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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): APRIL 27, 1999
COMMISSION FILE NUMBER 0-12788
CASEY'S GENERAL STORES, INC.
(Exact name of registrant as specified in its charter)
IOWA 42-0935283
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE CONVENIENCE BLVD., ANKENY, IOWA
(Address of principal executive offices)
50021
(Zip Code)
(515) 965-6100
(Registrant's telephone number, including area code)
NONE
(Former name, former address
if changed since last report)
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Item 5. Other Events.
On April 27, 1999, Casey's General Stores, Inc. (the "Company") issued
$50,000,000 in aggregate principal amount of Senior Notes, Series A through
Series F (together, the "Senior Notes"), pursuant to the terms of a Note
Agreement dated as of April 15, 1999 (the "Note Agreement") by and among the
Company and Principal Life Insurance Company, Principal Life Insurance Company,
on behalf of one or more separate accounts, Commercial Union Life Insurance
Company of America, AmerUs Life Insurance Company, American Investors Life
Insurance Company, TMG Life Insurance Company, Modern Woodmen of America and
Ameritus Life Insurance Corp. (together, the "Purchasers"). The Company will
apply the proceeds from the sale of the Senior Notes to fund the payment and
retirement of certain outstanding Company indebtedness and general working
capital purposes.
The 6.18% Series A Senior Notes, issued in the aggregate principal
amount of $5,000,000, bear interest at the rate of 6.18% per annum prior to
maturity, payable semi-annually on the twenty-third day of April and October of
each year, commencing October 23, 1999, and at maturity, and bear interest on
overdue principal, premium, if any, and (to the extent legally enforceable) on
any overdue installment of interest at the rate of 8.18% per annum. The 6.18%
Series A Senior Notes mature on April 23, 2004.
The 6.23% Series B Senior Notes, issued in the aggregate principal
amount of $5,000,000, bear interest at the rate of 6.23% per annum prior to
maturity, payable semi-annually on the twenty-third day of April and October of
each year, commencing October 23, 1999, and at maturity, and bear interest on
overdue principal, premium, if any, and (to the extent legally enforceable) on
any overdue installment of interest at the rate of 8.23% per annum. The 6.23%
Series B Senior Notes mature on April 23, 2005.
The 6.50% Series C Senior Notes, issued in the aggregate principal
amount of $20,000,000, bear interest at the rate of 6.50% per annum prior to
maturity, payable semi-annually on the twenty-third day of April and October of
each year, commencing October 23, 1999, and at maturity, and bear interest on
overdue principal, premium, if any, and (to the extent legally enforceable) on
any overdue installment of interest at the rate of 8.50% per annum. The 6.50%
Series C Senior Notes mature on April 23, 2009.
In addition to the payment of all outstanding principal of the Senior
Notes at maturity, and regardless of the amount of Senior Notes which may be
outstanding from time to time, the Company shall prepay and there shall become
due and payable on the twenty-third day of April in each year, prepayment of the
principal amount of the 6.50%
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Series C Senior Notes in the amount of $4,000,000, or such lesser amount as
would constitute payment in full on the 6.50% Series C Senior Notes, commencing
April 23, 2005 and ending April 23, 2008, inclusive, with the remaining
principal payable at maturity on April 23, 2009 (the "6.50% Series C Required
Prepayments"). Each such 6.50% Series C Required Prepayment shall be at a price
of 100% of the principal amount prepaid, together with interest accrued thereon
to the date of prepayment.
The 6.84% Series D Senior Notes, issued in the aggregate principal
amount of $7,000,000, bear interest at the rate of 6.84% per annum prior to
maturity, payable semi-annually on the twenty-third day of April and October of
each year, commencing October 23, 1999, and at maturity, and bear interest on
overdue principal, premium, if any, and (to the extent legally enforceable) on
any overdue installment of interest at the rate of 8.84% per annum. The 6.84%
Series D Senior Notes mature on April 23, 2014.
In addition to the payment of all outstanding principal of the Senior
Notes at maturity, and regardless of the amount of Senior Notes which may be
outstanding from time to time, the Company shall prepay and there shall become
due and payable on the twenty-third day of April in each year, prepayment of the
principal amount of the 6.84% Series D Senior Notes in the amount of $1,000,000,
or such lesser amount as would constitute payment in full on the 6.84% Series D
Senior Notes, commencing April 23, 2008 and ending April 23, 2013, inclusive,
with the remaining principal payable at maturity on April 23, 2014 (the "6.84%
Series D Required Prepayments"). Each such 6.84% Series D Required Prepayment
shall be at a price of 100% of the principal amount prepaid, together with
interest accrued thereon to the date of prepayment.
The 7.08% Series E Senior Notes, issued in the aggregate principal
amount of $8,000,000, bear interest at the rate of 7.08% per annum prior to
maturity, payable semi-annually on the twenty-third day of April and October of
each year, commencing October 23, 1999, and at maturity, and bear interest on
overdue principal, premium, if any, and (to the extent legally enforceable) on
any overdue installment of interest at the rate of 9.08% per annum. The 7.08%
Series E Senior Notes mature on April 23, 2014.
The 7.23% Series F Senior Notes, issued in the aggregate principal
amount of $5,000,000, bear interest at the rate of 7.23% per annum prior to
maturity, payable semi-annually on the twenty-third day of April and October of
each year, commencing October 23, 1999, and at maturity, and bear interest on
overdue principal, premium, if any, and (to the extent legally enforceable) on
any overdue installment of interest at the rate of 9.23% per annum. The 7.23%
Series F Senior Notes mature on April 23, 2019.
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Upon notice as provided in the Note Agreement, the Company may at any
time prepay the Senior Notes, in whole or in part, at any time, in an amount of
not less than $1,000,000 or in integral multiples of $100,000 in excess thereof
(the "Optional Prepayments"). Each Optional Prepayment shall be at a price of
(i) 100% of the principal amount to be prepaid, plus interest accrued thereon to
the date of prepayment, if the Reinvestment Yield (as defined in the Note
Agreement) on the applicable Determination Date (as defined in the Note
Agreement), equals or exceeds the interest rate payable on or in respect of the
applicable Senior Notes, or (ii) 100% of the principal amount to be prepaid,
plus interest accrued thereon to the date of prepayment, plus a premium, if the
Reinvestment Yield on such Determination Date is less than the interest rate
payable on or in respect of the applicable Senior Notes. The premium shall equal
(X) the aggregate present value of the amount of principal being prepaid and the
present value of the amount of interest (exclusive of interest accrued to the
date of prepayment) which would have been payable in respect of such principal
absent such prepayment, determined by discounting each such amount utilizing an
interest factor equal to the Reinvestment Yield, less (Y) the principal amount
to be prepaid. Any Optional Prepayment of less than all of the Senior Notes
outstanding shall be applied to reduce, pro rata, each of the Required
Prepayments and the final payment at maturity.
In the Note Agreement, the Company makes certain representations and
warranties to the Purchasers and, while any of the Senior Notes are outstanding,
agrees to comply with certain affirmative covenants addressing, among other
matters, the maintenance of corporate existence, insurance, properties and
records and the provision of certain financial information and reports to the
Purchasers. The Company also agrees to be bound by certain negative covenants
while the Senior Notes are outstanding addressing, among other matters, the net
worth, indebtedness and fixed charge ratio to be maintained while the Senior
Notes are outstanding, additional Liens (as defined in the Note Agreement),
mergers or consolidations, sale of assets and restricted investments. Upon the
occurrence of an Event of Default (which, as more fully defined in the Note
Agreement, would include, among other matters, nonpayment of the principal of or
interest on the Senior Notes or a breach of any of the foregoing covenants), the
Purchasers may declare the entire principal amount of the Senior Notes, together
with the premium described in the Note Agreement and all accrued interest, to be
immediately due and payable.
Attached hereto as Exhibit 4.6 and incorporated herein by reference is
a copy of the Note Agreement between the Company and the Purchasers, and the
Annexes and Exhibits thereto, as follows: Annex I - Subsidiaries; Annex II -
Existing Indebtedness of the Company; Annex III - Description of Liens; Annex IV
- - Schedule of Insurance;
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Annex V - Iowa Franchise Law Disclosure; Exhibit A - Form of Senior Note; and
Exhibit B - Statement Regarding Legal Opinions. The foregoing description of the
Senior Notes is qualified in its entirety by reference to the Note Agreement and
the form of Senior Note described therein.
Separately, acting at a special meeting on May 5, 1999, the Board of
Directors of the Company approved a Third Amendment to Rights Agreement (the
"Third Amendment") between the Company and UMB Bank, n.a., as Rights Agent, for
the purpose of extending the Company's existing Shareholder Rights Plan and
amending the same in several respects. The Third Amendment (which amends the
Rights Agreement dated as of June 14, 1989 between the Company and the Rights
Agent) (i) amends the definition of an "Acquiring Person" to lower the threshold
for triggering the issuance of Right Certificates from an acquisition of 20% of
the outstanding shares to a 15% level, and to specify that certain persons who
acquire shares inadvertently and with a good faith belief that no distribution
of the Rights would occur may be excluded from the definition if they promptly
divest themselves of those shares in excess of the 15% threshold, (ii) makes a
conforming change to Section 3(a) of the Rights Agreement with respect to the
15% threshold for issuance of Right Certificates, (iii) extends the term of the
Rights Agreement until June 14, 2009 and (iv) adjusts the Purchase Price of the
Rights from its current level of $27.50 to $60.
Attached hereto as Exhibit 4.2 and incorporated herein by reference is
a copy of the Third Amendment between the Company and the Rights Agent. The
foregoing description of the Third Amendment and the Rights is qualified in its
entirety by reference to the Rights Agreement, the amendments thereto (including
the Third Amendment) and the form of Right Certificate described therein.
Item 7. Exhibits.
4.2 Third Amendment to Rights Agreement, dated as of May 5, 1999,
between Casey's General Stores, Inc. and UMB Bank, n.a., as
Rights Agent.
4.6 Note Agreement, dated as of April 15, 1999, among Casey's
General Stores, Inc. and Principal Life Insurance Company,
Principal Life Insurance Company, on behalf of one or more
separate accounts, Commercial Union Life Insurance Company of
America, AmerUs Life Insurance Company, American Investors
Life Insurance Company, TMG Life Insurance Company, Modern
Woodmen of America and Ameritus Life Insurance Corp.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
CASEY'S GENERAL STORES, INC.
Date: May 6, 1999 By: /S/ John G. Harmon
------------------------
John G. Harmon
Secretary/Treasurer
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EXHIBITS
Exhibit Description Page
- ------- ----------- ----
4.2 Third Amendment to Rights Agreement dated
as of May 5, 1999 between Casey's General
Stores, Inc. and UMB Bank, n.a., as Rights Agent
4.6 Note Agreement dated as of April 15, 1999
between Casey's General Stores, Inc. and
Principal Life Insurance Company, Principal
Life Insurance Company, on behalf of
one or more separate accounts, Commercial
Union Life Insurance Company of America,
AmerUs Life Insurance Company, American
Investors Life Insurance Company, TMG Life
Insurance Company, Modern Woodmen of
American and Ameritus Life Insurance Corp.
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EXHIBIT 4.2
- --------------------------------------------------------------------------------
CASEY'S GENERAL STORES, INC.
AND
UMB BANK, N.A.
as Rights Agent
THIRD AMENDMENT
TO
RIGHTS AGREEMENT
Dated as of May 5, 1999
- --------------------------------------------------------------------------------
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THIRD AMENDMENT
TO
RIGHTS AGREEMENT
This Third Amendment to Rights Agreement dated as of May 5, 1999 (the
"Third Amendment") between Casey's General Stores, Inc., an Iowa corporation
(the "Company") and UMB Bank, n.a. (formally known as United Missouri Bank of
Kansas City, n.a., and United Missouri Bank, n.a.), a national bank organized
under the laws of the United States (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of June 14, 1989, as amended by a First Amendment to Rights
Agreement dated as of September 4, 1990 and a Second Amendment to Rights
Agreement dated as of March 29, 1994 (together, the "Rights Agreement"), and in
accordance therewith, the Board of Directors of the Company has authorized and
declared a dividend of one common share purchase right (a "Right") for each
Common Share (as defined therein) of the Company outstanding as of the close of
business on June 14, 1989 (the "Record Date"), each Right representing the right
to purchase one Common Share, upon the terms and subject to the conditions set
forth therein, and has further authorized and directed the issuance of one Right
with respect to each Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption Date and
the Final Expiration Date (as such terms are defined in the Rights Agreement);
and
WHEREAS, the Company has determined to amend the Rights Agreement in
several respects as contained in this Third Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth, the parties hereby agree as follows:
Section 1. Definition of "Acquiring Person." The provisions of Section
1(a) of the Rights Agreement, whereby there is established a definition for an
"Acquiring Person" within the meaning of the Rights Agreement, and all
references to an Acquiring Person otherwise contained in the Rights Agreement,
are hereby amended to provide that an Acquiring Person shall be defined as
follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as
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such terms are hereinafter defined) of such Person, shall be the
Beneficial Owner (as such term is hereinafter defined) of 15% or more
of the Common Shares of the Company then outstanding, but shall not
include (i) the Company, any Subsidiary (as such term is hereinafter
defined) of the Company, any employee benefit plan of the Company or of
any Subsidiary of the Company or any entity holding Common Shares for
or pursuant to the terms of any such plan or (ii) any Person who or
which, together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding in the good faith belief that such acquisition
would not (x) cause such Person and its Affiliates and Associates to
become the Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding and such Person relied in good faith in
computing the percentage of its voting power on publicly filed reports
or documents of the Company which are inaccurate or out-of-date or (y)
otherwise cause a Distribution Date or the adjustment provided for in
Section 11(a) to occur. Notwithstanding clause (ii) of the prior
sentence, if any Person that is not an Acquiring Person due to such
clause (ii) does not cease to be the Beneficial Owner of 15% or more of
the Common Shares of the Company then outstanding by the close of
business on the fifth Business Day after notice from the Company (the
date of notice being the first day) that such Person is the Beneficial
Owner of 15% or more of the Common Shares of the Company then
outstanding, then such Person shall, at the end of such five Business
Day period, become an Acquiring Person (and such clause (ii) shall no
longer apply to such Person). For purposes of this definition, the
determination whether any Person acted in "good faith" shall be
conclusively determined by the Board of Directors of the Company.
Notwithstanding the foregoing, no Person shall become an Acquiring
Person as a result of an acquisition of Common Shares by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15%
or more of the Common Shares of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 15% or
more of the Common Shares of the Company then outstanding by reason of
share purchases by the Company and shall, after such share purchases by
the Company, become the Beneficial Owner of any additional Common
Shares of the Company (other than pursuant to a stock split, stock
dividend or similar transaction), then such Person shall be deemed to
be an Acquiring Person.
Section 2. Issuance of Rights Certificates. The provisions of Section
3(a) of the Rights Agreement, whereby there is established a 20% threshold for
the acquisition of
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Common Shares by any Person as triggering the issuance of Right Certificates in
accordance with the Rights Agreement, are hereby amended to provide that the
foregoing threshold would be reached, and Right Certificates issued in
accordance with the Rights Agreement, in the event any Person becomes the
Beneficial Owner of Common Shares aggregating 15% or more of the then
outstanding Common Shares, and for all purposes of the Rights Agreement the
threshold set forth in said Section 3(a) is hereby amended to provide that the
said threshold shall be 15%.
Section 3. Extension of Final Expiration Date. The provisions of
Section 7(a) of the Rights Agreement establishing the Final Expiration Date, and
all references to the Final Expiration Date otherwise contained in the Rights
Agreement, are hereby amended to provide that the Final Expiration Date shall be
June 14, 2009.
Section 4. Adjustment of Purchase Price. The provisions of Section 7(b)
of the Rights Agreement establishing the Purchase Price, and all references to
the Purchase Price otherwise contained in the Rights Agreement, are hereby
amended to provide that the Purchase Price shall be $60.00.
Section 5. Effective Date of Third Amendment. The amendments provided
for herein shall be deemed effective as of May 5, 1999.
Section 6. Miscellaneous.
(a) Except as otherwise expressly provided herein, or unless
the context otherwise requires, all terms used herein have the meanings
assigned to them in the Rights Agreement.
(b) Each party hereto waives any requirement under the Rights
Agreement that any additional notice be provided to it pertaining to
the matters covered by this Third Amendment.
(c) This Third Amendment may be executed in any number of
counterparts each of which shall be deemed an original, and all such
counterparts shall together constitute but one and the same document.
(d) Except as amended herein, all other terms and conditions
of the Rights Agreement are in all respects ratified, confirmed and
approved.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to Rights Agreement to be duly executed and attested, all as of the day and year
first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
----------------------------
Ronald M. Lamb, Chief
Executive Officer
ATTEST:
By: /s/ John G. Harmon
------------------------------------
John G. Harmon, Secretary/Treasurer
(SEAL)
UMB BANK, n.a., as Rights
Agent
By: /s/ Frank C. Bramwell
---------------------------------
Name: Frank C. Bramwell
Title: Senior Vice President
ATTEST:
By: /s/ Kimberly Green
-------------------------
Name: Kimberly Green
Title: Assistant Vice President and
Assistant Secretary
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EXHIBIT 4.6
================================================================================
CASEY'S GENERAL STORES, INC.
NOTE AGREEMENT
DATED AS OF APRIL 15, 1999
$5,000,000 PRINCIPAL AMOUNT
6.18% SERIES A, SENIOR NOTES DUE 2004
$5,000,000 PRINCIPAL AMOUNT
6.23% SERIES B, SENIOR NOTES DUE 2005
$20,000,000 PRINCIPAL AMOUNT
6.50% SERIES C, SENIOR NOTES DUE 2009
$7,000,000 PRINCIPAL AMOUNT
6.84% SERIES D, SENIOR NOTES DUE 2014
$8,000,000 PRINCIPAL AMOUNT
7.08% SERIES E, SENIOR NOTES DUE 2014
$5,000,000 PRINCIPAL AMOUNT
7.23% SERIES F, SENIOR NOTES DUE 2019
PPN: SERIES A 147528 B@1
SERIES B 147528 B#9
SERIES C 147528 C*2
SERIES D 147528 C@0
SERIES E 147528 C#8
SERIES F 147528 D*1
================================================================================
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TABLE OF CONTENTS
<TABLE>
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Page
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Section 1. DESCRIPTION OF NOTES AND COMMITMENT........................................1
1.1 Description of Notes.......................................................1
1.2 Commitment; Closing Date...................................................2
Section 2. PREPAYMENT OF NOTES........................................................2
2.1 Required Prepayments.......................................................2
2.2 Optional Prepayments.......................................................2
2.3 Notice of Optional Prepayments.............................................3
2.4 Surrender of Notes on Prepayment or Exchange...............................3
2.5 Direct Payment.............................................................4
2.6 Allocation of Payments.....................................................4
2.7 Payments Due on Saturdays, Sundays and Holidays............................4
Section 3. REPRESENTATIONS............................................................4
3.1 Representations of the Company.............................................4
3.2 Representations of the Purchasers.........................................11
Section 4. CLOSING CONDITIONS........................................................12
4.1 Representations and Warranties............................................13
4.2 Legal Opinions............................................................13
4.3 Events of Default.........................................................13
4.4 Payment of Fees and Expenses..............................................13
4.5 Accountants' Letter.......................................................13
4.6 Legality of Investment....................................................13
4.7 Private Placement Number..................................................13
4.8 Proceedings and Documents.................................................13
Section 5. INTERPRETATION OF AGREEMENT...............................................14
5.1 Certain Terms Defined.....................................................14
5.2 Accounting Principles.....................................................20
5.3 Valuation Principles......................................................20
5.4 Direct or Indirect Actions................................................21
Section 6. AFFIRMATIVE COVENANTS.....................................................21
6.1 Corporate Existence.......................................................21
6.2 Insurance.................................................................21
6.3 Taxes, Claims for Labor and Materials.....................................21
6.4 Maintenance of Properties.................................................22
6.5 Maintenance of Records....................................................22
6.6 Financial Information and Reports.........................................22
</TABLE>
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<TABLE>
<S> <C>
6.7 Inspection of Properties and Records......................................24
6.8 ERISA.....................................................................25
6.9 Compliance with Laws......................................................25
6.10 Acquisition and Cancellation of Notes.....................................25
6.11 Private Placement Number..................................................26
Section 7 NEGATIVE COVENANTS........................................................26
7.1 Net Worth.................................................................26
7.2 Indebtedness..............................................................26
7.3 Fixed Charge Ratio........................................................26
7.4 Liens.....................................................................26
7.5 Merger or Consolidation...................................................27
7.6 Sale of Assets............................................................27
7.7 Restricted Investments....................................................28
7.8 Change in Business........................................................28
7.9 Transactions with Affiliates..............................................28
7.10 Consolidated Tax Returns..................................................28
Section 8 EVENTS OF DEFAULT AND REMEDIES THEREFOR...................................29
8.1 Nature of Events..........................................................29
8.2 Remedies on Default.......................................................31
8.3 Annulment of Acceleration of Notes .......................................31
8.4 Other Remedies............................................................32
8.5 Conduct No Waiver; Collection Expenses ...................................32
8.6 Remedies Cumulative.......................................................32
8.7 Notice of Default.........................................................32
Section 9 AMENDMENTS, WAIVERS AND CONSENTS..........................................32
9.1 Matters Subject to Modification...........................................32
9.2 Solicitation of Holders of Notes..........................................33
9.3 Binding Effect............................................................33
Section 10 FORM OF NOTES, REGISTRATION, TRANSFER,
EXCHANGE AND REPLACEMENT..................................................33
10.1 Form of Notes.............................................................33
10.2 Note Register.............................................................34
10.3 Issuance of New Notes upon Exchange or Transfer...........................34
10.4 Replacement of Notes .....................................................34
Section 11 MISCELLANEOUS.............................................................34
11.1 Expenses .................................................................34
11.2 Notices...................................................................35
11.3 Reproduction of Documents.................................................35
11.4 Successors and Assigns....................................................35
11.5 Law Governing.............................................................35
</TABLE>
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<TABLE>
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11.6 Headings..................................................................36
11.7 Counterparts..............................................................36
11.8 Reliance on and Survival of Provisions....................................36
11.9 Confidential Information..................................................36
11.10 Integration and Severability..............................................37
</TABLE>
Annex I: Subsidiaries
Annex II: Existing Indebtedness
Annex III: Description of Liens
Annex IV: Schedule of Insurance
Annex V: Iowa Franchise Law Disclosure
Exhibit A: Form of Notes
Exhibit B: Legal Opinions
(iii)
<PAGE> 5
CASEY'S GENERAL STORES, INC.
NOTE AGREEMENT
Dated as of April 15, 1999
To the Purchasers Named
in Schedule I Hereto
Ladies and Gentlemen:
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "COMPANY"),
agrees with you as follows:
Section 1. DESCRIPTION OF NOTES AND COMMITMENT
1.1 Description of Notes. The Company has authorized the issuance and
sale of $50,000,000 aggregate principal amount of its Notes, as follows: (i)
$5,000,000 principal amount, to be dated the date of issuance, to bear interest
from such date at the rate of 6.18% per annum until maturity five years after
the date of issuance (the "SERIES A NOTES"); (ii) $5,000,000 principal amount,
to be dated the date of issuance, to bear interest from such date at the rate of
6.23% per annum until maturity six years after the date of issuance (the "SERIES
B NOTES"); (iii) $20,000,000 principal amount, to be dated the date of issuance,
to bear interest from such date at the rate of 6.50% per annum until maturity
ten years after the date of issuance (the "SERIES C NOTES"); (iv) $7,000,000
principal amount, to be dated the date of issuance, to bear interest from such
date at the rate of 6.84% per annum until maturity fifteen years after the date
of issuance (the "SERIES D NOTES"); (v) $8,000,000 principal amount, to be dated
the date of issuance, to bear interest from such date at the rate of 7.08% per
annum until maturity fifteen years after the date of issuance (the "SERIES E
NOTES"); and (vi) $5,000,000 principal amount, to be dated the date of issuance,
to bear interest from such date at the rate of 7.23% per annum until maturity
twenty years after the date of issuance (the "SERIES F NOTES") (collectively,
the "NOTES"). Interest on the Notes shall be payable semi-annually on the
twenty-third day of April and October of each year, commencing October 23, 1999
and at maturity. Interest on overdue principal (including any overdue required
prepayment), premium, if any, and (to the extent legally enforceable) on any
overdue installment of interest shall be at a rate of two percent (2%) per annum
over the stated rate of the applicable Notes. The Notes shall be substantially
in the form of EXHIBIT A hereto. The Series A Notes shall be expressed to mature
on April 23, 2004. The Series B Notes shall be expressed to mature on April 23,
2005. The Series C Notes shall be expressed to mature on April 23, 2009. The
Series D Notes shall be expressed to mature on April 23, 2014. The Series E
Notes shall be expressed to mature on April 23, 2014. The Series F Notes shall
be expressed to mature on April 23, 2019. The term "NOTES" as used herein shall
include each Note delivered pursuant to this Note Agreement (the "AGREEMENT")
and each Note delivered in substitution or exchange therefor and, where
applicable, shall include the
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singular number as well as the plural. Any reference to you in this Agreement
shall in all instances be deemed to include any nominee of yours or any separate
account or other person on whose behalf you are purchasing Notes.
1.2 Commitment; Closing Date. Subject to the terms and conditions
hereof and on the basis of the representations and warranties hereinafter set
forth, the Company agrees to issue and sell to you, as the purchasers named in
Schedule I (the "PURCHASERS"), and you agree to purchase from the Company, Notes
in the aggregate principal amount set forth opposite your names in the attached
Schedule I at a price of 100% of the principal amount thereof. Your obligations
hereunder are several and not joint obligations and each of you shall have no
liability to any Person for the performance or nonperformance by any other
Purchaser hereunder.
Delivery of and payment for the Notes shall be made at the offices of
Gardner, Carton & Douglas, 321 North Clark Street, Quaker Tower, Chicago,
Illinois 60610, at 9:00 a.m., Chicago Time, on April 23, 1999, or at such later
time or on such later date, not later than 5:00 p.m. Chicago Time, on April 30,
1999, as may be mutually agreed upon by the Company and each of the Purchasers
(the "CLOSING DATE"). The Notes will be delivered to you in fully registered
form, issued in your name or in the name of your nominee. Delivery of the Notes
to you on the Closing Date shall be against payment of the purchase price
thereof in Federal Funds or other funds in U.S. dollars immediately available at
the principal office of UMB Bank, n.a., A.B.A. No. 101000695, for deposit in the
Company's Account No. 9870527502. If on the Closing Date the Company shall fail
to tender the Notes to you, you shall be relieved of all remaining obligations
under this Agreement. Nothing in the preceding sentence shall relieve the
Company of any liability occasioned by such failure to deliver the Notes.
Section 2. PREPAYMENT OF NOTES
2.1 Required Prepayments. In addition to payment of all outstanding
principal of the Notes at maturity and regardless of the amount of Notes which
may be outstanding from time to time, the Company shall prepay and there shall
become due and payable on the twenty-third day of April in each year prepayment
of the principal amount of the Series C Notes in the amount of $4,000,000 or
such lesser amount as would constitute payment in full on the Series C Notes,
commencing April 23, 2005 and ending April 23, 2008 inclusive, with the
remaining principal payable at maturity on April 23, 2009. The Company shall
prepay and there shall become due and payable on the twenty-third day of April
in each year prepayment of the principal amount of the Series D Notes in the
amount of $1,000,000 or such lesser amount as would constitute payment in full
on the Series D Notes commencing April 23, 2008 and ending April 23, 2013
inclusive, with the remaining principal payable at maturity on April 23, 2014.
Each such prepayment shall be at a price of 100% of the principal amount
prepaid, together with interest accrued thereon to the date of prepayment.
2.2 Optional Prepayments. (a) Upon notice as provided in Section 2.3,
the Company may, at any time, prepay the Notes, in whole or in part, at any
time, in an amount of not less than
(2)
<PAGE> 7
$1,000,000 or in integral multiples of $100,000 in excess thereof at the price
set forth in Section 2.2(b).
(b) Each prepayment made pursuant to paragraph (a) of this Section
2.2 shall be at a price of (i) 100% of the principal amount to be prepaid, plus
interest accrued thereon to the date of prepayment, if the Reinvestment Yield,
on the applicable Determination Date, equals or exceeds the interest rate
payable on or in respect of the applicable Notes, or (ii) 100% of the principal
amount to be prepaid, plus interest accrued thereon to the date of prepayment,
plus a premium, if the Reinvestment Yield, on such Determination Date, is less
than the interest rate payable on or in respect of the applicable Notes. The
premium shall equal (x) the aggregate present value of the amount of principal
being prepaid (taking into account the manner of application of such prepayment
required by Section 2.2(c)) and the present value of the amount of interest
(exclusive of interest accrued to the date of prepayment) which would have been
payable in respect of such principal absent such prepayment, determined by
discounting (quarterly on the basis of a 360-day year composed of twelve 30-day
months) each such amount utilizing an interest factor equal to the Reinvestment
Yield, less (y) the principal amount to be prepaid.
(c) Any prepayment pursuant to Section 2.2(a) of less than all of the
Notes outstanding shall be applied, to reduce, pro rata, each of the prepayments
and the final payment at maturity required by Section 2.1.
(d) Except as provided in Section 2.1 and this Section 2.2, the Notes
shall not be prepayable in whole or in part.
2.3 Notice of Optional Prepayments. The Company shall give notice of
any optional prepayment of the Notes to each holder of the Notes not less than
30 days nor more than 60 days before the date fixed for prepayment, specifying
(i) such date, (ii) the principal amount of the holder's Notes to be prepaid on
such date, (iii) the date as of which the premium, if any, will be calculated
and (iv) the accrued interest applicable to the prepayment. Notice of optional
prepayment having been so given, the aggregate principal amount of the Notes
specified in such notice, together with the premium, if any, and accrued
interest thereon shall become due and payable on the prepayment date specified
in such notice.
The Company also shall give notice to each holder of the Notes by
telecopy, telegram, telex or other same-day written communication, as soon as
practicable but in any event not later than two business days prior to the
optional prepayment date, of the premium, if any, applicable to such prepayment
and the details of the calculations used to determine the amount of such
premium.
2.4 Surrender of Notes on Prepayment or Exchange. Subject to Section
2.5, upon any partial optional prepayment of a Note pursuant to this Section 2
or partial exchange of a Note pursuant to Section 10.3, such Note may, at the
option of the holder thereof, (i) be surrendered to the Company pursuant to
Section 10.3 in exchange for a new Note equal to the principal amount remaining
unpaid on the surrendered Note, or (ii) be made available to the Company for
notation
(3)
<PAGE> 8
thereon of the portion of the principal so prepaid or exchanged. In
case the entire principal amount of any Note is prepaid or exchanged, such Note
shall, at the written request of the Company, be surrendered to the Company for
cancellation and shall not be reissued, and no Note shall be issued in lieu of
such Note.
2.5 Direct Payment. Notwithstanding any other provision contained in
the Notes or this Agreement, the Company will pay all sums becoming due on each
Note held by you or any subsequent Institutional Holder by wire transfer of
immediately available federal funds to such account as you or such subsequent
Institutional Holder has designated in Schedule I, or as you or such subsequent
Institutional Holder may otherwise designate by written notice to the Company,
in each case without presentment and without notations being made thereon,
except that any such Note so paid or prepaid in full shall, at the written
request of the Company, be surrendered to the Company for cancellation. Any wire
transfer shall identify such payment in the manner set forth in Schedule I and
shall identify the payment as principal, premium, if any, and/or interest. You
and any subsequent Institutional Holder of a Note to which this Section 2.5
applies agree that, before selling or otherwise transferring any such Note, you
or it will make a notation thereon of the aggregate amount of all payments of
principal theretofore made and of the date to which interest has been paid.
2.6 Allocation of Payments. If less than the entire principal amount
of all the Notes outstanding is to be paid, the Company will prorate the
aggregate principal amount to be paid among the outstanding Notes in proportion
to the unpaid principal.
2.7 Payments Due on Saturdays, Sundays and Holidays. In any case
where the date of any required prepayment of the Notes or any interest payment
date on the Notes or the date fixed for any other payment of any Note or
exchange of any Note is a Saturday, Sunday or a legal holiday or a day on which
banking institutions in Des Moines, Iowa are authorized by law to close, then
such payment, prepayment or exchange need not be made on such date but may be
made on the next preceding business day which is not a Saturday, Sunday or a
legal holiday or a day on which banking institutions in Des Moines, Iowa are
authorized by law to close, with the same force and effect as if made on the due
date.
Section 3. REPRESENTATIONS
3.1 Representations of the Company. As an inducement to, and as part
of the consideration for, your purchase of the Notes pursuant to this Agreement,
the Company represents and warrants to you as follows:
(a) Corporate Organization and Authority. The Company is a
corporation duly organized and validly existing under the laws of the State of
Iowa, has all requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, to enter into and perform the Agreement and to issue and sell
the Notes as contemplated in the Agreement.
(4)
<PAGE> 9
(b) Qualification to Do Business. The Company is duly licensed or
qualified and in good standing or existing as a foreign corporation authorized
to do business in each jurisdiction where the nature of the business transacted
by it or the character of its properties owned or leased makes such
qualification or licensing necessary.
(c) Subsidiaries. The Company has no Subsidiaries, as defined in
Section 5.1, except those listed in ANNEX I, which correctly sets forth the
jurisdiction of incorporation and the percentage of the outstanding Voting Stock
of each Subsidiary which is owned, of record or beneficially, by the Company
and/or one or more Subsidiaries. Each Subsidiary has been duly organized and is
validly existing under the laws of its jurisdiction of incorporation and is duly
licensed or qualified and in good standing or existence as a foreign corporation
in each other jurisdiction where the nature of the business transacted by it or
the character of its properties owned or leased makes such qualification or
licensing necessary, except where the failure to be so licensed or qualified or
in good standing or existence would not, individually or in the aggregate,
materially and adversely affect the condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole. A list of those jurisdictions
wherein each Subsidiary is qualified to do business is set forth in ANNEX I.
Each Subsidiary has full corporate power and authority to own and operate its
properties and to carry on its business as now conducted and as presently
proposed to be conducted. The Company and each Subsidiary have good and
marketable title to all of the shares they purport to own of the capital stock
of each Subsidiary, free and clear in each case of any lien or encumbrance, and
all such shares have been duly issued and are fully paid and nonassessable.
(d) Financial Statements. The consolidated balance sheet of the
Company and its Subsidiaries as of April 30, 1998 and the related consolidated
statements of income, shareholders' equity and cash flows for the year ended
April 30, 1998, accompanied by the report and unqualified opinion of KPMG Peat
Marwick LLP, independent certified public accountants, copies of which have
heretofore been delivered to you, were prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein) and present fairly the financial
condition and results of operations and cash flows of the Company and its
Subsidiaries for and as of the end of such year. The unaudited consolidated
balance sheets of the Company and its Subsidiaries as of January 31, 1999 and
the related unaudited consolidated condensed statements of income and cash flows
for the nine months ended January 31, 1998 and January 31, 1999, copies of which
have heretofore been delivered to you, were prepared in accordance with
generally accepted accounting principles and present fairly the financial
condition of the Company and its Subsidiaries as of such dates and the results
of their operations and cash flows for the periods then ended, subject to
customary year-end adjustments.
(e) No Contingent Liabilities or Adverse Changes. Except as disclosed
in the Company's Annual Report on Form 10-K for the year ended April 30, 1998
and in the Company's Quarterly Reports for the quarters ended July 31, 1998,
October 31, 1998 and January 31, 1999, the Company and its Subsidiaries have no
contingent liabilities which are material to the Company and its Subsidiaries
taken as a whole other than as indicated on the financial statements described
in the foregoing paragraph (d) of this Section 3.1, and since
(5)
<PAGE> 10
April 30, 1998 there have been no material adverse changes in the condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole.
(f) No Pending Litigation or Proceedings. Except as disclosed in the
Company's Annual Report on Form 10-K for the year ended April 30, 1998 and in
the Company's Quarterly Reports for the quarters ended July 31, 1998, October
31, 1998 and January 31, 1999, there are no actions, suits or proceedings
pending or threatened against or affecting the Company and its Subsidiaries, at
law or in equity or before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which might result, either individually or in the
aggregate, in any material adverse change in the business, properties,
operations or condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole or on the Company's ability to perform its
obligations under this Agreement or the Notes.
(g) Compliance with Law. (i) Neither the Company nor any of its
Subsidiaries is: (x) in default with respect to any order, writ, injunction or
decree of any court to which it is a named party; or (y) except as disclosed in
the Company's Annual Report on Form 10-K for the year ended April 30, 1998 and
in the Company's Quarterly Reports for the quarters ended July 31, 1998, October
31, 1998 and January 31, 1999, and in Annex V hereto, in default under any law,
rule, regulation, ordinance or order relating to the businesses of the Company
and its Subsidiaries (including, but not limited to, its franchise
arrangements), the sanctions and penalties resulting from which defaults
described in clauses (x) and (y) might have a material adverse effect on the
business, properties, operations, assets or condition, financial or otherwise,
of the Company and its Subsidiaries taken as a whole or on the Company's ability
to perform its obligations under this Agreement or the Notes.
(ii) Neither the Company nor any Subsidiary nor any Affiliate
of the Company is an entity defined as a "designated national" within the
meaning of the Foreign Assets Control Regulations, 31 C.F.R. Chapter V, or for
any other reason, subject to any restriction or prohibition under, or is in
violation of, any Federal statute or Presidential Executive Order, or any rules
or regulations of any department, agency or administrative body promulgated
under any such statute or Order, concerning trade or other relations with any
foreign country or any citizen or national thereof or the ownership or operation
of any property.
(h) Compliance with ERISA.
(i) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and could not reasonably be
expected to result in a material adverse effect on the Company's business,
properties or condition, financial or otherwise. Neither the Company nor any
ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that would reasonably be expected to result in the
incurrence of any such liability by the Company or any
(6)
<PAGE> 11
ERISA Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions
or to Section 401(a)(29) or 412 of the Code, other than such liabilities or
Liens as would not be individually or in the aggregate material to the Company's
business, properties or condition, financial or otherwise.
(ii) The present value of the aggregate benefit liabilities
under each of the Plans (other than Multiemployer Plans), determined as of the
end of such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the assets of
such Plan allocable to such benefit liabilities. The term "BENEFIT LIABILITIES"
has the meaning specified in section 4001 of ERISA and the terms "CURRENT VALUE"
and "PRESENT VALUE" have the meaning specified in section 3 of ERISA.
(iii) The Company and its ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are material.
(iv) The expected postretirement benefit obligation
(determined as of the last day of the Company's most recently ended fiscal year
in accordance with Financial Accounting Standards Board Statement No. 106,
without regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of the Company and its Subsidiaries is not material.
(v) The execution and delivery of this Agreement and the
issuance and sale of the Notes hereunder will not involve any transaction that
is subject to the prohibitions of section 406 of ERISA or in connection with
which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.
The representation by the Company in the first sentence of this Section is made
in reliance upon and subject to (i) the accuracy of your representation in
Section 3.2 as to the sources of the funds used to pay the purchase price of the
Notes to be purchased by you and (ii) the assumption, made solely for the
purpose of making such representation, that Department of Labor Interpretive
Bulletin 75-2 with respect to prohibited transactions remains valid in the
circumstances of the transactions contemplated herein.
(i) Title to Properties. The Company and each of its Subsidiaries has
(i) good title in fee simple or its equivalent under applicable law to all the
real property owned by it and (ii) good title to all other Property owned by it,
in each case free from all Liens except (x) those securing Indebtedness of the
Company and each of its Subsidiaries, which are listed in the attached ANNEX III
and (y) other Liens that would be permitted pursuant to Section 7.4.
(j) Leases. The Company and each Subsidiary enjoy peaceful and
undisturbed possession under all leases under which the Company or any
Subsidiary is a lessee or is operating. None of such leases contains any
provision which might materially and adversely affect the operation or use of
the property so leased. All of such leases are valid and subsisting and the
Company and its Subsidiaries are not in default with respect to any such leases.
(7)
<PAGE> 12
(k) Franchises, Patents, Trademarks and Other Rights. The Company and
its Subsidiaries have all franchises, permits, licenses and other authority
necessary to carry on their businesses as now being conducted and as proposed to
be conducted, and are not in default under any of such franchises, permits,
licenses or other authority which are material to their business, Properties,
operations or condition, financial or otherwise of the Company and its
Subsidiaries taken as a whole. The Company and its Subsidiaries own or possess
all patents, trademarks, service marks, trade names, copyrights, licenses and
rights with respect to the foregoing necessary for the present conduct of their
businesses, without any known conflict with the rights of others which might
result in any material adverse change in the business, Properties, operations or
condition, financial or otherwise of the Company and its Subsidiaries taken as a
whole.
(l) Franchise Agreements. Except as disclosed in the Company's Annual
Report on Form 10-K for the year ended April 30, 1998 and in ANNEX V hereto, all
franchise agreements between the Company and its Subsidiaries and their
respective franchisees are valid and subsisting and the Company and its
Subsidiaries are not in default under any such franchise agreements.
(m) Status of Notes and Sale of Notes. The Agreement and the Notes have
been duly authorized on the part of the Company, have been duly executed and
delivered by an authorized officer of the Company and constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their terms, except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of the rights of
creditors or by equitable principles, regardless of whether enforcement is
sought in equity or at law. The sale of the Notes and compliance by the Company
with all of the provisions of this Agreement and of the Notes (i) are within the
corporate powers of the Company, (ii) have been duly authorized by proper
corporate action, (iii) are legal, (iv) will not violate any provisions of any
law or regulation or order of any court, governmental authority or agency and
(v) will not result in any breach of any of the provisions of, or constitute a
default under, or result in the creation of any Lien on any property of the
Company or its Subsidiaries under the provisions of, any charter document,
by-law, loan agreement or other agreement or instrument to which the Company or
its Subsidiaries is a party or by which they or their Property may be bound.
(n) No Defaults. No event has occurred and no condition exists which,
upon the issuance of the Notes, would constitute an Event of Default, or with
the lapse of time or the giving of notice or both would become an Event of
Default, under this Agreement. The Company and its Subsidiaries are not in
default under any charter document, by-law, loan agreement or other material
agreement or material instrument to which the Company or any Subsidiary is a
party or by which they or their Property may be bound, nor has the Company or
any Subsidiary obtained at any time in the last 24 months any waivers with
respect to any defaults under any loan agreements or other material agreements
or instruments other than those waivers that have previously been disclosed to
the Purchasers.
(8)
<PAGE> 13
(o) Governmental Consent. Neither the nature of the Company and its
Subsidiaries, their businesses or Properties, nor any relationship between the
Company, any Subsidiary and any other Person, nor any circumstances in
connection with the offer, issue, sale or delivery of the Notes is such as to
require a consent, approval or authorization of, or withholding of objection on
the part of, or filing, registration or qualification with, any governmental
authority on the part of the Company or any Subsidiary in connection with the
execution and delivery of this Agreement or the offer, issue, sale or delivery
of the Notes.
(p) Taxes. All tax returns required to be filed by the Company or any
Subsidiary in any jurisdiction have been filed or appropriate extensions have
been filed with respect thereto, and all taxes, assessments, fees and other
governmental charges upon the Company or any Subsidiary or upon any of their
Properties, income or franchises, which are due and payable, have been paid
timely or within appropriate extension periods or are being contested in good
faith by appropriate proceedings. The Company does not know of any proposed
additional tax assessment against it or any Subsidiary for which adequate
provision has not been made on its books. The federal income tax liability of
the Company and its Subsidiaries has been finally determined by the Internal
Revenue Service and satisfied for all taxable years up to and including the
taxable year ended April 30, 1997 and no controversy in respect of additional
taxes due since such date is pending or to the Company's knowledge threatened.
The provisions for taxes on the books of the Company and its Subsidiaries are
adequate for all open years and for the current fiscal period.
(q) Status under Certain Statutes. Neither the Company nor any
Subsidiary is: (i) a "public utility company" or a "holding company," or an
"affiliate" or a "subsidiary company" of a "holding company," or an "affiliate"
of such a "subsidiary company," as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended, or (ii) a "public utility" as defined
in the Federal Power Act, as amended, or (iii) an "investment company" or an
"affiliated person" thereof or an "affiliated person" of any such "affiliated
person," as such terms are defined in the Investment Company Act of 1940, as
amended.
(r) Private Offering. Neither the Company nor any Subsidiary nor any
Affiliate nor agent of the Company or any Subsidiary or any Affiliate has
offered any of the Notes or any similar security of the Company or any
Subsidiary for sale to, or solicited offers to buy any thereof from, or
otherwise approached or negotiated with respect thereto with, any prospective
purchasers other than you and the Other Purchasers, each of which was offered
all or a portion of the Notes at private sale for investment. Neither the
Company nor anyone acting on its authorization will offer the Notes or any part
thereof or any similar securities for issue or sale to, or solicit any offer to
acquire any of the same from, anyone so as to bring the issuance and sale of the
Notes within the provisions of Section 5 of the Securities Act.
(s) Effect of Other Instruments. Neither the Company nor any Subsidiary
is bound by any agreement or instrument or subject to any charter or other
corporate restriction which materially and adversely affects the business,
properties, operations, or condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole or the Company's ability to perform its
obligations under this Agreement or the Notes.
(9)
<PAGE> 14
(t) Use of Proceeds. The Company will apply the proceeds from the sale
of the Notes to fund the payment and retirement of certain outstanding Company
Indebtedness and general working capital purposes. None of the transactions
contemplated in this Agreement (including, without limitation thereof, the use
of the proceeds from the sale of the Notes) will violate or result in a
violation of Section 7 of the Exchange Act, or any regulations issued pursuant
thereto, including, without limitation, Regulations G, T, U and X of the Board
of Governors of the Federal Reserve System (12 C.F.R., Chapter II). Neither the
Company nor any Subsidiary owns or intends to carry or purchase any "margin
stock" within the meaning of Regulation G, and none of the proceeds from the
sale of the Notes will be used to purchase or carry or refinance any borrowing
the proceeds of which were used to purchase or carry any "margin stock" or
"margin security" in violation of Regulations G, T, U or X.
(u) Condition of Property. All of the facilities of the Company and its
Subsidiaries are in sound operating condition and repair except for facilities
being repaired in the ordinary course of business or facilities which
individually or in the aggregate are not material to the business, properties,
operations, or condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole.
(v) Books and Records. The Company and each of its Subsidiaries (i)
maintains books, records and accounts in reasonable detail which accurately and
fairly reflect its transactions and business affairs, and (ii) maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that transactions are executed in accordance with management's
general or specific authorization and to permit preparation of financial
statements in accordance with generally accepted accounting principles.
(w) Full Disclosure. Neither the Company's Annual Report on Form 10-K
for the year ended April 30, 1998, its Quarterly Reports on Form 10-Q for the
periods ended July 31, 1998, October 31, 1998 and January 31, 1999 and its
Annual Report to Stockholders for the year ended April 30, 1998, the financial
statements referred to in paragraph (d) of this Section 3.1, nor this Agreement,
nor any other statement or document furnished by the Company to you in
connection with the negotiation of the sale of the Notes, taken together,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein or herein not misleading in
light of the circumstances under which they were made. There is no fact known,
or which, with reasonable diligence would be known, by the Company which the
Company has not disclosed to you in the aforementioned documents or in writing
which has a material adverse effect on or, so far as the Company can now
foresee, will have a material adverse effect on the business, Property,
operations or condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole or the ability of the Company to perform its
undertakings under and in respect of this Agreement and the Notes.
(x) Environmental Compliance. Other than as disclosed in the Company's
Annual Report on Form 10-K for the year ended April 30, 1998 and in the
Company's Quarterly Reports for the quarters ended July 31, 1998, October 31,
1998 and January 31, 1999, the Company and each of its Subsidiaries (i) is in
compliance in all material respects with all applicable
(10)
<PAGE> 15
environmental, transportation, health and safety statutes and regulations,
including, without limitation, regulations promulgated under the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. ss.ss.6901 et seq., and (ii)
has not acquired, incurred or assumed, directly or indirectly, any material
contingent liability in connection with the release or storage of any toxic or
hazardous waste or substance into the environment. Other than as disclosed in
the Company's Annual Report on Form 10-K for the year ended April 30, 1998 and
in the Company's Quarterly Reports for the quarters ended July 31, 1998, October
31, 1998 and January 31, 1999, neither the Company nor any Subsidiary has
acquired, incurred or assumed, directly or indirectly, any material contingent
liability in connection with a release or other discharge of any hazardous,
toxic or waste material, including petroleum, on, in, under or into the
environment surrounding any property owned, used or leased by it.
(y) Outstanding Indebtedness. Except as set forth in ANNEX II, the
Company and its Subsidiaries have no outstanding Indebtedness. There exists no
default under the provisions of any instrument evidencing such Indebtedness or
of any agreement relating thereto.
(z) Sale of Other Notes. Contemporaneously with the Closing the Company
shall sell to the Purchasers and the Purchasers shall purchase the Notes to be
purchased by them at the Closing as specified in Schedule I.
3.2 Representations of the Purchasers.
(a) You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control. You understand that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Company is not required to register the Notes.
(b) You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "SOURCE") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(i) if you are an insurance company, the Source does not
include assets allocated to any separate account maintained by you in which any
employee benefit plan (or its related trust) has any interest, other than a
separate account that is maintained solely in connection with your fixed
contractual obligations under which the amounts payable, or credited, to such
plan and to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment performance of the
separate account; or
(ii) the Source is either (i) an insurance company pooled
separate account, within the meaning of Prohibited Transaction Exemption ("PTE")
90-1 (issued January 29, 1990), or (ii) a bank collective investment fund,
within the meaning of the PTE 91-38 (issued
(11)
<PAGE> 16
July 12, 1991) and, except as you have disclosed to the Company in writing
pursuant to this paragraph (ii), no employee benefit plan or group of plans
maintained by the same employer or employee organization beneficially owns more
than 10% of all assets allocated to such pooled separate account or collective
investment fund; or
(iii) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM
Exemption), no employee benefit plan's assets that are included in such
investment fund, when combined with the assets of all other employee benefit
plans established or maintained by the same employer or by an affiliate (within
the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the total
client assets managed by such QPAM, the conditions of Part I (c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of "control" in Section V(e) of
the QPAM Exemption) owns a 5% or more interest in the Company and (i) the
identity of such QPAM and (ii) the names of all employee benefit plans whose
assets are included in such investment fund have been disclosed to the Company
in writing pursuant to this paragraph (iii); or
(iv) the Source is a governmental plan; or
(v) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee benefit plans,
each of which has been identified to the Company in writing pursuant to this
paragraph (v); or
(vi) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA; or
(vii) the Source is an "insurance company general account"
within the meaning of PTE 95-60 (issued July 12, 1995) and there is no employee
benefit plan, treating as a single plan all plans maintained by the same
employer or employee organization, with respect to which the amount of general
account reserves and liabilities for all contracts held by or on behalf of such
plan exceed ten percent (10%) of the total reserves and liabilities of such
general account (exclusive of separate account liabilities) plus surplus, as set
forth in the NAIC Annual Statement filed with our state of domicile.
As used in this Section 3.2, the terms "EMPLOYEE BENEFIT PLAN", "GOVERNMENTAL
PLAN", "PARTY IN INTEREST" and "SEPARATE ACCOUNT" shall have the respective
meanings assigned to such terms in section 3 of ERISA.
Section 4. CLOSING CONDITIONS
Your obligation to purchase the Notes on the Closing Date shall be
subject to the performance by the Company of its agreements hereunder which are
to be performed at or prior
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to the time of delivery of the Notes, and to the following conditions to be
satisfied on or before the Closing Date:
4.1 Representations and Warranties. The representations and warranties
of the Company contained in this Agreement or otherwise made in writing in
connection herewith shall be true and correct on or as of the Closing Date and
the Company shall have delivered to you a certificate to such effect, dated the
Closing Date and executed by the Chief Executive Officer, the President or the
chief financial officer of the Company.
4.2 Legal Opinions. You shall have received from Gardner, Carton &
Douglas, who is acting as your special counsel in this transaction, and from
Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., special counsel for the
Company, their respective opinions, dated as of such Closing Date, in form and
substance satisfactory to you and covering substantially the matters set forth
or provided in the attached EXHIBIT B.
4.3 Events of Default. No event shall have occurred and be continuing
on the Closing Date which would constitute an Event of Default, as defined in
Section 8.1, or with notice or lapse of time or both would become such an Event
of Default, and the Company shall have delivered to you a certificate to such
effect, dated the Closing Date and executed by the Chief Executive Officer, the
President or the chief financial officer of the Company.
4.4 Payment of Fees and Expenses. The Company shall have paid all
reasonable fees, expenses, costs and charges, including the fees and expenses of
your special counsel, incurred by you through the Closing Date and incident to
the proceedings in connection with, and transactions contemplated by, this
Agreement and the Notes.
4.5 Accountants' Letter. You shall have received a letter from the
Company's independent certified public accountants acknowledging that you may
rely on their opinion accompanying the audited financial statements referred to
in Section 3.1(d).
4.6 Legality of Investment. Your acquisition of the Notes shall
constitute a legal investment as of the Closing Date under the laws and
regulations of each jurisdiction to which you may be subject (without resort to
any "basket" or "leeway" provision which permits the making of an investment
without restriction as to the character of the particular investment being
made), and such acquisition shall not subject you to any penalty or other
onerous condition in or pursuant to any such law or regulation.
4.7 Private Placement Number. Private placement numbers shall have been
obtained from Standard & Poor's Corporation.
4.8 Proceedings and Documents. All proceedings taken in connection with
the transactions contemplated by this Agreement, and all documents necessary to
the consummation of such transactions shall be satisfactory in form and
substance to you and your special counsel, and you and your special counsel
shall have received copies (executed or certified as may be appropriate) of all
legal documents or proceedings which you and they may reasonably request.
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Section 5. INTERPRETATION OF AGREEMENT
5.1 Certain Terms Defined. The terms hereinafter set forth when used in
this Agreement shall have the following meanings:
Affiliate - Any Person (other than a Subsidiary) (i) which directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, the Company, (ii) which beneficially owns or holds
5% or more of any class of the Voting Stock of the Company or any Subsidiary or
(iii) 5% or more of the Voting Stock (or in the case of a Person which is not a
corporation, 5% of the equity interest) of which is beneficially owned or held
by the Company or a Subsidiary. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
Agreement - As defined in Section 1.1.
Capitalized Lease - Any lease the obligation for Rentals with respect
to which, in accordance with generally accepted accounting principles, would be
required to be capitalized on a balance sheet of the lessee or for which the
amount of the asset and liability thereunder, as if so capitalized, would be
required to be disclosed in a note to such balance sheet.
Closing Date - As defined in Section 1.2.
Code - The Internal Revenue Code of 1986, as amended from time to time,
and the rules and regulations promulgated thereunder from time to time.
Consolidated Adjusted Net Income - For any period, the gross revenues
of the Company and its Subsidiaries for such period less all expenses and other
proper charges (including taxes on income), determined on a consolidated basis
after eliminating earnings or losses attributable to outstanding minority
interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of any
Property;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary accrued prior to the date
it became a Subsidiary;
(d) net earnings and losses of any corporation (other than a
Subsidiary), substantially all the assets of which have been acquired in any
manner by the Company or any Subsidiary, realized by such corporation prior to
the date of such acquisition;
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(e) net earnings and losses of any corporation (other than a
Subsidiary) with which the Company or a Subsidiary shall have consolidated or
which shall have merged into or with the Company or a Subsidiary prior to the
date of such consolidation or merger;
(f) net earnings of any business entity (other than a Subsidiary) in
which the Company or any Subsidiary has an ownership interest unless such net
earnings shall have actually been received by the Company or such Subsidiary in
the form of cash distributions or readily marketable securities;
(g) any portion of the net earnings of any Subsidiary which for any
reason is unavailable for payment of dividends to the Company or any other
Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or write-up of
assets;
(i) any deferred or other credit representing any excess of the equity
in any Subsidiary at the date of acquisition thereof over the amount invested in
such Subsidiary;
(j) any gain arising from the acquisition of any securities of the
Company or any Subsidiary;
(k) any reversal of any contingency reserve, except to the extent that
provision for such contingency reserve shall have been made from income arising
during such fiscal period or during the period consisting of the four
consecutive fiscal quarters immediately following the end of such fiscal period;
and
(l) any other extraordinary gain.
Consolidated Current Liabilities - The current liabilities of the
Company and its Subsidiaries determined in accordance with generally accepted
accounting principles.
Consolidated Income Available for Fixed Charges - For any period, the
sum (without duplication) of (i) Consolidated Adjusted Net Income for such
period, plus (ii) (to the extent deducted in determining Consolidated Adjusted
Net Income), all provisions for any federal, state, or other income taxes made
by the Company and its Subsidiaries during such period and (iii) Consolidated
Fixed Charges for such period.
Consolidated Fixed Charges - For any period, the sum of (i) interest
expense on all Indebtedness (including the interest component of Rentals under
Capitalized Leases and capitalized interest), of the Company and its
Subsidiaries on a consolidated basis for such period plus (ii) Rentals of the
Company and its Subsidiaries under all leases other than Capitalized Leases for
such period.
Consolidated Indebtedness. All Indebtedness outstanding as of any date
of the Company and its Subsidiaries on a consolidated basis.
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Consolidated Net Tangible Assets - The total assets of the Company and
its Subsidiaries determined in accordance with generally accepted accounting
principles minus (i) all goodwill, trade names, trademarks, patents,
organization expense, unamortized debt discount and similar intangibles properly
classified as "intangibles" in accordance with generally accepted accounting
principles and (ii) Consolidated Current Liabilities.
Consolidated Tangible Net Worth - Stockholders' equity of the Company
and its Subsidiaries on a consolidated basis, determined in accordance with
generally accepted accounting principles less all goodwill, trade names,
trademarks, patents, organization expense, unamortized debt discount and similar
intangibles properly classified as intangibles in accordance with generally
accepted accounting principles.
Consolidated Total Capitalization - The sum of (i) Consolidated
Tangible Net Worth and (ii) Consolidated Indebtedness.
Default - An event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
Determination Date - The day 2 days before the date fixed for a
prepayment pursuant to a notice required by Sections 2.2(b) or 2.3 or the day 2
days before the date of declaration pursuant to Section 8.2.
ERISA - The Employment Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
ERISA Affiliate - Any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under Section 414
of the Code.
Event of Default - As defined in Section 8.1.
Exchange Act - The Securities Exchange Act of 1934, as amended, and as
it may be further amended from time to time.
Funded Debt - All Indebtedness owed or guaranteed which by its terms
matures more than one year from its date of creation or which may be renewed or
extended at the option of the obligor for more than a year from such date,
whether or not theretofore renewed or extended, including current maturities of
such obligations.
Guaranties - All obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection) of a
Person guaranteeing or, in effect, guaranteeing any Indebtedness, dividend or
other obligation, of any other Person in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through an
agreement, contingent or otherwise, by such Person: (i) to purchase such
Indebtedness or obligation or any property or assets constituting security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of
such Indebtedness or obligation, (y) to maintain working
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capital or other balance sheet condition or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or obligation,
(iii) to lease property or to purchase securities or other property or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation, or (iv) otherwise to assure the owner of the Indebtedness or
obligation against loss in respect thereof. For the purposes of all computations
made under this Agreement, a Guaranty in respect of any Indebtedness for
borrowed money shall be deemed to be Indebtedness equal to the principal amount
of such Indebtedness for borrowed money which has been guaranteed, and a
Guaranty in respect of any other obligation or liability or any dividend shall
be deemed to be Indebtedness equal to the maximum aggregate amount of such
obligation, liability or dividend.
Indebtedness - (i) All items of borrowed money, including Capitalized
Leases, which in accordance with generally accepted accounting principles would
be included in determining total liabilities as shown on the liability side of a
balance sheet as of the date at which Indebtedness is to be determined, plus
(ii) all Guaranties (other than Guaranties of Indebtedness of the Company by a
Subsidiary or of a Subsidiary by the Company), letters of credit and
endorsements (other than of notes, bills and checks presented to banks for
collection or deposit in the ordinary course of business), in each case to
support Indebtedness of other Persons.
Institutional Holder - Any bank, trust company, insurance company,
pension fund, mutual fund or other similar financial institution, including,
without limiting the foregoing, any "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act, which is or becomes a holder of
any Note.
Investments - All investments made, in cash or by delivery of property,
directly or indirectly, in any Person, whether by acquisition of shares of
capital stock, indebtedness or other obligations or securities or by loan,
advance, capital contribution or otherwise.
Lien - Any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind, including any agreement to grant any of the foregoing, any
conditional sale or other title retention agreement, any lease in the nature
thereof, and the filing of or agreement to file any financing statement under
the Uniform Commercial Code of any jurisdiction in connection with any of the
foregoing.
Multiemployer Plan - Any Plan that is a "multiemployer plan" (as such
term is defined in Section 4001(a)(3) of ERISA).
Noteholder - Any holder of a Note.
Notes - As defined in Section 1.1.
PBGC - The Pension Benefit Guaranty Corporation referred to and defined
in ERISA or any successor thereto.
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Plan - An "employee benefit plan" (as defined in section 3(3) of ERISA)
that is or, within the preceding five years, has been established or maintained,
or to which contributions are or, within the preceding five years, have been
made or required to be made, by the Company or any ERISA Affiliate or with
respect to which the Company or any ERISA Affiliate may have any liability.
Person - Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Permitted Investments - Any Investment consisting solely of the
following:
(a) Investments made in the ordinary course of business in Property and
assets to be used in the ordinary course of business of the Company and its
Subsidiaries;
(b) Investments in direct obligations of the United States or any
instrumentality or agency thereof the obligations of which are fully guaranteed
by the government of the United States;
(c) Investments in certificates of deposit and banker's acceptances
issued by a bank organized under the laws of the United States or any state
thereof, having capital, surplus and undivided profits aggregating at least
$100,000,000 and whose long-term corporate debt is, at the time of acquisition
thereof by the Company, accorded a rating of "A" or better by Moody's Investors
Service, Inc., or "A" or better by Standard & Poor's Corporation;
(d) Investments in debt securities issued by any corporation organized
under the laws of the United States or any state thereof whose long-term
corporate debt is, at the time of acquisition thereof, accorded a rating of "A"
or better by Moody's Investors Service, Inc. or "A" or better by Standard &
Poor's Corporation;
(e) Investments in commercial paper issued by any corporation organized
under the laws of the United States or any state thereof, rated in the highest
category by Moody's Investors Service, Inc. or Standard & Poor's Corporation;
(f) Investments in money market funds registered under the Investment
Company Act of 1940 which invest in securities which, in the aggregate, have an
average rating of "A" or better (or an equivalent) by Moody's Investors
Services, Inc. or Standard & Poor's Corporation;
(g) Investments in tax-exempt municipal obligations issued by
governmental entities located in the United States maturing not more than one
year from the date of issue and which bear at least a "VMIG-1" by Moody's
Investors Services, Inc. or "A-1" by Standard & Poor's Corporation rating; and
(h) Investments in tax-exempt municipal obligations issued by
governmental entities located in the United States maturing more than one year
from the date of issue and which bear at
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least a rating of "A-" or better by Moody's Investors Services, Inc. or "A-" or
better by Standard & Poor's Corporation.
Property - Any real or personal or tangible or intangible asset.
Purchasers - As defined in Section 1.2.
QPAM Exemption - The Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
Reinvestment Yield - The sum of (i) the yield set forth on page "USD"
of the Bloomberg Financial Markets Service at 11:00 a.m., Central Time on the
Determination Date opposite the maturity of the U.S. Treasury Security
corresponding to the Weighted Average Life to Maturity, rounded to the nearest
month (or, in the absence of availability of the Bloomberg Financial Markets
Service, the arithmetic mean of the rates, published for the 5 business days
preceding the applicable Determination Date, in the weekly statistical release
designated H.15 (519) (or any successor publication) of the Board of Governors
of the Federal Reserve System under the caption "U.S. Government
Securities-Treasury Constant Maturities" opposite the maturity corresponding to
the Weighted Average Life to Maturity, rounded to the nearest month) of the
principal amount of the applicable Notes to be prepaid, plus (ii) .50 of 1% with
respect to applicable Notes to be prepaid pursuant to Section 2.2(a) or
applicable Notes the payment of which has been accelerated with premium pursuant
to Section 8.2. If no maturity exactly corresponding to such rounded Weighted
Average Life to Maturity shall appear therein, yields for the two most closely
corresponding published maturities (one of which occurs prior and the other
subsequent to the Weighted Average Life to Maturity) shall be calculated
pursuant to the foregoing sentence and the Reinvestment Yield shall be
interpolated from such yields on a straight-line basis (rounding in each of such
relevant periods, to the nearest month).
Rentals - As of the date of any determination thereof, all fixed
payments (including all payments which the lessee is obligated to make to the
lessor on termination of the lease or surrender of the property) payable by the
Company or a Subsidiary, as lessee or sublessee under a lease of real or
personal property, but exclusive of any amounts required to be paid by the
Company or a Subsidiary (whether or not designated as rents or additional rents)
on account of maintenance, repairs, insurance, taxes, assessments, amortization
and similar charges. Fixed rents under any so-called "percentage leases" shall
be computed solely on the basis of the minimum rents, if any, required to be
paid by the lessee regardless of sales volume or gross revenues.
Responsible Officer - Any Senior Financial Officer or any other officer
of the Company with responsibility for the administration of the relevant
portion of this Agreement.
Securities Act - The Securities Act of 1933, as amended, and as it may
be further amended from time to time.
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Senior Financial Officer - The chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
Series A Notes - As defined in Section 1.1.
Series B Notes - As defined in Section 1.1.
Series C Notes - As defined in Section 1.1.
Series D Notes - As defined in Section 1.1.
Series E Notes - As defined in Section 1.1.
Series F Notes - As defined in Section 1.1.
Subsidiary - Any corporation of which more than 50% of the outstanding
shares of Voting Stock are owned or controlled by the Company or one or more
Subsidiaries.
Voting Stock - Capital stock of any class of a corporation having power
to vote for the election of members of the board of directors of such
corporation, or persons performing similar functions (whether or not at the time
stock of any class shall have or might have special voting powers or rights by
reason of the happening of any contingency).
Weighted Average Life to Maturity - As applied to any prepayment of
principal of the Notes, at any date, the number of years obtained by dividing
(a) the then outstanding principal amount of the Notes to be prepaid into (b)
the sum of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity, or other required payment,
including payment at final maturity, foregone by such prepayment by (ii) the
number of years (calculated to the nearest 1/12th) which will elapse between
such date and the making of such payment.
Wholly-Owned - When applied to a Subsidiary, any Subsidiary 100% of the
Voting Stock of which is owned by the Company and/or its Wholly-Owned
Subsidiaries.
Terms which are defined in other Sections of this Agreement shall have
the meanings specified therein.
5.2 Accounting Principles. Where the character or amount of any asset
or liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with generally
accepted accounting principles in force at the time of determination, except
where such principles are inconsistent with the requirements of this Agreement.
5.3 Valuation Principles. Except where indicated expressly to the
contrary by the use of terms such as "fair value," "fair market value" or
"market value," each asset, each liability and
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each capital item of any Person, and any quantity derivable by a computation
involving any of such assets, liabilities or capital items, shall be taken at
the net book value thereof for all purposes of this Agreement. "Net book value",
with respect to any asset, liability or capital item of any Person shall mean
the amount at which the same is recorded or, in accordance with generally
accepted accounting principles, should have been recorded in the books of
account of such Person, as reduced by any reserves which have been or, in
accordance with generally accepted accounting principles, should have been set
aside with respect thereto, without giving effect to any write-up, write-down or
write-off, relating thereto which was made after the date of this Agreement.
5.4 Direct or Indirect Actions. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether the action in question
is taken directly or indirectly by such Person.
Section 6. AFFIRMATIVE COVENANTS
The Company agrees that, for so long as any amount remains unpaid on
any Note:
6.1 Corporate Existence. The Company will maintain and preserve, and
will cause each Subsidiary to maintain and preserve, its corporate existence and
right to carry on its business and use, and cause each Subsidiary to use, its
best efforts to maintain, preserve, renew and extend all of its rights, powers,
privileges and franchises necessary to the proper conduct of its business;
provided, however, that the foregoing shall not prevent any transaction
permitted by Sections 7.5 or 7.6.
6.2 Insurance. The Company will insure and keep insured at all times
all of its properties and all of its Subsidiaries' properties which are of an
insurable nature and of the character usually insured by companies operating
similar properties, against loss or damage by fire and from other causes
customarily insured against by companies engaged in similar businesses in such
amounts as are usually insured against by such companies. The Company also will
maintain for itself and its Subsidiaries at all times with financially sound and
reputable insurers adequate insurance against loss or damage from such hazards
and risks to the person and property of others as are usually insured against by
companies operating properties similar to the properties of the Company and its
Subsidiaries. All such insurance shall be carried with financially sound and
reputable insurers accorded a rating of A-XII or better by A.M. Best Company,
Inc. Notwithstanding the foregoing, the Company's self-insurance program with
respect to property damage and workers compensation, as described in Annex IV
hereto, shall satisfy the requirements of this Section 6.2. A summary of
insurance presently in force is contained in the attached ANNEX IV.
6.3 Taxes, Claims for Labor and Materials. The Company will pay and
discharge when due, and will cause each Subsidiary to pay and discharge when
due, all taxes, assessments and governmental charges or levies imposed upon it
or its property or assets, or upon properties leased by it (but only to the
extent required to do so by the applicable lease), prior to the date on
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which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien upon its property or assets, provided that neither the Company nor
any Subsidiary shall be required to pay any such tax, assessment, charge, levy
or claim, the payment of which is being contested in good faith and by proper
proceedings that will stay the forfeiture or sale of any property and with
respect to which adequate reserves are maintained in accordance with generally
accepted accounting principles.
6.4 Maintenance of Properties. The Company will maintain, preserve and
keep, and will cause each Subsidiary to maintain, preserve and keep, its
properties (whether owned in fee or a leasehold interest) in good repair and
working order, ordinary wear and tear excepted, and from time to time will make
all necessary repairs, replacements, renewals and additions.
6.5 Maintenance of Records. The Company will keep, and will cause each
Subsidiary to keep, at all times proper books of record and account in which
full, true and correct entries will be made of all dealings or transactions of
or in relation to the business and affairs of the Company or such Subsidiary, in
accordance with generally accepted accounting principles consistently applied
throughout the period involved (except for such changes as are disclosed in such
financial statements or in the notes thereto and concurred with by the
independent certified public accountants), and the Company will, and will cause
each Subsidiary to, provide reasonable protection against loss or damage to such
books of record and account.
6.6 Financial Information and Reports. The Company will furnish to you
and to any other Institutional Holder (in duplicate if you or such other holder
so request), the following:
(a) As soon as available and in any event within 60 days after the end
of each of the first three quarterly accounting periods of each fiscal year of
the Company, a consolidated balance sheet of the Company and its Subsidiaries as
of the end of such period and consolidated statements of earnings and cash flows
of the Company and its Subsidiaries for the periods beginning on the first day
of such fiscal year and the first day of such quarterly accounting period and
ending on the date of such balance sheet, setting forth in comparative form the
corresponding consolidated figures for the corresponding periods of the
preceding fiscal year, all in reasonable detail prepared in accordance with
generally accepted accounting principles consistently applied throughout the
period involved (except for changes disclosed in such financial statements or in
the notes thereto and concurred with by the Company's independent certified
public accountants) and certified by the chief financial officer or chief
accounting officer of the Company (i) outlining the basis of presentation, and
(ii) stating that the information presented in such statements presents fairly
the financial condition of the Company and its Subsidiaries and the results of
operations for the period, subject to customary year-end audit adjustments;
provided that so long as the Company shall file a quarterly report on Form 10-Q
or any similar form with the Securities and Exchange Commission or any successor
agency which contains the information set forth in this paragraph (a) (except
that the balance sheet need not be in comparative form), the requirements of
this paragraph (a) shall be satisfied by forwarding Form 10-Q to the holder of
the Notes within such 60-day period;
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(b) As soon as available and in any event within 120 days after the
last day of each fiscal year a consolidated and a consolidating balance sheet of
the Company and its Subsidiaries as of the end of such fiscal year and the
related audited consolidated and consolidating statements of earnings,
stockholders' equity and cash flows for such fiscal year, in each case setting
forth in comparative form figures for the preceding fiscal year, all in
reasonable detail, prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved (except
for changes disclosed in such financial statements or in the notes thereto and
concurred with by independent certified public accountants) and accompanied by a
report as to the consolidated balance sheet and the related consolidated
statements of KPMG Peat Marwick LLP or any firm of independent public
accountants of recognized national standing selected by the Company to the
effect that such financial statements have been prepared in conformity with
generally accepted accounting principles and present fairly, in all material
respects, the financial condition of the Company and its Subsidiaries and that
the examination of such financial statements by such accounting firm has been
made in accordance with generally accepted auditing standards; provided that so
long as the Company shall file an annual report on Form 10-K or any similar form
with the Securities and Exchange Commission or any successor agency which
contains the information set forth in this paragraph (b), the requirements of
this paragraph (b) shall be satisfied by forwarding Form 10-K to the holder of
the Notes within such 120-day period;
(c) Together with the financial statements delivered pursuant to
paragraphs (a) and (b) of this Section 6.6, a certificate of the chief financial
officer or chief accounting officer, (i) to the effect that such officer has
re-examined the terms and provisions of this Agreement and that at the date of
such certificate, during the periods covered by such financial reports and as of
the end of such periods, the Company is not, or was not, in default in the
fulfillment of any of the terms, covenants, provisions and conditions of this
Agreement and that no Event of Default, or event which, with the lapse of time
or the giving of notice, or both, would become an Event of Default, is occurring
or has occurred as of the date of such certificate, during such periods and as
of the end of such periods, or if the signer is aware of any such default, event
or Event of Default, he shall disclose in such statement the nature thereof, its
period of existence and what action, if any, the Company has taken or proposes
to take with respect thereto, and (ii) stating whether the Company is in
compliance with Sections 7.1 through 7.10 and setting forth, in sufficient
detail, the information and computations required to establish whether or not
the Company was in compliance with the requirements of Sections 7.1, 7.2, 7.3,
7.4 and 7.6 during the periods covered by the financial reports then being
furnished and as of the end of such periods;
(d) Together with the financial reports delivered pursuant to paragraph
(b) of this Section 6.6, a certificate of the independent certified public
accountants (i) stating that in making the examination necessary for expressing
an opinion on such financial statements, nothing came to their attention that
caused them to believe that there is in existence or has occurred any Event of
Default hereunder, or any event (the occurrence of which is ascertainable by
accountants in the course of normal audit procedures) which, with the lapse of
time or the giving of notice, or both, would become an Event of Default
hereunder or, if such accountants shall have obtained knowledge of any such
event or Event of Default, describing the nature thereof and the length of
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time it has existed and (ii) acknowledging that holders of the Notes may rely on
their opinion on such financial statements;
(e) Within 15 days after any vice president or internal counsel of the
Company obtains knowledge thereof, notice of any litigation not fully covered by
insurance or any governmental proceeding pending against the Company or any
Subsidiary in which the damages sought exceed $2,000,000 or which might
otherwise materially adversely affect the business, property, operations or
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole;
(f) As soon as available, copies of each financial statement, notice,
report and proxy statement which the Company shall furnish to its stockholders
generally; copies of each registration statement and periodic report which the
Company may file with the Securities and Exchange Commission, and any other
similar or successor agency of the Federal government administering the
Securities Act, the Exchange Act or the Trust Indenture Act of 1939, as amended;
copies of each report relating to the Company or its securities which the
Company may file with any securities exchange on which any of the Company's
securities may be registered; copies of any orders in any proceedings in which a
claim exceeds $2,000,000 or in which the Company's liability may exceed
$2,000,000 to which the Company or any of its Subsidiaries is a party, issued by
any governmental agency, Federal or state, having jurisdiction over the Company
or any of its Subsidiaries; and, except at such times as the Company is a
reporting company under Section 13 or 15(d) of the Exchange Act or has complied
with the requirements for the exemption from registration under the Exchange Act
set forth in Rule 12g-3-2(b), such financial or other information as any holder
of the Notes may reasonably determine is required to permit such holder to
comply with the requirements of Rule 144A under the Securities Act in connection
with the resale by it of the Notes;
(g) As soon as available, a copy of each other report submitted to the
Company or any Subsidiary by independent accountants retained by the Company or
any Subsidiary in connection with any interim or special audit made by them of
the books of the Company or any Subsidiary; and
(h) Such additional information as you or such other Institutional
Holder of the Notes may reasonably request concerning the Company and its
Subsidiaries.
6.7 Inspection of Properties and Records. The Company will allow, and
will cause each Subsidiary to allow, any representative of you or any other
Institutional Holder, so long as you or such other Institutional Holder holds
any Note, at your expense, to visit and inspect any of its properties, to
examine its books of record and account and to discuss its affairs, finances and
accounts with its officers and its public accountants (and upon 24 hours notice
to the Company, the Company shall authorize such accountants to discuss with you
or such Institutional Holder its affairs, finances and accounts), all at such
reasonable times and as often as you or such Institutional Holder may reasonably
request. So long as an Event of Default or an event which, with the passage of
time or the giving of notice, or both, would become an Event of Default has
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occurred and is continuing, the Company agrees to pay the costs of any
inspections made pursuant to this Section 6.7.
6.8 ERISA. The Company will furnish to you and any other Institutional
Holder promptly, and in any event within five Business Days after a Responsible
Officer becomes aware of any of the following, a written notice setting forth
the nature thereof and the action, if any, that the Company or an ERISA
Affiliate proposes to take with respect thereto:
(a) with respect to any Plan, any reportable event, as defined in
section 4043(b) of ERISA and the regulations thereunder, for which notice
thereof has not been waived pursuant to such regulations as in effect on the
date hereof; or
(b) the taking by the PBGC of steps to institute, or the threatening by
the PBGC of the institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to such
Multiemployer Plan; or
(c) any event, transaction or condition that could result in the
incurrence of any liability by the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of any Lien on any of
the rights, properties or assets of the Company or any ERISA Affiliate pursuant
to Title I or IV of ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a material adverse effect on the
Company's business, properties or condition, financial or otherwise.
6.9 Compliance with Laws. The Company will comply, and will cause each
Subsidiary to comply, with all laws, rules and regulations relating to its or
their respective businesses, other than laws, rules and regulations the failure
to comply with which or the sanctions and penalties resulting therefrom,
individually or in the aggregate, would not have a material adverse effect on
the business, property, operations, or condition, financial or otherwise, of the
Company or such Subsidiary, and would not result in the creation of a Lien
which, if incurred in the ordinary course of business, would not be permitted by
Section 7.4 on any of the property of the Company or any Subsidiary; provided,
however, that the Company and its Subsidiaries shall not be required to comply
with laws, rules and regulations the validity or applicability of which are
being contested in good faith by the Company or, in the case of Chapter 523H of
the 1997 Code of Iowa, as amended, by other parties, and by appropriate
proceedings; provided that the failure to comply with such laws, rules or
regulations would not have a material adverse effect on the business,
properties, operations, assets or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole.
6.10 Acquisition and Cancellation of Notes. (a) Neither the Company nor
any Subsidiary or Affiliate, directly or indirectly, will repurchase or offer to
repurchase or offer to
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repurchase any Notes unless the offer is made to purchase Notes pro rata from
all holders at the same time and on the same terms.
(b) The Company will forthwith cancel any Notes in any manner or at any
time acquired by the Company or any Subsidiary or Affiliate and such Notes shall
not be deemed to be outstanding for any of the purposes of this Agreement or the
Notes.
6.11 Private Placement Number. The Company consents to the filing of
copies of this Agreement with Standard & Poor's Corporation and the National
Association of Insurance Commissioners to obtain private placement numbers.
Section 7. NEGATIVE COVENANTS
The Company agrees that, for so long as any amount remains unpaid on
any Note:
7.1 Net Worth. The Company will not, as of the end of any fiscal
quarter, permit its Consolidated Tangible Net Worth to be less than (a)
$175,000,000 plus (b) 30% of Consolidated Adjusted Net Income (which for
purposes of this clause (b) shall not be less than zero) after April 30, 1999.
7.2 Indebtedness. The Company will not permit, as of the end of any
fiscal quarter, Consolidated Indebtedness to exceed 60% of Consolidated Total
Capitalization.
7.3 Fixed Charge Ratio. The Company will not, as of the end of any
fiscal quarter, permit the ratio of Consolidated Income Available for Fixed
Charges to Consolidated Fixed Charges for the twelve preceding fiscal quarters,
calculated on an aggregate basis for said period, to be less than 1.5 to 1.0.
7.4 Liens. Neither the Company nor any Subsidiary will cause or permit
or hereafter agree or consent to cause or permit in the future (upon the
happening of a contingency or otherwise), any of its Property, whether now owned
or subsequently acquired, to be subject to a Lien except:
(a) Liens securing the payment of taxes, assessments or governmental
charges or levies or the demands of suppliers, mechanics, repairmen, workmen,
materialmen, carriers, warehousers, landlords and other like Persons, or similar
statutory Liens, provided that (i) such Liens do not in the aggregate materially
reduce the value of any Properties subject to the Liens or materially interfere
with their use in the ordinary conduct of the Company's or any Subsidiaries
business, (ii) all claims which such Liens secure are not delinquent or are
being actively contested in good faith and by appropriate proceedings and (iii)
adequate reserves have been established therefor on the books of the Company;
(b) Liens incurred or deposits made in the ordinary course of business
(i) in connection with worker's compensation, unemployment insurance, social
security and other like
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laws, or (ii) to secure the performance of letters of credit, bids, tenders,
sales contracts, leases, statutory obligations, surety, appeal and performance
bonds and other similar obligations, in each case not incurred in connection
with the borrowing of money, the obtaining of advances or the payment of the
deferred purchase price of Property otherwise than permitted by paragraph (e)
below;
(c) Attachment, judgment and other similar Liens arising in connection
with court proceedings, provided that (i) execution and other enforcement are
effectively stayed, (ii) all claims which the Liens secure are being actively
contested in good faith and by appropriate proceedings and (iii) adequate
reserves have been established therefor on the books of the Company, if required
by generally accepted accounting principles;
(d) Liens existing as of March 31, 1999, which Liens are set forth in
ANNEX III hereto; and
(e) Other Liens securing Indebtedness incurred after the date hereof;
provided that the Indebtedness secured by such Liens shall not exceed the lesser
of the cost or fair market value of the Property; and provided, further, that
the aggregate amount of such Indebtedness secured by Liens permitted by this
subparagraph (e), shall not, in the aggregate, exceed twenty-five percent (25%)
of Consolidated Tangible Net Worth.
7.5 Merger or Consolidation. The Company will not, and will not permit
any Subsidiary to, merge or consolidate with any other Person, except that:
(a) The Company may consolidate with or merge into any Person or permit
any other Person to merge into it, provided that immediately after giving effect
thereto,
(i) The Company is the successor corporation or, if the Company is
not the successor corporation, the successor corporation is a
corporation organized under the laws of a state of the United States of
America or the District of Columbia and shall expressly assume in
writing the Company's obligations under the Notes and this Agreement;
and
(ii) There shall exist no Event of Default or event which, with the
passage of time or giving of notice, or both, would constitute an Event
of Default;
(b) Any Subsidiary may (i) merge into the Company or another
Wholly-Owned Subsidiary or (ii) sell, transfer or lease all or any part of its
assets to the Company or to another Wholly-Owned Subsidiary or (iii) merge into
any Person which, as a result of such merger, concurrently becomes a Subsidiary,
provided in each such instance that there shall exist no Event of Default or
event which, with the passage of time or giving of Notice, or both, would
constitute an Event of Default.
7.6 Sale of Assets. During any twelve month period, the Company will
not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise
dispose of any assets, in one or a
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series of transactions, other than in the ordinary course of business, to any
Person, other than to the Company or a Wholly-Owned Subsidiary (collectively a
"Disposition"), if after giving effect to such Disposition, the aggregate book
value of all Dispositions made during such twelve month period would exceed ten
percent (10%) of Consolidated Net Tangible Assets as of the end of the
immediately preceding fiscal quarter.
7.7 Restricted Investments. The Company shall not, nor shall it permit
any Subsidiary to, make any Investments except Investments in Permitted
Investments which comply with each of the following portfolio requirements:
(a) Investments in a single issuer (other than the United States
government or any agency or instrumentality thereof) shall not exceed the
greater of (i) eight percent (8%) of the amount of total Investments of the
Company and its Subsidiaries or (ii) $2,500,000;
(b) Investments in any single money market fund permitted by paragraph
(e) of the definition of Permitted Investments shall not exceed the greater of
(i) 20% of the amount of total Investments of the Company and its Subsidiaries
or (ii) $2,500,000;
(c) No more than 50% of total Investments of the Company and its
Subsidiaries shall mature more than one year from the date of acquisition
thereof; and
(d) No more than 25% of total Investments of the Company and its
Subsidiaries shall have maturities of 18 months to three (3) years from the date
of acquisition thereof.
Notwithstanding the foregoing, in the event that Investments of the Company and
its Subsidiaries are less than $1,000,000 in the aggregate, the foregoing
portfolio requirements as set forth in subparagraph (a) through (d) above shall
not apply.
7.8 Change in Business. Neither the Company nor any Subsidiary (whether
now existing or hereafter acquired or organized) will engage in any business
substantially different from the business presently conducted by the Company and
its Subsidiaries.
7.9 Transactions with Affiliates. The Company will not, and will not
permit any Subsidiary to, enter into any transaction (including the furnishing
of goods or services) with an Affiliate except in the ordinary course of
business as presently conducted and on terms and conditions no less favorable to
the Company or such Subsidiary than would be obtained in a comparable
arm's-length transaction with a Person not an Affiliate.
7.10 Consolidated Tax Returns. The Company will not file, or consent to
the filing of, any consolidated Federal income tax return with any Person other
than a Subsidiary, except to the extent that the Company is required under the
Code to do otherwise.
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Section 8. EVENTS OF DEFAULT AND REMEDIES THEREFOR
8.1 Nature of Events. An "Event of Default" shall exist if any one or
more of the following occurs:
(a) Default in the payment of interest on any of the Notes when due and
such default shall continue for a period of three days;
(b) Default in the payment of the principal of any of the Notes or the
premium thereon, if any, at maturity, upon acceleration of maturity or at any
date fixed for prepayment;
(c) Default shall occur (i) in the payment of the principal of,
premium, or interest on any other Indebtedness of the Company or its
Subsidiaries, aggregating in excess of $2,000,000 as and when due and payable
(whether by lapse of time, declaration, call for redemption or otherwise), (ii)
under any mortgage, agreement or other instrument of the Company or any
Subsidiary securing such Indebtedness or under or pursuant to which such
Indebtedness aggregating in excess of $2,000,000 is issued, (iii) under any
leases other than Capitalized Leases of the Company or any Subsidiary, with
aggregate Rentals in excess of $2,000,000 or (iv) with respect to any
combination of the foregoing involving Indebtedness and/or Rentals aggregating
in excess of $2,000,000 regardless of whether such defaults would be Events of
Default hereunder, and (x) any such defaults with respect to the payment of
money shall continue, unless waived, beyond the period of grace, if any, allowed
with respect thereto and, (y) solely in the case of any default not involving
the payment of money, the sums due thereunder shall have been accelerated and
such acceleration shall not have been annulled;
(d) Default in the observance or performance of Sections 7.1, 7.2, 7.3,
7.5, 7.6, 7.8, 7.9 and 7.10 and Section 8.7.
(e) Default in the observance or performance of any other covenant or
provision of this Agreement which default is not remedied within 30 days after
the earlier of the date (a) a Responsible Officer of the Company knew of such
default or (b) on which written notice of such default is provided to the
Company by any Noteholder;
(f) Any representation or warranty made by the Company in this
Agreement, or made by the Company in any written statement or certificate
furnished by the Company in connection with the issuance and sale of the Notes
or furnished by the Company pursuant to this Agreement, proves incorrect in any
material respect as of the date of the issuance or making thereof;
(g) Any judgments, writs or warrants of attachment or any similar
processes individually or in the aggregate in excess of $2,000,000 shall be
entered or filed against the Company or any Subsidiary or against any property
or assets of either and remain unpaid, unvacated, unbonded or unstayed (through
appeal or otherwise) for a period of 60 days after the Company or any Subsidiary
receives notice thereof;
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(h) If (i) any Plan shall fail to satisfy the minimum funding standards
of ERISA or the Code for any plan year or part thereof or a waiver of such
standards or extension of any amortization period is sought or granted under
section 412 of the Code, (ii) a notice of intent to terminate any Plan shall
have been or is reasonably expected to be filed with the PBGC or the PBGC shall
have instituted proceedings under ERISA section 4042 to terminate or appoint a
trustee to administer any Plan or the PBGC shall have notified the Company or
any ERISA Affiliate that a Plan may become a subject of any such proceedings,
(iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning
of section 4001(a)(18) of ERISA) under all Plans, determined in accordance with
Title IV of ERISA, shall exceed $2,000,000, (iv) the Company or any ERISA
Affiliate shall have incurred or is reasonably expected to incur any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans, (v) the Company or any ERISA
Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the liability
of the Company or any Subsidiary thereunder (as used in Section 8.1(h), the
terms "employee benefit plan" and "employee welfare benefit plan" shall have the
respective meanings assigned to such terms in Section 3 of ERISA); and any such
event or events described in clauses (i) through (vi) above, either individually
or together with any other such event or events, could reasonably be expected to
have a material adverse effect; or
(i) The Company or any Subsidiary shall
(i) generally not pay its debts as they become due or admit
in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or for reorganization or
for the adoption of an arrangement under the Federal Bankruptcy Code,
or any similar applicable bankruptcy or insolvency law, as now or in
the future amended (herein collectively called "Bankruptcy Laws"), or
an answer or other pleading admitting or failing to deny the material
allegations of such a petition or seeking, consenting to or acquiescing
in relief provided for under the Bankruptcy Laws;
(iii) make an assignment of all or a substantial part of its
property for the benefit of its creditors;
(iv) seek or consent to or acquiesce in the appointment of a
receiver, liquidator, custodian or trustee of it or for all or a
substantial part of its property;
(v) be finally adjudicated a bankrupt or insolvent;
(vi) be subject to the entry of a court order, which shall
not be vacated, set aside or stayed within 30 days from the date of
entry, appointing a receiver, liquidator, custodian or trustee of it or
for all or a substantial part of its property, or entering of an order
for relief pursuant to an involuntary case, or effecting an arrangement
in,
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bankruptcy or for a reorganization pursuant to the Bankruptcy Laws or
for any other judicial modification or alteration of the rights of
creditors; or
(vii) be subject to the assumption of custody or sequestration by a
court of competent jurisdiction of all or a substantial part of its
property, which custody or sequestration shall not be suspended or
terminated within 30 days from its inception.
8.2 Remedies on Default. When any Event of Default described in
paragraphs (a) through (h) of Section 8.1 has happened and is continuing, the
holder or holders of at least 25% in principal amount of the Notes then
outstanding may by notice to the Company declare the entire principal, together
with the premium set forth below, and all interest accrued on all Notes to be,
and such Notes shall thereupon become, forthwith due and payable, without any
presentment, demand, protest or other notice of any kind, all of which are
expressly waived. Notwithstanding the foregoing, when (i) any Event of Default
described in paragraphs (a) or (b) of Section 8.1 has happened and is
continuing, any holder may by notice to the Company declare the entire
principal, together with the premium set forth below, and all interest accrued
on the Notes then held by such holder to be, and such Notes shall thereupon
become, forthwith due and payable, without any presentment, demand, protest or
other notice of any kind, all of which are expressly waived and (ii) where any
Event of Default described in paragraph (i) of Section 8.1 has happened, then
all outstanding Notes shall immediately become due and payable without
presentment, demand or notice of any kind. Upon the Notes or any of them
becoming due and payable as aforesaid, the Company will forthwith pay to the
holders of such Notes the entire principal of and interest accrued on such
Notes, plus a premium in the event that the Reinvestment Yield shall, on the
Determination Date, be less than the interest rate payable on or in respect of
the Notes. Such premium shall equal (x) the aggregate present value of the
principal so accelerated and the aggregate present value of the interest which
would have been payable in respect of such principal absent such accelerated
payment, determined by discounting (quarterly on the basis of a 360-day year
composed of twelve 30-day months) each such amount utilizing an interest factor
equal to the Reinvestment Yield, less (y) the principal amount to be
accelerated.
8.3 Annulment of Acceleration of Notes. The provisions of Section 8.2
are subject to the condition that if the principal of and accrued interest on
the Notes have been declared immediately due and payable by reason of the
occurrence of any Event of Default described in paragraphs (a) through (h),
inclusive, of Section 8.1, the holder or holders of 66-2/3% in aggregate
principal amount of the Notes then outstanding may, by written instrument
furnished to the Company, rescind and annul such declaration and the
consequences thereof, provided that (i) at the time such declaration is annulled
and rescinded no judgment or decree has been entered for the payment of any
monies due pursuant to the Notes or this Agreement, (ii) all arrears of interest
upon all the Notes and all other sums payable under the Notes and under this
Agreement (except any principal, interest or premium on the Notes which has
become due and payable solely by reason of such declaration under Section 8.2)
shall have been duly paid and (iii) each and every other Event of Default shall
have been cured or waived; and provided further, that no such rescission and
annulment shall extend to or affect any subsequent default or Event of Default
or impair any right consequent thereto.
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<PAGE> 36
8.4 Other Remedies. Subject to the provisions of Section 8.3, if any
Event of Default shall be continuing, any holder of Notes may enforce its rights
by suit in equity, by action at law, or by any other appropriate proceedings,
whether for the specific performance (to the extent permitted by law) of any
covenant or agreement contained in this Agreement or in the Notes or in aid of
the exercise of any power granted in this Agreement, and may enforce the payment
of any Note held by such holder and any of its other legal or equitable rights.
8.5 Conduct No Waiver; Collection Expenses. No course of dealing on the
part of any holder of Notes, nor any delay or failure on the part of any holder
of Notes to exercise any of its rights, shall operate as a waiver of such rights
or otherwise prejudice such holder's rights, powers and remedies. If the Company
fails to pay, when due, the principal of, or the interest on, any Note, or fails
to comply with any other provision of this Agreement, the Company will pay to
each holder, to the extent permitted by law, on demand, such further amounts as
shall be sufficient to cover the reasonable cost and expenses, including but not
limited to reasonable attorneys' fees, incurred by such holders of the Notes in
collecting any sums due on the Notes or in otherwise enforcing any of their
rights.
8.6 Remedies Cumulative. No right or remedy conferred upon or reserved
to any holder of Notes under this Agreement is intended to be exclusive of any
other right or remedy, and every right and remedy shall be cumulative and in
addition to every other right or remedy given under this Agreement or now or
hereafter existing under any applicable law. Every right and remedy given by
this Agreement or by applicable law to any holder of Notes may be exercised from
time to time and as often as may be deemed expedient by such holder, as the case
may be.
8.7 Notice of Default. With respect to Events of Default or claimed
defaults, the Company will give the following notices:
(a) The Company promptly will furnish to each holder of a Note notice
in writing by registered or certified mail, return receipt requested, of the
occurrence of an Event of Default or a Default. Such notice shall specify the
nature of such default, the period of existence thereof and what action the
Company has taken or is taking or proposes to take with respect thereto.
(b) If the holder of any Note or of any other evidence of Indebtedness
of the Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default, the Company will forthwith give written notice to
the extent of the Company's knowledge thereof to each holder of the then
outstanding Notes, describing the notice or action and the nature of the claimed
default.
Section 9. AMENDMENTS, WAIVERS AND CONSENTS
9.1 Matters Subject to Modification. Any term, covenant, agreement or
condition of this Agreement may, with the consent of the Company, be amended, or
compliance therewith
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may be waived (either generally or in a particular instance and either
retroactively or prospectively), if the Company shall have obtained the consent
in writing of the holder or holders of at least 66-2/3% in aggregate principal
amount of outstanding Notes; provided, however, that, without the written
consent of the holder or holders of all of the Notes then outstanding, no such
waiver, modification, alteration or amendment shall be effective which will (i)
change the time of payment (including any required prepayment) of the principal
of or the interest on any Note, (ii) reduce the principal amount thereof or the
premium, if any, or reduce the rate of interest thereon, (iii) change any
provision of any instrument affecting the preferences between holders of the
Notes or between holders of the Notes and other creditors of the Company, or
(iv) change any of the provisions of Section 8.1, Section 8.2, Section 8.3 or
this Section 9.
For the purpose of determining whether holders of the requisite
principal amount of Notes have made or concurred in any waiver, consent,
approval, notice or other communication under this Agreement, Notes held in the
name of, or owned beneficially by, the Company, any Subsidiary or any Affiliate
thereof, shall not be deemed outstanding.
9.2 Solicitation of Holders of Notes. The Company will not solicit,
request or negotiate for or with respect to any proposed waiver or amendment of
any of the provisions of this Agreement or the Notes unless each holder of the
Notes (irrespective of the amount of Notes then owned by it) shall concurrently
be informed thereof by the Company and shall be afforded the opportunity of
considering the same and shall be supplied by the Company with sufficient
information to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any waiver or consent effected pursuant
to the provisions of this Section 9 shall be delivered by the Company to each
holder of outstanding Notes forthwith following the date on which the same shall
have been executed and delivered by the holder or holders of the requisite
percentage of outstanding Notes. The Company will not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any holder of the Notes as
consideration for or as an inducement to the entering into by any holder of the
Notes of any waiver or amendment of any of the terms and provisions of this
Agreement unless such remuneration is concurrently paid, on the same terms,
ratably to each holder of the then outstanding Notes.
9.3 Binding Effect. Any such amendment or waiver shall apply equally to
all the holders of the Notes and shall be binding upon them, upon each future
holder of any Note and upon the Company whether or not such Note shall have been
marked to indicate such amendment or waiver. No such amendment or waiver shall
extend to or affect any obligation not expressly amended or waived or impair any
right related thereto.
Section 10. FORM OF NOTES, REGISTRATION, TRANSFER, EXCHANGE AND REPLACEMENT
10.1 Form of Notes. The Notes initially delivered under this Agreement
will be in the form of fully registered Notes in the forms attached as EXHIBIT
A. The Notes are issuable only in
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fully registered form and in denominations of at least $1,000,000 (or the
remaining outstanding balance thereof, if less than $1,000,000).
10.2 Note Register. The Company shall cause to be kept at its principal
office a register (the "NOTE REGISTER") for the registration and transfer of the
Notes. The names and addresses of the holders of Notes, the transfer thereof and
the names and addresses of the transferees of the Notes shall be registered in
the Note Register. The Company may deem and treat the person in whose name a
Note is so registered as the holder and owner thereof for all purposes and shall
not be affected by any notice to the contrary, until due presentment of such
Note for registration of transfer as provided in this Section 10.
10.3 Issuance of New Notes upon Exchange or Transfer. Upon surrender
for exchange or registration of transfer of any Note at the office of the
Company designated for notices in accordance with Section 11.2, the Company
shall execute and deliver, at its expense, one or more new Notes of any
authorized denominations requested by the holder of the surrendered Note, each
dated the date to which interest has been paid on the Notes so surrendered (or,
if no interest has been paid, the date of such surrendered Note), but in the
same aggregate unpaid principal amount as such surrendered Note, and registered
in the name of such person or persons as shall be designated in writing by such
holder. Every Note surrendered for registration of transfer shall be duly
endorsed, or be accompanied by a written instrument of transfer duly executed,
by the holder of such Note or by his attorney duly authorized in writing. The
Company may condition its issuance of any new Note in connection with a transfer
by any Person on compliance by the transferee with the representations required
under Section 3.2, by Institutional Holders in compliance with Section 2.5 and
on the payment to the Company of a sum sufficient to cover any stamp tax or
other governmental charge imposed in respect of such transfer.
10.4 Replacement of Notes. Upon receipt of evidence satisfactory to the
Company of the loss, theft, mutilation or destruction of any Note, and in the
case of any such loss, theft or destruction upon delivery of a bond of indemnity
in such form and amount as shall be reasonably satisfactory to the Company or in
the event of such mutilation upon surrender and cancellation of the Note, the
Company, without charge to the holder thereof, will make and deliver a new Note,
of like tenor in lieu of such lost, stolen, destroyed or mutilated Note. If any
such lost, stolen or destroyed Note is owned by you or any other Institutional
Holder, then the affidavit of an authorized officer of such owner setting forth
the fact of loss, theft or destruction and of its ownership of the Note at the
time of such loss, theft or destruction shall be accepted as satisfactory
evidence thereof, and no further indemnity shall be required as a condition to
the execution and delivery of a new Note, other than a written agreement of such
owner (in form reasonably satisfactory to the Company) to indemnify the Company.
Section 11. MISCELLANEOUS
11.1 Expenses. Whether or not the purchase of Notes herein contemplated
shall be consummated, the Company agrees to pay directly all reasonable expenses
in connection with the preparation, execution and delivery of this Agreement and
the transactions contemplated by this
(34)
<PAGE> 39
Agreement, including, but not limited to, out-of-pocket expenses, filing fees of
Standard & Poor's Corporation in connection with obtaining a private placement
number, charges and disbursements of special counsel, photocopying and printing
costs and charges for shipping the Notes, adequately insured, to you at your
home office or at such other address as you may designate, and all similar
expenses (including the reasonable fees and expenses of counsel) relating to any
amendments, waivers or consents in connection with this Agreement or the Notes,
including, but not limited to, any such amendments, waivers or consents
resulting from any work-out, renegotiation or restructuring relating to the
performance by the Company of its obligations under this Agreement and the
Notes. The Company also agrees that it will pay and save you harmless against
any and all liability with respect to stamp and other documentary taxes, if any,
which may be payable, or which may be determined to be payable in connection
with the execution and delivery of this Agreement or the Notes (but not in
connection with a transfer of any Notes), whether or not any Notes are then
outstanding. The obligations of the Company under this Section 11.1 shall
survive the retirement of the Notes.
11.2 Notices. Except as otherwise expressly provided herein, all
communications provided for in this Agreement shall be in writing and delivered
or sent by registered or certified mail, return receipt requested, or by
overnight courier (i) if to you, to the address set forth below your name in
Schedule I, or to such other address as you may in writing designate, (ii) if to
any other holder of the Notes, to such address as the holder may designate in
writing to the Company, and (iii) if to the Company, to Casey's General Stores,
Inc., One Convenience Boulevard, Ankeny, Iowa 50021, Attention: Treasurer, or to
such other address as the Company may in writing designate.
11.3 Reproduction of Documents. This Agreement and all documents
relating hereto, including, without limitation, (i) consents, waivers and
modifications which may hereafter be executed, (ii) documents received by you at
the closing of the purchase of the Notes (except the Notes themselves), and
(iii) financial statements, certificates and other information previously or
hereafter furnished to you, may be reproduced by you by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process, and you may destroy any original document so reproduced. The Company
agrees and stipulates that any such reproduction which is legible shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by you in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence; provided that nothing herein contained shall
preclude the Company from objecting to the admission of any reproduction on the
basis that such reproduction is not accurate, has been altered or is otherwise
incomplete.
11.4 Successors and Assigns. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns.
11.5 Law Governing. This Agreement shall be governed by and construed
in accordance with the laws of the State of Iowa. No provision of this Agreement
may be waived, changed or modified, or the discharge thereof acknowledged,
orally, except by an agreement in
(35)
<PAGE> 40
writing signed by the party against whom the enforcement of any waiver, change,
modification or discharge is sought.
11.6 Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
11.7 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument, and it shall
not be necessary in making proof of this Agreement to produce or account for
more than one such counterpart or reproduction thereof permitted by Section
11.3.
11.8 Reliance on and Survival of Provisions. All covenants,
representations and warranties made by the Company herein and in any
certificates delivered pursuant to this Agreement, whether or not in connection
with a closing, (i) shall be deemed to have been relied upon by you,
notwithstanding any investigation heretofore or hereafter made by you or on your
behalf and (ii) shall survive the delivery of this Agreement and the Notes.
11.9 Confidential Information. For the purposes of this Section 11.9,
"CONFIDENTIAL INFORMATION" means information delivered to you by or on behalf of
the Company or any Subsidiary in connection with the transactions contemplated
by or otherwise pursuant to this Agreement that is proprietary in nature and
that was clearly marked or labeled or otherwise adequately identified when
received by you as being confidential information of the Company or such
Subsidiary, provided that such term does not include information that (a) was
publicly known or otherwise known to you prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission by you or any
person acting on your behalf, (c) otherwise becomes known to you other than
through disclosure by the Company or any Subsidiary or (d) constitutes financial
statements delivered to you under Section 6.6(e) that are otherwise publicly
available. You will maintain such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information of
third parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers, employees, agents,
attorneys and affiliates (to the extent such disclosure reasonably relates to
the administration of the investment represented by your Notes), (ii) your
financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 11.9, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note or any part
thereof or any participation therein (if such Person has agreed in writing prior
to its receipt of such Confidential Information to be bound by the provisions of
this Section 11.9), (v) any Person from which you offer to purchase any security
of the Company (if such Person has agreed in writing prior to its receipt of
such Confidential Information to be bound by the provisions of this Section
11.9), (vi) any federal or state regulatory authority having jurisdiction over
you, (vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access to
information about your investment portfolio or (viii) any other Person to which
such delivery or disclosure may be necessary or appropriate, (w) to effect
compliance with any law, rule, regulation or order applicable to you, (x) in
response
(36)
<PAGE> 41
to any subpoena or other legal process, (y) in connection with any litigation to
which you are a party or (z) if an Event of Default has occurred and is
continuing, to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under your Notes and this Agreement. Each
holder of a Note, by its acceptance of a Note, will be deemed to have agreed to
be bound by and to be entitled to the benefits of this Section 11.9 as though it
were a party to this Agreement. On reasonable request by the Company in
connection with the delivery to any holder of a Note of information required to
be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 11.9.
11.10 Integration and Severability. This Agreement embodies the entire
agreement and understanding between you and the Company, and supersedes all
prior agreements and understandings relating to the subject matter hereof. In
case any one or more of the provisions contained in this Agreement or in any
Note, or application thereof, shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained in this Agreement and in any Note, and any other application thereof,
shall not in any way be affected or impaired thereby.
(37)
<PAGE> 42
IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Agreement to be executed and delivered by their respective officer or officers
thereunto duly authorized.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
-----------------------------
Title: President/CEO
ATTEST:
By: /s/ John Harmon
-----------------------------
Title: Secretary/Treasurer
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ JoEllen J. Watts
-----------------------------
Title: Counsel
By: /s/ Clint Woods
-----------------------------
Title: Counsel
PRINCIPAL LIFE INSURANCE COMPANY, ON
BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS
By: Principal Capital Management, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ JoEllen J. Watts
-----------------------------
Title: Counsel
By: /s/ Clint Woods
-----------------------------
Title: Counsel
(38)
<PAGE> 43
COMMERCIAL UNION LIFE INSURANCE
COMPANY OF AMERICA, a Delaware
corporation
By: Principal Life Insurance Company,
an Iowa corporation,
its attorney-in-fact
By: /s/ JoEllen J. Watts
------------------------------
Title: Counsel
By: /s/ Clint Woods
------------------------------
Title: Counsel
AMERUS LIFE INSURANCE COMPANY
By: /s/ Roger D. Fors
------------------------------
Title:. Vice President Investment Management &
Research
By
------------------------------
Title:
----------------------------
AMERICAN INVESTORS LIFE
INSURANCE COMPANY
By: /s/ Roger D. Fors
------------------------------
Title: Vice President Investment Management &
Research
By:
------------------------------
Title:
----------------------------
TMG LIFE INSURANCE COMPANY
By: /s/ Constance L. Keller
------------------------------
Title: Director, Private Placement
By: /s/ Michael J. Steppe
------------------------------
Title: Senior Vice President
MODERN WOODMEN OF AMERICA
By: /s/ L. L. Schreiber
------------------------------
Title: Actuary
(39)
<PAGE> 44
AMERITAS LIFE INSURANCE CORP.
by Ameritas Investment Advisors, Inc. as Agent
By: /s/ Patrick J. Henry
---------------------------------
Title: Vice President-Fixed Income Securities
(40)
<PAGE> 45
SCHEDULE I
Principal Amount of Series A Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series A Notes
Principal Life Insurance Company $1,000,000
on behalf of one or more separate accounts
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by noon New York time by a
wire transfer of immediately available funds to:
Citibank New York
ABA No.: 021000089
To Credit Account No.: 36858201
For Further Credit to Principal Life - Dupont Separate
Account No.: 847958
OBI PFGSE (S) B0062159( ) Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(41)
<PAGE> 46
SCHEDULE I
Principal Amount of Series A Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series A Notes
Principal Life Insurance Company $4,000,000
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All notices with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
ABA No.: 073000228
7th and Walnut Streets
Des Moines, Iowa 50309
For credit to Principal Life Insurance Company
Account No.: 0000014752
OBI PFGSE (S) B0062159( )Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(42)
<PAGE> 47
SCHEDULE I
Principal Amount of Series B Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series B Notes
Principal Life Insurance Company $3,000,000
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
ABA No. 073 000 228
For credit to Principal Life Insurance Company
Account No.: 0000014752
OBI PFGSE (S) B0062160() Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(43)
<PAGE> 48
SCHEDULE I
Principal Amount of Series B Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series B Notes
Principal Life Insurance Company $2,000,000
on behalf of one or more Separate Accounts
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
ABA No.: 073000228
For credit to Principal Life Insurance Company
Account No.: 0000032395
OBI PFGSE (S) B0062160() Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(44)
<PAGE> 49
SCHEDULE I
Principal Amount of Series C Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series C Notes
TMG Life Insurance Company $3,000,000
c/o The Mutual Group (U.S.), Inc.
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Attention: Connie Keller
Phone: 414/641-4022
Facsimile: 414/641-4055
All notices with respect to the Notes, except with respect to payment should be
sent to:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Telephone: 414/641-4027
Facsimile: 414/641-4055
All notices of payment with respect to the Notes should be sent to:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
Attn: Tamie Greenwood
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Telephone: 414/641-4027
Facsimile: 414/641-4055
(45)
<PAGE> 50
SCHEDULE I
Principal Amount of Series C Notes to be Purchased (continued)
All payments with respect to the Notes are to be by wire transfer of immediately
available funds to:
Norwest Bank Minnesota, N.A.
ABA No.: 091000019
Account No.: 0000840245
Trust Wire Clearing (Must be on line 2)
FFC:I.C. 13097100 Casey's General Stores PPN:
P= I=
End Balance =
Name of Nominee in which Notes are to be issued: TMG Life Insurance Company
Taxpayer I.D. No.: 45-0208990
(46)
<PAGE> 51
SCHEDULE I
Principal Amount of Series C Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series C Notes
Commercial Union Life Insurance
Company of America $1,500,000
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment should be
sent to:
Commercial Union Life Insurance
Company of America
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn: Investment-Securities-Jon Davidson
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices of payment with respect to the Notes should be sent to:
Commercial Union Life Insurance
Company of America
c/o Principal Capital Management, LLC
711 High Street
Des Moines, Iowa 50392-0960
Attn: Investment Accounting-Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
(47)
<PAGE> 52
All payments with respect to the Notes are to be made by noon New York time by
wire transfer of immediately available funds to:
First Union (Philadelphia)
ABA No.: 031201467
1500 Market Street
Philadelphia, PA 19102-2509
Attn: Joe Aman
DDA 5000012398064 for further credit to Account No. 060073-02-4
(Commercial Union Life Insurance Company of America/Principal)
OBI PFGSE (S) B0062161( ) Casey's General Store
Tax Identification No.: 04-2235236
Deliver Notes to Douglas A. Drees at Address of Purchaser
(48)
<PAGE> 53
SCHEDULE I
Principal Amount of Series C Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series C Notes
AmerUs Life Insurance Company $5,000,000
c/o AmerUs Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309
All notices with respect to the Notes, except with respect to payment, should be
sent to:
c/o AmerUs Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309
Attn.: Steve Sweeney
Telephone: 515/362-3542
Facsimile: 515/283-3434
All notices with respect to payments on the Notes should be sent to:
c/o AmerUs Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309
Att.: Dan Owens
Telephone: 515/283-3431
Facsimile: 515/283-3434
The Notes to be delivered to:
Bankers Trust Company
16 Wall Street, 4th Floor
Window 44
FAO: AmerUs Life Insurance Co., A/C #097446
New York, New York 10015
Richard McCormack 212/618-2230
Lorraine Squires 212/618-2200
(49)
<PAGE> 54
SCHEDULE I
Principal Amount of Series C Notes to be Purchased (continued)
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Bankers Trust Company
New York, New York
ABA #021001033
Credit Account #99911145
For Further Credit Account #097446
AmerUs Life Insurance Co.
Ref: Issue name, coupon, maturity date
AmerUs Life Insurance Co. Tax ID #42-0175020
Register bonds in the name of SALKELD & CO. (Bankers Trust's nominee name)
Salkeld & Co. Tax ID #13-6065491
(50)
<PAGE> 55
SCHEDULE I
Principal Amount of Series C Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series C Notes
Modern Woodmen of America $7,000,000
All payments with respect to the Note are to be by wire transfer of immediately
available funds to:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
ABA No. 071-000-152
Account Name: Modern Woodmen of America
Account No. 84352
Each such wire transfer shall set forth the name of the Company, the full title
(including the applicable coupon rate and final maturity date) of the Notes, a
reference to PPN NO. 147528 C* 2 and the due date and application (as among
principal, premium and interest) of the payment being made.
All notices with respect to the Note should be sent to:
Modern Woodmen of America
Attn: Investment Accounting Department
1701 First Avenue
Rock Island, Illinois 61201
All notices with respect to the Note, except with respect to payment should be
sent to:
Modern Woodmen of America
Attn: Investment Department
1701 First Avenue
Rock Island, IL 61201
(51)
<PAGE> 56
SCHEDULE I
Principal Amount of Series C Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series C Notes
Ameritas Life Insurance Corp. $3,500,000
All notices with respect to the Note, with respect to payment and written
confirmations of such wire transfers should be sent to:
Ameritas Life Insurance Corp.
5900 "O" Street
Lincoln, Nebraska 68510-2234
Attn.: James Mikus
Facsimile: 402/467-6970
All notices with respect to the Note should be sent to:
Ameritas Life Insurance Corp.
5900 "O" Street
Lincoln, Nebraska 68510-2234
Attn.: James Mikus
All payments with respect to the Note are to be by wire transfer of immediately
available funds to:
U.S. Bank
ABA #104-000-029
Ameritas Life Insurance Corp.
Account No.: 1-494-0070-0188
Re: Description of Note; Principal & Interest Breakdown with sufficient
information to identify the source and application of such funds.
(52)
<PAGE> 57
SCHEDULE I
Principal Amount of Series D Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series D Notes
Principal Life Insurance Company $2,000,000
on behalf of one or more Separate Accounts
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
ABA No. 073000228
For credit to Principal Life Insurance Company
Account No.: 0000032395
OBI PFGSE (S) B0062162( ) Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(53)
<PAGE> 58
SCHEDULE I
Principal Amount of Series D Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series D Notes
Principal Life Insurance Company $4,000,000
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
ABA No. 073000228
For credit to: Principal Life Insurance Company
Account No.: 0000014752
OBI PFGSE (S) B0062162( ) Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(54)
<PAGE> 59
SCHEDULE I
Principal Amount of Series D Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series D Notes
Principal Life Insurance Company $1,000,000
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
ABA No. 073000228
For credit to Principal Life Insurance Company
Account No.: 0000014752
OBI PFGSE (S) B0062162( ) Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(55)
<PAGE> 60
SCHEDULE I
Principal Amount of Series E Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series E Notes
Principal Life Insurance Company $3,000,000
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
ABA No. 073 00228
For credit to: Principal Life Insurance Company
Account No.: 0000014752
OBI PFGSE (S) B0062163( ) Casey's General Store
Tax ID #42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(56)
<PAGE> 61
SCHEDULE I
Principal Amount of Series E Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series E Notes
American Investors Life Insurance Company $5,000,000
c/o AmerUs Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309
All notices with respect to the Notes, except with respect to payment, should be
sent to:
c/o AmerUs Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309
Attn.: Steve Sweeney
Telephone: 515/362-3542
Facsimile: 515/283-3434
All notices with respect to payment on the Notes should be sent to:
c/o AmerUs Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309
Attn.: Dan Owens
Telephone: 515/283-3431
Facsimile: 515/283-3434
The Notes to be delivered to:
Bankers Trust Company
16 Wall Street, 4th Floor
Window 44
FAO: American Investors Life Insurance Co., A/C #093398
New York, New York 10015
Richard McCormack - 212/618-2230
Lorraine Squires - 212/618-2200
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
(57)
<PAGE> 62
Bankers Trust Company
New York, New York
ABA #021001033
Credit Account #99911145
For Further Credit Account #093398
American Investors Life Insurance Co.
Re: Issue name, coupon, maturity date
(58)
<PAGE> 63
SCHEDULE I
Principal Amount of Series E Notes to be Purchased (continued)
American Investors Life Insurance Co. Tax ID #48-0696320
Register bonds in the name of SALKELD & CO. (Bankers Trust's nominee name)
Salkeld & Co. Tax ID #13-6065491
(59)
<PAGE> 64
SCHEDULE I
Principal Amount of Series F Notes to be Purchased
Name and Address of Purchaser Principal Amount of
Series F Notes
Principal Life Insurance Company $5,000,000
on behalf of one or more Separate Accounts
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
All notices with respect to the Notes, except with respect to payment, should be
sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Securities
Facsimile: 515/248-2490
Confirmation: 515/248-3495
All notices with respect to payments on the Notes should be sent to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Facsimile: 515/248-2643
Confirmation: 515/247-0689
All payments with respect to the Notes are to be made by a wire transfer of
immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
ABA No. 073000228
For credit to Principal Life Insurance Company
Account No.: 0000032395
OBI PFGSE (S) B0062164( ) Casey's General Store
Tax Identification No.: 42-0127290
Deliver Notes to Douglas A. Drees at Address of Purchaser
(60)
- --------------------------------------------------------------------------------
ANNEX I
<PAGE> 65
SUBSIDIARIES
<TABLE>
<CAPTION>
Percentage of
Jurisdiction Voting Stock
Name of of Qualified to owned by
Subsidiary Incorporation do Business in Company
- ---------- ------------- -------------- -------------
<S> <C> <C> <C>
Casey's Services Iowa Iowa, Illinois, 100%
Company Missouri,
Kansas, Minnesota,
Wisconsin, Indiana,
South Dakota,
Nebraska
Casey's Marketing Iowa Iowa, Missouri, 100%
Company Wisconsin,
Indiana, Illinois
Casey's East Iowa Iowa, Indiana 100%
Central, Inc.*
Casey's Enterprises, Iowa Iowa, Indiana 100%
LLC*
</TABLE>
* Expected to become effective as of May 1, 1999
I-1
<PAGE> 66
ANNEX II
EXISTING INDEBTEDNESS*
<TABLE>
<CAPTION>
PAYABLE TO: AMOUNT
<S> <C>
Donald Nielsin $ 43,399.13
McCormick 40,000.00
Leasetec Corp. 2,813,093.18
Nanco 22,328.01
Bank Service Department 31,267.89
Walthal 72,465.43
Walthal 67,461.82
Haynes 16,992.67
Haynes 16,992.67
Haynes 16,992.67
Edel-Gerlock 24,711.64
Starburst, Inc. 44,878.18
Starburst, Inc. 40,202.33
Four M. Dev. 45,531.98
Hamville, Inc. 46,881.93
Hamville, Inc. 44,043.24
Hamville, Inc. 46,881.93
Canyon Co. 47,799.28
Wagner 55,298.39
Wagner 54,549.94
Carsrud, Inc. 67,333.25
Carsrud, Inc. 67,333.25
Carsrud, Inc. 67,333.25
Neymeyer 47,099.13
Stone 169,346.12
Huff 84,533.82
Huff 105,667.24
Huff 105,667.24
Huff 105,667.24
Jungman Oil 76,132.94
West Bend Serv 97,373.76
J. & V. Klemm 92,461.65
Buckwood, Inc. 112,290.47
Jon Proehl 112,290.47
Jon Proehl 97,414.36
Jon Proehl 100,552.83
J. & y's Ltd. 120,663.24
J. & K. Cahail 120,663.24
J. & K. Cahail 120,663.24
</TABLE>
<PAGE> 67
<TABLE>
<S> <C>
J. & K. Cahail 120,663.24
J. & K. Cahail 60,331.74
J. & K. Cahail 120,663.24
Doco Ltd. 118,848.65
Donald Peck 108,489.95
Demico Corp. 98,766.42
Demico Corp. 109,815.69
Sully Ent. 83,156.66
Logli 53,241.76
Principal Financial 10,434,990.82
7.70% Senior Notes 18,000,000.00
7.38% Senior Notes 30,000,000.00
Jaak, Inc. 61,869.15
6.55% Senior Notes 18,000,000.00
-----------------
$82,833,096.37
</TABLE>
* As of March 31, 1999
<PAGE> 68
ANNEX III
Description of Liens*
<TABLE>
<CAPTION>
Payable To: Balance: Property Address
- ----------- -------- ----------------
<S> <C> <C>
DONALD NIELSEN $43,399.13 339 S. LINCOLN
WEST POINT, NE 68788
PRINCIPAL FINANCIAL $10,434,990.82 CORPORATE HEADQUARTERS
ANKENY, IOWA 50021
--------------
$10,478,389.95
</TABLE>
*As of March 31, 1999
<PAGE> 69
INSURANCE SUMMARY
PREPARED
FOR
CASEY'S GENERAL STORES, INC.
Presented By:
Roger A. Hoyt, CPCU, ARM
Gary Nordquist, CPCU
Account Executives
LaMair-Mulock-Condon Co.
January 1999
This is a general description of the policies. It is not intended to replace the
insurance contract. Please refer to the actual policy for contractual wording
and coverage provisions. In the event of any differences or ambiguities between
the above and the policy wording, the policy wording shall prevail.
<PAGE> 70
Self-Insurance
I. Workers' Compensation
- As set forth in this Annex IV, the Company self-insures its Workers'
Compensation coverage for the states of Iowa, Missouri, and Kansas.
Iowa has a $350,000 retention level and both Missouri and Kansas have
a $275,000 retention level. Excess insurance has been purchased for
each state over those retention levels.
II. Property Coverage
- Outside of the scheduled property locations described in this
Annex IV, all Company locations are self-insured.
III. Physical Damage
- All of the physical damage to the Company's automobile and truck fleet
is self-insured.
Insurance Summary
Attached
VI-1
<PAGE> 71
CASEY'S GENERAL STORES, INC.
ACCOUNT PERSONNEL
<TABLE>
<CAPTION>
ACCOUNT EXECUTIVE DIRECT DIAL NUMBER E-MAIL ADDRESS
----------------- ------------------ --------------
<S> <C> <C>
Roger A. Hoyt, CPCU, ARM 237-0117 [email protected]
Gary M. Nordquist, CPCU, ARM 237-0123 [email protected]
ACCOUNT MANAGER
---------------
Pam Baker 237-0167 [email protected]
ACCOUNT COORDINATOR
-------------------
Lori Godbey, AAM 237-0114 [email protected]
CLAIMS
------
Markie Lamer, AIC 237-0108 [email protected]
CLAIMS SPECIALIST
-----------------
Doug Eckermann 237-0153 [email protected]
LOSS CONTROL SERVICES
---------------------
Greg D. Sieck, ALCM 237-0147
ACCOUNTING
----------
Amy Kuennen 237-0130 [email protected]
BOND
----
Joyce Herbert, AFSB 237-0103 [email protected]
Nancy Schwarz 237-0109 [email protected]
Melissa Evans 237-0111 [email protected]
</TABLE>
(515) 244-0166
NATIONAL WATS (800) 677-1529
FAX (515) 244-9535
HTTP://WWW.LMCINS.COM
<PAGE> 72
CASEY'S GENERAL STORES, INC.
NAMED INSUREDS
1. Casey's General Stores, Inc.
2. Casey's Services Company
3. Casey's Marketing Company
4. Casey's General Stores, Inc. - Construction Division and Consolidated
Building Systems, Inc.
5. Broadway Distributing Co., A Partnership
6. Tri-State Stores, Ltd.
7. Impact Stores Corp.
8. Centurion Sales Company, Inc.
9. Casey's Lease Plan Company, A Partnership
10. Amended and Restated Casey's General Stores, Inc. Employee Profit
Sharing and Stock Ownership Plan & Trust
11. The Named Insured includes all subsidiaries, affiliated, associated,
controlled or allied companies, corporation or firms as now or
hereafter constituted for which the Named Insured has responsibility
for placing insurance and for which similar coverage is not otherwise
more specifically provided. GL - AL - WC - Aviation - Lead UL
ADDITIONAL INSUREDS
See attached list.
MORTGAGEES
See attached list.
LOSS PAYEES
See attached list.
<PAGE> 73
CASEY'S GENERAL STORES, INC.
REAL & PERSONAL PROPERTY
INSURANCE CO: Federal Insurance Co. (Chubb) POLICY PERIOD: 7-1-98/99
POLICY NO: 50514
PREMISES INSURED
Per attached schedule - Retail Stores (Items 6 through 16) on schedule are
subject to a $250,000 Deductible. All other retail stores are self-insured.
PROPERTY COVERED
Real & Personal Property per the attached schedule. Excludes underground tanks
and their contents. Refer to policy for additional property excluded.
AMOUNT OF INSURANCE
Per attached statement of values
Blanket Loss Limit per occurrence - $32,552,226
SUB-LIMITS
Boiler and Machinery - $10,000,000. Property Damage and Time Element Combined.
Vehicle Property Damage - $4,500,000 On Premises
Flood - $10,000,000 Per Occurrence and Aggregate - Loc. 1 & 2 - Endt. #3
Flood - $1,000,000 Per Occurrence and Aggregate - Loc. 3
Earthquake - $10,000,000 Per Occurrence and Aggregate - Loc. 1 & 2 - Endt. #2
Earthquake - $1,000,000 Per Occurrence and Aggregate - Loc. 3
Newly Acquired Property - $1,000,000 Real Property 60 Days Reporting
$ 250,000 Personal Property
Unscheduled Location - $250,000 30 Days Reporting
Transit - $100,000 Per Unit/$250,000 Per Occurrence. $1,000 in custody
salespeople or shipped by U.S. Mail - Registered Mail Only
Exhibition Floater - $100,000
Extra Expense - $1,000,000* Ankeny Only - 50% Monthly Limitation
$ 50,000 All Other
Accounts Receivable - $1,000,000
Valuable Papers - $1,000,000
Builders Risk (Course of Construction) - $500,000 Any one site. $100,000 In
Transit - Endt. #1
$500,000 Aggregate Per Occurrence
Debris Removal
Scheduled Locations - 20% of Loss + Deductible + $250,000 Maximum
180 Day Reporting Requirement
Unscheduled Locations - $25,000
Pollution Clean Up - $25,000 Per Occ./$50,000 Agg - 180 Day Reporting
Requirement
Consequential Loss/Service Interruption - $50,000 Direct Damage
Water & Power only $25,000 Extra Expense Inc. 1,000,000
for Loc 1 & 2
$1,500,000 Direct Damage at Loc. 1& 2
Excluding Boiler & Machinery
Breakdown
Fire Department Service Charges - $10,000
Inventory or Appraisal - $10,000
International Air Shipments - $25,000
*Correction ordered
<PAGE> 74
CASEY'S GENERAL STORES, INC.
REAL & PERSONAL PROPERTY (CONT.)
PERILS INSURED
All Risk - Subject to exclusions, terms & conditions
COINSURANCE CLAUSE
N/A
DEDUCTIBLE - ENDT. # 5
Loc. 1-5 and Loc. 17 $ 10,000
Other Locations - Retail Stores $ 250,000
Flood & Earthquake $ 25,000
Transit & Exhibition Floater $ 5,000
Shipments via Registered Mail $ 500
Builders Risk $ 10,000
VALUATION
EDP Hardware - Replacement Cost
EDP Software - Reproduction Cost
Valuable Papers - Reproduction Cost
Real Property - Replacement Cost Including Building Ordinance Coverage Finished
Stock - Selling Price Personal Property of Others - Legal Liability plus your
cost of labor & material All Other - Replacement Cost
TERMS & CONDITIONS
1. Agreed Amount Included in Form
2. Unintentional Errors and Omissions - Included in Form
3. 90 Day Notice of Cancellation - Endt. #7
4. Broad Form Named Insured Endorsement - Endt. #11
5. Brands & Labels - Endt. #8
6. Boiler & Machinery Perils Included - Endt. #10
7. Additional Property Exclusions - Endt. #6
NOTED CONDITIONS
Non-Reporting
Contractors Equipment Exclusion - Endt. #6
Liability of Motor Carrier Exclusion - Endt. #6
Warehousemen's Liability - Endt. #6
Inflatable structure and their contents excluded - Endt. #6
Underground Tanks and their contents excluded - Endt. #6
Note Vacancy Provisions - No coverage for freezing or leakage if heat is not
maintained. No coverage for vandalism or theft if a burglary alarm system is not
maintained.
Refer to policy for further terms, conditions, exclusions & limitations.
<PAGE> 75
CASEY'S GENERAL STORES, INC.
FINE ARTS
INSURANCE CO: Federal Insurance Co. (Chubb) POLICY PERIOD: 07-01-98/99
POLICY #: 50514
PREMISES INSURED
Anywhere within coverage territory.
TERRITORY
Anywhere within or in transit within & between, the continental limits of the
United States of America, Hawaii, Puerto Rico and Canada.
PROPERTY COVERED
Scheduled Fine Arts
AMOUNT OF INSURANCE
Per attached schedule
PERILS INSURED
Risk of Direct Physical Loss subject to policy terms, conditions & exclusions.
DEDUCTIBLE
$2,500
VALUATION
Agreed Value Per Schedule
COINSURANCE
Nil
<PAGE> 76
CASEY'S GENERAL STORES, INC.
GENERAL LIABILITY
INSURANCE CO: Employers Mutual Casualty Co. POLICY PERIOD: 7-1-98/99
<TABLE>
<CAPTION>
LIMITS OF LIABILITY LIMITS*
- ------------------- -------
<S> <C>
A) Bodily Injury and Property Damage $ 750,000 Per Occurrence
B) Personal Injury & Advertising Injury $ 750,000 Per Person
C) Medical Payments $ 5,000 Per Person
D) Fire Legal $ 750,000 Per Fire
E) General Aggregate on A, B, C & D $ 1,750,000
F) Products & Completed Operations
Hazard Aggregate $ 1,750,000
</TABLE>
* Limits are excess of $250,000 SIR
SELF-INSURED RETENTION
<TABLE>
<S> <C>
$ 250,000 Per Occurrence
$ 250,000 Each Person - Advertising/Personal Injury
$ 5,000,000 Aggregate Retention Combined with Auto Liability & Workers' Compensation
(Adjustable based on 4.7% of W.C. Payroll - $111,180,581 Estimated payroll)
$ 250,000 Each loss - Day Care Endorsement
</TABLE>
SIR is satisfied by damages, additional payments & legal expenses
DEFENSE COST
Right, Not Duty - Unless EMC believes Total Damages, Additional Payments and
Legal Expenses are > than $250,000 then Right and Duty.
In addition to Limits
Satisfy SIR
No Pro-Rating
SETTLEMENT AUTHORITY
1. Casey's Permission Required for all Settlements and Expenses < than
$250,000 if EMC believes potential Total Injury & Damage amount will not
exceed the SIR.
2. EMC to consult with Casey's prior to settling any suit > than $250,000.
COVERAGES
Premises Operations
Independent Contractors
Products & Completed Operations
Liquor Liability
<PAGE> 77
CASEY'S GENERAL STORES, INC.
GENERAL LIABILITY (CONT.)
SPECIAL CONDITIONS
1. General Aggregate Applies Per Location
2. Blanket Additional Insureds
3. Fellow Employee - Managers & Supervisors and/or Executive Officers -
BI & PI
4. Employment Related Practices Exclusion
5. Engineer's Professional Liability Endorsement
6. Knowledge of Occurrence
7. Unintentional Failure to Disclose Hazards - Included in General
Conditions
8. 90 Day Notice of Cancellation
9. Extension of Personal Injury Liability
10. Products / Completed Operations Hazard Redefined (Products on
Premises)
11. Watercraft Endorsement - Owned Watercraft < than 50'
12. Broad Form Named Insured
13. Amendment of Bodily Injury Definition
14. Volunteer Workers included as Insured Persons
15. Misdelivery of Liquid Products Liability
16. Aggregate Deductible - Combined Coverages
17. Liquor Liability Endorsement
18. Nuclear Energy Liability Exclusion
19. Asbestos Exclusion
20. Contractual Liability - Railroads
21. Amendment of Pollution Exclusion - Exception for Building Heating
Equipment
22. Amendment of Other Insurance Condition (Occurrence Version)
23. Day Care Sexual, Physical, Mental or Emotional Abuse or Molestation
Liability (with Self Insured Retention)
24. Pollution Exclusion Amendment - for damage caused by gasoline while
being dispensed from a gas pump by a customer
PREMIUM BASIS
Composite Rating Applies 119.0052 Rate per # of Stores
$ 951 # of Stores
$ 113,174 Premium
Refer to policy for further Terms, Conditions, Exclusion & Limitations.
<PAGE> 78
CASEY'S GENERAL STORES, INC.
AUTOMOBILE
INSURANCE CO: Employers Mutual Casualty Co. POLICY PERIOD: 7-1-98/99
LIMITS OF LIABILITY
Bodily Injury and $ 1,000,000 Each Occurrence
Property Damage Combined Single Limit
PIP Statutory
Medical Payments $ 5,000 Each Person
Uninsured/Underinsured Motorist
$ 1,000,000 Each Accident
Comprehensive No Coverage
Collision No Coverage
DEDUCTIBLE
1) $250,000 Each Accident
2) $5,000,000 Aggregate Retention Combined with General Liability &
Workers' Compensation
3) Adjustable based on 4.7% of W.C. Payroll - $111,180,581 Estimated Payroll.
4) Policy Limits are Reduced by Deductible Payments. Deductible Payments for
Additional Payments will not Reduce Policy Limits.
DEFENSE COSTS
Satisfy Deductible
Provided in Addition to Limit
SPECIAL CONDITIONS
1) Hired and Non-Owned Auto Coverage - No Coverage for Hired Auto
Physical Damage
2) Fellow Employee Exclusion Deleted
3) Pollution Liability Broadened Coverage for Owned Autos
4) Additional Insured - UNO-Ven Company
5) 90 Day Notice of Cancellation
* 6) Executive Officers as Insureds
7) Prejudgment Interest
8) Knowledge of Occurrence
9) Unintentional Failure to Disclose Hazards - Included in General
Conditions
10) Broad Form Named Insured
12) Aggregate Deductible - combined coverages
13) Additional Insured - Lessor
14) Employees As Insureds
15) MCS 90 Endorsement
* Employers indicates this is included in the coverage as written. Ordered
clarification.
<PAGE> 79
CASEY'S GENERAL STORES, INC.
AUTOMOBILE (CONT.)
PREMIUM BASIS
Composite Rating Applies - 619.5952/Power Unit - 378 Power Units -
$54,252 Premium
.7684 Deductible Credit Factor
FILLINGS
MSC - 90
Form F - Casey's Services Company: Kansas, Minnesota, Nebraska
Casey's General Services, Inc.: Nebraska
Casey's Marketing Company: Nebraska
Refer to policy for further terms, conditions, exclusions & limitations.
<PAGE> 80
CASEY'S GENERAL STORES, INC.
WORKERS' COMPENSATION
INSURANCE CO: Employers Mutual Casualty Co. POLICY PERIOD: 7-1-98/99
COVERAGE A
Statutory - In the states of IL, IN, KS, MN, MO, NE & SD
COVERAGE B - EMPLOYER'S LIABILITY
$ 1,000,000 Each Accident
$ 1,000,000 Disease - Policy Limit
$ 1,000,000 Disease - Each Employee
EXPERIENCE MODIFICATION
1.49 -1998 Final
ENDORSEMENTS
Other States Insurance: All states except: ME, NV, ND, OH, WA, WY, IA, KS, MO,
and WI
Limited Foreign Coverage Endorsement - $5,000 Repatriation Expense
Notification of Change in Ownership Endorsement
USL&HW
Voluntary Comp.
Broad Form Named Insured Endorsement
90 Days Notice of Cancellation
Ohio Employers Liability Endorsement
Stop Gap Employers Liability - NV, ND, WA, WV, & WY Knowledge of Occurrence
Deletion of Employers Liability Exclusion (In Stop Gap EL endorsement) for
members of Flying Crew
Aggregate Deductible - Combined Coverages
Deductible Endorsement
Designated Workplaces Exclusion - Iowa, Wisconsin
Qualified Self-Insurer Exclusion Endorsement - IA
PREMIUM BASIS
Per the attached schedule
DEDUCTIBLE
$ 350,000 Each Occurrence
$ 350,000 Each Claim for Disease
$ 5,000,000 Aggregate Retention Combined with Auto Liability & General
Liability (Adjustable based on 4.7% of W.C. Payroll -
111,180,581 Estimated payroll)
Deductible is applicable to Claim Settlement & Allocated Loss Adjustment
Expense. Deductible reduces Employers Liability limits - Damages only - not
ALAE.
Refer to policy for further terms, conditions, exclusions & limitations.
<PAGE> 81
CASEY'S GENERAL STORES, INC.
WORKERS' COMPENSATION SCHEDULE
<TABLE>
<CAPTION>
CLASSIFICATION CLASS CODE PAYROLL
-------------- ---------- -------
ILLINOIS
--------
<S> <C> <C>
Electric Wiring - Within Building & Drivers 5190 $ 348,242
Contractor-Executive Supervisor Construction Superintendent 5606 $ 155,000
Drivers, Chauffeurs and their Helpers Noc 7380 $ 745,087
Grocery Dealer - Retail & D 8006 $ 22,407,197
Salespersons - Outside 8742 $ 1,170,452
INDIANA
-------
Grocery Dealer - Retail & D 8006 $ 1,338,332
Salespersons - Outside 8742 $ 33,983
KANSAS
------
Electric Wiring - Within Building & Drivers 5190 $ 110,972
Drivers, Chauffeurs and their Helpers Noc 7380 $ 190,826
Grocery Dealer - Retail & D 8006 $ 7,670,862
Salespersons - Outside 8742 $ 428,277
MINNESOTA
---------
Electric Wiring - Within Building & Drivers 5190 $ 72,421
Drivers, Chauffeurs and their Helpers Noc 7380 $ 75,000
Grocery Dealer - Retail & D 8006 $ 4,536,925
Salespersons - Outside 8742 $ 278,159
MISSOURI
--------
Grocery Dealer - Retail & D 8006 $ 18,848,016
Salespersons - Outside 8742 $ 1,249,276
Contractor-Exec Supervisor Construction 5606 $ 121,107
Superintendent
Electric Wiring - Within Building & Drivers 5190 $ 415,100
Drivers, Chauffeurs and their Helpers Noc 7380 $ 878,186
</TABLE>
<PAGE> 82
CASEY'S GENERAL STORES, INC.
WORKERS' COMPENSATION SCHEDULE (CONT.)
<TABLE>
<CAPTION>
NEBRASKA
--------
<S> <C> <C>
Drivers, Chauffeurs and their Helpers Noc 7380 $ 165,127
Grocery Dealer - Retail & D 8006 $ 4,366,104
Salespersons - Outside 8742 $ 220,280
Electric Wiring - Within Building & Drivers 5190 $ 64,206
SOUTH DAKOTA
------------
Electric Wiring - Within Building & Drivers 5190 $ 41,236
Grocery Dealer - Retail & D 8006 $ 1,827,529
Salespersons - Outside 8742 $ 112,677
</TABLE>
<PAGE> 83
CASEY'S GENERAL STORES, INC.
WISCONSIN WORKERS' COMPENSATION
INSURANCE CO: Employers Mutual Casualty Co. POLICY PERIOD: 7-1-98/99
COVERAGE A
Statutory - In the state of - Wisconsin
COVERAGE B
$ 1,000,000 Each Accident
$ 1,000,000 Disease - Policy Limit
$ 1,000,000 Disease - Each Employee
EXPERIENCE MODIFICATION
1.49 1998 Final
ENDORSEMENTS
Foreign Coverage Endorsement
Notification of Change in Ownership Endorsement
USL&HW
Voluntary Comp.
Broad Form Named Insured Endorsement
90 Days Notice of Cancellation
Knowledge of Occurrence*
Designated Workplaces Exclusion - IA, KS, MO, IL, IN, MN, NE, SD Other States
Coverage Exclusion
PREMIUM BASIS
<TABLE>
<CAPTION>
Classification Class Code Payroll
- -------------- ---------- -------
<S> <C> <C>
Drivers, Chauffeurs & their Helpers NOC 7380 If Any
Store - Grocery Retail 8006 $702,000
Salespersons - Outside 8742 $ 48,000
</TABLE>
DEDUCTIBLE
None.
Refer to policy for further terms, conditions, exclusions & limitations.
*Endorsement ordered.
<PAGE> 84
CASEY'S GENERAL STORES, INC.
EXCESS WORKERS' COMPENSATION
INSURANCE CO: Employers Mutual Casualty Co. POLICY PERIOD: 7-1-98/99
LIMITS OF LIABILITY
Workers' Compensation - Statutory
Employers' Liability - $650,000 Each Accident
$650,000 Disease, each employee
$650,000 Aggregate
SELF-INSURED RETENTION
Specific Retention - Iowa - Each Accident - $350,000
Each Employee - Disease $350,000
Aggregate Retention combined with General Liability, Auto Liability and Workers'
Compensation (Adjustable based on 4.7% of Workers' Compensation Payroll -
$111,180,581 Estimated Payroll)
RATE
0.0357 of Estimated Standard Premium
STATES INSURED
Iowa
OTHER STATES COVERAGE
Not Applicable
USL&HW
Included
OTHER FEDERAL ACTS
No Coverage
STATE AMENDATORY ENDORSEMENTS
Iowa
<PAGE> 85
CASEY'S GENERAL STORES, INC.
EXCESS WORKERS' COMPENSATION - IOWA ONLY (CONT.)
VOLUNTARY COMPENSATION
Included
ALLOCATED LOSS ADJUSTMENT EXPENSE
Satisfy retention & is included within limits. Included within definition of
loss.
DEFENSE COST
Right, Not Duty
CLAIM REPORTING REQUIREMENTS
50% of SIR
Scheduled Injury
Any accident involving 2 or more employees
PAYMENT BASIS
Indemnity - No advancement of payment
AIRCRAFT COVERAGE
Included
CANCELLATION
90 Days Notice
NOTED CONDITIONS
Broad Form Named Insured*
Knowledge of Occurrence
Refer to policy for further terms, conditions, exclusions & limitations.
*Endorsement ordered
<PAGE> 86
CASEY'S GENERAL STORES, INC.
EXCESS WORKERS COMPENSATION SCHEDULE - IOWA ONLY
<TABLE>
<CAPTION>
CLASSIFICATION CLASS CODE PAYROLL
-------------- ---------- -------
IOWA
----
<S> <C> <C>
Printing 4299 $ 201,000
Contractor-Executive Supervisor Construction Superintendent 5606 $ 277,000
Drivers, Chauffeurs and their Helpers Noc 7380 $ 2,972,000
Electrical Wiring - Within Building & Drivers 5190 $ 1,005,000
Aircraft Operation 7421 $ 60,000
Grocery Dealer - Retail & D 8006 $ 24,467,000
Warehousing 8292 $ 3,254,000
Salespersons - Outside 8742 $ 3,031,000
Clerical 8810 $ 7,050,000
Store: Meat Dealer Wholeale 8021 $ 243,000
</TABLE>
<PAGE> 87
CASEY'S GENERAL STORES, INC.
AVIATION
INSURANCE CO: Great American Insurance Co. POLICY PERIOD: 7-1-98/99
I. AIRCRAFT INSURED
1. 1983 Cessna 182RG FAA# N6188T
2. 1979 Citation 501 FAA# N2648X
II. APPROVED PILOTS
Cessna - Ron Lamb - Business & Pleasure
Citation - Thomas A. Holmer - Business only
III. OPEN PILOT WARRANTIES
1. Cessna - Ronald Lamb (PVT, ASEL) Pilot who hold a valid
private or commercial pilot certificate with instrument
rating, and have a minimum of 500 total logged pilot hours
including at least 100 hours in retractable gear aircraft
and * 25 hours in the same make and model aircraft being
operated.
2. Citation - Thomas A. Holmer (ATP, SMEL, INST) provided he
attend Simuflite on annual basis. OTHERWISE, Any Airline
Transport Pilot with Multi-Engine and Type Ratings who has
1,000 Total Hours, 2,500 Multi-Engine Hours, 500 Jet
Hours, 50 Hours Make and Model and annual Flight Safety
International or Simuflite in the make and model.
3. Citation - All Other Pilots other than Thomas A. Holmer requires a
Two Man Crew as shown below:
CAPTAIN: Commercial Instrument SMEL Type Rated, 3,000
Total Hours as Pilot in Command, 2,500 Multi-Engine, 500
in Multi-Engine Turbo Jets, 50 Hours in same Make and
Model and having successfully completed the Aircraft
Manufacturer's Approved Ground and Flight School
CO-PILOT: Commercial Instrument SMEL, 1,500 Total Hours as
Pilot in Command, 1,000 Multi-Engine Hours, 100
Multi-Engine Turbo Jet Hours and have successfully
complete the Manufacturer's Approved Ground and Flight
School.
<PAGE> 88
CASEY'S GENERAL STORES, INC.
AVIATION (CONT.)
IV. BODILY INJURY & PROPERTY DAMAGE LIABILITY, MEDICAL PAYMENTS
A) Limits - Bodily Injury & Property Damage - Including Passengers:
$10,000,000 Each Occurrence - Citation
$ 1,000,000 Each Occurrence - Cessna
Medical Payments - Including Crew: $ 3,000 Each Person /
$24,000 Aggregate-Citation
$ 3,000 Each Person /
$12,000 Aggregate-Cessna
B) Deductibles: Nil
C) Usage - Business & Pleasure - Excluding any Usage for which a charge is
made. Reimbursement for Direct Operating Expense is allowed.
Business Use Only
V. PHYSICAL DAMAGE
A. HULL VALUE
1. Cessna 182RG - Self-Insured
2. Citation 501 - $1,475,000
B. PERILS INSURED
1. All-Risk - Ground and Flight
C. VALUATION
1. Partial loss - Cost to repair with material of like kind & quality.
Excluding overtime labor plus the cost of the least expensive means
of transporting the replacement parts.
2. Total loss - The Insured Hull Value
D. COINSURANCE
Nil
E. DEDUCTIBLE
In Motion - Nil
Not In Motion - Nil
F. NON-OWNED PHYSICAL DAMAGE
$500,000
<PAGE> 89
CASEY'S GENERAL STORES, INC.
AVIATION (CONT.)
VI. ENDORSEMENTS
Non-Owned Liability including Passengers - $10,000,000 Each Occurrence
* Employees As Insureds
Personal Injury - $10,000,000
Guest Voluntary Settlement Including Crew Members
- $100,000 Each Passenger / $800,000 Aggregate on Citation
- $100,000 Each Passenger / $300,000 Aggregate on Cessna
Broad Form Named Insured
60 Day Notice of Cancellation
Premises Liability - $10,000,000
Personal Effects and Baggage - $5,000 Each Passenger /
$40,000 Each Occurrence
Non-Owned Hangars - $250,000
Products Liability For Sale of Aircraft - $10,000,000
Search and Rescue - $25,000
Foam - $5,000
Unearned Premium & Physical Damage Total Loss
*Mexico Warning
Spare Parts - $150,000 - $1,000. Deductible
Rental Expense - Aircraft - 1% of Agreed Value Maximum Daily Limit,
$200,000 Maximum per Occurrence and Aggregate Limit / 7 Day
Waiting Period / 60 Day Maximum Limits
Rental Expense - Parts - $25,000 Each Loss / Annual Aggregate
Damage to NonOwned Aircraft - $500,000 Each Occurrence
Physical Damage Policy Amendment
Aircraft Contractual Liability - $10,000,000
VI. TERRITORY
USA, Canada, Mexico, Islands of the Caribbean.
Refer to policy for further terms, conditions, exclusions & limitations.
*Correction requested
<PAGE> 90
CASEY'S GENERAL STORES, INC.
DIRECTORS & OFFICERS LIABILITY
INSURANCE CO: Cincinnati Ins. Co. POLICY PERIOD: 07-01-98/99
NAMED INSURED
1. Casey's General Stores, Inc.
2. Casey's Services Company
3. Casey's Marketing Company
4. All subsidiaries of which a Named Insured owns in excess of 50% of the
stock.
5. Newly Acquired/Created Subsidiaries - 60 Day Notice
6. Past, current & future Directors & Officers of the above.
7. Additional Insureds as noted in Conditions.
LIMITS OF LIABILITY
1. Directors & Officers Liability - $10,000,000 Per Claim & Aggregate
2. Company Reimbursement - Included
RETENTION
Per Director or Officer - $0 per loss
Maximum all Directors or Officers - $0 aggregate
Corporate Reimbursement - $100,000 per loss
COINSURANCE
None
RETROACTIVE DATE
None - Application warrants no known claims - excepting specific matter
exclusion.
EXTENDED REPORTING PROVISION
1 Year - 75% additional premium - Insurer cancellation or non-renewal
DEFENSE PROVISION
Included within Limits
Right vs. Duty
Duty to Advance (Approved Counsel Only)
Satisfy SIR*
Casey's has right to select counsel from Cincinnati's Approved List.
*Endorsement ordered
<PAGE> 91
CASEY'S GENERAL STORES, INC.
DIRECTORS & OFFICERS LIABILITY (CONTINUED)
INSURANCE CO: Cincinnati Ins. Co. POLICY PERIOD: 7-1-98/99
COVERED DAMAGES
- - Compensatory
- - Punitive (where insurable)
- - Pre-Judgement Interest
- - Post-Judgement Interest
- - Alternative Dispute Resolution Awards
LOSS PAYMENT PROVISIONS
- - Pay on Behalf Contract
- - Allocation Provisions:
SEC Claims - 100%
Other than SEC Claims - 90%
SETTLEMENT OPTIONS
- Casey's consent required to settle claim subject to "Hammer Clause"
wording.*
SPECIAL CONDITIONS
- - ERISA Exclusion
- - Insured vs. Insured Exclusion - Exception for Wrongful Discharge,
Discrimination or Sexual Harassment
- - Specific Matter Exclusion
- - Additional Insureds - Doug Beech, Eli Wirtz, Sam Billmeyer,
Julie Jackowski, Brian Shelby, and Bob Truhlsen*
- - 90 Day Notice of Cancellation, Non-Renewed, Material Change in
Conditions
- - Pollution Exclusion - with Exception for Shareholder Suits resulting
from sudden and accidental Pollution.
- - Allocation Endorsement - S.E.C. Only - 100%; all other - 90%
- - Marital Status Extension
- - Non-Profit Outside Board Extension - $1,000,000 sublimit
- - Waiver of Retention - S.E.C. suits - Defense costs only
- - 3 Year Premium Guarantee Subject to no more than 20% Change in Assets
per Year
- - Employees As Insureds for Third Party Suits
- - Punitive Damages Endorsement
Refer to policy for further terms, conditions, exclusions and limitations.
*Endorsement ordered
<PAGE> 92
CASEY'S GENERAL STORES, INC.
EXCESS DIRECTORS & OFFICERS LIABILITY
INSURANCE CO: Philadelphia Ins. Co. POLICY PERIOD: 7/1/98-99
COVERAGE
Excess Directors and Officers Liability including Company Reimbursement Coverage
LIMITS OF LIABILITY
$ 10,000,000 Maximum Aggregate
COVERAGE TRIGGER
Claims Made
REQUIRED UNDERLYING LIMITS OF LIABILITY
Lead Directors and Officers Liability $10,000,000 Each Policy Year
Including Company Reimbursement
RATE
Flat Charge
PRIOR & PENDING DATE
7-1-98
SPECIAL CONDITIONS
Nuclear Exclusion
Pollution Exclusion
Amendment of Application Clause
Increased Limit of Liability - Subject to Sublimit
<PAGE> 93
CASEY'S GENERAL STORES, INC.
CRIME
INSURANCE CO: Employers Mutual Casualty Co. POLICY PERIOD: 7-1-98/99
<TABLE>
<CAPTION>
COVERAGES LIMIT DEDUCTIBLE
- --------- ----- ----------
<S> <C> <C>
Employee Dishonesty $ 1,000,000 $ 5,000
Money and Securities - Inside No Coverage
Money and Securities - Outside No Coverage
Forgery & Alterations No Coverage
Computer Fraud No Coverage
Computer Crime No Coverage
Kidnap & Ransom - Extortion No Coverage
</TABLE>
SPECIAL CONDITIONS
1. ERISA Compliance
2. 90 Day Notice of Cancellation*
3. Applies to Ankeny Corporate Headquarters Only. Retail stores are
Self-Insured
4. Broad Form Named Insured
5. Knowledge of Occurrence Endorsement*
PLAN NAME
Amended & Restated Casey's General Stores Inc. Employee Profit Sharing and Stock
Ownership Plan and Trust
*Endorsement ordered.
<PAGE> 94
CASEY'S GENERAL STORES, INC.
FIDUCIARY LIABILITY
INSURANCE CO: Cincinnati Ins. Co. POLICY PERIOD: 10-1-96/99
NAMED INSURED
1. The Designated Plans
2. Past, present or future directors, officers or employees of the sole
sponsor or any employee of the designated plans while acting as
fiduciary
3. Estates, heirs and legal representatives of #2 above
LIMITS OF LIABILITY
1. Trustee & Fiduciary Liability - $5,000,000 per claim & aggregate
2. Employee Benefit Liability - Included
SIR/DEDUCTIBLE
- - 0 -
DESIGNATED PLANS
1. Casey's General Stores, Inc. 401K Plan
2. Casey's General Stores, Inc. Employee Stock Ownership Plan - ESOP
3. Casey's General Stores, Inc. Group Health Insurance Plan
4. Casey's General Stores, Inc. Company Paid $10,000 Term Life Insurance
Plan
5. Casey's General Stores, Inc. Company Paid $50,000 Term Life Insurance
Plan
6. Casey's General Stores, Inc. Company Flexible Spending Program
7. Casey's General Stores, Inc. Company Long Term Disability Plan
RETROACTIVE DATE
Not Applicable. Excludes Wrongful Acts committed prior to policy inception date
of which the insureds have knowledge.
DISCOVERY PERIOD
12 months - 30% additional premium - Insurers cancellation or non-renewal.
COVERAGE TRIGGER
Claims Made
30 Day Notice Required
Awareness Provision Included
COVERED DAMAGES
Compensatory
Punitive Excluded
<PAGE> 95
CASEY'S GENERAL STORES, INC.
FIDUCIARY LIABILITY (CONTINUED)
PAYMENT PROVISIONS
Pay on Behalf
SETTLEMENT OPTIONS
Underwriters consent required
APPLICATION
Part of policy
Severability
OMNIBUS ENDORSEMENT
Not included. Includes all future plans subject to 60 day written notice.
NON-PECUNIARY DAMAGES
Silent
WAIVER OF RECOURSE
Silent
DEFENSE COST
Included within Limits
Right not Duty
SPECIAL CONDITIONS
Financial Review Endorsement
20% Civil Penalty Endorsement - 502(1)
90 Day Notice of Cancellation
Non-Imputation - Exclusions Only
Amendatory Endorsement - Bill Walljasper as Ins. rep.
Refer to policy for further terms, conditions, exclusions & limitations.
<PAGE> 96
CASEY'S GENERAL STORES, INC.
LEAD UMBRELLA LIABILITY
INSURANCE CO: Reliance National Indemnity Co. POLICY PERIOD: 7-1-1998/2001
LIMITS OF LIABILITY
$ 25,000,000 Each Occurrence
25,000,000 P/CO Aggregate
25,000,000 General Aggregate - Not incl.
Auto Liability
RETENTION LIMIT
$10,000
RATE
Flat Charge
DEFENSE COST
In addition to Policy Limits
SPECIAL CONDITIONS
Cross Liability Exclusion
MCS 90 Endorsement
90 Day Notice of Cancellation
Broad Form Named Insured - 180 Notice of Newly Acquired or Formed Companies
Uninsured Motorist Coverage Rejection
Additional Insured where required by contract
Broad Form Professional Liability Exclusion
Care, Custody and Control Exclusion
Securities Exclusion
Follow Form Employee Benefit Liability and Liquor Liability
Waiver of Subrogation
Unintentional Errors and Omissions
On-Premises Exception for Products and Completed Operations
Pollution Exclusion with exception for Limited Products Hazard and Limited
Hostile Fire Endorsement and Upset and Overturn of a Motor Vehicle
Reinstatement of Annual Aggregate
Three Year Policy Provision Endorsement
<PAGE> 97
CASEY'S GENERAL STORES, INC.
LEAD UMBRELLA LIABILITY
* REQUIRED UNDERLYING LIMITS
AUTO LIABILITY - EMPLOYERS MUTUAL CASUALTY - #1E30368-99 - 07-01-98/99
$ 1,000,000 CSL
GENERAL LIABILITY - EMPLOYERS MUTUAL CASUALTY - #1D30368-99 - 07-01-98/99
Each Occurrence: 750,000
Personal Injury & Advertising Injury: 750,000
Products & Compl Ops. Aggregate: 1,750,000
General Aggregate: 1,750,000
Liquor Liability: 750,000
Employee Benefits Liability: 750,000
EMPLOYERS LIABILITY - EMPLOYERS MUTUAL CASUALTY - #1H30368-99 AND
#1M30368-99 07-01-98/99
Each Accident: 1,000,000
Disease - Each Employee: 1,000,000
Disease - Policy Aggregate: 1,000,000
EXCESS EMPLOYERS LIABILITY - EMPLOYERS MUTUAL CASUALTY - #1N30368-99 -
07-01-98/99
Iowa
Each Accident: 650,000
Disease - Policy Aggregate: 650,000
AVIATION LIABILITY - GREAT AMERICAN INS. - #GHC0288565-01 - 07-01-98/99
Each Occurrence - Citation 10,000,000 CSL
Each Occurrence - Cessna 1,000,000 CSL
<PAGE> 98
CASEY'S GENERAL STORES, INC.
EXCESS UMBRELLA LIABILITY
INSURANCE CO: Cincinnati Insurance Co. POLICY PERIOD: 7-1-98/99
LIMITS OF LIABILITY
$ 25,000,000 Each Occurrence
$ 25,000,000 Aggregate - As defined by the Lead
Umbrella Policy
REQUIRED UNDERLYING LIMITS OF LIABILITY
Lead Umbrella Liability $ 25,000,000 Per Occurrence
$ 25,000,000 Annual Aggregate
RATE
Flat Charge
SPECIAL CONDITIONS
Total Pollutant Exclusion
Employment-Related Practices Exclusion
Broadening, Restrictions, and Clarification of Coverage
Refer to policy for further terms, conditions, exclusions & limitations.
<PAGE> 99
CASEY'S GENERAL STORES, INC.
EMPLOYMENT PRACTICES LIABILITY
INSURANCE CO: Philadelphia Ins. Company POLICY PERIOD: 5/31/98 - 7/1/99
NAMED INSURED
1) Casey's General Stores, Inc.
2) Casey's Services Company
3) Casey's Marketing Company
4) All Subsidiaries of which Casey's Owns, on or before policy inceptions, in
Excess of 50% of the issued and outstanding voting Stock
5) Newly Acquired / Created Subsidiaries whose Assets Total less than 20% of
Casey's Total Assets
6) Newly Acquired / Created Subsidiaries whose Assets Total more than 20% of
Casey's Total Assets Subject to 90 Day Notice
7) Executive Officer, Director, or Employee Acting Within Scope of Duties
LIMITS OF LIABILITY
$10,000,000 Per Claim / $10,000,000 Aggregate
DEDUCTIBLE
$100,000 Each Interrelated Wrongful Act. Applicable to loss only. Defense
costs are covered first dollar.
Non-Stacking Provision
COINSURANCE
Not Applicable
COVERAGE TRIGGER
Claims Made & Reported
Awareness provision included
RETROACTIVE DATE
None
Exclusion for Pending & Prior Litigation prior to 5-31-98.
DISCOVERY PERIOD
12 Months at 50% of Annual Premium.
Must be Exercised in Writing within 30 Days of Non-renewal or Cancellation.
Insured or Insurer Non-renewal.
<PAGE> 100
CASEY'S GENERAL STORES, INC.
EMPLOYMENT PRACTICES LIABILITY
(CONTINUED)
COVERED DAMAGES
Money the insured is legally obligated to pay as damages, including punitive
damages where insurable.
SEVERABILITY
Exclusions A & B only
Non-Imputation for Application
APPLICATION
Part of policy
COVERED ENDORSEMENTS
Amended Definition of Insured
Multi-Year Amendatory Endorsement
Punitive Damages Coverage
Optional Management of Defense Endorsement
Amended Notice Provision
"Loss Only" Deductible
Nuclear Energy Liability Exclusion
DEFENSE COST & SETTLEMENT OPTIONS
Included in Limit
Right & duty at insureds option
Hammer Clause included
Insurer's consent required for choice of counsel*
SPECIAL CONDITIONS
- - Contractual Liability Exclusion Exception to Include Employee Contracts
- - 30 Day Notice of Cancellation
- - Exclusion D, Lockout, Strike Exclusion is Deleted
- - 100% Retention Reimbursement if No Liability*
- - Waiver of Retention if Casey's Accepts First Settlement Opportunity
- - 3 Year Premium Guarantee Subject to 50% Pure Loss Ratio or better
- - Definition of Wrongful Act Amended to Include a Hostile Work Environment
Created by Third Parties*
- - Notice of Claim Required where Casey's Determines that Claim may Exceed 50% of
the Deductible
<PAGE> 101
CASEY'S GENERAL STORES, INC.
EMPLOYMENT PRACTICES LIABILITY
(CONTINUED)
NOTED EXCLUSIONS
- - Dishonest, Criminal or Fraudulent Act - Severability applies
- - Contractual Liability - Oral or Written - Severability applies
- - Workers compensation, Unemployment, Disability Benefits, Social Security or
any Similar Act
- - National Labor Relations Act, Workers' Adjustment & Retraining Notification
Act, Fair Labors Standards Act, ERISA, Consolidated Omnibus Budget
Reconciliation Act of 1985, OSHA Act, or Similar Federal, State & Local
Statutes
- - Bodily Injury and Property Damage - exception for mental anguish, emotional
distress
- - Payment of Insurance or other Plan Benefits
- - Non-Monetary Relief
- - Pending and Prior Litigation
- - Nuclear Energy Liability
- - Lockout, strike or other labor disputes
*Correction ordered
<PAGE> 102
EXHIBIT A (a)
CASEY'S GENERAL STORES, INC.
6.18% SERIES A SENIOR NOTE
DUE APRIL 23, 2004
--------------
THIS NOTE MAY BE SUBJECT TO A HOME OFFICE PAYMENT AGREEMENT AND
ACCORDINGLY ANY PROSPECTIVE PURCHASER SHOULD FIRST VERIFY THE UNPAID
PRINCIPAL AMOUNT WITH THE COMPANY.
--------------
REGISTERED NOTE NO. RA- ,
----- --------- ---
$
------------
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "COMPANY"), for
value received, hereby promises to pay to ____________________ or registered
assigns, on the twenty-third day of April, 2004, the principal amount of
___________ Dollars ($__________) and to pay interest (computed on the basis of
a 360-day year of twelve 30-day months) on the principal amount from time to
time remaining unpaid hereon at the rate of six and eighteen hundredths percent
(6.18%) per annum from the date hereof until maturity, payable semi-annually on
the twenty-third day of April and October in each year, commencing October 23,
1999, and at maturity, and to pay interest on overdue principal, premium and (to
the extent legally enforceable) on any overdue installment of interest at the
rate of eight and eighteen hundredths percent (8.18%) per annum after maturity
or the due date thereof, whether by acceleration or otherwise, until paid.
Payments of the principal of, the premium, if any, and interest on this Note
shall be made in lawful money of the United States of America in the manner and
at the place provided in Section 2.5 of the Note Agreement hereinafter defined.
This Note is issued under and pursuant to the terms and provisions of a
Note Agreement, dated as of April 15, 1999, entered into by the Company with the
Purchaser named in Schedule I thereto (the "NOTE AGREEMENT"), and this Note and
any holder hereof are entitled to all of the benefits and are bound by the terms
provided for by such Note Agreement or referred to therein. The provisions of
the Note Agreement are incorporated in this Note to the same extent as if set
forth at length herein.
<PAGE> 103
As provided in the Note Agreement, upon surrender of this Note for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder hereof or his attorney duly
authorized in writing, a new Note for a like unpaid principal amount will be
issued to, and registered in the name of, the transferee upon the payment of the
taxes or other governmental charges, if any, that may be imposed in connection
therewith. The Company may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
This Note may be declared due prior to its expressed maturity date and
voluntary prepayments may be made hereon on the terms and in the manner provided
for in the Note Agreement.
Should the indebtedness represented by this Note or any part thereof be
collected in any proceeding provided for in the Note Agreement or be placed in
the hands of attorneys for collection, the Company agrees to pay, in addition to
the principal, premium, if any, and interest due and payable hereon, all
reasonable costs of collecting this Note, including reasonable attorneys' fees
and expenses.
This Note and the Note Agreement are governed by and construed in
accordance with the laws of the State of Iowa.
CASEY'S GENERAL STORES, INC.
By:
----------------------------
Its:
Attest:
By:
----------------------------
Its: Corporate Secretary
(2)
<PAGE> 104
CASEY'S GENERAL STORES, INC.
KANSAS UNDERGROUND TANKS POLLUTION
INSURANCE CO: American Alliance Insurance Co. POLICY PERIOD: 8-26-98/99
POLICY #: KST788300104
PREMISES INSURED
400 6th Street, Osawatomie, Kansas
PROPERTY COVERED
2 Underground Storage Tanks
LIMIT OF INSURANCE
$1,000,000 per environmental incident
$1,000,000 annual aggregate
LIMIT OF DEFENSE
$100,000 per environmental incident
DEDUCTIBLE
$5,000 per environmental incident
COVERAGE TRIGGER
Claims Made and Reported
RETROACTIVE DATE
8-26-94
EXTENDED REPORTING PERIOD
Insurer or Insured Cancellation or Non-Renewal - 180 days
<PAGE> 105
ANNEX V
Iowa Franchise Law Disclosure
During the 1992 legislative session, the Iowa General Assembly enacted
legislation relating to franchise agreements and their enforcement and
establishing certain duties and limitations on franchisors. The legislation,
currently set forth in Chapter 523H, Code of Iowa, 1999, as amended ("Chapter
523H"), became effective on July 1, 1992, and purports to apply to all new or
existing franchises that are operated in the State of Iowa after the effective
date, including those of the Company. Subsequent judicial rulings in cases
brought by other Iowa franchisors have held, however, that Chapter 523H does not
apply to any franchises entered into prior to its July 1, 1992 effective date.
As of April 1, 1999, the Company was a party to 78 franchise agreements
entered into with respect to Casey's stores being owned and operated by
franchisees in the State of Iowa. Of that number, only two of the franchise
agreements (the "Covered Franchises") were entered into following the effective
date of Chapter 523H; the remainder were all entered into prior to July 1, 1992.
Certain provisions of the Covered Franchises conflict with the provisions of
Chapter 523H, including those relating to transfer, termination or non-renewal
and encroachment, and therefore may not be valid or enforceable under Chapter
523H.
Chapter 523H was amended during the 1995 legislative session, but
several significant ambiguities and concerns remain. As a result, the Company
has determined not to grant any new Iowa franchises until further amending
legislation is enacted or other favorable court rulings are rendered. Until that
time, the Company intends to take such further actions as its existing Iowa
franchise agreements may permit. Such actions have included the continuation of
65 existing Iowa franchise agreements beyond their stated term on a year-to-year
basis, as permitted under those franchise agreements, but without prejudice to
the Company's other rights contained therein. It is the Company's position that
an authorized year-to-year extension of a pre-July 1, 1992 franchise agreement
does not represent a new "franchise" within the meaning of Chapter 523H, but
there are no provisions in Chapter 523H which expressly so state, nor have there
been any judicial rulings directly addressing that interpretation. To the extent
such an extension is determined to constitute a new franchise subject to Chapter
523H, the legislation may preclude the enforcement of those provisions of the
franchise agreement that conflict therewith.
V-1
<PAGE> 106
EXHIBIT A (b)
CASEY'S GENERAL STORES, INC.
6.23% SERIES B SENIOR NOTE
DUE APRIL 23, 2005
--------------
THIS NOTE MAY BE SUBJECT TO A HOME OFFICE PAYMENT AGREEMENT AND
ACCORDINGLY ANY PROSPECTIVE PURCHASER SHOULD FIRST VERIFY THE UNPAID
PRINCIPAL AMOUNT WITH THE COMPANY.
--------------
REGISTERED NOTE NO. RB- ,
----- ----------- ---
$
----------
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "COMPANY"), for
value received, hereby promises to pay to ____________________ or registered
assigns, on the twenty-third day of April, 2005, the principal amount of
___________ Dollars ($__________) and to pay interest (computed on the basis of
a 360-day year of twelve 30-day months) on the principal amount from time to
time remaining unpaid hereon at the rate of six and twenty-three hundredths
percent (6.23%) per annum from the date hereof until maturity, payable
semi-annually on the twenty-third day of April and October in each year,
commencing October 23, 1999, and at maturity, and to pay interest on overdue
principal, premium and (to the extent legally enforceable) on any overdue
installment of interest at the rate of eight and twenty-three hundredths percent
(8.23%) per annum after maturity or the due date thereof, whether by
acceleration or otherwise, until paid. Payments of the principal of, the
premium, if any, and interest on this Note shall be made in lawful money of the
United States of America in the manner and at the place provided in Section 2.5
of the Note Agreement hereinafter defined.
This Note is issued under and pursuant to the terms and provisions of a
Note Agreement, dated as of April 15, 1999, entered into by the Company with the
Purchaser named in Schedule I thereto (the "NOTE AGREEMENT"), and this Note and
any holder hereof are entitled to all of the benefits and are bound by the terms
provided for by such Note Agreement or referred to therein. The provisions of
the Note Agreement are incorporated in this Note to the same extent as if set
forth at length herein.
<PAGE> 107
As provided in the Note Agreement, upon surrender of this Note for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder hereof or his attorney duly
authorized in writing, a new Note for a like unpaid principal amount will be
issued to, and registered in the name of, the transferee upon the payment of the
taxes or other governmental charges, if any, that may be imposed in connection
therewith. The Company may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
This Note may be declared due prior to its expressed maturity date and
voluntary prepayments may be made hereon on the terms and in the manner provided
for in the Note Agreement.
Should the indebtedness represented by this Note or any part thereof be
collected in any proceeding provided for in the Note Agreement or be placed in
the hands of attorneys for collection, the Company agrees to pay, in addition to
the principal, premium, if any, and interest due and payable hereon, all
reasonable costs of collecting this Note, including reasonable attorneys' fees
and expenses.
This Note and the Note Agreement are governed by and construed in
accordance with the laws of the State of Iowa.
CASEY'S GENERAL STORES, INC.
By:
----------------------------
Its:
Attest:
By:
----------------------------
Its: Corporate Secretary
(2)
<PAGE> 108
EXHIBIT A (c)
CASEY'S GENERAL STORES, INC.
6.50% SERIES C SENIOR NOTE
DUE APRIL 23, 2009
--------------
THIS NOTE MAY BE SUBJECT TO A HOME OFFICE PAYMENT AGREEMENT AND
ACCORDINGLY ANY PROSPECTIVE PURCHASER SHOULD FIRST VERIFY THE UNPAID
PRINCIPAL AMOUNT WITH THE COMPANY.
--------------
REGISTERED NOTE NO. RC- ,
----- ----------- ---
$
----------
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "COMPANY"), for
value received, hereby promises to pay to ____________________ or registered
assigns, on the twenty-third day of April, 2009, the principal amount of
___________ Dollars ($__________) and to pay interest (computed on the basis of
a 360-day year of twelve 30-day months) on the principal amount from time to
time remaining unpaid hereon at the rate of six and fifty hundredths percent
(6.50%) per annum from the date hereof until maturity, payable semi-annually on
the twenty-third day of April and October in each year, commencing October 23,
1999, and at maturity, and to pay interest on overdue principal, premium and (to
the extent legally enforceable) on any overdue installment of interest at the
rate of eight and fifty hundredths percent (8.50%) per annum after maturity or
the due date thereof, whether by acceleration or otherwise, until paid. Payments
of the principal of, the premium, if any, and interest on this Note shall be
made in lawful money of the United States of America in the manner and at the
place provided in Section 2.5 of the Note Agreement hereinafter defined.
This Note is issued under and pursuant to the terms and provisions of a
Note Agreement, dated as of April 15, 1999, entered into by the Company with the
Purchaser named in Schedule I thereto (the "NOTE AGREEMENT"), and this Note and
any holder hereof are entitled to all of the benefits and are bound by the terms
provided for by such Note Agreement or referred to therein. The provisions of
the Note Agreement are incorporated in this Note to the same extent as if set
forth at length herein.
<PAGE> 109
As provided in the Note Agreement, upon surrender of this Note for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder hereof or his attorney duly
authorized in writing, a new Note for a like unpaid principal amount will be
issued to, and registered in the name of, the transferee upon the payment of the
taxes or other governmental charges, if any, that may be imposed in connection
therewith. The Company may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
This Note may be declared due prior to its expressed maturity date,
voluntary prepayments may be made hereon and certain prepayments are required to
be made hereon all in the events, on the terms and in the manner as provided in
the Note Agreement. Such prepayments include certain required prepayments on
April 23 of each year beginning April 23, 2005 and ending April 23, 2008 and
certain optional prepayments with a premium.
Should the indebtedness represented by this Note or any part thereof be
collected in any proceeding provided for in the Note Agreement or be placed in
the hands of attorneys for collection, the Company agrees to pay, in addition to
the principal, premium, if any, and interest due and payable hereon, all
reasonable costs of collecting this Note, including reasonable attorneys' fees
and expenses.
This Note and the Note Agreement are governed by and construed in
accordance with the laws of the State of Iowa.
CASEY'S GENERAL STORES, INC.
By:
----------------------------
Its:
Attest:
By:
----------------------------
Its: Corporate Secretary
(2)
<PAGE> 110
EXHIBIT A (d)
CASEY'S GENERAL STORES, INC.
6.84% SERIES D SENIOR NOTE
DUE APRIL 23, 2014
--------------
THIS NOTE MAY BE SUBJECT TO A HOME OFFICE PAYMENT AGREEMENT AND
ACCORDINGLY ANY PROSPECTIVE PURCHASER SHOULD FIRST VERIFY THE UNPAID
PRINCIPAL AMOUNT WITH THE COMPANY.
--------------
REGISTERED NOTE NO. RD- ,
---- ---------- ---
$
----------
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "COMPANY"), for
value received, hereby promises to pay to ____________________ or registered
assigns, on the twenty-third day of April, 2014, the principal amount of
___________ Dollars ($__________) and to pay interest (computed on the basis of
a 360-day year of twelve 30-day months) on the principal amount from time to
time remaining unpaid hereon at the rate of six and eighty-four hundredths
percent (6.84%) per annum from the date hereof until maturity, payable
semi-annually on the twenty-third day of April and October in each year,
commencing October 23, 1999, and at maturity, and to pay interest on overdue
principal, premium and (to the extent legally enforceable) on any overdue
installment of interest at the rate of eight and eighty-four hundredths percent
(8.84%) per annum after maturity or the due date thereof, whether by
acceleration or otherwise, until paid. Payments of the principal of, the
premium, if any, and interest on this Note shall be made in lawful money of the
United States of America in the manner and at the place provided in Section 2.5
of the Note Agreement hereinafter defined.
This Note is issued under and pursuant to the terms and provisions of a
Note Agreement, dated as of April 15, 1999, entered into by the Company with the
Purchaser named in Schedule I thereto (the "NOTE AGREEMENT"), and this Note and
any holder hereof are entitled to all of the benefits and are bound by the terms
provided for by such Note Agreement or referred to therein. The provisions of
the Note Agreement are incorporated in this Note to the same extent as if set
forth at length herein.
<PAGE> 111
As provided in the Note Agreement, upon surrender of this Note for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder hereof or his attorney duly
authorized in writing, a new Note for a like unpaid principal amount will be
issued to, and registered in the name of, the transferee upon the payment of the
taxes or other governmental charges, if any, that may be imposed in connection
therewith. The Company may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
This Note may be declared due prior to its expressed maturity date,
voluntary prepayments may be made hereon and certain prepayments are required to
be made hereon all in the events, on the terms and in the manner as provided in
the Note Agreement. Such prepayments include certain required prepayments on
April 23 of each year beginning April 23, 2008 and ending April 23, 2013 and
certain optional prepayments with a premium.
Should the indebtedness represented by this Note or any part thereof be
collected in any proceeding provided for in the Note Agreement or be placed in
the hands of attorneys for collection, the Company agrees to pay, in addition to
the principal, premium, if any, and interest due and payable hereon, all
reasonable costs of collecting this Note, including reasonable attorneys' fees
and expenses.
This Note and the Note Agreement are governed by and construed in
accordance with the laws of the State of Iowa.
CASEY'S GENERAL STORES, INC.
By:
----------------------------
Its:
Attest:
By:
----------------------------
Its: Corporate Secretary
(2)
<PAGE> 112
EXHIBIT A (e)
CASEY'S GENERAL STORES, INC.
7.08% SERIES E SENIOR NOTE
DUE APRIL 23, 2014
--------------
THIS NOTE MAY BE SUBJECT TO A HOME OFFICE PAYMENT AGREEMENT AND
ACCORDINGLY ANY PROSPECTIVE PURCHASER SHOULD FIRST VERIFY THE UNPAID
PRINCIPAL AMOUNT WITH THE COMPANY.
--------------
REGISTERED NOTE NO. RE- ,
----- ----------- ---
$
----------
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "COMPANY"), for
value received, hereby promises to pay to ____________________ or registered
assigns, on the twenty-third day of April, 2014, the principal amount of
___________ Dollars ($__________) and to pay interest (computed on the basis of
a 360-day year of twelve 30-day months) on the principal amount from time to
time remaining unpaid hereon at the rate of seven and eight hundredths percent
(7.08%) per annum from the date hereof until maturity, payable semi-annually on
the twenty-third day of April and October in each year, commencing October 23,
1999, and at maturity, and to pay interest on overdue principal, premium and (to
the extent legally enforceable) on any overdue installment of interest at the
rate of nine and eight hundredths percent (9.08%) per annum after maturity or
the due date thereof, whether by acceleration or otherwise, until paid. Payments
of the principal of, the premium, if any, and interest on this Note shall be
made in lawful money of the United States of America in the manner and at the
place provided in Section 2.5 of the Note Agreement hereinafter defined.
This Note is issued under and pursuant to the terms and provisions of a
Note Agreement, dated as of April 15, 1999, entered into by the Company with the
Purchaser named in Schedule I thereto (the "NOTE AGREEMENT"), and this Note and
any holder hereof are entitled to all of the benefits and are bound by the terms
provided for by such Note Agreement or referred to therein. The provisions of
the Note Agreement are incorporated in this Note to the same extent as if set
forth at length herein.
<PAGE> 113
As provided in the Note Agreement, upon surrender of this Note for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder hereof or his attorney duly
authorized in writing, a new Note for a like unpaid principal amount will be
issued to, and registered in the name of, the transferee upon the payment of the
taxes or other governmental charges, if any, that may be imposed in connection
therewith. The Company may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
This Note may be declared due prior to its expressed maturity date and
voluntary prepayments may be made hereon on the terms and in the manner provided
for in the Note Agreement.
Should the indebtedness represented by this Note or any part thereof be
collected in any proceeding provided for in the Note Agreement or be placed in
the hands of attorneys for collection, the Company agrees to pay, in addition to
the principal, premium, if any, and interest due and payable hereon, all
reasonable costs of collecting this Note, including reasonable attorneys' fees
and expenses.
This Note and the Note Agreement are governed by and construed in
accordance with the laws of the State of Iowa.
CASEY'S GENERAL STORES, INC.
By:
----------------------------
Its:
Attest:
By:
----------------------------
Its: Corporate Secretary
(2)
<PAGE> 114
EXHIBIT A (f)
CASEY'S GENERAL STORES, INC.
7.23% SERIES F SENIOR NOTE
DUE APRIL 23, 2019
--------------
THIS NOTE MAY BE SUBJECT TO A HOME OFFICE PAYMENT AGREEMENT AND
ACCORDINGLY ANY PROSPECTIVE PURCHASER SHOULD FIRST VERIFY THE UNPAID
PRINCIPAL AMOUNT WITH THE COMPANY.
--------------
REGISTERED NOTE NO. RF- ,
---- ----------- ---
$
----------
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "COMPANY"), for
value received, hereby promises to pay to ____________________ or registered
assigns, on the twenty-third day of April, 2019, the principal amount of
___________ Dollars ($__________) and to pay interest (computed on the basis of
a 360-day year of twelve 30-day months) on the principal amount from time to
time remaining unpaid hereon at the rate of seven and twenty-three hundredths
percent (7.23%) per annum from the date hereof until maturity, payable
semi-annually on the twenty-third day of April and October in each year,
commencing October 23, 1999, and at maturity, and to pay interest on overdue
principal, premium and (to the extent legally enforceable) on any overdue
installment of interest at the rate of nine and twenty-three hundredths percent
(9.23%) per annum after maturity or the due date thereof, whether by
acceleration or otherwise, until paid. Payments of the principal of, the
premium, if any, and interest on this Note shall be made in lawful money of the
United States of America in the manner and at the place provided in Section 2.5
of the Note Agreement hereinafter defined.
This Note is issued under and pursuant to the terms and provisions of a
Note Agreement, dated as of April 15, 1999, entered into by the Company with the
Purchaser named in Schedule I thereto (the "NOTE AGREEMENT"), and this Note and
any holder hereof are entitled to all of the benefits and are bound by the terms
provided for by such Note Agreement or referred to therein. The provisions of
the Note Agreement are incorporated in this Note to the same extent as if set
forth at length herein.
<PAGE> 115
As provided in the Note Agreement, upon surrender of this Note for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder hereof or his attorney duly
authorized in writing, a new Note for a like unpaid principal amount will be
issued to, and registered in the name of, the transferee upon the payment of the
taxes or other governmental charges, if any, that may be imposed in connection
therewith. The Company may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
This Note may be declared due prior to its expressed maturity date and
voluntary prepayments may be made hereon on the terms and in the manner provided
for in the Note Agreement.
Should the indebtedness represented by this Note or any part thereof be
collected in any proceeding provided for in the Note Agreement or be placed in
the hands of attorneys for collection, the Company agrees to pay, in addition to
the principal, premium, if any, and interest due and payable hereon, all
reasonable costs of collecting this Note, including reasonable attorneys' fees
and expenses.
This Note and the Note Agreement are governed by and construed in
accordance with the laws of the State of Iowa.
CASEY'S GENERAL STORES, INC.
By:
----------------------------
Its:
Attest:
By:
----------------------------
Its: Corporate Secretary
(2)
<PAGE> 116
EXHIBIT B
LEGAL OPINIONS
A. The opinion of Gardner, Carton & Douglas, special counsel for the
Purchaser, shall be to the effect that:
1. The Company is a corporation organized and validly existing under
the laws of the State of Iowa, with all requisite corporate power and authority
to carry on its business as now conducted, to enter into and perform the
Agreement and to issue and sell the Notes.
2. The Agreement has been duly authorized by proper corporate action on
the part of the Company, has been duly executed and delivered by an authorized
officer of the Company and constitutes the legal, valid and binding agreement of
the Company, enforceable in accordance with its terms, except to the extent that
enforcement of the Agreement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of the rights of creditors or by
equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
3. The Notes have been duly authorized by proper corporate action on
the part of the Company, have been duly executed and delivered by an authorized
officer of the Company and constitute the legal, valid and binding obligations
of the Company, enforceable in accordance with their terms, except to the extent
that enforcement of the Notes may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of the rights of creditors or by
equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
4. Based upon the representations set forth in the Agreement, the
offering, sale and delivery of the Notes do not require the registration of the
Notes under the Securities Act of 1933, as amended, nor the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
5. The issuance and sale of the Notes and compliance with the terms and
provisions of the Notes and the Agreement will not conflict with or result in
any breach of any of the provisions of the Certificate of Incorporation or
By-Laws of the Company.
The opinion of Gardner, Carton & Douglas also shall state that the opinion of
Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., counsel for the
Company, delivered to you pursuant to the Agreement, is satisfactory in form and
scope to Gardner, Carton & Douglas, and, in their opinion, the Purchaser and it
are justified in relying thereon and shall cover such other matters relating to
the sale of the Notes as the Purchaser may reasonably request. Gardner, Carton &
Douglas may rely, as to matters of Iowa law, on the opinion of Ahlers, Cooney,
Dorweiler, Haynie, Smith & Allbee, P.C.
<PAGE> 117
B. The opinion of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee,
P.C., counsel for the Company, shall cover all matters specified in clauses 1
through 5 set forth above and also shall be to the effect that:
1. The Company has full corporate power and authority to conduct the
activities in which it is now engaged and own its property.
2. Each Subsidiary of the Company is a corporation duly organized and
validly existing under the laws of its jurisdiction of incorporation, and each
has all requisite corporate power and authority to carry on its business as now
conducted and own its property.
3. Each of the Company and its Subsidiaries is duly qualified or
licensed and in good standing as a foreign corporation authorized to do business
in each jurisdiction where the nature of the business transacted by it or the
character of its properties owned or leased makes such qualification or
licensing necessary except where failure to so qualify would not, individually
or in the aggregate, have a material adverse affect on its business, properties,
or condition, financial or otherwise.
4. No authorization, approval or consent of any governmental or
regulatory body is necessary or required in connection with the lawful execution
and delivery by the Company of the Agreement or the lawful offering, issuance
and sale of the Notes, and no designation, filing, declaration, registration
and/or qualification with any governmental authority is required by the Company
in connection with such offer, issuance and sale.
5. The issuance and sale of the Notes and the execution, delivery and
performance by the Company of the Agreement will not conflict with, or result in
any breach or violation of any of the provisions of, or constitute a default
under, or result in the creation of any Lien on the property of the Company or
any Subsidiary pursuant to, (i) the provisions of the Certificate of
Incorporation or other charter document or by-laws of the Company or any
Subsidiary or any loan agreement under which the Company or any Subsidiary is
bound, or other agreement or instrument known to such counsel (after due
inquiry) to which the Company or any Subsidiary is a party or by which any of
them or their property is bound or (ii) any Iowa law (including usury laws) or
regulation, order, writ, injunction or decree of any court or governmental
authority applicable to the Company known to such counsel.
6. There are no actions, suits or proceedings pending or, to the best
of such counsel's knowledge after due inquiry, threatened against, or affecting
the Company or its Subsidiaries, at law or in equity or before or by any
Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which are likely to
result, either individually or in the aggregate, in any material adverse change
in the business, properties, operations or condition, financial or otherwise, of
the Company and its Subsidiaries taken as a whole.
(2)
<PAGE> 118
7. All of the issued and outstanding shares of capital stock of each
Subsidiary have been duly and validly issued, are fully paid and nonassessable
and, to the knowledge of such counsel, are owned by the Company free and clear
of any Lien.
8. The issuance of the Notes and the use of the proceeds of the sale of
the Notes do not violate or conflict with Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System (12 C.F.R., Chapter II).
9. Neither the Company nor any Subsidiary is: (i) a "public utility
company" or a "holding company," or an "affiliate" or a "subsidiary company" of
a "holding company," or an "affiliate" of such a "subsidiary company," as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended,
or (ii) a "public utility" as defined in the Federal Power Act, as amended, or
(iii) an "investment company" or an "affiliated person" thereof or an
"affiliated person" of any such "affiliated person," as such terms are defined
in the Investment Company Act of 1940, as amended.
The opinion of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C. shall
cover such other matters relating to the sale of the Notes as the Purchaser may
reasonably request. With respect to matters of fact on which such opinion is
based, such counsel shall be entitled to rely on appropriate certificates of
public officials and officers of the Company and with respect to matters
governed by the laws of any jurisdiction other than the United States of America
and the State of Iowa, such counsel may rely upon the opinions of counsel deemed
(and stated in their opinion to be deemed) by them to be competent and reliable.
(3)
