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): May 15, 2000
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)
<PAGE>
ITEM 5. OTHER EVENTS.
On May 15, 2000, Casey's General Stores, Inc. (the "Company") issued
$80,000,000 in aggregate principal amount of 7.89% Senior Notes, Series 2000-A,
due May 15, 2010 (together, the "Senior Notes"), pursuant to the terms of a Note
Purchase Agreement dated as of May 1, 2000 (the "Note Agreement") by and among
the Company and New York Life Insurance Company, New York Life Insurance and
Annuity Corporation, Allstate Life Insurance Company of New York, Columbia
Universal Life Insurance Company, American Heritage Life Insurance Company,
Allstate Life Insurance Company, Connecticut General Life Insurance Company,
Life Insurance Company of North America, American Investors Life Insurance
Company, Knights of Columbus, Modern Woodmen of America, Acacia Life Insurance
Company and Berkshire Life Insurance Company (together, the "Purchasers"). The
Company will apply the proceeds from the sale of the Senior Notes to fund the
payment and retirement of outstanding short-term indebtedness and general
working capital purposes.
The Senior Notes bear interest at the rate of 7.89% per annum from the date
thereof, payable semi-annually on May 15 and November 15 of each year,
commencing November 15, 2000 until the principal thereof shall have become due
and payable. To the extent permitted by law, any overdue payment of any overdue
prepayment (due as described below), principal, interest or any Make-Whole
Amount (as defined in the Note Agreement) shall bear interest, payable
semi-annually as aforesaid, at a rate per annum from time to time equal to the
greater of (i) 9.89% or (ii) 2.0% over the "base" or "prime" rate publicly
announced by Bank of America in Chicago, Illinois. The Senior Notes mature on
May 15, 2010.
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, on May 15, 2004 and on each May 15 thereafter to
and including May 15, 2009, the Company shall prepay $11,428,572 principal
amount of the Senior Notes, or such lesser amount as would constitute payment in
full on the Senior Notes, with the remaining principal payable at maturity on
May 15, 2010 (the "Required Prepayments"). Each such Required Prepayment shall
be at a price of 100% of the principal amount prepaid, together with interest
accrued thereon to the date of prepayment.
Upon notice as provided in the Note Agreement, the Company may prepay at
any time all, or from time to time any part of, the Senior Notes, in an amount
not less than $2,000,000 (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, and the Make-Whole Amount
(as defined in the Note Agreement) determined for the prepayment date with
respect to such principal amount. Any Optional Prepayment of less than all of
the Senior Notes outstanding shall be allocated among all
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of the Senior Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment.
Prepayment of the Senior Notes also may be required in the event of a
Change of Control or Management Buyout (each as defined in the Note Agreement),
at a price of (i) 100% of the principal amount of the Senior Notes to be prepaid
plus the Make-Whole Amount, together with accrued interest thereon (in the case
of a Change of Control) or (ii) 100% of the principal amount of the Senior Notes
to be prepaid, together with accrued interest thereon (in the case of a
Management Buyout).
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, and sale of assets. 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 when due or a breach of any of the foregoing covenants), the Purchasers
may declare the entire principal amount of the Senior Notes, together with the
Make-Whole Amount described in the Note Agreement and all accrued interest, to
be immediately due and payable.
Attached hereto as Exhibit 4.7 and incorporated herein by reference is a
copy of the Note Agreement between the Company and the Purchasers, and the
Schedules and Exhibits thereto. 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 2, 2000, the Board of
Directors of the Company approved several officer changes, and elected the
following persons to the indicated offices:
Robert Myers - Senior Vice President
Terry Handley - Vice President, Store Operations
Cleo Kuhns - Vice President, Store Development
Jamie Shaffer - Vice President and Chief Financial Officer
Brad Heyer - Vice President, Informations Systems
Hal Brown - Vice President, Support Services
<PAGE>
ITEM 7. EXHIBITS.
4.7 Note Purchase Agreement, dated as of May 1, 2000, among
Casey's General Stores, Inc. and New York Life Insurance
Company, New York Life Insurance and Annuity Corporation,
Allstate Life Insurance Company of New York, Columbia
Universal Life Insurance Company, American Heritage Life
Insurance Company, Allstate Life Insurance Company,
Connecticut General Life Insurance Company, Life Insurance
Company of North America, American Investors Life Insurance
Company, Knights of Columbus, Modern Woodmen of America,
Acacia Life Insurance Company and Berkshire Life Insurance
Company.
<PAGE>
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 22, 2000 By: /s/ John G. Harmon
------------------------
John G. Harmon
Secretary/Treasurer
<PAGE>
EXHIBITS
Exhibit Description Page
- --------- ----------- ----
4.7 Note Purchase Agreement dated as of
May 1, 2000 between Casey's General
Stores, Inc. and New York Life Insurance
Company, New York Life Insurance and Annuity
Corporation, Allstate Life Insurance Company of
New York, Columbia Universal Life Insurance
Company, American Heritage Life Insurance
Company, Allstate Life Insurance Company,
Connecticut General Life Insurance Company,
Life Insurance Company of North America,
American Investors Life Insurance Company,
Knights of Columbus, Modern Woodmen of
America, Acacia Life Insurance Company and
Berkshire Life Insurance Company
CONFORMED COPY
CASEY'S GENERAL STORES, INC.
$80,000,000
7.89% Senior Notes, Series A
due May 15, 2010
NOTE PURCHASE AGREEMENT
Dated as of May 1, 2000
<PAGE>
TABLE OF CONTENTS
Section Page
1. AUTHORIZATION OF NOTES 1
2. SALE AND PURCHASE OF NOTES 1
3. CLOSING 2
4. CONDITIONS TO CLOSING 2
4.1 Representations and Warrants 2
4.2 Performance; No Default 2
4.3 Compliance Certificates 2
4.4 Opinions of Counsel 3
4.5 Purchase Permited By Applicable Law, etc. 3
4.6 Sale of Other Notes 3
4.7 Payment of Special Counsel Fees 3
4.8 Private Placement Number 3
4.9 Changes in Corporate Structure 4
4.10 Proceedings and Documents 4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 4
5.1 Organization; Power and Authority 4
5.2 Authorization, etc. 4
5.3 Disclosure 5
5.4 Organization and Ownership of Shares of
Subsidiaries; Affiliates 5
5.5 Financial Statements 6
5.6 Compliance with Laws, Other Instruments, etc. 6
5.7 Governmental Authorizations, etc. 6
5.8 Litigation; Observance of Agreements, Statutes and
Orders 6
5.9 Taxes 7
5.10 Title to Property; Leases 7
5.11 Licenses, Permits, etc. 7
5.12 Compliance with ERISA 8
5.13 Private Offering by the Company 9
5.14 Use of Proceeds; Margin Regulations 9
5.15 Existing Indebtedness; Future Liens 9
5.16 Foreign Assets Control Regulations, etc. 10
5.17 Status under Certain Statutes 10
5.18 Environmental Matters 10
6. REPRESENTATIONS OF THE PURCHASER 11
6.1 Purchase for Investment 11
6.2 Source of Funds 11
7. INFORMATION AS TO COMPANY 12
7.1 Financial and Business Information 12
7.2 Officer's Certificate 15
7.3 Inspection 16
8. PREPAYMENT OF THE NOTES 16
8.1 Required Prepayments 16
8.2 Optional Prepayments with Make-Whole Amount 16
8.3 Change of Control 17
8.4 Allocation of Partial Prepayments 19
8.5 Maturity; Surrender, etc. 19
8.6 Purchase of Notes 19
8.7 Make-Whole Amount 19
9. AFFIRMATIVE COVENANTS
9.1 Compliance with Law 21
9.2 Insurance 21
9.3 Maintenance of Properties 21
9.4 Payment of Taxes and Claims 21
9.5 Corporate Existence, etc. 22
10. NEGATIVE COVENANTS
10.1 Adjusted Consolidated Net Worth 22
10.2 Funded Debt 22
10.3 Fixed Charge Coverage Ratio 23
10.4 Limitations on Liens 23
10.5 Merger, Consolidation, etc. 24
10.6 Sale of Assets 25
10.7 Nature of Business 26
10.8 Transactions with Affiliates 26
11. EVENTS OF DEFAULT 26
12. REMEDIES ON DEFAULT, ETC. 28
12.1 Acceleration 28
12.2 Other Remedies 29
12.3 Rescission 29
12.4 No Waivers or Election of Remedies, Expenses, etc. 29
<PAGE>
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES 30
13.1. Registration of Notes 30
13.2 Transfer and Exchange of Notes 30
13.3 Replacement of Notes 30
14. PAYMENTS OF NOTES 31
14.1 Place of Payment 31
14.2 Home Office Payment 31
15. EXPENSES, ETC. 32
15.1 Transaction Expenses 32
15.2 Survival 32
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT 32
17. AMENDMENT AND WAIVER 33
17.1 Requirements 33
17.2 Solicitation of Holders of Notes 33
17.3 Binding Effect, etc. 33
17.4 Notes held by Company, etc. 34
18. NOTICES 34
19. REPRODUCTION OF DOCUMENTS 34
20. CONFIDENTIAL INFORMATION 35
21. SUBSTITUTION OF PURCHASER 36
22. ADDITIONAL SERIES OF NOTES 36
22.1 Issuance of Additional Series of Notes 36
22.2 Conditions to Additional Series of Notes 36
23. MISCELLANEOUS 37
23.1 Successors and Assigns 37
23.2 Payments Due on Non-Business Days 37
23.3 Severability 37
23.4 Construction 37
23.5 Counterparts 38
23.6 Governing Law 38
SCHEDULE A Information Relating to Purchasers
SCHEDULE B Defined Terms
SCHEDULE 4.9 Changes in Corporate Structure
SCHEDULE 5.3 Disclosure Materials
SCHEDULE 5.4 Organization and Ownership of Shares of Subsidiaries;
Affiliates
SCHEDULE 5.5 Financial Statement
SCHEDULE 5.8 Litigation
SCHEDULE 5.11 Licenses, Permits, etc.
SCHEDULE 5.14 Use of Proceeds
SCHEDULE 5.15 Existing Indebtedness; Future Liens
SCHEDULE 5.18 Certain Products of the Company and its Subsidiaries
SCHEDULE 10.4 Liens
EXHIBIT 1 Form of Series A Senior Note
EXHIBIT 4.4(a) Form of Opinion of Counsel for the Company
EXHIBIT 4.4(b) Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 22.2 Form of Terms Agreement
<PAGE>
CASEY'S GENERAL STORES, INC.
One Convenience Boulevard
Ankeny, Iowa 50021
(515) 965-6100
Fax: (515) 965-6160
$80,000,000
7.89% Senior Notes, Series A, due May 15, 2010
Dated as of May 1, 2000
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
CASEY'S GENERAL STORES, INC., an Iowa corporation (the "Company"), agrees
with you as follows:
1. AUTHORIZATION OF NOTES.
The Company has authorized the issue and sale of $80,000,000 aggregate
principal amount of its 7.89% Senior Notes, Series A, due May 15, 2010 (the
"Notes", such term to include any such notes issued in substitution therefor
pursuant to Section 13 of this Agreement). The Notes will be substantially in
the form set out in Exhibit 1, with such changes therefrom, if any, as may be
approved by you and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and each of the other purchasers named in Schedule A (the
"Other Purchasers"), and you and the Other Purchasers will purchase from the
Company, at the Closing provided for in Section 3, Notes in the principal amount
specified opposite your names in Schedule A at the purchase price of 100% of the
principal amount thereof. Your obligation hereunder and the obligations of the
Other Purchasers are several and not joint
<PAGE>
obligations and you shall have no liability to any Person for the performance or
non-performance by any Other Purchaser hereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Gardner, Carton & Douglas, Quaker
Tower, Suite 3400, 321 North Clark Street, Chicago, Illinois 60610 at 9:00 a.m.,
Chicago time, at a closing (the "Closing") on May 15, 2000 or on such other
Business Day thereafter on or prior to May 20, 2000 as may be agreed upon by the
Company and you and the Other Purchasers. At the Closing the Company will
deliver to you the Notes to be purchased by you in the form of a single Note (or
such greater number of Notes in denominations of at least $500,000 as you may
request) dated the date of the Closing and registered in your name (or in the
name of your nominee), against delivery by you to the Company or its order of
immediately available funds in the amount of the purchase price therefor by wire
transfer of immediately available funds for the account of the Company to
account number 9870527502 at UMB Bank, n.a., Kansas City, Missouri, ABA No.
101000695. If at the Closing the Company shall fail to tender such Notes to you
as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at the
Closing is subject to the fulfillment to your satisfaction, prior to or at the
Closing, of the following conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company in this Agreement shall
be correct when made and at the time of the Closing.
4.2. Performance; No Default.
The Company shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by it prior to or at the Closing and after giving effect to the issue and sale
of the Notes (and the application of the proceeds thereof as contemplated by
Section 5.14) no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Subsidiary shall have entered into any
transaction since the date of the Memorandum that would have been prohibited by
this Agreement had it applied since such date.
4.3. Compliance Certificates.
<PAGE>
(a) Officer's Certificate. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered to you a
certificate certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery of
the Notes and the Agreement.
4.4. Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to you,
dated the date of the Closing (a) from Ahlers, Cooney, Dorweiler, Haynie, Smith
& Allbee, P.C., counsel for the Company, covering the matters set forth in
Exhibit 4.4(a) and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably request (and the
Company instructs its counsel to deliver such opinion to you) and (b) from
Gardner, Carton & Douglas, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b) and covering
such other matters incident to such transactions as you may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (i) be permitted by
the laws and regulations of each jurisdiction to which you are subject, without
recourse to provisions (such as Section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies without restriction
as to the character of the particular investment, (ii) not violate any
applicable law or regulation (including, without limitation, Regulation T, U or
X of the Board of Governors of the Federal Reserve System) and (iii) not subject
you to any tax, penalty or liability under or pursuant to any applicable law or
regulation, which law or regulation was not in effect on the date hereof. If
requested by you, you shall have received an Officer's Certificate certifying as
to such matters of fact as you may reasonably specify to enable you to determine
whether such purchase is so permitted.
4.6. Sale of Other Notes.
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Notes to be purchased by
them at the Closing as specified in Schedule A.
4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Closing the reasonable fees, charges and disbursements of
your special
<PAGE>
counsel referred to in Section 4.4 to the extent reflected in a statement of
such counsel rendered to the Company at least one Business Day prior to the
Closing.
4.8. Private Placement Number.
A Private Placement Number issued by Standard & Poor's CUSIP Service Bureau
(in cooperation with the Securities Valuation Office of the National Association
of Insurance Commissioners) shall have been obtained for the Notes by Gardner,
Carton & Douglas.
4.9. Changes in Corporate Structure.
Except as specified in Schedule 4.9, the Company shall not have changed its
jurisdiction of incorporation or been a party to any merger or consolidation and
shall not have succeeded to all or any substantial part of the liabilities of
any other entity, at any time following the date of the most recent financial
statements referred to in Schedule 5.5.
4.10. Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to you and your special counsel, and you
and your special counsel shall have received all such counterpart originals or
certified or other copies of such documents as you or they may reasonably
request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1. Organization; Power and Authority.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has the corporate power and authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver this
Agreement and the Notes and to perform the provisions hereof and thereof.
5.2. Authorization, etc.
<PAGE>
This Agreement and the Notes have been duly authorized by all necessary
corporate action on the part of the Company, and this Agreement constitutes, and
upon execution and delivery thereof each Note will constitute, a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.3. Disclosure.
The Company, through its agent, SPP Capital Partners, LLC, has delivered to
you and each Other Purchaser a copy of a Private Placement Memorandum, dated
April 2000 (the "Memorandum"), relating to the transactions contemplated hereby.
The Memorandum fairly describes, in all material respects, the general nature of
the business and principal properties of the Company and its Subsidiaries.
Except as disclosed in Schedule 5.3, this Agreement, the Memorandum, the
documents, certificates or other writings delivered to you by or on behalf of
the Company in connection with the transactions contemplated hereby and the
financial statements listed in Schedule 5.5, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Except as disclosed in the Memorandum
or as expressly described in Schedule 5.3, or in one of the documents,
certificates or other writings identified therein, or in the financial
statements listed in Schedule 5.5, since April 30, 1999, there has been no
change in the financial condition, operations, business, properties or prospects
of the Company or any Subsidiary except changes that individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
There is no fact known to the Company that could reasonably be expected to have
a Material Adverse Effect that has not been set forth herein or in the
Memorandum or in the other documents, certificates and other writings delivered
to you by or on behalf of the Company specifically for use in connection with
this Agreement and the issue and sale of the Notes to you and the Other
Purchasers.
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 is (except as noted therein) a complete and correct list
of (i) the Company's Subsidiaries, showing, as to each Subsidiary, the correct
name thereof, the jurisdiction of its organization, and the percentage of shares
of each class of its capital stock or similar equity interests outstanding owned
by the Company and each other Subsidiary, (ii) the Company's Affiliates, other
than Subsidiaries, and (iii) the Company's directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
and
<PAGE>
are owned by the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements listed
on Schedule 5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
5.5. Financial Statements.
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on Schedule 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of this Agreement
and the Notes will not (i) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of the Company or any Subsidiary under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or any
other agreement or instrument to which the Company or any Subsidiary is bound or
by which the Company or any Subsidiary or any of their respective properties may
be bound or affected, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree or ruling of any
<PAGE>
court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Company of this Agreement or the
Notes.
5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term of
any agreement or instrument to which it is a party or by which it is bound, or
any order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or in violation of any applicable law, ordinance, rule or regulation
(including without limitation Environmental Laws) of any Governmental Authority,
which default or violation, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
5.9. Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (i) the amount of which is not
individually or in the aggregate Material or (ii) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of Federal, state or
other taxes for all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the
fiscal year ended April 30, 1995.
<PAGE>
5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to their
respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by the Company or
any Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) The Company and its Subsidiaries own or possesses all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that individually or in the
aggregate are Material, without known conflict with the rights of others;
(b) To the best knowledge of the Company, no product of the Company or any
of its Subsidiaries infringes in any material respect any license, permit,
franchise, authorization, patent, copyright, service mark, trademark, trade name
or other right owned by any other Person; and
(c) To the best knowledge of the Company, there is no Material violation by
any Person of any right of the Company or any of its Subsidiaries with respect
to any patent, copyright, service mark, trademark, trade name or other right
owned or used by the Company or any of its Subsidiaries.
5.12. Compliance with ERISA.
(a) 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. 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 could reasonably be expected to result in the incurrence of any such
liability by the Company or any 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
<PAGE>
412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
(b) 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.
(c) 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.
(d) 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.
(e) 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 5.12(e) is made in reliance
upon and subject to the accuracy of your representation in Section 6.2 as to the
sources of the funds used to pay the purchase price of the Notes to be purchased
by you.
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the Notes
or any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
person other than you, the Other Purchasers and not more than 68 other
Institutional Investors, each of which has been offered the Notes at a private
sale for investment. Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the issuance or sale of the
Notes to the registration requirements of Section 5 of the Securities Act.
5.14. Use of Proceeds; Margin Regulations.
<PAGE>
The Company will apply the proceeds of the sale of the Notes as set forth
in Schedule 5.14. No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin
stock does not constitute more than 1.0% of the value of the consolidated assets
of the Company and the Company does not have any present intention that margin
stock will constitute more than 1.0% of the value of such assets. As used in
this Section, the terms "margin stock" and "purpose of buying or carrying" shall
have the meanings assigned to them in said Regulation U.
5.15. Existing Indebtedness; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Indebtedness of the Company and its Subsidiaries
as of April 30, 2000, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of
the Indebtedness of the Company or its Subsidiaries. Neither the Company nor any
Subsidiary is in default, and no waiver of default is currently in effect, in
the payment of any principal or interest on any Indebtedness of the Company or
any Subsidiary and no event or condition exists with respect to any Indebtedness
of the Company or any Subsidiary that would permit (or that with notice or the
lapse of time, or both, would permit) one or more Persons to cause such
Indebtedness to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 10.4.
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor its use of the
proceeds thereof will violate the Trading with the Enemy Act, as amended, or any
of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17. Status under Certain Statutes.
<PAGE>
Neither the Company nor any Subsidiary is subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended, the ICC Termination Act of 1995, as amended, or the
Federal Power Act, as amended.
5.18. Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or has
received any notice of any claim, and no proceeding has been instituted raising
any claim against the Company or any of its Subsidiaries or any of their
respective real properties now or formerly owned, leased or operated by any of
them or other assets, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect. Schedule 5.18 contains a list
of the products offered for sale by the Company and its Subsidiaries that may
constitute Hazardous Materials. Except as otherwise disclosed in the Memorandum
or in the attachments thereto,
(a) neither the Company nor any Subsidiary has knowledge of any facts that
would give rise to any claim, public or private, of violation of Environmental
Laws or damage to the environment emanating from, occurring on or in any way
related to real properties now or formerly owned, leased or operated by any of
them or to other assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or operated
by any of them and has not disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated by
the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. Purchase for Investment.
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
<PAGE>
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.
6.2. Source of Funds.
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:
(a) the Source is an "insurance company general account" as such term is
defined in the Department of Labor Prohibited Transaction Exemption ("PTE")
95-60 (issued July 12, 1995) ("PTE 95-60") and as of the date of this Agreement
there is no "employee benefit plan" with respect to which the aggregate amount
of such general account's reserves and liabilities for the contracts held by or
on behalf of such employee benefit plan and all other employee benefit plans
maintained by the same employer (and affiliates thereof as defined in Section
V(a)(1) of PTE 95-60) or by the same employee organization (in each case
determined in accordance with the provisions of PTE 95-60) exceeds 10% of the
total reserves and liabilities of such general account (as determined under PTE
95-60) (exclusive of separate account liabilities) plus surplus as set forth in
the National Association of Insurance Commissioners Annual Statement filed with
your state of domicile; or
(b) the Source is either (i) an insurance company pooled separate account,
within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank
collective investment fund, within the meaning of PTE 91-38 (issued July 12,
1991) and, except as you have disclosed to the Company in writing pursuant to
this paragraph (b), 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
(c) 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
<PAGE>
"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 (c); or
(d) the Source is a governmental plan; or
(e) 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 (e); or
(f) the Source is the assets of one or more employee benefit plans that are
managed by an "in-house asset manager," as that term is defined in PTE 96-23 and
such purchase and holding of the Notes is exempt under PTE 96-23; or
(g) the Source does not include assets of any employee benefit plan, other
than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information
The Company will deliver to each holder of Notes that is an Institutional
Investor:
(a) Quarterly Statements -- within 60 days after the end of each quarterly
fiscal period in each fiscal year of the Company (other than the last quarterly
fiscal period of each such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries as at
the end of such quarter, and
(ii) consolidated statements of income, changes in shareholders' equity and
cash flows of the Company and its Subsidiaries, for such quarter and (in the
case of the second and third quarters) for the portion of the fiscal year ending
with such quarter, setting forth in each case in comparative form the figures
for the corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a
<PAGE>
Senior Financial Officer as fairly presenting, in all material respects, the
financial position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided, if applicable, that delivery within the time period
specified above of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the requirements
of this Section 7.1(a);
(b) Annual Statements -- within 120 days after the end of each fiscal year
of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries, as at
the end of such year, and
(ii) consolidated statements of income, changes in shareholders' equity and
cash flows of the Company and its Subsidiaries, for such year, figures for the
previous fiscal year, all in reasonable detail, prepared in accordance with
GAAP, and accompanied (A) by an opinion thereon of KPMG LLP or another firm of
independent certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in all
material respects, the financial position of the companies being reported upon
and their results of operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such accountants in connection
with such financial statements has been made in accordance with generally
accepted auditing standards, and that such audit provides a reasonable basis for
such opinion in the circumstances, and (B) a certificate of such accountants
stating that they have reviewed this Agreement and stating further whether, in
making their audit, they have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if they are aware that any
such condition or event then exists, specifying the nature and period of the
existence thereof (it being understood that such accountants shall not be
liable, directly or indirectly, for any failure to obtain knowledge of any
Default or Event of Default unless such accountants should have obtained
knowledge thereof in making an audit in accordance with generally accepted
auditing standards or did not make such an audit), provided that the delivery
within the time period specified above of the Company's Annual Report on Form
10-K for such fiscal year (together, if available, with the
<PAGE>
Company's annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act) prepared in accordance with the requirements therefor
and filed with the Securities and Exchange Commission, together with the
accountant's certificate described in clause (B) above, shall be deemed to
satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming available, and if
applicable, one copy of (i) each financial statement, report, notice or proxy
statement sent by the Company or any Subsidiary to public securities holders
generally, (ii) each regular or periodic report, each registration statement (in
each instance, without exhibits except as expressly requested by such holder),
and each prospectus and all amendments thereto filed by the Company or any
Subsidiary with the Securities and Exchange Commission and (iii) all press
releases and other statements made available generally by the Company or any
Subsidiary to the public concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly, and in any event
within five Business Days after a Responsible Officer becoming aware of the
existence of any Default or Event of Default or that any Person has given any
notice or taken any action with respect to a claimed default hereunder or that
any Person has given any notice or taken any action with respect to a claimed
default of the type referred to in Section 11(f), a written notice specifying
the nature and period of existence thereof and what action the Company is taking
or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five Business Days
after a Responsible Officer becoming 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:
(i) 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
(ii) 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
(iii) any event, transaction or condition that could result in the
incurrence of any liability by the Company or any ERISA Affiliate
<PAGE>
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;
(f) Notices from Governmental Authority -- promptly, and in any event
within 30 days of receipt thereof, copies of any notice to the Company or any
Subsidiary from any Federal or state Governmental Authority relating to any
order, ruling, statute or other law or regulation that could reasonably be
expected to have a Material Adverse Effect;
(g) Requested Information -- with reasonable promptness, such other data
and information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries or
relating to the ability of the Company to perform its obligations hereunder and
under the Notes as from time to time may be reasonably requested by any such
holder of Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of Notes pursuant to
Sections 7.1(a) or (b) hereof shall be accompanied by a certificate of a Senior
Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.1 through Section 10.8,
inclusive, during the quarterly or annual period covered by the statements then
being furnished (including for each such Section, where applicable, the
calculations of the maximum or minimum amount, ratio or percentage, as the case
may be, permissible under the terms of such Sections, and the calculation of the
amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and its
Subsidiaries from the beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and that such
review shall not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of Default or, if any
such condition or event existed or exists, specifying the nature and period of
<PAGE>
existence thereof and what action the Company shall have taken or proposes to
take with respect thereto.
7.3. Inspection.
The Company will permit the representatives of each holder of Notes that is
an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at the
expense of such holder and upon reasonable prior notice to the Company, to visit
the principal executive office of the Company, to discuss the affairs, finances
and accounts of the Company and its Subsidiaries with the Company's officers,
and (with the consent of the Company, which consent will not be unreasonably
withheld) its independent public accountants, and (with the consent of the
Company, which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the expense
of the Company to visit and inspect any of the offices or properties of the
Company or any Subsidiary, to examine all their respective books of account,
records, reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
officers and independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and accounts of the
Company and its Subsidiaries), all at such times and as often as may be
reasonably requested.
8. PREPAYMENT OF THE NOTES
8.1. Required Prepayments.
On May 15, 2004, and on each May 15 thereafter to and including May 15,
2009, the Company will prepay $11,428,572 principal amount (or such lesser
principal amount as shall then be outstanding) of the Notes at 100% of the
principal amount thereof and without payment of the Make-Whole Amount or any
premium, provided that upon any partial prepayment of the Notes pursuant to
Section 8.2 or 8.3 or purchase of the Notes permitted by Section 8.6 the
principal amount of each required prepayment of the Notes becoming due under
this Section 8.1 on and after the date of such prepayment or purchase shall be
reduced in the same proportion as the aggregate unpaid principal amount of the
Notes is reduced as a result of such prepayment or purchase.
8.2. Optional Prepayments with Make-Whole Amount.
<PAGE>
The Company may, at its option, upon notice as provided below, prepay at
any time all, or from time to time any part of, the Notes, in an amount not less
than $2,000,000 in the case of a partial prepayment, at 100% of the principal
amount so prepaid, plus accrued interest to the date of redemption and the
Make-Whole Amount determined for the prepayment date with respect to such
principal amount. The Company will give each holder of Notes written notice of
each optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such notice
shall specify such date, the aggregate principal amount of the Notes to be
prepaid on such date, the principal amount of each Note held by such holder to
be prepaid (determined in accordance with Section 8.4), and the interest to be
paid on the prepayment date with respect to such principal amount being prepaid,
and shall be accompanied by a certificate of a Senior Financial Officer as to
the estimated Make-Whole Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the prepayment),
setting forth the details of such computation. Two Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes a certificate of a
Senior Financial Officer specifying the calculation of such Make-Whole Amount as
of the specified prepayment date.
8.3. Change of Control.
(a) Notice of Change of Control, Management Buyout or Control Event -- The
Company will, within five Business Days after any Responsible Officer has
knowledge of the occurrence of any Change of Control, Management Buyout or
Control Event, give written notice of such Change of Control, Management Buyout
or Control Event to each holder of Notes unless notice in respect of such Change
of Control or Management Buyout (or the Change of Control or Management Buyout
contemplated by such Control Event) shall have been given pursuant to paragraph
(b) of this Section 8.3. If a Change of Control or Management Buyout has
occurred, such notice shall contain and constitute an offer to prepay Notes as
described in paragraph (c) of this Section 8.3 and shall be accompanied by the
certificate described in paragraph (g) of this Section 8.3.
(b) Condition to Company Action -- The Company will not take any action
that consummates or finalizes a Change of Control or Management Buyout unless
(i) at least 30 days prior to such action it shall have given to each holder of
Notes written notice containing and constituting an offer to prepay Notes and
accompanied by the certificate described in paragraph (g) of this Section 8.3,
and (ii) subject to the provisions of paragraph (d) below, contemporaneously
with such action, it prepays all Notes required to be prepaid in accordance with
this Section 8.3.
(c) Offer to Prepay Notes -- The offer to prepay Notes contemplated by
paragraphs (a) and (b) of this Section 8.3 shall be an offer to prepay, in
accordance with and subject to this Section 8.3, all, but not less than all, the
<PAGE>
Notes held by each holder (in this case only, "holder" in respect of any Note
registered in the name of a nominee for a disclosed beneficial owner shall mean
such beneficial owner) on a date specified in such offer (the "Proposed
Prepayment Date"). If such Proposed Prepayment Date is in connection with an
offer contemplated by paragraph (a) of this Section 8.3, such date shall be not
less than 20 days and not more than 60 days after the date of such offer.
(d) Acceptance -- A holder of Notes may accept the offer to prepay made
pursuant to this Section 8.3 by causing a notice of such acceptance to be
delivered to the Company at least 10 days prior to the Proposed Prepayment Date.
A failure by a holder of Notes to respond to an offer to prepay made pursuant to
this Section 8.3 shall be deemed to constitute (i) in the case of a Change of
Control, an acceptance of such offer by such holder and (ii) in the case of a
Management Buyout, a rejection of such offer by such holder.
(e) Prepayment -- Prepayment of the Notes to be prepaid pursuant to this
Section 8.3 shall be (i) in the case of a Change of Control, at 100% of the
principal amount of such Notes, plus the Make-Whole Amount determined for the
date of prepayment with respect to such principal amount, together with interest
on such Notes accrued to the date of prepayment, or (ii) in the case of a
Management Buyout, at 100% of the principal amount of such Notes together with
interest on such Notes accrued to the date of prepayment. If applicable, on the
Business Day preceding the date of prepayment, the Company shall deliver to each
holder of Notes being prepaid a statement showing the Make-Whole Amount, if any,
due in connection with such prepayment and setting forth the details of the
computation of such amount. The prepayment shall be made on the Proposed
Prepayment Date except as provided in paragraph (f) of this Section 8.3.
(f) Deferral Pending Change in Control or Management Buyout -- The
obligation of the Company to prepay Notes pursuant to the offers required by
subparagraphs (a) and (b) and accepted in accordance with paragraph (d) of this
Section 8.3 is subject to the occurrence of the Change of Control or Management
Buyout in respect of which such offers and acceptances shall have been made. In
the event that such Change of Control or Management Buyout does not occur on the
Proposed Prepayment Date in respect thereof, the prepayment shall be deferred
until and shall be made on the date on which such Change of Control or
Management Buyout occurs. The Company shall keep each holder of Notes reasonably
and timely informed of (i) any such deferral of the date of prepayment, (ii) the
date on which such Change of Control or Management Buyout and the prepayment are
expected to occur, and (iii) any determination by the Company that efforts to
effect such Change of Control or Management Buyout have ceased or been abandoned
(in which case
<PAGE>
the offers and acceptances made pursuant to this Section 8.3 in respect of such
Change of Control or Management Buyout shall be deemed rescinded).
(g) Officer's Certificate -- Each offer to prepay the Notes pursuant to
this Section 8.3 shall be accompanied by a certificate, executed by a Senior
Financial Officer of the Company and dated the date of such offer, specifying:
(i) the Proposed Prepayment Date, (ii) that such offer is made pursuant to this
Section 8.3, (iii) the principal amount of each Note offered to be prepaid, (iv)
if applicable, the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation, (v) the interest
that would be due on each Note offered to be prepaid, accrued to the Proposed
Prepayment Date, (vi) that the conditions of this Section 8.3 have been
fulfilled and (vii) in reasonable detail, the nature and date or proposed date
of the Change of Control or Management Buyout.
8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes pursuant to Section
8.2, the principal amount of the Notes to be prepaid shall be allocated among
all of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment.
8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and canceled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6. Purchase of Notes.
The Company will not and will not permit any Affiliate to purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of the outstanding
Notes except upon the payment or prepayment of the Notes in accordance with the
terms of this Agreement and the Notes. The Company will promptly cancel all
Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Agreement and no Notes may
be issued in substitution or exchange for any such Notes.
<PAGE>
8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal of such
Note that is to be prepaid pursuant to Section 8.2 or 8.3 or has become or is
declared to be immediately due and payable pursuant to Section 12.1, as the
context requires.
"Discounted Value" means, with respect to the Called Principal of any Note,
the amount obtained by discounting all Remaining Scheduled Payments with respect
to such Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note, 0.50% plus the yield to maturity implied by (i) the yields reported, as of
10:00 A.M. (New York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on the display designated
as the "PX Screen" on the Bloomberg Financial Market Service (or such other
display as may replace the PX Screen on Bloomberg Financial Market Service) for
actively traded U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement Date, or
(ii) if such yields are not reported as of such time or the yields reported as
of such time are not ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported as of
the second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to bond- equivalent
yields in accordance with accepted financial practice and (b) interpolating
linearly between (1) the actively traded U.S. Treasury security with the
maturity closest to and greater than the Remaining Average Life and (2) the
actively traded U.S. Treasury security with the maturity closest to and less
than the Remaining Average Life.
<PAGE>
"Remaining Average Life" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (i) such Called Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of years (calculated to the
nearest one-twelfth year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called Principal
of any Note, all payments of such Called Principal and interest thereon that
would be due after the Settlement Date with respect to such Called Principal if
no payment of such Called Principal were made prior to its scheduled due date,
provided that if such Settlement Date is not a date on which interest payments
are due to be made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued to such Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2, 8.3 or 12.1.
"Settlement Date" means, with respect to the Called Principal of any Note,
the date on which such Called Principal is to be prepaid pursuant to Section 8.2
or 8.3 or has become or is declared to be immediately due and payable pursuant
to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
9.1. Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with all
laws, ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, ERISA and Environmental Laws, and will
obtain and maintain in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each
case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.2. Insurance.
<PAGE>
The Company will and will cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3. Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.4. Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to file all tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any Subsidiary, provided
that neither the Company nor any Subsidiary need pay any such tax or assessment
or claim if (i) the amount, applicability or validity thereof is contested by
the Company or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonpayment of all such taxes and assessments in
the aggregate could not reasonably be expected to have a Material Adverse
Effect.
9.5. Corporate Existence, etc.
The Company will at all times preserve and keep in full force and effect
its corporate existence. Subject to Sections 10.5 and 10.6, the Company will at
all times preserve and keep in full force and effect the corporate existence of
each of its Subsidiaries (unless merged into the Company or a Subsidiary) and
all rights and franchises of the Company and its Subsidiaries unless, in the
good faith judgment of the Company, the termination of or failure to preserve
and keep in full force and effect such corporate
<PAGE>
existence, right or franchise could not, individually or in the aggregate, have
a Material Adverse Effect.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
10.1. Adjusted Consolidated Net Worth.
The Company will not permit Adjusted Consolidated Net Worth at any time to
be less than $150,000,000.
10.2. Funded Debt.
The Company will not, and will not permit any Subsidiary to, create,
assume, incur or otherwise become liable for, directly or indirectly, any Funded
Debt, other than:
(a) the Notes;
(b) existing Funded Debt of the Company described in Schedule 5.15,
including any renewal, extension or refunding thereof;
(c) Funded Debt of a Subsidiary owed to the Company or a Wholly
Owned Subsidiary; and
(d) additional Funded Debt (including any additional series of
notes issued hereunder) if, after giving effect to the
incurrence of such Funded Debt and to the application of
proceeds thereof, Consolidated Funded Debt would not exceed 60%
of Consolidated Total Capitalization.
10.3. Fixed Charge Coverage Ratio.
The Company will not permit the ratio (calculated as of the last day of
each fiscal quarter) of Consolidated Cash Flow to Consolidated Fixed Charges for
the period of eight quarters ending as of last day of each fiscal quarter to be
less than 2.0 to 1.0. If the Company or a Subsidiary acquires any Person (or the
assets thereof) resulting in such Person becoming, or otherwise resulting in, a
Subsidiary, compliance with this Section 10.3 shall be determined by calculating
Consolidated Cash Flow and Consolidated Fixed Charges on a pro forma basis as if
such Subsidiary had become such at the beginning of the eight-quarter period.
10.4. Limitations on Liens.
<PAGE>
The Company will not, and will not permit any Subsidiary to, permit to
exist, create, assume or incur, directly or indirectly, any Lien on its
properties or assets, whether now owned or hereafter acquired, except:
(a) Liens existing as of the date of Closing that are listed in Schedule
10.4;
(b) Liens (i) incidental to the conduct of business or the ownership of
properties and assets (including landlords', lessors', carriers',
warehousemen's, mechanics', materialmen's and other similar Liens), which Liens
do not in the aggregate materially detract from the value of the assets of the
Company and its Subsidiaries taken as a whole or materially impair the use
thereof in the operation of their businesses, and (ii) to secure the performance
of bids, tenders, leases or trade contracts, or to secure statutory obligations
(including obligations under workers compensation, unemployment insurance and
other social security legislation), surety or appeal bonds or other Liens of
like general nature incurred in the ordinary course of business and not in
connection with the borrowing of money;
(c) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances, in each case incidental
to, and not interfering with, the ordinary conduct of the business of the
Company or any of its Subsidiaries, provided that such Liens do not, in the
aggregate, materially detract from the value of such property;
(d) Liens (i) existing on property at the time of its acquisition or
construction by the Company or a Subsidiary and not created in contemplation
thereof, whether or not the Indebtedness secured by such Lien is assumed by the
Company or a Subsidiary; or (ii) on property created contemporaneously or within
365 days of the acquisition or completion of construction or improvement thereof
to secure or provide for all or a portion of the purchase price or cost of
construction or improvement of such property after the date of Closing; or (iii)
existing on property of a Person at the time such Person is merged or
consolidated with, or becomes a Subsidiary of, or substantially all of its
assets are acquired by, the Company or a Subsidiary and not created in
contemplation thereof; provided that in the case of clauses (i), (ii) and (iii)
such Liens do not extend to additional property of the Company or any Subsidiary
(other than property that is an improvement to or is acquired for specific use
in connection with the subject property) and the aggregate principal amount of
Indebtedness secured by each such Lien does not exceed the fair market value
(determined in good faith by the board of directors of the Company);
(e) Liens for taxes, assessments or governmental charges not then due and
delinquent or the nonpayment of which is permitted by Section 9.4;
<PAGE>
(f) any attachment or judgment Lien, unless the judgment it secures shall
not, within 60 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall not have been discharged within 60 days
after the expiration of any such stay;
(g) the extension, renewal or replacement of any Lien permitted by Sections
10.4(a) and (d), provided that (i) there is no increase in the principal amount
or decrease in maturity of the Indebtedness secured thereby at the time of such
extension, renewal or replacement, and (ii) any new Lien attaches only to the
same property theretofore subject to such earlier Lien;
(h) Liens securing Indebtedness of a Subsidiary to the Company or another
Wholly Owned Subsidiary; and
(i) in addition to the Liens permitted by paragraphs (a) through (h) of
this Section 10.4, Liens securing Indebtedness of the Company or a Subsidiary
that is not otherwise permitted to be outstanding pursuant paragraphs (a)
through (h), provided that Priority Debt does not at any time exceed 20% of
Consolidated Adjusted Net Worth.
10.5. Merger, Consolidation, etc.
The Company will not, and will not permit any Subsidiary to, consolidate
with or merge with any other Person or convey, transfer, sell or lease all or
substantially all of its assets in a single transaction or series of
transactions to any Person except that:
(a) the Company may consolidate or merge with any other Person or convey,
transfer, sell or lease all or substantially all of its assets in a single
transaction or series of transactions to any Person, provided that:
(i) the successor formed by such consolidation or the survivor of such
merger or the Person that acquires by conveyance, transfer, sale or lease all or
substantially all of the assets of the Company as an entirety, as the case may
be, is a solvent corporation organized and existing under the laws of the United
States or any State thereof (including the District of Columbia), and, if the
Company is not such corporation, such corporation (y) shall have executed and
delivered to each holder of any Notes its assumption of the due and punctual
performance and observance of each covenant and condition of this Agreement and
the Notes and (z) shall have caused to be delivered to each holder of any Notes
an opinion of independent counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and comply with the
terms hereof;
<PAGE>
(ii) immediately after giving effect to such transaction, the successor
formed by such consolidation or the survivor of such merger or the Person that
acquires by conveyance, transfer, sale or lease all or substantially all of the
assets of the Company as an entirety, as the case may be, could incur $1.00 of
additional Funded Debt; and
(iii) immediately after giving effect to such transaction, no Default or
Event of Default shall exist; and
(b) Any Subsidiary may (x) merge into the Company (provided that the
Company is the surviving corporation) or another Wholly Owned Subsidiary or (y)
sell, transfer or lease all or any part of its assets to the Company or another
Wholly Owned Subsidiary, or (z) merge or consolidate with, or sell, transfer or
lease all or substantially all of its assets to, any Person in a transaction
that is permitted by Section 10.6 or, as a result of which, such Person becomes
a Subsidiary; provided in each instance set forth in clauses (x) through (z)
that, immediately before and after giving effect thereto, there shall exist no
Default or Event of Default;
No such conveyance, transfer or lease of substantially all of the assets of
the Company shall have the effect of releasing the Company or any successor
corporation that shall theretofore have become such in the manner prescribed in
this Section 10.5 from its liability under this Agreement or the Notes.
10.6. Sale of Assets.
Except as permitted by Section 10.5 hereof, the Company will not, and will
not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of,
including by way of merger (collectively a "Disposition"), any assets, including
capital stock of Subsidiaries, in one or a series of transactions, to any
Person, other than (a) Dispositions in the ordinary course of business, (b)
Dispositions by a Subsidiary to the Company or another Wholly Owned Subsidiary
or (c) Dispositions not otherwise permitted by Section 10.6(a) or (b), provided
that (i) each such Disposition is for a consideration at least equal to the fair
market value of the property subject thereto, (ii) the aggregate net book value
of all assets so disposed of in any fiscal year pursuant to this Section 10.6(c)
does not exceed 25% of Consolidated Total Assets as of the end of the
immediately preceding fiscal year, and (iii) after giving effect to such
Disposition no Default or Event of Default would exist. Notwithstanding the
foregoing, the Company may, and may permit any Subsidiary to, make a Disposition
and the assets subject to such Disposition shall not be subject to or included
in the foregoing limitation and computation contained in clause (c) of the
preceding sentence to the extent that (A) the net proceeds from such Disposition
are within 365 days of such Disposition (y) reinvested or committed to be
reinvested in productive assets of a similar nature of at least equivalent value
by the Company or a Subsidiary or (z) applied to the payment or prepayment of
any outstanding Indebtedness of the Company and its Subsidiaries
<PAGE>
that is not subordinated to the Notes (provided that if any such Indebtedness
permits reborrowing by the Company or such Subsidiary, the commitment to relend
is permanently reduced by the amount of such payment) and (B) after giving
effect to such Disposition no Default or Event of Default would exist. Any
prepayment of Notes pursuant to this Section 10.6 shall be in accordance with
Section 8.2.
10.7. Nature of Business.
The Company will not, and will not permit any Subsidiary to, engage in any
business if, as a result thereof, the general nature of the business in which
the Company and its Subsidiaries, taken as a whole, would then be engaged, would
be substantially changed from the general nature of the business in which the
Company is engaged on the date of this Agreement as described in the Memorandum.
10.8. Transactions with Affiliates.
The Company will not and will not permit any Subsidiary to enter into
directly or indirectly any Material transaction or Material group of related
transactions (including the purchase, lease, sale or exchange of properties of
any kind or the rendering of any service) with any Affiliate (other than the
Company or another Subsidiary), except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for
more than five Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any term
contained in Section 7.1(d) or Sections 10.1 through 10.8; or
(d) the Company defaults in the performance of or compliance with any term
contained herein (other than those referred to in paragraphs (a), (b) and (c) of
this Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge of such default
and (ii) the Company receiving written notice of such default; or
<PAGE>
(e) any representation or warranty made in writing by or on behalf of the
Company or by any officer of the Company in, or pursuant to the requirements of,
this Agreement or in connection with the issuance and sale of the Notes proves
to have been false or incorrect in any material respect on the date as of which
made; or
(f) (i) the Company or any Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Indebtedness that is outstanding in an
aggregate principal amount of at least $5,000,000 beyond any period of grace
provided with respect thereto, or (ii)the Company or any Subsidiary is in
default in the performance of or compliance with any term of any evidence of any
Indebtedness in an aggregate outstanding principal amount of at least $5,000,000
or of any mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition such
Indebtedness has become, or has been declared, due and payable before its stated
maturity or before its regularly scheduled dates of payment, or (iii) as a
consequence of the occurrence or continuation of any event or condition (other
than the passage of time or the right of the holder of Indebtedness to convert
such Indebtedness into equity interests), the Company or any Subsidiary has
become obligated to purchase or repay Indebtedness before its regular maturity
or before its regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least $5,000,000; or
(g) the Company or any Subsidiary (i) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a petition for
relief or reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an assignment
for the benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for
the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction enters an
order appointing, without consent by the Company or any of its Subsidiaries, a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, or constituting
an order for relief or approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Company or any of its Subsidiaries, or any
<PAGE>
such petition shall be filed against the Company or any of its Subsidiaries and
such petition shall not be dismissed within 30 days; or
(i) a final judgment or judgments for the payment of money aggregating in
excess of $5,000,000 are rendered against one or more of the Company and its
Subsidiaries and which judgments are not, within 60 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not discharged within 60
days after the expiration of such stay; or
(j) 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 $5,000,000, (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; 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.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (g) or (h) of Section 11 (other than an Event of Default described in
clause (i) of paragraph (g) or described in clause (vi) of paragraph (g) by
virtue of the fact that such clause encompasses clause (i) of paragraph (g)) has
occurred, all the Notes then outstanding shall automatically become immediately
due and payable.
<PAGE>
(b) If any other Event of Default has occurred and is continuing, the
holders of a majority in principal amount of the Notes at the time outstanding
may at any time at their option, by notice or notices to the Company, declare
all the Notes then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section 11
has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it or
them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and payable pursuant to
clause (b) or (c) of Section 12.1, the holders of a majority in principal amount
of the Notes then outstanding, by written notice to the Company, may rescind and
annul any such declaration and its consequences if (a) the Company has paid all
overdue interest on the Notes, all principal of and Make-Whole Amount, if any,
on any Notes that are due and payable and are unpaid other than by reason of
such declaration, and all interest on such overdue principal and Make-Whole
Amount, if any, and (to the extent permitted by
<PAGE>
applicable law) any overdue interest in respect of the Notes, at the
Default Rate, (b) all Events of Default and Defaults, other than non-payment of
amounts that have become due solely by reason of such declaration, have been
cured or have been waived pursuant to Section 17, and (c) no judgment or decree
has been entered for the payment of any monies due pursuant hereto or to the
Notes. No rescission and annulment under this Section 12.3 will extend to or
affect any subsequent Event of Default or Default or impair any right consequent
thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the Company
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the Company
for registration of transfer or exchange (and in the case of a surrender for
registration of transfer, duly endorsed or accompanied by a written instrument
of transfer duly executed by the registered holder of such Note or his attorney
duly authorized in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute and deliver,
at the Company's expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange therefor, in an aggregate principal
<PAGE>
amount equal to the unpaid principal amount of the surrendered Note. Each
such new Note shall be payable to such Person as such holder may request and
shall be substantially in the form of Exhibit 1. Each such new Note shall be
dated and bear interest from the date to which interest shall have been paid on
the surrendered Note or dated the date of the surrendered Note if no interest
shall have been paid thereon. The Company may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in denominations of
less than $500,000, provided that if necessary to enable the registration of
transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $500,000. Any transferee, by its acceptance of a Note
registered in its name (or the name of its nominee), shall be deemed to have
made the representations set forth in Section 6.2.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a nominee
for, an original Purchaser or another holder of a Note that is an Institutional
Investor, such Person's own unsecured agreement of indemnity shall be deemed to
be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof, the
Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if any,
and interest becoming due and payable on the Notes shall be made in Chicago,
Illinois, at the principal office of Bank of America. The Company may at any
time, by notice to each holder of a Note, change the place of payment of the
Notes so long as such place of payment shall be either the principal office of
the Company in such jurisdiction or the principal office of a bank or trust
company in such jurisdiction.
14.2. Home Office Payment.
<PAGE>
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange
for a new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated, the
Company will pay all costs and expenses (including reasonable attorneys' fees of
a special counsel and, if reasonably required, local or other counsel) incurred
by you and each Other Purchaser or holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or
in respect of this Agreement or the Notes (whether or not such amendment, waiver
or consent becomes effective), including, without limitation: (a) the costs and
expenses incurred in enforcing or defending (or determining whether or how to
enforce or defend) any rights under this Agreement or the Notes or in responding
to any subpoena or other legal process or informal investigative demand issued
in connection with this Agreement or the Notes, or by reason of being a holder
of any Note, and (b) the costs and expenses, including financial advisors' fees,
incurred in connection with the insolvency or bankruptcy of the Company or any
Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses if any, of brokers and finders (other
than those retained by you).
15.2. Survival.
<PAGE>
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
All representations and warranties contained herein speak as of the date
made or deemed herein to be made and shall survive the execution and delivery of
this Agreement and the Notes, the purchase or transfer by you of any Note or
portion thereof or interest therein and the payment of any Note, and may be
relied upon by any subsequent holder of a Note, regardless of any investigation
made at any time by or on behalf of you or any other holder of a Note. All
statements contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant to this Agreement shall be deemed representations
and warranties of the Company under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement and
understanding between you and the Company and supersede all prior agreements and
understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the observance of any term
hereof or of the Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and the Required
Holders, except that (a) no amendment or waiver of any of the provisions of
Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used
therein), will be effective as to you unless consented to by you in writing, and
(b) no such amendment or waiver may, without the written consent of the holder
of each Note at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or
20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the
<PAGE>
provisions hereof or of the Notes. The Company will deliver executed or true and
correct copies of each amendment, waiver or consent effected pursuant to the
provisions of this Section 17 to each holder of outstanding Notes promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b) Payment. 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, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of Notes or any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even if such holder
did not consent to such waiver or amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then outstanding approved
or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified
<PAGE>
mail with return receipt requested (postage prepaid), or (c) by a recognized
overnight delivery service (with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified for
such communications in Schedule A, or at such other address as you or it shall
have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address as
such other holder shall have specified to the Company in writing, or
(iii) if to the Company, to the Company at its address set forth at the
beginning hereof to the attention of Treasurer, or at such other address as the
Company shall have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction 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 any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate that any such reproduction is not accurate,
has been altered or is otherwise incomplete.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "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 in writing 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,
<PAGE>
(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 7.1 that are otherwise
publicly available. You will maintain the confidentiality of 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,
trustees, 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 20, (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 20), (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 20), (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 (w) to effect compliance with any law, rule,
regulation or order applicable to you, (x) in response 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 20 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 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the
<PAGE>
Company of notice of such transfer, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall no longer be deemed
to refer to such Affiliate, but shall refer to you, and you shall have all the
rights of an original holder of the Notes under this Agreement.
22. ADDITIONAL SERIES OF NOTES.
22.1. Issuance of Additional Series of Notes.
The Company may, from time to time, issue and sell additional series of its
unsecured promissory notes (each additional series being designated by the next
succeeding letter of the alphabet following designation of the immediately
preceding series) to one or more additional purchasers (which may include any
Purchaser if such Purchaser shall in its sole discretion consent thereto) and
may, in connection with the documentation of such additional series, incorporate
by reference all of or certain of the provisions of this Agreement; provided,
however, that such incorporation by reference shall not dilute or otherwise
affect the relative priority or other rights of the Purchasers of the Notes
hereunder or any subsequent series of notes, including the percentages of the
Notes required to approve an amendment to this Agreement or to effect a waiver
pursuant to Section 17.1 or the percentages of the Notes required to accelerate
the maturity of the Notes or to rescind such an acceleration of the maturity of
the Notes pursuant to Sections 12.1 and 12.3. Under no circumstances shall the
issuance of additional series of Notes by the Company in any way modify or amend
this Agreement or the meaning of the term "Notes" as used in this Agreement.
This Section 22 does not in any manner obligate the Purchasers or the holders of
the Notes to purchase or agree to purchase additional series of the Company"s
unsecured promissory notes now or at any time in the future.
22.2. Conditions to Additional Series of Notes.
The Company may (but shall not be required to) at any time, or from time to
time, offer to the Purchasers an opportunity to purchase additional promissory
notes. At such time the Company shall provide such offeree with additional
information regarding the terms of such additional promissory notes, the timing
of the offering and whatever additional information as the Purchasers may
request. If a Purchaser fails to respond to such an offer, it shall be deemed to
have rejected the Company's offer. The Purchasers shall have no obligation to
give any consideration to the offer whatsoever or to make any such additional
purchase, and may reject such offers at their sole discretion. In the event that
the Company and a Purchaser shall mutually agree to such an additional purchase,
the issuance of each such additional series of promissory notes shall occur upon
the execution by the Company and the Purchaser of a terms agreement
substantially in the form of Exhibit 22.2, appropriately completed, and
satisfaction by the Company of all of the conditions to closing and funding set
forth in Section 4, with such changes as shall be appropriate to such additional
series of promissory notes, and the delivery of such additional closing
documents and opinions the Purchaser shall request.
<PAGE>
23. MISCELLANEOUS.
23.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
23.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary notwithstanding,
any payment of principal of or Make-Whole Amount or interest on any Note that is
due on a date other than a Business Day shall be made on the next succeeding
Business Day without including the additional days elapsed in the computation of
the interest payable on such next succeeding Business Day.
23.3. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
23.4. Construction.
Each covenant contained herein shall be construed (absent express provision
to the contrary) as being independent of each other covenant contained herein,
so that compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with any other covenant.
Where any provision herein refers to action to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.
23.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed by less
than all, but together signed by all, of the parties hereto.
23.6. Governing Law.
<PAGE>
This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of- law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
* * * * *
<PAGE>
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
------------------------
Name: Ronald M. Lamb
Title: Chief Executive Officer
Attest:
By: /s/ John G. Harmon
------------------------
Name: John G. Harmon
Title: Secretary/Treasurer
<PAGE>
The foregoing is agreed to as of the date thereof.
NEW YORK LIFE INSURANCE COMPANY
By: /s/ A. Post Howland
-------------------------
Name: A. Post Howland
Title: Investment Manager
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: New York Life Asset Management
Operating Company LLC,
Its Investment Manager
By: /s/ David L. Bangs
-----------------------
Name: David L. Bangs
Title: Vice President
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY
OF NEW YORK
By: /s/ Jeffrey A. Mazer
------------------------
Name: Jeffrey A. Mazer
By: /s/ Patricia W. Wilson
---------------------------
Name: Patricia W. Wilson
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Jeffrey A. Mazer
------------------------
Name: Jeffrey A. Mazer
By: /s/ Patricia W. Wilson
--------------------------
Name: Patricia W. Wilson
Authorized Signatories
AMERICAN HERITAGE LIFE INSURANCE
COMPANY
By: /s/ Jeffrey A. Mazer
------------------------
Name: Jeffrey A. Mazer
By: /s/ Patricia W. Wilson
---------------------------
Name: Patricia W. Wilson
Authorized Signatories
<PAGE>
COLUMBIA UNIVERSAL LIFE
INSURANCE COMPANY
By: /s/ Jeffrey A. Mazer
-----------------------
Name: Jeffrey A. Mazer
By: /s/ Patricia W. Wilson
--------------------------
Name: Patricia W. Wilson
Authorized Signatories
<PAGE>
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: Cigna Investments, Inc.
(authorized agent)
By: /s/ James R. Kuzemchak
-----------------------------
Name: James R. Kuzemchak
Title: Managing Director
LIFE INSURANCE COMPANY OF NORTH
AMERICA
By: Cigna Investments, Inc. (authorized agent)
By: /s/ James R. Kuzemchak
-----------------------------
Name: James R. Kuzemchak
Title: Managing Director
<PAGE>
AMERICAN INVESTORS LIFE INSURANCE
COMPANY
By: /s/ Roger D. Fors
---------------------
Name: Roger D. Fors
Title: V.P. Investment Management & Research
<PAGE>
KNIGHTS OF COLUMBUS
By: /s/ Robert J. Lane
----------------------
Name: Robert J. Lane
Title: Assistant Supreme Secretary
<PAGE>
MODERN WOODMEN OF AMERICA
By: /s/ Clyde C. Schoeck
-------------------------
Name: Clyde C. Schoeck
Title: President
<PAGE>
ACACIA LIFE INSURANCE COMPANY
By: Ameritas Investment Advisors Inc.,
as Agent
By: /s/ Patrick J. Henry
------------------------
Name: Patrick J. Henry
Title: Vice President - Fixed Income Securities
<PAGE>
BERKSHIRE LIFE INSURANCE COMPANY
By: /s/ Ellen I. Whittaker
--------------------------
Name: Ellen I. Whittaker
Title: Senior Investment Officer
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
NEW YORK LIFE INSURANCE $16,000,000
COMPANY
(1) All payments by wire or intrabank transfer of immediately available
funds to:
Chase Manhattan Bank
New York, New York 10019
ABA No. 021-000-021
Credit: New York Life Insurance Company
General Account No. 008-9-00687
with sufficient information (including issuer, PPN number, interest rate,
maturity and whether payment is of principal, premium, or interest) to identify
the source and application of such funds.
with advice of such payments to:
New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Treasury Department
Securities Income Section
Room 209
Fax #: (212) 447-4160
(2) All other communications:
New York Life Insurance Company
51 Madison Avenue
New York, New York 10010
1
Schedule A
<PAGE>
Attention: Investment Department
Private Finance Group
Room 206
Fax #: (212) 447-4122
with a copy of any notices regarding defaults or Events of Default under
the operative documents to:
Attention: Office of General Counsel
Investment Section, Room 1104
Fax #: (212) 576-8340
Tax ID #13-5582869
2
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
NEW YORK LIFE INSURANCE $10,000,000
AND ANNUITY CORPORATION
(1) All payments by wire or intrabank transfer of immediately available
funds to:
Chase Manhattan Bank
New York, New York 10019
ABA No. 021-000-021
Credit: New York Life Insurance and Annuity Corporation
General Account No. 323-8-47382
with sufficient information (including issuer, PPN number, interest rate,
maturity and whether payment is of principal, premium, or interest) to identify
the source and application of such funds.
with advice of such payments to:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Treasury Department
Securities Income Section
Room 209
Fax #: (212) 447-4160
(2) All other communications:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
3
Schedule A
<PAGE>
New York, New York 10010-1603
Attention: Investment Department
Private Finance Group
Room 206
Fax #: (212) 447-4122
with a copy of any notices regarding defaults or Events of Default
under the operative documents to:
Attention: Office of General Counsel
Investment Section, Room 1104
Fax #: (212) 576-8340
Tax ID #13-3044743
4
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
ALLSTATE LIFE INSURANCE $10,000,000
COMPANY OF NEW YORK
(1) All payments by Fedwire transfer of immediately availabl funds,
identifying the name of the Issuer, the Private Placement Number preceded by
"DPP" and the payment as principal, interest or premium, in the format as
follows:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company
Collection Account #168-120-4
ORG = (Enter Issuer Name)
OBI = DPP - (Enter Private Placement No., if available)
Payment Due Date (MM/DD/YY) - P (Enter "P" and amount of principal being
remitted, for example, P5000000.00) - I (Enter "I" and amount of interest being
remitted, for example, I225000.00) (2) All notices of scheduled payments and
written confirmations of such wire transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
(3) Securities to be delivered to:
Citibank, Federal Savings Bank
500 W. Madison Street
Floor 6, Zone 4
5
Schedule A
<PAGE>
Chicago, Illinois 60661-2591
Attention: Ellen Lorden
For Allstate Life Insurance Company of New York/Safekeeping Account
No. 846684
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-8922
Telecopy: (847) 402-3092
Tax ID #36-2608394
6
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
ALLSTATE LIFE INSURANCE COMPANY $1,000,000
(1) All payments by Fedwire transfer of immediately availabl funds,
identifying the name of the Issuer, the Private Placement Number preceded by
"DPP" and the payment as principal, interest or premium, in the format as
follows:
BBK = Harris Trust and Savings Bank ABA #071000288 BNF = Allstate Life
Insurance Company Collection Account #168-117-0 ORG = (Enter Issuer Name) OBI =
DPP - (Enter Private Placement No., if available) Payment Due Date (MM/DD/YY) -
P (Enter "P" and amount of principal being remitted, for example, P5000000.00) -
I (Enter "I" and amount of interest being remitted, for example, I225000.00) (2)
All notices of scheduled payments and written confirmations of such wire
transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
(3) Securities to be delivered to:
Citibank, Federal Savings Bank
500 W. Madison Street
Floor 6, Zone 4
Chicago, Illinois 60661-2591
7
Schedule A
<PAGE>
Attention: Ellen Lorden
For Allstate Life Insurance Company/Safekeeping Account No. 846627
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-8922
Telecopy: (847) 402-3092
Tax ID #36-2554642
8
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
AMERICAN HERITAGE LIFE INSURANCE COMPANY $2,000,000
(1) All payments by Fedwire transfer of immediately availabl funds,
identifying the name of the Issuer, the Private Placement Number preceded by
"DPP" and the payment as principal, interest or premium, in the format as
follows:
BBK = Harris Trust and Savings Bank ABA #071000288 BNF = American Heritage
Life Insurance Company Collection Account #172-504-3 ORG = (Enter Issuer Name)
OBI = DPP - (Enter Private Placement No., if available) Payment Due Date
(MM/DD/YY) - P (Enter "P" and amount of principal being remitted, for example,
P5000000.00) - I (Enter "I" and amount of interest being remitted, for example,
I225000.00) (2) All notices of scheduled payments and written confirmations of
such wire transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
(3) Securities to be delivered to:
Citibank, Federal Savings Bank
U. S. Custody & Employee Benefit Trust
500 W. Madison Street, Floor 6, Zone 4
Chicago, Illinois 60661-2591
9
Schedule A
<PAGE>
Attention: Pam Jost
For American Heritage Life Insurance Company/Safekeeping Account
No. 846928
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-8922
Telecopy: (847) 402-3092
Tax ID #59-0781901
10
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
ALLSTATE LIFE INSURANCE COMPANY $2,000,000
Name in Notes are to be issued: CITIBANK, FEDERAL SAVINGS BANK, as
Collateral Agent and Trustee Under the Security and Trust Agreement Dated as of
September 1, 1993 (Northbrook Life Insurance Company, Secured Party and
Beneficiary) (1) All payments by Fedwire transfer of immediately availabl funds,
identifying the name of the Issuer, the Private Placement Number preceded by
"DPP" and the payment as principal, interest or premium, in the format as
follows:
BBK = Harris Trust and Savings Bank ABA #071000288 BNF = Allstate Life
Insurance Company Collection Account #168-124-6 ORG = (Enter Issuer Name) OBI =
DPP - (Enter Private Placement No., if available) Payment Due Date (MM/DD/YY) -
P (Enter "P" and amount of principal being remitted, for example, P5000000.00) -
I (Enter "I" and amount of interest being remitted, for example, I225000.00) (2)
All notices of scheduled payments and written confirmations of such wire
transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
(3) Securities to be delivered to:
11
Schedule A
<PAGE>
Citibank, Federal Savings Bank
U. S. Custody & Employee Benefit Trust
500 W. Madison Street, Floor 6, Zone 4
Chicago, Illinois 60661-2591
Attention: Pam Jost
For Allstate Life Insurance Company/Safekeeping Account No. 846635
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-8922 / Telecopy: (847) 402-3092
Tax ID #36-2554642
12
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
COLUMBIA UNIVERSAL LIFE INSURANCE $5,000,000
COMPANY
(1) All payments by Fedwire transfer of immediately availabl funds,
identifying the name of the Issuer, the Private Placement Number preceded by
"DPP" and the payment as principal, interest or premium, in the format as
follows:
BBK = Harris Trust and Savings Bank ABA #071000288 BNF = Columbia Universal
Life Insurance Company Collection Account #224-802-9 ORG = (Enter Issuer Name)
OBI = DPP - (Enter Private Placement No., if available) Payment Due Date
(MM/DD/YY) - P (Enter "P" and amount of principal being remitted, for example,
P5000000.00) - I (Enter "I" and amount of interest being remitted, for example,
I225000.00) (2) All notices of scheduled payments and written confirmations of
such wire transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
(3) Securities to be delivered to:
Citibank, Federal Savings Bank
U. S. Custody & Employee Benefit Trust
500 W. Madison Street, Floor 6, Zone 4
13
Schedule A
<PAGE>
Chicago, Illinois 60661-2591
Attention: Pam Jost
For Columbia Universal Life Insurance Company/Safekeeping Account
No. 846929
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-8922
Telecopy: (847) 402-3092
Tax ID #75-0956156
14
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
CONNECTICUT GENERAL LIFE $4,200,000
INSURANCE COMPANY 4,200,000
1,500,000
1,000,000
1,000,000
Nominee Name in which Notes are to be issued: CIG & Co.
(1) All payments by Federal Funds wire transfer of immediately available
funds to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA# 021000021
with the following accompanying information:
OBI = Casey's General Stores, Inc.; 7.89% Senior Notes, Series A; PPN
147528 D@9; due May 15, 2010; [application (as among principal, premium and
interest of the payment being made); contact name and phone]
(2) Notices related to payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing - S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S-307
15
Schedule A
<PAGE>
Operations Group
900 Cottage Grove Road
Hartford, CT 06152-2307
Fax: (860) 726-7203
with a copy to:
Chase Manhattan Bank
Private Placement Servicing
P.O. Box 1508
Bowling Green Station
New York, NY 10081
Attention: CIGNA Private Placements
Fax: (212) 552-3107/1005
(3) All other communications:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
900 Cottage Grove Road
Hartford, CT 06152-2307
Fax: (860) 726-7203
(4) Deliver the originals of all the securities, together with CIGNA's
"Transmittal of Securities to Custodian" Form directly to CIGNA's custodian:
The Chase Manhattan Bank
Attn: Larry Zimmer
4 New York Plaza, 11th Floor
New York, NY 10004
Tax ID #13-3574027
16
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
LIFE INSURANCE COMPANY $3,100,000
OF NORTH AMERICA
Nominee Name in which Notes are to be issued: CIG & Co.
(1) All payments by Federal Funds wire transfer of immediately available
funds to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA# 021000021
with the following accompanying information:
OBI = Casey's General Stores, Inc.; 7.89% Senior Notes, Series A; PPN
147528 D@9; due May 15, 2010; [application (as among principal, premium and
interest of the payment being made); contact name and phone]
(2) Notices related to payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing - S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities - S-307
Operations Group
900 Cottage Grove Road
Hartford, CT 06152-2307
17
Schedule A
<PAGE>
Fax: (860) 726-7203
with a copy to:
Chase Manhattan Bank
Private Placement Servicing
P.O. Box 1508
Bowling Green Station
New York, NY 10081
Attention: CIGNA Private Placements
Fax: (212) 552-3107/1005
(3) All other communications:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
900 Cottage Grove Road
Hartford, CT 06152-2307
Fax: (860) 726-7203
(4) Deliver the originals of all the securities, together with CIGNA's
"Transmittal of Securities to Custodian" Form directly to CIGNA's custodian:
The Chase Manhattan Bank
Attn: Larry Zimmer
4 New York Plaza, 11th Floor
New York, NY 10004
Tax ID #13-3574027
18
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
AMERICAN INVESTORS LIFE INSURANCE $5,000,000
COMPANY
Nominee Name in which Notes are to be Issued: Hare & Co.
(1) All payments by wire transfer of immediately available funds to:
The Bank of New York
New York, NY
ABA #021000018
Credit Account #0000010048
American Investors Life Insurance Company
Ref: Issue Name, Coupon, Maturity Date, PPN Number
with sufficient information (including Name of Company, Description of
Security, PPN, Due Date and Application (as among principal, Make-Whole Amount
and Interest)) to identify the source and application of such funds.
(2) All notices of payments and written confirmations of such wire
transfers:
American Investors Life Insurance Company
c/o AmerUs Capital Management
699 Walnut Street, Suite 1700
Des Moines, IA 50309
Attn: Amy Fread
Tel: (515) 283-3427
Fax: (515) 283-3434
(3) All other communications:
American Investors Life Insurance Company
c/o AmerUs Capital Management
19
Schedule A
<PAGE>
699 Walnut Street, Suite 1700
Des Moines, IA 50309
Attn: Steve Sweeney
Tel: (515) 362-3542
Fax: (515) 283-3434
(4) Instruction for Delivery of Notes:
The Bank of New York
One Wall Street, 3rd Floor
Window A
FAO: American Investors Life Insurance Company, A/C #010048
New York, NY 10286
Attn: Rich Reinhold (212) 635-4611
or Anthony Marrero (212) 635-4608
Tax ID #48-0696320 (American Investors Life Insurance Company)
#13-6062916 (Hare & Co.)
20
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
KNIGHTS OF COLUMBUS $5,000,000
(1) All payments on or in respect of the Notes to be by bank wire transfer
of Federal or other immediately available funds (identifying each payment as
"Casey's General Stores, Inc. 7.89% Senior Notes, Series A, due May 15, 2010")
to:
Bank of New York (ABA #021-000-018)
One Wall Street
New York, New York 10286
for credit to:
Knights of Columbus General Account
Account #8900300825
(2) All notices with respect to payments and written confirmation of each
such payment to:
Knights of Columbus
P.O. Box 2016
New Haven, CT 06521-2016
Attention: Accounting Department
Contact: Maria Sobko
Phone: (203) 772-2130
(3) All other communication to:
Knights of Columbus
One Columbus Plaza
New Haven, CT 06510-3326
Attention: Investment Department
Telecopier Number: (203) 772-0037
21
Schedule A
<PAGE>
Tax ID #06-0416470
22
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
MODERN WOODMEN OF AMERICA $5,000,000
(1) All payments on account of Notes held by such purchaser shall be made
by wire transfer of immediately available funds for credit to:
The Northern Trust Company 50 South LaSalle Street Chicago, IL
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 D@9 and the due date and application (as
among principal, premium and interest) of the payment being made.
(2) Address for all notices relating to payments:
Modern Woodmen of America
Attn: Investment Accounting Department
1701 First Avenue
Rock Island, IL 61201
(3) Address for all other communications and notices:
Modern Woodmen of America
Attn: Investment Department
1701 First Avenue
Rock Island, IL 61201
23
Schedule A
<PAGE>
Tax ID #36-1493430
24
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
ACACIA LIFE INSURANCE COMPANY $2,000,000
Nominee name in which Notes are to be Issued: Hare & Co.
(1) All payments by wire transfer of immediately available funds to:
BK of NYC/BBK
BK of NY ABA #021000018
IOC 566/Income Collections
Acacia Life Insurance Company; Cusip; Name of Issue
with sufficient information to identify the source and application of
such funds.
(2) All notices of payments and written confirmations of such wire
transfers:
Acacia Life Insurance Company
Ameritas Investment Advisors, Inc.
5900 'O' Street
Lincoln, NE 68510
Fax #: (402) 467-6970
(3) All other communications:
Acacia Life Insurance Company
Ameritas Investment Advisors, Inc.
5900 'O' Street
Lincoln, NE 68510
(4) Delivery of certificates by registered mail:
The Bank of New York
Attn: Free Receive Department
25
Schedule A
<PAGE>
One Wall Street, 3rd Floor
New York, NY 10286
Acacia Life Insurance Company #000327
Tax ID #53-0022880
26
Schedule A
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
BERKSHIRE LIFE INSURANCE COMPANY $2,000,000
(1) All payments on account of the Notes in accordance with the provisions
thereof and of this Agreement shall be transmitted by bank wire transfer of
Federal or other immediately available funds for credit to:
Berkshire Life Insurance Company
Account #002-4-020877
The Chase Manhattan Bank, N.A.
ABA #021000021
with sufficient information (including issuer, PPN number, interest rate,
maturity and whether payment is of principal, premium or interest) to identify
the source and application of such funds.
(2) Copies of all notices and confirmations of payments and all other
communications shall be delivered or mailed to:
Berkshire Life Insurance Company
Attention: Securities Department
700 South Street
Pittsfield, MA 01201
Tel: (413) 499-4321
Fax: (413) 442-9763
Tax ID #04-1083480
27
Schedule A
<PAGE>
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
"Adjusted Consolidated Net Worth" means, as of any date, consolidated
stockholders' equity of the Company and its Subsidiaries on such date,
determined in accordance with GAAP, plus deferred taxes and minority interests.
"Affiliate" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or (c) any Person of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "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.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company.
"Business Day" means (a) for the purposes of Section 8.7 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in New York City or Chicago, Illinois are required
or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Change of Control" means the acquisition through purchase or otherwise by
any Person, or group of Persons acting in concert, other than the Control Group,
directly or indirectly, in one or more transactions, of beneficial ownership or
control of securities representing more than 50% of the combined voting power of
the Company's Voting Stock (including the agreement to act in concert by
Persons, other than the Control Group, who
1
Schedule B
<PAGE>
beneficially own or control securities representing more than 50% of the
combined voting power of the Company's Voting Stock).
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" means Casey's General Stores, Inc., an Iowa corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Cash Flow" means, for any period, Consolidated Net Income for
such period, plus, to the extent deducted in determining such Consolidated Net
Income, (i) income tax expense, (ii) Consolidated Fixed Charges, and (iii)
depreciation and amortization expense.
"Consolidated Fixed Charges" means, for any period, the sum of (i)
consolidated interest expense (including capitalized interest and the interest
component of Capital Leases) of the Company and its Subsidiaries for such period
and (ii) Consolidated Rentals for such period.
"Consolidated Funded Debt" means Funded Debt of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income (or
deficit) of the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, but excluding in any event (a) any
extraordinary, unusual or non- recurring gain or loss (net of any tax effect) or
any gain or loss from discontinued operations and (b) net earnings of any Person
(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.
"Consolidated Net Worth" means, as of any date, the consolidated
shareholders' equity of the Company and its Subsidiaries as of such date
determined in accordance with GAAP.
"Consolidated Rentals" means, for any period, the rentals of the Company
and its Subsidiaries for such period under all leases other than Capital Leases,
determined on a consolidated basis in accordance with GAAP.
2
Schedule B
- 2 -
<PAGE>
"Consolidated Total Assets" means, as of any date, the assets and
properties of the Company and its Subsidiaries as of such date determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any date, the sum of
Consolidated Funded Debt and Consolidated Net Worth as of such date.
"Control Event" means:
(a) the execution by the Company or any Subsidiary or Affiliate of any
agreement or letter of intent with respect to any proposed transaction or event
or series of transactions or events which, individually or in the aggregate, may
reasonably be expected to result in a Change of Control or Management Buyout,
(b) the execution of any written agreement that, when fully performed by
the parties thereto, would result in a Change of Control or Management Buyout,
or
(c) the making of any written offer by any person (as such term is used in
section 13(d) and section 14(d)(2) of the Exchange Act as in effect on the date
of the Closing) or related persons constituting a group (as such term is used in
Rule 13d-5 under the Exchange Act as in effect on the date of each Closing) to
the holders of the Voting Stock of the Company, which offer, if accepted by the
requisite number of holders, would result in a Change of Control of Management
Buyout.
"Control Group" means all or any of Donald F. Lamberti, Ronald M. Lamb,
John G. Harmon and Jamie H. Shaffer, the spouse and direct descendants of any of
the foregoing, trusts for the benefit of any of the foregoing, and the estates
or legal representatives of any of the foregoing.
"Default" means 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.
"Default Rate" means that rate of interest that is the greater of (i) 2.0%
per annum above the rate of interest stated in clause (a) of the first paragraph
of the Notes or (ii) 2.0% over the rate of interest publicly announced by Bank
of America in Chicago, Illinois as its "base" or "prime" rate.
3
Schedule B
- 3 -
<PAGE>
"Environmental Laws" means any and all Federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee 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" means 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" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means all Indebtedness that would, in accordance with GAAP,
constitute long-term Indebtedness, including (a) any Indebtedness with a
maturity of more than one year after the date of creation or that is renewable
at the option of the obligor for a period of more than one year from the date of
creation, (b) any Indebtedness outstanding under a revolving credit or similar
agreement providing for borrowings (and renewals and extensions thereof) over a
period of more than one year (including an option of such obligor obligating the
lender or lenders to extend credit over a period of one year or more), and (c)
any Guaranty with respect to Funded Debt of another Person. Notwithstanding
anything to the contrary contained herein, any Indebtedness outstanding under a
revolving credit or similar agreement providing for borrowings that is paid down
for a period of 30 consecutive days during any 12 month period (and not
refinanced with a short- term credit facility) shall not be deemed to constitute
Funded Debt.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
4
Schedule B
- 4 -
<PAGE>
(i) the United States of America or any State or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary conducts all
or any part of its business, or which asserts jurisdiction over any properties
of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such 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) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or payment of such
indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for
the purpose of assuring the owner of such indebtedness or obligation of the
ability of any other Person to make payment of the indebtedness or obligation;
or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor
under any Guaranty, the indebtedness or other obligations that are the subject
of such Guaranty shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing,
5
Schedule B
- 5 -
<PAGE>
treatment, storage, handling, transportation, transfer, use, disposal, release,
discharge, spillage, seepage, or filtration of which is or shall be restricted,
prohibited or penalized by any applicable law (including, without limitation,
asbestos, urea formaldehyde foam insulation and polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"Indebtedness" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money and its redemption obligations in
respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by
such Person (excluding accounts payable arising in the ordinary course of
business but including all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance with GAAP
in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to
any property owned by such Person (whether or not it has assumed or otherwise
become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and other
financial institutions (whether or not representing obligations for borrowed
money); and
(f) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (e).
Indebtedness of any Person shall include all obligations of such Person of
the character described in clauses (a) through (f) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
"Institutional Investor" means (a) any original purchaser of a Note, and
(b) any bank, trust company, savings and loan association or other financial
institution, any
6
Schedule B
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<PAGE>
pension plan, any investment company, any insurance company, any broker or
dealer, or any other similar financial institution or entity, regardless of
legal form.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including, in the case of
stock, shareholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.7.
"Management Buyout" means the acquisition through purchase or otherwise
(including the agreement to act in concert) by any Person or Persons that
include the Control Group, directly or indirectly, in one or more transactions,
of beneficial ownership or control of securities representing more than 50% of
the combined voting power of the Company's Voting Stock.
"Material" means material in relation to the business, operations, affairs,
financial condition, assets, properties, or prospects of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement and the Notes, or (c) the
validity or enforceability of this Agreement or the Notes.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior Financial Officer
or of any other officer of the Company whose responsibilities extend to the
subject matter of such certificate.
"Other Purchasers" is defined in Section 2.
7
Schedule B
- 7 -
<PAGE>
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
"Plan" means 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.
"Priority Debt" means, as of any date, the sum (without duplication) of (i)
outstanding Indebtedness of Subsidiaries, and (ii) Indebtedness of the Company
secured by Liens.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, choate or
inchoate.
"Proposed Prepayment Date" is defined in Section 8.3(c).
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14 issued
by the United States Department of Labor.
"Required Holders" means, at any time, the holders of a majority in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
8
Schedule B
- 8 -
<PAGE>
"Subsidiary" means, as to any Person, any corporation, association or other
business entity in which such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership, limited liability
company or joint venture if more than a 50% interest in the profits or capital
thereof is owned by such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries (unless such partnership or joint
venture can and does ordinarily take major business actions without the prior
approval of such Person or one or more of its Subsidiaries). Unless the context
otherwise clearly requires, any reference to a "Subsidiary" is a reference to a
Subsidiary of the Company.
"Voting Stock" shall mean the capital stock of any class or classes of a
corporation having power under ordinary circumstances to vote for the election
of members of the board of directors of such corporation, or person performing
similar functions (irrespective of whether or not at the time stock of any of
the class or classes shall have or might have special voting power or rights by
reason of the happening of any contingency).
"Wholly Owned Subsidiary" means, at any time, any Subsidiary, 100% of all
of the equity interests (except directors' qualifying shares) and voting
interests of which are owned by any one or more of the Company and the Company's
other Wholly Owned Subsidiaries at such time.
9
Schedule B
- 9 -
<PAGE>
SCHEDULE 4.9
Changes in Corporate Structure
Not Applicable
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.3
Disclosure Materials
Not Applicable
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.4
Organization and Ownership of Shares of Subsidiaries; Affiliates
Percentage of
Jurisdiction Voting Stock
Name of of owned by
Subsidiary Incorporation Company
- ---------- -------------- --------------
Casey's Services Company Iowa 100%
Casey's Marketing Company Iowa 100%
Casey's East Central, Inc. Iowa 100%
Casey's Enterprises, LLC Iowa 100%
The Company's directors and senior officers are identified in the
Memorandum.
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.5
Financial Statements
All financial statements provided to the Purchasers are
included as part of the Memorandum.
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.8
Litigation
Not Applicable
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.11
Licenses, Permits, etc.
Not Applicable
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.14
Use of Proceeds
Repayment of existing short-term indebtednes $49,000,000
General corporate purposes 31,000,000
----------
$80,000,000
----------
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.15
Existing Indebtedness*
Mortgage Notes Payable $ 250,895.38
Capitalized Lease Obligations 4,824,452.70
Ankeny Headquarters Financing 8,873,882.16
Senior Notes 6.55% 14,400,000.00
Senior Notes 7.7% 14,250,000.00
Senior Notes 7.38% 30,000,000.00
Senior Notes 6.18% - 7.23% 50,000,000.00
Lines of Credit 45,950,000.00
-------------
$168,549,230.24
*As of April 30, 2000
1
Exhibit 1
- 1 -
<PAGE>
SCHEDULE 5.18
Certain Products of the Company and its Subsidiaries
The business operations of the Company and its Subsidiaries entail the
operation of convenience stores, including the sale of gasoline, in nine
Midwestern states. Such business operations include the sale, storage,
transportation and use of petroleum and petroleum products, household products,
sanitary and cleaning supplies, lawn and garden supplies, and other
miscellaneous automotive products, some of which may or do contain Hazardous
Materials as defined herein. In the ordinary course of the business operations
of the Company and its Subsidiaries, quantities of such petroleum and petroleum
products, households products, sanitary and cleaning supplies, lawn and garden
supplies and other automotive products are stored on the premises of their
stores and distribution center facilities.
Schedule 5.18
- 1 -
<PAGE>
SCHEDULE 10.4
Liens*
Principal Financial $8,873,882.16
Marion Haynes 200,000.00
Donald Nielsen 30,895.38
Viviette McCormack 20,000.00
------------
$9,124,777.54
* As of April 30, 2000
1
Exhibit 1
- 1 -
<PAGE>
EXHIBIT 1
[FORM OF NOTE]
CASEY'S GENERAL STORES, INC.
7.89% SENIOR NOTE, SERIES A
DUE MAY 15, 2010
No. [_____] [Date]
$[_______] [PPN: ]
FOR VALUE RECEIVED, the undersigned, CASEY'S GENERAL STORES, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Iowa, promises to pay to [ ], or registered assigns, the principal
sum of [ ] on May 15, 2010 with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
7.89% per annum from the date hereof, payable semiannually, on the May 15 and
November 15 in each year, commencing with the May 15 or November 15 next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make- Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semiannually as aforesaid (or, at
the option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 9.89% or (ii) 2.0% over the rate of
interest publicly announced by Bank of America from time to time in Chicago,
Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago or at such other
place as the Company shall have designated by written notice to the holder of
this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of the Senior Notes (herein called the "Notes") issued
pursuant to the Note Purchase Agreement, dated as of May 1, 2000 (as from time
to time amended, the "Note Purchase Agreement"), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and (ii) to have made the representations set forth in
Section 6.2 of the Note Purchase Agreement.
Exhibit 1
- 1 -
<PAGE>
This Note is a registered Note and, as provided in the Note Purchase
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 such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, 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 will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates and in
the amounts specified in the Note Purchase Agreement. This Note is also subject
to prepayment, in whole or from time to time in part, at the times and on the
terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
CASEY'S GENERAL STORES, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
- 2 -
<PAGE>
EXHIBIT 4.4(a)
FORM OF OPINION OF COUNSEL
FOR THE COMPANY
The opinion of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C.,
counsel for the Company, shall be to the effect that:
1. The Company and each Subsidiary is a corporation duly incorporated,
validly existing in good standing under the laws of its jurisdiction of
incorporation, and has all requisite corporate power and authority to own and
operate its properties, to carry on its business as now conducted, and, in the
case of the Company, to enter into and perform the Agreement and the Notes and
to issue and sell the Notes.
2. The Company and each Subsidiary is duly qualified or licensed and in
good standing as a foreign corporation authorized to do business in each
jurisdiction where the nature of its business or the character of its properties
makes such qualification or licensing necessary, except where such failure to be
so qualified or licensed would not have a Material Adverse Effect.
3. The Agreement and 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 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 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, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
5. No authorization, approval or consent of, and no designation, filing,
declaration, registration and/or qualification with, any Governmental Authority
is necessary or required in connection with the execution, delivery and
performance by the Company of the Agreement and the Notes or the offering,
issuance and sale by the Company of the Notes.
6. The issuance and sale of the Notes by the Company, the performance of
the terms and conditions of the Notes and the Agreement and the execution and
delivery of the Agreement do 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 or imposition of any Lien on the property of the Company
pursuant to, the provisions of (i) the certificate of incorporation (or other
charter document) or by-laws of the
1
Exhibit 4.4(a)
- 1 -
<PAGE>
Company, (ii) any loan agreement or evidence of Indebtedness known to such
counsel to which the Company is a party, or other Material agreement or
instrument known to such counsel to which the Company is a party or by which any
of them or their property is bound or may be affected, (iii) any law (including
usury laws), or regulation applicable to the Company, or (iv) any order, writ,
injunction or decree known to such counsel of any court or Governmental
Authority applicable to the Company.
7. There are no actions, suits or proceedings pending or, to such counsel's
knowledge, threatened against or affecting the Company, at law or in equity or
before or by any Governmental Authority, which are likely to result,
individually or in the aggregate, in a Material Adverse Effect.
8. The Company is not (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, (ii) a "public utility"
as defined in the Federal Power Act, as amended, or (iii) an "investment
company" or an "affiliated person" thereof, as such terms are defined in the
Investment Company Act of 1940, as amended.
9. The issuance of the Notes and the intended use of the proceeds of the
sale of the Notes do not violate or conflict with Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
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
Purchasers 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. For purposes of
the opinion regarding enforceability, Ahlers, Cooney, Dorweiler, Haynie, Smith &
Allbee, P.C. may assume that Illinois law is in all respects identical to Iowa
law. With respect to matters governed by the laws of any jurisdiction other than
the United States of America and the laws of the State of Iowa, Ahlers, Cooney,
Dorweiler, Haynie, Smith & Allbee, P.C. may rely upon the opinions of counsel
deemed (and stated in their opinion to be deemed) by them to be competent and
reliable. The opinion of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C.
may state that such opinion is delivered to its recipients solely for their
benefit and may not be furnished to, quoted or relied upon by any other person
other than counsel to such recipients and any successors or assigns of such
recipients' interests in the Notes; provided, however, that the opinion may be
disclosed (i) to such recipients' agents and employees as necessary, (ii) in
connection with the enforcement of obligations of the Company under the Notes
and the Agreement, (iii) in response to a subpoena or other legal process, (iv)
as otherwise required by applicable law or regulations or (v) in connection with
the sale or transfer of the Notes.
2
Exhibit 4.4(a)
- 2 -
<PAGE>
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The opinion of Gardner, Carton & Douglas, special counsel to the
Purchasers, shall be to the effect that:
1. The Company is a corporation organized and validly existing in good
standing under the laws of the State of Iowa, with requisite corporate power and
authority to enter into the Note Purchase Agreement and to issue and sell the
Notes.
2. The Agreement and 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 against the Company 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 a proceeding in equity or at law.
3. 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.
4. 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.
5. No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any governmental body, Federal or
state, is necessary in connection with the execution and delivery of the
Agreement or the Notes.
Gardner, Carton & Douglas may rely, as to matters of Iowa law and as to the
corporate power and authority of the Company and the due authorization,
execution and delivery by the Company of the Agreement and the Notes upon the
opinion of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C. The opinion
of Gardner, Carton & Douglas shall state that the opinion of Ahlers, Cooney,
Dorweiler, Haynie, Smith & Allbee, P.C. is satisfactory in form and scope to
Gardner, Carton & Douglas, and, in its opinion, the Purchasers are justified in
relying thereon. Such opinion shall cover such other matters relating to the
sale of the Notes as the Purchasers may reasonably request.
1
Exhibit 4.4(b)
- 1 -
<PAGE>
EXHIBIT 22.2
FORM OF TERMS AGREEMENT
THIS TERMS AGREEMENT is made and entered into as of this _________ day of
_______________, -------(this "Terms Agreement") by and among Casey's General
Stores, Inc., an Iowa corporation (the "Company"), and the Purchasers listed on
Schedule A hereto (the "Purchasers");
R E C I T A L S
A. The Company has entered into a Note Purchase Agreement (the "Note
Agreement"), dated as of May 1, 2000, with each of the parties listed on
Schedule A thereto; and
B. The Company desires to issue and sell, and the Purchasers desire to
purchase, an additional series of unsecured promissory notes (Series __) in
accordance with the terms specified below;
NOW, THEREFORE, subject to compliance with all of the conditions to closing
and funding set forth in Section 4 of the Note Agreement, with such changes as
shall be appropriate to such additional series of notes, and the delivery of
such additional closing documents and opinions as the Purchasers or their
counsel may request, the parties signatory hereto agree as follows:
1. Authorization of Notes. The Company has authorized the issuance and sale
of $____________ aggregate principal amount of its _____% Senior Notes, Series
___ (the "Notes"), to be dated the date of issue, to bear interest from such
date at the rate of ___% per annum, payable ___________________ on _________, __
and _________, __ in each year (commencing _____________, ___) and at maturity
and to bear interest on overdue principal (including any overdue prepayment of
principal) and premium, if any, and (to the extent legally enforceable) on any
overdue installment of interest at the rate of ___% per annum, whether by
acceleration or otherwise, until paid. The Notes will mature on _____________,
20__ (the "Maturity Date") and will be substantially in the form of Exhibit A to
the Note Agreement, with such changes therein as are required to reflect the
terms of the Notes specified above. The term "Notes" as used herein shall only
include any and all of the Notes delivered pursuant to this Terms Agreement and
each such Note delivered in substitution or exchange therefor.
2. Sale and Purchase. The Company will issue and sell to the Purchasers,
and the Purchasers will purchase from the Company on the Closing Date (as
hereinafter defined), Notes in the aggregate principal amount set forth opposite
their respective names on the attached Schedule A at a price of 100% of the
principal amount thereof.
3. Closing. Delivery of the Notes will be made at the offices of
_______________________ against payment therefor in Federal funds or other funds
in U.S. dollars immediately available at _______________, ABA. No. __________,
for deposit in the Company's
1
Exhibit 22.2
- 1 -
<PAGE>
Account No. __________, in the amount of the purchase price not later than
____________, _____________ time, on ___________, 20__ or such earlier or later
date (but in any event not later than ____________, 20__) as the Company and the
Purchasers may mutually agree upon (the "Closing Date").
4. Use of Proceeds. The proceeds from the sale of the Notes will be used to
- -----------------------.
5. Payment and Prepayment of the Notes. The Company shall pay the Notes in
accordance with the repayment provisions set forth in Schedule B hereto. In
addition, unless otherwise specified in Schedule B, the Notes shall be subject
to mandatory and optional prepayment in accordance with the optional and
mandatory prepayment provisions of Sections 8.2 and 8.3 of the Note Agreement.
Each reference to "Notes" therein shall be deemed to refer to the Notes issued
pursuant to this Terms Agreement.
6. Compliance With Note Agreement. Except to the extent in conflict with
any of the provisions of this Terms Agreement, the Company agrees to comply with
each of the covenants, agreements and other provisions of the Note Agreement,
which covenants, agreements and other provisions, together with the related
definitions of terms used therein and the exhibits referred to therein, are
hereby incorporated by reference into this Terms Agreement with the same effect
as if such covenants, agreements and provisions were set forth in full herein,
except that all references to "Purchasers" therein shall be deemed to refer to
the Purchasers hereunder and all references to "Notes" therein shall be deemed
to refer to the Notes issued pursuant to this Terms Agreement. Any amendment,
supplement, modification, change or waiver of any of the covenants, agreements
or provisions of the Note Agreement, or any of the definitions of terms used
therein or exhibits referred to therein, shall not have any force and effect
under this Terms Agreement unless the holders of not less than 51% of the
principal amount of the Notes outstanding hereunder shall have consented in
writing to such amendment, supplement, modification, change or waiver.
[Add any additional provisions to reflect
particular agreements between the parties]
2
Exhibit 22.2
- 2 -
<PAGE>
IN WITNESS WHEREOF, the Company and the Purchasers have caused this Terms
Agreement to be executed and delivered by their respective officer or officers
thereunto duly authorized.
CASEY'S GENERAL STORES, INC.
By:
Name:
Title:
PURCHASERS:
By:
Name:
Title:
3
Exhibit 22.2
- 3 -
