EXHIBIT 4.9
[Face of Note]
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CUSIP/CINS 0 40228 AJ 7
9% Senior Subordinated Notes due 2011
No. ___ $
ARGOSY GAMING COMPANY
promises to pay to _____________________________________________________________
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on September 1, 2011.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Dated: July 31, 2001
ARGOSY GAMING COMPANY
By:
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Name:
Title:
This is one of the Global Notes referred to
in the within-mentioned Indenture:
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
By:
-----------------------------------
Authorized Signatory
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EXHIBIT 4.9
[Back of Note]
9% Senior Subordinated Notes due 2011
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ARGOSY GAMING
COMPANY.](1)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Argosy Gaming Company, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 9%
per annum from July 31, 2001 until maturity. The Company will pay interest
semi-annually in arrears on March 1 and September 1 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; PROVIDED that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that
the first Interest Payment Date shall be March 1, 2002. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is equal to the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional or Special Interest, if any,
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the February 15 or August 15 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and PROVIDED that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
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(1) This legend should be included on the Global Notes and omitted from
Definitive Notes.
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EXHIBIT 4.9
3. PAYING AGENT AND REGISTRAR. Initially, Bank One Trust Company,
National Association, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as of
July 31, 2001 ("Indenture") between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the indenture shall govern and be
controlling. The Initial Notes are obligations of the Company limited to $200.0
million in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this paragraph 5, the
Company shall not have the option to redeem the Notes pursuant to this paragraph
5 prior to September 1, 2006. Thereafter, the Company shall have the option to
redeem the Notes, in whole or in part, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Additional or Special Interest thereon, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on
September 1 of the years indicated below:
YEAR PERCENTAGE
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2006............................................ 104.500%
2007............................................ 103.000%
2008............................................ 101.500%
2009 and thereafter............................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this paragraph
5, at any time prior to September 1, 2004, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of Notes with the
net proceeds of a Public Equity Offering at a redemption price equal to 109% of
the aggregate principal amount thereof plus accrued and unpaid Additional or
Special Interest thereon, if any; PROVIDED that at least 65% in aggregate
principal amount of the Notes originally issued remain outstanding immediately
after the occurrence of such redemption and that such redemption occurs within
60 days of the date of the closing of such Public Equity Offering.
(c) Any redemption pursuant to this paragraph 5 shall be made pursuant to
the provisions of Article 3 of the Indenture.
6. GAMING REDEMPTION
(a) Notwithstanding any other provision of this Indenture, if any Gaming
Authority: (i) requests or requires a holder or beneficial owner of Notes to
appear before, submit to the jurisdiction of or provide information to, such
Gaming Authority and such holder or beneficial owner either refuses to do so or
otherwise fails to comply with such request or requirement within a reasonable
period of time; or (ii) determines that any holder or beneficial owner of Notes
is not suitable or qualified with respect to beneficial ownership of the Notes,
then the Company may: (1) require that such holder or beneficial owner dispose
of its Notes within 30 days (or such earlier date as required by the Gaming
Authority) of (A) termination of the 30-day period described above for the
holder or beneficial owner to apply for a license, qualification or finding of
suitability or (B) the receipt of the notice from the Gaming Authority
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EXHIBIT 4.9
that the holder or beneficial owner will not be licensed, qualified or found
suitable; or (2) redeem the Notes of such holder or beneficial owner at a price
equal to the lesser of (A) the price at which such holder or beneficial owner
acquired such Notes or (B) the Fair Market Value of such Notes or, if the Notes
are listed on a national securities exchange, the last reported sale price on
the date the Company notifies such holder or beneficial owner of the redemption.
(b) Immediately upon a determination that a holder or beneficial owner
will not be licensed, qualified or found suitable, the holder or beneficial
owner will have no further rights (i) to exercise any right conferred by the
Notes, directly or indirectly, through any trustee, nominee or any other Person
or entity, or (ii) to receive any interest or other distribution or payment with
respect to the Notes or any remuneration in any form from the Company for
services rendered or otherwise, except the redemption price of the Notes. The
holder or beneficial owner applying for a licenses, qualification or finding of
suitability must pay all costs of the licensure or investigation for such
qualification or finding of suitability.
7. MANDATORY REDEMPTION.
Except as set forth in paragraph 8 below, the Company shall not be required
to make mandatory redemption payments with respect to the Notes.
8. OFFERS TO PURCHASE.
(a) CHANGE OF CONTROL. Within 30 days of the occurrence of a Change of
Control, the Company shall commence and consummate an Offer to Purchase for all
Notes then outstanding, at a purchase price equal to 101% of the principal
amount thereof, plus accrued interest to the Payment Date.
(b) ASSET SALE. The Company shall not, and shall not permit any Restricted
Subsidiary to, consummate any Asset Sale, unless (i) the consideration received
by the Company or such Restricted Subsidiary is at least equal to the fair
market value of the assets sold or disposed of and (ii) at least 75% of the
consideration received consists of cash or Temporary Cash Investments or the
assumption of Indebtedness of the Company or any Restricted Subsidiary (other
than Indebtedness to the Company or any Restricted Subsidiary), PROVIDED that
the Company or such Restricted Subsidiary is irrevocably and unconditionally
released from all liability under such Indebtedness.
Notwithstanding the immediately preceding paragraph, the Company and its
Restricted Subsidiaries will be permitted to consummate a Permitted Asset Swap
without complying with such paragraph if (i) immediately after giving effect to
such Permitted Asset Swap, the Company could Incur least $1.00 of additional
Indebtedness pursuant Section 4.07 of the Indenture and (ii) the Company or the
applicable Restricted Subsidiary, as the case may be, receives assets at the
time of such Permitted Asset Swap of a value at least equal to the fair market
value of the assets or other property sold or otherwise disposed of (as
evidenced by a resolution of the Company's Board of Directors set forth in an
Officers' Certificate delivered to the Trustee, or, in the event that the fair
market value of such Permitted Asset Swap exceeds $100.0 million, such fair
market value has been determined by a written opinion of an investment banking
firm of national standing or other recognized independent expert with experience
appraising the terms and conditions of the type of transaction contemplated
thereby).
Within twelve months after the receipt of any Net Cash Proceeds from one or
more Asset Sales occurring on or after the Closing Date, the Company shall or
shall cause the relevant Restricted Subsidiary to: (i)(A) apply an amount equal
to such Net Cash Proceeds to permanently repay Senior Indebtedness of the
Company or any Subsidiary Guarantor or Indebtedness of any other Restricted
Subsidiary, in each case owing to a Person other than the Company or any of its
Restricted Subsidiaries;
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EXHIBIT 4.9
or (B) invest an equal amount, or the amount not so applied pursuant to clause
(A) (or enter into a definitive agreement committing to so invest within 12
months after the date of such agreement), in property or assets (other than
current assets) of a nature or type or that are used in a business (or in a
company having property and assets of a nature or type, or engaged in a
business) similar or related to the nature or type of the property and assets
of, or the business of, the Company and its Restricted Subsidiaries existing on
the date of such investment and (ii) apply (no later than the end of the
12-month period referred to in clause (i)(B)) such excess Net Cash Proceeds (to
the extent not applied pursuant to clause (i)) as provided in the following
paragraph of this paragraph 8(b). The amount of such excess Net Cash Proceeds
required to be applied (or to be committed to be applied) during such 12-month
period as set forth in clause (i) of the preceding sentence and not applied as
so required by the end of such period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
paragraph 8(b) totals at least $10.0 million (or at least $25 million in the
event that at such time there is no Indebtedness of the Company or its
Restricted Subsidiaries outstanding that is PARI PASSU with or subordinated in
right of payment to the Notes with a comparable limitation of less than $25
million), the Company must commence, not later than the fifteenth Business Day
of such month, and consummate an Offer to Purchase from the Holders (and if
required by the terms of any Pari Passu Indebtedness, from the holders of such
Pari Passu Indebtedness) on a PRO RATA basis an aggregate principal amount of
Notes (and Pari Passu Indebtedness) equal to the Excess Proceeds on such date,
at a purchase price equal to 100% of the principal amount thereof, PLUS, in each
case, accrued interest and Additional or Special Interest, if any, to the
Payment Date. If the aggregate principal amount of Notes and any such Pari Passu
Indebtedness tendered by holders thereof exceeds the amount of Excess Proceeds,
the Notes and Pari Passu Indebtedness shall be purchased on a PRO RATA basis.
Upon the completion of any such Offers to Purchase, regardless of the amount of
Notes validly tendered, the amount of Excess Proceeds shall be reset to zero.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Subsidiary Guarantees or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes and Additional Notes, if any, voting as a single
class, and any existing default or compliance with any provision of the
Indenture, the Subsidiary Guarantees or the Notes may be waived with the consent
of the Holders of a majority in
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EXHIBIT 4.9
principal amount of the then outstanding Notes and Additional Notes, if any,
voting as a single class. Without the consent of any Holder of a Note, the
Indenture, the Subsidiary Guarantees or the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company's or Subsidiary Guarantor's obligations to Holders of
the Notes in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, to
provide for the Issuance of Additional Notes in accordance with the limitations
set forth in the Indenture, or to allow any Guarantor to execute a supplemental
indenture to the Indenture and/or a Subsidiary Guarantee with respect to the
Notes.
13. DEFAULTS AND REMEDIES. Each of the following constitutes an Event of
Default: (a) default in the payment of principal of or premium, if any, on any
Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise whether or not such payment is prohibited by Article 10
of the Indenture; (b) default in the payment of interest on any Note when the
same becomes due and payable, or Additional or Special Interest, if any, and
such default continues for a period of 30 days whether or not such payment is
prohibited by Article 10 of the Indenture; (c) failure by the Company or any of
its Subsidiaries to comply with any of the provisions of Sections 4.21 or 5.01
of the Indenture or the failure to make or consummate an Offer to Purchase in
accordance with the terms of Section 4.15 of the Indenture; (d) failure by the
Company or any of its Restricted Subsidiaries to observe or perform any covenant
or agreement in the Indenture or this Note (other than a default under clause
(a), (b), or (c) of this paragraph 14) for 30 days after notice to the Company
by the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes (including Additional Notes, if any) then outstanding voting as a
single class; (e) the occurrence with respect to any issue or issues of
Indebtedness of the Company or any Significant Subsidiary having an outstanding
principal amount of $20.0 million or more in the aggregate for all such issues
of all such Persons, whether such Indebtedness now exists or shall hereafter be
created, (i) an event of default that has caused the holder thereof to declare
such Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has not been
rescinded or annulled within 30 days of such acceleration and/or (ii) the
failure to make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made, waived or extended
within 30 days of such payment default; (f) any final judgment or order (not
covered by insurance) for the payment of money in excess of $20.0 million in the
aggregate for all such final judgments or orders against all such Persons
(treating any deductibles, self-insurance or retention as not so covered) shall
be rendered against the Company or any Significant Subsidiary and shall not be
paid or discharged, and there shall be any period of 60 consecutive days
following entry of the final judgment or order that causes the aggregate amount
for all such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $20.0 million during which a stay of
enforcement of such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; (g) a court having jurisdiction in the
premises enters a decree or order for (A) relief in respect of the Company or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (B)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 30 consecutive days;
(h) the Company or any Significant Subsidiary (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or
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EXHIBIT 4.9
substantially all of the property and assets of the Company or any Significant
Subsidiary or (C) effects any general assignment for the benefit of creditors;
(i) except as permitted by the Indenture, any Subsidiary Guarantee shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, shall deny or disaffirm its obligations under its
Subsidiary Guarantee; or (j) the revocation, termination, suspension or other
cessation of effectiveness for a period or more than 90 consecutive days of any
Gaming License that results in the cessation or suspension of gaming operations
at any Material Casino; PROVIDED that any voluntary relinquishment of or failure
to renew after revocation a Gaming License of a Material Casino if such
relinquishment or failure to renew is, in the reasonable, good faith judgment of
the Board of Directors of the Company, evidenced by a resolution of such Board,
both desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and not disadvantageous in any material respect
to the holders of the Notes shall not constitute an Event of Default. If an
Event of Default (other than an Event of Default specified in clause (g) or (h)
above that occurs with respect to the Company) occurs and is continuing under
the Indenture, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes, then outstanding, by written notice to the Company (and to
the Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and
accrued interest, if any, on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal of, premium, if any, and accrued
interest shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (e) above has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) above shall be remedied or cured by the
Company or the relevant Significant Subsidiary or waived by the holders of the
relevant Indebtedness within 60 days after the declaration of acceleration with
respect thereto. If an Event of Default specified in clause (g) or (h) above
occurs with respect to the Company, the principal of, premium, if any, and
accrued interest on the Notes then outstanding shall IPSO FACTO become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Holders of at least a majority in principal
amount of the outstanding Notes by written notice to the Company and to the
Trustee, may waive all past defaults and rescind and annul a declaration of
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal of, premium, if any, and accrued interest
on the Notes that have become due solely by such declaration of acceleration,
have been cured or waived and (ii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction. If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to collect
the payment of principal, premium, if any, and interest on the Notes or to
enforce the performance of any provision of this Note or the Indenture. The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
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EXHIBIT 4.9
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Argosy Gaming Company
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Attention: Director of Investor Relations
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