Exhibit 10.19
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (including the Exhibits hereto, this "Agreement"),
dated as of May 16, 2003, by and between LESLIE'S POOLMART, INC., a Delaware
corporation (the "Company"), and the undersigned holder of the Company's 10-3/8%
Senior Notes due 2004 (the "Holder").
WITNESSETH:
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WHEREAS, the Holder owns the aggregate principal amount set forth on
Schedule 1 hereto (the "Holder's Interest") of the Company's 10-3/8% Senior
Notes due 2004 (the "Old Notes") issued pursuant to the Indenture (the "Old
Indenture"), dated as of June 11, 1997 between the Company and Bank of New York,
as successor by merger to U.S. Trust Company of California, N.A., as Trustee
(the "Trustee");
WHEREAS, Holder desires to transfer to the Company all of Holder's right,
title and interest in, to and under the Old Notes, in exchange for the issuance
of the Company's 10 3/8 % Series A Senior Notes due 2008 (the "Series A Notes")
to be issued in accordance with Section 1 herein and pursuant to an Indenture,
to be dated as of May 21, 2003, between the Company and the Trustee in
substantially the form of Exhibit B, which form is marked to show changes from
the Old Indenture (the "New Indenture"). Such exchange made hereby and effected
in accordance with this Agreement is sometimes referred to herein as the
"Exchange."
NOW, THEREFORE, the parties hereto agree as follows:
1. Terms of Exchange
(a) The Series A Notes have been offered and will be issued to the
Holder pursuant to a private placement exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Act").
(b) In the Exchange, $1,000 in principal amount of Series A Notes
will be issued for each $1,000 in principal amount of Old Notes exchanged
pursuant to this Agreement. The terms of the Series A Notes will be identical to
those of the Old Notes in all material respects, except that (i) the maturity of
the Series A Notes will be July 15, 2008, (ii) the basket amount for calculating
permitted restricted payments in Section 4.03 of the New Indenture will be reset
to zero (iii) the test for determining whether the Company may incur additional
indebtedness in Section 4.04 of the New Indenture will require interest coverage
of at least 2.5 to 1.0 and (iv) the Series A Notes will not be redeemable prior
to July 15, 2005, at which time they will be redeemable at a redemption price of
102.594%, which price will decrease to 100% on and after July 15, 2006; provided
that prior to July 15, 2005 up to $20 million in principal amount of such Notes
may be redeemed with cash proceeds from one or more public equity offerings at a
price of 110.375%, so long as at least $20 million in principal amount of the
Series A Notes is outstanding after such redemptions.
(c) Effective at the Closing (as defined below), the Holder will
transfer the aggregate principal amount of Old Notes set forth on Schedule 1
hereto in exchange for (i) a like
aggregate principal amount of Series A Notes and (ii) a cash payment equal to
2.0% of the aggregate principal amount of the Old Notes set forth on Schedule 1
(the "Cash Payment"), together with a cash payment in the amount of accrued
interest on the surrendered Old Notes through the Closing and less any
applicable tax withholding. Upon such exchange, Holder shall assign and convey
unto the Company, its successors and assigns, and the Company shall receive and
accept all right, title and interest of Holder in, to, under and in respect of
the Old Notes.
(d) Holder (including subsequent transferees of the Series A Notes)
will have the registration rights set forth in the Registration Rights Agreement
to be dated as of May 21, 2003, by and among the Company, Holder and other
holders of Old Notes in substantially the form of Exhibit A, which form is
marked to show changes from the registration rights agreement pursuant to which
the Old Notes were registered (the "Registration Rights Agreement") for so long
as such Series A Notes constitute "Transfer Restricted Securities" (as defined
in the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company will agree to file with the Securities and Exchange
Commission (the "Commission") under the circumstances set forth therein, (i) a
registration statement under the Act (the "Exchange Offer Registration
Statement") relating to (A) the Company's 10 3/8 % Series B Senior Notes due
2008 (the "Series B Notes" and, together with the Series A Notes, the "New
Notes") to be offered in exchange for the Series A Notes (such offer to exchange
being referred to as the "Registered Exchange Offer") and/or (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement" and together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale by certain
holders of the Series A Notes, and to use their best efforts to cause such
Registration Statements to be declared effective.
(e) The Series A Notes being issued pursuant to this Section 1
pursuant to the Exchange are being issued to refinance the Old Notes for the
Series A Notes, and constitute "Refinancing Indebtedness" as defined in the Old
Indenture relating to the Old Notes.
2. Closing. The closing of the transactions contemplated hereby (the
"Closing") shall occur on May 21, 2003 (the "Closing Date") at the offices of
Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the
following shall occur at the Closing:
(a) Holder shall irrevocably instruct the participant in The
Depository Trust Company ("D.T.C.") System that holds the Old Notes on behalf of
Holder to deliver "free" the Old Notes to the Company via the Company's account
number 1019000411 at Jefferies & Company, Inc. ("Jefferies"), and shall take
such action as is reasonably necessary to cause such delivery to occur by 9
a.m., New York time, on the day prior to the Closing Date. The Company shall
hold such Old Notes in escrow until the Closing. If the Closing does not occur
within two (2) business days of the Closing Date, the Company shall return such
Old Notes to the Holder. Holder shall deliver to the Company at the Closing such
customary tax forms as it may request.
(b) The Company shall deliver to the Holder the Series A Notes as set
forth in Schedule 1 hereto duly registered in the name of Cede & Co., as nominee
of D.T.C. and authenticated by the trustee under the New Indenture, with the
legend in the form set forth on the form of Series A Note set forth in New
Indenture.
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The closing of the transactions contemplated hereby shall be expressly
conditioned upon the satisfaction of the General Conditions (as such term is
defined in Section 6) as of the Closing Date. This Agreement shall become
effective upon its execution by both the Holder and the Company.
The obligations of each party to close pursuant to this Section 2 shall
also be conditioned upon the respective representations and warranties by each
such party herein being true and correct in all material respects as of the
Closing and such representations and warranties shall be deemed to be restated
and remade as of the date of Closing.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to Holder, and its successors and assigns, as of the
date hereof and as of the Closing Date, as follows:
(a) The Company has duly authorized the Series A Notes and, when
issued and authenticated in accordance with the terms of the New Indenture and
delivered to and paid for by Holder in accordance with the term hereof, the
Series A Notes will be the legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors rights generally and (ii) limited by general principles
of equity (whether considered in a proceeding at law or in equity).
(b) The Company is duly organized, validly existing and in good
standing under the laws of Delaware with all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement,
the New Indenture, and the Registration Rights Agreement and to consummate the
transactions contemplated herein and therein.
(c) The Company has duly authorized the Series B Notes and, when
issued and authenticated in accordance with the terms of the Registered Exchange
Offer and the New Indenture, the Series B Notes will conform to the description
thereof in the applicable Registration Statement, and will be the legally valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be (i)
subject to applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors rights
generally and (ii) limited by general principles of equity (whether considered
in a proceeding at law or in equity) .
(d) The execution, delivery and performance of this Agreement and all
other instruments and documents to be executed and delivered by the Company in
connection herewith (including the New Indenture and the Registration Rights
Agreement) have been (or will be prior to the Closing) duly authorized by all
necessary corporate proceedings.
(e) No authorizations, consents or approvals from, or notifications
to, or filing with, any court or any governmental agency having jurisdiction
over the Company are or will be necessary for the valid execution, delivery or
performance by the Company of this Agreement, except as may be required by the
public reporting requirements applicable to the Old Notes or by the Registration
Rights Agreement.
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(f) This Agreement, the New Indenture and the Registration Rights
Agreement constitute the legal, valid and binding obligation of the Company
except as may be limited by bankruptcy, reorganization, receivership, insolvency
or similar laws affecting the enforcement of creditors' rights generally and
limitations on the enforcement of equitable remedies.
(g) Assuming the satisfaction of the General Conditions, the accuracy
of Holder's representations and warranties, the execution, delivery and
performance of this Agreement and all other instruments and documents to be
executed and delivered by the Company in connection herewith (including the New
Indenture and the Registration Rights Agreement) and the consummation of the
transactions contemplated hereby or thereby by the Company are not (and will not
be) in conflict with or in contravention or violation of any law (including
common law), rule or regulation by which the Company is bound or to which it is
subject or any material agreement to which it is a party or by which it is bound
(including the old Indenture). No proceedings are pending against the Company
or, to the Company's knowledge, without independent investigation, threatened
against the Company before any court, arbitrator or administrative or
governmental body which, in the aggregate, would have a material adverse effect
on Holder's rights and remedies hereunder.
(h) The Company will not, as of the Closing, have any Indebtedness
(as defined in the Old Indenture) outstanding pursuant to clause (x) or (xi) of
the definition of Permitted Indebtedness in the Old Indenture.
(i) The Company intends to redeem, on or before August 15, 2003, at
par, all Old Notes that remain outstanding on such date.
4. Representations, Warranties and Agreements of Holder. Holder hereby
represents, warrants and covenants to the Company, as of the date hereof and as
of the Closing Date, as follows:
(a) Holder is, and at all times prior to the Closing will be, the
sole beneficial owner and Holder's nominee is, and at all times prior to the
Closing will be, the sole legal and record owner, of the Holder's Interest free
and clear of all liens.
(b) Holder is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with all requisite power
and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated herein.
(c) The execution, delivery and performance of this Agreement and all
other instruments and documents to be executed and delivered by Holder in
connection herewith and contained herein and the Registration Rights Agreement,
have been (or will be prior to the Closing) duly authorized by all necessary
proceedings.
(d) No authorizations, consents or approvals from, or notifications
to, or filing with, any court or any governmental agency having jurisdiction
over Holder or any other person or entity are or will be necessary for the valid
execution, delivery or performance by Holder of this Agreement or the agreements
contemplated hereby.
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(e) This Agreement and the Registration Rights Agreement constitute
the legal, valid and binding obligation of Holder except as may be limited by
bankruptcy, reorganization, receivership, insolvency or similar laws affecting
the enforcement of creditors' rights generally and limitations on the
enforcement of equitable remedies.
(f) The execution, delivery and performance of this Agreement, the
Registration Rights Agreement and all other instruments and documents to be
executed and delivered by Holder in connection herewith and therewith and the
consummation of the transactions contemplated hereby or thereby by Holder are
not (and will not be) in conflict with or in contravention or violation of any
law (including common law), rule or regulation by which the Holder is bound or
to which it is subject or any material agreement to which it is a party or by
which it is bound. No proceedings are pending against Holder or, to Holder's
knowledge, without independent investigation, threatened against Holder before
any court, arbitrator or administrative or governmental body which, in the
aggregate, would have a material adverse effect on the Holder's Interest or the
Company's rights and remedies hereunder or in respect of the Holder's Interest.
(g) Holder is a "qualified institutional buyer" within the meaning of
Rule 144A of the Act or an institutional accredited investor, as defined in Rule
501(a)(1), (2), (3) and (7) under the Act, in either case with such knowledge
and experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Series A Notes. Holder
understands that the Series A Notes have not been registered under the Act, or
any state securities laws, and may not be sold, transferred or otherwise
disposed of by Holder without such registration or an exemption therefrom
(including pursuant to Rule 144A to another qualified institutional buyer within
the meaning of Rule 144A of the Securities Act). Except as otherwise indicated
on the signature page below, Holder is a "United States person" within the
meaning of the Internal Revenue Code of 1986, as amended (the "Code"). Holder
understands that unless it is a United States person within the meaning of the
Code and has properly completed and delivered to the Company together with this
Agreement a IRS Form W-9, the payments to be made to it by the Company in
connection with the Exchange may be subject to tax withholding, and hereby
agrees to indemnify the Company for and hold the Company harmless from all loss,
cost and expense it may incur as a result of any such amounts being subject to
tax withholding, whether or not the Company makes any such withholding.
(h) Holder (i) is not acquiring the Series A Notes with a view to any
distribution thereof or with any present intention of offering or selling any of
the Series A Notes in a transaction that would violate the Act or the securities
laws of any State of the United States or any other applicable jurisdiction, and
(ii) has not solicited and, unless and until the Series A Notes are registered
under the Act, will not solicit any offer to buy or offer to sell the Series A
Notes by means of any form of general solicitation or general advertising (as
such terms are defined in Regulation D under the Act) or in any manner involving
a public offering within the meaning of the Act.
(i) Holder acknowledges that the Company has material, non-public
information regarding the condition (financial and otherwise), results of
operations, businesses, properties, plans (including, without limitation,
proposed acquisitions, divestitures, financings, refinancings (including with
regard to the Exchange), and recapitalizations), and prospects of the
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Company (collectively, "Information") and that such Information might be
material to Holder's decision to participate in the Exchange of the Old Notes
for the Series A Notes, become party to this Agreement or be otherwise
materially adverse to the Holder's interests. Holder acknowledges that Holder
has been offered the opportunity to discuss the Company and its affairs and the
Exchange with the Company and its officers, representatives and agents, and that
Holder has declined such offer and discussions. Accordingly, Holder acknowledges
and agrees that the Company shall have no obligation to disclose to Holder any
of such Information. Holder acknowledges that it has been advised that the
Company intends to redeem, on August 15, 2003, at par, all Old Notes that remain
outstanding following the Exchange.
(j) Holder acknowledges that: (1) it has received and reviewed this
Agreement, the Registration Rights Agreement, the Old Indenture and the New
Indenture attached hereto; (2) the Company's Report on 10K for the year ended
September 28, 2002; (3) has received or is able to access the Incorporated
Documents; and (4) Holder has been afforded the opportunity to make appropriate
inquiries of the Company in connection with the transactions contemplated by
this Agreement.
(k) Holder has consulted its own legal, financial and tax counsel as
it deems appropriate in order to make an informed decision regarding its
exchange of the Old Notes for the Series A Notes, the issuance of Series A Notes
and the other transactions contemplated hereby, including the tax consequences
of the exchanges and the receipt of the Cash Payment and any "original issue
discount" consequences in respect of such transactions. Holder acknowledges that
it has not relied on the Company or its advisors or agents for any tax advice,
and that among other tax consequences of the Exchange, the Cash Payment may
result in "original issue discount" to be included in Holder's income for U.S.
federal income tax purposes over the term of the New Notes or may be treated as
income at the time the Cash Payment is received or accrued in accordance with
Holder's method of tax accounting.
(l) Holder is a sophisticated seller and investor with respect to the
Holder's Interest and has adequate information concerning the business and
financial condition of the Company to make an informed decision regarding the
exchange of the Holder's Interest for the Series A Notes pursuant to this
Agreement and has independently and without reliance upon Holder and based on
such information as Holder has deemed appropriate, made its own analysis and
decision to enter into this Agreement, except that Holder has relied upon the
representations and warranties of the Company contained in this Agreement.
(m) Holder represents that it has adequate information concerning the
business and financial condition of the Company to make an informed decision
regarding the Exchange and has independently and without reliance upon the
Company or Jefferies made its own analysis and decision to exchange the Old
Notes for the Series A Notes and Cash Payment. Holder hereby waives and
releases, to the fullest extent permitted by law, any and all claims and causes
of action it has or may have against the Company and Jefferies and their
respective affiliates, controlling persons, officers, directors, employees,
representatives and agents, based upon, relating to or arising out of the
nondisclosure of any Information.
(n) Holder has not acquired the Series A Notes on behalf, or at the
request, of the Company or any of its affiliates. Holder has not engaged or
employed any broker or finder in
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connection with the transactions referred to herein. Holder acknowledges and
confirms that the exchange of the Old Notes for the Series A Notes and Cash
Payment by Holder was privately negotiated in an independent transaction and not
publicly solicited by or on behalf of the Company or any of its affiliates.
(o) Holder acknowledges that it is aware of the so-called xxxxxxx
xxxxxxx rules, regulations and law which prohibit sales and purchases of
securities while in possession of material non-public information and the
disclosure of such information to others, and that this Agreement and the
transactions contemplated hereby may constitute such information.
5. Costs and Expenses. The Company and Holder shall each be responsible
for their own costs and expenses in connection with the preparation, negotiation
and execution of this Agreement. Jefferies has acted as agent for the Company in
connection with the transactions contemplated hereby and is being paid fees by
the Company.
6. Definitions.
"General Conditions" means the satisfaction of the following:
(i) there shall not have been instituted or threatened or be pending
any action or proceeding before or by any court or governmental, regulatory
or administrative agency or instrumentality, or by any other person, in
connection with the Exchange that is, or is reasonably likely to be, in the
sole judgment of the Company, materially adverse to the business,
operations, properties, condition (financial or otherwise), assets,
liabilities or prospects of the Company;
(ii) there shall not have occurred any material adverse development,
in the sole judgment of the Company, with respect to any action or
proceeding concerning the Company existing on the date hereof;
(iii) an order, statute, rule, regulation, executive order, stay,
decree, judgment or injunction shall not have been proposed, enacted,
entered, issued, promulgated, enforced or deemed applicable by any court or
governmental, regulatory or administrative agency or instrumentality that,
in the sole judgment of the Company, would or might prohibit, prevent,
restrict or delay consummation of either of the Exchange or that is, or is
reasonably likely to be, materially adverse to the business, operations,
properties, condition (financial or otherwise), assets, liabilities or
prospects of the Company;
(iv) there shall not have occurred or be likely to occur any event
affecting the business or financial affairs of the Company that, in the
sole judgment of the Company, would or might prohibit, prevent, restrict or
delay consummation of the Exchange or that will, or is reasonably likely
to, materially impair the contemplated benefits to the Company of the
Exchange; or
(v) the trustee under the New Indenture or the Holders shall not
have objected in any respect to, or taken any action that could, in the
sole judgment of the Company, adversely affect the consummation of, the
Exchange, or shall not have taken any action
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that challenges the validity or effectiveness of the procedures used by the
Company in the making of the Exchange Offer or the acceptance of, or
payment for, any of the Old Notes or any of the consents by the Company.
(vi) the Company's shall have obtained all consents required under
the Loan and Security Agreement, dated as of June 22, 2000, by and among
the Company, LPM Manufacturing, Inc., Xxxxx Fargo Retails Finance LLC, by
assignment and PNC Bank, National Association, as amended, to the
consummation of the Exchange and the issuance of the New Notes.
(vii) Xxxxx'x and Standard & Poor's shall issue prospective ratings of
B2/B-, respectively, on the New Notes and such ratings shall not have been
withdrawn.
"Incorporated Documents" means the Quarterly Report on Form 10-Q for the
quarter ended December 28, 2002 filed on February 11, 2003 by the Company with
the Commission pursuant to the Securities Exchange Act of 1934 and the Quarterly
Report on Form 10-Q for the quarter ended March 29, 2003 filed on May 12, 2003
by the Company with the Commission pursuant to the Securities Exchange Act of
1934.
7. Entire Agreement; Amendments. This Agreement, together with the
Exhibits hereto, sets forth the entire agreement between Holder and the Company
relating to the transactions contemplated hereby, supersedes all prior
communications and understandings of any nature and may not be supplemented,
altered or waived other than in a writing signed by the parties.
8. Notices. Each notice or other communication hereunder shall be in
writing, shall be sent by mail, postage prepaid, messenger, telecopy or
overnight courier, shall be deemed given when delivered to the designated
address or telecopy set forth in Annex I, and in the case of delivery by mail,
five (5) days after deposit in the U.S. Mail (or such other address as Holders
or the Company may designate from time to time to the other party hereto).
9. Survival of Representations and Warranties. The representations,
warranties, covenants and agreements of the parties contained herein shall
survive the consummation of the transactions contemplated in this Agreement.
10. Further Assurances. Each party shall execute and deliver all further
documents or instruments reasonably requested by the other party in order to
effect the intent of this Agreement and obtain the full benefit of this
Agreement.
11. Successors and Assigns. This Agreement shall be binding on, and inure
to the benefit of, the parties hereto and their successors and assigns;
provided, that this Agreement shall not be assigned by either party hereto
without the prior written consent of the other.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO CONFLICTS OF LAW PRINCIPLES.
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13. Severability. If any provision of this Agreement shall for any reason
be held to be invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision hereof, but this Agreement shall be
construed as if such invalid or unenforceable provision had never been contained
herein.
14. Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
15. Section Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any purpose.
16. Limitations on Liability. The parties hereto acknowledge and agree
that in no event shall any of the partners, officers, directors, shareholders,
members, affiliates, employees, agents or investment managers (collectively,
"Representatives") of any party hereto have any obligation or liability to the
other or any other person for any action taken or omitted by or on behalf of any
party hereto or in connection herewith (such obligation and liability begin the
sole responsibility of such party hereunder). The parties hereto further
acknowledge and agree that all obligations and liabilities of the parties to
this Agreement or in connection herewith are enforceable solely against such
party and its assets and not against the assets of any other party or any
Representatives of any party.
17. No Relationship. Nothing contained herein shall establish any
fiduciary, partnership, joint venture or similar relationship between the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LESLIE'S POOLMART, INC.
By:
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Name:
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Title:
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HOLDER:
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[print name]
By:
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Name:
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Title:
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Wire information for cash payment[s]:
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SCHEDULE 1
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Name of Holder:
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Print Name:
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Principal Amount of Old Notes being sold: $________
Principal Amount of Series A Notes: $________
DTC Participant(s) DTC Participant(s) Code(s) Principal Amount of
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Old Notes Held
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by Each DTC Participant
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ANNEX I
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Notice Address:
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Facsimile No.
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Telephone No.
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Attention:
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EXHIBIT A
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Registration Rights Agreement
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EXHIBIT B
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New Indenture
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