Exhibit 10.16
Indenture Agreement with respect to Capital Notes dated March 27, 1991.
185
CAPITAL NOTES INDENTURES DATED AFTER 1985 AND PRIOR TO 1991,
THAT HAVE CAPITAL NOTES OUTSTANDING UNDER THEIR TERMS, ARE
SUBSTANTIALLY SIMILAR TO THE FOLLOWING CAPITAL NOTE INDENTURE.
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 M A R C H 2 7, 1 9 9 1
INDENTURE AGREEMENT
THIS INDENTURE AGREEMENT is made as of the 27th day of March, 1991,
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 $2,000,000 for use in connection with its
ordinary operations and to issue its Capital Notes in the total sum of
$2,000,000, 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 acceptance of Capital Notes
of Company by various purchasers, Company hereby covenants and declares that
its Capital Notes in the maximum principal sum of $2,000,000, 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 $2,000,000 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.
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 surrendered 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 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 whole or in part by Company, on any interest payment date after
eight (8) years from the date of issuance of such Capital Note, in advance of
maturity at any time thirty (30) days after 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 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 surrender 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 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.
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.
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 principal 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 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 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 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 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 performance 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 negligence, 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, 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 27th day of March,
1991.
XXXXXXX XXXXX, INC. BANKERS TRUST COMPANY
By /s/ By /s/
Xxxxxx X. Xxxxxxx Xxxxx Xxxx, Trust Officer
President
ATTEST:
By /s/
Xxxxxx X. Xxxxxxx,
Chief Financial Officer and
Vice President/Treasurer/Secretary
STATE OF IOWA )
) ss.
COUNTY OF POLK )
On this 28th day of March, 1991, before me, a Notary Public in and for
Polk County, Iowa, personally appeared Xxxxxx X. Xxxxxxx, President, and
Xxxxxx X. Xxxxxxx, Chief Financial Officer and Vice
President/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/Vice President/
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. Neckulle
Notary Public in and for Polk County
STATE OF IOWA )
) ss.
COUNTY OF POLK )
On this 27 day of March, 1991, 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/ Xxxx X. Xxxxxx
Notary Public in and for Polk County
EXHIBIT A
7.00% Capital Notes
Series M-19 through M-30
Due 1995 through 2006
7.25% Capital Notes
Series N-19 through N-30
Due 1995 through 2006
7.50% Capital Notes
Series R-19 through R-30
Due 1995 through 2006
7.75% Capital Notes
Series T-19 through T-30
Due 1995 through 2006
8.00% Capital Notes
Series U-19 through U-30
Due 1995 through 2006
8.25% Capital Notes
Series V-19 through V-30
Due 1995 through 2006
8.50% Capital Notes
Series W-19 through W-30
Due 1995 through 2006
8.75% Capital Notes
Series X-19 through X-30
Due 1995 through 2006
9.00% Capital Notes
Series Y-19 through Y-30
Due 1995 through 2006
9.25% Capital Notes
Series B-19 through B-30
Due 1995 through 2006
9.50% Capital Notes
Series A-19 through A-30
Due 1995 through 2006
9.75% Capital Notes
Series C-19 through C-30
Due 1995 through 2006
10.00% Capital Notes
Series D-19 through D-30
Due 1995 through 2006
10.25% Capital Notes
Series E-19 through E-30
Due 1995 through 2006
10.50% Capital Notes
Series F-19 through F-30
Due 1995 through 2006
10.75% Capital Notes
Series H-19 through H-30
Due 1995 through 2006
11.00% Capital Notes
Series I-19 through I-30
Due 1995 through 2006
11.25% Capital Notes
Series L-19 through L-30
Due 1995 through 2006
11.50% Capital Notes
Series O-19 through O-30
Due 1995 through 2006
11.75% Capital Notes
Series S-19 through S-30
Due 1995 through 2006
12.00% Capital Notes
Series Z-19 through Z-30
Due 1995 through 2006
12.25% Capital Notes
Series P-19 through P-30
Due 1995 through 2006
12.50% Capital Notes
Series SS-19 through SS-30
Due 1995 through 2006
12.75% Capital Notes
Series AA-19 through AA-30
Due 1995 through 2006
13.00% Capital Notes
Series BB-19 through BB-30
Due 1995 through 2006
13.25% Capital Notes
Series CC-19 through CC-30
Due 1995 through 2006
13.50% Capital Notes
Series DD-19 through DD-30
Due 1995 through 2006
13.75% Capital Notes
Series EE-19 through EE-30
Due 1995 through 2006
14.00% Capital Notes
Series FF-19 through FF-30
Due 1995 through 2006
EXHIBIT "B"
KNo. _______________
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 more than eight (8) years after the date of issuance hereof, 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 $2,000,000 at any one time
outstanding, all issued pursuant to an Indenture dated April 10, 1990,
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 President or other authorized officer, and its corporate seal
affixed hereto, at Des Moines, Iowa, on the day and year appearing below.
Corporate Seal:
Date: ________________________________
XXXXXXX XXXXX, INC.
By: __________________________________
(Chairman, Vice Chairman or President)
ATTEST:
______________________________________
(Secretary, Assistant Secretary Treasurer)
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
_____________ ________________ ___________ __________
_____________ ________________ ___________ __________
_____________ ________________ ___________ __________
_____________ ________________ ___________ __________
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 (in whose name
Signature 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.
