EXHIBIT 99.1
LETTER OF TRANSMITTAL
TEXAS INDUSTRIES, INC.
Offer For Any and All Outstanding
10 1/4% Senior Notes Due 2011
In Exchange For
10 1/4% Senior Notes Due 2011
Which Have Been Registered Under The Securities Act of 1933
Pursuant to the Prospectus Dated , 2003
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 2003, UNLESS THE OFFER IS EXTENDED. TENDERS MAY
BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent for the Exchange Offer is:
WELLS FARGO BANK, N.A.
Delivery by Registered Facsimile Transmissions: Overnight Delivery
or Certified Mail: (Eligible Institutions Only) or Regular Mail:
Wells Fargo Bank Minnesota, N.A. (612) 667-4929 Wells Fargo Bank Minnesota, N.A.
Corporate Trust Operations To Confirm by Telephone Corporate Trust Operations
MAC N9303-121 or for Information Call: Sixth and Marquette
P.O. Box 1517 (800) 344-5128 MAC N9303-121
Minneapolis, MN 55480-1517 Minneapolis, MN 55479
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that he or she has received the Prospectus,
dated, , 2003 (the "Prospectus"), of Texas Industries, Inc., a Delaware
corporation ("TXI"), and this Letter of Transmittal, which together constitute
TXI's offer (the "Exchange Offer") to exchange an aggregate principal amount of
up to $600,000,000 of 10 1/4% Senior Notes due 2011, which have been registered
under the Securities Act of 1933, as amended (the "Securities Act") (the
"Exchange Notes") for a like principal amount of the issued and outstanding 10
1/4% Senior Notes due 2011 (the "Notes") of TXI from the holders thereof.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus.
This Letter of Transmittal is to be completed by the holders of Notes
either if Notes are to be forwarded herewith of if tenders of Notes are to be
made by book-entry transfer to an account maintained by Wells Fargo Bank, N.A.
(The "Exchange Agent") at The Depository Trust Company (the "Book-Entry Transfer
Facility" or "DTC") pursuant to the procedures set forth in the "The Exchange
Offer -- Exchange Offer Procedures" in the Prospectus.
Holders of notes whose certificates (the "Certificates") for such Notes
are not immediately available or who cannot deliver their Certificates and all
other required documents to the Exchange Agent on or prior to the Expiration
Date (as defined in the Prospectus) or who cannot complete the procedures for
book-entry transfers on a timely basis, must tender their Notes according to the
guaranteed delivery procedures set forth in "The Exchange Offer -- Guaranteed
Delivery Procedures" in the Prospectus.
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DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
The undersigned has completed the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer:
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DESCRIPTION OF NOTES
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If Blank, Please Print Name and Notes
Address of Registered Holder(s) (Attach Additional List if Necessary)
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Principal Amount
Certificate Aggregate Principal of Notes Tendered
Number(s)* Amount of Notes (If Less than All)**
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Total:
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* Need not be completed if Notes are being tendered by book-entry holders.
** Notes may be tendered in whole or in part in multiples of $1,000. All Notes
held shall be deemed tendered unless a lesser number is specified in this
column. See Instruction 4.
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(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_] CHECK HERE IF TENDERED 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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DTC Account Number
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Transaction Code Number
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[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING
(SEE INSTRUCTION 1):
Name(s) of Registered Holder(s)
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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 GUARANTEED DELIVERY IS TO BE MADE BY BOOK-ENTRY TRANSFER:
Name of Tendering Institution
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DTC Account Number
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Transaction Code Number
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[_] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED NOTES ARE
TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE NOTES FOR ITS OWN
ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING 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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Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to TXI the above-described aggregate principal amount
of TXI's Notes in exchange for a like aggregate principal amount of TXI's
Exchange Notes which have been registered under the Securities Act upon the
terms and subject to the conditions set forth in the Prospectus dated
, 2003 (as the same may be amended or supplemented from time to time,
the "Prospectus"), receipt of which is acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitute the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Notes tendered herewith in accordance with the terms and
conditions of the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
undersigned hereby sells, assigns and transfers to or upon the order of TXI all
right, title and interest in and to such Notes as is being tendered herewith.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent
as its agent and attorney-in-fact (with full knowledge that the Exchange Agent
is also acting as agent of TXI in connection with the Exchange Offer) with
respect to the tendered Notes, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest)
subject only to the right of withdrawal described in the Prospectus, to (i)
deliver Certificates for Notes to TXI together with all accompanying evidences
of transfer and authenticity to, or upon the order of, TXI, upon receipt by the
Exchange Agent, as the undersigned's agent, of the Exchange Notes to be issued
in exchange for such Notes, (ii) present Certificates for such Notes for
transfer, and to transfer the Notes on the books of TXI, and (iii) receive for
the account of TXI all benefits and otherwise exercise all rights of beneficial
ownership of such Notes, all in accordance with the terms and conditions of the
Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, sell, assign and transfer the
notes tendered hereby and that, when the same is accepted for exchange, TXI will
acquire good, marketable and unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances, and that the Notes tendered
hereby are not subject to any adverse claims or proxies. The undersigned will,
upon request, execute and deliver any additional documents deemed by TXI or the
exchange agent to be necessary or desirable to complete the exchange, assignment
and transfer of the notes tendered hereby, and the undersigned will comply with
its obligations under the Registration Rights Agreement.
The name(s) and address(es) of the registered holder(s) of the Notes
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Notes. The
Certificate number(s) and the Notes that the undersigned wishes to tender should
be indicated in the appropriate boxes above.
If any tendered Notes are not exchanged pursuant to the Exchange Offer for
any reason, or if Certificates are submitted for more Notes than are tendered or
accepted for exchange, Certificates for such nonexchanged or nontendered Notes
will be returned (or, in the case of Notes tendered by book-entry transfer, such
Notes will be credited to an account maintained at DTC), without expense to the
tendering holder, promptly following the expiration or termination of the
Exchange Offer.
The undersigned understands that tenders of Notes pursuant to any one of
the procedures described in "The Exchange Offer -- Exchange Offer Procedures" in
the Prospectus and in the instructions attached hereto will, upon TXI's
acceptance for exchange of such tendered Notes, constitute a binding agreement
between the undersigned and TXI upon the terms and subject to the conditions of
the Exchange Offer. The undersigned recognizes that, under certain circumstances
set forth in the Prospectus, TXI may not be required to accept for exchange any
of the Notes tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Notes be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Notes, that such Exchange Notes be credited to the account indicated
above maintained at DTC. If applicable, substitute Certificates representing
Notes not exchanged or not accepted for exchange will be issued to the
undersigned or, in the case of a book-entry transfer of Notes,
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will be credited to the account indicated above maintained at DTC. Similarly,
unless otherwise indicated under "Special Delivery Instructions," please deliver
Exchange Notes to the undersigned at the address shown below the undersigned's
signature.
By tendering Notes and executing this Letter of Transmittal, the
undersigned hereby represents and agrees that: (i) the undersigned is not an
"affiliate" of TXI, or if it is such an affiliate, that the Exchange Notes may
not be offered for resale, resold or otherwise transferred without registration
under and in compliance with the Prospectus delivery requirement of the
Securities Act or an exemption therefrom, (ii) any Exchange Notes to be received
by the undersigned are being acquired in the ordinary course of its business,
(iii) the undersigned is not engaging in and does not intend to engage in a
distribution (within the meaning of the Securities Act) of Exchange Notes to be
received in the Exchange Offer, (iv) the undersigned has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of Exchange Notes to be received in the Exchange
Offer; (v) if the undersigned is not a broker-dealer, the undersigned is not
engaged in, and does not intend to engage in, a distribution (within the meaning
of the Securities Act) of such Exchange Notes, and (vi) the undersigned is not
acting on behalf of any person or entity which could not truthfully make the
above representations. By tending notes pursuant to the Exchange Offer and
executing this Letter of Transmittal, a holder of notes which is a broker-dealer
represents, and agrees, consistent with certain interpretative letters issued by
the staff of the Division of Corporate Finance of the Securities and Exchange
Commission to third parties, that (A) such Notes held by the broker-dealer are
held only as a nominee, or (B) such Notes were acquired by such broker-dealer
for its own account as a result of market-making activities or other trading
activities and it will deliver the Prospectus (as amended or supplemented from
time to time) meeting the requirements of the Securities Act in connection with
any resale of such Exchange Notes (provided that, by so acknowledging and by
delivering a Prospectus, such broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act).
TXI has agreed that, subject to the provisions of the Registration Rights
Agreement, the Prospectus, as it may be amended or supplemented from time to
time, may be used by a participating broker-dealer (as defined below) in
connection with resales of Exchange Notes received in exchange for Notes, where
such Notes were acquired by such participating broker-dealer for its own account
as a result of market-making activities or other trading activities, for a
period ending on the earlier of (i) 180 days after the exchange offer
registration statement is declared effective or (ii) the date on which a
broker-dealer is no longer required to deliver a Prospectus in connection with
market-making or other trading activities. In that regard, each broker-dealer
who acquired Notes for its own account as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), by tendering such Notes
and executing this Letter of Transmittal, agrees that, upon receipt of notice
from TXI of the occurrence of any event or the discovery of any fact which makes
any statement contained or incorporated by reference in the Prospectus untrue in
any material respect or which causes the Prospectus to omit to state a material
fact necessary to make the statements contained or incorporated by reference
therein, in light of the circumstances under which they were made, not
misleading or of the occurrence of certain other events specified in the
registration rights agreement, such Participating Broker-Dealer will suspend the
sale of Exchange Notes pursuant to the Prospectus until TXI has amended or
supplemented the Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented Prospectus to the Participating
Broker-Dealer or TXI has given notice that the sale of Exchange Notes may be
resumed, and the case may be. If TXI gives such notice to suspend the sale of
Exchange Notes, is shall extend the 180-day or shorter period preferred to above
during which Participating Broker-Dealers are entitled to use the Prospectus in
connection with the resale of Exchange Notes by the number of days during the
period from and including the date of the giving of such notice to and including
the date when Participating Broker-Dealers shall have received copies of the
supplemented or amended Prospectus necessary to permit resales of Exchange Notes
or to and including the date on which TXI has given notice that the sale of
Exchange Notes may be resumed, as the case may be.
Holders of Notes whose Notes are accepted for exchange will not receive
accrued interest on such Notes for any period from and after the last Interest
Payment Date to which interest has bee paid or duly provided for on such Notes
prior to the original issue date of the Exchange Notes or, if no such interest
has been paid or duly provided for, will not receive any accrued interest on
such Notes, and the
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undersigned waives the right to receive any such interest on such Notes accrued
from and after such Interest Payment Date or, if no such interest has been paid
or duly provided for, from and after June 6, 2003. The Exchange Notes will bear
interest from the most recent Interest Payment Date to which interest has been
paid on the Notes or, if no interest has been paid, from June 6, 2003.
The undersigned will, upon request, execute and deliver any additional
documents deemed by TXI to be necessary or desirable to complete the sale,
assignment and transfer of the Notes tendered hereby. All authority herein
conferred or agreed to be conferred in this Letter of Transmittal shall survive
the death or incapacity of the undersigned and any obligation of the undersigned
hereunder shall be binding upon the heirs, executors, administrators, personal
representatives, trustees in bankruptcy, legal representatives, successors and
assigns of the undersigned. Except as stated in the Prospectus, this tender is
irrevocable.
The undersigned, by completing the box entitled "description of notes"
above and signing this letter, will be deemed to have tendered the notes as set
forth in such box.
SPECIAL ISSUANCE INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED -- SEE INSTRUCTION 2)
To be completed ONLY if Exchange Notes or Notes not tendered are to be
issued in the name of someone other than the registered holder of the Notes
whose name(s) appear(s) above.
[_] Notes not tendered to:
[_] Exchange Notes to:
Name
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(Please Print)
Address
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(Include Zip Code)
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(Tax Identification or Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED -- SEE INSTRUCTION 2)
To be completed ONLY if Exchange Notes or Notes not tendered are to be sent
to someone other than the registered holder of the Notes whose name(s) appear(s)
above, or such registered holder at an address other than that shown above.
[_] Notes not tendered to:
[_] Exchange Notes to:
Name
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(Please Print)
Address
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(Include Zip Code)
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IMPORTANT
HOLDERS: SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN)
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Signature(s) of holder(s)
Dated:
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(Must be signed by the registered holder(s) exactly as name(s) appear(s)
on Certificate(s) for the Notes hereby tendered or on a security position
listing or by person(s) authorized to become registered holder(s) by
certificates and documents transmitted herewith. If signature is by trustee,
executor, administrator, guardian, attorney-in-fact, officer of corporation or
other person acting in a fiduciary or representative capacity, please provide
the following information and see Instruction 2 below.)
Name(s):
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(Please 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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(SEE SUBSTITUTE FORM W-9 HEREIN)
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GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTION 2 BELOW)
Authorized Signature:
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Name:
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(Please Type or Print)
Title:
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Name of Firm:
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Address:
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(Include Zip Code)
Area Code and Telephone Number:
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Date:
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth in "The Exchange
Offer" in the Prospectus and an Agent's Message is not delivered. Certificates,
or timely confirmation of a book-entry transfer of such Notes into the Exchange
Agent's account at DTC, as well as this Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, and any other documents required by this Letter of Transmittal, must
be received by the Exchange Agent at its address set forth herein on or prior to
the Expiration Date. Tenders by book-entry transfer may also be made by
delivering an Agent's Message in lieu thereof. Notes may be tendered in whole or
in part in integral multiples of $1,000.
Holders who wish to tender their Notes and (i) whose Notes are not
immediately available or (ii) who cannot deliver their Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent on or prior
to the Expiration Date or (iii) who cannot complete the procedures for delivery
by book-entry transfer on a timely basis, may tender their Notes by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth in "The Exchange Offer" in the
Prospectus. Pursuant to such procedures: (i) such tender must be made by or
through an Eligible Institution (as defined below); (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form made
available by TXI, must be received by the Exchange Agent on or prior to the
Expiration Date; and (iii) the Certificates (or a book-entry confirmation)
representing all tendered Notes, in proper form for transfer, together with a
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
within three New York Stock Exchange trading days after the date of execution of
such Notice of Guaranteed Delivery, all as provided in "The Exchange Offer" in
the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice of Guaranteed
Delivery. For Notes to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or
prior to the Expiration Date. As used herein and in the Prospectus, "Eligible
Institution" means a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as "an eligible guarantor institution," including (as such terms
are defined therein) (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association.
The method of delivery of Certificates, this Letter of Transmittal and all
other required documents is at the option and sole risk of the tendering holder,
and the delivery will be deemed made only when actually received by the Exchange
Agent. If delivery is by mail, then registered mail with return receipt
requested, properly insured, or overnight delivery service is recommended. In
all cases, sufficient time should be allowed to ensure timely delivery.
TXI will not accept any alternative, conditional or contingent tenders.
Each tendering holder, by execution of a Letter of Transmittal (or facsimile
thereof), waives any right to receive any notice of the acceptance of such
tender.
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2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
* this Letter of Transmittal is signed by the registered holder (which
term, for purposes of this document, shall include any participant in
DTC whose name appears on a security position listing as the owner of
the Notes (the "holder")) of Notes tendered herewith, unless such
holder(s) has completed either the box entitled "Special Issuance
Instructions" or the box entitled "Special Delivery Instructions"
above, or
* such Notes are tendered for the account of a firm that is an Eligible
Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned
"Description of Notes" is inadequate, the Certificate number(s) and/or the
principal amount of Notes and any other required information should be listed on
a separate signed schedule that is attached to this Letter of Transmittal.
4. Partial Tenders and Withdrawal Rights. Tenders of Notes will be
accepted only in integral multiples of $1,000. If less than all the Notes
evidenced by any Certificate submitted are to be tendered, fill in the principal
amount of Notes which are to be tendered in the box entitled "Principal Amount
of Notes Tendered." In such case, new Certificate(s) for the remainder of the
Notes that were evidenced by your old Certificate(s) will only be sent to the
holder of the Notes, promptly after the Expiration Date. All Notes represented
by Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Notes may be withdrawn at
any time on or prior to the Expiration Date. In order for a withdrawal to be
effective on or prior to that time, a written or facsimile transmission of such
notice of withdrawal must be timely received by the Exchange Agent at one of its
addresses set forth above or in the Prospectus on or prior to the Expiration
Date. Any such notice of withdrawal must specify the name of the person who
tendered the Notes to be withdrawn, the aggregate principal amount of Notes to
be withdrawn, and (if Certificates for Notes have been tendered) the name of the
registered holder of the Notes as set forth on the Certificate for the Notes, if
different from that of the person who tendered such Notes. If Certificates for
the Notes have been delivered or otherwise identified to the Exchange Agent,
then prior to the physical release of such Certificates for the Notes, the
tendering holder must submit the serial numbers shown on the particular
Certificates for the Notes to be withdrawn and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution, except in the case of
Notes tendered for the account of an Eligible Institution. If Notes have been
tendered pursuant to the procedures for book-entry transfer set forth in the
Prospectus under "The Exchange Offer," the notice of withdrawal must specify the
name and number of the account at DTC to be credited with the withdrawal of
Notes, in which case a notice of withdrawal will be effective if delivered to
the Exchange Agent by written, telegraphic, telex or facsimile transmission.
Withdrawals of tenders of Notes may not be rescinded. Notes properly withdrawn
will not be deemed validly tendered for purposes of the Exchange Offer, but may
be retendered at any subsequent time on or prior to the Expiration Date by
following any of the procedures described in the Prospectus under "The Exchange
Offer."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by TXI, in its sole
discretion, whose determination shall be final and binding on all parties. TXI,
any affiliates or assigns of TXI, the Exchange Agent or any other person shall
not be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Notes that have been tendered but that are withdrawn will be
returned to the holder thereof without cost to such holder promptly after
withdrawal.
5. Signatures on Letter of Transmittal, Assignments and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Notes
tendered hereby, the signature(s) must correspond exactly with the name(s) as
written on the face of the Certificate(s) without alteration, enlargement or any
change whatsoever.
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If any Notes tendered hereby are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any tendered Notes are registered in different name(s) on several
Certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If this Letter of Transmittal 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
TXI, must submit proper evidence satisfactory to TXI, in its sole discretion, of
each such person's authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of
the Notes listed and transmitted hereby, no endorsement(s) of Certificate(s) or
separate bond power(s) is required unless Exchange Notes are to be issued in the
name of a person other than the registered holder(s). Signature(s) on such
Certificate(s) or bond power(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Notes listed, the Certificates must be endorsed or
accompanied by appropriate bond powers, signed exactly as the name or names of
the registered owner(s) appear(s) on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
TXI or the Trustee for the Notes may require in accordance with the restrictions
on transfer applicable to the Notes. Signatures on such Certificates or bond
powers must be guaranteed by an Eligible Institution.
6. Special Issuance and Delivery Instructions. If Exchange Notes are to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange Notes are to be sent to someone other than the
signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Notes not exchanged will be returned by mail or, if tendered by
book-entry transfer, by crediting the account indicated above maintained at DTC.
See Instruction 4.
7. Irregularities. TXI will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Notes, which determination
shall be final and binding on all parties. TXI reserves the absolute right to
reject any and all tenders determined by it not to be in proper form or the
acceptance of which, or exchange for which may, in the view of counsel to TXI be
unlawful. TXI also reserves the absolute right, subject to applicable law, to
waive any of the conditions of the Exchange Offer set forth in the Prospectus
under "The Exchange Offer" or any conditions or irregularities in any tender of
Notes of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders. TXI's interpretation of
the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and binding. No tender of
Notes will be deemed to have been validly made until all irregularities with
respect to such tender have been cured or waived. TXI, any affiliates or assigns
of TXI, the Exchange Agent, or any other person shall not be under any duty to
give notification of any irregularities in tenders or incur any liability for
failure to give such notification.
8. Questions, Requests for Assistance and Additional Copies. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. Backup Withholding; Substitute Form W-9. Under U.S. federal income tax
law, a holder (including, for purposes of this section, beneficial owners of the
Notes) whose tendered Notes are accepted for exchange is required to provide the
Exchange Agent with such holder's correct taxpayer identification number ("TIN")
on Substitute Form W-9 below. If the Exchange Agent is not provided with the
correct TIN, the Internal Revenue Service (the "IRS") may subject the holder or
other payee to
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a $50 penalty. In addition, payments to such holders or other payees with
respect to Notes exchanged pursuant to the Exchange Offer may be subject to
backup withholding at a rate equal to 28%.
To prevent backup withholding on any payment made to a holder or other
payee with respect to the exchange notes, the holder is required to notify the
Exchange Agent (i) of the holder's current TIN (or the TIN of any other payee)
by completing the form below, certifying that the TIN provided on Substitute
Form W-9 is correct (or that such holder is awaiting a TIN); (ii) either that
(A) the holder is exempt from backup withholding, (B) the holder has not been
notified by the Internal Revenue Service that the holder is subject to backup
withholding as a result of failure to report all interest or dividends or (C)
the Internal Revenue Service has notified the holder that the holder is no
longer subject to backup withholding; and (iii) that the holder is a U.S.
person. The box in Part 3 of the Substitute Form W-9 may be checked if the
holder (or other payee) has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is checked
and the Exchange Agent is not provided with a TIN within 60 days, the Exchange
Agent may withhold 28% on all payments, if any, until a TIN is provided to the
Exchange Agent.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to the backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 and write "Exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed and
appropriate IRS Form W-8, signed under penalties of perjury, attesting to that
holder's exempt status. Please consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which holders are exempt from backup withholding.
Backup withholding is not an additional U.S. federal income tax. Rather,
the U.S. federal income tax liability of a person 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, provided that the required
information is furnished to the IRS.
10. Waiver of Conditions. TXI reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
11. No Conditional Tenders. No alternative, conditional or contingent
tenders will be accepted. All tendering holders of Notes, by execution of this
Letter of Transmittal, shall waive any right to receive notice of the acceptance
of Notes for exchange.
Neither TXI, the Exchange Agent nor any other person is obligated to give
notice of any defect or irregularity with respect to any tender of Notes nor
shall any of them incur any liability for failure to give any such notice.
12. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Notes have been lost, destroyed or stolen, the holder should
promptly notify the Exchange Agent. The holder will then be instructed as to the
steps that must be taken in order to replace the Certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Certificate(s) have been followed.
13. Security Transfer Taxes. Holders who tender their Notes for exchange
will not be obligated to pay any transfer taxes in connection therewith. If,
however, Exchange Notes are to be delivered to, or are to be issued in the name
of, any person other than the registered holder of the Notes tendered, or if a
transfer tax is imposed for any reason other than the exchange of Notes in
connection with the Exchange Offer, then the amount of any such transfer tax
(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 the Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering holder.
12
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IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO 5:00
P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
TO BE COMPLETED BY ALL TENDERING SECURITY HOLDERS
(SEE INSTRUCTION 9)
- --------------------------------------------------------------------------------
PAYER'S NAME:
- --------------------------------------------------------------------------------
PAYEE'S NAME:
- --------------------------------------------------------------------------------
BUSINESS NAME (IF DIFFERENT):
- --------------------------------------------------------------------------------
ADDRESS:
- --------------------------------------------------------------------------------
MARK APPROPRIATE BOX: [_] Individual/Sole Proprietor [_] Corporation
[_] Partnership [_] Other
- --------------------------------------------------------------------------------
SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT -----------------------------------
Form W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Social Security Number(s)
OR-----------------------
Employer Identification
Number(s)
-------------------------------------------------------------------------------------
Part 2 -- Part 3 --
Certification Awaiting TIN
-- Under Penalties of I certify that:
Department of the Treasury (1) The number shown on this form is my correct
Internal Revenue Service taxpayer identification number (or I am waiting
for a number to be issued for me), and
Payer's Request for Taxpayer (2) I am not subject to backup withholding
Identification Number("TIN") because: (a) I am exempt from backup withholding,
or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup
withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has
notified me that I am no
longer subject to backup
withholding, and (3) I am a
U.S. person (including a U.S.
resident or alien).
-------------------------------------------------------------------------------------
Certification Instructions -- You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because you
have failed to report all interest or dividends on your tax return.
The Internal Revenue Service does not require your consent to any provision of
this document other than the certifications required to avoid backup withholding.
SIGNATURE DATE
----------------------------------------------- -----------------------------------
- --------------------------------------------------------------------------------------------------------------------------
NOTE:FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 28% OF
ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
NOTE: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 (1) 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 (2) 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 60 days, 28% of all reportable
payments made to me thereafter may be withheld until I provide a taxpayer
identification number.
SIGNATURE DATE
- ----------------------------------------------------- ------------------------
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GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payer -- Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e., 00-0000000. The table below will help determine the name
and number to give the payer.
- ---------------------------------------------------------------------------------------------------------------------------
Give the name and SOCIAL
For this type of account: SECURITY number
of--
- ---------------------------------------------------------------------------------------------------------------------------
1.An individual's account The individual
2.Two or more individuals (joint account) The actual owner of the account
or, if combined funds, the first
individual on the account(1)
3.Custodian account of a minor (Uniform Gift to Minors Act) The minor(2)
4.a. The usual revocable savings trust account (grantor is also trustee) The grantor-trustee(1)
b. So-called trust account that is not a legal or valid trust under State law The actual owner(1)
5.Sole proprietorship or single-owner LLC account The owner(3)
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
Give the name and EMPLOYER
For this type of account: IDENTIFICATION number
of--
- ---------------------------------------------------------------------------------------------------------------------------
6.A valid trust, estate, or pension trust Legal entity (Do not furnish the
identifying number of the personal
representative or trustee unless the
legal entity itself is not designated
in the account title.)(4)
- ---------------------------------------------------------------------------------------------------------------------------
7.Corporate or LLC electing corporate status on Form 8832 account The corporation
8.Association, club, religious, charitable, educational, or other The organization
tax-exempt organization account
9.Partnership or multi-member LLC The partnership
10.A broker or registered nominee The broker or nominee
11.Account with the Department of Agriculture in the name of a The public entity
public entity (such as a State or local government, school district or
prison) that receives agricultural program payments
- ---------------------------------------------------------------------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number that person's
number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name. You may also enter your business or
"doing business as" name. You may use either your social security number or, if
you have one, your employer identification number.
(4) List first and circle the name of the legal trust, estate or pension trust.
NOTE:If no name is circled when there is more than one name listed, the number
will be considered to be that of the first name listed.
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GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at a local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number. You may also obtain Form SS-4 by calling the IRS at 1-800-TAX-FORM.
Payees Exempt from Backup Withholding
Payees specifically exempted from backup withholding on ALL payments include the
following:
*An organization exempt from tax under section 501(a), or an individual
retirement account.
*The United States or any wholly-owned agency or instrumentality thereof.
*A state, the District of Columbia, a possession of the United States, or any
political subdivision or wholly-owned agency or instrumentality thereof.
*A foreign government, a political subdivision of a foreign government, or any
wholly-owned agency or instrumentality thereof.
*An international organization or any wholly-owned agency or instrumentality
thereof.
Payees specifically exempted from backup withholding on interest and dividend
payments include the following:
*A corporation.
*A financial institution.
*A registered dealer in securities or commodities registered in the U.S., the
District of Columbia, or a possession of the U.S.
*A real estate investment trust.
*A common trust fund operated by a bank under section 584(a).
*An exempt charitable remainder trust, or a non-exempt trust described in
section 4947.
*An entity registered at all times during the tax year under the Investment
Company Act of 1940.
*A foreign central bank of issue.
*A middleman known in the investment community as a nominee or who is listed in
the most recent publication of the American Society of Corporate Secretaries,
Inc., Nominee List.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
*Payments to nonresident aliens subject to withholding under section 1441.
*Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
*Payments of patronage dividends not paid in money.
*Payments made by certain foreign organizations.
*Section 404(k) payments made by an ESOP.
Payments of interest not generally subject to backup withholding include the
following:
*Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
*Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
*Payments described in section 6049(b)(5) to non-resident aliens.
*Payments on tax-free covenant bonds under section 1451.
*Payments made by certain foreign organizations.
Exempt payees described above may file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE THE
FORM, AND RETURN IT TO THE PAYER.
Certain payments other than interest, dividends, and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see sections 6041, 6041A, 6042, 6044, 6045, 6049,
6050A, 6050N, and their regulations.
Privacy Act Notice. Section 6109 requires most recipients of dividend, interest,
or other payments to give taxpayer identification numbers to payers who must
report the payments to IRS. IRS uses the numbers for identification purposes and
to help verify the accuracy of tax returns. The IRS also may provide this
information to the Department of Justice for civil and criminal litigation and
to cities, states, and the District of Columbia to carry out their tax laws.
Payers must be given the numbers whether or not recipients are required to file
tax returns. Payers must generally withhold 28% of taxable interest, dividend,
and certain other payments to a payee who does not furnish a taxpayer
identification number to a payer. Certain penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer identification Number.-- If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) Civil Penalty for False information With Respect to Withholding.-- If you
make a false statement with no reasonable basis that results in no backup
withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information.-- Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE
INTERNAL REVENUE SERVICE.
15