more) |_| Existing Notes |_| New Notes |_| Cash/Check in the name of: ________________________________________________________________________________ Name and Capacity (full title) ________________________________________________________________________________ Address (including zip code) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Area Code and Telephone Number) ________________________________________________________________________________ Taxpayer Identification or Social Security No. (Complete Substitute W-9) ________________________________________________________________________________ Date IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS CONSENT AND LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATES FOR THE EXISTING NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. -------------------------------------------------------------------------------- 15 INSTRUCTIONS TO CONSENT AND LETTER OF TRANSMITTAL FORMING PART OF THE TERMS AND CONDITIONS OF THE CONSENT SOLICITATION AND EXCHANGE OFFER 1. DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL AND EXISTING NOTES. If you wish to tender your Existing Notes for exchange in the consent solicitation and exchange offer, you must transmit to the exchange agent on or before 5:00 p.m., New York City time, on the Expiration Date either: (a) an original or a facsimile of a properly completed and duly executed copy of this Consent and Letter of Transmittal, together with your Existing Notes and any other documentation required by this Consent and Letter of Transmittal, at the address provided on the cover page of this Consent and Letter of Transmittal, or (b) if the Existing Notes you own are held of record by DTC in book-entry form and you are making delivery, by book-entry transfer, a computer-generated message transmitted by means of DTC's ATOP program in which you acknowledge and agree to be bound by the terms of this Consent and Letter of Transmittal and which, when received by the exchange agent, will form a part of a confirmation of book-entry transfer, DTC will facilitate the exchange of your Existing Notes and update your account to reflect the issuance of the New Notes to you. ATOP allows you to electronically transmit your acceptance of the Exchange offer to DTC instead of physically completing and delivering this Consent and Letter of Transmittal to the exchange agent. THE METHOD OF DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL, THE EXISTING NOTES AND ANY OTHER REQUIRED DOCUMENTS IS AT YOUR ELECTION AND RISK, AND EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, IT IS SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, BE USED. Delivery to an address other than as set forth herein, or instruction via a facsimile number other than the one set forth herein, will not constitute a valid delivery. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders, by execution of this Consent and Letter of Transmittal (or facsimile thereof) or otherwise complying with the tender procedures set forth in the solicitation statement and prospectus, shall waive any right to receive notice of the acceptance of the Existing Notes for exchange. See "THE CONSENT SOLICITATION AND EXCHANGE OFFER" as set forth in the solicitation statement and prospectus. 2. GUARANTEED DELIVERY PROCEDURES. Guarantee of delivery procedures are applicable to the Existing Notes. Holders who wish to tender their Existing Notes, but whose Existing Notes are not immediately available and thus cannot deliver their Existing Notes, this Consent and Letter of Transmittal or any other required documents to the exchange agent (or comply with the procedures for book-entry transfer) prior to the Expiration Date, may effect a tender if: (a) the tender is made through a member firm of a registered national securities exchange or of NASD Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act of 1934 (an "Eligible Institution"); (b) prior to the Expiration Date, the exchange agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery) setting forth the name and address of the holder, the registration number(s) of such Existing Notes and the principal amount of Existing Notes tendered, stating that the 16 tender is being made thereby and guaranteeing that, within three New York Stock Exchange trading days after the Expiration Date, the Consent and Letter of Transmittal (or facsimile thereof), together with the Existing Notes (or a confirmation of book-entry transfer of such Notes into the exchange agent's account at DTC) and any other documents required by the Consent and Letter of Transmittal, will be deposited by the Eligible Institution with the exchange agent; and (c) such properly completed and executed Consent and Letter of Transmittal (or facsimile thereof), as well as tendered Existing Notes in proper form for transfer (or a confirmation of book-entry transfer of such Existing Notes into the exchange agent's account at DTC) and all other documents required by the Consent and Letter of Transmittal, are received by the exchange agent within three New York Stock Exchange trading days after the Expiration Date. Upon written request to the exchange agent, a Notice of Guaranteed Delivery will be sent to holders who wish to tender their Existing Notes according to the guaranteed delivery procedures set forth above. Any holder who wishes to tender Existing Notes pursuant to the guaranteed delivery procedures described above must ensure that the exchange agent receives the Notice of Guaranteed Delivery relating to such Existing Notes prior to the Expiration Date. Failure to comply with the guaranteed delivery procedures outlined above will not, of itself, affect the validity or effect a revocation of any Consent and Letter of Transmittal form properly completed and executed by a holder who attempted to use the guaranteed delivery procedures. 3. PARTIAL TENDERS; WITHDRAWALS. If less than the entire principal amount of Existing Notes evidenced by a submitted certificate is tendered, the tendering holder should fill in the principal amount tendered in the column entitled "Principal Amount Tendered" in the box entitled "Description of 11% Notes due 2005 Tendered Hereby." A newly issued Existing Note for the principal amount of Existing Notes submitted but not tendered will be sent to such holder as soon as practicable after the Expiration Date. All Existing Notes delivered to the exchange agent will be deemed to have been tendered in full unless otherwise indicated. No partial tenders for exchange by a beneficial owner will be accepted by the exchange agent. Existing Notes tendered pursuant to the consent solicitation and exchange offer may be withdrawn at any time prior to the Expiration Date, after which tenders of Existing Notes are irrevocable. The valid withdrawal of tendered Existing Notes prior to the Expiration Date will be deemed to be a revocation with respect to such Existing Notes and of the consent to the elimination of certain restrictive covenants of the Existing Indenture, the release of the liens on the collateral securing the Existing Notes pursuant to the Existing Indenture under which the Existing Notes were issued and the terms of the New Indenture. To be effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the exchange agent or the holder must otherwise comply with the withdrawal procedures of DTC, as described in the solicitation statement and prospectus. Any such notice of withdrawal must (a) specify the name of the person having deposited the Existing Notes to be withdrawn (the "Depositor"), (b) identify the Existing Notes to be withdrawn (including the registration number(s) and principal amount of such Existing Notes, or, in the case of Existing Notes transferred by book-entry transfer, the name and number of the account at DTC, to be credited), (c) be signed by the holder in the same manner as the original signature on this Consent and Letter of Transmittal (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the trustee with respect to the Existing Notes register the transfer of such Existing Notes into the name of the person withdrawing the tender and (d) specify the name in which any such Existing Notes are to be registered, if different from that of the Depositor. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by us, such determination shall be final and binding on all parties. Any Existing Notes so withdrawn will be deemed not to have been validly tendered for purposes of the consent solicitation and exchange offer and no New Notes will be issued with respect thereto unless the Existing Notes so withdrawn are validly retendered. Any Existing Notes which have been tendered but which are not accepted for exchange will be returned to the holder thereof without cost to such holder as soon as practicable after withdrawal, rejection of tender or termination of the consent solicitation and exchange offer. Withdrawals will not be accepted after the Expiration Date. 17 4. SIGNATURE ON THIS CONSENT AND LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Consent and Letter of Transmittal is signed by the registered holder(s) of the Existing Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the certificates without alteration or enlargement or any change whatsoever. If this Consent and Letter of Transmittal is signed by a participant in DTC, the signature must correspond with the name as it appears on the security position listing as the owner of the Existing Notes. If any of the Existing Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Consent and Letter of Transmittal. If a number of Existing Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Consent and Letter of Transmittal as there are different registrations of Existing Notes. Signatures on this Consent and Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed by an Eligible Institution unless the Existing Notes tendered hereby are tendered (i) by a registered holder who has not completed the box entitled "Special Issuance Instructions" on the Consent and Letter of Transmittal or (ii) for the account of an Eligible Institution. If this Consent and Letter of Transmittal is signed by the registered holder or holders of Existing Notes (which term, for the purposes described herein, shall include a participant in DTC whose name appears on a security position listing as the owner of the Existing Notes) listed and tendered hereby, no endorsements of the tendered Existing Notes or separate written instruments of transfer or exchange are required. In any other case, the registered holder (or acting holder) must either properly endorse the Existing Notes or transmit properly completed bond powers with this Consent and Letter of Transmittal (in either case, executed exactly as the name(s) of the registered holder(s) appear(s) on the Existing Notes, and, with respect to a participant in DTC, whose name appears on a security position listing as the owner of the Existing Notes, exactly as the name of the participant appears on such security position listing), with the signature on the Existing Notes or bond power guaranteed by an Eligible Institution (except where the Existing Notes are tendered for the account of an Eligible Institution). If this Consent and Letter of Transmittal, any certificates or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by us, proper evidence satisfactory to us of their authority so to act must be submitted. 5. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering holders should indicate, in the applicable box, the name and address (or account at DTC) in which the New Notes or substitute Existing Notes for principal amounts not tendered or not accepted for exchange and checks are to be issued (or deposited), if different from the names and addresses or accounts of the person signing this Consent and Letter of Transmittal. In the case of issuance in a different name, the employer identification number or social security number of the person named must also be indicated and the tendering holder should complete the applicable box. If no instructions are given, the New Notes (and any Existing Notes not tendered or not accepted) and checks will be issued in the name of and sent to the acting holder of the Existing Notes or deposited at such holder's account at DTC. 6. TRANSFER TAXES. Atlantic will pay all transfer taxes, if any, applicable to the transfer and exchange of Existing Notes to it or its order pursuant to the consent solicitation and exchange offer. If a transfer tax is imposed for any reason other than the transfer and exchange of Existing Notes to us or our order pursuant to the consent solicitation and exchange offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other person) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exception therefrom is not submitted herewith, the amount of such transfer taxes will be collected from the tendering holder by the exchange agent. 18 Except as provided in this Instruction 6, it will not be necessary for transfer stamps to be affixed to the Existing Notes listed in this Consent and Letter of Transmittal. 7. WAIVER OF CONDITIONS. Atlantic reserves the right, in its reasonable judgment, to waive, in whole or in part, any of the conditions to the consent solicitation and exchange offer set forth in the solicitation statement and prospectus. 8. MUTILATED, LOST, STOLEN OR DESTROYED EXISTING NOTES. Any holder whose Existing Notes have been mutilated, lost, stolen or destroyed should contact the exchange agent at the address indicated above for further instructions. 9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the procedure for tendering, as well as requests for additional copies of the solicitation statement and prospectus or this Consent and Letter of Transmittal and requests for notices of guaranteed delivery and other related documents may be directed to the information agent at the address and telephone number set forth above. 10. VALIDITY AND FORM. All questions as to the validity, form, eligibility (including time of receipt), acceptance of tendered Existing Notes and withdrawal of tendered Existing Notes will be determined by Atlantic in its sole discretion, which determination will be final and binding. We reserve the absolute right to reject any and all Existing Notes not properly tendered or any Existing Notes acceptance of which would, in the opinion of counsel, be unlawful. Atlantic also reserves the right, in its reasonable judgment, to waive any defects, irregularities or conditions of tender as to particular Existing Notes. Atlantic's interpretation of the terms and conditions of the consent solicitation and exchange offer (including the instructions in this Consent and Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Existing Notes must be cured within such time as Atlantic shall determine. Although Atlantic intends to notify holders of defects or irregularities with respect to tenders of Existing Notes, neither Atlantic, the exchange agent nor any other person shall incur any liability for failure to give such notification. Tenders of Existing Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Existing Notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder as soon as practicable following the Expiration Date. IMPORTANT TAX INFORMATION Under federal income tax law, a holder tendering Existing Notes is required to provide the exchange agent with such holder's correct Tax Identification Number ("TIN") on Substitute Form W-9 above. If such holder is an individual, the TIN is the holder's social security number. The Certificate of Awaiting Taxpayer Identification Number should be completed if the tendering holder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future. If the exchange agent is not provided with the correct TIN, the holder may be subject to a $50 penalty imposed by the Internal Revenue Service ("IRS"). In addition, payments that are made to such holder with respect to Existing Notes exchanged pursuant to the consent solicitation and exchange offer may be subject to backup withholding. Certain holders (including, among others, U.S. corporations, financial institutions and certain non-U.S. individuals and non-U.S. entities) generally are not subject to these backup withholding and reporting requirements. Such holders should complete the Substitute Form W-9 and write "Exempt" on the face thereof. A United States holder who satisfies one or more of the conditions set forth in Part 2 of the Substitute Form W-9 should execute the certification following such Part 2. Non-United States holders must submit a properly completed IRS Form W-8BEN or other appropriate IRS Form W-8 to avoid backup withholding. IRS Form W-8BEN or such other appropriate IRS Form W-8 may be obtained by contacting the exchange agent at the address on the face of this Consent and Letter of Transmittal. If backup withholding applies, the exchange agent is required to withhold 28% of any amounts otherwise payable to the holder. Backup withholding is not an additional tax. Rather, the tax liability of 19 persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the IRS. PURPOSE OF SUBSTITUTE FORM W-9. To prevent backup withholding on payments that are made to a holder with respect to Existing Notes exchanged pursuant to the exchange offer, the holder is required to notify the exchange agent of his or her correct TIN by completing the form herein certifying that the TIN provided on Substitute Form W-9 is correct (or that such holder is awaiting a TIN) and that (i) such holder is exempt, (ii) such holder has not been notified by the IRS that he or she is subject to backup withholding as a result of failure to report all interest or dividends or (iii) the IRS has notified such holder that he or she is no longer subject to backup withholding. WHAT NUMBER TO GIVE THE EXCHANGE AGENT? Each holder is required to give the exchange agent the social security number or employer identification number of the record holder(s) of the Notes. If Existing Notes are in more than one name or are not in the name of the actual holder, consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 or the instructions on IRS Form W-9, which may be obtained from the exchange agent, for additional guidance on which number to report. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER. If the tendering holder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future, write "APPLIED FOR" in the space for the TIN on Substitute Form W-9, sign and date the form and the Certificate of Awaiting Taxpayer Identification Number and return them to the exchange agent. Notwithstanding that the box in Part 2 is checked and the box captioned Certificate of Awaiting Taxpayer Identification Number is completed, the holder will be subject to backup withholding on all payments made prior to the time a properly certified TIN is provided to the exchange agent. The exchange agent will retain such amounts withheld during the 60-day period following the date of the Substitute Form W-9. If the holder furnishes the exchange agent with its TIN within 60 days after the date of the Substitute Form W-9, the amounts retained during the 60-day period will be remitted to the holder and no further amounts shall be retained or withheld from payments made to the holder thereafter. If, however, the holder has not provided the exchange agent with its TIN within such 60-day period, amounts withheld will be remitted to the IRS as backup withholding. In addition, backup withholding will apply to all payments made thereafter until a correct TIN is provided. IMPORTANT: This Consent and Letter of Transmittal or a facsimile thereof (together with Existing Notes or confirmation of book-entry transfer and all other required documents) or a Notice of Guaranteed Delivery must be received by the exchange agent on or prior to the Expiration Date. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER. Social security numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer.
--------------------------------------------------------------- ------------------------------------------------------------- Give the Give the EMPLOYER SOCIAL SECURITY IDENTIFICATION For this type of account: number of-- For this type of account: number of-- --------------------------------------------------------------- ------------------------------------------------------------- 1. An individual's account The individual 6. A valid trust, estate or Legal entity (4) pension trust account 2. Two or more The actual owner of the individuals (joint account or, if combined 7. Corporate or LLC The corporation account) funds, the first individual electing corporate on the account(1) status account 3. Custodian account of The minor(2) a minor (Uniform Gift to 8. Association, club, The organization Minors Act) religious, charitable, educational or other 4. a. The usual The grantor-trustee(1) tax-exempt organization revocable savings account trust account (grantor is also a trustee) 9. Partnership or The partnership multi-member LLC b. So-called trust The actual owner(1) account account that is not a legal or valid trust 10. A broker or The broker or nominee under State law registered nominee 5. Sole proprietorship The owner(3) 11. Account with the The public entity or single-owner LLC Department of account Agriculture in the name of a public entity (such as a State or local government, school district or prison) that receives agricultural program payments
-------------------------------------------------------------------------------- (1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security Number, that person's number must be furnished. (2) Circle the minor's name and furnish the minor's social security number. (3) You must show your individual name, but you may also enter the business or "doing business as" name. You may use either your social security number or employer identification number (if you have one). (4) List first and circle the name of the legal trust, estate or pension trust. Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title. Note: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER o Payments to partnerships not engaged in a U.S. If you don't have a taxpayer identification number or you don't know your trade or business and that have at least one number, obtain Form SS-5, Application for a Social Security Number Card, or Form non-resident alien SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the IRS and apply for a number. o Payments of patronage dividends where the amount received is not paid in money. PAYEES EXEMPT FROM BACKUP WITHHOLDING Backup withholding is not required on any payments made to the o Payments made by certain foreign organizations. following: o An organization exempt from tax under section 501(a), an o Section 404(k) payments made by an ESOP. individual retirement account (IRA), or a custodial account under section 403(b)(7), if the account satisfies the requirements of Payments of interest including the following: section 401(f)(2). o Payments of interest on obligations issued by individuals. However, you may be subject to o The United States or any agency or instrumentality thereof. backup withholding if this interest is $600 or or more and is paid in the course of the o A State, the District of Columbia, a possession of the in the course of the payer's trade or business and you have not instrumentality have not provided your correct taxpayer identification provided your correct taxpayer identification thereof. number to the payer. o A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. o Payments of tax-exempt interest (including o An international organization or any agency, or exempt-interest dividends under section 852). instrumentality thereof. o Payments described in section 6049(b)(5) to non-resident aliens. o Payments on tax-free convenant bonds under section 1451. Other payees that may be exempt from backup withholding: o A corporation. o Payments made by certain foreign organizations. o Mortgage or student loan interest paid to you. o A financial institution. Certain payments other than interest, dividends, and o A dealer in securities or commodities required to register patronage dividends, that are not subject to in the U.S., the District of Columbia or a possession of information reporting are also not subject to backup the U.S. withholding. For details, see the regulations under sections 6041, 6041A, 6045, 6050A and 6050N. o A real estate investment trust. PRIVACY ACT NOTICE. Section 6019 requires most recipients of dividend, interest, or other payments o A common trust fund operated by a bank under section to give taxpayer identification numbers to payers 584(a). who must report the payments to the IRS. The IRS uses the numbers for identification purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must o A trust exempt from tax under section 664 or described in generally withhold 28% of taxable interest, section 4947. dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES o An entity registered at all times during the tax year under the Investment Company Act of 1940. (1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your o A middleman known in the investment community as a failure is due to reasonable cause and not to nominee or custodian willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT o A foreign central bank of issue. TO WITHHOLDING. If you make a false statement with no reasonable basis that results in no backup Exempt payees described above should file Form W-9 to avoid withholding, you are subject to a penalty of $500. possible erroneous backup withholding. SIGN, DATE AND FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. WRITE "EXEMPT" ON THE FORM, AND RETURN IT TO THE PAYER. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. PAYMENTS EXEMPT FROM BACKUP WITHHOLDING FOR ADDITIONAL INFORMATION CONTACT YOUR TAX Payments of dividends and patronage dividends including the CONSULTANT OR THE IRS. following: o Payments to nonresident aliens subject to withholding under section 1441.