Exhibit 10.18
Indenture Agreement with respect to Capital Notes dated April 8,
1994.
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 L 8 , 1 9 9 4
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INDENTURE AGREEMENT
THIS INDENTURE AGREEMENT is made as of the 8th day of April,
1994, 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
acceptance 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.
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
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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.
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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
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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:
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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;
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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.
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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.
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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 8th day of April,
1994.
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XXXXXXX XXXXX, INC. BANKERS TRUST COMPANY
By____________________________ By___________________________
Xxxxxx X. XxXxxxxxxxxx, Xxxxx Xxxx, Trust Officer
President
ATTEST:
By_______________________________
Xxxxxx X. Xxxxxxx,
Chief Financial Officer and
Treasurer/Secretary
STATE OF IOWA )
) ss.
COUNTY OF POLK )
On this ___ day of ___________________, 1994, 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.
___________________________
______________, Notary Public in
and for Polk County
STATE OF IOWA )
) ss.
COUNTY OF POLK )
On this ____ day of _____________________, 1994, 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
143
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.
_____________________
______________, Notary Public in
and for Polk County
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5.00% Capital Notes
Series SS-22 through SS-33
Due 1998 through 2009
5.25% Capital Notes
Series TT-22 through TT-33
Due 1998 through 2009
5.50% Capital Notes
Series UU-22 through UU-33
Due 1998 through 2009
5.75% Capital Notes
Series VV-22 through VV-33
Due 1998 through 2009
6.00% Capital Notes
Series G-22 through G-33
Due 1998 through 2009
6.25% Capital Notes
Series Q-22 through Q-33
Due 1998 through 2009
6.50% Capital Notes
Series J-22 through J-33
Due 1998 through 2009
6.75% Capital Notes
Series K-22 through K-33
Due 1998 through 2009
7.00% Capital Notes
Series M-22 through M-33
Due 1998 through 2009
7.25% Capital Notes
Series N-22 through N-33
Due 1998 through 2009
7.50% Capital Notes
Series R-22 through R-33
Due 1998 through 2009
7.75% Capital Notes
Series T-22 through T-33
Due 1998 through 2009
8.00% Capital Notes
Series U-22 through U-33
Due 1998 through 2009
8.25% Capital Notes
Series V-22 through V-33
Due 1998 through 2009
8.50% Capital Notes
Series W-22 through W-33
Due 1998 through 2009
8.75% Capital Notes
Series X-22 through X-33
Due 1998 through 2009
9.00% Capital Notes
Series Y-22 through Y-33
Due 1998 through 2009
9.25% Capital Notes
Series B-22 through B-33
Due 1998 through 2009
9.50% Capital Notes
Series A-22 through A-33
Due 1998 through 2009
9.75% Capital Notes
Series C-22 through C-33
Due 1998 through 2009
10.00% Capital Notes
Series D-22 through D-33
Due 1998 through 2009
10.25% Capital Notes
Series E-22 through E-33
Due 1998 through 2009
10.50% Capital Notes
Series F-22 through F-33
Due 1998 through 2009
10.75% Capital Notes
Series H-22 through H-33
Due 1998 through 2009
11.00% Capital Notes
Series I-22 through I-33
Due 1998 through 2009
11.25% Capital Notes
Series L-22 through L-33
Due 1998 through 2009
11.50% Capital Notes
Series O-22 through O-33
Due 1998 through 2009
11.75% Capital Notes
Series S-22 through S-33
Due 1998 through 2009
12.00% Capital Notes
Series Z-22 through Z-33
Due 1998 through 2009
12.25% Capital Notes
Series P-22 through P-33
Due 1998 through 2009
12.50% Capital Notes
Series SS-22 through SS-33
Due 1998 through 2009
12.75% Capital Notes
Series AA-22 through AA-33
Due 1998 through 2009
13.00% Capital Notes
Series BB-22 through BB-33
Due 1998 through 2009
145
O
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 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 $5,000,000 at any one time outstanding, all issued pursuant to
an Indenture dated April 8, 1994,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, Vice Chairman, President, or
Treasurer, and attested to by another 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, President or Treasurer)
ATTEST:
______________________________________
(Secretary, Asst. Secretary Treasurer, Asst. Treasurer, Controller
or Asst. Controller)
146
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 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.
147
