Indenture Agreement with respect to Capital Notes dated April 19,
1999.
152
I N D E N T U R E A G R E E M E N T
W I T H R E S P E C T
T O C A P I T A L N O T E S
D A T E D A P R I X 00, 0 0 0 0
000
XXXXXXXXX AGREEMENT
THIS INDENTURE AGREEMENT is made as of the 19th day of April,
1999, between XXXXXXX XXXXX, INC., a corporation organized and
existing under the laws of Iowa with its principal place of
business in the City of Des Moines, Iowa, hereinafter called the
"Company," and BANKERS TRUST COMPANY, a state banking corporation
organized under the laws of the State of Iowa, with its principal
place of business in the City of Des Moines, Iowa, hereinafter
called the "Trustee."
W I T N E S S E T H:
WHEREAS, Company is duly authorized by its Articles of
Incorporation and By-Laws to borrow money for its corporate
purposes; and,
WHEREAS, Company was heretofore duly authorized by a unanimous
affirmative vote of its directors at a meeting duly called and held
for such purpose to borrow the sum of $5,000,000 for use in
connection with its ordinary operations and to issue its Capital
Notes in the total sum of $5,000,000, with the same to be secured
by an appropriate Indenture Agreement with Bankers Trust Company,
Des Moines, Iowa, as Trustee for the Capital Note holders.
NOW, THEREFORE, in consideration of One Dollar ($1.00) in hand
paid to Trustee, and in consideration of the purchase and accep-
tance of Capital Notes of Company by various purchasers, Company
hereby covenants and declares that its Capital Notes in the maximum
principal sum of $5,000,000, and hereinafter more fully described,
shall be issued by it upon and subject to the following terms,
conditions, and covenants, and Trustee by its execution hereof
agrees to act as Trustee for all such Capital Note holders under
and pursuant to the terms of this Agreement.
ARTICLE I
Capital Notes
1.01 Company shall issue its Capital Notes, in the maximum
total principal sum of $5,000,000 with the same being in the
series, maturing on the dates, and bearing interest at the rates
enumerated on Exhibit A attached hereto, which said Capital Notes
shall constitute those issued under and pursuant to this Indenture.
Such Capital Notes shall be issued in denominations of multiples of
$1,000.
1.02 The Capital Notes to be issued under and pursuant to the
terms hereof shall be in the form attached hereto as Exhibit B.
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1.03 All Capital Notes issued pursuant to this Indenture
shall be issued directly to the registered owners as to principal
and interest, and shall be transferable by the registered owner in
person or by duly authorized attorney at the office of the Company
upon surrender and cancellation of the original Capital Note, at
which time a new registered Capital Note(s) shall be executed and
delivered by Company in lieu thereof with the same registered in
the name of the transferee or transferees. Each Capital Note
issued in consummation of an assignment and transfer of an original
issue, or any subsequent Capital Notes issued and outstanding under
the terms hereof, shall be appropriately recorded by both Company
and by Trustee.
1.04 All Capital Notes issued under and pursuant to this
Indenture shall be certified by Trustee and shall not be valid for
any purpose until so certified. Whenever a Capital Note is surren-
dered for transfer or assignment and a new Capital Note issued in
lieu thereof, the same shall be certified at that time by Trustee
prior to its delivery to the registered owner or owners.
1.05 All Capital Notes issued under the terms hereof shall
have equal priority as to principal. Upon the happening of an
"event of default," all interest due and unpaid on that date on all
Capital Notes issued and outstanding shall have priority over any
principal amounts of such Capital Notes, and shall be paid ratably
either in money or property among the Capital Note holders to whom
the said unpaid interest is due and owing, and no payment of
principal shall be made until all said unpaid interest has been
paid and discharged in full. Following payment of the interest,
the principal sums due and unpaid on all Capital Notes issued and
outstanding as of that date shall then be paid. For the purpose of
principal payment, whether by virtue of distribution of money or
property, priority with respect thereto shall be equal between all
such outstanding Capital Notes.
1.06 Any Capital Note issued under the terms hereof which has
been lost, destroyed, or stolen shall be replaced by Company with
an identical new Capital Note, certified by Trustee, upon proof of
loss, destruction, or theft satisfactory to Company and Trustee and
the giving of a bond to secure Company and Trustee from loss, if
and to the extent required by Company and Trustee.
1.07 Any Capital Note surrendered to Company by the holder
thereof on payment or redemption shall be promptly cancelled by
Company and after cancellation delivered to Trustee for recordation
and return to Company. A Capital Note surrendered upon an
155
assignment or transfer shall also be so cancelled by Company and
delivered to Trustee for recordation and return to Company.
1.08 All Capital Notes issued pursuant to the terms hereof
shall bear interest, payable semi-annually on June 1 and December 1
of each year prior to maturity, call for redemption or redemption
pursuant to Section 1.11 hereof. No payment of principal shall be
made until all unpaid interest has been paid and discharged in
full. Following payment of the interest, the principal sums due
and unpaid on all Capital Notes issued and outstanding as of that
date shall be paid. For the purpose of principal payments, whether
by virtue of distribution of money or property, priority with
respect thereto shall be equal in all respects between all such
outstanding Capital Notes.
1.09 Capital Notes issued and outstanding under the terms
hereof shall be paid on maturity to the extent that payment is not
prohibited by the terms hereof, and after payment of all interest
due and payable on any such outstanding Capital Notes at that time.
1.10 Any Capital Note issued pursuant to this Indenture may
be redeemed in advance of maturity in whole or in part by Company,
on any interest payment date occurring on or after the midpoint
between the date of issuance and the stated maturity date of such
Capital Note, at any time after thirty (30) days notice by Company
of its election to do so by paying all interest due thereon
together with the principal amount thereof.
1.11 Upon the death of an individual registered holder or of
an individual bearing a certain designated relationship to the
registered holder, a Capital Note will be redeemed by the Company
at the option of certain designated person(s) exercised as provided
herein at face plus all interest accrued on the Capital Note to the
date of redemption. An option shall arise upon the death of an
individual who is (i) sole registered holder, (ii) a joint tenant
registered holder, (iii) a tenant in common registered holder,
(iv) a life tenant registered holder, (v) the sole grantor of a
revocable trust which is a registered holder, (vi) a participant in
an XXX or other retirement plan solely for the benefit of one
participant which is a registered holder, or (vii) the xxxx of a
conservatorship or custodianship which is a registered holder. No
option to require redemption of a Capital Note shall arise except
as specifically set forth above.
Upon the death of an individual who is the sole registered
holder of a Capital Note, such option shall be exercisable by the
deceased holder's personal representative(s). Upon the death of a
registered holder who holds a Capital Note in joint tenancy, such
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option shall be exercisable by the surviving joint tenant(s). Upon
the death of a registered holder who holds a Capital Note in
tenancy in common, such option shall be exercisable jointly by the
personal representative(s) of the deceased holder and by the
remaining tenant(s) in common. Upon the death of a registered
holder who has a life estate in a Capital Note, such option shall
be exercisable by the remainderman(men). Upon the death of an
individual who is the sole grantor of a revocable trust which is a
registered holder, such option shall be exercisable by the
trustee(s) of the trust. Upon the death of the participant in an
XXX or other retirement plan solely for the benefit of one
participant which is a registered holder, such option shall be
exercisable by the beneficiary(ies) of such XXX or retirement plan.
Upon the death of a xxxx of a conservatorship or custodianship
which is a registered holder, such option shall be exercisable by
the personal representative(s) of such xxxx'x estate. In the event
more than one person is entitled to exercise the option, such
option shall be exercisable only with the concurrence of all
persons entitled to exercise the option.
The option shall be exercisable for a period of 9 months
following the date of death of the individual whose death gives
rise to the option. The option shall be exercised by the person(s)
entitled to exercise the option giving written notice to the
Company of the exercise of the option at the Company's principal
executive offices. Prior to the redemption of the Capital Note,
the person(s) entitled to exercise the option shall furnish the
Company with such documentation or evidence as the Company shall
require to establish such person's(s') entitlement to exercise the
redemption option. The Company shall be under no duty to notify
the person(s) entitled to exercise the option of the existence of
this redemption option or of any facts which come to the attention
of the Company which would give any person the right to exercise
the option.
1.12 In the event any Capital Note is not presented for sur-
render and cancellation on maturity or when called for redemption
by Company, Company shall deposit a sum equal to the amount due
thereon, with Trustee in trust for payment thereof, and no interest
shall be due and payable to the holder of such Capital Note from
and after its maturity or redemption date. Such payment by Company
to Trustee shall be made within thirty (30) days after the due
date. Thereafter, Trustee shall pay over said sum to the owner
upon delivery and surrender of the pertinent Capital Note(s) for
redemption and cancellation.
1.13 Nothing contained in this Indenture or in any of the
Capital Notes shall be construed to cause the Capital Notes issued
157
hereunder to become immediately due and payable in the event of any
consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties,
or any sale or conveyance of the property of the Company as an
entirety or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company) or the purchase of
stock and subsequent liquidation of the assets into the purchasing
entity (hereinafter "purchase and liquidation") authorized to
acquire and operate the same if the following are delivered to the
Trustee: (1) an opinion by a certified public accountant appointed
by the successor corporation or entity opining that the net worth
of the successor corporation or entity following the acquisition,
merger, consolidation, sale of assets, or purchase and liquidation
determined on a pro forma basis using the successor corporation's
or entity's and the Company's most recent year-end financial
statements preceding the date of the acquisition, merger,
consolidation, sale of assets, or purchase and liquidation is in
excess of the net worth of the Company as reflected on the
Company's most recent year-end financial statements preceding the
date of the acquisition, merger, consolidation, sale of assets, or
purchase and liquidation; (2) an Assumption Agreement in which the
successor corporation or entity expressly assumes the due and
punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company; and
(3) an opinion of counsel appointed by the successor corporation or
entity that the Assumption Agreement is a valid and binding
obligation of such successor corporation or entity enforceable in
accordance with its terms and the Capital Notes are valid and
binding obligations of the successor corporation or entity.
In case of any such consolidation, merger, sale, conveyance,
or purchase and liquidation and upon the assumption by the
successor corporation, such successor corporation shall succeed to
and be substituted for the Company, with the same effect as if it
had been named herein as the Company.
1.14 Any notices which Company is required to give under the
terms of this Indenture, or which are deemed necessary or proper by
Company, shall be given by first class mail with postage prepaid
addressed to each Capital Note holder at the address shown for him
on the books and records of Company, and notices so given shall be
deemed given upon the date of the mailing thereof.
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ARTICLE II
Covenants of Company
2.01 Company covenants and agrees to pay all principal and
interest as the same becomes due and payable upon any Capital Notes
issued and outstanding under the terms of this Indenture; provided,
however, that principal shall only be paid by it upon surrender of
the appropriate Capital Notes for cancellation, or if not
surrendered, by payment to Trustee as provided in this Indenture.
2.02 Subject to the provisions of Section 1.13 hereof,
Company covenants to continue the operation of its business, all as
required and permitted by its Articles of Incorporation and By-
Laws, and to at all times maintain sufficient assets and property
to continue such general operations so long as any of its Capital
Notes remain issued and outstanding under the terms hereof.
2.03 Company covenants to meet all requirements relative to
issuance of said Capital Notes, payment of principal and interest
thereon from the sources specified, and all other conditions
relating thereto as provided in Article I hereof.
2.04 Company further covenants to furnish Trustee true copies
of all quarterly and annual reports normally prepared by Company.
2.05 On an annual basis Company covenants to furnish trustee
with a certificate indicating whether there has been an "event of
default", as defined in Article III hereof, on the Capital Notes.
Said statement shall be certified by an officer of the Company that
it is true and accurate according to the Company's best knowledge
and belief. The Company shall deliver the certificate to the
Trustee within ninety (90) days of the Company's fiscal year end.
2.06 The Company further covenants to furnish Trustee a
quarterly statement listing the current capital noteholders. Said
statement shall be certified by an officer of the Company to be
true and accurate according to the Company's best knowledge and
belief.
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ARTICLE III
Defaults: Rights, Remedies, and Duties of
Trustee and Capital Note Holders
3.01 An "event of default" shall constitute any one of the
following:
a. Failure of Company to pay interest or principal or any part
thereof, within thirty (30) days after due;
b. Failure of Company to fully perform any other covenant or
obligation made and to be kept or performed by Company by virtue of
this Indenture which is not remedied within sixty (60) days after
notice of such failure from Trustee or from the holders of twenty-
five percent (25%) of the principal amount of all Capital Notes
issued and outstanding under the terms hereof at that time.
c. Adjudication of Company as a bankrupt or insolvent in any
state or federal court, or appointment by any court of a receiver
to take over and conduct the business, affairs, and property of
Company, or commencement of liquidation of Company, either
voluntary or involuntary, pursuant to any bankruptcy, insolvency or
receivership.
3.02 Subject to the provisions of Section 4.01(e), upon the
happening of an "event of default," Trustee shall declare all prin-
cipal and interest on all Capital Notes of Company then issued and
outstanding under the terms hereof due and payable at once by
written notice to Company, and thereafter, Trustee may xxx at law
or in equity or proceed in any other manner authorized by law to
enforce payment of all sums due on any such outstanding Capital
Notes and to establish and enforce all rights and priorities of
every kind and nature of the holders of all such Capital Notes and
of such Trustee.
3.03 Subject to the provisions of Section 4.01(e), upon the
occurrence of an "event of default" as defined in this Indenture,
Trustee, within thirty (30) days after knowledge thereof, shall
give written notice thereof to all registered owners of Capital
Notes outstanding under the terms of this Indenture at that time,
said notice to be by ordinary first class mail addressed to each
owner at the address shown on Trustee's records. Failure to give
notices
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under the terms hereof, however, shall not make Trustee liable for
any claim resulting therefrom.
3.04 In any action or proceeding in which rights of Capital
Note holders in and to the assets and property of Company are or
may be affected, or to enforce payment of interest or principal due
under this Indenture or any of the Capital Notes issued pursuant to
the same, or to otherwise enforce performance by Company of any
obligations made or to be performed by it under the terms hereof or
of Capital Notes issued pursuant to this Indenture, Trustee shall
act for and on behalf of all Capital Note Holders, and shall file
and make proof of debts, claims, petitions, pleadings, and all
other instruments, and may take all action and steps deemed
necessary or proper to enforce, protect, and preserve all rights
and properties of the holders of outstanding Capital Notes.
3.05 Trustee may employ counsel as in its discretion deemed
proper in the case of any "event of default" of Company, or any
other actions as in this Indenture described or provided for with
respect to Trustee either in its own right or for and on behalf of
Capital Note holders, and Company shall pay all fees and expenses
of such counsel and of Trustee in any such acts, actions, or
proceedings taken by Trustee under terms hereof.
3.06 All moneys collected or received by Trustee by virtue of
any act, action, or proceeding taken under the terms hereof or
received by Trustee for and on behalf of Capital Note holders shall
be disbursed as follows:
a. In payment of all costs, expenses, charges, and fees of
Trustee, including counsel and attorney's fees;
b. In payment of all principal and interest due and unpaid on the
Capital Notes issued and outstanding at that time. If there are
insufficient funds to fully pay all such principal and interest,
the funds available shall be applied and paid first ratably to the
payment of unpaid interest and then ratably to the payment of
principal;
c. The remainder, if any, to Company.
3.07 In case of an "event of default" by Company by virtue of
which the Trustee may elect to institute an action or proceeding on
behalf of the Capital Note holders against Company, if Trustee does
not institute an action within thirty (30) days after its elective
right to so do has accrued, the holders of Capital Notes totaling
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twenty-five percent (25%) of the principal amount of all such
Capital Notes then issued and outstanding by written demand given
to Trustee may require Trustee to institute any action or
proceeding which they direct Trustee to initiate, provided however,
that Trustee, before bringing any such action, may, as is
hereinafter more fully spelled out, require adequate security from
such Capital Note holders to protect it against any loss by virtue
of expenses, charges, and fees incident to any action so required.
In the event that two or more groups of holders of Capital Notes
each of which holds Capital Notes totaling twenty-five percent
(25%) of the principal amount of all such Capital Notes then issued
and outstanding direct the trustee to proceed in a conflicting
manner(s), the trustee may interplead the funds into or may seek a
declaratory determination of the conflict(s) from the District
Court for Polk County, Iowa.
3.08 No holder of any Capital Note issued hereunder shall
have the right to institute any suit, action, or proceeding in
equity or at law for the execution of any trust or power hereof or
for the endorsement or any remedy under this Indenture or any
Capital Note issued hereunder unless:
a. Such holder shall have previously given the Trustee written
notice of some existing "event of default" and of the continuance
thereof;
b. The holders of twenty-five percent (25%) in principal amount of
the Capital Notes at the time outstanding shall have requested the
Trustee to exercise such power or right of action after the right
to do so has accrued hereunder and have afforded the Trustee a
reasonable opportunity to proceed upon such request;
c. Such holders shall have offered to Trustee indemnity
satisfactory to it against the costs, expenses, and liabilities to
be incurred thereby; and
d. The Trustee shall have failed or refused to comply with such
request within a period of sixty (60) days. Compliance with the
foregoing conditions shall at the option of the Trustee be a
condition precedent to the exercise of the powers and trusts of
this Indenture and to any action or proceeding for the enforcement
of any remedy hereunder, and no holder of any Capital Note shall
have any right to enforce any right on account of this Indenture or
his Capital Note, except in the manner herein provided, and in any
event
162
all proceedings hereunder at law or in equity shall be instituted
and maintained for the ratable benefit of all holders of
outstanding Capital Notes in the manner and with the interest
priority provided for in Section 1.05 and Section 3.06, and any
other applicable provisions hereof.
ARTICLE IV
Trustee, Its Rights and Duties,
and Successor Trustees
4.01 The Trustee, for itself and its successors, hereby
accepts the trust created by this Indenture and assumes the duties
imposed, but upon the following terms and conditions:
a. Trustee shall be entitled to reasonable compensation for all
services from time to time rendered by it under and by virtue of
the terms of this Indenture including an acceptance fee, together
with all expenses from time to time incurred by it, including fees
paid for counsel and for legal services. The parties hereto shall
agree upon Trustee's fees for ordinary services from time to time
hereunder. In the event the parties do not agree, or in the event
of extraordinary services by virtue of events of default or
liquidation of Company, or any other matter which may require
extraordinary services from Trustee, Trustee's compensation may be
fixed by an appropriate court. Company covenants to pay all
compensation to which Trustee may be entitled, including expenses
and fees from time to time, promptly upon demand.
b. Trustee shall not be responsible for the correctness of any
recitals in this Indenture of any Capital Notes issued under and
pursuant to the same (except certificates and authentications by
Trustee).
c. Trustee may employ and consult with counsel whenever deemed
necessary, and the opinion of such counsel shall be full and
complete authorization and protection to and for Trustee in respect
of any action taken or suffered by it in good faith and in
accordance with the opinion of such counsel.
d. Trustee may rely upon the correctness of any certificate or
statement, of the President or a Vice President of Company
furnished from time to time
163
under the terms hereof and shall not be liable in any way for any
act done or any omission to act in reliance on any such certificate
or statement.
e. Trustee hereunder shall have no responsibility for determining
when or whether an "Event of Default" has occurred except for those
events of default which would come to its knowledge and attention
in the ordinary course of business under this form of Trust
Indenture.
4.02 Trustee shall not be liable for any act of commission or
omission on its part in connection with the discharge and perfor-
xxxxx of its duties and obligations under this Indenture and any
Capital Notes issued pursuant hereto, except to the extent that any
such act or omission shall constitute willful misconduct or negli-
gence, and reliance upon certificates and statements of Company,
the President or a Vice President thereof, opinions of counsel
(whether counsel for Company or not), and good faith errors in
judgment by a responsible officer or officers of Trustee shall not
be held to be negligent in any case.
4.03 Trustee shall keep at all times a current list of the
names and addresses of registered Capital Note holders, issued and
outstanding under the terms of this Indenture. Company shall
promptly notify Trustee of all changes in names or addresses of
Capital Note holders known to it.
4.04 Trustee may resign whenever it may elect to so do, sixty
(60) days after a written notice of its intention to so do has been
served on Company and on all Capital Note owners shown by the
records of Trustee (notices in all cases to be by ordinary, first
class mail with the date of service thereof), and in the event
Trustee shall resign, or in the event Trustee shall be dissolved
and cease to do business as a bank or trust company, Company shall
designate by an appropriate written instrument a successor Trustee
which shall be a state or national bank or trust company with its
principal office in the state of Iowa. Any successor trustee
appointed by Company under the terms hereof shall have all rights,
powers, and duties of the original Trustee as herein provided, and
whenever in this Indenture the word "Trustee" appears or the
Trustee is referred to, it shall mean and includes any and all
successor Trustees who may be appointed hereunder.
4.05 Trustee shall not be in any manner precluded from
buying, selling, owning, or dealing in Capital Notes issued
pursuant to this agreement, either in its own right or as agent for
others,
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as fully and completely as any other individual, firm, or
corporation could do.
4.06 Trustee or Company may (and on written request of owners
of twenty-five percent (25%) in principal amount of outstanding
Capital Notes shall) call a meeting of all Capital Note owners for
any appropriate purpose. Such meeting shall be called by giving a
written notice of the time and place thereof by ordinary, first
class mail to all Capital Note owners whose names and addresses are
first shown in the records of Trustee, mailed not less than five
(5) days prior to the date fixed for such meeting. The Company
shall pay for the costs of calling and holding said meeting.
4.07 In any case in which Trustee is required or may deem it
proper or advisable to give a notice to Company, a Capital Note
holder or any other person, firm, or agency, such notice shall be
given by ordinary, first class mail, addressed to the last known
post office address of any such person, firm, or agency, and the
time of service thereof shall be the time of mailing thereof.
ARTICLE V
5.01 The Company and Trustee may make arrangements varying,
amending or changing this Indenture as Company and Trustee shall
from time to time deem proper without the approval of the
noteholders, provided only that no such amendment shall adversely
affect any rights or interests of owners of Capital Notes then
issued and outstanding under and pursuant to this Indenture.
5.02 Upon the execution of any Supplemental Indenture
pursuant to the provisions of this Article V, this Indenture shall
be and be deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights, obligations,
duties, and immunities under this Indenture of the Trustee, the
Company, and the holders of Capital Notes shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such Supplemental Indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
IN WITNESS WHEREOF, Xxxxxxx Xxxxx, Inc. has caused this Indenture
to be executed in its name and on its behalf by its President, duly
attested by its Secretary, with its corporate seal hereto attached,
and Bankers Trust Company, Des Moines, Iowa, to evidence its
acceptance of the trusts hereby created, has caused this instrument
to be signed in its name and on its behalf by a duly authorized
officer, all on or as of this 19th day of April, 1999.
165
XXXXXXX XXXXX, INC. BANKERS TRUST COMPANY
By /s/ Xxxxxx X. XxXxxxxxxxxx By /s/ Xxxxx Xxxx
Xxxxxx X. XxXxxxxxxxxx Xxxxx Xxxx, Trust Officer
President
ATTEST:
By /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx,
Chief Financial Officer and
Treasurer/Secretary
STATE OF IOWA )
) ss.
COUNTY OF POLK )
On this 19th day of April, 1999, before me, a Notary Public in
and for Polk County, Iowa, personally appeared Xxxxxx X.
XxXxxxxxxxxx, President, and Xxxxxx X. Xxxxxxx, Chief Financial
Officer and Treasurer/Secretary, of Xxxxxxx Xxxxx, Inc., the
corporation which executed the above and foregoing instrument, who
being to me known as the identical persons who signed the foregoing
instrument, and by me duly sworn, each for himself, did say that
they are respectively the President and the Chief Financial
Officer/Secretary/Treasurer of said corporation, and that said
instrument was by them signed and sealed on behalf of the said
corporation by authority of its Board of Directors, and each of
them acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation, by it and each of them
voluntarily executed.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
my Notarial Seal the day and year last above written.
/s/ Xxxxxx X. Xxxxxx
, Notary Public in
and for Polk County
Seal
166
STATE OF IOWA )
) ss.
COUNTY OF POLK )
On this 21 day of April, 1999, before me, a Notary Public in and for Polk
County, Iowa, personally appeared Xxxxx Xxxx, of Bankers Trust Company, the
corporation which executed the above and foregoing instrument, who being to me
known as the identical person who signed the foregoing instrument, and by me
duly sworn, did say that he is the Trust Officer of said corporation, and that
said instrument was by him signed and sealed on behalf of the said corporation
by authority of its Board of Directors, and he acknowledged the execution of
said instrument to be the voluntary act and deed of said corporation, by it
and by him voluntarily executed.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed my
Notarial Seal the day and year last above written.
/s/ Xxxxxx X. Xxxxxx
, Notary Public in
and for Polk County
Seal
167
Exhibit A
5.00% Capital Notes
Series RR-27 through RR-38
Due 2003 through 2014
5.25% Capital Notes
Series TT-27 through TT-38
Due 2003 through 2014
5.50% Capital Notes
Series UU-27 through UU-38
Due 2003 through 2014
5.75% Capital Notes
Series VV-27 through VV-38
Due 2003 through 2014
6.00% Capital Notes
Series G-27 through G-38
Due 2003 through 2014
6.25% Capital Notes
Series Q-27 through Q-38
Due 2003 through 2014
6.50% Capital Notes
Series J-27 through J-38
Due 2003 through 2014
6.75% Capital Notes
Series K-27 through K-38
Due 2003 through 2014
7.00% Capital Notes
Series M-27 through M-38
Due 2003 through 2014
7.25% Capital Notes
Series N-27 through N-38
Due 2003 through 2014
7.50% Capital Notes
Series R-27 through R-38
Due 2003 through 2014
7.75% Capital Notes
Series T-27 through T-38
Due 2003 through 2014
8.00% Capital Notes
Series U-27 through U-38
Due 2003 through 2014
8.25% Capital Notes
Series V-27 through V-38
Due 2003 through 2014
8.50% Capital Notes
Series W-27 through W-38
Due 2003 through 2014
8.75% Capital Notes
Series X-27 through X-38
Due 2003 through 2014
9.00% Capital Notes
Series Y-27 through Y-38
Due 2003 through 2014
9.25% Capital Notes
Series B-27 through B-38
Due 2003 through 2014
9.50% Capital Notes
Series A-27 through A-38
Due 2003 through 2014
9.75% Capital Notes
Series C-27 through C-38
Due 2003 through 2014
10.00% Capital Notes
Series D-27 through D-38
Due 2003 through 2014
10.25% Capital Notes
Series E-27 through E-38
Due 2003 through 2014
10.50% Capital Notes
Series F-27 through F-38
Due 2003 through 2014
10.75% Capital Notes
Series H-27 through H-38
Due 2003 through 2014
11.00% Capital Notes
Series I-27 through I-38
Due 2003 through 2014
11.25% Capital Notes
Series L-27 through L-38
Due 2003 through 2014
11.50% Capital Notes
Series O-27 through O-38
Due 2003 through 2014
11.75% Capital Notes
Series S-27 through S-38
Due 2003 through 2014
12.00% Capital Notes
Series Z-27 through Z-38
Due 2003 through 2014
12.25% Capital Notes
Series P-27 through P-38
Due 2003 through 2014
12.50% Capital Notes
Series SS-27 through SS-38
Due 2003 through 2014
12.75% Capital Notes
Series AA-27 through AA-38
Due 2003 through 2014
13.00% Capital Notes
Series BB-27 through BB-38
Due 2003 through 2014
168
T No. _______________
XXXXXXX XXXXX, INC.
DES MOINES, IOWA
$__________________
REGISTERED CAPITAL NOTE (SERIES _______________________ CALLABLE)
Xxxxxxx Xxxxx, Inc., a corporation organized and existing under the laws
of the State of Iowa, hereinafter referred to as the Corporation, for value
received hereby promises to pay to the registered holder hereof, upon
presentation of this Capital Note, the sum of $___________________ on the 1st
day of June, ______________, at the main office of the Corporation in the City
of Des Moines, Iowa. The Corporation further agrees to pay interest on the
principal amount from the __________ day of ____________________, until paid,
at the rate of _______% per annum, payable semi-annually on the first day of
June and December of each year.
The Corporation shall, upon request of the registered holder hereof, mail a
check representing the interest hereon, or the principal when due, to the
registered holder at his address appearing on the books of registration.
The Capital Note is subject to being called on any interest payment date
occurring on or after the date that is the midpoint between the original
issuance date and the stated maturity date, at the option of the Corporation
on not less than thirty (30) days' prior written notice given by the
Corporation by ordinary mail to the holder of the Capital Note at such
holder's address appearing on the books of registration, at 100% of the
principal amount of this Capital Note, together with interest accrued and
unpaid on this Capital Note, to the date fixed for such call.
Upon the death of an individual registered holder or of an individual
bearing a certain designated relationship to the registered holder, a Capital
Note will be redeemed by the Company at the option of certain designated
person(s) exercised as provided herein at face plus all interest accrued on
the Capital Note to the date of redemption. An option shall arise upon the
death of an individual who is (i) sole registered holder, (ii) a joint tenant
registered holder, (iii) a tenant in common registered holder, (iv) a life
tenant registered holder, (v) the sole grantor of a revocable trust which is a
registered holder, (vi) a participant in an XXX or other retirement plan
solely for the benefit of one participant which is a registered holder, or
(vii) the xxxx of a conservatorship or custodianship which is a registered
holder. No option to require redemption of a Capital Note shall arise except
as specifically set forth above.
Upon the death of an individual who is the sole registered holder of a
Capital Note, such option shall be exercisable by the deceased holder's
personal representative(s). Upon the death of a registered holder who holds a
Capital Note in joint tenancy, such option shall be exercisable by the
surviving joint tenant(s). Upon the death of a registered holder who holds a
Capital Note in tenancy in common, such option shall be exercisable jointly by
the personal representative(s) of the deceased holder and by the remaining
tenant(s) in common. Upon the death of a registered holder who has a life
estate in a Capital Note, such option shall be exercisable by the
remainderman(men). Upon the death of an individual who is the sole grantor of
a revocable trust which is a registered holder, such option shall be
exercisable by the trustee(s) of the trust. Upon the death of the participant
in an XXX or other retirement plan solely for the benefit of one participant
which is a registered holder, such option shall be exercisable by the
beneficiary(ies) of such XXX or retirement plan. Upon the death of a xxxx of a
conservatorship or custodianship which is a registered holder, such option
shall be exercisable by the personal representative(s) of such xxxx'x estate.
In the event more than one person is entitled to exercise the option, such
option shall be exercisable only with the concurrence of all persons entitled
to exercise the option.
The option shall be exercisable for a period of 9 months following the date
of death of the individual whose death gives rise to the option. The option
shall be exercised by the person(s) entitled to exercise the option giving
written notice to the Company of the exercise of the option at the Company's
principal executive offices. Prior to the redemption of the Capital Note, the
person(s) entitled to exercise the option shall furnish the Company with such
documentation or evidence as the Company shall require to establish such
person's(s') entitlement to exercise the redemption option. The Company shall
be under no duty to notify the person(s) entitled to exercise the option of
the existence of this redemption option or of any facts which come to the
attention of the Company which would give any person the right to exercise the
option.
This Capital Note is one of an authorized issue of fully registered Capital
Notes of Xxxxxxx Xxxxx, Inc., issued in multiples of $1,000 and limited to the
aggregate principal amount of $5,000,000 at any one time outstanding, all
issued pursuant to an Indenture dated April 19, 1999, executed and delivered
by the Corporation to the Trustee, to which Indenture reference is hereby made
for a description of rights, duties and obligations thereunder of the
Corporation, the Trustee and the Owners of the Capital Notes.
In the event of default in the payment of principal of, or interest on,
this Capital Note, the total principal amount of this Capital Note, and all
interest hereof, shall become due and payable and the Corporation shall
immediately pay the same.
Books for the registry hereof are maintained at the office of the
Corporation or at the agency of the Corporation established for that purpose
in the city of Des Moines, Iowa. This Capital Note is transferable by the
registered holder hereof in person, or by his duly authorized attorney, at the
office or agency of the Corporation for such purpose in the city of Des
Moines, Iowa, upon surrender for cancellation of this Capital Note at said
office or agency. Thereupon, a new Capital Note for a like principal amount,
or new Capital Notes in such authorized denominations and registered in such
name or names, as shall have been requested, shall be issued and delivered.
No transfer hereof shall be valid unless made on the Corporation's books,
at the office of the Corporation or the agency established for that purpose,
in accordance with the provisions of the foregoing paragraph. The Corporation
and its agents may deem and treat the person in whose name this Capital Note
is registered as the absolute owner of the Capital Note for the purpose of
receiving payment hereof and interest due hereon, but the Corporation may, at
any time, require the presentation hereof as a condition precedent to such
payment.
No recourse shall be had for the payment of the principal of, or interest
upon, this Capital Note, against any shareholder, officer, or director of the
Corporation, by reason of any matter prior to the delivery of this Note, or
otherwise, all such liability, by the acceptance hereof, and as a part of the
consideration of this issue hereof, being expressly waived.
In the event any Capital Note is not presented for payment when due or when
called by the Corporation, the Corporation shall deposit a sum equal to the
amount due thereon with Trustee in trust for payment thereof and neither the
Corporation nor Trustee shall thereafter be liable for any interest thereon.
This Capital Note and any subsequent Capital Note issued on transfer and
surrender hereunder shall not be valid for any purpose until duly certified by
the Trustee under the Indenture supporting the name.
This Capital Note is not a deposit and is not insured by the Federal
Deposit Insurance Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Capital Note to be
executed by its Chairman, President or Treasurer, and attested to by another
authorized individual, and its corporate seal affixed hereto, at Des Moines,
Iowa, on the day and year appearing below.
Xxxxxxx Xxxxx, Inc.
Corporate Seal
Iowa
Date: ________________________________
XXXXXXX XXXXX, INC.
By: __________________________________
(Chairman, President or Treasurer)
ATTEST:
______________________________________
(Secretary, Asst. Secretary Treasurer,
or other authorized individual)
169
REGISTRATION
(No writing on this registered Capital Note except by an officer or agent of
the Corporation)
Date of In Whose Registry
Registration Name Registered Address Officer/Agent
______________ ________________ _______________ ________________
______________ ________________ _______________ ________________
______________ ________________ _______________ ________________
______________ ________________ _______________ ________________
TRUSTEE'S CERTIFICATE
The foregoing Capital Note is hereby certified by the undersigned Bank as
Trustee as one of the series of Capital Notes of Xxxxxxx Xxxxx, Inc.,
described in the Indenture referred to therein, made between the Corporation
and this Bank as Trustee.
Dated as of this _______ day of ____________________, ______.
_______________________________
(Trustee)
By_____________________________
Its____________________________
(Title)
ASSIGNMENT
For value received I hereby assign to ___________________________ the within
registered Capital Note and hereby irrevocably appoint
_________________________________________________ attorney to transfer the
registered Capital Note on the books of the within named Corporation with full
power of substitution in the premises.
Dated:____________________
Signatures guaranteed by the ____________________________________
Signature (in whose name registered)
__________________________
(Bank)
__________________________ ____________________________________
Signature Signature (in whose name registered)
__________________________
Date Office & Title
The transfer of any notes represented by this certificate to any person who is
not then a bona fide resident of the State of Iowa purchasing such notes for
the purpose of investment and not for resale is restricted pursuant to the
terms of a subscription form executed by the original holder of such notes.
170
