LYONDELL CHEMICAL COMPANY
Letter of Transmittal
for
Tender of All Outstanding
Unregistered 91/2% Senior Secured Notes due 2008
in Exchange for
Registered 91/2% Senior Secured Notes due 2008
The Exchange Offer will expire at 5:00 p.m., New York City time, on
, 2003 (the "Expiration Date"), unless sooner terminated or
extended. Outstanding Notes tendered in the Exchange Offer may be withdrawn at
any time prior to 5:00 p.m., New York City time, on the Expiration Date for
the Exchange Offer.
PLEASE READ CAREFULLY THE ATTACHED INSTRUCTIONS
If you desire to accept the Exchange Offer, this Letter of Transmittal
should be completed, signed and submitted to the Exchange Agent:
The Bank of New York
For Delivery By Mail (registered or certified mail recommended),
Overnight Delivery or by Hand:
The Bank of New York
101 Barclay Street
Floor 7 East
New York, NY 10286
Attn: Enrique Lopez
Reorganization Unit
By Facsimile Transmission (eligible institutions only):
(212) 235-2261
Attn: Enrique Lopez
Confirm by telephone:
(212) 235-2360
Delivery of this instrument to an address other than as shown above or
transmission via a facsimile number other than the one listed above will not
constitute a valid delivery. The instructions accompanying this Letter of
Transmittal should be read carefully before this Letter of Transmittal is
completed.
The undersigned hereby acknowledges receipt and review of the prospectus
dated , 2003 (the "Prospectus") of Lyondell Chemical Company (the
"Issuer") and this Letter of Transmittal which together constitute the Issuer's
offer to exchange its 91/2% Senior Secured Notes due 2008 (the "New Notes"),
the issuance of which has been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like principal amount of issued and
outstanding unregistered 91/2% Senior Secured Notes due 2008 (the "Outstanding
Notes"). The exchange of Outstanding Notes for New Notes and the related
documentation are referred to as the "Exchange Offer." Capitalized terms used
but not defined herein have the respective meanings given to them in the
Prospectus.
The Issuer reserves the right, at any time or from time to time, to extend
the period of time during which the Exchange Offer for the Outstanding Notes is
open, at its discretion, in which event the term "Expiration Date" shall mean
the latest date to which such Exchange Offer is extended. The Issuer shall
notify The Bank of New York (the "Exchange Agent") of any extension by oral or
written notice and shall make a public announcement thereof no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
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The New Notes will bear interest at 91/2% per annum. Interest payment dates
will be June 15 and December 15 of each year commencing June 15, 2003.
Registered holders of New Notes on the relevant record date for the first
interest payment date following the consummation of the Exchange Offer will
receive interest accruing from the most recent date to which interest has been
paid on the Outstanding Notes or, if no interest has been paid, from December
4, 2002. Outstanding Notes accepted for exchange will cease to accrue interest
from and after the date of consummation of the Exchange Offer. Holders whose
Outstanding Notes are accepted for exchange will not receive any payment in
respect of accrued interest on such Outstanding Notes otherwise payable on any
interest payment date the record date for which occurs on or after consummation
of the Exchange Offer. Interest will be paid to the person in whose name the
applicable New Note is registered at the close of business on June 1, in the
case of the June 15 interest payment date, and December 1, in the case of the
December 15 interest payment date. Interest will be computed on the basis of
360-day year of twelve 30-day months. No additional interest will be payable on
the New Notes.
This Letter of Transmittal is to be used by a holder of Outstanding Notes if:
. certificates of Outstanding Notes are to be forwarded with this Letter of
Transmittal; or
. delivery of Outstanding Notes is to be made by book-entry transfer to the
account maintained by the Exchange Agent at The Depository Trust Company
(the "DTC") pursuant to the procedures set forth in the Prospectus under
the caption "The Exchange Offer--Procedures for Tendering--Book-Entry
Transfer."
Tenders by book-entry transfer may also be made by delivering an "agent's
message" pursuant to DTC's Automated Tender Offer Program in lieu of this
Letter of Transmittal. Holders of Outstanding Notes (i) whose Outstanding Notes
are not immediately available, (ii) who are unable to deliver their Outstanding
Notes, this Letter of Transmittal and all other documents required hereby to
the Exchange Agent on or prior to the Expiration Date for the Exchange Offer,
or (iii) who are unable to complete the procedure for book-entry transfer on a
timely basis, must tender their Outstanding Notes according to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offer--Guaranteed Delivery Procedures." See Instruction 2 of this Letter of
Transmittal. Delivery of documents to the book-entry transfer facility does not
constitute delivery to the Exchange Agent.
The term "holder" with respect to the Exchange Offer for Outstanding Notes
means any person in whose name such Outstanding Notes are registered on the
books of Lyondell Chemical Company, any person who holds such Outstanding Notes
and has obtained a properly completed bond power from the registered holder or
any participant in the DTC system whose name appears on a security position
listing as the holder of such Outstanding Notes and who desires to deliver the
Outstanding Notes by book-entry transfer at DTC. The undersigned has completed,
executed and delivered this Letter of Transmittal to indicate the action the
undersigned desires to take with respect to the Exchange Offer. Holders who
wish to tender their Outstanding Notes must complete this Letter of Transmittal
in its entirety (unless such Outstanding Notes are to be tendered by book-entry
transfer and an agent's message is delivered in lieu hereof).
Please read the entire Letter of Transmittal and the Prospectus carefully
before checking any box below. The instructions included with this Letter of
Transmittal must be followed. Questions and requests for assistance or for
additional copies of the Prospectus and this Letter of Transmittal may be
directed to the Exchange Agent.
2
List below the Outstanding Notes tendered under this Letter of Transmittal.
If the space below is inadequate, list the title, registered numbers and
principal amounts on a separate signed schedule and affix the list to this
Letter of Transmittal.
DESCRIPTION OF OUTSTANDING NOTES TENDERED
- ----------------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s) Exactly as Name(s) Appear(s) on Outstanding Notes (Please Fill In, If Blank)
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Outstanding Note(s) Tendered
- ----------------------------------------------------------------------------------------------------------------------------
Aggregate
Principal
Amount Principal
Registered Represented Amount
Number(s)* by Note(s) Tendered**
Title of Series ----------------- ------------------ -----------------
- -----------------------------------------------------------------------
Lyondell Chemical Company 91/2% Senior Secured Notes due 2008 ----------------- ------------------ -----------------
----------------- ------------------ -----------------
----------------- ------------------ -----------------
- --------------------------------------------------------------------- ----------------- ------------------ -----------------
- -----------------------------------------------------------------------
Total
/* /Need not be completed by book-entry holders.
/** /Unless otherwise indicated, any tendering holder of Outstanding Notes will
be deemed to have tendered the entire aggregate principal amount
represented by such Outstanding Notes. All tenders must be in integral
multiples of $1,000.
[_] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE ENCLOSED HEREWITH.
[_] CHECK HERE AND COMPLETE THE FOLLOWING IF TENDERED OUTSTANDING NOTES ARE
BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY
THE EXCHANGE AGENT WITH THE DTC (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
Name of Tendering Institution: _____________________________________________
Book-entry Facility Account Number(s): _____________________________________
Transaction Code Number(s): ________________________________________________
[_] CHECK HERE AND COMPLETE THE FOLLOWING IF TENDERED OUTSTANDING NOTES ARE
BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY EITHER ENCLOSED
HEREWITH OR PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT (COPY ATTACHED) (FOR
USE BY ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Holder(s) of Outstanding Notes: ______________________
Date of Execution of Notice of Guaranteed Delivery: ________________________
Window Ticket Number (if available): _______________________________________
Name of Eligible Institution that Guaranteed Delivery: _____________________
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DTC Account Number(s) (if delivered by book-entry transfer): ________________
Transaction Code Number (if delivered by book-entry transfer): ______________
Name of Tendering Institution (if delivered by book-entry transfer): ________
[_] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER AND NON-EXCHANGED OUTSTANDING NOTES ARE TO BE RETURNED, BY
CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE (FOR USE BY ELIGIBLE
INSTITUTIONS ONLY).
[_] CHECK HERE AND COMPLETE THE FOLLOWING IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO:
Name: _______________________________________________________________________
Address: ___________________________________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to participate in, a distribution of
New Notes. If the undersigned is a broker-dealer that will receive New Notes
for its own account in exchange for Outstanding Notes, it represents that the
New Notes are acquired as a result of market-making activities or other trading
activities and that it will deliver a Prospectus in connection with any resale
of such New Notes; however, by so acknowledging and by delivering a Prospectus,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
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SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to the Issuer for exchange the principal amount of Outstanding
Notes indicated above. Subject to and effective upon the acceptance for
exchange of the principal amount of Outstanding Notes tendered in accordance
with this Letter of Transmittal, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, the Issuer all right, title and interest in
and to the Outstanding Notes tendered for exchange hereby, including all rights
to accrued and unpaid interest thereon as of the Expiration Date. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent the
true and lawful agent and attorney-in-fact for the undersigned (with full
knowledge that said Exchange Agent also acts as the agent for the Issuer in
connection with the Exchange Offer) with respect to the tendered Outstanding
Notes with full power of substitution to:
. deliver such Outstanding Notes, or transfer ownership of such Outstanding
Notes on the account books maintained by the DTC, to the Issuer and
deliver all accompanying evidences of transfer and authenticity; and
. present such Outstanding Notes for transfer on the books of the Issuer
and receive all benefits and otherwise exercise all rights of beneficial
ownership of such Outstanding Notes, all in accordance with the terms of
the Exchange Offer.
The power of attorney granted in this paragraph shall be deemed to be
irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, assign and transfer the Outstanding
Notes tendered hereby and to acquire the New Notes issuable upon the exchange
of such tendered Outstanding Notes, and that the Issuer will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim, when the same are
accepted for exchange by the Issuer as contemplated herein.
The undersigned acknowledges that the Exchange Offer is being made in
reliance upon interpretations set forth in no-action letters issued to third
parties by the staff of the Securities and Exchange Commission (the "SEC"),
including Exxon Capital Holdings Corporation (available April 13, 1988), Morgan
Stanley & Co. Incorporated (available June 5, 1991), Shearman & Sterling
(available July 2, 1993) and similar no-action letters (the "Prior No-Action
Letters"), that the New Notes issued in exchange for Outstanding Notes pursuant
to the Exchange Offer may be offered for resale or resold and otherwise
transferred by holders thereof (other than any such holder that is an
"affiliate" of the Issuer within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holders' business and that such holders are not
engaging in, do not intend to participate in and have no arrangement or
understanding with any person to participate in a distribution of such New
Notes. The SEC has not, however, considered the Exchange Offer in the context
of a no-action letter and there can be no assurance that the staff of the SEC
would make a similar determination with respect to the Exchange Offer as in
other circumstances.
The undersigned hereby further represents to the Issuer that:
. neither the holder nor any other person receiving New Notes in the
Exchange Offer is an "affiliate," as defined in Rule 405 under the
Securities Act, of the Issuer or a broker-dealer tendering Outstanding
Notes acquired directly from the Issuer for its own account;
. if the undersigned is not a broker-dealer or is a broker-dealer but will
not receive New Notes for its own account in exchange for Outstanding
Notes, the undersigned represents that it is not engaged in, and does not
intend to participate in, a distribution of New Notes;
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. neither the undersigned nor any other person receiving notes in the
Exchange Offer has an arrangement or understanding with any person to
participate in the distribution of the Outstanding Notes or the New Notes
within the meaning of the Securities Act; and
. the New Notes to be received are being acquired in the ordinary course of
business of the person receiving such New Notes, whether or not the
undersigned.
If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Outstanding Notes, it represents that the New Notes
are being acquired by it as a result of market-making activities or other
trading activities and that it will deliver a Prospectus in connection with any
resale of such New Notes. By so acknowledging and by delivering a Prospectus,
however, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
The undersigned acknowledges that if the undersigned is tendering
Outstanding Notes in the Exchange Offer with the intention of participating in
any manner in a distribution of the New Notes:
. the undersigned cannot rely on the position of the staff of the SEC set
forth in the Prior No-Action Letters and, in the absence of an exemption
therefrom, must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with the resale
transaction of the New Notes, in which case the registration statement
must contain the selling security holder information required by Item 507
or Item 508, as applicable, of Regulation S-K of the SEC; and
. failure to comply with such requirements in such instance could result in
the undersigned incurring liability for which the undersigned is not
indemnified by the Issuer.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Issuer to be necessary or
desirable to complete the exchange, assignment and transfer of the Outstanding
Notes tendered hereby, including the transfer of such Outstanding Notes on the
account books maintained by the DTC.
For purposes of the Exchange Offer, the Issuer shall be deemed to have
accepted for exchange validly tendered Outstanding Notes when, as and if the
Issuer gives oral or written notice thereof to the Exchange Agent. Any tendered
Outstanding Notes that are not accepted for exchange pursuant to the Exchange
Offer for any reason will be returned, without expense, to the undersigned at
the address shown below or at a different address as may be indicated herein
under Special Delivery Instructions as promptly as practicable after the
Expiration Date for such Exchange Offer.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon its successors, assigns, heirs, executors,
administrators, trustees in bankruptcy and legal representatives. This tender
may be withdrawn only in accordance with the procedures set forth in the
section of the Prospectus entitled "The Exchange Offer--Withdrawal of Tenders."
The undersigned acknowledges that the Issuer's acceptance of properly
tendered Outstanding Notes pursuant to the procedures described under the
caption "The Exchange Offer--Procedures for Tendering" in the Prospectus and in
the instructions hereto will constitute a binding agreement between the
undersigned and the Issuer upon the terms and subject to the conditions of the
Exchange Offer. The undersigned further agrees that acceptance of any tendered
Outstanding Notes by the Issuer and the issuance of New Notes in exchange
therefor shall constitute performance in full by the Issuer of their
obligations under the registration rights agreement and that the Issuer shall
have no further obligations or liabilities thereunder for the registration of
the Outstanding Notes or the New Notes.
The Exchange Offer is subject to certain conditions set forth in the
Prospectus under the caption "The Exchange Offer--Conditions to the Exchange
Offer." The undersigned recognizes that as a result of these
6
conditions (which may be waived, in whole or in part, by the Issuer), the
Issuer may not be required to exchange any of the Outstanding Notes tendered
hereby. In such event, the Outstanding Notes not exchanged will be returned to
the undersigned at the address shown below the signature of the undersigned.
Unless otherwise indicated under "Special Issuance Instructions," please
issue the New Notes issued in exchange for the Outstanding Notes accepted for
exchange and return any Outstanding Notes not tendered or not exchanged, in the
name(s) of the undersigned (or, in the case of a book-entry delivery of
Outstanding Notes, please credit the account indicated above maintained at the
DTC). Similarly, unless otherwise indicated under "Special Delivery
Instructions," please mail or deliver the New Notes issued in exchange for the
Outstanding Notes accepted for exchange and any Outstanding Notes not tendered
or not exchanged (and accompanying documents, as appropriate) to the
undersigned at the address shown below the undersigned's signature(s). In the
event that both "Special Issuance Instructions" and "Special Delivery
Instructions" are completed, please issue the New Notes issued in exchange for
the Outstanding Notes accepted for exchange in the name(s) of, and return any
Outstanding Notes not tendered or not exchanged to, the person(s) so indicated.
The undersigned recognizes that the Issuer has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Outstanding Notes from the name of the registered holder(s) thereof if the
Issuer does not accept for exchange any of the Outstanding Notes so tendered
for exchange.
SPECIAL ISSUANCE SPECIAL ISSUANCE
INSTRUCTIONS INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 6) (SEE INSTRUCTIONS 5 AND 6)
To be completed ONLY To be completed ONLY if
(i) if Outstanding Outstanding Notes in
Notes in a principal a principal amount not
amount not tendered, or tendered, or New Notes
New Notes issued in issued in exchange for
exchange for Outstanding Notes
Outstanding Notes accepted for exchange,
accepted for exchange, are to be mailed or
are to be issued in the delivered to someone
name of someone other other than the
than the undersigned, undersigned, or to the
or (ii) if Outstanding undersigned at an address
Notes tendered by other than that shown
book-entry transfer below the undersigned's
which are not exchanged signature. Mail or
are to be returned by deliver New Notes and/or
credit to an account Outstanding Notes to:
maintained at the DTC
other than the DTC
Account Number set
forth above. Issue New
Notes and/or
Outstanding Notes to:
Name: __________________ Name: ____________________
Address: _______________ Address: _________________
__________________________ __________________________
(Include Zip Code) (Include Zip Code)
__________________________ __________________________
(Tax Identification or (Tax Identification or
Social Security Number) Social Security Number)
__________________________ __________________________
(Please Type or Print) (Please Type or Print)
[_] Credit unexchanged Outstanding Notes delivered by book-entry transfer to
the DTC account number set forth below:
DTC Account Number:
- --------------------------------------------------------------------------------
7
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT
OUTSTANDING NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(Complete accompanying substitute form W-9 Below)
X_______________________________________________________________________________
X_______________________________________________________________________________
Signature(s) of Registered Holder(s) of Outstanding Notes
Dated __________________________, 2003
(The above lines must be signed by the registered holder(s) of Outstanding
Notes as your name(s) appear(s) on the Outstanding Notes or on a security
position listing, or by person(s) authorized to become registered holder(s) by
a properly completed bond power from the registered holder(s), a copy of which
must be transmitted with this Letter of Transmittal. If Outstanding Notes to
which this Letter of Transmittal relate are held of record by two or more joint
holders, then all such holders must sign this Letter of Transmittal. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, then such person must (i) set forth his or her full
title below and (ii) unless waived by the Issuer, submit evidence satisfactory
to the Issuer of such person's authority so to act. See Instruction 5 regarding
the completion of this Letter of Transmittal, printed below.)
Name(s): _______________________________________________________________________
(Please Type or Print)
Capacity (Full Title): _________________________________________________________
Address: _______________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number:_________________________________________________
Taxpayer Identification or Social Security Number: _____________________________
MEDALLION SIGNATURE GUARANTEE
(If Required by Instruction 5)
Certain signatures must be guaranteed by an Eligible Institution. Please read
Instruction 5 of this Letter of Transmittal to determine whether a signature
guarantee is required for the tender of your Outstanding Notes.
Signature(s) Guaranteed by an Eligible Institution: ____________________________
(Authorized Signature)
- --------------------------------------------------------------------------------
(Title)
- --------------------------------------------------------------------------------
(Name of Firm)
- --------------------------------------------------------------------------------
(Address, Including Zip Code)
- --------------------------------------------------------------------------------
(Area Code and Telephone Number)
Dated: ___________________________________________________________________, 2003
8
INSTRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Outstanding Notes or Agents
Message and Book-Entry Confirmations. All physically delivered Outstanding
Notes or any confirmation of a book-entry transfer to the Exchange Agent's
account at the DTC of Outstanding Notes tendered by book-entry transfer (a
"Book-Entry Confirmation"), as well as a properly completed and duly executed
copy of this Letter of Transmittal or facsimile hereof (or an agent's message
in lieu hereof), and any other documents required by this Letter of Transmittal
must be received by the Exchange Agent at its address set forth herein on or
prior to 5:00 p.m., New York City time, on the Expiration Date for the Exchange
Offer, or the tendering holder must comply with the guaranteed delivery
procedures set forth below. Outstanding Notes tendered hereby must be in
denominations of principal amount of $1,000 and any integral multiple thereof.
The method of delivery of the tendered Outstanding Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent is at the
election and risk of the holder and, except as otherwise provided below, the
delivery will be deemed made only when actually received or confirmed by the
Exchange Agent. Instead of delivery by mail, it is recommended that the holder
use an overnight or hand delivery service. In all cases, sufficient time should
be allowed to ensure delivery to the Exchange Agent before the Expiration Date.
NEITHER THIS LETTER OF TRANSMITTAL NOR OUTSTANDING NOTES SHOULD BE SENT TO THE
ISSUER.
All questions as to the validity, form, eligibility (including time of
receipt) or acceptance of tendered Outstanding Notes and withdrawal of tendered
Outstanding Notes will be determined by the Issuer in its sole discretion,
which determination will be final and binding. The Issuer reserves the absolute
right to reject any and all Outstanding Notes not properly tendered or any
Outstanding Notes the Issuer's acceptance of which would, in the opinion of
counsel for the Issuer, be unlawful. The Issuer also reserves the right to
waive any defects, irregularities or conditions of tender as to particular
Outstanding Notes. The Issuer's interpretation of the terms and conditions of
the Exchange Offer (including the instructions in this Letter of Transmittal)
shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Outstanding Notes must be cured
within such time as the Issuer shall determine. Neither the Issuer, the
Exchange Agent nor any other person shall be under any duty to give
notification of defects or irregularities with respect to tenders of
Outstanding Notes, nor shall any of them incur any liability for failure to
give such notification. Tenders of Outstanding Notes will not be deemed to have
been made until such defects or irregularities have been cured or waived. Any
Outstanding 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 holders of Outstanding
Notes, unless otherwise provided in this Letter of Transmittal, as soon as
practicable following the Expiration Date. See "The Exchange Offer" section of
the Prospectus.
2. Guaranteed Delivery Procedures. Holders who wish to tender their
Outstanding Notes and (a) whose Outstanding Notes are not immediately
available, or (b) who cannot deliver their Outstanding Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date, or (c) who are unable to comply with the applicable
procedures under the DTC's Automated Tender Offer Program on a timely basis,
must tender their Outstanding Notes according to the guaranteed delivery
procedures set forth in the Prospectus.
Pursuant to such procedures:
. such tender must be made by or through a financial institution (including
most banks, savings and loan associations, and brokerage houses) that is
a participant in the Securities Transfer Agents' Medallion Program, the
New York Stock Exchange Medallion Program or the Stock Exchanges'
Medallion Program approved by the Securities Transfer Association Inc.
(an "Eligible Institution");
. prior to the Expiration Date, the Exchange Agent must have received from
the Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery) or
a properly transmitted agent's message and Notice of Guaranteed Delivery
setting
9
forth the name and address of the holder of the Outstanding Notes, the
registration number(s) of such Outstanding Notes and the total principal
amount of Outstanding Notes tendered, stating that the tender is being
made thereby and guaranteeing that, within three New York Stock Exchange
trading days after such Expiration Date, this Letter of Transmittal (or
facsimile hereof or an agent's message in lieu hereof) together with the
Outstanding Notes in proper form for transfer (or a Book-entry
Confirmation) and any other documents required by this Letter of
Transmittal will be deposited by the Eligible Institution with the
Exchange Agent; and
. this Letter of Transmittal (or a facsimile hereof or an agent's message
in lieu hereof) together with the certificates for all physically
tendered Outstanding Notes in proper form for transfer (or Book-entry
Confirmation, as the case may be) and all other documents required hereby
are received by the Exchange Agent within three New York Stock Exchange
trading days after such Expiration Date.
Any holder of Outstanding Notes who wishes to tender Outstanding Notes
pursuant to the guaranteed delivery procedures described above must ensure that
the Exchange Agent receives the Notice of Guaranteed Delivery prior to 5:00
p.m., New York City time, on the Expiration Date. Upon request of the Exchange
Agent, a Notice of Guaranteed Delivery will be sent to holders who wish to
tender their Outstanding Notes according to the guaranteed delivery procedures
set forth above. See "The Exchange Offer--Guaranteed Delivery Procedures"
section of the prospectus.
3. Tender by Holder. Only a registered holder of Outstanding Notes may
tender such Outstanding Notes in the Exchange Offer. Any beneficial holder of
Outstanding Notes who is not the registered holder and who wishes to tender
should arrange with the registered holder to execute and deliver this Letter of
Transmittal on his behalf or must, prior to completing and executing this
Letter of Transmittal and delivering his Outstanding Notes, either make
appropriate arrangements to register ownership of the Outstanding Notes in such
holder's name or obtain a properly completed bond power from the registered
holder.
4. Partial Tenders (Not Applicable to Holders Who Tender by Book-Entry
Transfer). Tenders of Outstanding Notes will be accepted only in integral
multiples of $1,000. If less than the entire principal amount of any
Outstanding Notes is tendered, the tendering holder should fill in the
principal amount tendered in the third column of the box entitled "Description
of Outstanding Notes Tendered" above. The entire principal amount of
Outstanding Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated. If the entire principal amount of all
Outstanding Notes is not tendered, then Outstanding Notes for the principal
amount of Outstanding Notes not tendered and New Notes issued in exchange for
any Outstanding Notes accepted will be returned to the holder as promptly as
practicable after the Outstanding Notes are accepted for exchange.
5. Signatures on this Letter of Transmittal; Bond Powers and Endorsements;
Medallion Guarantee of Signatures. If this Letter of Transmittal (or facsimile
hereof) is signed by the record holder(s) of the Outstanding Notes tendered
hereby, the signature(s) must correspond exactly with the name(s) as written on
the face of the Outstanding Notes without alteration, enlargement or any change
whatsoever. If this Letter of Transmittal (or facsimile hereof) is signed by a
participant in the DTC, the signature must correspond with the name as it
appears on the security position listing as the holder of the Outstanding Notes.
If any tendered Outstanding Notes are owned of record by two or more joint
owners, all of such owners must sign this Letter of Transmittal.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered holder(s) of Outstanding Notes listed and tendered hereby and the
New Notes issued in exchange therefor are to be issued (or any untendered
principal amount of Outstanding Notes is to be reissued) to the registered
holder(s), then said holder(s) need not and should not endorse any tendered
Outstanding Notes, nor provide a separate bond power. In any other case, such
holder(s) must either properly endorse the Outstanding Notes tendered or
transmit a properly completed separate bond power with this Letter of
Transmittal, with the signatures on the endorsement or bond power guaranteed by
an Eligible Institution.
10
If this Letter of Transmittal (or facsimile hereof) or any Outstanding Notes
or bond powers are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person should so indicate when
signing, and, unless waived by the Issuer, evidence satisfactory to the Issuer
of their authority to act must be submitted with this Letter of Transmittal.
No signature guarantee is required if (i) this Letter of Transmittal (or
facsimile hereof) is signed by the registered holder(s) of the Outstanding
Notes tendered herein (or by a participant in the DTC whose name appears on a
security position listing as the owner of the tendered Outstanding Notes) and
the New Notes are to be issued directly to such registered holder(s) (or, if
signed by a participant in the DTC, deposited to such participant's account at
the DTC) and neither the box entitled "Special Delivery Instructions" nor the
box entitled "Special Registration Instructions" has been completed, or (ii)
such Outstanding Notes are tendered for the account of an Eligible Institution.
In all other cases, all signatures on this Letter of Transmittal (or facsimile
hereof) must be guaranteed by an Eligible Institution.
6. Special Issuance and Delivery Instructions. Tendering holders should
indicate, in the applicable box or boxes, the name and address to which New
Notes or substitute Outstanding Notes for principal amounts not tendered or not
accepted for exchange are to be issued or sent, if different from the name and
address of the person signing this Letter of Transmittal. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated. Holders tendering
Outstanding Notes by book-entry transfer may request that Outstanding Notes not
exchanged be credited to such account maintained at the DTC as such noteholder
may designate hereon. If no such instructions are given, such Outstanding Notes
not exchanged will be returned to the name and address (or account number) of
the person signing this Letter of Transmittal.
7. Transfer Taxes. The Issuer will pay all transfer taxes, if any,
applicable to the exchange of Outstanding Notes pursuant to the Exchange Offer.
If, however, New Notes or Outstanding Notes for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered holder of the
Outstanding Notes tendered hereby, or if tendered Outstanding Notes are
registered in the name of any person other than the person signing this Letter
of Transmittal, or if a transfer tax is imposed for any reason other than the
exchange of Outstanding Notes pursuant to the Exchange Offer, then the amount
of any such transfer taxes (whether imposed on the registered holder or any
other persons) will be payable by the tendering holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
this Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder and the Exchange Agent will retain possession
of an amount of New Notes with a face amount at least equal to the amount of
such transfer taxes due by such tendering holder pending receipt by the
Exchange Agent of the amount of such taxes.
8. Tax Identification Number. Federal income tax law requires that a holder
of any Outstanding Notes or New Notes must provide the Issuer (as payor) with
its correct taxpayer identification number ("TIN"), which, in the case of a
holder who is an individual, is his or her social security number. If the
Issuer is not provided with the correct TIN, the holder or payee may be subject
to a $50 penalty imposed by Internal Revenue Service and backup withholding,
currently at a rate of 30%, on interest payments on the New Notes.
To prevent backup withholding, each tendering holder and each prospective
holder must provide such holder's correct TIN by completing the Substitute Form
W-9 set forth herein, certifying that the TIN provided is correct (or that such
holder is awaiting a TIN), and that (i) the holder has not been notified by the
Internal Revenue Service that such holder is subject to backup withholding as a
result of failure to report all interest or dividends or (ii) the Internal
Revenue Service has notified the holder that such holder is no longer subject
to backup withholding. If the New Notes will be registered in more than one
name or will not be in the name of the actual owner, consult the instructions
on Internal Revenue Service Form W-9, which may be obtained from the Exchange
Agent, for information on which TIN to report.
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If such holder does not have a TIN, such holder should consult the
instructions on Form W-9 concerning applying for a TIN, check the box in Part 3
of the Substitute Form W-9, write "applied for" in lieu of its TIN and sign and
date the form and the Certificate of Awaiting Taxpayer Identification Number.
Checking this box, writing "applied for" on the form and signing such
certificate means that such holder has already applied for a TIN or that such
holder intends to apply for one in the near future. If such holder does not
provide its TIN to the Issuer within 60 days, backup withholding will begin and
continue until such holder furnishes its TIN to the Issuer.
Certain foreign individuals and entities will not be subject to backup
withholding or information reporting if they submit a Form W-8, signed under
penalties of perjury, attesting to their foreign status. A Form W-8 can be
obtained from the Exchange Agent.
The Issuer reserves the right in its sole discretion to take whatever steps
are necessary to comply with the Issuer's obligations regarding backup
withholding.
9. Validity of Tenders. All questions as to the validity, form, eligibility
(including time of receipt), acceptance and withdrawal of tendered Outstanding
Notes will be determined by the Issuer in its sole discretion, which
determination will be final and binding. The Issuer reserves the absolute right
to reject any and all Outstanding Notes not properly tendered or any
Outstanding Notes the Issuer's acceptance of which might, in the opinion of the
Issuer or its counsel, be unlawful. The Issuer also reserves the absolute right
to waive any conditions of the Exchange Offer or defects or irregularities of
tenders as to particular Outstanding Notes. The Issuer's interpretation of the
terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with
tenders of Outstanding Notes must be cured within such time as the Issuer shall
determine. Neither the Issuer, the Exchange Agent nor any other person shall be
under any duty to give notification of defects or irregularities with respect
to tenders of Outstanding Notes nor shall any of them incur any liability for
failure to give such notification.
10. Waiver of Conditions. The Issuer reserves the absolute right to waive,
in whole or part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
11. No Conditional Tender. No alternative, conditional, irregular or
contingent tender of Outstanding Notes will be accepted.
12. Mutilated, Lost, Stolen or Destroyed Outstanding Notes. Any holder whose
Outstanding Notes have been mutilated, lost, stolen or destroyed should contact
the Exchange Agent at the address indicated above for further instructions.
This Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, stolen or destroyed Outstanding Notes have been
followed.
13. Requests for Assistance or Additional Copies. Requests for assistance or
for additional copies of the Prospectus or this Letter of Transmittal may be
directed to the Exchange Agent at the address or telephone number set forth on
the cover page of this Letter of Transmittal. Holders may also contact their
broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Exchange Offer.
14. Withdrawal. Tenders may be withdrawn only pursuant to the limited
withdrawal rights set forth in the Prospectus under the caption "The Exchange
Offer--Withdrawal of Tenders."
IMPORTANT: This Letter of Transmittal or a manually signed facsimile hereof
or an agent's message in lieu thereof (together with the Outstanding Notes
delivered by book-entry transfer or in original hard copy form) must be
received by the Exchange Agent, or the Notice of Guaranteed Delivery must be
received by the Exchange Agent, prior to the Expiration Date.
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SUBSTITUTE
Form W-9
Department of the Treasury,
Internal Revenue Service
Payer's Request for Taxpayer
Identification Number ("TIN")
----------------------------------------------------------------------------------------------------
Part 1--PLEASE PROVIDE YOUR ----------------------------
TIN IN THE BOX AT RIGHT AND Social Security Number
CERTIFY BY SIGNING AND DATING or
BELOW. ----------------------------
Employer ID Number
----------------------------------------------------------------------------------------------------
Part 2--Certifications--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number Department of the
Treasury (or I have checked the box in Part 3 and executed the Certificate of waiting taxpayer
identification number below), and
(2) I am not subject to backup withholding either because I have not been notified 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 because the IRS has notified me that I am no longer subject to
backup withholding.
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 underreporting interest or
dividends on your tax return. However, if after being notified by the IRS that you are 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).
---------------------------------------------------------
Name Part 3
------------------------
Awaiting TIN [_]
Address
---------------------- Please complete the certificate of Awaiting
Taxpayer Identification Number below.
---------------------------
City, State and Zip Code
=--------------
, 2003
Signature Date
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF A PORTION (CURRENTLY 30%) OF ANY PAYMENTS MADE TO YOU
WITH RESPECT TO THE NEW NOTES.
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 to the
payor within 60 days, a portion (currently 30%) of all reportable payments
made to me thereafter will be withheld until I provide a number.
- --------- ----
Signature Date
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