EXHIBIT 99.12
LYONDELL CHEMICAL COMPANY
LETTER OF TRANSMITTAL
FOR
TENDER OF ALL OUTSTANDING
10 7/8% SENIOR SUBORDINATED
NOTES DUE 2009
IN EXCHANGE FOR REGISTERED
10 7/8% SENIOR SUBORDINATED
NOTES DUE 2009
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
____________, 1999, UNLESS EXTENDED (THE "EXPIRATION DATE"). 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TENDERED IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M.,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.
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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
By Courier: By Mail (registered or By Hand:
certified mail recommended):
The Bank of New York The Bank of New York 101 Barclay St.
101 Barclay St. 101 Barclay St., Floor 7E Corporate Trust
Corporate Trust New York, NY 10286 Services Window
Services Window Attn: Reorg. Dept. Ground Level
Ground Level New York, NY 10286
New York, NY 10286 Attn: Reorg. Dept.
Attn: Reorg. Dept.
BY FACSIMILE TRANSMISSION (ELIGIBLE INSTITUTIONS ONLY):
212-815-4699
Attn: ________________________
Confirm by telephone:
(212) 815-2742
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. FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY
ADDITIONAL INFORMATION, YOU MAY CONTACT THE EXCHANGE AGENT BY TELEPHONE AT
(212) 815-2742.
The undersigned hereby acknowledges receipt and review of the prospectus
dated _________ , 1999 (the "Prospectus") of Lyondell Chemical Company (the
"Issuer"), Lyondell Chemical Worldwide, Inc. and Lyondell Chemical Nederland,
Ltd. (each a "Subsidiary Guarantor") and this Letter of Transmittal which
together constitute the Issuer's offer to exchange (the "Exchange Offer")
10 7/8% Senior Subordinated Notes Due 2009 (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 10 7/8% Senior Subordinated Notes Due 2009 (the "Outstanding
Notes"). 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 reserves
the right to extend such period independently of any other Exchange Offer. 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.
Registered Holders of Exchange Notes on the relevant record date for the
first interest payment date following the consummation of an 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 ________,
1999. Outstanding Notes accepted for exchange will cease to accrue interest from
and after the date of consummation of an 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 an Exchange Offer.
This Letter of Transmittal is to be used by a holder of Outstanding Notes
(i) if certificates of Outstanding Notes are to be forwarded herewith or (ii) if
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 Offers--Book-entry Transfer" and an "agent's message" is not
delivered as described in the Prospectus under the caption "The Exchange
Offers--Procedures for Tendering--Tendering Through DTC's Automated Tender Offer
Program." Tenders by book-entry transfer may also be made by delivering an
agent's message in lieu of this Letter of Transmittal. Holders of Outstanding
Notes whose Outstanding Notes are not immediately available, or 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 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 Offers--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 an 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 such 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 AT THE TELEPHONE NUMBER LISTED ABOVE.
List below the Outstanding Notes to which this Letter of Transmittal
relates. 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
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Name(s) and Address(es) of
Registered Holder(s) Exactly as
Name(s) Outstanding Note(s) Tendered
Appear(s) on Outstanding Notes
(Please Fill In, If Blank)
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Title of Registered Aggregate Principal Principal
Series Number(s)* Amount Amount
Represented Tendered**
by Note(s)
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Lyondell
Chemical
Company
10 7/8%
Senior
Subordinated
Notes Due
2009
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Total
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* 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:
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Book-entry Facility Account
Number(s):
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Transaction Code
Number(s):
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3
[_] 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:
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Date of Execution of Notice of
Guaranteed Delivery:
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Window Ticket Number
(if available):
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Name of Eligible Institution that
Guaranteed Delivery:
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DTC Account Number(s) (if delivered
by book-entry transfer):
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Transaction Code Number (if delivered
by book-entry transfer):
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Name of Tendering Institution (if
delivered by book-entry transfer):
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[_] 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:
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Address:
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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 it acknowledges that it will deliver a Prospectus in connection
with any resale of such New Notes; however, by so acknowledging and by
delivering a Prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
4
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
Subject to the terms and conditions of the applicable 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 (i) 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 (ii) 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 or any Subsidiary Guarantor 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 an 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 an Exchange Offer as
in other circumstances.
The undersigned hereby further represents to the Issuer that (i) 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, (ii)
neither the undersigned nor any such other person 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
(iii) neither the holder nor any such other person is an "affiliate," as defined
in Rule 405 under the Securities Act, of the Issuer or any Subsidiary Guarantor
or, if it is an affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable. 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
being acquired by it as a result of market-making activities or other trading
activities and it acknowledges 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.
5
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 (i) 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 (ii) 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 the 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 Offers--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 Offers--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 Offers-- Conditions to the Exchange
Offers." The undersigned recognizes that as a result of these 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.
6
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 6) (SEE INSTRUCTIONS 5 AND 6)
To be completed ONLY (i) if Outstanding Notes in a To be completed ONLY if Outstanding Notes in a
principal amount not tendered, or New Notes issued in principal amount not tendered, or New Notes issued, in
exchange for Outstanding Notes accepted for exchange for Outstanding Notes accepted for exchange,
exchange, are to be issued in the name of someone are to be mailed or delivered to someone other than the
other than the undersigned, or (ii) if Outstanding Notes undersigned, or to the undersigned at an address other
tendered by book-entry transfer which are not than that shown below the undersigned's signature.
exchanged are to be returned by credit to an account Mail or deliver New Notes and/or Old 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:
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Address: Address:
---------------------------------------------------- ------------------------------------------------
- ------------------------------------------------------------ --------------------------------------------------------
(Include Zip Code) (Include Zip Code)
- ------------------------------------------------------------ --------------------------------------------------------
(Tax Identification or Social Security Number) (Tax Identification or 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:
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7
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT
OUTSTANDING NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(Complete Accompanying Substitute Form W-9 Below)
X
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X
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(Signature(s) of Registered Holder(s) of Outstanding Notes)
Dated ___________, 1999
(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):
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(Please Type or Print)
Capacity (Full Title):
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Address:
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(Include Zip Code)
Area Code and Telephone Number:
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Taxpayer Identification or Social Security Number:
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8
MEDALLION SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 5)
Certain signatures must be guaranteed by an Eligible Institution.
Signature(s) Guaranteed by an
Eligible Institution:
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(Authorized Signature)
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(Title)
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(Name of Firm)
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(Address, Including Zip Code)
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(Area Code and Telephone Number)
Dated: , 1999
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9
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
AGENT'S 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.
NO LETTER OF TRANSMITTAL OR 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 an 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 Offers" 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
applicable 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: (i) 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"); (ii) prior to
the applicable 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 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 five 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 (iii) 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
10
documents required hereby are received by the Exchange Agent within five 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 applicable 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 Offers--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.
If this Letter of Transmittal (or facsimile hereof) or any Outstanding
Notes or bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, such persons should so indicate when
signing, and, 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
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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 an 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 an 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 Exchange 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 of 31% 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.
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.
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.
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.
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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 an Exchange Offer or defects or irregularities of tenders as
to particular Outstanding Notes. The Issuer's interpretation of the terms and
conditions of an 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 an 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 an 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
Offers--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 Part 1 -- Please Provide Your Tin in the Box at Right _______________________________
Form W-9 and Certify By Signing and Dating Below Social Security Number
or
______________________________
Employer Identification number
- -----------------------------------------------------------------------------------------------------------------------------------
Part 2 -- Certification -- Under penalties of PART 3--
perjury, I certify that:
(1) The number shown on this form is my correct Awaiting TIN [_]
Taxpayer Identification Number (or I have checked the
box in part 3 and executed the certificate of
awaiting taxpayer identification number below) and
- ----------------------------- (2) I am not subject to back withholding either Please Complete the Certificate of Awaiting
Name because I have not been notified by the Internal Taxpayer Identification Number below.
Revenue Service ("IRS") that I am subject to backup
- ----------------------------- withholding as a result of failure to report all
Address (Number and Street) interest or dividends, or because the IRS has
notified me that I am no longer subject to backup
- ----------------------------- withholding.
City, State and Zip Code
Department of the Treasury
Internal Revenue Service
Payor's Request for Taxpayer Certificate Instructions -- You must cross out item (2) in Part 2 above if you have been notified by
Identification Number (TIN) 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).
SIGNATURE_________________________________ DATE ________________________, 1999
- -----------------------------------------------------------------------------------------------------------------------------------
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% 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, 31% of all
reportable payments made to me thereafter will be withheld until I provide a
number.
- --------------------------------- --------------------, 1999
Signature Date
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