EXHIBIT 99.4
EQUISTAR CHEMICALS, LP
EQUISTAR FUNDING CORPORATION
LETTER OF TRANSMITTAL
for Tender of All Outstanding
Unregistered 10 5/8% Senior Notes due 2011
in Exchange for
Registered 10 5/8% Senior Notes due 2011
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The Exchange Offer will expire at 5:00 p.m., New York City time, on ,
2003 (the "Expiration Date"), unless sooner terminated or extended. Outstanding
notes tendered in the exchange offer may be withdrawn at any time before 5:00
p.m., New York City time, on 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 to the Exchange Agent:
The Bank of New York
For Delivery by Mail (registered or certified mail recommended),
Overnight Delivery or by Hand:
The Bank of New York
20 Broad Street
Lower Level
New York, NY 10004
Attn:
By Facsimile Transmission (eligible institutions only):
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Attn:
Confirm by Telephone:
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Delivery of this instrument to an address other than as shown above or
transmission of instructions via a facsimile number other than the one listed
above will not constitute a valid delivery. The instructions accompanying this
letter of transmittal should be read carefully before this letter of transmittal
is completed.
The undersigned hereby acknowledges receipt and review of the
prospectus dated , 2003 (the "Prospectus") of Equistar Chemicals,
LP and Equistar Funding Corporation (together, the "Issuers") and this letter of
transmittal which together constitute the Issuers' offer to exchange their 10
5/8% Senior Notes due 2011 (the "New Notes"), the issuance of which has been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for a like principal amount of their issued and outstanding unregistered 10 5/8%
Senior Notes due 2011 (the "Outstanding Notes"). The exchange of Outstanding
Notes for New Notes and related documentation are referred to herein as the
"Exchange Offer." Capitalized terms used but not defined herein have the
respective meanings given them in the Prospectus.
1
The Issuers reserve the right, at any time or from time to time, to
extend the period of time during which the Exchange Offer for the Outstanding
Notes is open, at their discretion, in which event the term "Expiration Date"
shall mean the latest date to which the Exchange Offer is extended. The Issuers
shall notify The Bank of New York (the "Exchange Agent") of any extension by
oral or written notice and shall make a public announcement thereof no later
than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date.
The New Notes will bear interest at the rate of 10 5/8% per annum.
Interest Payment Dates will be May 1 and November 1 of each year, commencing
November 1, 2003. Registered holders of New Notes on the relevant record date
for the first interest payment date following the consummation of the Exchange
Offer will receive interest accruing from the most recent date to which interest
has been paid on the Outstanding Notes or, if no interest has been paid, from
April 22, 2003. Outstanding Notes accepted for exchange will cease to accrue
interest from and after the date of consummation of the Exchange Offer. Holders
whose Outstanding Notes are accepted for exchange will not receive any payment
in respect of accrued interest on such Outstanding Notes otherwise payable on
any interest payment date the record date for which occurs on or after the
consummation of the Exchange Offer. Interest shall be paid to the person in
whose name the applicable New Note is registered at the close of business on
April 15, in the case of the May 1 interest payment date, and October 15, in the
case of the November 1 interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. No liquidated damages will be
payable on the New Notes.
This letter of transmittal is to be used by a holder of Outstanding
Notes if:
1. certificates of Outstanding Notes are to be forwarded
herewith; or
2. delivery of Outstanding Notes is to be made by book-entry
transfer to the account maintained by the Exchange Agent at
The Depository Trust Company ("DTC"), pursuant to the
procedures set forth in the Prospectus under the caption "The
Exchange Offer -- Procedures for Tendering -- Book-Entry
Transfer."
Tenders by book-entry transfer may also be made by delivering an
"agent's message" pursuant to DTC's Automated Tender Offer Program in lieu of
this letter of transmittal. Holders of Outstanding Notes (1) whose Outstanding
Notes are not immediately available, or (2) who are unable to deliver their
Outstanding Notes, this letter of transmittal and all other documents required
hereby to the Exchange Agent on or prior to the Expiration Date, or (3) who are
unable to complete the procedure for book-entry transfer on a timely basis, must
tender their Outstanding Notes in accordance with the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange Offer --
Guaranteed Delivery Procedures." See Instruction 2 of this letter of
transmittal. Delivery of documents to DTC does not constitute delivery to the
Exchange Agent.
The term "holder" with respect to the Exchange Offer means (1) any
person in whose name such Outstanding Notes are registered on the books of the
Issuers, (2) any person who holds such Outstanding Notes and has obtained a
properly completed bond power from the registered holder or (3) any participant
in the DTC system whose name appears on a security position listing as the
holder of such Outstanding Notes and who desires to deliver the Outstanding
Notes by book-entry transfer at DTC. The undersigned has completed, executed and
delivered this letter of transmittal to indicate the action the undersigned
desires to take with respect to the Exchange Offer. Holders who wish to tender
their Outstanding Notes must complete this letter of transmittal in its entirety
(unless such Outstanding Notes are to be tendered by book-entry transfer and an
agent's message is delivered in lieu hereof).
Please read the entire letter of transmittal and the Prospectus
carefully before checking any box below. The instructions included with this
letter of transmittal must be followed. Questions and requests for assistance or
for additional copies of the Prospectus and this letter of transmittal may be
directed to the Exchange Agent.
2
List below the Outstanding Notes tendered under this letter of
transmittal. If the space below is inadequate, list the title of the series,
registered numbers and principal amounts on a separate signed schedule and affix
the list to this letter of transmittal.
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DESCRIPTION OF OUTSTANDING NOTES TENDERED
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Name(s) and Address(es) of Registered Holder(s) Exactly as Name(s) Appear(s) on Outstanding Notes (Please Fill In, If Blank)
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Outstanding Note(s) Tendered
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Aggregate
Principal
Amount Principal
Registered Represented Amount
Title of Series Number(s)* by Note(s) Tendered**
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Equistar Chemicals, LP and Equistar Funding Corporation
10 5/8% Senior Notes due 2011 ------------- -------------- -------------
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Total
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* Need not be completed by book-entry holders.
** Unless otherwise indicated, any tendering holder of Outstanding Notes
will be deemed to have tendered the entire aggregate principal amount
represented by such Outstanding Notes. All tenders must be in integral
multiples of $1,000.
[_] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE ENCLOSED HEREWITH.
[_] CHECK HERE AND COMPLETE THE FOLLOWING IF TENDERED OUTSTANDING NOTES ARE
BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED
BY THE EXCHANGE AGENT WITH DTC (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
Name of Tendering
Institution:
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DTC Account
Number(s):
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Transaction Code
Number(s):
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3
[_] CHECK HERE AND COMPLETE THE FOLLOWING IF TENDERED OUTSTANDING NOTES ARE
BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY EITHER
ENCLOSED HEREWITH OR PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT (COPY
ATTACHED) (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Holder(s)
of Outstanding Notes:
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Date of Execution of Notice of
Guaranteed Delivery:
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Window Ticket Number
(if available):
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Name of Eligible Institution that
Guaranteed Delivery:
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DTC Account Number(s) (if delivered
by book-entry transfer):
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Transaction Code Number (if delivered
by book-entry transfer):
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Name of Tendering Institution (if
delivered by book-entry transfer):
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[_] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING NOTES ARE TO BE
RETURNED, BY CREDITING THE DTC ACCOUNT NUMBER(S) SET FORTH ABOVE (FOR
USE BY ELIGIBLE INSTITUTIONS ONLY).
[_] CHECK HERE AND COMPLETE THE FOLLOWING IF YOU ARE A BROKER-DEALER AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO:
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to participate in, a distribution
of New Notes. If the undersigned is a broker-dealer that will receive New Notes
for its own account in exchange for Outstanding Notes, it represents that the
New Notes are acquired as a result of market-making activities or other trading
activities and that it will deliver a Prospectus in connection with any resale
of such New Notes; however, by so acknowledging and by delivering a Prospectus,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
4
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to the Issuers for exchange the principal amount of
Outstanding Notes indicated above. Subject to and effective upon the acceptance
for exchange of the principal amount of Outstanding Notes tendered in accordance
with this letter of transmittal, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, the Issuers all right, title and interest in
and to the Outstanding Notes tendered for exchange hereby, including all rights
to accrued and unpaid interest thereon as of the Expiration Date. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent as
the true and lawful agent and attorney-in-fact for the undersigned (with full
knowledge that said Exchange Agent also acts as the agent for the Issuers in
connection with the Exchange Offer) with respect to the tendered Outstanding
Notes with full power of substitution to:
1. deliver such Outstanding Notes, or transfer ownership of such
Outstanding Notes on the account books maintained by DTC, to
the Issuers and deliver all accompanying evidences of transfer
and authenticity and
2. present such Outstanding Notes for transfer on the books of
the Issuers and receive all benefits and otherwise exercise
all rights of beneficial ownership of such Outstanding Notes,
all in accordance with the terms of the Exchange Offer.
The power of attorney granted in this paragraph shall be deemed to be
irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the
Outstanding Notes tendered hereby and to acquire the New Notes issuable upon the
exchange of such tendered Outstanding Notes, and that the Issuers will acquire
good and unencumbered title thereto, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim, when the same are
accepted for exchange by the Issuers as contemplated herein.
The undersigned acknowledges that the Exchange Offer is being made in
reliance upon interpretations set forth in no-action letters issued to third
parties by the staff of the Securities and Exchange Commission (the "SEC"),
including Exxon Capital Holdings Corporation (available Apr. 13, 1988), Morgan
Stanley & Co. Incorporated (available June 5, 1991), Shearman & Sterling
(available July 2, 1993) and similar no-action letters (the "Prior No-Action
Letters"), that the New Notes issued in exchange for Outstanding Notes pursuant
to the Exchange Offer may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder that is an
"affiliate" of the Issuers within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holders' business and that such holders are not
engaging in, do not intend to participate in and have no arrangement or
understanding with any person to participate in a distribution of such New
Notes. The SEC has not, however, considered this Exchange Offer in the context
of a no-action letter, and there can be no assurance that the staff of the SEC
would make a similar determination with respect to the Exchange Offer as in
other circumstances.
The undersigned hereby further represents to the Issuers that:
1. neither the holder nor any other person receiving New Notes in
the Exchange Offer is an "affiliate," as defined in Rule 405
under the Securities Act, of the Issuers or a broker-dealer
tendering Outstanding Notes acquired directly from the Issuers
for its own account;
2. if the undersigned is not a broker-dealer or is a
broker-dealer but will not receive New Notes for its own
account in exchange for Outstanding Notes, the undersigned
represents that it is not engaged in, and does not intend to
participate in, a distribution of New Notes, within the
meaning of the Securities Act;
5
3. neither the undersigned nor any other person receiving notes
in the Exchange Offer has an arrangement or understanding with
any person to participate in the distribution of the
Outstanding Notes or the New Notes within the meaning of the
Securities Act; and
4. the New Notes to be received are being acquired in the
ordinary course of business of the person receiving such New
Notes, whether or not the undersigned.
If the undersigned is a broker-dealer that will receive New Notes for its own
account in exchange for Outstanding Notes, it represents that the New Notes are
being acquired by it as a result of market-making activities or other trading
activities and that it will deliver a Prospectus in connection with any resale
of such New Notes. By so acknowledging and by delivering a Prospectus, however,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
The undersigned acknowledges that if the undersigned is tendering
Outstanding Notes in the Exchange Offer with the intention of participating in
any manner in a distribution of the New Notes:
1. the undersigned cannot rely on the position of the staff of
the SEC set forth in the Prior No-Action Letters and, in the
absence of an exemption therefrom, must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with the resale transaction of
the New Notes, in which case the registration statement must
contain the selling security holder information required by
Item 507 or Item 508, as applicable, of Regulation S-K of the
SEC; and
2. failure to comply with such requirements in such instance
could result in the undersigned incurring liability for which
the undersigned is not indemnified by the Issuers.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Issuers to be necessary or
desirable to complete the exchange, assignment and transfer of the Outstanding
Notes tendered hereby, including the transfer of such Outstanding Notes on the
account books maintained by DTC.
For purposes of the Exchange Offer, the Issuers shall be deemed to have
accepted for exchange validly tendered Outstanding Notes when, as and if the
Issuers give oral or written notice thereof to the Exchange Agent. Any tendered
Outstanding Notes that are not accepted for exchange pursuant to the Exchange
Offer for any reason will be returned, without expense, to the undersigned at
the address shown below or at a different address as may be indicated herein
under "Special Delivery Instructions" as promptly as practicable after the
Expiration Date for the Exchange Offer.
All authority conferred or agreed to be conferred by this letter of
transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this letter of
transmittal shall be binding upon its successors, assigns, heirs, executors,
administrators, trustees in bankruptcy and legal representatives. This tender
may be withdrawn only in accordance with the procedures set forth in the section
of the Prospectus entitled "The Exchange Offer -- Withdrawal of Tenders."
The undersigned acknowledges that the Issuers' acceptance of properly
tendered Outstanding Notes pursuant to the procedures described under the
caption "The Exchange Offer -- Procedures for Tendering" in the Prospectus and
in the instructions hereto will constitute a binding agreement between the
undersigned and the Issuers upon the terms and subject to the conditions of the
Exchange Offer. The undersigned further agrees that acceptance of any tendered
Outstanding Notes by the Issuers and the issuance of New Notes in exchange
therefor shall constitute performance in full by the Issuers of their
obligations under the registration rights agreement and that the Issuers shall
have no further obligations or liabilities thereunder for the registration of
the Outstanding Notes or the New Notes.
6
The Exchange Offer is subject to certain conditions set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange
Offer." The undersigned recognizes that as a result of these conditions (which
may be waived, in whole or in part, by the Issuers), the Issuers may not be
required to exchange any of the Outstanding Notes tendered hereby. In such
event, the Outstanding Notes not exchanged will be returned to the undersigned
at the address shown below the signature of the undersigned.
Unless otherwise indicated under "Special Issuance Instructions" below,
please issue the New Notes issued in exchange for the Outstanding Notes accepted
for exchange and return any Outstanding Notes not tendered or not exchanged, in
the name(s) of the undersigned (or, in the case of a book-entry delivery of
Outstanding Notes, please credit the account indicated above maintained at DTC).
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail or deliver the New Notes issued in exchange for the Outstanding
Notes accepted for exchange and any Outstanding Notes not tendered or not
exchanged (and accompanying documents, as appropriate) to the undersigned at the
address shown below the undersigned's signature(s). In the event that both
"Special Issuance Instructions" and "Special Delivery Instructions" are
completed, please issue the New Notes issued in exchange for the Outstanding
Notes accepted for exchange in the name(s) of, and return any Outstanding Notes
not tendered or not exchanged to, the person(s) so indicated. The undersigned
recognizes that the Issuers have no obligation pursuant to the "Special Issuance
Instructions" and "Special Delivery Instructions" to transfer any Outstanding
Notes from the name of the registered holder(s) thereof if the Issuers do not
accept for exchange any of the Outstanding Notes so tendered for exchange.
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 6) (SEE INSTRUCTIONS 5 AND 6)
To be completed ONLY (i) if Outstanding Notes in a To be completed ONLY if Outstanding Notes in a
principal amount not tendered, or New Notes issued in principal amount not tendered, or New Notes issued in
exchange for Outstanding Notes accepted for exchange, exchange for Outstanding Notes accepted for exchange,
are to be issued in the name of someone other than the are to be mailed or delivered to someone other than
undersigned or (ii) if Outstanding Notes tendered by the undersigned, or to the undersigned at an address
book-entry transfer which are not exchanged are to be other than that shown below the undersigned's
returned by credit to an account maintained at DTC signature. Mail or deliver New Notes and/or
other than the DTC Account Number set forth above. Outstanding Notes to:
Issue New Notes and/or Outstanding Notes to:
Name: Name:
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Address: Address:
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-------------------------------------------------- --------------------------------------------------
(Include Zip Code) (Include Zip Code)
-------------------------------------------------- --------------------------------------------------
(Tax Identification or Social Security Number) (Tax Identification or Social Security Number)
(Please Type or Print) (Please Type or Print)
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[_] Credit unexchanged Outstanding Notes delivered by book-entry transfer
to the DTC account number set forth below:
DTC Account Number:
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7
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT
OUTSTANDING NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(Complete Accompanying Substitute Form W-9 Below)
X
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X
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(Signature(s) of Registered Holder(s) of Outstanding Notes)
Dated , 2003
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(The above lines must be signed by the registered holder(s) of Outstanding Notes
as your/their name(s) appear(s) on the Outstanding Notes or on a security
position listing, or by person(s) authorized to become registered holder(s) by a
properly completed bond power from the registered holder(s), a copy of which
must be transmitted with this letter of transmittal. If Outstanding Notes to
which this letter of transmittal relate are held of record by two or more joint
holders, then all such holders must sign this letter of transmittal. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, then such person must (i) set forth his or her full title below and
(ii) unless waived by the Issuers, submit evidence satisfactory to the Issuers
of such person's authority to so act. See Instruction 5 regarding the completion
of this letter of transmittal, printed below.)
Name(s):
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(Please Type or Print)
Capacity (Full Title):
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Address:
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(Include Zip Code)
Area Code and Telephone Number:
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Taxpayer Identification or Social Security Number:
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MEDALLION SIGNATURE GUARANTEE
(If Required by Instruction 5)
Certain signatures must be guaranteed by an Eligible Institution.
Signature(s) Guaranteed by an
Eligible Institution:
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(Authorized Signature)
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(Title)
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(Name of Firm)
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(Address, Including Zip Code)
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(Area Code and Telephone Number)
Dated: , 2003
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8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Outstanding Notes or
Agent's Message and Book-Entry Confirmations. All physically delivered
Outstanding Notes or any confirmation of a book-entry transfer to the Exchange
Agent's account at DTC of Outstanding Notes tendered by book-entry transfer (a
"Book-Entry Confirmation"), as well as a properly completed and duly executed
copy of this letter of transmittal or facsimile hereof (or an agent's message in
lieu hereof pursuant to DTC's Automated Tender Offer Program), and any other
documents required by this letter of transmittal must be received by the
Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City
time, on the Expiration Date for the Exchange Offer, or the tendering holder
must comply with the guaranteed delivery procedures set forth below. Outstanding
Notes tendered hereby must be in denominations of principal amount of $1,000 and
any integral multiple thereof. The method of delivery of the tendered
Outstanding Notes, this letter of transmittal and all other required documents
to the Exchange Agent is at the sole election and risk of the holder and, except
as otherwise provided below, the delivery will be deemed made only when actually
received or confirmed by the Exchange Agent. Instead of delivery by mail, it is
recommended that the holder use an overnight or hand delivery service. In all
cases, sufficient time should be allowed to assure delivery to the Exchange
Agent before the Expiration Date. NEITHER THIS LETTER OF TRANSMITTAL NOR
OUTSTANDING NOTES SHOULD BE SENT TO THE ISSUERS.
All questions as to the validity, form, eligibility (including time of
receipt) or acceptance of tendered Outstanding Notes and withdrawal of tendered
Outstanding Notes will be determined by the Issuers in their sole discretion,
which determination will be final and binding. The Issuers reserve the absolute
right to reject any and all Outstanding Notes not properly tendered or any
Outstanding Notes the Issuers' acceptance of which would, in the opinion of
counsel for the Issuers, be unlawful. The Issuers also reserve the right to
waive any defects, irregularities or conditions of tender as to particular
Outstanding Notes. The Issuers' interpretation of the terms and conditions of
the Exchange Offer (including the instructions in this letter of transmittal)
shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Outstanding Notes must be cured
within such time as the Issuers shall determine. Neither the Issuers, the
Exchange Agent nor any other person shall be under any duty to give notification
of defects or irregularities with respect to tenders of Outstanding Notes, nor
shall any of them incur any liability for failure to give such notification.
Tenders of Outstanding Notes will not be deemed to have been made until such
defects or irregularities have been cured or waived. Any Outstanding Notes
received by the Exchange Agent that are not properly tendered and as to which
the defects or irregularities have not been cured or waived will be returned by
the Exchange Agent to the tendering holders of Outstanding Notes, unless
otherwise provided in this letter of transmittal, as soon as practicable
following the Expiration Date.
See the section of the Prospectus captioned "The Exchange Offer"
section of the Prospectus.
2. Guaranteed Delivery Procedures. Holders who wish to tender their
Outstanding Notes and (a) whose Outstanding Notes are not immediately available,
(b) who cannot deliver their Outstanding Notes (or tender by book-entry
transfer), this letter of transmittal or any other documents required hereby to
the Exchange Agent prior to the Expiration Date or (c) who are unable to comply
with the applicable procedures under DTC's Automated Tender Offer Program on a
timely basis, must tender their Outstanding Notes according to the guaranteed
delivery procedures set forth in the Prospectus. Pursuant to such procedures:
a. such tender must be made by or through a financial institution
(including most banks, savings and loan associations, and
brokerage houses) that is a participant in the Securities
Transfer Agents' Medallion Program, the New York Stock
Exchange Medallion Program or the Stock Exchanges' Medallion
Program approved by the Securities Transfer Association Inc.
(an "Eligible Institution");
b. prior to the Expiration Date, the Exchange Agent must have
received from the Eligible Institution a properly completed
and duly executed notice of guaranteed delivery (by facsimile
transmission, mail or hand delivery) or a properly transmitted
agent's message and notice of guaranteed delivery
9
setting forth the name and address of the holder of the
Outstanding Notes, the registration number(s) of such
Outstanding Notes and the total principal amount of
Outstanding Notes tendered, stating that the tender is being
made thereby and guaranteeing that, within three business days
after such Expiration Date, this letter of transmittal (or
facsimile hereof or an agent's message in lieu hereof)
together with the Outstanding Notes in proper form for
transfer (or a Book-Entry Confirmation) and any other
documents required by this letter of transmittal will be
deposited by the Eligible Institution with the Exchange Agent;
and
c. this letter of transmittal (or a facsimile hereof or an
agent's message in lieu hereof) together with the certificates
for all physically tendered Outstanding Notes in proper form
for transfer (or Book-Entry Confirmation, as the case may be)
and all other documents required hereby are received by the
Exchange Agent within three business days after such
Expiration Date.
Any holder of Outstanding Notes who wishes to tender Outstanding Notes
pursuant to the guaranteed delivery procedures described above must ensure that
the Exchange Agent receives the notice of guaranteed delivery prior to 5:00
p.m., New York City time, on the Expiration Date. Upon request of the Exchange
Agent, a notice of guaranteed delivery will be sent to holders who wish to
tender their Outstanding Notes according to the guaranteed delivery procedures
set forth above.
See the section of the Prospectus captioned "The Exchange Offer --
Guaranteed Delivery Procedures."
3. Tender by Holder. Only a registered holder of Outstanding Notes may
tender such Outstanding Notes in the Exchange Offer. Any beneficial holder of
Outstanding Notes who is not the registered holder and who wishes to tender
should arrange with the registered holder to execute and deliver this letter of
transmittal on his behalf or must, prior to completing and executing this letter
of transmittal and delivering his Outstanding Notes, either make appropriate
arrangements to register ownership of the Outstanding Notes in such holder's
name or obtain a properly completed bond power from the registered holder.
4. Partial Tenders (Not Applicable to Holders Who Tender by Book-Entry
Transfer). Tenders of Outstanding Notes will be accepted only in integral
multiples of $1,000. If less than the entire principal amount of any Outstanding
Notes is tendered, the tendering holder should fill in the principal amount
tendered in the third column of the box entitled "Description of Outstanding
Notes Tendered" above. The entire principal amount of Outstanding Notes
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated. If the entire principal amount of all Outstanding Notes is
not tendered, then Outstanding Notes for the principal amount of Outstanding
Notes not tendered and New Notes issued in exchange for any Outstanding Notes
accepted will be returned to the holder as promptly as practicable after the
Outstanding Notes are accepted for exchange.
5. Signatures on this Letter of Transmittal; Bond Powers and
Endorsements; Medallion Guarantee of Signatures. If this letter of transmittal
(or facsimile hereof) is signed by the record holder(s) of the Outstanding Notes
tendered hereby, the signature(s) must correspond exactly with the name(s) as
written on the face of the Outstanding Notes without alteration, enlargement or
any change whatsoever. If this letter of transmittal (or facsimile hereof) is
signed by a participant in DTC, the signature must correspond with the name as
it appears on the security position listing as the holder of the Outstanding
Notes.
If any tendered Outstanding Notes are owned of record by two or more
joint owners, all of such owners must sign this letter of transmittal.
If this letter of transmittal (or facsimile hereof) is signed by the
registered holder(s) of Outstanding Notes listed and tendered hereby and the New
Notes issued in exchange therefor are to be issued (or any untendered principal
amount of Outstanding Notes is to be reissued) to the registered holder(s), then
said holder(s) need not and should not endorse any tendered Outstanding Notes,
nor provide a separate bond power. In any other case, such holder(s) must either
properly endorse the Outstanding Notes tendered or transmit a properly completed
separate bond power with this letter of transmittal, with the signatures on the
endorsement or bond power guaranteed by an
10
Eligible Institution.
If this letter of transmittal (or facsimile hereof) or any Outstanding
Notes or bond powers are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, such persons should so indicate when signing, and,
unless waived by the Issuers, evidence satisfactory to the Issuers of their
authority to act must be submitted with this letter of transmittal.
No signature guarantee is required if (i) this letter of transmittal
(or facsimile hereof) is signed by the registered holder(s) of the Outstanding
Notes tendered herein (or by a participant in DTC whose name appears on a
security position listing as the owner of the tendered Outstanding Notes), and
the New Notes are to be issued directly to such registered holder(s) (or, if
signed by a participant in DTC, deposited to such participant's account at DTC),
and neither the box entitled "Special Delivery Instructions" nor the box
entitled "Special Registration Instructions" has been completed, or (ii) such
Outstanding Notes are tendered for the account of an Eligible Institution. In
all other cases, all signatures on this letter of transmittal (or facsimile
hereof) must be guaranteed by an Eligible Institution.
6. Special Issuance and Delivery Instructions. Tendering holders should
indicate, in the applicable box or boxes, the name and address to which New
Notes or substitute Outstanding Notes for principal amounts not tendered or not
accepted for exchange are to be issued or sent, if different from the name and
address of the person signing this letter of transmittal. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated. Holders tendering Outstanding
Notes by book-entry transfer may request that Outstanding Notes not exchanged be
credited to such account maintained at DTC as such noteholder may designate
hereon. If no such instructions are given, such Outstanding Notes not exchanged
will be returned to the name and address (or account number) of the person
signing this letter of transmittal.
7. Transfer Taxes. The Issuers will pay all transfer taxes, if any,
applicable to the exchange of Outstanding Notes pursuant to the Exchange Offer.
If, however, New Notes or Outstanding Notes for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered holder of the
Outstanding Notes tendered hereby, or if tendered Outstanding Notes are
registered in the name of any person other than the person signing this letter
of transmittal, or if a transfer tax is imposed for any reason other than the
exchange of Outstanding Notes pursuant to the Exchange Offer, then the amount of
any such transfer taxes (whether imposed on the registered holder or any other
persons) will be payable by the tendering holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted with this letter
of transmittal, the amount of such transfer taxes will be billed directly to
such tendering holder and the Exchange Agent will retain possession of an amount
of Exchange Notes with a face amount at least equal to the amount of such
transfer taxes due by such tendering holder pending receipt by the Exchange
Agent of the amount of such taxes.
8. Tax Identification Number. Federal income tax law requires that a
holder of any Outstanding Notes or New Notes must provide the Issuers (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
Issuers are not provided with the correct TIN, the holder or payee may be
subject to a $50 penalty imposed by Internal Revenue Service and backup
withholding, currently at a rate of 28%, on interest payments on the New Notes.
To prevent backup withholding, each tendering holder and each
prospective holder must provide such holder's correct TIN by completing the
Substitute Form W-9 set forth herein, certifying that the TIN provided is
correct (or that such holder is awaiting a TIN), and that (i) the holder has not
been notified by the Internal Revenue Service that such holder is subject to
backup withholding as a result of failure to report all interest or dividends or
(ii) the Internal Revenue Service has notified the holder that such holder is no
longer subject to backup withholding. If the New Notes will be registered in
more than one name or will not be in the name of the actual owner, consult the
instructions on Internal Revenue Service Form W-9, which may be obtained from
the Exchange Agent, for information on which TIN to report.
Certain foreign individuals and entities will not be subject to backup
withholding or information reporting
11
if they submit a Form W-8BEN, signed under penalties of perjury, attesting to
their foreign status. A Form W-8BEN can be obtained from the Exchange Agent.
If a tendering holder does not have a TIN, such holder should consult
the instructions on Form W-9 concerning applying for a TIN, check the box in
Part 3 of the Substitute Form W-9, write "applied for" in lieu of its TIN and
sign and date the form and the Certificate of Awaiting Taxpayer Identification
Number. Checking this box, writing "applied for" on the form and signing such
certificate means that such holder has already applied for a TIN or that such
holder intends to apply for one in the near future. If such holder does not
provide its TIN to the Issuers within 60 days, backup withholding will begin and
continue until such holder furnishes its TIN to the Issuers.
The Issuers reserve the right in their sole discretion to take whatever
steps are necessary to comply with the Issuers' obligations regarding backup
withholding.
9. Validity of Tenders. All questions as to the validity, form,
eligibility (including time of receipt), acceptance and withdrawal of tendered
Outstanding Notes will be determined by the Issuers in their sole discretion,
which determination will be final and binding. The Issuers reserve the absolute
right to reject any and all Outstanding Notes not properly tendered or any
Outstanding Notes the Issuers' acceptance of which might, in the opinion of the
Issuers or their counsel, be unlawful. The Issuers also reserve the absolute
right to waive any conditions of the Exchange Offer or defects or irregularities
of tenders as to particular Outstanding Notes. The Issuers' interpretation of
the terms and conditions of the Exchange Offer (including this letter of
transmittal and the instructions hereto) shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of Outstanding Notes must be cured within such time as the Issuers shall
determine. Neither the Issuers, the Exchange Agent nor any other person shall be
under any duty to give notification of defects or irregularities with respect to
tenders of Outstanding Notes nor shall any of them incur any liability for
failure to give such notification.
10. Waiver of Conditions. The Issuers reserve the absolute right to
waive, in whole or part, any of the conditions to the Exchange Offer set forth
in the Prospectus.
11. No Conditional Tender. No alternative, conditional, irregular or
contingent tender of Outstanding Notes will be accepted.
12. Mutilated, Lost, Stolen or Destroyed Outstanding Notes. Any holder
whose Outstanding Notes have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated above for further
instructions. This letter of transmittal and related documents cannot be
processed until the procedures for replacing lost, stolen or destroyed
Outstanding Notes have been followed.
13. Requests for Assistance or Additional Copies. Requests for
assistance or for additional copies of the Prospectus or this letter of
transmittal may be directed to the Exchange Agent at the address or telephone
number set forth on the cover page of this letter of transmittal. Holders may
also contact their broker, dealer, commercial bank, trust issuers or other
nominee for assistance concerning the Exchange Offer.
14. Withdrawal. Tenders may be withdrawn only pursuant to the limited
withdrawal rights set forth in the Prospectus under the caption "The Exchange
Offer -- Withdrawal of Tenders."
IMPORTANT: This letter of transmittal or a manually signed facsimile
hereof or an agent's message in lieu thereof (together with the Outstanding
Notes delivered by book-entry transfer or in original hard copy form) must be
received by the Exchange Agent, or the notice of guaranteed delivery must be
received by the Exchange Agent, prior to the Expiration Date.
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Part I--PLEASE PROVIDE YOUR TIN IN THE BOX
AT RIGHT AND CERTIFY BY SIGNING AND DATING ---------------------------------------
BELOW. Social Security Number
or
---------------------------------------
Employer ID Number
---------------------------------------------------------------------------------------------
SUBSTITUTE Part 2--Certifications--Under penalties of perjury, I certify that:
Form W-9 (1) The number shown on this form is my correct Taxpayer Identification Number (or I
have checked the box in Part 3 and executed the Certificate of Awaiting Taxpayer
Identification Number below) and
Department of the Treasury (2) I am not subject to backup withholding either because I have not been notified by
Internal Revenue Service the Internal Revenue Service ("IRS") that I am subject to backup withholding as a
result of failure to report all interest or dividends, or because the IRS has
notified me that I am no longer subject to backup withholding.
Payer's Request for Taxpayer
Identification Number ("TIN") Certification Instructions--You must cross out item (2) in Part 2 above if you have been
notified by the IRS that you are subject to backup withholding because of underreporting
interest or dividends on your tax return. However, if after being notified by the IRS that
you are subject to backup withholding you received another notification from the IRS stating
that you are no longer subject to backup withholding, do not cross out item (2).
---------------------------------------------------------------------------------------------
Name Part 3
---------------------------------------
Address Awaiting TIN [ ]
----------------------------------
----------------------------------------- Please complete the certificate of
City, State and Zip Code Awaiting Taxpayer Identification
Number below.
, 2003
-------------------------- ---------
Signature Date
- ---------------------------------------------------------------------------------------------------------------------------------
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF A PORTION (CURRENTLY 28%) OF ANY PAYMENTS MADE TO YOU WITH RESPECT TO THE NEW
NOTES.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9
- ---------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I
have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number to the payor within 60 days, a portion (currently 28%) of
all reportable payments made to me thereafter will be withheld until I provide a number.
, 2003
- ------------------------------------------- ----------------------------
SIGNATURE DATE
- ---------------------------------------------------------------------------------------------------------------------------------
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