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EXHIBIT 99.3
SIMCALA, INC.
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
9 5/8% SENIOR NOTES DUE 2006, SERIES B WHICH
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OUTSTANDING
9 5/8% SENIOR NOTES DUE 2006, SERIES A
PURSUANT TO THE PROSPECTUS DATED _________, 1998
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
EASTERN TIME, ,1998, UNLESS EXTENDED (THE "EXPIRATION DATE").
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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 timely to the Exchange Agent:
TO: IBJ SCHRODER BANK & TRUST COMPANY, EXCHANGE AGENT
By Hand or Overnight Delivery:
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IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Attn: Securities Processing Window,
Subcellar One (SC-1)
By Registered or Certified Mail:
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IBJ Schroder Bank & Trust Company
P.O. Box 84
Bowling Green Station
New York, New York 10274-0084
Attn: Reorganization Operations Department
By Facsimile Transmission
(Eligible Institutions Only):
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(212) 858-2611
To Confirm by Telephone
or for Information, Call:
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(212) 858-2103
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY
ADDITIONAL INFORMATION, YOU MAY CONTACT THE EXCHANGE AGENT BY TELEPHONE AT (212)
858-2103.
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The undersigned hereby acknowledges receipt of the Prospectus dated
___________, 1998 (the "Prospectus") of SIMCALA, Inc., a Delaware corporation
(the "Company"), and this Letter of Transmittal (the "Letter of Transmittal"),
that together constitute the Company's offer (the "Exchange Offer") to exchange
$1,000 in principal amount of its 9 5/8% Senior Notes due 2006, Series B (the
"Exchange Notes"), which have been registered under the Securities Act of 1933,
as amended (the "Securities Act"), pursuant to an effective Registration
Statement filed with the Securities and Exchange Commission ("SEC"), for each
$1,000 in principal amount of its outstanding 9 5/8% Senior Notes due 2006,
Series A (the "Series A Notes," and together with the Exchange Notes, the
"Notes"), of which $75,000,000 aggregate principal amount is outstanding.
Capitalized terms used but not defined herein have the meanings ascribed to them
in the Prospectus.
The undersigned hereby tenders the Series A Notes described in Box 1
below (the "Tendered Notes") upon the terms, and subject to the conditions,
described in the Prospectus and this Letter of Transmittal. The undersigned is
the registered owner of all the Tendered Notes, and the undersigned represents
that it has received from each beneficial owner of the Tendered Notes
("Beneficial Owners") a duly completed and executed form of "Instruction to
Registered Holder and/or Book-Entry Transfer Facility Participant from Owner"
accompanying this Letter of Transmittal, instructing the undersigned to take the
action described in this Letter of Transmittal.
This Letter of Transmittal is to be completed either if (a)
certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth under "The
Exchange Offer - Procedures for Tendering" in the Prospectus and an Agent's
Message (as defined below) is not delivered. Certificates, or book-entry
confirmation of a book-entry transfer of such Series A Notes into the Exchange
Agent's Account at The Depository Trust Company ("DTC"), as well as this Letter
of Transmittal (or a facsimile thereof), properly completed and duly executed,
with any required signature guarantees, and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at its address set
forth herein on or prior to the Expiration Date. Tenders by book-entry transfer
may also be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "Agent's Message" means a message, transmitted by DTC to
and received by the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment from
the tendering participant, which acknowledgment states that such participant has
received and agrees to be bound by this Letter of Transmittal and that the
Company may enforce this Letter of Transmittal against such participant.
Holders (as defined below) of Series A Notes whose certificates (the
"Certificates") for such Series A Notes are not immediately available or who
cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date (as defined in the Prospectus)
or who cannot complete the procedures for book-entry transfer on a timely basis,
must tender their Series A Notes according to the guaranteed delivery procedures
set forth in "The Exchange Offer Procedures for Tendering" in the Prospectus.
Delivery of the documents to the book-entry transfer facility does not
constitute delivery to the Exchange Agent.
Subject to, and effective upon, the acceptance for exchange by the
Company of the Tendered Notes, the undersigned hereby exchanges, assigns,
transfers and conveys to, or upon the order of, the Company, all right, title,
and interest in, to and under the Tendered Notes.
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Please issue the Exchange Notes in exchange for Tendered Notes in the
name(s) of the undersigned. Similarly, unless otherwise indicated under "Special
Delivery Instructions" below (Box 3), please send or cause to be sent the
Certificate(s) for the Exchange Notes (and accompanying documents, as
appropriate) to the undersigned at the address shown below in Box 1.
The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as the true and lawful agent and attorney in fact of the
undersigned with respect to the Tendered Notes, with full power of substitution
(such power of attorney being an irrevocable power coupled with an interest), to
(i) deliver the Tendered Notes to the Company or cause ownership of the Tendered
Notes to be transferred to, or upon the order of, the Company, on the books of
the transfer agent and registrar for the Series A Notes and deliver all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Company upon receipt by the Exchange Agent, as the undersigned's agent, of
the Exchange Notes to which the undersigned is entitled upon acceptance by the
Company of the Tendered Notes pursuant to the Exchange Offer, and (ii) receive
as agent of the Company all benefits and otherwise exercise all rights of
beneficial ownership of the Tendered Notes, all in accordance with the terms of
the Exchange Offer.
The undersigned understands that tenders of Series A Notes pursuant to
the procedures described under the caption "The Exchange Offer" in the
Prospectus and in the instructions hereto will constitute a binding agreement
between the undersigned and the Company upon the terms and subject to the
conditions of the Exchange Offer, subject only to withdrawal of such tenders on
the terms set forth in the Prospectus under the caption "The Exchange Offer -
Withdrawals of Tenders." All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned and any
Beneficial Owner(s), and every representation, warranty, covenant and obligation
of the undersigned or any Beneficial Owner(s) hereunder shall be binding upon
the heirs, representatives, successors and assigns of the undersigned and such
Beneficial Owner(s).
The undersigned hereby represents and warrants that the undersigned has
full power, authority and capacity to tender, exchange, assign and transfer the
Tendered Notes and that the Company will acquire good and unencumbered title to
the Tendered Notes free and clear of all liens, pledges, restrictions, charges,
encumbrances, and adverse claims of any kind whatsoever. The undersigned and
each Beneficial Owner will, upon receipt, execute and deliver any additional
documents or instruments reasonably requested by the Company or the Exchange
Agent as necessary or desirable to complete and give effect to the transactions
contemplated hereby.
The undersigned hereby represents and warrants that the information set
forth in Box 2 is true and correct. By accepting the Exchange Offer, the
undersigned hereby further represents and warrants that (i) the Exchange Notes
to be acquired by the undersigned and any Beneficial Owner(s) in connection with
the Exchange Offer are being acquired by the undersigned and any Beneficial
Owner(s) in the ordinary course of business of the undersigned and any
Beneficial Owner(s), (ii) neither the undersigned nor any Beneficial Owner on
behalf of which the undersigned is acting has any arrangement or understanding
with any person to participate in the distribution of such Exchange Notes,
and/or any intention to participate in any distribution of the Exchange Notes,
(iii) neither the undersigned nor any Beneficial Owner is an "affiliate" (as
defined in Rule 405 under the Securities Act) of the Company, and (iv) the
undersigned and each such Beneficial Owner acknowledge and agree that (x) any
person with the intention of distributing the Exchange Notes is not eligible to
participate in the Exchange Offer and, in the event any such person holds
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Exchange Notes, such person must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary
resale of the Exchange Notes acquired by such person and cannot rely on the
position of the Staff of the SEC set forth in the no-action letters that are
discussed in the section of the Prospectus entitled "The Exchange Offer," and
(y) any such secondary resale transaction should be covered by an effective
registration statement containing the information with respect to the selling
security holders required by Item 507 of Regulation S-K under the Securities
Act.
In addition, by accepting the Exchange Offer, the undersigned hereby
(i) represents and warrants that, if the undersigned or any Beneficial Owner of
the Series A Notes is a broker-dealer, such broker-dealer holds the Series A
Notes for its own account as a result of market-making activities or other
trading activities and (ii) acknowledges that, by receiving Exchange Notes for
its own account in exchange for Series A Notes, where such Series A Notes were
acquired as a result of market-making activities or other trading activities,
such broker-dealer may be a statutory underwriter and will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Notes. By so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
ANY HOLDER WHO IS PROHIBITED BY APPLICABLE LAW OR SEC POLICY FROM
PARTICIPATING IN THE EXCHANGE OFFER, INCLUDING ANY HOLDER WHO IS AN AFFILIATE OF
THE COMPANY OR A BROKER-DEALER WHO HOLDS SERIES A NOTES ACQUIRED DIRECTLY FROM
THE COMPANY OR ONE OF ITS AFFILIATES, AND ANY PERSON WHO INTENDS TO, OR IS
PARTICIPATING IN, OR HAS ANY ARRANGEMENT OR UNDERSTANDING TO PARTICIPATE IN, A
DISTRIBUTION OF THE EXCHANGE NOTES, SHOULD CONTACT THE COMPANY WITHIN 20
BUSINESS DAYS OF THE EXCHANGE OFFER IN ORDER TO PRESERVE ITS REGISTRATION RIGHTS
THAT ARE DISCUSSED IN THE SECTION OF THE PROSPECTUS ENTITLED "THE EXCHANGE OFFER
- - REGISTRATION RIGHTS AND EFFECT OF EXCHANGE OFFER."
[ ] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED HEREWITH.
[ ] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE
EXCHANGE AGENT AND COMPLETE "USE OF GUARANTEED DELIVERY" BELOW
(Box 4).
[ ] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH
THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE "USE OF BOOK-ENTRY
TRANSFER" BELOW (Box 5).
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PAYOR'S NAME: SIMCALA, INC.*
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Name (if joint names, list first and circle the name of
the person or entity whose number you enter in Part I
below. See instructions if your name has changed.)
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Address
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SUBSTITUTE City, State and ZIP Code
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Form W-9 List account number(s) here (optional)
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Department of the PART 1-PLEASE PROVIDE YOUR Social Security Number
Treasury TAXPAYER IDENTIFICATION or TIN
Internal Revenue NUMBER ("TIN") IN THE BOX AT
Service RIGHT AND CERTIFY BY SIGNING
AND DATING BELOW
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PART 2-Check the box if you are NOT subject to backup
withholding under the provisions of section 3406(a)(I)(C)
of the Internal Revenue Code because (1) you have not
been notified that you are subject to backup withholding
as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has
notified you that you are no longer subject to backup
withholding. [ ]
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CERTIFICATION-UNDER THE PENALTIES OF PERJURY,
I CERTIFY THAT THE INFORMATION PROVIDED ON THIS
FORM IS TRUE, CORRECT AND COMPLETE. Awaiting TIN [ ]
SIGNATURE DATE , 1998
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*See Instruction 8.
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Note: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
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PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING THE BOXES
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BOX 1*
DESCRIPTION OF NOTES TENDERED**
(Attach additional signed pages, if necessary)
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Aggregate
Principal
Name(s) and Address(es) of Registered Note Amount Aggregate
Holder(s), exactly as name(s) appear(s) on Note Certificate Represented Principal
Certificate(s) Number(s) by Amount
(Please fill in, if blank) of Notes Certificate(s) Tendered
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Total
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* Need not be completed by persons tendering by book-entry transfer.
** The minimum permitted tender is $1,000 in principal amount of Series A
Notes. All other tenders must be in integral multiples of $1,000 of
principal amount. Unless otherwise indicated in this column, the
principal amount of all Note Certificates identified in this Box 1 or
delivered to the Exchange Agent herewith shall be deemed tendered. See
Instruction 4.
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BOX 2
BENEFICIAL OWNER(S)
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State of Principal Residence of Each Principal Amount of Tendered Notes
Beneficial Owner of Tendered Notes Held for Account of Beneficial Owner
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BOX 3
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 5, 6 and 7)
TO BE COMPLETED ONLY IF EXCHANGE NOTES ARE TO BE EXCHANGED FOR SERIES A NOTES
AND UNTENDERED SERIES A NOTES ARE TO BE SENT TO SOMEONE OTHER THAN THE
UNDERSIGNED, OR TO THE UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail Exchange Note(s) and any untendered Series A Notes to:
Name(s):
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(please print)
Address:
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(Include Zip Code)
Tax Identification or
Social Security No.:
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BOX 4
USE OF GUARANTEED DELIVERY
(See Instruction 2)
TO BE COMPLETED ONLY IF SERIES A NOTES ARE BEING TENDERED BY MEANS OF A NOTICE
OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s):
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Date of Execution of Notice of Guaranteed Delivery:
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Name of Institution which Guaranteed Delivery:
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BOX 5
USE OF BOOK-ENTRY TRANSFER
(See Instruction 1)
TO BE COMPLETED ONLY IF DELIVERY OF TENDERED NOTES IS TO BE MADE BY BOOK-ENTRY
TRANSFER.
Name of Tendering Institution:
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Account Number:
----------------------------------------------------------------
Transaction Code Number:
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BOX 6
TENDERING HOLDER SIGNATURE
(See Instructions 1 and 5)
IN ADDITION, SUBSTITUTE FORM W-9 MUST BE COMPLETED AND SIGNED
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X Signature Guarantee
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X (If required by Instruction 5)
--------------------------
(Signature of Registered Holder(s) or Authorized Signatory) Authorized Signature
Note: The above lines must be signed by the
registered holder(s) of Series A Notes or by X
person(s) authorized to become registered holder(s) ---------------------------------
(evidence of such authorization must be transmitted Name:
with this Letter of Transmittal). If signature is -----------------------------
by a trustee, executor, administrator, guardian, (please print)
attorney-in-fact, officer, or other person acting
in a fiduciary or representative capacity, such
person must set forth his or her full title below.
See Instruction 5. Title:
----------------------------
Name of Firm:
---------------------
Name(s): (Must be an Eligible Institution as
-------------------------------------------- defined in Instruction 2)
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Capacity: Address:
------------------------------------------- --------------------------
--------------------------
Street Address:
-------------------------------------- --------------------------
-------------------------------------- Area Code and Telephone Number:
(include ZIP code)
Area Code and Telephone Number:
--------------------------------------------
Tax Identification or Social Security Number: Dated:
--------------------------------------------- --------------------------
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BOX 7
BROKER-DEALER STATUS
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[ ] Check this box if the Beneficial Owner of the Series A Notes is a
broker-dealer and such broker-dealer acquired the Series A Notes for
its own account as a result of market-making activities or other
trading activities.
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SIMCALA, INC.
INSTRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND SERIES A NOTES. A
properly completed and duly executed copy of this Letter of Transmittal,
including Substitute Form W-9, and any other documents required by this Letter
of Transmittal must be received by the Exchange Agent at its address set forth
herein, and either Certificates for Tendered Notes must be received by the
Exchange Agent at its address set forth herein or such Tendered Notes must be
transferred pursuant to the procedures for book-entry transfer described in the
Prospectus under the caption "Exchange Offer - Procedures for Tendering" (and a
confirmation of such transfer received by the Exchange Agent), in each case
prior to 5:00 P.M., Eastern Time, on the Expiration Date. The method of delivery
of Certificates for Tendered Notes, this Letter of Transmittal and all other
required documents to the Exchange Agent is at the election and risk of the
tendering holder, and the delivery will be deemed made only when actually
received by the Exchange Agent. If delivery is by mail, registered mail with
return receipt requested, properly insured, is recommended. 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 assure timely
delivery. No Letter of Transmittal or Series A Notes should be sent to the
Company. Neither the Company nor the registrar or transfer agent is under any
obligation to notify any tendering holder of the Company's acceptance of
Tendered Notes prior to the closing of the Exchange Offer.
2. GUARANTEED DELIVERY PROCEDURES. Holders who wish to tender their
Series A Notes but whose Series A Notes are not immediately available, and who
cannot deliver their Series A Notes, this Letter of Transmittal or any other
documents required hereby to the Exchange Agent prior to the Expiration Date
must tender their Series A Notes according to the guaranteed delivery procedures
set forth below, including completion of Box 4. Pursuant to such procedures: (i)
such tender must be made by an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended,
and which is a member of a recognized signature guarantee program (i.e.,
Securities Transfer Agents Medallion Program, Stock Exchange Medallion Program
or New York Stock Exchange Medallion Signature Program) (an "Eligible
Institution") and the Notice of Guaranteed Delivery must be signed by the
holder; (ii) prior to the Expiration Date, the Exchange Agent must have received
from the holder and the Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by mail, hand delivery or facsimile
transmission) setting forth the name and address of the holder, the Certificate
number(s) of the Tendered Notes and the principal amount of Tendered Notes,
stating that the tender is being made thereby and guaranteeing that, within five
trading days after the Expiration Date, this Letter of Transmittal together with
the Certificate(s) representing the Series A Notes and any other required
documents will be deposited by the Eligible Institution with the Exchange Agent;
and (iii) such properly completed and executed Letter of Transmittal, as well as
all other documents required by this Letter of Transmittal and the
Certificate(s) representing all Tendered Notes in proper form for transfer, must
be received by the Exchange Agent within three trading days after the Expiration
Date. Any holder who wishes to tender Series A Notes pursuant to the guaranteed
delivery procedures described above must ensure that the Exchange Agent receives
the Notice of Guaranteed Delivery relating to such Series A Notes prior to 5:00
P.M., Eastern Time, on the Expiration Date.
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3. BENEFICIAL OWNER INSTRUCTIONS TO REGISTERED HOLDERS. Only a holder
in whose name Tendered Notes are registered on the books of the registrar (or
the legal representative or attorney-in-fact of such registered holder) may
execute and deliver this Letter of Transmittal. Any Beneficial Owner of Tendered
Notes who is not the registered holder must arrange promptly with the registered
holder to execute and deliver this Letter of Transmittal on his or her behalf
through the execution and delivery to the registered holder of the "Instructions
to Registered Holder and/or Book-Entry Transfer Facility Participant from Owner"
form accompanying this Letter of Transmittal. The Company, the Exchange Agent,
and the transfer agent and registrar for Series A Notes shall be entitled to
rely upon all representations, warranties, covenants and instructions given by
such registered holder as have been duly authorized and true with respect to,
and binding upon, the Beneficial Owner.
4. PARTIAL TENDERS. Tenders of Series A Notes will be accepted only in
integral multiples of $1,000 in principal amount. If less than the entire
principal amount of Series A Notes held by the holder is tendered, the tendering
holder should fill in the principal amount tendered in the column labeled
"Aggregate Principal Amount Tendered" of the box entitled "Description of Notes
Tendered" (Box 1) above. The entire principal amount of Series A Notes delivered
to the Exchange Agent will be deemed to have been tendered unless otherwise
indicated. If the entire principal amount of all Series A Notes held by the
holder is not tendered, then Series A Notes for the principal amount of Series A
Notes not tendered and Exchange Notes issued in exchange for any Series A Notes
tendered and accepted will be sent to the registered holder at his or her
registered address, unless a different address is provided in the appropriate
box on this Letter of Transmittal, as soon as practicable following the
Expiration Date.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed
by the registered holder(s) of the Tendered Notes, the signature must correspond
with the name(s) as written on the face of the Tendered Notes without
alteration, enlargement or any change whatsoever.
If any of the Tendered Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any Tendered
Notes are held in different names, it will be necessary to complete, sign and
submit as many separate copies of the Letter of Transmittal as there are
different names in which Tendered Notes are held.
If this Letter of Transmittal is signed by the registered holder(s) of
Tendered Notes, and Exchange Notes issued in exchange therefor are to be issued
(and any untendered principal amount of Series A Notes is to be reissued) in the
name of the registered holder(s), then such registered holder(s) need not and
should not endorse any Tendered Notes, nor provide a separate bond power. In any
other case, such registered holder(s) must either properly endorse the Tendered
Notes or transmit a properly completed separate bond power with this Letter of
Transmittal, with the signature(s) on the endorsement or bond power guaranteed
by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of any Tendered Notes, such Tendered Notes must be endorsed
or accompanied by appropriate bond powers, in each case, signed as the name(s)
of the registered holder(s) appear(s) on the Tendered Notes, with the
signature(s) on the endorsement or bond power guaranteed by an Eligible
Institution.
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If this Letter of Transmittal or any Tendered Notes or bond powers are
signed by a trustee, executors, administrators, guardians, attorneys-in-fact,
officers of corporations, or others acting in a fiduciary or representative
capacity, such person should so indicate when signing and, unless waived by the
Company, evidence satisfactory to the Company of their authority to so act must
be submitted with this Letter of Transmittal.
Endorsements on Tendered Notes or signatures on bond powers required by
this Instruction 5 must be guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal must be guaranteed by an
Eligible Institution unless the Tendered Notes are tendered (i) by a registered
holder who has not completed the box set forth herein entitled "Special Delivery
Instructions" (Box 3) or (ii) by an Eligible Institution.
6. SPECIAL DELIVERY INSTRUCTIONS. Tendering holders should indicate, in
the applicable box (Box 3), the name and address to which the Exchange Notes
and/or substitute Series A Notes for principal amounts are tendered or not
accepted for exchange, respectively are to be 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.
7. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Tendered Notes pursuant to the Exchange Offer. If,
however, a transfer tax is imposed for any reason other than the transfer and
exchange of Tendered Notes pursuant to the Exchange Offer, then the amount of
any such transfer taxes (whether imposed on the registered holder or on any
other person) 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.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Tendered Notes listed in this Letter of
Transmittal.
8. TAX IDENTIFICATION NUMBER. Federal income tax law requires that the
holder(s) of any Tendered Notes which are accepted for exchange must provide the
Company (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 Company is not provided with the correct TIN, the holder
may be subject to backup withholding and a $50 penalty imposed by the Internal
Revenue Service. (If withholding results in an over-payment of taxes, a refund
may be obtained.) Certain holders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional
instructions.
To prevent backup withholding, each holder of Tendered Notes 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 Tendered Notes are registered in more than one name
or are not in the name of the actual owner, consult the
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"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for information on which TIN to report.
The Company reserves the right in its sole discretion to take whatever
steps are necessary to comply with the Company'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
Notes will be determined by the Company in its sole discretion, and whose
determination will be final and binding. The Company reserves the right to
reject any and all Series A Notes not validly tendered or any Series A Notes the
Company's acceptance of which would, in the opinion of the Company or its
counsel, be unlawful. The Company also reserves the right to waive any
conditions of the Exchange Offer or defects or irregularities in tenders of
Series A Notes as to any ineligibility of any holder who seeks to tender Series
A Notes in the Exchange Offer. The interpretation of the terms and conditions of
the Exchange Offer (including this Letter of Transmittal and the instructions
hereto) by the Company shall be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of Series A Notes must
be cured within such time as the Company shall determine. Neither the Company,
the Exchange Agent nor any other person shall be under any duty to give
notification of defects or irregularities with respect to tenders of Series A
Notes, nor shall any of them incur any liability for failure to give such
notification. Tenders of Series A Notes will not be deemed to have been made
until such defects or irregularities have been cured or waived. Any Series A
Notes received by the Exchange Agent that are not properly tendered and as to
which the defects or irregularities have not been cured or waived will be
returned by the Exchange Agent to the tendering holder, unless otherwise
provided in this Letter of Transmittal, as soon as practicable following the
Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
amend, waive or modify any of the conditions in the Exchange Offer in the case
of any Tendered Notes.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular, or
contingent tender of Series A Notes or transmittal of this Letter of Transmittal
will be accepted.
12. MUTILATED, LOST, STOLEN OR DESTROYED NOTES. Any tendering holder
whose Series A Notes have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated herein for further
instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and
requests for assistance and requests for additional copies of the Prospectus or
this Letter of Transmittal may be directed to the Exchange Agent at the address
indicated herein. Holders may also contact their broker, dealer, commercial
bank, trust company or other nominee for assistance concerning the Exchange
Offer.
14. ACCEPTANCE OF TENDERED NOTES AND ISSUANCE OF NOTES; RETURN OF
NOTES. Subject to the terms and conditions of the Exchange Offer, the Company
will accept for exchange all validly tendered Series A Notes as soon as
practicable after the Expiration Date and will issue Exchange Notes therefor as
soon as practicable thereafter. For purposes of the Exchange Offer, the Company
shall be deemed to have accepted tendered Series A Notes when, as and if the
Company has given written or oral notice (immediately followed in writing)
thereof to the Exchange Agent. If any Tendered Notes are not exchanged pursuant
to the Exchange Offer for any reason, such
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unexchanged Series A Notes will be returned, without expense, to the undersigned
at the address shown in Box 1 or at a different address as may be indicated
herein under "Special Delivery Instructions" (Box 3).
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the
procedures set forth in the Prospectus under the caption "The Exchange Offer."
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IBJ SCHRODER BANK & TRUST COMPANY, EXCHANGE AGENT
ONE STATE STREET
NEW YORK, NEW YORK 10004
(212) 858-2103