BURKE INDUSTRIES, INC.
CONSENT TO AMENDMENTS TO INDENTURE
With Respect To
10% SENIOR NOTES DUE 2007
--------------------
Pursuant to the
Consent Solicitation Statement dated March 30, 1998
THIS FULLY COMPLETED AND EXECUTED CONSENT FORM SHOULD BE HAND DELIVERED,
SENT BY OVERNIGHT COURIER, OR FACSIMILE (FOLLOWED BY DELIVERY BY HAND OR
OVERNIGHT COURIER) AS FOLLOWS:
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THE SOLICITATION WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL 10,
1998 (AS SUCH TIME MAY BE EXTENDED BY THE COMPANY, THE "EXPIRATION DATE").
CONSENTS MAY BE REVOKED IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE
ACCOMPANYING CONSENT SOLICITATION STATEMENT AND IN THIS CONSENT FORM AT ANY
TIME UP TO THE EXPIRATION DATE, BUT WILL BECOME IRREVOCABLE THEREAFTER.
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The Tabulation Agent for the Solicitation is:
UNITED STATES TRUST COMPANY OF NEW YORK
By Overnight Courier: By Hand: By Registered or Certified Mail:
United States Trust Company United States Trust Company United States Trust Company
of New York of New York of New York
770 Broadway, 13th Floor 111 Broadway, Lower Level P.O. Box 844, Cooper Station
New York, New York 10003 New York, New York 10006 New York, New York 10276-0844
Attn: Corporate Trust Attn: Corporate Trust Services Attn: Corporate Trust Services
Services
By Facsimile Transmission
(212) 420-6152
Confirm by Telephone
(800) 548-6565
DELIVERY OF THE INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF THIS CONSENT FORM VIA FACSIMILE TRANSMISSION OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING
THIS CONSENT FORM SHOULD BE READ CAREFULLY BEFORE THIS CONSENT FORM IS
COMPLETED.
INSTRUCTIONS MAY BE FOUND AT THE END OF THE ATTACHED EXHIBIT A FOR
CONVENIENCE.
The undersigned is a Holder (as defined in the Consent Solicitation
Statement) of 10% Senior Notes Due 2007 (the "Existing Notes") of Burke
Industries, Inc. (the "COMPANY") issued under the Indenture dated as of
August 20, 1997 (the "ORIGINAL INDENTURE") between the Company, the Subsidiary
Guarantors and United States Trust Company of New York (the "TRUSTEE").
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As a Holder of such Existing Notes, the undersigned hereby
CONSENTS / / DOES NOT CONSENT / /
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with respect to each of the proposed amendments (the "PROPOSED AMENDMENTS") to
be made to the Original Indenture under which such Holder holds Existing Notes,
which Proposed Amendments are described in the Company's Consent Solicitation
Statement of even date herewith (the "CONSENT SOLICITATION STATEMENT"). IF NONE
OF THE BOXES IS CHECKED, BUT THIS FORM OF CONSENT IS OTHERWISE PROPERLY
COMPLETED AND SIGNED, THE COMPANY WILL DEEM THE HOLDER TO HAVE CONSENTED TO THE
PROPOSED AMENDMENTS. BY EXECUTION HEREOF, THE UNDERSIGNED ACKNOWLEDGES RECEIPT
OF THE CONSENT SOLICITATION STATEMENT AND THE COMPANY'S PRELIMINARY OFFERING
MEMORANDUM DATED MARCH 30, 1998. Holders must consent to all the Proposed
Amendments or none of them. All capitalized terms used herein without
definition shall have the meanings ascribed to them in the Consent Solicitation
Statement.
Following the Expiration Date, assuming the Requisite Consents have been
obtained, the Offering has been consummated and the Mercer Acquisition has
closed, the Company will deliver a certification to the Trustee stating that the
Requisite Consents have been received and accepted. Thereafter, the Company and
the Trustee shall execute the First Supplemental Indenture. Upon the Company's
and the Trustee's execution of the First Supplemental Indenture (the "Effective
Date"), the Proposed Amendments will be binding on all Holders of the
outstanding Existing Notes, including non-consenting Holders and subsequent
holders.
Unless otherwise specified by the undersigned, this Consent form relates to
all Existing Notes of which the undersigned is the Holder. If this form relates
to less than all of the Existing Notes as to which the undersigned is a Holder,
the specific Existing Notes to which this Consent relates shall be identified on
the table attached hereto in Exhibit A. If no such identification is made, this
Consent form shall relate to all Existing Notes of which the undersigned is
Holder.
A consent hereby given, if effective, will be binding upon the Holder of
the Existing Notes who gives such consent and upon any subsequent transferee or
transferees of such Existing Notes, unless the Tabulation Agent receives on or
before the Expiration Date from a Holder or subsequent transferee a properly
completed and duly executed notice of revocation or changed Consent bearing a
date no later than the Expiration Date.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF EXISTING
NOTES" IN THE ATTACHED EXHIBIT "A" AND BY SIGNING THIS CONSENT FORM, MAY BE
DEEMED TO HAVE CONSENTED TO THE PROPOSED AMENDMENTS WITH RESPECT TO SUCH
EXISTING NOTES AND TO HAVE MADE CERTAIN REPRESENTATIONS AS DESCRIBED HEREIN AND
IN THE CONSENT SOLICITATION STATEMENT. ONLY RECORD HOLDERS OF EXISTING NOTES
AND PERSONS AUTHORIZED TO SIGN BY RECORD HOLDERS AS EVIDENCED BY THE EXECUTED
FORM OF PROXY IN THE ATTACHED EXHIBIT "A" ARE ENTITLED TO CONSENT TO THE
PROPOSED AMENDMENTS. IF THE UNDERSIGNED IS NOT THE RECORD HOLDER OF THE
EXISTING NOTES, THE UNDERSIGNED MUST HAVE THE RECORD HOLDER SIGN THE FORM OF
PROXY APPEARING IN THE ATTACHED EXHIBIT "A."
THE SOLICITATIONS ARE NOT BEING MADE TO, NOR WILL CONSENT FORMS BE ACCEPTED
FROM OR ON BEHALF OF, HOLDERS IN ANY JURISDICTION IN WHICH THE MAKING OF THE
SOLICITATION OR THE ACCEPTANCE OF SUCH CONSENT FORMS WOULD NOT BE IN COMPLIANCE
WITH THE LAWS OF SUCH JURISDICTION.
2
PLEASE READ THIS ENTIRE CONSENT FORM CAREFULLY BEFORE SIGNING BELOW
Holders who wish to consent to the Proposed Amendments must complete the
box below entitled "DESCRIPTION OF EXISTING NOTES" contained in Exhibit "A"
hereto and sign below. If the "Aggregate Principal Amount of Existing Notes as
to which Consent is Given" in column (4) of such box is left blank, the Holder
delivering this Consent form may be deemed to have given its Consent as to all
Existing Notes owned by such Holder.
Consents must be received by the Tabulation Agent, as specified above,
before 5:00 p.m., New York City time, on April 10, 1998, unless such date is
extended by the Company, in its sole discretion.
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TO CONSENT TO PROPOSED AMENDMENTS, PLEASE SIGN BELOW
(See Instructions 1, 2 and 3)
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Signature(s) of Holder(s) Date
PLEASE TYPE OR PRINT INFORMATION BELOW
Name(s):
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Capacity:
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Address:
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(Including Zip Code)
Area Code and
Telephone Number:
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SIGNATURE GUARANTEE
(If required: see Instruction 3)
Signature(s) Guaranteed
by an Eligible Institution:
----------------------------------------------------
(Authorized Signature)
----------------------------------------------------
(Title)
----------------------------------------------------
(Name of Eligible Institution)
Dated:
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IMPORTANT--READ CAREFULLY
Consents by Holder(s) of Existing Notes must be executed in exactly the
same name(s) as the Existing Notes are held. If Existing Notes to which a
Consent relates are held by two or more joint Holders, all such Holders must
sign the Consent. If a signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other Holder acting in a
fiduciary or representative capacity, such person should so indicate when
signing and must submit proper evidence to the Information Agent (satisfactory
to the Company) of such person's authority to so act. If Existing Notes are
held in different names, separate Consents must be executed covering each name.
Except in the case of DTC Participants, who are expected to sign pursuant to an
omnibus proxy delivered by DTC, if a Consent is executed by a person other than
the Record Holder(s), it must be accompanied by a proxy in substantially the
form included herewith, duly executed by such Record Holder(s), with the
signature guaranteed by
3
an Eligible Institution, confirming the right of the signatory to execute the
Consent on behalf of such Record Holder(s).
BACKUP WITHHOLDING INFORMATION
Under U.S. Federal income tax law, in certain circumstances, a consenting
Holder may be subject to backup withholding at the rate of 31% of any Consent
Payment made to the Holder, unless the consenting Holder (i) is a corporation or
is otherwise exempt and, when required, demonstrates this fact, or (ii) provides
a correct taxpayer identification number, certifies as to no loss of exemption
from backup withholding and otherwise complies with the applicable requirements
of the backup withholding rules. Backup withholding is not an additional tax.
Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained from the Internal Revenue Service.
A Holder whose Consent is accepted and who is not an exempt recipient must
provide the Company with his or her correct taxpayer identification number
("TIN") on Substitute Form W-9 below, or if such Holder is an exempt foreign
person, submit a substitute Form W-8 below in order to avoid backup withholding.
If such Holder is an individual, the taxpayer identification number generally is
his or her social security number. If the Existing Notes are in more than one
name or are not in the name of the actual owner, consult the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional guidelines on which number to report. In addition, if the Company is
not provided with the correct taxpayer information, the Holder may be subject to
a $50 penalty imposed by the Internal Revenue Service. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions. Holders who are exempt recipients
(including corporations) are not subject to these backup withholding and
reporting requirements.
4
PAYOR'S NAME: BURKE INDUSTRIES, INC.
(see instruction 5)
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Business name:
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Please check appropriate box:
/ / Individual/Sole / / Corporation / / Partnership / / Other
proprietor
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SUBSTITUTE PART 1 - PLEASE PROVIDE YOUR TIN IN Social Security
FORM W-9 THE BOX AT RIGHT AND CERTIFY BY Number or Employee
SIGNING AND DATING BELOW Identification Number
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Department of PART 2 - Certification--Under
the Treasury Penalties of Perjury, I certify that: PART 3 -
Internal Revenue
Service (1) The number shown on this form is
my correct Taxpayer
Identification Number (or I am
waiting for a number to be issued
to me).
Payor's Request (2) I am not subject to backup Awaiting TIN
for Taxpayer withholding because (a) I am
Identification exempt from backup withholding or
Number ("TIN") (b) I have not been notified by
the Internal Revenue Service / /
("IRS") that I am subject to
backup withholding as a result of
failure to report all interest or
dividends, or (c) the IRS has
notified me that I am not longer
subject to backup withholding.
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Certification Instructions - You must cross out item (2) in
Part 2 above if you have been notified by the IRS that you
are subject to backup withholding because of underreporting
interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS
stating that you are no longer subject to backup withholding
do not cross out item (2).
SIGNATURE: Date 1998
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY CONSENT PAYMENTS MADE TO YOU PURSUANT TO THE
SOLICITATION. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.
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CERTIFICATE OF PERSON (AWAITING) TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me and either (a) are 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 within sixty (60) days, 31% of all
reportable payments made to me thereafter will be withheld until I
provide a number.
SIGNATURE: Date 1998
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5
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Name:
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SUBSTITUTE Address:
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FORM W-8 TIN (if any)
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Department of the I (we) certify under penalties of perjury that:
Treasury Internal
Revenue Service 1. I am (we are) not a citizen of the
United States and I am neither a lawful
Non-U.S. Persons permanent resident of the United States
Only nor have I been, nor do I reasonably
expect to be present in the United
States for a period aggregating 183 or
Taxpayer more days during the calendar year; or
Identification
Number ("TIN") 2. I am (we are) a foreign corporation,
partnership, estate or trust.
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Signature: Date:
-------------------- -------------
Signature: Date:
-------------------- -------------
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Accepted by:
Signature: Date:
-------------------- -------------
Printed Name: Title:
----------------- ------------
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY CONSENT PAYMENTS MADE TO YOU. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
6
EXHIBIT A
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DESCRIPTION OF EXISTING NOTES
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Name(s) and
Address(es) of Certificate(s) as to which Consent is Given
Record Holder(s) (Attach additional list, if necessary)
or Cede & Co.
Participant(s)
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Aggregate
Principal Amount
of Existing
Notes as to
Aggregate Principal which Consent
Amount of Existing is Given*
Certificate or Notes (Must be an
Cede & Co. Represented by integral
Account Certificate(s) or multiple
Number(s) Held in Account(s) of $1,000)
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* If the Consent form relates to less than the aggregate principal amount of
Existing Notes registered in the name of the Record Holder(s), or held by
Cede & Co. for the account of the Participant(s) named above, list the
certificate or account numbers and principal amounts of Existing Notes to
which this Consent form relates. Otherwise, this Consent form may be
deemed to relate to the aggregate principal amount of Existing Notes
registered in the name of, or held by Cede & Co. for the account of, such
Record Holder(s) or Participant(s).
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7
FORM OF PROXY WITH RESPECT TO THE SOLICITATION
The undersigned hereby irrevocably appoints __________________________________
as attorney and proxy of the undersigned, with full power of substitution, to
execute and deliver the form of Consent on which this form of proxy is set forth
with respect to the Existing Notes in accordance with the terms of the
Solicitation, with all the power of the undersigned would possess if consenting
personally. THIS PROXY IS IRREVOCABLE AND IS COUPLED WITH AN INTEREST AND SHALL
EXPIRE ON THE DATE ON WHICH THE PROPOSED AMENDMENTS BECOME EFFECTIVE. The
aggregate principal amount and serial numbers of Existing Notes as to which
Proxy is given are set forth below. If such information is not provided in the
boxes below, this Proxy will be deemed to be given as to the total principal
amount of Existing Notes held by the Holder.
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Aggregate Principal Amount of Existing Note(s) Certificate Number(s)
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8
FORM OF PROXY
IMPORTANT--READ CAREFULLY
To authorize a proxy this proxy must be executed by the Holder(s) of the
Existing Notes in exactly the same name(s) as the Existing Notes are held. If
Existing Notes to which this proxy relates are held by two or more joint
holders, all such holders must sign this proxy. If a signature is by a trustee,
administrator, guardian, attorney-in-fact, officer of a corporation or other
Holder acting in a fiduciary or representative capacity, such person should so
indicate when signing and submit to the Information Agent appropriate evidence
(satisfactory to the Company) of such person's authority so to act.
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TO CONSENT TO PROPOSED AMENDMENTS, PLEASE SIGN BELOW
(See Instructions 1, 2, and 3)
- -- > X
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- -- > X
--------------------------------------------------------------------------
Signature(s) of Holder(s) Date
PLEASE TYPE OR PRINT INFORMATION BELOW
Name(s):
-----------------------------------------------------------------
Capacity:
----------------------------------------------------------------
Address:
-----------------------------------------------------------------
(Including Zip Code)
Area Code and
Telephone Number:
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SIGNATURE GUARANTEE
(If required: see Instruction 3)
Signature(s)
Guaranteed by an
Eligible Institution:
---------------------------------------------------------
(Authorized Signature)
---------------------------------------------------------
(Title)
---------------------------------------------------------
(Name of Eligible Institution)
Dated:
------------------------------------------------------------------
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9
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SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if checks for the Consent Payment are to be issued in
the name of someone other than the person who submits this Consent form.
Issue to:
Name:
----------------------------------------------------------------------
(Please Print)
Address:
----------------------------------------------------------------------
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(Social Security Number or Employer Identification Number) A correct taxpayer
identification number must also be provided on the Substitute Form W-9 included
herein.
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SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if checks for the Consent Payment are to be sent to
someone other than the person who submits this Consent form or to an address
other than that shown in the box entitled "DESCRIPTION OF EXISTING NOTES" above
in this Consent form.
Mail to:
Name:
----------------------------------------------------------------------
(Please Print)
Address:
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INSTRUCTIONS TO FORM OF CONSENT
1. DELIVERY OF CONSENT FORM. A properly completed form of Consent,
including a valid and unrevoked Consent, or a facsimile thereof duly executed by
the Holder with any required signature guarantee(s), and any other documents
required by this Consent form, must be received by the Tabulation Agent at its
address set forth herein on or prior to the Expiration Date.
The method of delivery of this Consent form and any other required
documents is at the election and risk of the consenting Holder, and except as
otherwise provided below, the delivery will be deemed made when actually
received by the Tabulation Agent. If such delivery is by mail, it is
recommended that Holders use registered mail with return receipt requested. In
all cases, sufficient time should be allowed to assure timely delivery. NO
DOCUMENTS SHOULD BE SENT TO THE COMPANY, THE SOLICITATION AGENT, THE INFORMATION
AGENT OR THE TRUSTEE.
If Existing Notes are held in different names, separate Consents must be
executed covering each name. Except in the case of DTC Participants, who are
expected to sign pursuant to an omnibus proxy delivered by DTC, if a Consent is
executed by a person other than the Record Holder(s), it must be accompanied by
a proxy in substantially the form included herewith, duly executed by such
Record Holder(s), with the signature guaranteed by an Eligible Institution,
confirming the right of the signatory to execute the Consent on behalf of such
Record Holder(s).
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance and revocations of Consents will be resolved by the
Company in its sole discretion, which resolution shall be final and binding.
The Company reserves the right to reject any and all Consents not validly given
or any Consents the Company's acceptance of which could, in the opinion of the
Company or its counsel, be unlawful. The Company also reserves the right to
waive any defects or irregularities or conditions of the Solicitations. The
interpretation of the terms and conditions of the Solicitations (including the
Consents and the instructions thereto) by the Company shall be final and binding
on all parties. Unless waived, any defects or irregularities in connection with
deliveries of the Consents must be cured within such time as the Company shall
determine. Neither the Company, the Tabulation Agent nor any other person shall
be under any duty to give notification of defects or irregularities with respect
to deliveries of Consents, nor shall any of them incur any liability for failure
to give such notification.
2. CONSENT TO PROPOSED AMENDMENTS; REVOCATION OF CONSENTS. This form of
Consent and the Consent Solicitation Statement are being sent to all persons who
are Record Holders. Only Holders will be eligible to consent to the Proposed
Amendment and be entitled to receive or direct receipt of Consent Payments.
The term "Record Holder" means any person who is a holder of record of
Existing Notes on the close of business on the Record Date. The term "Holder"
means (i) any Record Holder or (ii) any other person who has obtained a proxy,
substantially in the form included with this Consent, which authorizes such
other person (or any person claiming title by or through such other person) to
vote Existing Notes on behalf of such Record Holder. The Company anticipates
that DTC, as nominee Holder of the Existing Notes, will execute an omnibus proxy
in favor of the DTC Participants which will authorize each DTC Participant to
vote the Existing Notes owned by such participant and held in DTC's name.
Except in the case of DTC Participants who are expected to sign pursuant to
an omnibus proxy delivered by DTC, if a Consent is executed by a person other
than the Record Holder(s), it must be accompanied by a proxy in substantially
the form included herewith, duly executed by such Record Holder(s), with
signature guaranteed by an Eligible Institution, confirming the right of the
signatory to execute the Consent on behalf of such Record Holder(s). Consents
by DTC Participants whose Existing Notes were registered in the name of Cede &
Co. as of the Record Date should be signed in the manner in which their names
appear on the position listing of Cede & Co. with respect to the Existing Notes.
The Solicitation will expire at 5:00 P.M., New York time, on April 10,
1998, unless extended by the Company. Consents with respect to the Existing
Notes may be revoked by a Holder at any time prior to the Expiration Date.
CONSENTS SHOULD BE SENT TO THE TABULATION AGENT, NOT TO THE COMPANY, THE
SOLICITATION AGENT, THE INFORMATION AGENT OR TRUSTEE. IN NO EVENT SHOULD A
RECORD HOLDER OF THE EXISTING NOTES TENDER OR DELIVER ANY EXISTING NOTES.
All properly completed and executed Consents received by the Tabulation
Agent and accepted by the Company will be counted, notwithstanding any transfer
of Existing Notes to which such Consents relate, unless the Tabulation Agent
receives from a Holder on or before the Expiration Date a properly completed and
duly executed notice of revocation or a changed Consent bearing a date no later
than the Expiration Date. Until the Expiration Date, a Consent to the Proposed
Amendments by a Holder of an Existing Note shall bind the Holder and every
subsequent holder of an Existing Note or portion of an Existing Note that
evidences the same debt as the consenting Holder's Existing Note, even if
notation of the Consent is made on any such Existing Note. However, any such
Holder (or a subsequent holder which has received a proxy) may revoke the
Consent as to an Existing Note or portion of an Existing Note if the Tabulation
Agent receives notice of revocation on or before the Expiration Date.
Therefore, a transfer of Existing Notes after the Record Date must be
accompanied by a duly executed proxy if the subsequent transferee is to have
revocation rights.
Notices of revocation given by (i) any Holder must be completed, signed,
dated and delivered to the Tabulation Agent (accompanied by any proxy or other
required documents) in the same manner as would be required for a Consent by
such Holder and (ii) any subsequent holder (other than a Holder) must be
accompanied by information sufficient to enable the Company and the Tabulation
Agent to identify the Existing Notes covered by the Consent which such holder
desires to revoke and determine such holder's rights to revoke the same.
3. SIGNATURES ON FORM OF CONSENT; GUARANTEES OF SIGNATURE. Consents by
Holder(s) must be executed in exactly the same name(s) as the Existing Notes are
held. If Existing Notes to which a Consent relates are held by two or more
joint Holders, all such Holders must sign the Consent. If a signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other Holder acting in a fiduciary or representative capacity,
such person should so indicate when signing and must submit proper evidence to
the Tabulation Agent (satisfactory to the Company) of such person's authority so
to act. If Existing Notes are held in different names, separate Consents must
be executed covering each name. Except in the case of DTC Participants, if a
Consent is executed by a person other than Record Holder(s), it must be
accompanied by a proxy in substantially the form included herewith, duly
executed by such Record Holder(s), with the signature guaranteed by an Eligible
Institution, confirming the right of the signatory to execute the Consent on
behalf of such Record Holder(s). Consents by DTC Participants whose Existing
Notes were registered in the name of Cede & Co. as of the Record Date should be
signed in the manner in which their names appear on the registration listing of
Cede & Co. with respect to the Existing Notes.
4. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. Consenting Holders should
indicate in the applicable box the name and address to which the Consent Payment
is to be issued or sent, if different from the name and address of the person
submitting this Consent form. In the case of issuance or payment in a different
name, the TIN of the person named must also be indicated and a Substitute Form
W-9 or Form W-8 for such recipient must also be completed. See Instructions 5.
If no such instructions are given, the Consent Payment will be sent to the name
and address of the person signing this Consent form.
5. SUBSTITUTE FORM W-9 (OR FORM W-8). The consenting Holder is required
to provide the Trustee (as payor) with his or her correct TIN on the Substitute
Form W-9 or Substitute W-8, as applicable, included in this Consent form. In
the case of a consenting Holder who has completed the box entitled "SPECIAL
PAYMENT INSTRUCTIONS" above, however, the correct TIN on the Substitute Form W-9
or Substitute Form W-8, as applicable, should be provided for the recipient of
the Consent Payment delivered pursuant to such instructions. Failure to provide
the information on the Consent form will cause the Trustee to withhold 31% of
any Consent
12
Payments made to the consenting Holder or such recipient, as the case may be,
until such information is received. See "BACKUP WITHHOLDING INFORMATION" above.
6. EXPIRATION DATE; EXTENSIONS; AMENDMENT. The term "Expiration Date"
means 5:00 p.m., New York time, on April 10, 1998, unless the Company, in its
sole discretion, extends the period during which the Solicitation is open, in
which case the term "Expiration Date" means the latest date and time to which
the Solicitation is extended. In order to extend an Expiration Date, the
Company will notify the Information Agent of any extension by oral or written
notice and will make a public announcement thereof, each prior to 5:00 p.m., New
York time, on the next business day after the previously scheduled Expiration
Date. Such announcements may state that the Company is extending the Expiration
Date of the Solicitation for a specified period of time or on a daily basis.
The Company reserves the right (i) to extend the Solicitation or to terminate
the Solicitation, and to accept Consents not previously accepted by giving oral
or written notice of such delay, extension, termination or acceptance to the
Information Agent or (ii) to amend the procedural terms of the Solicitation in
any manner.
If the Solicitation is amended in a manner determined by the Company to
constitute an adverse change to the Holders, the Company will promptly disclose
such amendment in a public announcement and the Company will extend the
Solicitation for a period deemed by the Company to be adequate to permit the
Holders to deliver or revoke their Consents.
Without limiting the manner in which the Company may choose to make a
public announcement of any extension, amendment or termination of the
Solicitation, the Company shall have no obligation to publish, advertise or
otherwise communicate any such public announcement other than by making a timely
press release and complying with any applicable notice provisions of the
Original Indenture.
7. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions with respect
to the terms of the Solicitation or relating to the procedure for consenting, as
well as requests for additional copies of the Consent Solicitation Statement and
this Consent form, should be directed to the Information Agent.
13