EXHIBIT 99.1
LETTER OF TRANSMITTAL
AXTEL, S.A. de C.V.
OFFER TO EXCHANGE ITS 11% SENIOR NOTES DUE 2013
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, FOR ANY AND ALL OUTSTANDING 11% SENIOR NOTES DUE 2013
PURSUANT TO THE PROSPECTUS, DATED __________, 2004
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THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON __________, 2004 (THE "EXPIRATION DATE"), UNLESS EXTENDED.
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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 as follows:
By Hand Delivery, Registered Mail Or Overnight Carrier
The Bank of New York
101 Barclay Street
Floor 7E
New York, New York 10286
Attention: Corporate Trust Operations, Reorganization
Facsimile Transmission:
(212) 298-1915
Confirm by Telephone or For Information:
(212) 815-5920
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY. DO NOT DELIVER THIS LETTER OF TRANSMITTAL TO
AXTEL, S.A. de C.V.
FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY
ADDITIONAL INFORMATION, YOU MAY CONTACT THE EXCHANGE AGENT BY
TELEPHONE AT (212) 815-5920, OR FACSIMILE AT (212) [ ].
The undersigned acknowledges receipt of the Prospectus, dated __________,
2004 (the "Prospectus"), of Axtel, S.A. de C.V., a variable capital company
(sociedad anonima de capital variable) organized under the laws of the United
Mexican States (the "Company"), and this Letter of Transmittal (this "Letter"),
which together constitute the Company's offer (the "Exchange Offer") to exchange
up to US$175,000,000 aggregate principal amount of its 11% Senior Notes
due 2013 (the "Exchange Notes"), which exchange has been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement of which the Prospectus constitutes a part, for a like
amount of its outstanding 11% Senior Notes due 2013 (the "Outstanding Notes").
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Prospectus.
For each Outstanding Note accepted for exchange, the holder of such
Outstanding Note will receive an Exchange Note, having a principal amount equal
to that of the surrendered Outstanding Note. The Exchange Notes will accrue
interest at the rate of 11% per annum from the last date on which interest was
paid on the Outstanding Notes surrendered in exchange therefor or if no interest
has been paid, from the original issue date of the Outstanding Notes. No
additional interest will be paid on Outstanding Notes tendered and accepted for
exchange.
The Company reserves the right, in its sole discretion, to extend the
Exchange Offer, in which event the term "Expiration Date" shall mean the latest
time and date to which the Exchange Offer is extended. The Company reserves the
right, in its sole discretion, to delay accepting for exchange any Outstanding
Notes and, subject to the terms set forth in "The Exchange Offer--Expiration
Date; Extensions; Amendments", to amend the terms of the Exchange Offer in any
manner. The Company also reserves the right, in its sole discretion, to extend
or terminate the Exchange Offer and to refuse to accept Outstanding Notes not
previously accepted if any of the conditions set forth in "The Exchange
Offer--Conditions" have not been satisfied by the Expiration Date.
This Letter is to be completed by a holder of Outstanding Notes either if a
tender of Outstanding Notes is to be made by book-entry transfer to the account
maintained by the Exchange Agent at The Depository Trust Company's Book-Entry
Transfer Facility (the "Book-Entry Transfer Facility") or if Outstanding Notes
are to be forwarded herewith pursuant to the procedure set forth in "The
Exchange Offer--Procedures for Tendering" section of the Prospectus. Holders of
Outstanding Notes whose certificates are not immediately available, or who are
unable to deliver their certificates or confirmation of the book-entry tender of
their Outstanding Notes into the Exchange Agent's account at the Book-Entry
Transfer Facility (a "Book-Entry Confirmation") and all other documents required
by this Letter to the Exchange Agent on or prior to the Expiration Date, must
tender their Outstanding Notes according to the guaranteed delivery procedures
set forth in "The Exchange Offer--Guaranteed Delivery Procedures" section of the
Prospectus. See Instruction 1. Delivery of documents to the Book-Entry Transfer
Facility does not constitute delivery to the Exchange Agent.
The undersigned has supplied the appropriate information and completed the
appropriate boxes below and signed this Letter to indicate the action the
undersigned desires to take with respect to the Exchange Offer.
If Outstanding Notes are being tendered in certificated form, list below
the Outstanding Notes to which this Letter relates. If the space provide below
is inadequate, the certificate numbers and principal amount of Outstanding Notes
should be listed on a separate signed schedule affixed hereto.
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DESCRIPTION OF OUTSTANDING NOTES
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1 2 3
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Name(s) and Security Aggregate Principal Amount Principal
Address(es) of Registered Holder(s) Amount
(Please fill in, if blank) Number(s)* of Outstanding Notes Tendered**
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$_________________
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$_________________
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$_________________
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$_________________
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Totals: $_________________
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* Need not be completed if Outstanding Notes are being tendered by book-entry
transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have
tendered ALL of the Outstanding Notes represented by the Outstanding Notes
indicated in column 2. See Instruction 3. Outstanding Notes tendered hereby
must be in principal amount of US$1000 and any integral multiple thereof.
See Instruction 1.
|_| CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution
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Account Number Transaction Code Number
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|_| CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s)
Window Ticket Number (if any)
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Date of Execution of Notice of Guaranteed Delivery
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Name of Institution that Guaranteed Delivery
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If Delivered by Book-Entry Transfer, Complete the Following:
Account Number Transaction Code Number
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|_| CHECK THIS BOX IF THE BENEFICIAL OWNER OF THE OUTSTANDING NOTES IS AN
EXCHANGING DEALER AND SUCH EXCHANGING DEALER ACQUIRED THE OUTSTANDING
NOTES FOR ITS OWN ACCOUNT AS A RESULT OF MARKETING-MAKING ACTIVITIES OR
OTHER TRADING ACTIVITIES.
|_| CHECK HERE IF YOU ARE AN EXCHANGING AGENT 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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PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of
Outstanding Notes indicated above. Subject to, and effective upon, the
acceptance for exchange of the Outstanding Notes tendered hereby, the
undersigned hereby sells, assigns and transfers to, or upon the order of, the
Company all right, title and interest in and to such Outstanding Notes as are
being tendered hereby.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Outstanding
Notes tendered hereby and that the Company 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 by
the Company. The undersigned hereby further represents that any Exchange Notes
acquired in exchange for Outstanding Notes tendered hereby will have been
acquired in the ordinary course of business of the person receiving such
Exchange Notes, whether or not such person is the undersigned, that neither the
undersigned nor any such other person is participating in, or intends to
participate in, or has any arrangement or understanding with any person to
participate in, the distribution of the Outstanding Notes or Exchange Notes
within the meaning of the Securities Act, and that neither the holder of such
Outstanding Notes nor any such other person is an "affiliate," as defined in
Rule 405 under the Securities Act, of the Company.
The undersigned also acknowledges that this Exchange Offer is being
made based upon the Company's understanding of an interpretation by the staff of
the Securities and Exchange Commission (the "SEC") as set forth in no-action
letters issued to third parties, including Exxon Capital Holdings Corporation
(available May 13, 1988), Morgan Stanley & Co. Incorporated (available June 5,
1991) and Shearman & Sterling (available July 2, 1993), that the Exchange Notes
issued in exchange for the Outstanding Notes pursuant to the Exchange Offer may
be offered for resale, resold and otherwise transferred by holders thereof
(other than (i) a broker-dealer who acquired such Outstanding Notes directly
from the Company for resale pursuant to Rule 144A under the Securities Act or
any other available exemption under the Securities Act or (ii) any such holder
that is an "affiliate" of the Company 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 Exchange Notes are
acquired in the ordinary course of such holders' business and such holders are
not engaged in, and do not intend to engage in, a distribution of such Exchange
Notes and have no arrangement with any person to participate in the distribution
of such Exchange Notes. If a holder of Outstanding Notes is engaged in or
intends to engage in a distribution of the Exchange Notes or has any arrangement
or understanding with respect to the distribution of the Exchange Notes to be
acquired pursuant to the Exchange Offer, such holder cannot rely on the
applicable interpretations of the staff of the SEC and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction. If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account pursuant to
the Exchange Offer, it represents that the Outstanding Notes to be exchanged for
the Exchange Notes were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange 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.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Outstanding Notes tendered hereby. All
authority conferred or agreed to be conferred in this Letter and every
obligation of the undersigned hereunder shall be binding upon the successors,
assigns, heirs, executors, administrators, trustees in bankruptcy and legal
representatives of the undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in "The Exchange
Offer--Withdrawal of Tenders" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please credit the Exchange Notes to the account indicated
above maintained at the Book-Entry Transfer Facility. The undersigned
understands that any Outstanding Notes tendered in certificated form will not be
exchanged for Exchange Notes in certificated from, but rather will be exchanged
for Exchange Notes in the form of a beneficial interest in the global note
representing the Exchange Notes by a credit of the Exchange Notes to an account
maintained at the Book-Entry Transfer Facility. Accordingly, any holder
tendering Outstanding Notes in certificated form must complete the box entitled
"Special Issuance Instructions" to specify the account at the Book-Entry
Transfer Facility that should be credited with the Exchange Notes to be received
in exchange. Please deliver any substitute certificates representing Outstanding
Notes not exchanged in the name of the undersigned, unless otherwise indicated
herein in the box entitled "Special Issuance Instructions" below, and please
send any such substitute certificates to the undersigned at the address shown
above in the box entitled "Description of Outstanding Notes," unless otherwise
indicated under the box entitled "Special Delivery Instructions" below.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF
OUTSTANDING NOTES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE OUTSTANDING NOTES AS SET FORTH IN SUCH BOX ABOVE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE
COMPLETING THE BOXES.
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 and 5) (See Instructions 4 and 5)
To be completed ONLY if certificates for To be completed ONLY if certificates for
Outstanding Notes are being tendered for exchange, if Outstanding Notes not exchanged are to be sent to
certificates for Outstanding Notes not exchanged are someone other than the person(s) whose signature(s)
to be issued in the name of and sent to someone other appears(s) on this Letter above or to such
than the person(s) whose signature(s) appear(s) on person(s) at an address other than shown in the box
this Letter above or if Outstanding Notes delivered by entitled "Description of Outstanding Notes" on this
book-entry transfer which are not accepted for Letter above.
exchange are to be returned by credit to an account
maintained at the Book-Entry Transfer Facility other Mail substitute certificates for
than the account indicated above. Outstanding Notes to:
Credit Outstanding Notes in certificated form
accepted for exchange and unexchanged Outstanding Notes
delivered by book-entry transfer to the Book-Entry
Transfer Facility Account set forth below.
Name(s): Name(s):
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(Please Type or Print) (Please Type or Print)
Address: Address:
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(Including Zip Code)
(Including Zip Code)
|_| Credit unexchanged Outstanding Notes
delivered by book-entry transfer to
the DTC account set forth below.
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TENDERING HOLDER SIGNATURE
(SEE INSTRUCTIONS 1 AND 4)
IN ADDITION, COMPLETE FORM W-9
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IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF (TOGETHER WITH THE OUTSTANDING
NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE
NOTICE OF GUARANTEED DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO
5:00 P.M. NEW YORK CITY TIME, ON THE EXPIRATION DATE.
X
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X
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(Signature(s) of Holders or Authorized Signatory)
Note: The above lines must be signed by the registered holder(s) of Outstanding
Notes as their name(s) appear(s) on the Outstanding Notes or by person(s) Name:
authorized to become registered holder(s) (evidence of such authorization must
be transmitted with this Letter (please print) of Transmittal).
If signature is by a trustee, executor, administrator, guardian,
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 Name of Firm Instruction 4. (Must be an Eligible Institution as defined in
Instruction 4)
Name:
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(Please Type or Print)
Capacity:
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Address:
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(Include ZIP Code)
Area Code and Telephone Number:
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Tax Identification or Social Security Number:
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SIGNATURE GUARANTEE (If required by Instruction 4)
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(Authorized Signature)
Name:
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(Please Print)
Title:
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Name of Firm:
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(Must Be an Eligible Institution as defined in Instruction 4)
Address:
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(Include ZIP Code)
Area Code and Telephone Number:
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Dated: , 2002
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OFFER TO EXCHANGE BY AXTEL, S.A. de
C.V. OF 11% SENIOR NOTES DUE 2013 WHICH HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL
OUTSTANDING 11% SENIOR NOTES DUE 2013
1. DELIVERY OF THIS LETTER AND OUTSTANDING SECURITIES.
Except as set forth below, (i) a holder who wishes to tender Outstanding
Notes for exchange pursuant to the Exchange Offer must mail or otherwise deliver
this Letter, properly completed and validly executed, including Form W-9 and all
other documents required by this Letter, to the Exchange Agent at its address
set forth herein, and the certificates for Outstanding Notes must be received by
the Exchange Agent at its address set forth herein or (ii) such Outstanding
Notes must be transferred pursuant to the procedures for book-entry transfer
described in the Prospectus, which procedures require a timely confirmation of
such transfer of Outstanding Notes into the Exchange Agent's account, and timely
receipt by the Exchange Agent of an "Agent's Message" and any other documents
required by this Letter. 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, that states that DTC has received an express
acknowledgment from a participant in DTC tendering outstanding notes that are
the subject of the book-entry confirmation stating (a) the aggregate principal
amount of Outstanding Notes that have been tendered by such participant, (b)
that such participant has received and agrees to be bound by the terms of the
Letter of Transmittal and (c) that we may enforce such agreement against the
participant.
The method of delivery of this Letter, the Outstanding Notes and all other
required documents to the Exchange Agent , including delivery through DTC, is at
the election and risk of the tendering holders. The delivery will be deemed made
only when actually received or confirmed by the Exchange Agent. Delivery of
documents to DTC in accordance with its procedures does not constitute delivery
to the Exchange Agent. If such delivery is by mail, it is suggested that
certified or registered mail, properly insured, with return receipt requested,
be used. Instead of delivery by mail, it is recommended that holders use an
overnight or hand delivery service. In all cases, arrangements should be made
sufficiently in advance of the Expiration Date to permit delivery to the
Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
No Letter of Transmittal, Outstanding Notes, or other required documents should
be sent to the Company. Neither the Company nor the Exchange Agent is under any
obligation to notify any tendering holder of the Company's acceptance of
tendered Outstanding Notes prior to the closing of the Exchange Offer.
Outstanding Notes tendered hereby must be in a principal amount of
US$1000.0 and any integral multiple thereof.
2. GUARANTEED DELIVERY PROCEDURES.
Holders of Outstanding Notes whose certificates for Outstanding 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, or
who cannot deliver a confirmation of
book-entry transfer of Outstanding Notes into the Exchange Agent's account at
DTC, or who cannot complete the procedure for book-entry transfer on a timely
basis, may tender their Outstanding Notes pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer--Guaranteed Delivery Procedures"
section of the Prospectus. Pursuant to such procedures, (i) such tender must be
made through an Eligible Institution (as defined below), (ii) before the
Expiration Date, the Exchange Agent must receive from such Eligible Institution
a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Company (by facsimile transmission,
mail or hand delivery), setting forth the name and address of the holder of
Outstanding Notes, the certificate number or numbers and the principal amount of
such Outstanding Notes tendered, stating that the tender is being made thereby
and guaranteeing that within three business days after the Expiration Date, this
Letter (or facsimile hereof), together with a Book-Entry Confirmation, and all
other documents required by this Letter will be deposited by the Eligible
Institution with the Exchange Agent and (iii) such properly completed and
executed Letter of Transmittal (or facsimile hereof) and all documents required
thereby and Book-Entry Confirmation, are received by the Exchange Agent within
three business days after the Expiration Date. Any holder 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
relating to such Outstanding Notes prior to 5:00 p.m., New York City time, on
the Expiration Date.
See "The Exchange Offer" section of the Prospectus.
3. BENEFICIAL OWNER INSTRUCTIONS TO REGISTERED HOLDERS.
Only a holder in whose name tendered Outstanding 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 Outstanding Notes who is not the registered holder
must contact the registered owner promptly and either make appropriate
arrangements to register ownership of the Outstanding Notes in the beneficial
owner's name or arrange 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 beneficial owner form accompanying this
Letter of Transmittal.
4. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS OF OUTSTANDING NOTES WHO TENDER
BY BOOK-ENTRY TRANSFER).
If less than all of the Outstanding Notes evidenced by a submitted
certificate are to be tendered, the tendering holder(s) should fill in the
aggregate principal amount of Outstanding Notes to be tendered in the box above
entitled "Description of Outstanding Notes--Principal Amount Tendered." A
reissued certificate representing the balance of nontendered Outstanding Notes
will be sent to such tendering holder, unless otherwise provided in the
appropriate box on this Letter, promptly after the Expiration Date. All of the
Outstanding Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
5. SIGNATURES ON THIS LETTER; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF
SIGNATURES.
If this Letter is signed by the registered holder of the Outstanding Notes
tendered hereby, the signature must correspond exactly with the name as written
on the face of the certificates without any change whatsoever.
If any tendered Outstanding Notes are owned of record by two or more joint
owners, all such owners must sign this Letter.
If any tendered Outstanding Notes are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter as there are different registrations of
certificates.
When this Letter is signed by the registered holder of the Outstanding
Notes specified herein and tendered hereby, no endorsements of certificates or
separate bond powers are required. If, however, the Exchange Notes are to be
issued, or any untendered Outstanding Notes are to be reissued, to a person
other than the registered holder, then endorsements of any certificates
transmitted hereby or separate bond powers are required. Signatures on such
certificates must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder of
any certificates specified herein, such certificates must be endorsed or
accompanied by appropriate bond powers, in either case signed exactly as the
name of the registered holder appears on the certificates and the signatures on
such certificates must be guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted.
ENDORSEMENTS ON CERTIFICATES FOR OUTSTANDING NOTES OR SIGNATURES ON BOND
POWERS REQUIRED BY THIS INSTRUCTION 4 MUST BE GUARANTEED BY A FIRM WHICH IS A
MEMBER OF A REGISTERED NATIONAL SECURITIES EXCHANGE OR A MEMBER OF THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC., BY A COMMERCIAL BANK OR TRUST COMPANY
HAVING AN OFFICE OR CORRESPONDENT IN THE UNITED STATES OR BY AN "ELIGIBLE
GUARANTOR INSTITUTION" WITHIN THE MEANING OF RULE 17AD-15 UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED (AN "ELIGIBLE INSTITUTION").
SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE
INSTITUTION, PROVIDED THE OUTSTANDING NOTES ARE TENDERED: (I) BY A REGISTERED
HOLDER OF OUTSTANDING NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER,
INCLUDES ANY PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY SYSTEM WHOSE NAME
APPEARS ON A SECURITY POSITION LISTING AS THE HOLDER OF SUCH OUTSTANDING NOTES)
TENDERED WHO HAS NOT COMPLETED THE BOX ENTITLED "SPECIAL ISSUANCE INSTRUCTIONS"
OR "SPECIAL DELIVERY INSTRUCTIONS" ON THIS LETTER OR (II) FOR THE ACCOUNT OF AN
ELIGIBLE INSTITUTION.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Outstanding Notes should indicate in the applicable
box the account at the Book-Entry Transfer Facility to which Exchange Notes
issued pursuant to the Exchange Offer are to be credited, if different from the
account number appearing below the box entitled
"Description of Outstanding Notes." Outstanding Notes tendered in certificated
form will not be exchanged for Exchange Notes in certificated form, but rather
will be exchanged for Exchange Notes in the form of a beneficial interest in the
global note representing the Exchange Notes by a credit of the Exchange Notes to
an account maintained at the Book-Entry Transfer Facility. Accordingly, any
holder tendering Outstanding Notes in certificated form must indicate in the box
entitled "Special Issuance Instructions" to specify the account at the
Book-Entry Transfer Facility that should be credited with the Exchange Notes to
be received in exchange. Any substitute certificates representing Outstanding
Notes not exchanged will be delivered in the name of the undersigned at the
address shown above in the box entitled "Description of Outstanding Notes,"
unless otherwise indicated herein in the appropriate box.
7. U.S. BACKUP TAX WITHHOLDING AND INTERNAL REVENUE SERVICE FORM W-9.
Federal income tax law requires that the holder(s) of any tendered
Outstanding 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 overpayment 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 Form W-9 with instructions, and "Instructions for the
Requester of Form W-9" (both of which may be obtained on the Internal Revenue
Service Website at www.irs.gov)
To prevent backup withholding, each holder of tendered Outstanding Notes
must provide such holder's correct TIN by completing the Form W-9, certifying
that the TIN provided is correct (or that such holder is awaiting for a TIN to
be issued to such holder), 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 Outstanding Notes are registered in more
than one name or are not in the name of the actual owner, consult the Form W-9
with instructions.
The Company reserves the right in its sole discretion to take whatever
steps are necessary to comply with the Company's obligation regarding backup
withholding.
8. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Outstanding Notes to it or its order pursuant to the Exchange Offer. If,
however, Exchange Notes and/or substitute Outstanding Notes not exchanged 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, or if a transfer tax is imposed for any reason
other than the transfer of Outstanding Notes to the Company or its order
pursuant to the Exchange Offer, the amount of any such transfer taxes (whether
imposed on the registered holder or any other persons) will be payable by this
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted herewith, the amount of such transfer taxes will be
billed directly to such tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 7, IT IS NOT NECESSARY FOR TRANSFER
TAX STAMPS TO BE AFFIXED TO THE OUTSTANDING NOTES SPECIFIED IN THIS LETTER.
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 Company in its sole discretion, which determination will be
final and binding. The Company reserves the absolute right to reject any and all
Outstanding Notes not properly tendered or any Outstanding Notes the Company's
acceptance of which would, in the opinion of the Company or its counsel, be
unlawful. 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. The Company also reserves the
absolute right to waive any defects or irregularities or conditions of the
Exchange Offer as to any particular Outstanding Notes either before or after the
Expiration Date. Unless waived, any defects or irregularities in connection with
tenders of Outstanding 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 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,
or in the case of Outstanding Notes delivered by book-entry transfer within DTC,
will be credited to the account maintained within DTC by the participant in DTC
which delivered such Outstanding Notes, 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 waive satisfaction of any or all
conditions enumerated in the Prospectus.
11. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders of Outstanding Notes, by execution of this
Letter, shall waive any right to receive notice of the acceptance of their
Outstanding Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Outstanding Notes, nor shall any of them incur any liability for failure to give
any such notice.
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.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter, may be directed to the
Exchange Agent, at the address and telephone number indicated above.
14. ACCEPTANCE OF TENDERED OUTSTANDING NOTES AND ISSUANCE OF EXCHANGE NOTES;
RETURN OF OUTSTANDING NOTES.
Subject to the terms and conditions of the Exchange Offer, the Company will
accept for exchange all validly tendered Outstanding Notes as promptly as
practicable after the Expiration Date and will issue Exchange Notes therefor as
promptly as practicable thereafter. For purposes of the Exchange Offer, the
Company shall be deemed to have accepted tendered Outstanding Notes when, as and
if the Company has given oral or written notice thereof to the Exchange Agent.
If any tendered Outstanding Notes are not exchanged pursuant to the Exchange
Offer for any reason, such unexchanged Outstanding Notes will be returned by the
Exchange Agent to the tendering holders, as promptly as practicable following
the Expiration Date to the undersigned at the address shown in the box entitled
"Description of Outstanding Notes" or at a different address as may be indicated
in the box entitled "Special Delivery Instructions."
15. WITHDRAWAL.
Tenders may be withdrawn only pursuant to the procedures set forth in the
Prospectus under the caption "The Exchange Offer."