UNITED STATES
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):
August 9, 2010


Casey’s General Stores, Inc.
(Exact name of registrant as specified in its charter)
 
Commission File Number: 001-34700
 
Iowa
(State or other
jurisdiction of
incorporation)
 
 
42-0935283
(IRS Employer
Identification No.)
One Convenience Blvd.
P.O. Box 3001
Ankeny, IA 50021
(Address of principal executive offices, including zip code)
 
(515) 965-6100
(Registrant’s telephone number, including area code)
 
Not Applicable
(Former name or former address, if changed since last report.)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
:
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 
 
 


 
 
 
 
 
 

 
 
 

 
Item 1.01.                      Entry into a Material Definitive Agreement

On August 9, 2010, Casey’s General Stores, Inc. (the “Company”) entered into a Note Purchase Agreement, dated as of August 9, 2010 (the “Note Agreement”), with the Prudential Insurance Company of America, Pruco Life Insurance Company, Pruco Life Insurance Company of New Jersey, Prudential Retirement Insurance and Annuity Company, Physicians Mutual Insurance Company, Companion Life Insurance Company, United Omaha Life Insurance Company, ING USA Annuity and Life Insurance Company, Reliastar Life Insurance Company, ING Life Insurance and Annuity Company, Reliastar Life Insurance Company of New York, Aviva Life and Annuity Company, Allstate Life Insurance Company of New York, American Heritage Life Insurance Company, Allstate Insurance Company, Allstate Life Insurance Company, New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate Account (BOLI 3), New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate Account (BOLI 3-2), New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate Account (BOLI 30C), New York Life Insurance Company, New York Life Insurance and Annuity Corporation, Metropolitan Life Insurance Company, MetLife Investors Insurance Company, First MetLife Investors Insurance Company, MetLife Investors USA Insurance Company, Metropolitan Tower Life Insurance Company, MetLife Insurance Company of Connecticut, Union Fidelity Life Insurance Company, Hartford Life Insurance Company, Hartford Life and Accident Insurance Company, Hartford Accident and Indemnity Company and Hartford Life and Annuity Insurance Company (collectively, the “Purchasers”) relating to the issuance by the Company of $569,000,000 aggregate principal amount of its 5.22% Senior Notes due 2020 (the “Notes”). The Company intends to use the net proceeds from this offering to finance its previously announced self-tender offer for up to $500 million in value of shares of its common stock and to pay fees and expenses in connection with the self-tender offer and the financing.  In addition, the Company will use approximately $59 million of the proceeds from the sale of the Notes in connection with its prepayment of its outstanding senior notes, with varying interest rates, issued pursuant to a note agreement dated as of April 15, 1999 (the “1999 Notes”), and its outstanding 7.38% senior notes, issued pursuant to a note agreement dated as of December 28, 1995 (the “1995 Notes”).  An affiliate of Aviva Investors, which held 1995 Notes and 1999 Notes immediately before they were prepaid, is also a Purchaser under the Note Agreement. Any net proceeds of the Notes offering not used for the foregoing purposes will be used for general corporate purposes.
 
The Notes were issued on August 9, 2010, and will bear interest at the rate of 5.22% per annum from the date thereof, payable semi-annually in arrears on February 9 and August 9 of each year. The Notes mature on August 9, 2020.
 
The Company may at any time or from time to time prepay all or a portion of the Notes, in an amount not less than $2,000,000. Any such optional prepayment shall be at a price equal to 100% of the principal amount so prepaid plus the Make-Whole Amount (as defined in the Note Agreement), plus accrued and unpaid interest thereon, if any, to, but not including, the date of prepayment. Any optional prepayment of less than all of the Notes outstanding shall be allocated pro rata among all of the Notes then outstanding.
 
The Note Agreement provides that, in the event of a Change in Control (as defined in the Note Agreement), each holder of the Notes will have the right to require the Company to purchase all or a portion of such holder’s Notes at a purchase price equal to 100% of the principal amount plus the Make-Whole Amount plus accrued and unpaid interest, if any, to, but not including, the repurchase date. The Note Agreement includes representations and warranties by the Company to the Purchasers. The Note Agreement also includes certain affirmative covenants addressing, among other matters, the maintenance of the Company’s corporate existence, compliance with laws and the provision of certain financial information and reports to the Purchasers. The Note Agreement also includes certain financial covenants, including a maximum indebtedness to EBITDA (earnings before interest, taxes, depreciation and amortization) ratio, a minimum fixed charge coverage ratio and a minimum consolidated net worth test. In addition, the Company agrees to be bound by certain negative covenants while the Notes are outstanding, which include, among other matters, limitations on consolidated total debt and priority debt, limitations on liens, limitations on mergers or consolidations and limitations on sales of assets. Upon the occurrence of an Event of Default (as defined in the Note Agreement), the Purchasers may declare the entire principal amount of the Notes, together with the Make-Whole Amount described in the Note Agreement and all accrued interest, to be immediately due and payable. Events of Default include, among other matters, nonpayment of the principal of or interest on the Notes when due, a breach of any of the covenants of the Company contained in the Note Agreement, bankruptcy, reorganization or insolvency events involving the Company and any representation or warranty of the Company contained in the Note Agreement proving to have been false or incorrect when made.
 
 
 
 
 

 
 
 

 
Attached hereto as Exhibit 4.1 and incorporated herein by reference is a copy of the Note Agreement and the schedules and exhibits thereto. The foregoing description of the Notes is qualified in its entirety by reference to the Note Agreement and the form of Note attached thereto.

Item 2.03                      Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
 
The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
 
Item 8.01                      Other Events.

In connection with its entry into the Note Agreement, the Company prepaid in full the outstanding 1999 Notes and the outstanding 1995 Notes.
 
The aggregate prepayment amount with respect to the 1999 Notes was approximately $21 million, which represents the aggregate principal outstanding on the 1999 Notes, plus accrued interest and prepayment premium.  The aggregate prepayment amount with respect to the 1995 Notes was approximately $38 million, which represents the aggregate principal outstanding on the 1995 Notes, plus accrued interest and prepayment premium.

On August 10, 2010, the Company issued a press release and distributed a communication to its employees in connection with the foregoing transactions.  Copies of the press release and communication to employees are attached hereto as Exhibit 99.1 and Exhibit 99.2, respectively, and are incorporated by reference into this Item 8.01.
 

Item 9.01. Financial Statements and Exhibits.
 
(d)           Exhibits
 
Exhibit No.
 
Description
4.1
 
Note Purchase Agreement, dated as of August 9, 2010, between Casey’s General Stores, Inc. and the Purchasers named therein.
 
99.1
 
Press release issued by Casey’s General Stores, Inc., August 10, 2010.
 
99.2
 
Employee Communication, dated August 10, 2010.

 
 
 
 
 
 

 
 
 
 
 
SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
 
 
  CASEY'S GENERAL STORES, INC.  
       
Date: August 10, 2010
By:
/s/ William J. Walljasper  
    Name:  William J. Walljasper   
    Title:  Senior Vice President and Chief Financial Officer  
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
Exhibit Index

The following exhibits are filed herewith:
 
 
Exhibit No.
 
Description
4.1
 
Note Purchase Agreement, dated as of August 9, 2010, between Casey’s General Stores, Inc. and the Purchasers named therein.
 
99.1
 
Press release issued by Casey’s General Stores, Inc., August 10, 2010.
 
99.2
 
Employee Communication, dated August 10, 2010.

 
 
 
 
 
 
 
 
 
 
 
 
 

 
EXHIBIT 4.1
 
 
 
 
 


 
 
 
 
 
 
 
 
 
 
 
 
 

 
CASEY’S GENERAL STORES, INC.
 

 
$569,000,000
5.22% Senior Notes
due August 9, 2020
 

 
NOTE PURCHASE AGREEMENT
 

 
Dated as of August 9, 2010
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 



 
PPN: 147528 E@8
 
 
 
 
 
 

 
 

TABLE OF CONTENTS
 
 

   
Page
     
1.
AUTHORIZATION OF NOTES
1
     
2.
SALE AND PURCHASE OF NOTES
1
     
3.
CLOSING
1
     
4.
CONDITIONS TO CLOSING
2
     
4.1.
Representations and Warranties
2
4.2.
Performance; No Default
2
4.3.
Compliance Certificates
2
4.4.
Opinions of Counsel
2
4.5.
Purchase Permitted By Applicable Law, Etc.
3
4.6.
Sale of Other Notes
3
4.7.
Payment of Fees
3
4.8.
Private Placement Number
3
4.9.
Changes in Corporate Structure
3
4.10.
Solvency Certificate
3
4.11.
Funding Instructions
4
4.12.
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; Material Liabilities
5
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
7
5.13.
Private Offering by the Company
8
5.14.
Use of Proceeds; Margin Regulations
8
5.15.
Existing Indebtedness
9
5.16.
Foreign Assets Control Regulations, Etc.
9
5.17.
Status under Certain Statutes
10
5.18.
Environmental Matters
10
5.19.
Solvency
10

 
 
 
 
 
-i-

 
 

 

     
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.
Visitation
15
     
8.
PREPAYMENT OF THE NOTES
16
     
8.1.
Maturity
16
8.2.
Optional Prepayments with Make-Whole Amount
16
8.3.
Allocation of Partial Prepayments
16
8.4.
Maturity; Surrender, Etc.
17
8.5.
Purchase of Notes
17
8.6.
Make-Whole Amount
17
8.7.
Change of Control
19
8.8.
Offer to Prepay Notes upon Certain Sales of Assets
21
     
9.
AFFIRMATIVE COVENANTS
22
     
9.1.
Compliance with Law
22
9.2.
Insurance
22
9.3.
Maintenance of Properties
22
9.4.
Payment of Taxes and Claims
23
9.5.
Corporate Existence, Etc.
23
9.6.
Books and Records
23
9.7.
Subsequent Guarantors
23
9.8.
Covenant to Secure Notes Equally
24
     
10.
NEGATIVE COVENANTS
24
     
10.1.
Financial Covenants
24
10.2.
Priority Debt
25
10.3.
Indebtedness of Subsidiaries
25
10.4.
Limitations on Liens
26
10.5.
Merger, Consolidation, Etc.
27
10.6.
Sale of Assets
28
10.7.
Terrorism Sanctions Regulations
29
10.8.
Nature of Business
29
10.9.
Transactions with Affiliates
29
     
11.
EVENTS OF DEFAULT
30
     
12.
REMEDIES ON DEFAULT, ETC.
32
     
12.1.
Acceleration
32
12.2.
Other Remedies
33
12.3.
Rescission
33
12.4.
No Waivers or Election of Remedies, Expenses, Etc.
33

 
 
 
 
 
 
-ii-

 
 
 

 
     
13.
REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
33
     
13.1.
Registration of Notes
33
13.2.
Transfer and Exchange of Notes
34
13.3.
Replacement of Notes
34
 
14.
PAYMENTS ON NOTES
35
 
14.1.
Place of Payment
35
14.2.
Home Office Payment
35
 
15.
EXPENSES, ETC.
35
 
15.1.
Transaction Expenses
35
15.2.
Survival
37
 
16.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
37
 
 
17.
AMENDMENT AND WAIVER
37
 
17.1.
Requirements
37
17.2.
Solicitation of Holders of Notes
38
17.3.
Binding Effect, Etc.
38
17.4.
Notes held by Company, Etc.
39
 
18.
NOTICES
39
 
19.
REPRODUCTION OF DOCUMENTS
39
 
20.
CONFIDENTIAL INFORMATION
40
 
21.
SUBSTITUTION OF PURCHASER
41
 
22.
MISCELLANEOUS
41
 
22.1.
Successors and Assigns
41
22.2.
Payments Due on Non-Business Days
41
22.3.
Accounting Terms
41
22.4.
Severability
42
22.5.
Construction, Etc.
42
22.6.
Counterparts
42
22.7.
Governing Law
42
22.8.
Jurisdiction
42


 
 
 
 
-iii-

 
 
 
 

 
CASEY’S GENERAL STORES, INC.
One Convenience Boulevard
Ankeny, Iowa 50021
(515) 965-6100
Fax: (515) 965-6160
 
$569,000,000 5.22% Senior Notes due August 9, 2020
 
 
Dated as of August 9, 2010
 
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 each of the purchasers whose names appear at the end hereof (each, a “ Purchaser ” and, collectively, the “ Purchasers ”) as follows:
 
1.
AUTHORIZATION OF NOTES.
 
The Company has authorized the issue and sale of $569,000,000 aggregate principal amount of its 5.22% Senior Notes due August 9, 2020 (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 and other 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 each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, Notes in the principal amount specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof.  The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.
 
3.
CLOSING.
 
The sale and purchase of the Notes shall occur at the offices of Schiff Hardin LLP, 233 South Wacker Drive, Suite 6600, Chicago, Illinois 60606 at 9:00 a.m., Chicago time, at a closing on August 9, 2010 (the “ Closing ”) or on such other Business Day thereafter, not later than August 30, 2010, as may be agreed upon by the Company and the Purchasers.  At the Closing the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $250,000 as you may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser 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 any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.
 
 
 
 
 

 
 
 
 
 
4.
CONDITIONS TO CLOSING.
 
Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s 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 to be sold at the Closing (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.
 
4.3.
Compliance Certificates.
 
(a)             Officer’s Certificate .  The Company shall have delivered to such Purchaser 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 such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Notes and this Agreement.
 
4.4.
Opinions of Counsel.
 
Such Purchaser shall have received opinions in form and substance satisfactory to such Purchaser, dated the date of the Closing (a) from Ahlers & Cooney, 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 such Purchaser or its counsel may reasonably request (and the Company instructs its counsel to deliver such opinion to the Purchasers) and (b) from Schiff Hardin LLP, the Purchasers’ 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 such Purchaser may reasonably request.
 
 
 
 
 
2

 
 
 
 
 
 
4.5.
Purchase Permitted By Applicable Law, Etc.
 
On the date of the Closing such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is 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, (b) 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 (c) not subject such Purchaser 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 such Purchaser, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser 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 each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in Schedule A.
 
4.7.
Payment of Fees.
 
Without limiting the provisions of Section 15.1, the Company shall have paid on or before the Closing the fees, charges and disbursements of the Purchasers’ special counsel referred to in Section 4.4 to the extent reflected in a statement of such counsel rendered to the Company on the date of Closing.
 
4.8.
Private Placement Number.
 
A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes by Schiff Hardin LLP.
 
4.9.
Changes in Corporate Structure.
 
The Company shall not have changed its jurisdiction of incorporation or organization, as applicable, or been a party to any merger or consolidation or 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. 
Solvency Certificate.
 
Such Purchaser shall have received a certificate executed by the chief financial officer of the Company, in form and substance satisfactory to such Purchaser, to the effect that on and as of the date of Closing, after consummation of the transactions contemplated by this Agreement, including the issuance of the Notes and the use of the proceeds thereof and the consummation of the Recapitalization Transaction, the Company will be Solvent.
 
 
 
 
 
 
3

 
 
 
 
 
 
 
4.11. 
Funding Instructions.
 
At least one Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company confirming the information specified in Section 3 including (a) the name and address of the transferee bank, (b) such transferee bank’s ABA number and (c) the account name and number into which the purchase price for the Notes is to be deposited.
 
4.12.
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 such Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request.
 
5.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
 
The Company represents and warrants to each Purchaser 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 would 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.
 
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).
 
 
 
 
 
 
4

 
 
 
 
 
5.3.
Disclosure.
 
The Company has delivered to each Purchaser a copy of the Confidential Private Placement Memorandum, dated August 5, 2010 (the “Memorandum”).  This Agreement, the Memorandum, the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby and identified in Schedule 5.3, the financial statements listed in Schedule 5.5 and the Tender Offer Documents (this Agreement, the Memorandum, such documents, certificates or other writings, such financial statements delivered to each Purchaser prior to the date of the Closing and the Tender Offer Documents, being referred to, collectively, as the “ Disclosure Documents ”), 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 Disclosure Documents, since April 30, 2010, there has been no change in the financial condition, operations, business or properties of the Company or any of its Subsidiaries except changes that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect.
 
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 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.
 
(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 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 would 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.
 
5.5.
Financial Statements; Material Liabilities.
 
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).  Other than pursuant to this Agreement and the Notes, the Company and its Subsidiaries do not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.
 
 
 
 
 
5

 
 
 
 
 
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 Material 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 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)            There are no actions, suits, investigations 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, would reasonably be expected to have a Material Adverse Effect.
 
(b)            Neither the Company nor any Subsidiary is in default under any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or is in violation of any applicable law, ordinance, rule or regulation (including without limitation Environmental Laws or the USA Patriot Act) of any Governmental Authority, which default or violation, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
 
(c)            Except as set forth on Schedule 5.8, there are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, directly or indirectly threatened against or directly or indirectly affecting the execution and delivery of this Agreement, the purchase of the Notes or the use of proceeds thereof in accordance with Section 5.14, the performance of this Agreement or the Notes or the Recapitalization Transaction.  To the knowledge of the Company, there have been no amendments to the filings identified on Schedule 5.8 since their respective dates.  No injunction or restraining order has been issued enjoining the execution and delivery of this Agreement, the purchase of the Notes or the use of proceeds thereof in accordance with Section 5.14, the performance of this Agreement or the Notes.
 
 
 
 
 
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5.9.
Taxes.
 
The Company and its Subsidiaries have filed all income 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 payable by them, 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 Federal income tax liabilities of the Company and its Subsidiaries have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended April 30, 2006.
 
5.10.
Title to Property; Leases.
 
The Company and its Subsidiaries have good and sufficient title to their respective Material properties, 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, except for those defects in title and Liens that, individually or in the aggregate, would not have a Material Adverse Effect.  All Material leases are valid and subsisting and are in full force and effect in all material respects.
 
5.11.
Licenses, Permits, Etc.
 
The Company and its Subsidiaries own, possess or have the right to use all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that are Material, without known conflict with the rights of others, except for those conflicts that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
 
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 would 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 412 of the Code or section 4068 of ERISA, other than such liabilities or Liens as would not be individually or in the aggregate Material.
 
 
 
 
 
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(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 to each Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such Purchaser’s 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 such Purchaser.
 
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 the Purchasers and not more than five 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 or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.
 
5.14.
Use of Proceeds; Margin Regulations.
 
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), provided that, the Company may use a portion of such proceeds to repurchase the common stock of the Company pursuant to the Tender Offer, all of which common stock will be retired upon consummation of such repurchase.  Margin stock does not constitute more than 1.0% of the value of the consolidated assets of the Company and its Subsidiaries 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.
 
 
 
 
 
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5.15.
Existing Indebtedness.
 
(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, 2010 (including a description of the obligors and obligees, principal amount outstanding and collateral therefor, if any, and Guaranty thereof, if any), since which date, except as set forth on Schedule 5.15, 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 such Subsidiary and no event or condition exists with respect to any Indebtedness of the Company or such 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)            Neither the Company nor any Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of the Company or such Subsidiary, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of the Company, except as specifically indicated in Schedule 5.15.
 
5.16.
Foreign Assets Control Regulations, Etc.
 
(a)            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.
 
(b)            Neither the Company nor any Subsidiary (i) is a Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (ii) engages in any dealings or transactions with any such Person.  The Company and its Subsidiaries are in compliance, in all material respects, with the USA Patriot Act.
 
(c)            No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that such Act applies to the Company.
 
 
 
 
 
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5.17.
Status under Certain Statutes.
 
Neither the Company nor any Subsidiary is subject to regulation under the Investment Company Act of 1940, 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 would 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.
 
(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 would 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 would reasonably be expected to result in a Material Adverse Effect.
 
(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 would not reasonably be expected to result in a Material Adverse Effect.
 
5.19.
Solvency.
 
On the date of Closing, after giving effect to the consummation of the transactions contemplated by this Agreement, including the issuance of the Notes, the use of the proceeds thereof and the consummation of the Recapitalization Transaction, the Company will be Solvent.
 
 
 
 
 
 
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6.
REPRESENTATIONS OF THE PURCHASER.
 
6.1.
Purchase for Investment.
 
Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser 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 such Purchaser’s or their property shall at all times be within such Purchaser’s or their control.  Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.
 
6.2.
Source of Funds.
 
Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “ Source ”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:
 
(a)            the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“ PTE ”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “ NAIC Annual Statement ”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
 
(b)            the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or
 
(c)            the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), 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
 
 
 
 
 
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(d)            the Source constitutes assets of an “investment fund” (within the meaning of Part V of PTE 84-14 (the “ QPAM Exemption ”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part V of the QPAM Exemption), no employee benefit plan’s assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of “control” in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Company in writing pursuant to this clause (d); or
 
(e)            the Source constitutes assets of a “plan(s)” (within the meaning of Section IV of PTE 96-23 (the “ INHAM Exemption ”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Section IV(d) of the INHAM Exemption) owns a 5% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
 
(f)            the Source is a governmental plan; or
 
(g)            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 clause (g); or
 
(h)            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 (or such shorter period as is 15 days greater than the period applicable to the filing of the Company’s Quarterly Report on Form 10-Q (the “Form 10-Q”) with the SEC regardless of whether the Company is subject to the filing requirements thereof) 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
 
 
 
 
 
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(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 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 that delivery within the time period specified above of copies of the Company’s Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 7.1(a), and provided further that the Company shall be deemed to have made such delivery of such Form 10-Q if it shall have timely filed such Form 10-Q with the SEC on “EDGAR” (or any successor thereto) and such Form 10-Q is available on the SEC’s website and on the Company’s home page on the worldwide web (at the date of this Agreement located at: http//www.caseys.com), or posted on the Company’s behalf on IntraLinks or another relevant website, if any, to which each such holder has access, and shall have given such holder prior notice of such availability on EDGAR and on its home page, IntraLinks or other relevant website in connection with each delivery (such availability and notice thereof being referred to as “ Electronic Delivery ”);
 
(b)             Annual Statements — within 120 days (or such shorter period as is 15 days greater than the period applicable to the filing of the Company’s Annual Report on Form 10-K (the “ Form 10-K ”) with the SEC regardless of whether the Company is subject to the filing requirements thereof) 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,
 
setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon of KPMG LLP or another firm of independent 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
 
 
 
 
 
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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, 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 with the 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 SEC shall be deemed to satisfy the requirements of this Section 7.1(b), and provided, further, that the Company shall be deemed to have made such delivery of such Form 10-K if it shall have timely made Electronic Delivery thereof;
 
(c)             SEC and Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, notice or proxy statement sent by the Company or any Subsidiary to its principal lending banks as a whole (excluding information sent to such banks in the ordinary course of administration of a bank facility, such as information relating to pricing and borrowing availability) or to public securities holders generally, (ii) each regular or periodic report, each registration statement that shall have become effective (without exhibits except as expressly requested by such holder), and each final prospectus and all amendments thereto filed by the Company or any Subsidiary with the SEC; provided that in each case the Company shall be deemed to have made such delivery if it shall have made Electronic Delivery thereof;
 
(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, 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 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(c) 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 Multi-employer Plan that such action has been taken by the PBGC with respect to such Multi-employer Plan; or
 
(iii)            any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a Material Adverse Effect; and
 
 
 
 
 
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(f)             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 (including actual copies of the Company’s Form 10-Q and Form 10-K) or relating to the ability of the Company to perform its obligations under this Agreement and under the Notes as from time to time may be reasonably requested by such holder of Notes.
 
7.2.
Officer’s Certificate.
 
Each set of financial statements delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer setting forth (which, in the case of Electronic Delivery of any such financial statements, shall be by separate, substantially concurrent electronic delivery (e-mail) of such certificate to each holder of Notes):
 
(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 10.9, inclusive, during the quarterly or annual period covered by the statements then being furnished (including with respect to 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 Senior Financial 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 existence thereof and what action the Company shall have taken or proposes to take with respect thereto.
 
7.3.
Visitation.
 
The Company shall 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), 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
 
 
 
 
 
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(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 requested.
 
8.
PREPAYMENT OF THE NOTES
 
8.1.
Maturity.
 
As provided therein, the entire unpaid principal balance of the Notes shall be due and payable on the stated maturity date thereof.
 

8.2.
Optional Prepayments with Make-Whole Amount.
 
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 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 (which shall be a Business Day), 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 8.3), 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.
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.  All partial prepayments made pursuant to Section 8.7 or Section 8.8   shall be applied only to the Notes of the holders who have elected to participate in such prepayment.
 
 
 
 
 
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8.4.
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 (which shall be a Business Day), 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 cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.
 
8.5.
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 (a) upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes or (b) pursuant to an offer to purchase made by the Company or an Affiliate pro rata to the holders of all Notes at the time outstanding upon the same terms and conditions.  Any such offer shall provide each holder with sufficient information to enable it to make an informed decision with respect to such offer, and shall remain open for at least 30 Business Days.  If the holders of more than 25% of the principal amount of the Notes then outstanding accept such offer, the Company shall promptly notify the remaining holders of such fact and the expiration date for the acceptance by holders of Notes of such offer shall be extended by the number of days necessary to give each such remaining holder at least 10 Business Days from its receipt of such notice to accept such offer.  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.
 
8.6.
Make-Whole Amount.
 
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, 8.7 or 8.8 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.
 
 
 
 
 
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Reinvestment Yield ” means, with respect to the Called Principal of any Note, 0.50% over 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 “Page PX1” (or such other display as may replace Page PX1) on the Bloomberg Financial Markets for the most recently issued actively traded on the run 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 (including by way of interpolation), 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 (or any comparable successor publication) for U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date.
 
In the case of each determination under clause (i) or clause (ii), as the case may be, of the preceding paragraph, 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 applicable U.S. Treasury security with the maturity closest to and greater than such Remaining Average Life and (2) the applicable U.S. Treasury security with the maturity closest to and less than such Remaining Average Life.  The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.
 
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, 8.7 or 8.8 or Section 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, 8.7 or 8.8 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
 
 
 
 
 
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8.7.
Change of Control.
 
(a)            Notice of Change in Control; Conditions to Company Action .
 
(i) Unless the Company has exercised its right to prepay all of the Notes pursuant to Section 8.2 and the date fixed for such prepayment is on or before the last permissible Proposed Prepayment Date (as defined below) for a prepayment pursuant to an offer under this Section 8.7(a)(i), the Company will, within 5 Business Days after a Responsible Officer has knowledge of the occurrence of a Change in Control, give written notice of such Change in Control to each holder of Notes, unless notice in respect of such Change in Control shall have been given pursuant to subparagraph (ii) of this Section 8.7(a).  If a Change in Control has occurred, such notice shall contain and constitute an offer to prepay the Notes as described in Section 8.7(b).
 
(ii) The Company will not take any action that consummates or finalizes a Change in Control unless at least ten (10) Business Days prior to such action the Company shall have given to each holder of Notes written notice containing and constituting an offer to prepay such Notes as described in Section 8.7(b), accompanied by the certificate described in Section 8.7(f), and subject to the provisions of clause (c) of this Section 8.7, substantially contemporaneously with such action, it prepays all Notes required to be prepaid in accordance with this Section 8.7.
 
(b)            Offer to Prepay Notes .   The offer to prepay the Notes contemplated by paragraph (a)(i) and (ii) of this Section 8.7 shall be an offer to prepay by the Company, in accordance with and subject to this Section 8.7, all, but not less than all, the 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 ”)   which shall be (i) if the Proposed Prepayment Date is in connection with an offer contemplated by Section 8.7(a)(i), not less than 20 Business Days and not more than 40 Business Days after the date of such offer (if the Proposed Prepayment Date shall not be specified in such offer, the Proposed Prepayment Date shall be the 20 th Business Day after the date of such offer) and (ii) if the Proposed Prepayment Date is in connection with an offer contemplated by Section 8.7(a)(ii), the effective date of the Change in Control.
 
(c)            Acceptance .   A holder of Notes may accept the offer to prepay made pursuant to this Section 8.7 by causing a notice of such acceptance to be delivered to the Company at least five (5) Business 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 8.7   shall be deemed to constitute an acceptance of such offer by such holder.
 
(d)            Prepayment .   Prepayment of the Notes to be prepaid pursuant to this Section 8.7 shall be at 100% of the principal amount of the Notes together with accrued and unpaid interest thereon, and the Make-Whole Amount, if any, with respect thereto.  On the Business Day preceding the date of prepayment, the Company shall deliver to each holder of Notes a statement showing the Make-Whole Amount 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 Section 8.7(e).
 
 
 
 
 
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(e)            Deferral Pending Change in Control .   The obligation of the Company to prepay the Notes pursuant to the offers required by Section 8.7(a)(ii) and accepted in accordance with subparagraph (c) of this Section 8.7 is subject to the occurrence of the Change in Control in respect of which such offers and acceptances shall have been made.  In the event that such Change in Control has not occurred on or by the Proposed Prepayment Date in respect thereof, the prepayment shall be deferred until and shall be made on the date on which such Change in Control 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 in Control and the prepayment are expected to occur, and (iii) any determination by the Company that efforts to effect such Change in Control have ceased or been abandoned (in which case the offers and acceptances made pursuant to this Section 8.7   in respect of such Change in Control shall be deemed rescinded).
 
(f)            Officer’s Certificate .   Each offer to prepay the Notes pursuant to this Section 8.7   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 8.7; (iii) the principal amount of each Note offered to be prepaid; (iv) the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of 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; (v) that the conditions of Section 8.7(a)   have been fulfilled; and (vi) in reasonable detail, the nature and date or proposed date of the Change in Control.
 
(g)            Certain Definitions .   Change in Control   shall mean the occurrence of any of the following events:
 
(i)          any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act ,except that for purposes of this clause such person or group shall be deemed to have "beneficial ownership" of all securities that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of voting stock representing 35% or more of the voting power of the total outstanding voting stock of the Company;
 
(ii)          on any date individuals who at the beginning of the period commencing two years prior to such date constituted the Board of Directors of the Company (together with any new directors whose election to the Board of Directors of the Company or whose nomination for election by the shareholders of the Company was approved by a vote of 66-2/3% of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved, the “ Incumbent Directors ”) cease for any reason to constitute a majority of the Board of Directors of the Company then in office, unless the Incumbent Directors constitute a majority of the Board of Directors of a Surviving Person or Ultimate Parent, as applicable;
 
 
 
 
 
 
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(iii)           the Company consolidates with or merges with or into another Person or another Person merges with or into the Company, or all or substantially all the assets of the Company and the Subsidiaries, taken as a whole, are transferred to another Person, and, in the case of any such merger or consolidation, the securities of the Company that are outstanding immediately prior to such transaction and which represent 100% of the aggregate voting power of the voting stock of the Company are changed into or exchanged for cash, securities or property, unless pursuant to such transaction such securities are changed into or exchanged for, in addition to any other consideration, securities of the surviving Person (the “ Surviving Person ”) that represent immediately after such transaction, at least a majority of the aggregate voting power of the voting stock of the Surviving Person or of the Person of which such Surviving Person is a direct or indirect Wholly Owned Subsidiary (the “ Ultimate Parent ”); or
 
(iv)          the Company liquidates or dissolves or the stockholders of the Company adopt a plan of liquidation or dissolution.
 
8.8.
Offer to Prepay Notes upon Certain Sales of Assets.
 
(a)             Notice of Prepayment of other Indebtedness .  At least 10 Business Days prior to application by the Company or any Subsidiary of any net proceeds from any Asset Disposition to be excluded from the limitation and computation contained in Section 10.6(c) pursuant to clause (A)(z) of Section 10.6 to the payment or prepayment of any outstanding Indebtedness of the Company and its Subsidiaries (other than the Notes), the Company shall give written notice thereof to each holder of the Notes.  Such notice shall contain and constitute an offer by the Company to prepay the Notes as described in Section 8.8(b) and shall be accompanied by the certificate described in Section 8.8(e).
 
(b)             Offer to Prepay .  The offer to prepay Notes contemplated by Section 8.8(a) by the Company or any of its Subsidiaries shall be an offer to prepay, in accordance with and subject to this Section 8.8, the Notes held by the holders thereof (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 “ Offer Prepayment Date ”) which date shall be not less than 20 Business Days and not more than 40 Business Days after the date of such offer (if the Offer Prepayment Date shall not be specified in such offer, the Offer Prepayment Date shall be the 20 th Business Day after the date of such offer), in an aggregate amount equal to the amount that bears the same proportion to the outstanding principal amount of the Notes as the aggregate amount of all such net proceeds to be applied to the payment or prepayment of Indebtedness (including the Notes) bears to the aggregate outstanding principal amount of all such Indebtedness.
 
(c)             Acceptance; Rejection .  A holder of Notes may accept an offer to prepay made to such holder pursuant to this Section 8.8 by causing a notice of such acceptance or rejection to be delivered to the Company prior to the Offer Prepayment Date.  A failure by a holder of Notes to so respond to an offer to prepay shall be deemed to constitute an acceptance of such offer by such holder.
 
(d)             Prepayment .  Prepayment of the Notes to be prepaid pursuant to this Section 8.8 shall be in the amount set forth in Section 8.8(b), together with interest on such Notes accrued to the date of prepayment and the Make-Whole Amount, if any, with respect thereto.  The prepayment pursuant to an offer to prepay any Notes shall be made on the Offer Prepayment Date for such offer.
 
 

 
 
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(e)             Officer’s Certificate .  Each offer to prepay Notes pursuant to this Section 8.8 shall be accompanied by a certificate, executed by a Responsible Officer of the Company and dated the date of such offer, specifying (i) the Offer Prepayment Date for such offer, (ii) that such offer is made pursuant to Section 8.8, (iii) the principal amount of each Note offered to be prepaid, (iv) the interest that would be due on each Note offered to be prepaid, accrued to the Offer Prepayment Date for such offer, (v) whether or not the conditions of this Section 8.8 have been fulfilled by the Company, and (vi) in reasonable detail, the nature and date of Asset Disposition giving rise to such offer and the net proceeds received in connection therewith.
 
9.
AFFIRMATIVE COVENANTS.
 
The Company covenants that so long as any of the Notes are outstanding:
 
9.1.
Compliance with Law.
 
Without limiting Section 10.7, 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, the USA Patriot Act 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 would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
 
9.2.
Insurance.
 
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 would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
 
 
 
 
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9.4.
Payment of Taxes and Claims.
 
The Company will and will cause each of its Subsidiaries to file all income tax or similar 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 payable by any of them, to the extent the same have become due and payable and before they have become delinquent, provided that neither the Company nor any Subsidiary need pay any such tax, assessment, charge or levy 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, assessments, charges and levies in the aggregate would not reasonably be expected to have a Material Adverse Effect.
 
9.5.
Corporate Existence, Etc.
 
Subject to Section 10.5, 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 Wholly Owned 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 existence, right or franchise would not, individually or in the aggregate, have a Material Adverse Effect.
 
9.6.
Books and Records.
 
The Company will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over the Company or such Subsidiary, as the case may be.
 
9.7.
Subsequent Guarantors.
 
If any Subsidiary of the Company that is not then party to a Guaranty Agreement (as defined below) at any time Guaranties, or becomes a co-borrower or co-obligor of any Indebtedness of the Company under any Primary Credit Facility, the Company shall cause such Subsidiary at such time to execute and deliver to the holders of the Notes an agreement (a “ Guaranty Agreement ”), in the form attached hereto as Exhibit 9.7, under which such Subsidiary shall Guaranty the Company’s obligations under this Agreement and the Notes, accompanied by a certificate of the Secretary or Assistant Secretary of such Subsidiary certifying such Subsidiary’s charter and by-laws (or comparable governing documents), resolutions of the board of directors (or comparable governing body) of such Subsidiary authorizing the execution and delivery of such Guaranty Agreement and incumbency and specimen signatures of the officers of such Subsidiary executing such documents and otherwise in form and substance substantially similar to the certificate delivered with respect to the Company pursuant to Section 4.3(b) on the date of Closing and an opinion of counsel in form and substance substantially similar to the opinion delivered with respect to the Company pursuant to Section 4.4(a) on the date of Closing.
 
 
 
 
 
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The Guaranty and Guaranty Agreement of any Subsidiary Guarantor shall be automatically and unconditionally released and discharged if such Subsidiary Guarantor shall have been released from its obligations as a guarantor, co-borrower and/or co-obligor under each Principal Credit Facility giving rise to an obligation to Guaranty this Agreement and the Notes, provided that (i) no Default or Event of Default exists at the time of such release or would result therefrom and (ii) such Guaranty and Guaranty Agreement shall not be released and discharged if the Company or any Subsidiary or Affiliate, directly or indirectly, pays or causes to be paid any consideration or remuneration, or gives any other concession, whether by way of supplemental or additional interest, fee or otherwise, to any creditor of the Company or of any Subsidiary as consideration for or as an inducement to the entering into by any such creditor of any release or discharge of any obligation or other liability of such Subsidiary Guarantor as borrower, obligor, or guarantor under or in respect of all or any portion of any Primary Credit Facility, unless such consideration, remuneration or concession is concurrently paid or given, on the same terms, ratably to the holders of the Notes. Any release pursuant to the preceding sentence shall not become effective unless the Company also shall have delivered to the holders of the Notes an Officer's Certificate certifying as to the satisfaction of each of the conditions of such release as set forth in the preceding sentence.
 
 
9.8.   Covenant to Secure Notes Equally.
 
The Company covenants that if it or any Subsidiary shall create or assume any Lien upon any of its property or assets, whether now owned or hereafter acquired, other than Liens permitted by the provisions of Section 10.4 (unless prior written consent to the creation or assumption thereof shall have been obtained pursuant to Section 17), it will make or cause to be made effective provision whereby the Notes will be secured by such Lien equally and ratably with any and all other Indebtedness thereby secured so long as any such other Indebtedness shall be so secured; provided that the creation and maintenance of such equal and ratable Lien shall not in any way limit or modify the right of the holders of the Notes to enforce the provisions of Section 10.4.
 
10.
NEGATIVE COVENANTS.
 
The Company covenants that so long as any of the Notes are outstanding:
 
10.1.
Financial Covenants.
 
(a)            Consolidated Total Debt .   The Company will not permit the ratio of Consolidated Total Debt (as of any date) to Consolidated EBITDA (for the Company’s then most recently completed four fiscal quarters) to be greater than 3.50 to 1.00 at any time.
 
(b)            Fixed Charge Coverage .      The Company will not permit, as of the end of any fiscal quarter,  the ratio of (i) Consolidated EBITR to (ii) the sum of Consolidated Interest Expense plus Consolidated Rental Expense (in each case for the Company’s then most recently completed four fiscal quarters) to be less than 2.00 to 1.00.
 
 
 
 
 
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(c)            Consolidated Net Worth .     Commencing with the fiscal quarter commencing November 1, 2010, the Company will not permit, as of the end of  any fiscal quarter, its Consolidated Net Worth to be less than (i) $25,000,000 plus (ii) the sum of 25% of Consolidated Net Income, if positive, for each completed fiscal quarter (measured separately) commencing with the first fiscal quarter ending after November 1, 2010.
 
10.2.
Priority Debt.
 
The Company will not permit Priority Debt to exceed 20% of Consolidated Net Worth (as of the end of the Company’s then most recently completed fiscal quarter) at any time.
 
10.3.
Indebtedness of Subsidiaries.
 
The Company will not at any time permit any Subsidiary, directly or indirectly, to create, incur, assume, guarantee, have outstanding, or otherwise become or remain directly or indirectly liable for, any Indebtedness other than:
 
(a)            Indebtedness outstanding as of the date of this Agreement that is described on Schedule 10.3 and any extension, renewal, refunding or refinancing thereof, provided that the principal amount outstanding at the time of such extension, renewal, refunding or refinancing is not increased;
 
(b)            Indebtedness owed to the Company or a Wholly Owned Subsidiary;
 
(c)            Indebtedness of a Subsidiary outstanding at the time of its acquisition by the Company, provided that (i) such Indebtedness was not incurred in contemplation of becoming a Subsidiary, (ii) at the time of such acquisition and after giving effect thereto, no Default or Event of Default exists or would exist, and (iii) such Indebtedness may not be extended, renewed, refunded or refinanced except as otherwise permitted herein;
 
(d)            Indebtedness of a Subsidiary under a Primary Credit Facility so long as such Subsidiary is a Subsidiary Guarantor party to an effective Guaranty Agreement;
 
(e)   Indebtedness not otherwise permitted by the preceding clauses (a) through (d), provided that immediately before and after giving effect thereto and to the application of the proceeds thereof,
 
(i)            no Default or Event of Default exists, and
 
(ii)            Priority Debt does not exceed 20% of Consolidated Net Worth (as of the end of the Company’s then most recently completed fiscal quarter).
 
 
 
 
 
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10.4.
Limitations on Liens.
 
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 this Agreement that are listed on 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 180 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 this Agreement; 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;
 
(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;
 
 
 
 
 
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(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 to paragraphs (a) through (h), provided that (A) Priority Debt does not at any time exceed 20% of Consolidated Net Worth, and (B) no Lien permitted under this clause (i) shall secure any Indebtedness outstanding under any Primary Credit Facility unless (1) the Company or such Subsidiary has made or will make effective provision whereby the Company’s obligations under this Agreement and the Notes or the applicable Subsidiary Guarantee will be secured by an equal and ratable Lien pursuant to documents, including an intercreditor agreement, in form and substance satisfactory to the Required Holders, and (2) if the Lien is granted by a Subsidiary, such Subsidiary is a Subsidiary Guarantor party to an effective Guaranty Agreement.
 
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 or limited liability company 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 or limited liability company, such corporation or limited liability company (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;
 
 
 
 
 
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(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 Indebtedness; 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 or limited liability company 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, make any Asset Disposition unless:
 
(a)            in the good faith opinion of the Company, the Asset Disposition is in exchange for consideration having a fair market value at least equal to that of the property exchanged or is otherwise in the best interest of the Company or such Subsidiary;
 
(b)            immediately before and after giving effect to the Asset Disposition, no Default or Event of Default would exist; and
 
(c)            immediately after giving effect to the Asset Disposition, the aggregate net book value of all Asset Dispositions (i) in any fiscal year would not exceed 15% of Consolidated Total Assets as of the end of the then most recently completed full fiscal year of the Company and (ii) after the date of this Agreement would not exceed 50% of Consolidated Total Assets as of the end of the fiscal year ended April 30, 2010.
 
Notwithstanding the foregoing, the Company may, and may permit any Subsidiary to, make an Asset Disposition and the assets subject to such Asset 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 Asset Disposition are within 365 days of such Asset Disposition (x) reinvested or committed pursuant to a written agreement to be reinvested in productive assets of a similar nature of at least equivalent value by the Company or a Subsidiary, (y) applied to the payment or prepayment of any outstanding Indebtedness permitted hereunder of the Company or its Subsidiaries which is
 
 
 
 
 
 
 
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secured by a Lien permitted hereunder on the assets subject to such Asset Disposition or (z) applied to the payment or prepayment of the Notes or any other outstanding Indebtedness of the Company and its Subsidiaries that is not subordinated to the Notes (other than Indebtedness owing to the Company, any Subsidiary or any Affiliate), provided that (i) 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 (ii) if any such proceeds are to be applied to the payment or prepayment of any such other Indebtedness, the Company shall have offered to prepay the Notes on a pro rata basis in accordance with Section 8.8, and (B) after giving effect to such Asset 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 or, if applicable, Section 8.8.
 
10.7.
Terrorism Sanctions Regulations.
 
The Company will not and will not permit any Subsidiary to (a) become a Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (b) engage in any dealings or transactions with any such Person.
 
10.8.
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.
 
10.9.
Transactions with Affiliates.
 
The Company will not and will not permit any Subsidiary to enter into directly or indirectly any transaction or 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 in the ordinary course and pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business and 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.
 
 
 
 
 
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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), Section 8.7, Section 8.8 or Sections 10.1 through 10.9; or
 
(d)            (i)  the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11(a), (b) and (c)) and such default is not remedied within 30 days after the earlier of (x) a Responsible Officer obtaining actual knowledge of such default and (y) the Company receiving written notice of such default from any holder of a Note, or (ii) any Guarantor fails to perform or observe any agreement contained in the Guaranty Agreement to which it is a party and such failure shall not be remedied within 30 days after the earlier of (x) a Responsible Officer obtaining actual knowledge thereof and (y) the Company receiving written notice of such failure from any holder of a Note); or
 
(e)            any representation or warranty made in writing by or on behalf of the Company or any Guarantor or by any officer of the Company or any Guarantor in this Agreement, any Guaranty Agreement or in any writing furnished in connection with the transactions contemplated hereby or by any Guaranty Agreement 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 Significant 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 $35,000,000 beyond any period of grace provided with respect thereto, (ii) the Company or any Significant 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 $35,000,000 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 (or one or more Persons are entitled to declare such Indebtedness to be), 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), (x) the Company or any Significant 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 $35,000,000, or (y) one or more Persons have the right to require the Company or any Significant Subsidiary so to purchase or repay such Indebtedness (excluding a right to require the repayment or purchase of Indebtedness arising solely from an event with respect to which the holders have received, or will receive, an offer to prepay the Notes pursuant to Section 8.7, where the terms of such other Indebtedness expressly provide that the Company or such Significant Subsidiary are not obligated to purchase or prepay any portion of such Indebtedness as a result of such event or condition until after the Company has complied with its obligation as a result of such event or condition to offer to purchase the Notes pursuant to Section 8.7 and consummated the prepayment of each Note for which such offer has been accepted); or
 
 
 
 
 
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(g)            the Company or any Significant 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 Significant 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 Significant Subsidiaries, or any such petition shall be filed against the Company or any of its Significant Subsidiaries and such petition shall not be dismissed within 60 days; or
 
(i)            a final judgment or judgments for the payment of money aggregating in excess of $25,000,000 are rendered against one or more of the Company and its Significant 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)            (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 $25,000,000, (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, would reasonably be expected to have a Material Adverse Effect; or
 
 
 
 
 
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(k)   any Guaranty Agreement shall cease to be in full force and effect, or the Company or any Guarantor shall contest or deny the validity or enforceability of, or deny that it has any liability or obligations under, any Guaranty Agreement.
 
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 Section 11(g) or (h) (other than an Event of Default described in clause (i) of Section 11(g) or described in clause (vi) of Section 11(g) by virtue of the fact that such clause encompasses clause (i) of Section 11(g)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable.
 
(b)            If any other Event of Default has occurred and is continuing, the Required Holders may at any time at its or 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 Section 11(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 (including, but not limited to, interest accrued thereon at the Default Rate) 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.
 
 
 
 
 
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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 Section 12.1(b) or (c), the Required Holders, 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 applicable law) any overdue interest in respect of the Notes, at the Default Rate, (b) neither the Company nor any other Person shall have paid any amounts that have become due solely by reason of such declaration, (c) 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 (d) 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.
 
 
 
 
 
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13.2.
Transfer and Exchange of Notes.
 
Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)) for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered holder of such Note or such holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within 10 Business Days thereafter, 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 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 $250,000, 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 $250,000.  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 representation set forth in Section 6.2.
 
13.3.
Replacement of Notes.
 
Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)) 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 with a minimum net worth of at least $50,000,000 or a Qualified Institutional Buyer, 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,
 
 
 
 
 
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within 10 Business Days thereafter, 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 JPMorgan Chase Bank, N.A. in such jurisdiction.  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.
 
So long as any Purchaser or its 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 such Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser 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, such Purchaser 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 a Purchaser or its nominee, such Purchaser will at its 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 a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 14.2.
 
15.
EXPENSES, ETC.
 
15.1.
Transaction Expenses.
 
(a)           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 by the Required Holders, local or other counsel) incurred by the Purchasers and each other 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: (i) 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, (ii) 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 and (iii) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO, provided that such costs and expenses under this clause (c) shall not exceed $5,000.  The Company will pay, and will save each Purchaser 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, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes).
 
 
 
 
 
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(b)           Without limiting the provisions of Section 15.1(a), the Company agrees to indemnify each holder and its Affiliates, and each of their directors, officers, employees, agents and representatives (each an “ Indemnified Person ”), against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, all reasonable expenses of litigation or preparation therefor) which any of them pay or incur arising out of or relating to this Agreement, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of the issuance of the Notes hereunder or any matter related to any thereof, except to the extent arising from such Indemnified Person’s gross negligence, willful misconduct or bad faith.
 
Promptly after the receipt by an Indemnified Person of notice of the commencement of any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand (a “ Proceeding ”), such Indemnified Person will, if a claim is to be made hereunder against the Company in respect thereof, notify the Company in writing of the commencement thereof; provided that (i) the failure to so notify the Company will not relieve it from any liability which it may have hereunder except to the extent it has been materially prejudiced by such failure and (ii) the failure to so notify the Company will not relieve it from any liability which it may have to an Indemnified Person otherwise than on account of this indemnity agreement.  In case any such Proceedings are brought against any Indemnified Person and it notifies the Company of the commencement thereof, the Company will be entitled to participate therein and, to the extent that it may elect by written notice delivered to such Indemnified Person, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Person, provided that if the defendants in any such Proceedings include both such Indemnified Person and the Company and such Indemnified Person shall have concluded, upon the advice of counsel, that the use of counsel chosen by the Company to represent the Indemnified Person would present such counsel with a  conflict of interest, such Indemnified Person shall have the right to select separate counsel reasonably acceptable to the Company to assert such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person.  Upon receipt of notice from the Company to such Indemnified Person of their election so to assume the defense of such Proceedings and approval by such Indemnified Person of counsel, the Company shall not be liable to such Indemnified Person for expenses incurred by such Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the immediately preceding sentence (it being understood, however, that the Company shall not be liable for the expenses of more than one separate counsel (in addition to one local counsel), approved by the Company, representing the Indemnified Persons who are parties to such Proceedings), (ii) the Company shall not have employed counsel reasonably satisfactory to such Indemnified Person to represent such Indemnified Person within a reasonable time after notice to the Company of commencement of the Proceedings or (iii) the Company has authorized in writing the employment of counsel for such Indemnified Person.
 
 
 
 
 
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The Company shall not be liable for any settlement of any Proceedings effected without its written consent (which consent will not be unreasonably withheld).  The Company shall not, without the prior written consent of an Indemnified Person (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Proceedings and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
 
15.2.
Survival.
 
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 shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser 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 such Purchaser 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 each Purchaser 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 any Purchaser unless consented to by such Purchaser 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.
 
 
 
 
 
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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 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 or provide other credit support, 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 or other credit support concurrently provided, on the same terms, ratably to each holder of Notes then outstanding even if such holder did not consent to such waiver or amendment.
 
(c)             Consent in Contemplation of Transfer .  Any consent made pursuant to this Section 17.2 by the holder of any Note that has transferred or has agreed to transfer such Note to the Company, any Subsidiary or any Affiliate of the Company and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such transferring holder.
 
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.
 
 
 
 
 
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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 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 any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or nominee 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 the Chief Financial Officer, with a separate copy being sent to the attention of the Corporate Counsel, or at such other address or to such other officers 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 any Purchaser at the Closings (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser 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 such Purchaser 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 the inaccuracy of any such reproduction.
 
 
 
 
39

 
 
 
 
 
 
20.
CONFIDENTIAL INFORMATION.
 
For the purposes of this Section 20, “Confidential Information” means information delivered to any Purchaser 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 such Purchaser 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 such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or any Subsidiary or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available.  Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, trustees, officers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (ii) its 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 it sells or offers 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 it offers 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 such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser 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 such Purchaser’s 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.
 
 
 
 
 
40

 
 
 
 
 
21.
SUBSTITUTION OF PURCHASER.
 
Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser 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, any reference to such Purchaser in this Agreement (other than in this Section 21) shall be deemed to refer to such Affiliate in lieu of such original Purchaser.  In the event that such Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, any reference to such Affiliate as a “Purchaser” in this Agreement (other than in this Section 21) shall no longer be deemed to refer to such Affiliate, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original holder of the Notes under this Agreement.
 
22.
MISCELLANEOUS.
 
22.1.
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.
 
22.2.
Payments Due on Non-Business Days.
 
Anything in this Agreement or the Notes to the contrary notwithstanding (but without limiting the requirement in Section 8.4 that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), 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; provided that if the maturity date of any Note is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
 
22.3.
Accounting Terms.
 
All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP.  Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be prepared in accordance with GAAP.  Notwithstanding the foregoing or any other provision of this Agreement providing for any amount to be determined in accordance with GAAP, for purposes of determining compliance with the covenants contained in this Agreement, any election by the Company to measure an item of Indebtedness (other than of the type described in clause (f) of the definition thereof) using fair value (as permitted by Accounting Standards Codification 820-12, formerly known as Statements of Financial Accounting Standards No. 159, or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.
 
 
 
 
41

 
 
 
 
22.4.
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.
 
22.5.
Construction, Etc.
 
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.
 
For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.
 
22.6.
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.
 
22.7.
Governing Law.
 
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 permit the application of the laws of a jurisdiction other than such State.
 
22.8.
Jurisdiction.
 
(a)            The Company irrevocably submits to the non-exclusive jurisdiction of the courts of the State of Illinois or in the United States District Court for the Northern District of Illinois over any suit, action or proceeding arising out of or relating to this Agreement or the Notes.  To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
 
 
 
 
 
42

 
 
 
 
(b)            The Company consents to process being served by or on behalf of any holder of Notes in any suit, action or proceeding of the nature referred to in Section 22.8(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 18 or at such other address of which such holder shall then have been notified pursuant to said Section.  The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it.  Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
 
(c)            Nothing in this Section 22.8 shall affect the right of any holder of a Note to serve process in any manner permitted by law, or limit any right that the holders of any of the Notes may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
 
* * * * *
 
 
 
 
 
 
 
43

 
 
 
 
 
 
If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a biding agreement between you and the Company.
                          
 
Very Truly Yours,  
   
CASEY’S GENERAL STORES, INC.  
     
By:
  /s/ Robert J. Myers  
Name:
  Robert J. Myers
 
Title:    President and Chief Executive Officer  

 
 
 
 
 
 
 
Note Purchase Agreement
 
 

 
 

 
The foregoing is agreed to as of the date hereof:

THE PRUDENTIAL INSURANCE COMPANY
  OF AMERICA
 
 
By:
  /s/ David S. Quackenbush
 
           Vice President

PRUCO LIFE INSURANCE COMPANY
 
 
By:
  /s/ David S. Quackenbush
 
           Vice President

PRUCO LIFE INSURANCE COMPANY OF
  NEW JERSEY

 
By:
  /s/ David S. Quackenbush
 
           Vice President

PRUDENTIAL RETIREMENT INSURANCE
  AND ANNUITY COMPANY
 
By:
Prudential Investment Management, Inc., as investment manager
   
 
 
By:
  /s/ David S. Quackenbush
 
 
           Vice President

PHYSICIANS MUTUAL INSURANCE COMPANY
 
By:
Prudential Private Placement Investors, L.P. (as Investment Advisor)
   
 
By:
Prudential Private Placement Investors, Inc. (as its General Partner)
   
 
 
By:
  /s/ David S. Quackenbush
 
 
           Vice President

 
 
 
 
 
 
Note Purchase Agreement
 
 

 
 
 
 
 
COMPANION LIFE INSURANCE COMPANY
 
By:
Prudential Private Placement Investors,  L.P. (as Investment Advisor)
   
 
By:
 Prudential Private Placement Investors, Inc.  (as its General Partner)
   
 
 
By:
  /s/ David S. Quackenbush
 
 
           Vice President

UNITED OF OMAHA LIFE INSURANCE
  COMPANY
 
By:
Prudential Private Placement Investors,  L.P. (as Investment Advisor)
   
 
By:
Prudential Private Placement Investors, Inc.  (as its General Partner)
   
 
 
By:
  /s/ David S. Quackenbush
 
 
           Vice President


 
 
 
 
 
Note Purchase Agreement
 
 

 
 
 

 
ING LIFE INSURANCE AND ANNUITY COMPANY
ING USA ANNUITY AND LIFE INSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
 
By:  ING Investment Management LLC, as Agent  
     
By:
  /s/ Christopher P. Lyons  
Name:
  Christopher P. Lyons
 
Title:    Senior Vice President  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Note Purchase Agreement
 
 

 
 
 
 
AVIVA LIFE AND ANNUITY COMPANY
 
By:  Aviva Investors North America, Inc., its authorized attorney in-fact  
     
By:
  /s/ Rogers D. Fors  
Name:
  Roger D. Fors
 
Title:    VP-Private Fixed Income  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Note Purchase Agreement
 
 

 

 
ALLSTATE INSURANCE COMPANY
 
   
     
By:
  /s/ Mark W. (Sam) Davis  
Name:
  Mark W. (Sam) Davis
 
     
By:
  /s/ Steven E. Shebik  
Name:
  Steven E. Shebik
 
Authorized Signatories  


ALLSTATE LIFE INSURANCE COMPANY
 
   
     
By:
  /s/ Mark W. (Sam) Davis  
Name:
  Mark W. (Sam) Davis
 
     
By:
  /s/ Steven E. Shebik  
Name:
  Steven E. Shebik
 
Authorized Signatories  


ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
 
   
     
By:
  /s/ Mark W. (Sam) Davis  
Name:
  Mark W. (Sam) Davis
 
     
By:
  /s/ Steven E. Shebik  
Name:
  Steven E. Shebik
 
Authorized Signatories  

 
AMERICAN HERITAGE LIFE INSURANCE COMPANY
 
   
     
By:
  /s/ Mark W. (Sam) Davis  
Name:
  Mark W. (Sam) Davis
 
     
By:
  /s/ Steven E. Shebik  
Name:
  Steven E. Shebik
 
Authorized Signatories  

 
 
 
 
 
 
 

 
 
 
Note Purchase Agreement
 
 

 
 
 
 
NEW YORK LIFE INSURANCE COMPANY
 
 
     
By:
  /s/ A. Post Howland  
Name:
  A. Post Howland
 
Title:    Director  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
 
By:  New York Life Investment Management LLC, its Investment Manager
     
By:
  /s/ A. Post Howland  
Name:
  A. Post Howland
 
Title:    Director  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT (BOLI 3-2)
 
By:  New York Life Investment Management LLC, its Investment Manager
     
By:
  /s/ A. Post Howland  
Name:
  A. Post Howland
 
Title:    Director  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT (BOLI 30C)
 
By:  New York Life Investment Management LLC, its Investment Manager
     
By:
  /s/ A. Post Howland  
Name:
  A. Post Howland
 
Title:    Director  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT (BOLI 3)
 
By:  New York Life Investment Management LLC, its Investment Manager
     
By:
  /s/ A. Post Howland  
Name:
  A. Post Howland
 
Title:    Director  

 
 
 
 
 
 
Note Purchase Agreement
 
 

 
 
 
 
HARTFORD LIFE INSURANCE COMPANY
HARTFORD ACCIDENT AND INDEMNITY COMPANY
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
 
By:  Hartford Investment Management Company
        their Agent and Attorney-in-Fact
     
By:
  /s/ Robert M. Mills
 
Name:
  Robert M. Mills
 
Title:    Vice President  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Note Purchase Agreement
 
 

 
 
 
 
 
 
METROPOLITAN LIFE INSURANCE COMPANY

METLIFE INVESTORS INSURANCE COMPANY
by Metropolitan Life Insurance Company, its Investment Manager

METLIFE INSURANCE COMPANY OF CONNECTICUT
by Metropolitan Life Insurance Company, its Investment Manager

FIRST METLIFE INVESTORS INSURANCE COMPANY
by Metropolitan Life Insurance Company, its Investment Manager

METLIFE INVESTORS USA INSURANCE COMPANY
by Metropolitan Life Insurance Company, its Investment Manager

METROPOLITAN TOWER LIFE INSURANCE COMPANY
by Metropolitan Life Insurance Company, its Investment Manager
 
     
     
By:
  /s/ C. Scott Inglis  
Name:
  C. Scott Inglis
 
Title:    Managing Director  

UNION FIDELITY LIFE INSURANCE COMPANY
 
By:  MetLife Investment Advisors Company, LLC, its investment adviser
 
     
     
By:
  /s/ C. Scott Inglis  
Name:
  C. Scott Inglis
 
Title:    Managing Director  

 
 
 
 
 
 
 
 
 
 
 

 
Note Purchase Agreement
 
 

 



 
SCHEDULE A
 
INFORMATION RELATING TO PURCHASERS

   
Aggregate Principal
Amount of Notes
to be Purchased
 
Note
Denomination(s)
       
 
THE PRUDENTIAL INSURANCE COMPANY OF
  AMERICA
 
$42,400,000.00
 
$38,810,000.00
     
$3,590,000.00
(1)
All payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
   
       
 
Account Name:  Prudential Managed Portfolio
Account No.:  P86188 (please do not include spaces) (in the case of payments on account of the Note originally issued in the principal amount of $38,810,000.00)
   
       
 
Account Name:  Privest Plus
Account No.:  P86288 (please do not include spaces) (in the case of payments on account of the Note originally issued in the principal amount of $3,590,000.00)
   
       
 
JPMorgan Chase Bank
New York, NY
ABA No.:  021-000-021
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, Security No. INV11260, PPN 147528 E@8" and the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made.
   
       
 
 
 
 
 
 
 
SCHEDULE A - 1

 
 
 
 
 
 
(2)
Address for all notices relating to payments:
   
       
 
The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, NJ 07102-4077
   
       
 
Attention:  Manager, Billings and Collections
   
       
(3)
Address for all other communications and notices:
   
       
 
The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
   
       
 
Attention:  Managing Director
   
       
(4)
Recipient of telephonic prepayment notices:
   
       
 
Manager, Trade Management Group
   
       
 
Telephone:  (973) 367-3141
   
 
Facsimile:   (888) 889-3832
   
       
(5)
Address for Delivery of Notes and Closing Sets:
   
       
 
Send physical security by nationwide overnight delivery service to:
 
Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
 
Attention:  Armando M. Gamboa
Telephone:  (312) 540-4203
   
       
(6)
Tax Identification No.:  22-1211670
   

 
 
 
 
 
 
SCHEDULE A - 2

 
 
 
 

 
   
Aggregate Principal
Amount of Notes
to be Purchased
Note
Denomination(s)
       
 
 
PRUCO LIFE INSURANCE COMPANY
 
$18,600,000.00
 
$18,600,000.00
       
(1)
All payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
   
       
 
JPMorgan Chase Bank
New York, NY
ABA No.:  021-000-021
   
 
Account No.:  P86192 (please do not include spaces)
Account Name:  Pruco Life Private Placement
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, Security No. INV11260, PPN 147528 E@8" and the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made.
   
       
(2)
Address for all notices relating to payments:
   
       
 
Pruco Life Insurance Company
c/o The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, NJ 07102-4077
   
       
 
Attention:  Manager, Billings and Collections
   
       
(3)
Address for all other communications and notices:
   
       
 
Pruco Life Insurance Company
c/o Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
   
       
 
Attention:  Managing Director
   
       
 
 
 
 
 
 
 
SCHEDULE A - 3

 
 
 
 
 
 
 
(4)
Recipient of telephonic prepayment notices:
   
       
 
Manager, Trade Management Group
   
       
 
Telephone:  (973) 367-3141
   
 
Facsimile:   (888) 889-3832
   
       
(5)
Address for Delivery of Notes:
   
       
 
Send physical security by nationwide overnight delivery service to:
 
Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
 
Attention:  Armando M. Gamboa
Telephone:  (312) 540-4203
   
       
(6)
Tax Identification No.:  22-1944557
   

 
 
 
 
 
SCHEDULE A - 4

 
 
 
 

 
   
Aggregate Principal
Amount of Notes
to be Purchased
 
Note
Denomination(s)
       
 
 
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
 
$6,000,000.00
 
$6,000,000.00
       
(1)
All payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
   
       
 
JPMorgan Chase Bank
New York, NY
ABA No.:  021-000-021
   
 
Account No.:  P86202 (please do not include spaces)
Account Name:  Pruco Life of New Jersey Private Placement
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, Security No. INV11260, PPN 147528 E@8" and the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made.
   
       
(2)
Address for all notices relating to payments:
   
       
 
Pruco Life Insurance Company of New Jersey
c/o The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, NJ 07102-4077
   
       
 
Attention:  Manager, Billings and Collections
   
       
(3)
Address for all other communications and notices:
   
       
 
Pruco Life Insurance Company of New Jersey
c/o Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
   
       
 
Attention:  Managing Director
   
       
 
 
 
 
 
 
 
SCHEDULE A - 5

 
 
 
 
 
 
 
(4)
Recipient of telephonic prepayment notices:
   
       
 
Manager, Trade Management Group
   
       
 
Telephone:  (973) 367-3141
   
 
Facsimile:   (888) 889-3832
   
       
(5)
Address for Delivery of Notes:
   
       
 
Send physical security by nationwide overnight delivery service to:
 
Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
 
Attention:  Armando M. Gamboa
Telephone:  (312) 540-4203
   
       
(6)
Tax Identification No.:  22-2426091
   
 
 
 
 
 
 
 
SCHEDULE A - 6

 
 
 
 

 
   
Aggregate Principal
Amount of Notes
to be Purchased
 
Note
Denomination(s)
       
 
PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY
$40,000,000.00
$40,000,000.00
       
(1)
All payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
   
       
 
JP Morgan Chase Bank
New York, NY
ABA No. 021000021
   
       
 
Account Name:  PRIAC
Account No. P86329 (please do not include spaces)
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, Security No. INV11260, PPN 147528 E@8" and the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made.
   
       
(2)
Address for all notices relating to payments:
   
       
 
Prudential Retirement Insurance and Annuity Company
c/o Prudential Investment Management, Inc.
Private Placement Trade Management
PRIAC Administration
Gateway Center Four, 7th Floor
100 Mulberry Street
Newark, NJ 07102
 
Telephone:  (973) 802-8107
Facsimile:   (888) 889-3832
   
       
(3)
Address for all other communications and notices:
   
       
 
Prudential Retirement Insurance and Annuity Company
c/o Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
   
       
 
Attention:  Managing Director
   
       
 
 
 
 
 
 
SCHEDULE A - 7

 
 
 
 
 
 
 
(4)
Address for Delivery of Notes and Closing Sets:
   
       
 
Send physical security by nationwide overnight delivery service to:
 
Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
 
Attention:  Armando M. Gamboa
Telephone:  (312) 540-4203
   
       
(5)
Tax Identification No.:  06-1050034
   
 
 
 
 
 
 
SCHEDULE A - 8

 
 
 

 

   
Aggregate Principal
Amount of Notes
to be Purchased
 
Note
Denomination(s)
       
 
PHYSICIANS MUTUAL INSURANCE COMPANY
$3,000,000.00
$3,000,000.00
       
 
Notes/Certificates to be registered in the name of:
How & Co.
   
       
(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
Chicago, IL
ABA No.:  071000152
   
       
 
Account Name:  Physicians Mutual Insurance Company
Account No.:  26-98845
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, PPN 147528 E@8" and the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made.
   
       
(2)
All notices of payments and written confirmations of such wire transfers:
   
       
 
Physicians Mutual Insurance Company
2600 Dodge Street
Omaha, NE 68131
 
Attention:  Steve Scanlan
 
Facsimile:  (402) 633-1096
   
       
(3)
Address for all other communications and notices:
   
       
 
Prudential Private Placement Investors, L.P.
c/o Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
 
Attention:  Managing Director
   
       
 
 
 
 
 
SCHEDULE A - 9

 
 
 
 
 
 
(4)
Address for Delivery of Notes:
   
       
 
(a)           Send physical security by nationwide overnight delivery
service to:
 
The Northern Trust Company of New York
Harborside Financial Center 10, Suite 1401
3 Second Street
Jersey City, NJ 07311
 
Attention:  Jose Mero & Ruby Vega
 
Please include in the cover letter accompanying the Notes a reference to the Purchaser's account number (Physicians Mutual Insurance Company-Prudential; Account Number For allocations to Physicians LTC:  Account Number:  26-98845 ).
 
(b)           Send copy by nationwide overnight delivery service to:
 
Prudential Capital Group
Gateway Center 4
100 Mulberry, 7th Floor
Newark, NJ 07102
 
Attention:  Trade Management, Manager
Telephone:  (973) 367-3141
   
       
(5)
Tax Identification No.:  47-0270450
   
       
 
 
 
 
 
 
SCHEDULE A - 10

 
 
 
 

 
   
Aggregate Principal
Amount of Notes
to be Purchased
 
Note
Denomination(s)
       
 
COMPANION LIFE INSURANCE COMPANY
$1,000,000.00
$1,000,000.00
       
(1)
All payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
   
       
 
JPMorgan Chase Bank
ABA No. 021-000-021
Private Income Processing
For Credit to account:  900-9000200
For further credit to Company Name:  Companion Life Insurance Company
For further credit to Account Number:  G09589
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, PPN 147528 E@8" and the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made.
   
       
(2)
Address for all notices relating to payments:
   
       
 
JPMorgan Chase Bank
14201 Dallas Parkway - 13th Floor
Dallas, TX 75254-2917
 
Attention:  Income Processing - G. Ruiz
a/c:  G09589
   
       
(3)
Address for all other communications and notices:
   
       
 
Prudential Private Placement Investors, L.P.
c/o Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
 
Attention:  Managing Director
   
       
 
 
 
 
 
 
SCHEDULE A - 11

 
 
 
 
 
 
(4)
Address for Delivery of Notes:
   
       
 
(a)           Send physical security by nationwide overnight delivery
service to:
 
JPMorgan Chase Bank
4 Chase Metrotech Center, 3rd Floor
Brooklyn, NY 11245-0001
 
Attention:  Physical Receive Department
 
Please include in the cover letter accompanying theNotes a reference to the Purchaser's account number (Companion Life Insurance Company; Account Number: G09589).
 
(b)           Send copy by nationwide overnight delivery service to:
 
Prudential Capital Group
Gateway Center 4
100 Mulberry, 7th Floor
Newark, NJ 07102
 
Attention:  Trade Management, Manager
Telephone:  (973) 367-3141
   
       
(5)
Tax Identification No.:  13-1595128
   
       
 
 
 
 
 
 
SCHEDULE A - 12

 
 
 

 

   
Aggregate Principal
Amount of Notes
to be Purchased
 
Note
Denomination(s)
       
 
UNITED OF OMAHA LIFE INSURANCE COMPANY
$14,000,000.00
$14,000,000.00
       
(1)
All principal, interest and Make-Whole Amount payments on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
   
       
 
JPMorgan Chase Bank
ABA No. 021-000-021
Private Income Processing
For Credit to account:  900-9000200
For further credit to Account Name:  United of Omaha Life Insurance Company
For further credit to Account Number:  G09588
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, PPN 147528 E@8" and the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made.
   
       
(2)
All payments, other than principal, interest or Make-Whole Amount, on account of Notes held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
   
       
 
JPMorgan Chase Bank
ABA No. 021-000-021
Account No. G09588
Account Name:  United of Omaha Life Insurance Co.
   
       
 
Each such wire transfer shall set forth the name of the Company, a reference to "5.22% Senior Notes due August 9, 2020, PPN 147528 E@8" and the due date and application (e.g., type of fee) of the payment being made.
   
       
(3)
Address for all notices relating to payments:
   
       
 
JPMorgan Chase Bank
14201 Dallas Parkway - 13th Floor
Dallas, TX 75254-2917
 
Attn:  Income Processing - G. Ruiz
a/c:  G09588
   
       
 
 
 
 
 
 
 
SCHEDULE A - 13

 
 
 
 
 
 
(4)
Address for all other communications and notices:
   
       
 
Prudential Private Placement Investors, L.P.
c/o Prudential Capital Group
Two Prudential Plaza
180 North Stetson, Suite 5600
Chicago, IL 60601-6716
 
Attention:  Managing Director
   
       
(5)
Address for Delivery of Notes:
   
       
 
(a)           Send physical security by nationwide overnight delivery service to:
 
JPMorgan Chase Bank
4 Chase Metrotech Center, 3rd Floor
Brooklyn, NY 11245-0001
 
Attention:  Physical Receive Department
 
Please include in the cover letter accompanying the Notes a reference to the Purchaser's account number (United of Omaha Life Insurance Company; Account Number:  G09588).
 
(b)           Send copy by nationwide overnight delivery service to:
 
Prudential Capital Group
Gateway Center 4
100 Mulberry, 7th Floor
Newark, NJ 07102
 
Attention:  Trade Management, Manager
Telephone:  (973) 367-3141
   
       
(6)
Tax Identification No.:  47-0322111
   
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SCHEDULE A - 14

 
 
 
 

 
 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
ING USA ANNUITY AND LIFE INSURANCE COMPANY
 
(1)     All payments on account of Notes held by such purchaser should be made by wire transfer of immediately available funds for credit to:
 
The Bank of New York Mellon
ABA#:  021000018
 
Account: IOC 566/INST’L CUSTODY (for scheduled
principal and interest payments)
or
IOC 565/INST’L CUSTODY (for all payments
other than scheduled principal and interest)
 
For further credit to:  ING USA/Acct. 136373
Reference:  [ insert CUSIP ]
 
Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, 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:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Operations/Settlements
Fax:  (770) 690-4886
 
(3)     Address for all other communications and notices:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Private Placements
Fax:  (770) 690-5057
 
(4)     Tax Identification No.:  41-0991508
 
$32,000,000
$32,000,000
 
 
 
 
 
 
 
SCHEDULE A - 15

 
 

 

 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
RELIASTAR LIFE INSURANCE COMPANY
 
(1)     All payments on account of Notes held by such purchaser should be made by wire transfer of immediately available funds for credit to:
 
The Bank of New York Mellon
ABA#:  021000018
 
Account:  IOC 566/INST’L CUSTODY (for scheduled
   principal and interest payments)
   or
   IOC 565/INST’L CUSTODY (for all payments
   other than scheduled principal and interest)
 
For further credit to:  RLIC/Acct. 187035
Reference:  [ insert CUSIP ]
 
Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, 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:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Operations/Settlements
Fax:  (770) 690-4886
 
(3)     Address for all other communications and notices:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Private Placements
Fax:  (770) 690-5057
 
(4)     Tax Identification No.:  41-0451140
$29,000,000
$29,000,000

 
 
 
 
 
SCHEDULE A - 16

 
 
 

 

 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
RELIASTAR LIFE INSURANCE COMPANY
 
(1)     All payments on account of Notes held by such purchaser should be made by wire
transfer of immediately available funds for credit to:
 
The Bank of New York Mellon
ABA#:  021000018
 
Account:  IOC 566/INST’L CUSTODY (for scheduled
   principal and interest payments)
   or
   IOC 565/INST’L CUSTODY (for all payments
   other than scheduled principal and interest)
 
For further credit to:  RLIC/Acct. 805858
Reference:  [ insert CUSIP ]
 
Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, 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:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Operations/Settlements
Fax:  (770) 690-4886
 
(3)     Address for all other communications and notices:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Private Placements
Fax:  (770) 690-5057
 
(4)     Tax Identification No.:  41-0451140
 
 
$1,000,000
$1,000,000
 
 
 
 
 
SCHEDULE A - 17

 
 
 

 

 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
ING LIFE INSURANCE AND ANNUITY COMPANY
 
(1)     All payments on account of Notes held by such purchaser should be made by wire
transfer of immediately available funds for credit to:
 
The Bank of New York Mellon
ABA#:  021000018
 
Account:  IOC 566/INST’L CUSTODY (for scheduled
   principal and interest payments)
   or
   IOC 565/INST’L CUSTODY (for all payments
  other than scheduled principal and interest)
 
For further credit to:  ILIAC/Acct. 216101
Reference:  [ insert CUSIP ]
 
Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, 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:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Operations/Settlements
Fax:  (770) 690-4886
 
(3)     Address for all other communications and notices:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Private Placements
Fax:  (770) 690-5057
 
(4)     Tax Identification No.:  71-0294708
$38,000,000
$38,000,000
 
 
 
 
 
 
SCHEDULE A - 18

 
 
 
 
 

 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
 
(1)     All payments on account of Notes held by such purchaser should be made by wire
transfer of immediately available funds for credit to:
 
The Bank of New York Mellon
ABA#:  021000018
 
Account:  IOC 566/INST’L CUSTODY (for scheduled
   principal and interest payments)
   or
   IOC 565/INST’L CUSTODY (for all payments
   other than scheduled principal and interest)
 
For further credit to:  RLNY/Acct. 187038
Reference:  [ insert CUSIP ]
 
Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, 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:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Operations/Settlements
Fax:  (770) 690-4886
 
(3)           Address for all other communications and notices:
 
ING Investment Management LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA  30327-4347
Attn:  Private Placements
Fax:  (770) 690-5057
 
(4)           Tax Identification No.:  53-0242530
 
$10,000,000
$10,000,000
 
 
 
 
 
 
SCHEDULE A - 19

 
 
 
 
 

 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
AVIVA LIFE AND ANNUITY COMPANY
 
Name in which to register Note(s):  HARE & CO.
 
Payment on Account of Note(s)
 
Method: Federal Funds Wire Transfer
Wiring Instructions:
The Bank of New York
New York, NY
ABA #021000018
Credit AIC#   GLA 111566
A/C   Name: Institutional Custody Insurance Division
Custody Account Name:  Aviva Life and Annuity Co-Annuity
Custody Account Number:  010048
 
Reference:  Please reference the Name of Company, Description of Security, PPN, Due Date and Application (as among principal, make-whole and interest) of the payment being made.
 
Address for all Notices, including Financials Compliance and Requests
 
 
PREFERRED REMITTANCE:
privateplacements@avivainvestors.com
 
Aviva Life and Annuity Company
c/o Aviva Investors North America, Inc.
Attn: Private Placements
699 Walnut Street, Suite 1800
Des Moines, IA 50309
Fax: (515) 283-3439
 
 
 
 
$40,000,000
$40,000,000
 
 
 
 
 
 
 
 
 
 
 
 
SCHEDULE A - 20

 
 
 
 
 
 
 
Instructions for Delivery of Notes
 
The Bank of New York
One Wall Street, 3rd Floor
Window A
New York, NY 10286
FAG: Aviva Life and Annuity Co-Annuity,
A/C #0 10048
 
Tax Identification Number
 
42-0175020 (Aviva Life and Annuity Company)
13-6062916 (Hare & Co.)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
SCHEDULE A - 21

 
 
 
 

 
 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
ALLSTATE INSURANCE COMPANY
 
 
(1)     All payments by Fedwire transfer of immediately available funds or ACH payments, identifying the name of the Issuer, the Private Placement Number and the payment as principal, interest or premium, in the format as follows:
 
Bank:         Citibank
ABA #:                       021000089
Account Name:    Allstate Insurance Company Bond Collection Account
Account #:                 30546979
Reference:                OBI [Insert 9-digit Private Placement No., Credit Name, Coupon, Maturity here],
                                   Payment Due Date (MM/DD/YY) and the type and amount of payment being
            made.
                                   For example:
                                    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)
 
For Overseas Wires:   SWIFT Code:  CITIUS33, SWIFT Line 71A:  OUR
 
(2)     All notices of scheduled payments and written confirmations of such wire transfer to be sent to:
 
Allstate Investments LLC
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone:  (847) 402-6672 Private Placements
Telecopy:  (847) 326-7032
E-Mail:  PrivateIOD@allstate.com
 
$7,000,000
$7,000,000
 
 
 
 
 
 
SCHEDULE A - 22

 
 
 
 
 
 
(3)     Securities to be delivered to:
Citibank N.A.
399 Park Avenue
Level B Vault
New York, NY 10022
Attn:  Danny Reyes
For Allstate Insurance Company/Safekeeping Account No. 846626
 
(4)     All financial reports, compliance certificates and all other written communications, including notice of prepayments, to be sent by email (PrivateCompliance@allstate.com) or hard copy to:
Allstate Investments LLC
 
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone:  (847) 402-7117
Telecopy:  (866) 226-2806
 
The tax identification number for Allstate Insurance Company is Tax Id. No:  36-0719665.
 
   

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SCHEDULE A - 23

 
 
 

 

 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
ALLSTATE LIFE INSURANCE COMPANY
 
(1)     All payments by Fedwire transfer of immediately available funds or ACH Payment, identifying the name of the Issuer, the Private Placement Number and the payment as principal, interest or premium, in the format as follows:
 
Bank:                                     Citibank
ABA #:                                   021000089
Account Name:                    Allstate Life Insurance Company Collection Account - PP
Account #:                             30547007
Reference:                            OBI [Insert 9-digit Private Placement No., Credit Name, Coupon, Maturity here],
Payment Due Date (MM/DD/YY) and the type and amount of payment being made.
For example:
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)
 
For Overseas Wires in U.S. Dollars:   SWIFT Code:  CITIUS33, SWIFT Line 71A:  OUR
 
For Overseas Wires in Euros:
1.           London
2.           CITIGB2L – SWIFT
3.           Citibank, N.A. London
4.           10945439
5.          Allstate Life Insurance Company
6.           IBAN:   GB95CITI18500810945439
7.           SWIFT Code:  CITIUS33, SWIFT Line
              71A:  OUR
 
 
$10,000,000
$5,000,000
$5,000,000
 
 
 
 
 
 
 
SCHEDULE A - 24

 
 
 
 
 

 

(2)           All notices of scheduled payments and written confirmations of such wire transfer to be sent to:
 
Allstate Investments LLC
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone:  (847) 402-6672 Private Placements
Telecopy:  (847) 326-7032
E-Mail:   PrivateIOD@allstate.com
 
(3)            Securities to be delivered to:
 
Citibank N.A.
399 Park Avenue
Level B Vault
New York, NY 10022
Attn:  Danny Reyes
For Allstate Life Insurance Company of New York/Safekeeping
Account No. 846627
 
(4)          All financial reports, compliance certificates and all other written communications, including notice of prepayments, to be sent by email ( PrivateCompliance@allstate.com ) or hard copy to:
 
Allstate Investments LLC
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone:  (847) 402-7117
Telecopy:  (866) 226-2806
 
The tax identification number for Allstate Life Insurance Company of New York is Tax Id. No:  36-2554642.
   

 
 
 
 
 
 
SCHEDULE A - 25

 
 
 
 

 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
 
(1)     All payments by Fedwire transfer of immediately available funds or ACH Payment, identifying the name of the Issuer, the Private Placement Number and the payment as principal, interest or premium, in the format as follows:
 
Bank:   Citibank
ABA #:   021000089
Account Name:   Allstate Life Insurance Company of New York Collection Account
Account #:   30547066
Reference:   OBI [Insert 9-digit Private Placement No., Credit Name, Coupon, Maturity here], Payment Due Date (MM/DD/YY) and the type and amount of payment being made.
For example:
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)
For Overseas Wires:   SWIFT Code:  CITIUS33, SWIFT Line 71A:  OUR
 
(2)     All notices of scheduled payments and written confirmations of such wire transfer to be sent to:
 
Allstate Investments LLC
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone:  (847) 402-6672 Private Placements
Telecopy:  (847) 326-7032
E-Mail:   PrivateIOD@allstate.com
 
 
$10,000,000
$5,000,000
$5,000,000
 
 
 
 
 
 
SCHEDULE A - 26

 
 
 
 

 
(3)     Securities to be delivered to:
 
Citibank N.A.
399 Park Avenue
Level B Vault
New York, NY 10022
Attn:  Danny Reyes
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 by email ( PrivateCompliance@allstate.com ) or hard copy to:
Allstate Investments LLC
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone:  (847) 402-7117
Telecopy:  (866) 226-2806
 
The tax identification number for Allstate Life Insurance Company of New York is Tax Id. No:  36-2608394.
   

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SCHEDULE A - 27

 
 
 
 

 
 
Aggregate
Principal
Amount of
Notes to be
Purchased
 
 
 
Note
Denomination(s)
     
AMERICAN HERITAGE LIFE INSURANCE COMPANY
 
(1)     All payments by Fedwire transfer of immediately available funds or ACH payments, identifying the name of the Issuer, the Private Placement Number and the payment as principal, interest or premium, in the format as follows:
 
Bank:   Citibank
ABA #:   021000089
Account Name:   American Heritage Life Insurance Company Bond Collection Account
Account #:   30546936
Reference:   OBI [Insert 9-digit Private Placement No., Credit Name, Coupon, Maturity here],
Payment Due Date (MM/DD/YY) and the type and amount of payment being made.
For example:
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)
For Overseas Wires:   SWIFT Code:  CITIUS33, SWIFT Line 71A:  OUR
 
(2)     All notices of scheduled payments and written confirmations of such wire transfer to be sent to:
 
Allstate Investments LLC