UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
LATSHAW ENTERPRISES, INC.
(Name of Issuer)
COMMON STOCK, $2.00 PAR VALUE PER SHARE
(Title of Class of Securities)
518399100
(CUSIP Number)
GERARD J. MOS III
1215 STRATFORD ROAD
KANSAS CITY, MISSOURI 64113
(816) 333-8224
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
AUGUST 1, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the
statement / /. (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting beneficial
ownership of more than five percent of the class of securities
described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of
such class. See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
CUSIP NO. 518399100 PAGE 2 OF 85 PAGES
1 Name of Reporting Person
SS or IRS Identification No. of Above Person
CON-LIB HOLDING COMPANY
2. Check the appropriate Box if a Member of a Group (a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds
NOT APPLICABLE
5. Check Box if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization
MISSOURI
7. Sole Voting Power
0
8. Shared Voting Power
88,000
9. Sole Dispositive Power
0
10. Shared Dispositive Power
266,000
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
266,000
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares / /
13. Percent of Class Represented by Amount in Row (11)
39.4%
14. Type of Reporting Person
PN
<PAGE>
SCHEDULE 13D
CUSIP NO. 518399100 PAGE 3 OF 85 PAGES
1 Name of Reporting Person
SS or IRS Identification No. of Above Person
GERARD J. MOS III, GENERAL MANAGER
2. Check the appropriate Box if a Member of a Group (a) / /
(b) /X/
3. SEC Use Only
4. Source of Funds
NOT APPLICABLE
5. Check Box if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization
UNITED STATES OF AMERICA
7. Sole Voting Power
0
8. Shared Voting Power
88,000
9. Sole Dispositive Power
0
10. Shared Dispositive Power
266,000
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
266,000
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares / /
13. Percent of Class Represented by Amount in Row (11)
39.4%
14. Type of Reporting Person
IN
<PAGE>
INTRODUCTION
This Amendment No. 1 to Schedule 13D is being filed pursuant
to Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
Pursuant to Rule 13d-2(c) and Item 101(a)(2) of Regulation S-T,
as the first electronic amendment to the reporting person's paper
format Schedule 13D, this Amendment No. 1 restates the entire
text of the Schedule 13D as currently in effect.
Item 1. Security and Issuer.
The class of equity securities to which this statement
relates is the Common Stock, $2.00 par value per share (the
"Shares"), of Latshaw Enterprises, Inc., a Delaware corporation
(the "Issuer"). The principal executive offices of the Issuer
are located at 2533 South West Street, Wichita, Kansas 66217.
Item 2. Identity and Background.
(a)-(c) (i) Con-Lib Holding Company is a Missouri general
partnership (the "Partnership"), whose principal business is
investing in securities. The address of the principal business
and office of the Partnership is 1215 Stratford Road, Kansas
City, Missouri 64113.
The general partners of the Partnership are
Elizabeth A. Reid-Scott ("Ms. Reid-Scott"), Constance H. Latshaw
("Ms. Latshaw"), the Elizabeth Albright Reid Scott Irrevocable
Trust #2, Gerard J. Mos III Trustee ("EARS Trust") and the
Constance Haynes Latshaw Irrevocable Trust #2, Gerard J. Mos III
Trustee ("CHL Trust") (collectively the "General Partners").
Gerard J. Mos III ("Mr. Mos") serves as the General Manager of
the Partnership.
The initial filing on Schedule 13D reported
that the general partners of the Partnership were John Latshaw
("Mr. Latshaw"), the EARS Trust and the CHL Trust.
(ii) Ms. Reid-Scott is self-employed as a motion
picture screenwriter and private investor. Ms. Reid-Scott's
business address is c/o John Latshaw, 5049 Wornall, Apt. 3C,
Kansas City, Missouri 64112.
(iii) Ms. Latshaw is self-employed as a private
investor. Ms. Latshaw's business address is c/o John Latshaw,
5049 Wornall, Apt. 3C, Kansas City, Missouri 64112.
(iv) The EARS Trust was created under Missouri law
on November 16, 1993 by an instrument entered into between Mr.
Latshaw as settlor and Mr. Mos as trustee. The principal
business of the EARS Trust is to invest in and hold property for
the benefit of Ms. Reid-Scott. Its address is 1215 Stratford
Road, Kansas City, Missouri 64113.
(v) The CHL Trust was created under Missouri law
on November 16, 1993 by an instrument entered into between Mr.
Latshaw as settlor and Mr. Mos as trustee. The principal
business of the CHL Trust is to invest in and hold property for
the benefit of Ms. Latshaw. Its address is 1215 Stratford Road,
Kansas City, Missouri 64113.
(vi) Mr. Mos is President of High Life Sales
Company, a distributor of beer and other specialty products. The
address of the principal business and office of High Life Sales
Company is 1325 N. Topping, Kansas City, Missouri 64120. Mr.
Mos' business address is c/o High Life Sales Company, 1325 N.
Topping, Kansas City, Missouri 64120.
(vii) Because Mr. Latshaw no longer holds an
interest in the Partnership, the information required by Items
2(a) - (c) is not reported herein with respect to Mr. Latshaw.
The initial filing on Schedule 13D reported
that Mr. Latshaw was Chairman of the Board of Directors, Managing
Director and Chief Executive Officer of the Issuer, a holding
company, and Chairman of the Board of Directors and Chief
Executive Officer of Wescon Products Company, a manufacturer and
wholly-owned subsidiary of the Issuer. The initial filing also
reported that the address of the principal business and office of
the Issuer and Wescon Products Company was 2533 South West
Street, Wichita, Kansas 66217, and that Mr. Latshaw's business
address was No. 3 Dunford Circle, Kansas City, Missouri 64112.
(d) None of the Partnership, the General Partners or Mr.
Mos has during the past five years been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors). The initial filing on Schedule 13D reported the
same information with respect to Mr. Latshaw.
(e) None of the Partnership, the General Partners or Mr.
Mos has during the last five years been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction or been as a result of any such proceeding subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to
such laws. The initial filing on Schedule 13D reported the same
information with respect to Mr. Latshaw.
(f) Ms. Latshaw, Ms. Reid-Scott and Mr. Mos are citizens of
the United States of America. The initial filing on Schedule 13D
reported that Mr. Latshaw was a citizen of the United States of
America.
Item 3. Source and Amount of Funds or Other Consideration.
This item is not applicable to the transaction reported in
Item 5(c) hereof.
The initial filing on Schedule 13D reported in Item 3 the
following:
The Partnership was formed on November 16, 1993. At
that time, Mr. Latshaw contributed to the Partnership 88,000
Shares and $400,000 principal amount of Latshaw Enterprises,
Inc. Variable Interest Rate Convertible Subordinated
Debentures due November 8, 2022 ("Debentures"). The
Debentures are convertible into Shares at a conversion price
of $5.00 per Share.
On February 10, 1994, the Partnership acquired $490,000
principal amount of Debentures in a private transaction in
Kansas City, Missouri. The amount of consideration for the
purchase was $490,000. The source of the funds was a loan
to the Partnership in the amount of $490,000 from John
Latshaw, Trustee U/D/T dated January 22, 1993, pursuant to a
Loan Agreement and Security Agreement dated February 9, 1994
("Loan Agreement"). Under the Loan Agreement, the loan
bears interest at the rate of 3.92% per annum, and must be
repaid in semiannual payments of principal and interest of
$20,000 commencing on August 9, 1994 and continuing until
February 9, 1997, when the balance of the loan and all
unpaid interest is due. The loan is nonrecourse to the
borrower and is secured by the $490,000 principal amount of
Debentures acquired with the proceeds of the loan. The
foregoing summary of the terms of the loan is qualified in
its entirety by reference to the terms and provisions of the
Loan Agreement, a copy of which is attached hereto as
Exhibit 2 and incorporated herein by reference.
Item 4. Purpose of Transaction.
No material change, except that Mr. Latshaw transferred his
50.2% interest in the Partnership as reported in Item 5(c) hereof
as a gift of such interest to Ms. Latshaw, Ms. Reid-Scott, the
CHL Trust and the EARS Trust.
The initial filing on Schedule 13D reported in Item 4 the
following:
Mr. Latshaw contributed the Shares and Debentures to
the Partnership on November 16, 1993 to provide for
ownership of such securities by him in partnership with
trusts formed for the benefit of his daughters.
The Partnership purchased the Debentures on February
10, 1994 for investment purposes. Depending on market
conditions and other factors that the Partnership may deem
material to its investment decision, the Partnership may
purchase additional Debentures or Shares in the open market
or in private transactions or may dispose of all or a
portion of the Debentures or Shares that it now owns or
hereafter may acquire.
Except as set forth in this Item 4, none of the
Partnership, the General Partners or Mr. Mos has any present
plans or proposals that relate to or that would result in
any of the actions specified in clauses (a) through (j) of
Item 4 of Schedule 13D of the Act. The Partnership and the
General Partners reserve the right to formulate such plans
or proposals, and to take such action with respect to any or
all of such matters and any other matters as they may
determine.
While Mr. Latshaw retains all options for potential
future actions, his present expectations are to remain a
stockholder, director and executive officer of the Issuer,
and as such to have influence upon future corporate
development.
Item 5. Interest in Securities of the Issuer.
(a)(i) The Partnership beneficially owned 266,000 Shares
on August 1, 1996, which it believes to be 39.4% of the entire
class of Shares of the Issuer. The 266,000 Shares owned by the
Partnership includes 178,000 Shares which the Partnership has the
present right to acquire upon conversion of Debentures owned by
it.
(ii) Ms. Latshaw beneficially owned 100 Shares on
August 1, 1996, which she believes to be less than 1% of the
entire class of Shares of the Issuer. Ms. Latshaw holds a 5%
interest in the Partnership and is the beneficiary of the CHL
Trust, which holds a 45% interest in the Partnership, and
Ms. Latshaw disclaims beneficial ownership of the Shares owned by
the Partnership.
(iii) Ms. Reid-Scott beneficially owned 10 Shares on
August 1, 1996, which she believes to be less than 1% of the
entire class of Shares of the Issuer. Ms. Reid-Scott holds a 5%
interest in the Partnership and is the beneficiary of the EARS
Trust, which holds a 45% interest in the Partnership, and
Ms. Reid-Scott disclaims beneficial ownership of the Shares owned
by the Partnership.
(iv) The EARS Trust beneficially owned no Shares on
August 1, 1996. The EARS Trust holds a 45% interest in the
Partnership and disclaims beneficial ownership of the Shares
owned by the Partnership.
(v) The CHL Trust beneficially owned no Shares on
August 1, 1996. The CHL Trust holds a 45% interest in the
Partnership and disclaims beneficial ownership of the Shares
owned by the Partnership.
(vi) As General Manager of the Partnership and as
trustee of the CHL Trust and the EARS Trust, Mr. Mos shares with
the Partnership beneficial ownership of the 266,000 Shares
beneficially owned by the Partnership. Mos has no beneficial
interest in the Shares beneficially owned by the Partnership.
(vii) Because Mr. Latshaw no longer holds an interest in
the Partnership, Mr. Latshaw's beneficial ownership of Shares is
not reported herein. The initial filing on Schedule 13D reported
in Item 5(a) with respect to Mr. Latshaw the following:
Mr. Latshaw beneficially owned 670,567 Shares on
February 24, 1994, which he believes to be 76.8% of the
entire class of Shares of the Issuer. The Shares
beneficially owned by Mr. Latshaw include 285,200
Shares which Mr. Latshaw has the present right to
acquire upon conversion of Debentures owned by him,
5,500 Shares which Mr. Latshaw has the present right to
acquire pursuant to the 1987 Employee Stock Benefit
Plan, 1,400 Shares allocated to Mr. Latshaw's account
in the Company's Employee Stock Ownership Plan and
Trust ("ESOP") which Mr. Latshaw has the right to vote
and 266,000 Shares beneficially owned by the
Partnership. Mr. Latshaw holds a 50.2% interest in the
Partnership. Mr. Latshaw owns no additional Shares
beneficially. The information concerning the number of
Shares allocated to Mr. Latshaw's ESOP account which
Mr. Latshaw has the right to vote is presented as of
October 30, 1993, the end of the Issuer's last fiscal
year, and does not reflect transactions under the ESOP
since that date.
(b)(i) The Partnership shares with Mr. Mos the power to
vote 88,000 Shares and to dispose of 266,000 Shares beneficially
owned by it. As General Manager, Mr. Mos has the power to vote
and dispose of the Shares held by the Partnership except to the
extent Mr. Mos is instructed otherwise by a majority in interest
of the partners. Mr. Mos, as the trustee of the CHL Trust and
the EARS Trust, has the power to direct the voting and
disposition of the Shares held by the Partnership on behalf of
the trusts. The trusts hold in the aggregate a 90% interest in
the Partnership.
(ii) Ms. Latshaw has sole power to vote and dispose of
the 100 Shares owned by her.
(iii) Ms. Reid-Scott has sole power to vote and dispose
of the 10 Shares owned by her.
(c) On August 1, 1996, Mr. Latshaw disposed of his 50.2%
interest in the Partnership in a private gift transaction in
Kansas City, Missouri.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
No material change.
The initial filing on Schedule 13D reported in Item 6 the
following:
Mr. Latshaw is the settlor of the EARS Trust and the
father of Elizabeth A. Reid Scott, the beneficiary of the
EARS Trust. Mr. Latshaw is the settlor of the CHL Trust and
the father of Constance H. Latshaw, the beneficiary of the
CHL Trust.
The actions of the Partnership are governed by the
Partnership Agreement dated November 16, 1993, a copy of
which is attached hereto as Exhibit 1 and incorporated
herein by reference. The Partnership entered into the Loan
Agreement in connection with the purchase described in Item
5(c) hereof, and a copy of the Loan Agreement is attached
hereto as Exhibit 2 and incorporated herein by reference. A
brief description of the Loan Agreement is contained in Item
3 hereof.
Item 7. Material to be Filed as Exhibits.
Exhibit 1. Con-Lib Holding Company Partnership
Agreement dated November 16, 1993
Exhibit 2. Loan Agreement and Security Agreement
dated February 9, 1994 by and between
Con-Lib Holding Company and John
Latshaw, Trustee U/D/T Dated January 22,
1993.
Exhibit 3. Constance Haynes Latshaw Irrevocable
Trust Agreement #2 dated November 16,
1993 by and between John Latshaw as
settlor and Gerard J. Mos III as
trustee.
Exhibit 4. Elizabeth Albright Reid Scott
Irrevocable Trust Agreement #2 dated
November 16, 1993 by and between John
Latshaw as settlor and Gerard J. Mos III
as trustee.<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
CON-LIB HOLDING COMPANY,
a Missouri general partnership
September 10, 1996
By:/s/Gerard J. Mos III
-----------------------------
Gerard J. Mos III
General Manager
<PAGE>
EXHIBIT INDEX TO
AMENDMENT NO. 1 TO SCHEDULE 13D
Exhibit
1. Con-Lib Holding Company Partnership
Agreement dated November 16, 1993.
2. Loan Agreement and Security Agreement
dated February 9, 1994 by and between
Con-Lib Holding Company and John Latshaw,
Trustee U/D/T Dated January 22, 1993.
3. Constance Haynes Latshaw Irrevocable
Trust Agreement #2 dated November 16, 1993
by and between John Latshaw as settlor
and Gerard J. Mos III as trustee.
4. Elizabeth Albright Reid Scott Irrevocable
Trust Agreement #2 dated November 16, 1993
by and between John Latshaw as settlor and
Gerard J. Mos III as trustee.
CON-LIB HOLDING COMPANY
A Missouri General Partnership
This Partnership Agreement is made this 16th day of November,
1993, by and between the individuals identified by name, address
and tax identification number in Schedule A attached hereto and
made a part hereof (hereinafter referred to as "Partners" and
"Partner").
WITNESSETH:
1. Name and Business. The Parties do hereby form a general
partnership (hereafter called the "Partnership:) pursuant to the
Uniform Partnership Law of Missouri, Chapter 358 of RSMo (1978), as
amended from time to time. The Partnership shall be known by the
name of "CON-LIB HOLDING COMPANY" and is formed to acquire, hold,
manage, vote the shares of, write options, puts or calls on, and
purchase or sell stocks, bonds and other investment assets, or
interests therein, including but not limited to stocks, debentures
and bonds issued by Latshaw Enterprises, Inc.; to maintain and
operate margin accounts, discretionary accounts or any other type
of brokerage accounts, and to pledge or mortgage the trust property
as security for loans or advances made to the Partnership in
conjunction with any transactions permitted hereunder; and to
engage in any other activities, businesses and purposes as the
Partners may from time to time determine in accordance with the
provisions of this Agreement. The Partnership may also do and
engage in any and all other things and activities and have all
powers incident to the above stated purposes.
The principal office of the Partnership shall be at: Three
Dunford Circle, Kansas City, Missouri 64112, or such other address
as the Secretary may from time to time designate by notice to all
Partners, and the Partnership shall have such other offices and
places of business as the Partners may select from time to time.
2. Term. The Partnership shall commence its business
immediately after the execution of this Agreement, and it is
contemplated that it shall continue until December 31, 2099 unless
sooner terminated as provided herein.
3. Capital Contributions Losses and Withdrawals.
a. The Partners have contributed or agreed to
contribute to the capital of the Partnership cash or property,
as set forth on Exhibit A. The amounts contributed by the
Partners as set forth on Exhibit A shall be and become the
capital of the Partnership. No Partner shall be required to
make any additional capital contributions or to lend any funds
to the Partnership.
b. A separate capital account shall be maintained for
each Partner (the "Capital Account") throughout the entire
term of this Agreement. Each Partner's Capital Account shall
be the total of the amounts contributed by the Partner
pursuant to Section 3(a) hereof, as modified due to
assignments or transfers of Partnership Interests between or
among Partners, and shall be increased or decreased, as the
case may be, as hereinafter set forth.
c. Each Partner's Capital Account shall be increased
by:
(i) the amount of any additional money contributed
by the Partner to the Partnership as additional capital
with the consent of all of the General Partners;
(ii) the fair market value of property contributed
by the Partner to the Partnership (net of liabilities
securing such contributed property that the Partnership
is considered to assume or take subject to) as additional
capital with the consent of all of the General Partners;
and
(iii) allocations to the Partner of any Partnership
profit (or item thereof), as specified in Section
1.704-l(b) of the U.S. Department of the Treasury Income
Tax Regulations (the "Regulations").
d. Each Partner's Capital Account shall be decreased
by:
(i) the amount of money distributed to the Partner
by the Partnership;
(ii) the fair market value of property distributed
to the Partner by the Partnership (net of liabilities
securing such distributed property that such Partner is
considered to assume or take subject to);
(iii) allocations to the Partner of Partnership
expenditures not deductible in computing Partnership
taxable income and not properly chargeable to capital
account; and
(iv) allocations to the Partner of any Partnership
loss or deduction (or item thereof), as specified in
Section 1.704-l(b) of the Regulations.
e. Capital Accounts shall also be adjusted and
maintained in accordance with the additional rules set forth
in Section 1.704-l(b) of the Regulations.
f. No interest shall be paid on the initial
contributions to the capital of the Partnership or on any
subsequent contributions to capital.
g. No Partner shall advance any moneys or other
property to the Partnership other than with the consent of all
of the General Partners.
h. Except upon the unanimous agreement of the Partners
or upon the termination of the Partnership, the respective
capital contributions of the Partners shall not be withdrawn
in whole or in part.
i. Each Partner agrees (i) the Partnership shall be
governed by Subchapter K of the Internal Revenue Code of 1986,
as amended from time to time, (ii) not to take a contrary
position in any return, upon examination of a return of the
Partnership or the Partner, or in connection with a judicial
or other proceeding, and (iii) not to make or attempt to make
any election not to be governed by the provisions of
Subchapter R or make or attempt to make any similar election
under state law.
j. The Secretary is authorized to admit Partners to the
Partnership by accepting their capital contributions until
November 19, 1993. The Secretary shall signify acceptance of
a capital contribution and of admitting a Partner to the
Partnership by placing his initials beside the names of such
Partners on Schedule A of the Secretary's copy of this
Partnership Agreement. After said date, no Partners shall be
admitted except upon the unanimous approval of all interests
in the Partnership, or as may otherwise be expressly
authorized by this Agreement.
4. Partnership Interests; Allocation of Profits and Losses;
Distributions of Available Cash.
a. The Partners shall have the percentages of interest
in the profits, losses and tax credits of the Partnership (the
"Percentage Interests") which are determined by dividing such
Partner's total capital contributions, as modified from time
to time, by the capital contributions of all Partners, as
modified from time to time. For purposes of this Agreement,
profits and losses shall mean the income and losses as
determined by the Partnership's accountant in accordance with
the accounting methods followed by the Partnership for federal
income tax purposes. For accounting and tax purposes, except
as otherwise provided herein, all items of income, gain, loss,
deduction and credit of the Partnership for each fiscal year
or fraction of a fiscal year shall be allocated among all of
the Partners in accordance with their Percentage Interests in
the Partnership.
b. Irrespective of any provision herein to the
contrary, the Partners agree that all allocations,
adjustments, contributions, determinations and distributions
between the Partnership and its Partners and with respect to
partnership tax and accounting items shall be subject to and
in accordance with Section 704 of the Internal Revenue Code,
as amended from time to time, and the Regulations promulgated
thereunder.
c. A separate income account shall be maintained for
each Partner. Partnership net profits and net losses shall be
credited to the separate income account of each Partner. If
a Partner has no credit balance in his income account, net
losses shall be charged to his capital account. Cash and
other distributions to Partners shall only be made in
proportion to the Partners' respective percentage interest in
the Partnership and shall be limited to (1) distributions of
the amounts of net income of the Partnership which a majority
of the Partners approve from time to time and (2) other
distributions which have been specifically approved by the
owner(s) of eighty percent (80%) of the interest in the
Partnership.
5. Management Duties and Restrictions. The following
provisions shall apply with regard to the management of the
business affairs of the Partnership.
a. GERARD J. MOS III shall be the general manager of
the Partnership (hereafter called the "General Manager"), with
full charge of the day-to-day operation of the Partnership
business in all respects including, but not limited to, full
power to transact purchases of or to engage in any activity
and execute any document on behalf of the Partnership which
may be required by the normal operation of the business.
b. Every decision of the General Manager relating to
the conduct and management of the day-to-day affairs of the
Partnership business or as specified in a certificate, unless
such conduct or activity is in conflict with instructions
given by a majority in interest of the Partners at a meeting
or by poll of the Secretary, shall be binding on all Partners.
c. The General Manager is not vested with the power to
acquire Partnership assets costing more than $250,000.00; to
place a lien on Partnership assets; to pledge Partnership
assets as security for a loan; to borrow or to execute
contracts, mortgages, deeds, deeds of trusts, leases, banking
resolutions, checks, notes or security agreements; or in
general, except as otherwise provided herein, to perform any
act which is otherwise not part of the day-to-day operation of
the Partnership business, unless the General Manager shall
have in his possession a certificate of the Secretary of the
Partnership stating that the owners of a majority interest in
the Partnership authorize such transaction and stating which
of the Partners authorize the transaction. By similar
certificate any Partner or individual shall be authorized to
perform any act or execute any document on behalf of the
Partnership. Any such certificate may authorize action
repeatedly and continuously for a specified period of time and
may be revoked at any time, although the Partners recognize
the potential liability of the Partnership with respect to a
revoked certificate where persons dealing with the Partnership
in reliance thereon may not have received notice of such
revocation.
d. No Partner shall have any authority to act for or on
behalf of the Partnership except as expressly provided herein
or as authorized in a certificate executed by the Secretary
stating that the owners of a majority in interest in the
Partnership authorize such act and stating which of the
parties is authorized the act.
e. Each Partner may have other business interests and
may engage in any other business, trade, profession or
employment whatsoever, individually or in partnership with or
as an employee of or as an officer, director, or shareholder
of any other person, firm, or corporation and the Partner
shall not be required to devote his/her exclusive time to the
business of the Partnership.
f. THOMAS PARKER LATSHAW shall be the Secretary of the
Partnership and said Secretary shall have exclusive authority
and exclusive power to certify actions, decisions and
agreements of the Partners. Anyone dealing with the
Partnership, when presented a certificate executed and
acknowledged by the Secretary shall be entitled to rely on all
statements and representations contained in the certificate
which purport to express the authority of any person to take
any action or to execute any instrument on behalf of the
Partnership. The Secretary shall have all such further
authority and power as is expressly granted to him herein.
The Secretary shall have authority to issue certificates that
action was taken at a meeting of the Partners or by written
consent of the majority of the Partners provided that the
Secretary shall have made reasonable effort to contact and
inform all Partners of the representations in the certificate
and shall have obtained the oral or written consent of the
majority in interest of the Partners.
6. Partners' Duties and Obligations.
a. In the event that other parties dealing with the
Partnership require the signature or signatures of any of the
Partners on any document, statement or instrument relating to
Partnership business or property, the execution of which is or
has been authorized by the Partnership, each Partner shall
upon demand of the General Manager or the Secretary or of the
owner(s) of a majority interest in the Partnership provide
such signature on such papers and at such times as the General
Manager, Secretary or majority owner(s) may require.
b. This Agreement recognizes that the nature of the
Partnership business requires that the Partnership have the
ability to execute necessary documents, statements and
instruments relating to Partnership matters promptly and
without undue delay, and therefore each Partner shall provide
signatures as herein required within 15 days after written
notice of the time and place where such signatures are
required.
7. Banking. All funds of the Partnership shall be deposited
in the Partnership name in any such checking account or accounts as
shall be selected by the General Manager and the Secretary of the
Partnership. Withdrawals therefrom are to be made upon checks
signed by such persons as the General Manager shall authorize,
except as otherwise specified by a majority in interest in the
Partnership, and the Secretary shall be authorized to execute a
Partnership certificate as required by a banking institution.
8. Books. The Partnership books shall be maintained at an
office of the Partnership designated by the Secretary, and each
Partner shall have access thereto at reasonable times and on
reasonable notice. The fiscal year of the Partnership shall be the
calendar year. The books shall be closed and balanced at the end
of each such fiscal year. The General Manager shall within 60 days
after request from any Partner furnish such Partner with a
reasonable accounting of income and expense and of the balance
sheet of the Partnership through the most recent month for which
such information is available, and shall within 60 days after the
end of any calendar year furnish each Partner with a balance sheet
and income statement for the Partnership for the year.
9. Voluntary Termination. The Partnership may be dissolved
at any time only by the unanimous decision of the owners of the
Partnership, in which event the General Manager or other person
designated by a majority in interest of the Partnership shall
proceed with reasonable promptness to sell or distribute the real
and personal property owned by the Partnership and to liquidate the
business of the Partnership. Upon dissolution, the assets of the
Partnership business shall be used and distributed in the following
order:
a. To pay or provide for the payment of all Partnership
liabilities and liquidating expenses and obligations;
b. To place the income accounts of the Partners in
proportion to their respective percentage interests in the
Partnership;
c. To discharge the balance of the income accounts of
the Partners; and
d. To discharge the balance of the capital accounts of
the Partners.
10. Death or Liquidation.
a. Upon the death of any Partner or upon a request for
relief under bankruptcy, reorganization or insolvency law by
any Partner, or in the event that any Partner shall suffer
such proceedings against him or her which shall not be
terminated within 60 days after commencement, the Partnership
shall not terminate but the affected Partner's interest in the
Partnership and its assets shall pass to his or her trustee in
bankruptcy or other administrator of his or her assets or his
or her estate, except as otherwise provided herein.
The Personal Representative of the estate of a deceased
Partner may, within nine (9) months from date of death, submit
in writing to the Secretary his request that he (or the
estate) be substituted as a Partner, taking the same interest
in the Partnership as the decedent held on the date of his
death. Such consent to become a substituted Partner in the
Partnership shall not unreasonably be withheld by the
Secretary of the Partnership. Upon the giving of said consent
and upon execution of the Partnership agreement by the
Personal Representative (on behalf of the estate), and upon
estate furnishing such signatures and guaranties as the
Secretary of the Partnership may require, then such estate
shall be admitted as a Partner in the Partnership and the date
of admission to the Partnership shall be retroactive to the
date of death upon which date the substituted Partner shall be
deemed to have acquired the deceased Partner's interest.
Heirs to whom such interest may have been distributed within
the times specified shall have the rights with respect to such
interest rather than the estate.
In the event the heir or estate shall not request
admission to the Partnership as a substituted Partner, or upon
any such specified request for bankruptcy, reorganization or
insolvency relief, then, for the purposes of the affected
Partner's estate or heirs, the affected Partner's interest in
the Partnership shall be calculated as follows:
The affected Partner's interest in the Partnership shall
be valued pursuant to the appraisal of a qualified appraiser
selected by the Managing Partner and approved by a majority of
the Partners of the Partnership, as of the end of the last
month prior to the event causing such evaluation. If the
resulting figure shall be a positive amount, it shall be the
affected Partner's interest in the Partnership for purposes of
valuation for the affected partner's estate or purchase by the
Partnership or remaining Partners as provided below. If the
resulting figure shall be a negative amount, the deceased
Partner's interest in the Partnership shall be forfeited to
the other Partners and the Partnership shall be entitled to
the amount of such negative value from the estate and assets
of the affected Partner.
If the heir or Personal Representative of decedent has
not requested admission to the Partnership as a substituted
Partner, or in the event of any such bankruptcy,
reorganization, or insolvency, then the remaining Partners
shall have the opportunity to acquire the affected Partner's
interest at the rate of value as determined above, at any time
within (a) the 60 day period following the end of the 9 month
period subsequent to decedent's death, or (b) 120 days
following the request for relief under bankruptcy,
reorganization or insolvency laws, by notifying the heir or
Personal Representative of a deceased Partner or the Trustee
or other administrator of the affairs of the reorganized,
bankrupt or liquidated Partner, of the purchasing Partner's
desire to acquire the interest at that price. If more than
one remaining Partner shall desire to purchase the affected
Partner's share, then those Partners desiring to purchase
shall have the right to purchase such share in proportion to
their respective Partnership interests. Should a Partner or
Partners elect to purchase the affected Partner's interest,
payment in full shall be made within 30 days thereafter.
If the remaining Partners shall fail to purchase or pay
for all of such interest, within the time specified, then the
Partnership shall notify the heir or Personal Representative
of a deceased Partner or the Trustee or other administrator of
the affairs of the reorganized, bankruptcy or liquidated
Partner, that the Partnership shall acquire the affected
Partner's interest at the price as valued above. Payment in
full shall then be made within 60 days after such
notification.
If upon the death of any Partner, or request for such
relief by or against any Partner's interest, the Secretary of
the Partnership shall believe that a valuation of such
Partner's interest as described above would produce a negative
value, the Secretary may, if he believes such action
meritorious, promptly file a claim on behalf of the
Partnership against the estate and assets of such affected
Partner for the amount of such anticipated negative value.
11. Transfer of Partnership Interest. No Partner, without
the express written consent of all Partners, or as expressly
authorized herein, shall sell, assign, create a security interest
in, or pledge his or her interest in the Partnership other than to
the Partnership. Any attempted transfer in violation hereof shall
be void. Provided, however, that JOHN LATSHAW may transfer or
assign his interest in the Partnership, in whole or in part, to any
other Partner, without the consent of the other Partners.
12. Meetings. Regular meetings of the Partnership shall be
held at least once each year, or more often as determined by the
Partnership. Notice of time and place of each regular meeting
shall be given in writing by the Secretary (who shall be authorized
to set the time and place of the meeting) to each Partner at least
one week before such meeting. Special meetings may be called by
the Secretary or by a majority in interest of the Partners on such
reasonable notice as the Secretary may determine.
13. Action Without Meetings. The Partnership may transact
business without a meeting of Partners upon the approval of a
majority in interest of the Partners (or such greater percent as
this Agreement may require) which consent may be given orally or in
writing and may be obtained by poll taken by the Secretary.
14. Replacement of General Manager or Secretary. Either the
General Manager or the Secretary may be removed by the vote of two-
thirds interest in the Partnership which vote shall occur only at
a meeting of Partners called with notice of such purpose. If the
Partners calling the meeting propose to remove the Secretary, then
such Partners may give notice of the meeting and may set the time
and place thereof. Upon the resignation or removal of either the
General Manager or the Secretary, the vacant office may be filled
by the concurrence of a majority in interest of the Partnership.
15. Arbitration. Any controversy or claim arising out of or
relating to this contract, or the breach thereof, shall be settled
by arbitration in accordance with the rules then in use by the
American Arbitration Association, and judgment upon the award
rendered by be entered in any court having jurisdiction thereof.
16. Amendment. Any provision of this Agreement may be
amended at any time provided that the owners of all of the
interests in the Partnership unanimously agree.
17. Governing Law. Any matter not specifically covered by a
provision of this Agreement shall be governed by the applicable
provisions of the Uniform Partnership Act of Missouri.
18. Notice. Notices provided for herein shall be in writing
and may be personally delivered or mailed by certified or
registered mail to the Partners at their addresses as shown on
Schedule A and to the Partnership in care of the Secretary at the
principal office. Such notice addresses for Partners may be
changed by notice of such change so delivered or so mailed to the
Secretary, and the Secretary may change the principal office by
Notice to the Partners. Notices sent by certified or registered
mail shall be deemed given and received on the date such notice
shall be deposited, postage prepaid, in the United States mail.
19. Execution and Counterparts. Execution of this instrument
shall be on Schedule A hereto. All copies of Schedule A which may
be executed by Partners shall be delivered to the Secretary. Only
when the Secretary, in his sole discretion, shall admit a Partner
to the Partnership shall the contributions be deemed accepted by
the Partnership. The Secretary shall signify such admittance only
by placing the Secretary's initials beside the signature of such
Partner on a copy of Schedule A, which copy, when so initialed
shall be an official part of this Partnership Agreement.
20. Binding Effect. This agreement shall be binding upon the
parties hereto, their heirs and Personal Representatives, and the
successors and assigns of Partners where assignment be permitted.
IN WITNESS WHEREOF, the parties have executed this Agreement
on Schedule A hereto, as of the day and year first above written.
<PAGE>
SCHEDULE A
CON-LIB HOLDING COMPANY
a Missouri General Partnership
The undersigned each acknowledge, agree and represent to each
other and to the Partnership, that:
1. The undersigned has read and agrees to be bound by each
of the provisions of this Agreement, including provisions relating
to the amendment hereof and action on approval of a stated
percentage interest.
2. The undersigned has agreed to contribute, and
concurrently with execution hereof does contribute to the capital
of the Partnership the amount set forth beside his/her name.
3. The undersigned's capital contribution, though delivered,
shall not be deemed to be accepted and the undersigned shall not be
deemed a Partner in the Partnership, until the Secretary in his
sole discretion, shall accept such contribution on behalf of the
Partnership and shall admit such Partner by affixing his initials
beside the signature of such Partner on the Secretary's copy of
this Agreement.
PARTNER NAME, ADDRESS, TAX CAPITAL
IDENTIFICATION NUMBER AND SIGNATURE CONTRIBUTION
/s/John Latshaw 80,000 shares,
John Latshaw common stock,
#3 Dunford Circle Latshaw Enterprises,
Kansas City, MO 64112 SSN # ###-##-#### Inc. - 400 Variable
Rate Debentures
Latshaw Enterprises,
Inc.
/s/Gerard J. Mos, Trustee
Gerard J. Mos III, Trustee of the
Elizabeth Albright Reid Scott Irrevocable
Trust #2 Dated November 15, 1993. $1,000.00
1215 Stratford Road
Kansas City, MO 64113 EID# 43-6473901
/s/Gerard J. Mos, Trustee
Gerard J. Mos III, Trustee of the
Constance Haynes Latshaw Irrevocable
Trust #2 Dated November 15, 1993. $1,000.00
1215 Stratford Road
Kansas City, MO 64113 EID# 43-6473902
LOAN AGREEMENT AND SECURITY AGREEMENT
THIS LOAN AGREEMENT AND SECURITY AGREEMENT effective aa of
February 9, 1994, by and between CON-LIB HOLDING COMPANY, a
Missouri general partnership, with principal offices located at
1215 Stratford Road, Kansas City, Missouri 64113 (herein
"Borrower") and John Latshaw, Trustee U/D/T Dated January 22,
1993, and his successors thereunder, of #3 Dunford Circle, Kansas
City, Missouri 64112 (herein sometimes referred to as "Lender").
In consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration,
receipt of which is acknowledged by the parties, the parties
agree as follows:
DEFINITIONS
Except as otherwise expressly provided elsewhere in this
Agreement, the terms defined below shall have the following
meanings for purposes of this Agreement:
1.1 "Indebtedness" shall mean and include any and all
indebtedness, obligations and liabilities of Borrower to Lender
incurred under or pursuant to the terms of this Agreement, the
Note or any other Loan Document.
1.2 "Loan" or "Loans" shall mean the loan advances made to
the Borrower pursuant to Section 2.1 of this Agreement.
1.3 "Loan Documents" shall mean this Agreement, the Note,
and all other documents, instruments and certificates to be
executed by Borrower pursuant to the terms of this Agreement.
1.4 "Note" shall mean the note described in Section 2.2 of
this Agreement together with each and every extension, renewal,
modification, substitution, replacement and change in form
thereof which may be made from time to time and for any term or
terms effected.
TERMS AND CONDITIONS OF LOAN
2.1 Loan. Lender agrees, upon the terms and subject to the
conditions hereinafter set forth, to make a Loan in the principal
amount of Four Hundred Ninety Thousand and No/100ths Dollars
($490,000.00) to Borrower. The Loan is for business and
investment purposes and it is nonrecourse to Borrower.
2.2 Note. Borrower shall execute and deliver to Lender its
Note, the form of which is attached as Exhibit "A" and hereby
made a part hereof, due and payable At maturity on February 9,
1997 or upon the earlier dissolution and liquidation of CON-LIB
HOLDING COMPANY, a Missouri general partnership, payable in
accordance with the terms set forth in the Note. The Note shall
be secured by all right, title and interest of Borrower in and to
the Four Hundred Ninety, $1,000.00 face value, variable rate,
convertible Debentures issued by Latshaw Enterprises, Inc. which
Borrower is purchasing with the Loan proceeds provided by Lender
(the "Collateral").
2.3 Payments. For and during the term of the Note,
Borrower will pay to Lender, all payments of principal and
interest due on the Note, on a semi-annual basis with the first
payment commencing on August 9, 1994, in accordance with the
terms of the Note. All outstanding principal of and accrued
interest on the Note not previously paid under the Note shall be
due and payable at maturity of the Note.
2.4 Authority. Borrower is a Missouri general partnership
and its authorized general partner has full power and authority
to execute the Loan Documents and this Loan Agreement and
Security Interest Agreement on its behalf.
2.5 Application of Funds. Borrower represent that the
funds will be used for the purpose set forth in paragraph 2.1
hereof.
2.6 Manner of Disbursement. Upon Lender being satisfied
that all security interests granted to Lender pursuant to this
Loan have been properly approved, executed, assigned and
perfected, Lender shall disburse loan proceeds to or to the
credit of Borrower for the purposes set forth in this Agreement,
when requested by Borrower, for purchase of the Collateral.
2.8 Payment - Application to Loan. All amounts payable to
the Lender or to the credit of Borrower shall be applied first in
payment of loan expenses described in the Loan Documents, second
toward accrued interest payable with respect to Lender's funds,
with the balance to be applied against Lender's principal.
AFFIRMATIVE COVENANTS
From the date hereof, and so long as this Agreement is in
effect (by extension, amendment or otherwise) Borrower covenants
and agrees with Lender and until payment in full of all
Indebtedness and the performance of all other obligations of
Borrower under this Agreement, unless Lender shall otherwise
consent in writing:
3.1 Financial Statements and Reports. Borrower shall, at
Lender's option, present to Lender each year a copy of Borrower's
annual tax return and related financial statements.
3.2 Requested Information. With reasonable promptness,
Borrower will give Lender such other information as from time to
time may be reasonably requested by Lender, and permit Lender to
inspect its accounts, records and papers.
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into this Agreement and in
consideration thereof, borrower represents, warrants and
covenants as follows:
4.1 Financial Statements. The financial statements of
Borrower furnished to Lender are complete and correct and fairly
present the respective financial condition as of the dates
indicated and for the periods involved and respectively show all
material liabilities, direct and contingent.
4.2 Litigation. There is no action, suit, investigation or
proceeding pending or, to the knowledge of Borrower, threatened
against or materially affecting the Collateral described in
paragraph 2.2 hereof.
4.3 Title to Properties; Authority. Borrower has full
power, authority and legal right to execute and deliver and to
perform and observe the provisions of this Agreement and all
other related documents to be executed and delivered by it.
4.4 Enforceability. This Agreement, the Note and all Loan
Documents have been duly authorized, executed and delivered on
behalf of Borrower and are valid and binding agreements of
Borrower enforceable in accordance with their terms.
4.5 Title to Collateral. Borrower represents and warrants
to Lender that Borrower has good and marketable title to the
Collateral and that such interest is free and clear of all liens,
claims and encumbrances whatsoever. Borrower agrees that it
shall not further encumber the Collateral until such time as this
Loan is repaid in full or until such time as the parties hereto
have otherwise agreed in writing.
COLLATERAL AND SECURITY FOR INDEBTEDNESS
5.1 Creation of Continuing Security Interest. To secure
the payment of all Indebtedness, howsoever and whensoever created
hereunder, as and when the same shall become due and payable
(whether by extension, renewal, acceleration or otherwise),
Borrower hereby grants, pledges, hypothecates and assigns to the
Lender a continuing and continuous security interest in and to
the Collateral described in paragraph 2.2.
5.2 Additional Documents or Instruments. Borrower will
from time to time and as often as Lender may request, execute and
deliver to Lender such mortgages, additional and supplemental
security agreements and other reports, certificates, data and
writings as Lender may request to evidence, perfect, more fully
perfect or evidence or evaluate Lender's continuing security
interest in the collateral and security referred to herein.
5.3 Security Instruments and Collateral Instruments. The
obligations of the parties to close the loan transactions
contemplated in this Agreement are contingent upon Lender
approving all security and pledge instruments requested by the
Lender and upon Lender approving the Promissory Note and all
collateral instruments pledged to secure the Lender's loan.
EVENTS OF DEFAULT
6.1 Events of Default. If any one or more of the following
events (herein called "Events of Default") shall occur and be
continuing for any reason whatsoever (and whether such occurrence
shall be voluntary or involuntary or come about or be effected by
operation of law or otherwise):
(a)Borrower shall fail to pay any principal or
interest upon the Note when the same shall become due and
payable (whether by extension, renewal, acceleration or
otherwise); or
(b)Borrower shall fail to duly observe, perform or
comply with any covenant or agreement contained in this
Agreement or any of the Loan Documents; or
(c)Any representation or warranty of Borrower made
herein or in any writing furnished pursuant to this
Agreement shall have been false or misleading in any
material respect on the date when made; or
(d)Any of the following: (i) Borrower shall make an
assignment for the benefit of creditors; or (ii) an order,
Judgment or decree is entered adjudicating Borrower bankrupt
or insolvent; or (iii) Borrower shall petition or apply to
any Tribunal for the appointment of a Trustee, receiver or
liquidator of Borrower or of any substantial part of the
assets of Borrower or shall commence any proceedings
relating to Borrower under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readJustment of debts,
dissolution, or liquidation law of any Jurisdiction, whether
now or hereafter in effect; or (iv) any such petition or
application shall be filed, or any such proceedings shall be
commenced, against Borrower and Borrower by any act shall
indicate its approval thereof, consent thereto or
acquiescence therein, or an order, Judgment or decree shall
be entered appointing any such Trustee, receiver or
liquidator, or approving the petition if unstayed and in
effect for more than sixty (60) days; or (v) any final
Judgment on the merits for the payment of material aums of
money shall be outstanding against Borrower, and such
judgment shall remain unstayed and in effect and unpaid for
more than sixty (60) days;
then, and in every such event, Lender may terminate its
commitment to lend hereunder and/or declare the principal of and
interest on all Indebtedness of Borrower hereunder to be
immediately due and payable, without presentment, demand,
protest, notice of protest, or other notice of any kind, all of
which are hereby expressly waived by Borrower.
6.2 Interest After Default. All past due Indebtedness of
Borrower to Lender, whether principal, interest, costs or
expenses, shall bear interest at the annual rate set forth in the
Note plus three percent (3%) during such period of delinquency
until paid, but not higher than the then applicable highest
federal or state lawful rate (the "Default Rate").
6.3 Remedies. If any one or more Events of Default shall
occur and be continuing, Lender may, without any period of grace
except as provided in the Loan Documents, proceed to protect and
enforce all or any of its rights contained in this Agreement or
any Loan Documents, or may proceed to enforce payment of
Indebtedness due or enforce any other legal or equitable rights
or exercise any other legal or equitable remedies, or cure or
remedy any default by Borrower for the purpose of preserving its
assets and properties; PROVIDED, HOWEVER, that Borrower's
liability for repayment of the Indebtedness hereunder shall be
limited, in all events, to the value of the Collateral herein.
All rights, remedies or powers conferred upon Lender shall be
cumulative and not exclusive of any other rights, remedies or
powers available. No delay or omission to exercise any right,
remedy or power, shall impair any such right, remedy or power, or
shall be construed to be a waiver of any Event of Default or an
acquiescence therein. Any such right, remedy or power may be
exercised from time to time, independently or concurrently, and
as often as shall be deemed expedient. No waiver of any Event of
Default shall extend to any subsequent Event of Default. No
single or partial exercise of any right, remedy or power shall
preclude other or further exercise thereof. Borrower covenants
that if an Event of Default shall happen and be continuing he
will pay costs of court and other out-of-pocket expenses paid or
incurred by Lender in collecting the amounts due pursuant to this
Agreement, including reasonable attorney's fees, together with
interest on amounts so expended from the respective dates of each
expenditure st an annual rate equal to the Default Rate.
MISCELLANEOUS
7.1 Notices. Unless otherwise provided herein, all
notices, requests, consents and demands shall be in writing and
shall be mailed, postage prepaid, to the respective addresses
specified herein, or, as to either party, to such other address
as may be designated by written notice to the other party. All
notices, requests, consents and demands hereunder will be
effective when mailed by certified or registered mail, postage
prepaid, addressed as set forth in the introductory paragraph of
this Agreement.
7.2 Place of Payment. All sums payable hereunder shall be
paid at the Lender's mailing address stated hereinabove, or at
such other place as it shall notify borrower in writing. If any
payment of interest or principal falls due on a Saturday, Sunday
or legal holiday, then such due date shall be extended to the
next succeeding business day, and such extension of time will be
included in computing interest, if any, in connection with such
payment.
7.3 Parties In Interest. All covenants and agreements
contained in this Agreement and other Loan Documents shall bind
and inure to the benefit of the respective successors and assigns
of the parties hereto.
7.4 Governing Law. This Agreement and all Loan Documents
shall be deemed to have been made under the Laws of Missouri and
shall be construed and enforced in accordance with and governed
by the Laws of Missouri. Without excluding any other
Jurisdiction, Borrower agrees that the courts of Missouri will
have Jurisdiction over proceedings in connection herewith.
7.5 Legal Interest Rate. All Loan Documents, including
this Agreement, between the Lender and the Borrower are expressly
limited so that under no contingency or event whatsoever shall
the use, forbearance or detention of the money advanced, or to be
advanced hereunder, exceed the lawful highest rate permissible
under the prevailing law. If fulfillment of any provision
hereof, or the Note, or any Loan Document, at the time
performance of such provisions shall be due, shall involve
transcending the limit of validity prescribed by statute or which
a court of competent Jurisdiction may deem applicable hereto,
then ipso facto, the obligation to be fulfilled shall be reduced
to the limit of such validity, and if from any circumstances the
holder of the Note shall ever receive as interest an amount which
would exceed the highest lawful rate, such amount which would
otherwise be excessive interest shall be applied to the reduction
of the unpaid principal balance due under the Note and not to the
payment of interest. This provision shall control every other
provision of all agreements between the Bank and the Borrower
with respect to the payment of interest or other charge for the
use, forbearance or detention of money advanced or to be advanced
hereunder.
7.6 Severability. The unenforceability or invalidity as
determined by a Tribunal of competent Jurisdiction, of any
provision or provisions of this Agreement shall not render
unenforceable or invalid any other provision or provisions
hereof, provided, however, if Lender determines that the finding
of unenforceability or invalidity adversely affects the basic
consideration of this Agreement, Lender may, at its option,
terminate this Agreement.
7.7 Release of Collateral. When the Indebtedness has been
paid in full, the Lender shall release or reassign any remaining
collateral.
7.8 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be delivered as of the day and year first above
written.
BORROWER:
CON-LIB HOLDING COMPANY,
a Missouri general partnership.
By /s/Gerard J. Mos III
Name: Gerard J. Mos III, Trustee
Title: General Partner
LENDER:
/s/John Latshaw
John Latshaw, Trustee U/D/T
Dated January 22, 1993.
<PAGE>
EXHIBIT A
PROMISSORY NOTE
(NONRECOURSE)
$490,000.00 FEBRUARY 9, 1994
FOR VALUE RECEIVED, CON-LIB HOLDING COMPANY, a Missouri
general partnership ("Borrower") promise to pay to John Latshaw,
Trustee U/D/T Dated January 22, 1993, and his assigns or
successors thereunder, or order, ("Payee") at #3 Dunford Circle,
Kansas City, Missouri 64112, the principal sum of Four Hundred
Ninety Thousand and No/100ths Dollars ($490,000.00) with interest
on the unpaid balance at the rate hereafter described, principal
and interest to be paid as follows:
Equal semi-annual payments of principal and interest in the
amount of Twenty Thousand and No/100ths Dollars
($20,000.00), with the first semi-annual payment being due
on the 9th day of August, 1994, and on the same day of each
semi-annual anniversary thereafter until February 9, 1997,
when the balance of this Note, together with all unpaid
interest, allowances and charges, are due and payable;
provided, however, that this Note shall be due and payable
in full and in all events upon the earlier dissolution or
liquidation of CON-LIB HOLDING COMPANY, a Missouri general
partnership.
This Note shall bear interest at the rate of 3.92 percent
per annum.
Interest hereunder shall be computed on the actual number of
days elapsed on the basis of a year consisting of three hundred
sixty five (365) days.
All such payments shall be applied first to loan expenses,
then to interest due on the unpaid principal and the remainder in
reduction of the principal. The Default Rate of interest under
this Note is three percent (3%) above the regular rate of
interest provided for herein.
This Note may be prepaid at any time, either in whole or in
part, without penalty. All prepayments shall be applied on the
unpaid installments in the inverse order of their maturity.
Borrower warrants and represents that all loan proceeds
shall be used for business and investment purposes.
Irrespective of any other provision herein, Borrower's
liability for repayment of this Note shall be limited, in all
events, to the value of the Collateral, this Note being
nonrecourse to Borrower. All parties (Borrower, endorser,
sureties and all others now or hereafter liable for payment of
the indebtedness evidenced by this Note) waive presentment and
diligence in collection and agree that without notice to, and
without discharging the liability of any party, this Note may be
extended or renewed from time to time and for any term or terms
by agreement between the holder and any of such parties and all
parties shall remain liable on each such extension or renewal.
If the principal or any installment of interest due upon
this Note is not paid when due and payable (whether by extension,
acceleration or otherwise), or if Borrower hereunder has
defaulted under any terms of this Note, or in the Event of
Default by Borrower under and as defined in the that certain Loan
Agreement and Security Agreement, of even date, between Lender
and CON-LIB HOLDING COMPANY, a Missouri general partnership, as
Borrower (the "Loan Agreement") and any other writing now or
hereafter evidencing or securing the payment of any of the
indebtedness evidenced hereby, the holder hereof may, without
notice, declare all of the unpaid balance hereof to be
immediately due and payable. Such right of acceleration is
cumulative and in addition to any other right or rights of
acceleration under the Loan Agreement. After default or after
maturity, whether by acceleration, extension or otherwise, this
Note shall bear interest at the Default Rate.
All the terms and conditions of the Loan Agreement including
the loan documents referred to therein, are incorporated herein,
and it is acknowledged that a default thereunder shall constitute
a default under this Note. This Note is secured by a security
interest in Four Hundred Ninety, $1,000.00 face value, variable
rate, convertible Debentures issued by Latshaw Enterprises, Inc.
All agreements, including this Note, between the Borrower
and the holder hereof are expressly limited so that under no
contingency or event whatsoever shall the amount paid or agreed
to be paid to the Payee for the use, forbearance or detention of
the money advanced, or to be advanced hereunder, exceed the
lawful highest rate permissible under the prevailing law. If
fulfillment of any provision of this Note, or any other agreement
pertaining thereto, at the time performance of such provisions be
due, shall involve transcending the limit of validity prescribed
by statute or which a court of competent Jurisdiction may deem
applicable hereto, then ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if
from any circumstances the Payee or the holder hereof shall ever
receive as interest an amount which would exceed the highest
lawful rate, such amount which would otherwise be excessive
interest shall be applied to the reduction of the unpaid
principal balance due under the Note and not to the payment of
interest. This provision shall control every other provision of
all agreements between the Borrower and the Payee with respect to
the payment of interest or other charge for the use, forbearance
or detention of money advanced or to be advanced hereunder.
IF ALL OR ANY PART OF THE COLLATERAL OR ANY INTEREST THEREIN
IS SOLD OR TRANSFERRED, ASSIGNED, HYPOTHECATED, MORTGAGED OR
FURTHER ENCUMBERED BY BORROWER WITHOUT THE NOTE HOLDER'S CONSENT,
THE NOTE HOLDER MAY, AT THE NOTE HOLDER'S OPTION, DECLARE ALL THE
SUMS SECURED BY THE SECURITY AGREEMENT TO BE IMMEDIATELY DUE AND
PAYABLE.
This Note shall be the unconditional and continuing,
obligation of the Borrower. In the event this Note is placed in
the hands of an attorney for collection or suit is brought
thereon, or in the event it is established as a claim in probate
or bankruptcy proceedings, whether instituted prior or after
maturity of this Note, the Borrower agrees to pay to the Payee
all costs of collection and a reasonable attorney's fee may be
collected as a part thereof.
This Note is made and executed under and is in all respects
to be governed by the law of the State of Missouri.
Any notice to Borrower provided for in this Note shall be
given by mailing such notice by certified mail addressed to
Borrower at 1215 Stratford Road, Kansas City, Missouri 64113, or
to such other address as Borrower may designate by notice to the
Note holder. Any notice to the Note holder shall be given by
mailing such notice by certified mail, return receipt requested,
to the Note holder, John Latshaw, Trustee, #3 Dunford Circle,
Kansas City, Missouri 64112, or at such other address as may have
been designated by notice to Borrowers.
BORROWER:
CON-LIB HOLDING COMPANY,
a Missouri general partnership.
By /s/Gerard J. Mos III
Name: Gerard J. Mos III, Trustee
Title: General Partner
<PAGE>
EXHIBIT B
1. Collateral Security. As collateral security for all of
the Obligations, Borrower hereby pledges and assigns to Lender
and grants to Lender a continuing security interest in all of the
following:
(a) Four Hundred Ninety, $1,000.00 Face Value,
variable rate, convertible Debentures issued by Latshaw
Enterprises, Inc.
(b) Proceeds. All proceeds of any and all of the
foregoing collateral referred to in l.(a), and, to the
extent not otherwise included, all intangible or other
property received on conversion of said Collateral, or
otherwise with respect to the foregoing collateral.
In each case, the foregoing shall be covered by this Agreement
whether Borrower's ownership or other rights therein are
presently held or hereafter acquired or howsoever Borrower's
interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise).
2. Obligations Secured. The security interest created
hereby in the Collateral constitutes a continuing collateral
security for all of the following obligations, indebtedness and
liabilities, whether now existing or hereafter incurred:
(a) Indebtedness Related to Agreement. The payment by
Borrower, as and when due and payable, of all amounts from
time to time owing by Borrower under or in respect of this
Agreement, and any other instrument now or hereafter
delivered in connection with or aa security for this
Agreement.
(b) Renewals. All renewals, extensions, amendments,
modifications, supplements or restatements of or
substitutions for any of the foregoing.
(c) Performance. The due performance and observance
by Borrower of all of its obligations from time to time
existing under and in respect of the Loan Documents or any
other instrument now or hereafter delivered in connection
with the Loan Documents.
EXHIBIT 3
CONSTANCE HAYNES LATSHAW
IRREVOCABLE TRUST AGREEMENT #2
I, JOHN LATSHAW, of Kansas City, Jackson County,
Missouri, hereby transfer and assign to GERARD J. MOS III, as
trustee, the property identified in the attached Schedule of
Property. That property, any property added to the trust in
accordance with the provisions of this instrument, and all
investments and reinvestments thereof ("trust principal") shall
be held upon the following terms:
ARTICLE I
This instrument may be designated the "CONSTANCE HAYNES
LATSHAW IRREVOCABLE TRUST AGREEMENT #2" and the initial trust
hereby evidenced may be designated the "CONSTANCE HAYNES LATSHAW
IRREVOCABLE TRUST #2."
ARTICLE II
A. Commencing on the date of this instrument and
until the distribution date (as defined in paragraph B of this
Article), the trustee shall distribute to CONSTANCE HAYNES
LATSHAW:
1. the net income of the trust in convenient
installments at least as often as semi-annually; and
2. although I do not intend that the Trustee should
ever make discretionary distributions under this paragraph, the
Trustee, in his sole and absolute discretion, may distribute as
much of the principal of the trust, even to the extent of
exhausting principal, as the trustee from time to time determines
to be required for the health, education, maintenance and support
of my said Child, considering all circumstances and factors
believed pertinent by the trustee; and
3. when my Child for whom the trust is named reaches
the age of sixty years, the trustee shall distribute to such
Child one-half of the principal of the trust, as then
constituted, if any; and when such Child reaches the age of
seventy years, the trustee shall distribute to my said Child the
entire balance of the trust, if any.
B. Upon the death of my Child before withdrawal of
the entire balance or complete distribution of the trust, any
accrued but undistributed net income thereof shall be paid over
and distributed to the estate of my said Child, and the remaining
principal of the trust shall be distributed to my then living
descendants, or to specifically identified creditors of my said
Child's estate, in such amount or proportions and in such lawful
interests or estates, whether absolute or in trust, as my Child
may have appointed by specific reference to this power in her
Last Will and Testament. If such power of appointment is for any
reason not effectively or fully exercised by such child, that
part or all of the principal and undistributed net income of the
trust estate not so appointed by her shall be distributed to the
then living lineal descendants of my daughter, CONSTANCE HAYNES
LATSHAW, per stirpes, or, if none, the Trustee shall pay over and
distribute the principal of the trust, as then constituted, as
follows:
1. To the JOHN LATSHAW FOUNDATION, provided that said
Foundation is at that time a duly organized and existing
Foundation, qualified under Section 501(c)(3) of the Internal
Revenue Code, and provided that a residuary gift to said
Foundation does not constitute a retained interest by Settlor, of
any type or kind whatsoever, which would cause any part of the
principal of any trust estate created hereunder be includible in
Settlor's gross estate for federal estate tax purposes.
2. If the residuary gift under the above paragraph is
not possible for the reasons stated, then in that event the
remaining principal of the trust shall be distributed to ST.
ANDREW'S EPISCOPAL CHURCH presently located at 6401 Wornall
Terrace, Kansas City, Missouri and/or such other organizations
which are qualified under Section 501(c)(3) of the Internal
Revenue Code and which primarily benefit the Greater Kansas City
Metropolitan area, in such amounts and proportions as determined
to be appropriate by the trustee hereunder, and subject to such
further qualifications as to use and investment as may be
properly determined by the trustee, in its sole discretion.
C. Despite the preceding provisions of this
instrument, the trustee may elect to withhold any property
otherwise distributable under paragraph B of this Article to a
beneficiary who has not reached the age of thirty-five years and
may retain the property for that beneficiary in a separate trust
named for the beneficiary, to be distributed to the beneficiary
when he or she reaches the age of thirty-five years, or before
then if the trustee so elects. The trustee shall pay over all of
the net income of the trust retained to such beneficiary and
shall also pay over so much of the principal of the trust so
retained as the trustee determines to be required from time to
time for the health, education, maintenance and support of the
beneficiary for whom the trust is named, considering all
circumstances and factors deemed pertinent by the trustee. If
the beneficiary for whom the trust is named dies before complete
distribution of the trust, any accrued but undistributed net
income thereof shall be distributed to the beneficiary's estate
and the remaining principal of the trust shall be distributed to
my then living lineal descendants in such amounts or proportions
and in such lawful interests or estates, whether absolute or in
trust, as such beneficiary may have appointed by specific
reference to this power in his or her Last Will and Testament.
If such power of appointment is for any reason not effectively or
fully exercised by such child, that part or all of the principal
and undistributed net income of the trust estate not so appointed
by him or her shall be distributed to his or her then living
lineal descendants, per stirpes or, if none, then the Trustee
shall pay over and distribute the principal of the trust, as then
constituted, as follows:
1. To the JOHN LATSHAW FOUNDATION, provided that said
Foundation is at that time a duly organized and existing
Foundation, qualified under Section 501(c)(3) of the Internal
Revenue Code, and provided that a residuary gift to said
Foundation does not constitute a retained interest by Settlor, of
any type or kind whatsoever, which would cause any part of the
principal of any trust estate created hereunder be includible in
Settlor's gross estate for federal estate tax purposes.
2. If the residuary gift under the above paragraph is
not possible for the reasons stated, then in that event the
remaining principal of the trust shall be distributed to ST.
ANDREW'S EPISCOPAL CHURCH presently located at 6401 Wornall
Terrace, Kansas City, Missouri and/or such other organizations
which are qualified under Section 501(c)(3) of the Internal
Revenue Code and which primarily benefit the Greater Kansas City
Metropolitan area, in such amounts and proportions as determined
to be appropriate by the trustee hereunder, and subject to such
further qualifications as to use and investment as may be
properly determined by the trustee, in its sole discretion.
ARTICLE III
A. While it is not my intent that this trust shall
constitute a generation-skipping transfer, notwithstanding any
other provision of this instrument:
1. If a trust created under this instrument (the
"original trust") would otherwise be partially exempt from
generation-skipping tax after the intended allocation of a GST
exemption to it, then, before such allocation and as of the
relevant valuation date under Section 2642 of the Internal
Revenue Code of 1986, as from time to time amended (the "Code"),
with respect to such allocation, trustee may (but need not)
create instead two separate trusts of equal or unequal value
which shall be identical in all other respects to the original
trust, so that the allocation of GST exemption can be made to one
trust which will be entirely exempt from generation-skipping tax.
The two trusts created under this subparagraph (i) shall have the
same name as the original trust except that the trust to which
the GST exemption is allocated shall have the phrase "GST exempt"
added to its name, and (ii) are sometimes referred to herein as
"related." As used in this instrument, the "GST exemption" means
the exemption from generation-skipping tax allowed under Section
2631 of the Code.
2. If property which is held in, or is to be added or
allocated to, a trust pursuant to this instrument is subject to
different treatment for any reason for purposes of, the
generation-skipping tax under Chapter 13 of the Code than other
property being added or allocated to, or also held in, that
trust, then the trustee may (but need not) hold such property
instead as a separate trust that is appropriately designated to
distinguish it from the trust to which the property otherwise
would have been allocated, but that is identical in all other
respects to that trust. The identical trusts resulting from
application of this subparagraph are also sometime referred to
herein as "related."
3. It is my intent that the trustee shall not be
required to create or administer a trust hereunder that is only
partially exempt from generation-skipping taxes, or to commingle
property subject to different treatment for generation-skipping
tax purposes whether because the transferors with respect to the
property are assigned to different generations or otherwise. The
provisions of this paragraph A are intended to enable the trustee
to avoid such situations by empowering the trustee to segregate
trust property (i) that is entirely exempt from
generation-skipping tax from trust property that is not exempt,
or (ii) that is otherwise treated differently from other trust
property for purposes of the generation-skipping tax, and the
provisions of this paragraph A should be applied in a manner
consistent with this intention.
B. To the extent it is consistent with the trustee's
fiduciary obligations, the trustee, in making discretionary
distributions of net income and principal from the related trusts
referred to in paragraph A of this Article, shall take advantage
of the opportunities provided by the creation of such related
trusts to avoid or delay generation-skipping tax when making
discretionary distributions, and to maximize the amount of trust
property that eventually may be distributed to my grandchildren
or more remote descendants without transfer tax of any kind at
the termination of all trusts created under this instrument.
<PAGE>
ARTICLE IV
The provisions of this Article shall apply to each
trust held under this instrument:
A. If at any time a beneficiary eligible to receive
net income or principal distributions is under legal disability,
or in the opinion of the trustee is incapable of properly
managing his or her financial affairs, the trustee may make those
distributions directly to the beneficiary, to a lawful guardian
of the beneficiary, or to a custodian selected by the trustee for
the beneficiary under a Uniform Transfers to Minors Act or
similar applicable law, or may otherwise expend the amounts to be
distributed for the benefit of the beneficiary in such manner as
the trustee considers advisable. As used throughout this
instrument, the term "lawful guardian" shall mean successively in
the order named (i) the court-appointed guardian of the estate,
(ii) either parent (other than me), or (iii) the individual
having personal custody (whether or not a court-appointed
guardian) where no guardian of the estate has been appointed.
B. All net income accrued or undistributed at the
termination of any interest shall be treated as if it had accrued
or been received immediately after termination.
C. Among the circumstances and factors to be
considered by the trustee in determining whether to make
discretionary distributions of principal to a beneficiary are the
other income and assets known to the trustee to be available to
that beneficiary and the advisability of supplementing such
income or assets. As used throughout this instrument, the term
"education" includes, but is not limited to, private schooling at
the elementary and secondary school level, college, graduate and
professional education, and specialized or vocational training.
Notwithstanding the foregoing, no trustee hereunder shall be
required to inquire into and ascertain the income and assets
available to a beneficiary from sources outside the trustee's
control and knowledge.
D. Except as otherwise provided by law, no interest
of any beneficiary shall be subject to anticipation, to claims
for alimony or support, to voluntary transfer without the written
consent of the trustee, or to involuntary transfer in any event.
E. If at any time the trustee shall determine that
the trust is of a size that is no longer economical to
administer, the trustee, without further responsibility, may (but
need not) distribute the trust to the beneficiary for whom the
trust is named.
F. For purposes of determining who is a descendant of
mine or of any other person:
1. Legal adoption before the person adopted reached
the age of twenty-one years shall be the equivalent in all
respects to blood relationship; and
2. A person born out of wedlock and those claiming
through such person shall be deemed to be descendants (i) of the
natural mother and her ancestors, and (ii) if the natural father
acknowledges paternity, of the natural father and his ancestors,
in each case unless a decree of adoption terminates such natural
parent's parental rights.
ARTICLE V
A. The trustee shall have the following powers with
respect to each trust held under this instrument, exercisable in
the discretion of the trustee:
1. To retain for any period of time without
limitation, and without liability for loss or depreciation in
value, any property transferred to the trustee, including
partnership interests (whether general, special, or limited),
even though the trustee would not purchase the property as a
trust investment and though its retention might violate
principles of investment diversification;
2. To sell at public or private sale, wholly or
partly for cash or on credit, contract to sell, grant or exercise
options to buy, convey, transfer, exchange, or lease (for a term
within or extending beyond the term of the trust) any real or
personal property of the trust, and to partition, dedicate, grant
easements in or over, subdivide, improve, and remodel, repair, or
raze improvements on any real property of the trust, and in
general to deal otherwise with the trust property in such manner,
for such prices, and on such terms and conditions as any
individual might do as outright owner of the property;
3. To borrow money at interest rates then prevailing
from any individual, bank, or other source, irrespective of
whether any such individual or bank is then acting as trustee,
and to create security interests in the trust property by
mortgage, pledge, or otherwise;
4. To invest in bonds, common or preferred stocks,
notes, real estate mortgages, common trust funds, shares of
regulated investment companies, partnership interests (whether
general, special, or limited), currencies, or other securities or
property, real or personal, domestic or foreign, including
partial interests, such as life estate, term or remainder
interests, without being limited by any statute or rule of law
governing investments by trustee;
5. To make allocations, divisions, and distributions
of trust property in cash or in kind, or partly in each; to
allocate different kinds or disproportionate shares of property
or undivided interests in property among the beneficiaries or
separate trusts, without liability for, or obligation to make
compensating adjustments by reason of, disproportionate
allocations of unrealized gain for federal income tax purposes;
and to determine the value of any property so allocated, divided,
or distributed;
6. To exercise in person or by general or limited
proxy all voting and other rights, powers, and privileges and to
take all steps to realize all benefits with respect to stock or
other securities; and to enter into or oppose, alone or with
others, voting trusts, mergers, consolidations, foreclosures,
liquidations, reorganizations, or other changes in the financial
structure of any corporation;
7. To cause any security or other property to be
held, without disclosure of any fiduciary relationship, in the
name of the trustee, in the name of a nominee, or in unregistered
form;
8. To pay all expenses incurred in the administration
of the trust, including reasonable compensation to any trustee,
and to employ or appoint and pay reasonable compensation to
accountants, depositaries, investment counsel, attorneys,
attorneys-in-fact, and agents (with or without discretionary
powers);
9. To deal with the fiduciary or fiduciaries or any
other trust or estate, even though the trustee is also the
fiduciary or one of the fiduciaries of the other trust or estate;
10. To compromise or abandon any claim in favor of or
against the trust;
11. To lend money to the personal representative of my
estate, and to purchase property from the personal representative
of my estate and retain the same for any period of time without
limitation, and without liability for loss or depreciation in
value, notwithstanding any risk, unproductivity, or lack of
diversification;
12. To commingle for investment purposes the property
of the trust with the property of any other trust held hereunder,
allocating to each an undivided interest in the commingled
property;
13. To merge and consolidate at any time, despite any
contrary provisions of Article III of this instrument, the trust
property with the trust property of any related trust created
under this instrument and thereafter to administer such trusts as
a single trust hereunder;
14. To receive any property, real or personal, to be
added to the trust, from me in any event (and, if the trustee
consents in writing, from any other person) by lifetime or
testamentary transfer or otherwise;
15. To execute instruments of any kind, including
instruments containing covenants and warranties binding upon and
creating a charge against the trust property and containing
provisions excluding personal liability;
16. To perform all other acts necessary to accomplish
the proper management, investment and distribution of the trust
property; and
17. To retain any business interest transferred to the
trustee, including shares of stock or other interests in or
indebtedness of LATSHAW ENTERPRISES, INC., or any other
corporation or corporations succeeding to the business of that
partnership by consolidation, merger, purchase of assets, or
otherwise, as shareholder, security holder, creditor, partner or
otherwise, for any period of time whatsoever, even though the
interest may constitute all or a large portion of the trust
principal; to comply with the provisions of any agreement
restricting transfer of the interest; to participate in the
conduct of the related business or rely upon others to do so, and
to take or delegate to others discretionary power to take any
action with respect to its management and affairs which an
individual could take as outright owner of the business or the
business interest, including the voting of stock (by separate
trust or otherwise regardless of whether that separate trust will
extend for a term within or beyond the term of the trust) and the
determination of all questions of policy; to execute and amend
partnership agreements and limited liability company agreements,
or amendments to either, specifically including the CON-LIB
HOLDING COMPANY; to participate in any incorporation,
reorganization, merger, consolidation, sale of assets,
recapitalization, liquidation, or dissolution of the business, or
any change in its nature, or in any buy-sell, stock restriction,
or stock redemption agreements; to invest in additional stock or
securities of, or make secured, unsecured, or subordinated loans
to, the business with trust funds; to elect or employ with
compensation, as directors, officers, employees, or agents of the
business, any persons, including a trustee of any trust held
under this instrument, or any director, officer, employee, or
agent of a corporate trustee of the trust or any other trust held
under this instrument without adversely affecting the
compensation to which that trustee would otherwise be entitled;
to rely upon reports of certified public accountants as to the
operations and financial condition of the business, without
independent investigation; to deal with and act for the business
in any capacity, including in the case of a corporate trustee any
banking or trust capacity and the loaning of money out of the
trustee's own funds, and to be compensated therefor; and to sell
or liquidate the business or any interest in the business.
B. The powers granted in this Article shall be in
addition to those granted by law and may be exercised even after
termination of all trusts hereunder until actual distribution of
all trust principal, but not to the extent prohibited by any rule
of law relating to perpetuities.
C. To the extent that such requirements can legally
be waived, no trustee hereunder shall ever be required to give
bond or security as trustee, or to qualify before, be appointed
by or account to any court, or to obtain the order of approval of
any court with respect to the exercise of any power or discretion
granted in this instrument.
D. The trustee's exercise or nonexercise of powers
and discretions in good faith shall be conclusive on all persons.
No person paying money or delivering property to any trustee
hereunder shall be required or privileged to see to its
application. The certificate of the trustee that the trustee is
acting in compliance with this instrument shall fully protect all
persons dealing with a trustee.
E. Irrespective of any other provisions herein, the
trustee is authorized and directed to take such actions as may be
necessary or prudent to preserve and protect any tax elections
which have been made with respect to corporate stock comprising
the trust corpus, including the authority to create and maintain
separate trusts or trust shares for each individual beneficiary.
F. This instrument and all dispositions hereunder
shall be governed by and interpreted in accordance with the laws
of the State of Missouri.
ARTICLE VI
A. Any trustee may resign at any time by giving prior
written notice to the beneficiary or beneficiaries to whom the
current trust income may or must then be distributed.
B. GERARD J. MOS III shall serve as initial trustee
of the trust created herein. From and after the death of GERARD
J. MOS III, my Children then living together with the individual
named to approve and confirm a successor trustee in paragraph F
of this Article, may at any time remove the incumbent trustee by
written notice delivered to that trustee and to the person or
persons indicated in paragraph F of this Article who will appoint
a successor trustee. Except as otherwise provided in paragraphs
D and E of this Article, if GERARD J. MOS III ceases to act as
trustee hereunder for any reason, or if any successor trustee
appointed as hereinafter provided ceases to act as trustee
hereunder for any reason, then the person or persons indicated in
paragraph F of this Article shall, by written instrument, appoint
any person (other than me, a spouse of mine or a descendant of
mine), or any bank or trust company (although it is my preference
that no corporate trustee be utilized hereunder), within or
outside the State of Missouri, as successor trustee.
C. The person or persons indicated in paragraph F of
this Article may at any time, by written instrument, approve the
accounts of the trustee with the same effect as if the accounts
had been approved by a court having jurisdiction of the subject
matter and of all necessary parties.
D. If any corporate trustee designated to act or at
any time acting hereunder is merged with or transfers
substantially all of its assets to another corporation, or is in
any other manner reorganized or reincorporated, the resulting or
transferee corporation shall become trustee in place of its
corporate predecessor.
E. As often as the trustee shall deem such action to
be advantageous to the trusts or to any beneficiary, the trustee
may, by written instrument, resign and appoint as substitute
trustee with respect to all or any part of the trust principal,
including property as to which the trustee cannot act, any person
(other than me, my spouse, or a descendant of mine), or any bank
or trust company, within or outside the State of Missouri. The
substitute trustee shall have all of the title, powers, and
discretion of the original trustee.
F. A successor trustee may be appointed pursuant to
paragraph B of this Article and the accounts of the trustee may
be approved pursuant to paragraph C of this Article by a majority
in number of my Children who are then living, namely CONSTANCE
HAYNES LATSHAW and ELIZABETH ALBRIGHT REID SCOTT; provided, that
such proposed successor trustee, shall not become a successor
trustee unless and until approved and confirmed by the first
named of the individuals specified hereafter in this sentence who
is then living and is then legally competent to so act, to wit:
RANDAL O. CARLSON, WILLIAM H. SANDERS, JAMES GALE or MATTHEW
MYERS. If a successor trustee needs to be named after the deaths
of both of my Children, then in that event the individual named
hereinabove to approve and confirm my Children's choice of
trustee, who is first named and is then living and legally
competent to act, shall have the sole authority to name a
successor trustee. If any such beneficiary so entitled to act is
then under legal disability, the instrument of appointment or
approval may be signed by the lawful guardian of such person on
his or her behalf.
G. The incumbent trustee shall have all of the title,
powers, and discretion granted to the original trustee, without
court order or act of transfer. No successor trustee shall be
personally liable for any act or failure to act of a predecessor
trustee. With the approval of the person or persons indicated in
paragraph F of this Article who may approve the accounts of the
trustee, a successor trustee may accept the account furnished, if
any, and the property delivered by or for a predecessor trustee
without liability for so doing, and such acceptance shall be a
full and complete discharge to the predecessor trustee. The
persons named to approve or confirm a successor trustee shall
have no liability to any trust or beneficiary hereunder for their
action, and the acceptance of such approval by my Children or any
other beneficiary shall be a full and complete discharge to such
individual charged with that responsibility.
ARTICLE VIII
This Agreement and the trust estates created herein are
expressly declared to be irrevocable, and in furtherance of said
declaration:
A. Settlor hereby expressly waives all rights and
powers, whether to be exercised alone or in conjunction with
others, and regardless of when or from what source Settlor may
heretofore or hereafter have acquired such rights or powers, to
alter, amend, revoke or terminate any trust estate created
herein, or to alter, amend or change in any respect the terms and
conditions of this Agreement, in whole or in part.
B. Settlor hereby renounces any interest, either
vested or contingent, in the income or principal of any trust
estate created hereunder, and relinquishes all possession or
enjoyment of, or right to income from, the property constituting
the trust estate, or any part thereof, and all rights and powers,
whether to be exercised alone or in conjunction with others, to
designate the persons who shall possess and enjoy the property of
the trust estate, or the income therefrom.
C. Notwithstanding any other provision of this
Agreement, no portion of the principal or income of the trust
estate, or any share thereof, shall ever revert to or be
distributed for the benefit of Settlor or Settlor's estate, or
shall it be applied or distributed so as to discharge the legal
obligation of Settlor to support or maintain a beneficiary
hereunder, or to discharge any other legal obligation of Settlor.
It is Settlor's intention that no part of the principal
of any trust estate created hereunder be includible in Settlor's
gross estate for federal estate tax purposes, and all provisions
herein shall be construed, limited and applied so as to carry out
this intention. Any provision hereof which cannot be so
construed, limited or applied shall be null and void.
ARTICLE IX
Throughout this instrument, the masculine shall be
deemed to include the feminine or neuter, the singular shall be
deemed to include the plural, and vice versa.
ARTICLE X
This agreement shall extend to and be binding upon the
personal representatives and assigns of Settlor and upon the
successors of the Trustee.
The Trustee and Settlor have signed this agreement as
of the date written above.
I now sign this trust agree on November 16, 1993.
/s/ John Latshaw
JOHN LATSHAW, Settlor
STATE OF MISSOURI )
) ss:
COUNTY OF JACKSON )
On this 16th day of November, 1993, before me, a Notary
Public within and for said County and State, personally appeared
JOHN LATSHAW, a single man, to me known to be the person
described in and who executed the foregoing instrument and
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the above referred County and State,
the day and year last above written.
/s/ Loretta M. Budiani
Notary Public
My Commission Expires:
May 5, 1995 Imprint of Seal having
the following words:
Loretta M. Budiani
Notary Public
Notary Seal
State of Missouri
The trust created by the foregoing instrument are accepted
as of the day and year last above written.
/s/ Gerard J. Mos III
GERARD J. MOS III, Trustee
STATE OF MISSOURI )
) ss:
COUNTY OF JACKSON )
On this 16th day of November, 1993, before me, a Notary
Public within and for said County and State, personally appeared
GERARD J. MOS III, a married person, to me known to be the person
described in and who executed the foregoing instrument and
acknowledged that he executed the same as his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my Notarial Seal the day and year last above written.
/s/ Randal O. Carlson
Notary Public
My Commission Expires:
Imprint of Stamp with the following words:
Randal O. Carlson
Notary Public State of Missouri
County of Jackson
My Commission Expires April 22, 1995
<PAGE>
SCHEDULE OF PROPERTY
This schedule is attached to and forms a part of that
certain trust agreement executed by JOHN LATSHAW and known as the
CONSTANCE HAYNES LATSHAW IRREVOCABLE TRUST AGREEMENT #2, and
identifies the initial property transferred to the trustee and
held subject to the trust created thereunder.
11/16/93 $ 1,000.00 Cash
11/16/93 24.7827% Partnership Interest CON-LIB Holding
Company, a Missouri general partnership
EXHIBIT 4
ELIZABETH ALBRIGHT REID SCOTT
IRREVOCABLE TRUST AGREEMENT #2
I, JOHN LATSHAW, of Kansas City, Jackson County,
Missouri, hereby transfer and assign to GERARD J. MOS III, as
trustee, the property identified in the attached Schedule of
Property. That property, any property added to the trust in
accordance with the provisions of this instrument, and all
investments and reinvestments thereof ("trust principal") shall
be held upon the following terms:
ARTICLE I
This instrument may be designated the "ELIZABETH
ALBRIGHT REID SCOTT IRREVOCABLE TRUST AGREEMENT #2" and the
initial trust hereby evidenced may be designated the "ELIZABETH
ALBRIGHT REID SCOTT IRREVOCABLE TRUST #2."
ARTICLE II
A. Commencing on the date of this instrument and
until the distribution date (as defined in paragraph B of this
Article), the trustee shall distribute to ELIZABETH ALBRIGHT REID
SCOTT:
1. the net income of the trust in convenient
installments at least as often as semi-annually; and
2. although I do not intend that the Trustee should
ever make discretionary distributions under this paragraph, the
Trustee, in his sole and absolute discretion, may distribute as
much of the principal of the trust, even to the extent of
exhausting principal, as the trustee from time to time determines
to be required for the health, education, maintenance and support
of my said Child, considering all circumstances and factors
believed pertinent by the trustee; and
3. when my Child for whom the trust is named reaches
the age of sixty years, the trustee shall distribute to such
Child one-half of the principal of the trust, as then
constituted, if any; and when such Child reaches the age of
seventy years, the trustee shall distribute to my said Child the
entire balance of the trust, if any.
B. Upon the death of my Child before withdrawal of
the entire balance or complete distribution of the trust, any
accrued but undistributed net income thereof shall be paid over
and distributed to the estate of my said Child, and the remaining
principal of the trust shall be distributed to my then living
descendants, or to specifically identified creditors of my said
Child's estate, in such amount or proportions and in such lawful
interests or estates, whether absolute or in trust, as my Child
may have appointed by specific reference to this power in her
Last Will and Testament. If such power of appointment is for any
reason not effectively or fully exercised by such child, that
part or all of the principal and undistributed net income of the
trust estate not so appointed by her shall be distributed to the
then living lineal descendants of my daughter, ELIZABETH ALBRIGHT
REID SCOTT, per stirpes, or, if none, the Trustee shall pay over
and distribute the principal of the trust, as then constituted,
as follows:
1. To the JOHN LATSHAW FOUNDATION, provided that said
Foundation is at that time a duly organized and existing
Foundation, qualified under Section 501(c)(3) of the Internal
Revenue Code, and provided that a residuary gift to said
Foundation does not constitute a retained interest by Settlor, of
any type or kind whatsoever, which would cause any part of the
principal of any trust estate created hereunder be includible in
Settlor's gross estate for federal estate tax purposes.
2. If the residuary gift under the above paragraph is
not possible for the reasons stated, then in that event the
remaining principal of the trust shall be distributed to ST.
ANDREW'S EPISCOPAL CHURCH presently located at 6401 Wornall
Terrace, Kansas City, Missouri and/or such other organizations
which are qualified under Section 501(c)(3) of the Internal
Revenue Code and which primarily benefit the Greater Kansas City
Metropolitan area, in such amounts and proportions as determined
to be appropriate by the trustee hereunder, and subject to such
further qualifications as to use and investment as may be
properly determined by the trustee, in its sole discretion.
C. Despite the preceding provisions of this
instrument, the trustee may elect to withhold any property
otherwise distributable under paragraph B of this Article to a
beneficiary who has not reached the age of thirty-five years and
may retain the property for that beneficiary in a separate trust
named for the beneficiary, to be distributed to the beneficiary
when he or she reaches the age of thirty-five years, or before
then if the trustee so elects. The trustee shall pay over all of
the net income of the trust retained to such beneficiary and
shall also pay over so much of the principal of the trust so
retained as the trustee determines to be required from time to
time for the health, education, maintenance and support of the
beneficiary for whom the trust is named, considering all
circumstances and factors deemed pertinent by the trustee. If
the beneficiary for whom the trust is named dies before complete
distribution of the trust, any accrued but undistributed net
income thereof shall be distributed to the beneficiary's estate
and the remaining principal of the trust shall be distributed to
my then living lineal descendants in such amounts or proportions
and in such lawful interests or estates, whether absolute or in
trust, as such beneficiary may have appointed by specific
reference to this power in his or her Last Will and Testament.
If such power of appointment is for any reason not effectively or
fully exercised by such child, that part or all of the principal
and undistributed net income of the trust estate not so appointed
by him or her shall be distributed to his or her then living
lineal descendants, per stirpes or, if none, then the Trustee
shall pay over and distribute the principal of the trust, as then
constituted, as follows:
1. To the JOHN LATSHAW FOUNDATION, provided that said
Foundation is at that time a duly organized and existing
Foundation, qualified under Section 501(c)(3) of the Internal
Revenue Code, and provided that a residuary gift to said
Foundation does not constitute a retained interest by Settlor, of
any type or kind whatsoever, which would cause any part of the
principal of any trust estate created hereunder be includible in
Settlor's gross estate for federal estate tax purposes.
2. If the residuary gift under the above paragraph is
not possible for the reasons stated, then in that event the
remaining principal of the trust shall be distributed to ST.
ANDREW'S EPISCOPAL CHURCH presently located at 6401 Wornall
Terrace, Kansas City, Missouri and/or such other organizations
which are qualified under Section 501(c)(3) of the Internal
Revenue Code and which primarily benefit the Greater Kansas City
Metropolitan area, in such amounts and proportions as determined
to be appropriate by the trustee hereunder, and subject to such
further qualifications as to use and investment as may be
properly determined by the trustee, in its sole discretion.
ARTICLE III
A. While it is not my intent that this trust shall
constitute a generation-skipping transfer, notwithstanding any
other provision of this instrument:
1. If a trust created under this instrument (the
"original trust") would otherwise be partially exempt from
generation-skipping tax after the intended allocation of a GST
exemption to it, then, before such allocation and as of the
relevant valuation date under Section 2642 of the Internal
Revenue Code of 1986, as from time to time amended (the "Code"),
with respect to such allocation, trustee may (but need not)
create instead two separate trusts of equal or unequal value
which shall be identical in all other respects to the original
trust, so that the allocation of GST exemption can be made to one
trust which will be entirely exempt from generation-skipping tax.
The two trusts created under this subparagraph (i) shall have the
same name as the original trust except that the trust to which
the GST exemption is allocated shall have the phrase "GST exempt"
added to its name, and (ii) are sometimes referred to herein as
"related." As used in this instrument, the "GST exemption" means
the exemption from generation-skipping tax allowed under Section
2631 of the Code.
2. If property which is held in, or is to be added or
allocated to, a trust pursuant to this instrument is subject to
different treatment for any reason for purposes of, the
generation-skipping tax under Chapter 13 of the Code than other
property being added or allocated to, or also held in, that
trust, then the trustee may (but need not) hold such property
instead as a separate trust that is appropriately designated to
distinguish it from the trust to which the property otherwise
would have been allocated, but that is identical in all other
respects to that trust. The identical trusts resulting from
application of this subparagraph are also sometime referred to
herein as "related."
3. It is my intent that the trustee shall not be
required to create or administer a trust hereunder that is only
partially exempt from generation-skipping taxes, or to commingle
property subject to different treatment for generation-skipping
tax purposes whether because the transferors with respect to the
property are assigned to different generations or otherwise. The
provisions of this paragraph A are intended to enable the trustee
to avoid such situations by empowering the trustee to segregate
trust property (i) that is entirely exempt from
generation-skipping tax from trust property that is not exempt,
or (ii) that is otherwise treated differently from other trust
property for purposes of the generation-skipping tax, and the
provisions of this paragraph A should be applied in a manner
consistent with this intention.
B. To the extent it is consistent with the trustee's
fiduciary obligations, the trustee, in making discretionary
distributions of net income and principal from the related trusts
referred to in paragraph A of this Article, shall take advantage
of the opportunities provided by the creation of such related
trusts to avoid or delay generation-skipping tax when making
discretionary distributions, and to maximize the amount of trust
property that eventually may be distributed to my grandchildren
or more remote descendants without transfer tax of any kind at
the termination of all trusts created under this instrument.
<PAGE>
ARTICLE IV
The provisions of this Article shall apply to each
trust held under this instrument:
A. If at any time a beneficiary eligible to receive
net income or principal distributions is under legal disability,
or in the opinion of the trustee is incapable of properly
managing his or her financial affairs, the trustee may make those
distributions directly to the beneficiary, to a lawful guardian
of the beneficiary, or to a custodian selected by the trustee for
the beneficiary under a Uniform Transfers to Minors Act or
similar applicable law, or may otherwise expend the amounts to be
distributed for the benefit of the beneficiary in such manner as
the trustee considers advisable. As used throughout this
instrument, the term "lawful guardian" shall mean successively in
the order named (i) the court-appointed guardian of the estate,
(ii) either parent (other than me), or (iii) the individual
having personal custody (whether or not a court-appointed
guardian) where no guardian of the estate has been appointed.
B. All net income accrued or undistributed at the
termination of any interest shall be treated as if it had accrued
or been received immediately after termination.
C. Among the circumstances and factors to be
considered by the trustee in determining whether to make
discretionary distributions of principal to a beneficiary are the
other income and assets known to the trustee to be available to
that beneficiary and the advisability of supplementing such
income or assets. As used throughout this instrument, the term
"education" includes, but is not limited to, private schooling at
the elementary and secondary school level, college, graduate and
professional education, and specialized or vocational training.
Notwithstanding the foregoing, no trustee hereunder shall be
required to inquire into and ascertain the income and assets
available to a beneficiary from sources outside the trustee's
control and knowledge.
D. Except as otherwise provided by law, no interest
of any beneficiary shall be subject to anticipation, to claims
for alimony or support, to voluntary transfer without the written
consent of the trustee, or to involuntary transfer in any event.
E. If at any time the trustee shall determine that
the trust is of a size that is no longer economical to
administer, the trustee, without further responsibility, may (but
need not) distribute the trust to the beneficiary for whom the
trust is named.
F. For purposes of determining who is a descendant of
mine or of any other person:
1. Legal adoption before the person adopted reached
the age of twenty-one years shall be the equivalent in all
respects to blood relationship; and
2. A person born out of wedlock and those claiming
through such person shall be deemed to be descendants (i) of the
natural mother and her ancestors, and (ii) if the natural father
acknowledges paternity, of the natural father and his ancestors,
in each case unless a decree of adoption terminates such natural
parent's parental rights.
ARTICLE V
A. The trustee shall have the following powers with
respect to each trust held under this instrument, exercisable in
the discretion of the trustee:
1. To retain for any period of time without
limitation, and without liability for loss or depreciation in
value, any property transferred to the trustee, including
partnership interests (whether general, special, or limited),
even though the trustee would not purchase the property as a
trust investment and though its retention might violate
principles of investment diversification;
2. To sell at public or private sale, wholly or
partly for cash or on credit, contract to sell, grant or exercise
options to buy, convey, transfer, exchange, or lease (for a term
within or extending beyond the term of the trust) any real or
personal property of the trust, and to partition, dedicate, grant
easements in or over, subdivide, improve, and remodel, repair, or
raze improvements on any real property of the trust, and in
general to deal otherwise with the trust property in such manner,
for such prices, and on such terms and conditions as any
individual might do as outright owner of the property;
3. To borrow money at interest rates then prevailing
from any individual, bank, or other source, irrespective of
whether any such individual or bank is then acting as trustee,
and to create security interests in the trust property by
mortgage, pledge, or otherwise;
4. To invest in bonds, common or preferred stocks,
notes, real estate mortgages, common trust funds, shares of
regulated investment companies, partnership interests (whether
general, special, or limited), currencies, or other securities or
property, real or personal, domestic or foreign, including
partial interests, such as life estate, term or remainder
interests, without being limited by any statute or rule of law
governing investments by trustee;
5. To make allocations, divisions, and distributions
of trust property in cash or in kind, or partly in each; to
allocate different kinds or disproportionate shares of property
or undivided interests in property among the beneficiaries or
separate trusts, without liability for, or obligation to make
compensating adjustments by reason of, disproportionate
allocations of unrealized gain for federal income tax purposes;
and to determine the value of any property so allocated, divided,
or distributed;
6. To exercise in person or by general or limited
proxy all voting and other rights, powers, and privileges and to
take all steps to realize all benefits with respect to stock or
other securities; and to enter into or oppose, alone or with
others, voting trusts, mergers, consolidations, foreclosures,
liquidations, reorganizations, or other changes in the financial
structure of any corporation;
7. To cause any security or other property to be
held, without disclosure of any fiduciary relationship, in the
name of the trustee, in the name of a nominee, or in unregistered
form;
8. To pay all expenses incurred in the administration
of the trust, including reasonable compensation to any trustee,
and to employ or appoint and pay reasonable compensation to
accountants, depositaries, investment counsel, attorneys,
attorneys-in-fact, and agents (with or without discretionary
powers);
9. To deal with the fiduciary or fiduciaries or any
other trust or estate, even though the trustee is also the
fiduciary or one of the fiduciaries of the other trust or estate;
10. To compromise or abandon any claim in favor of or
against the trust;
11. To lend money to the personal representative of my
estate, and to purchase property from the personal representative
of my estate and retain the same for any period of time without
limitation, and without liability for loss or depreciation in
value, notwithstanding any risk, unproductivity, or lack of
diversification;
12. To commingle for investment purposes the property
of the trust with the property of any other trust held hereunder,
allocating to each an undivided interest in the commingled
property;
13. To merge and consolidate at any time, despite any
contrary provisions of Article III of this instrument, the trust
property with the trust property of any related trust created
under this instrument and thereafter to administer such trusts as
a single trust hereunder;
14. To receive any property, real or personal, to be
added to the trust, from me in any event (and, if the trustee
consents in writing, from any other person) by lifetime or
testamentary transfer or otherwise;
15. To execute instruments of any kind, including
instruments containing covenants and warranties binding upon and
creating a charge against the trust property and containing
provisions excluding personal liability;
16. To perform all other acts necessary to accomplish
the proper management, investment and distribution of the trust
property; and
17. To retain any business interest transferred to the
trustee, including shares of stock or other interests in or
indebtedness of LATSHAW ENTERPRISES, INC., or any other
corporation or corporations succeeding to the business of that
partnership by consolidation, merger, purchase of assets, or
otherwise, as shareholder, security holder, creditor, partner or
otherwise, for any period of time whatsoever, even though the
interest may constitute all or a large portion of the trust
principal; to comply with the provisions of any agreement
restricting transfer of the interest; to participate in the
conduct of the related business or rely upon others to do so, and
to take or delegate to others discretionary power to take any
action with respect to its management and affairs which an
individual could take as outright owner of the business or the
business interest, including the voting of stock (by separate
trust or otherwise regardless of whether that separate trust will
extend for a term within or beyond the term of the trust) and the
determination of all questions of policy; to execute and amend
partnership agreements and limited liability company agreements,
or amendments to either, specifically including the CON-LIB
HOLDING COMPANY; to participate in any incorporation,
reorganization, merger, consolidation, sale of assets,
recapitalization, liquidation, or dissolution of the business, or
any change in its nature, or in any buy-sell, stock restriction,
or stock redemption agreements; to invest in additional stock or
securities of, or make secured, unsecured, or subordinated loans
to, the business with trust funds; to elect or employ with
compensation, as directors, officers, employees, or agents of the
business, any persons, including a trustee of any trust held
under this instrument, or any director, officer, employee, or
agent of a corporate trustee of the trust or any other trust held
under this instrument without adversely affecting the
compensation to which that trustee would otherwise be entitled;
to rely upon reports of certified public accountants as to the
operations and financial condition of the business, without
independent investigation; to deal with and act for the business
in any capacity, including in the case of a corporate trustee any
banking or trust capacity and the loaning of money out of the
trustee's own funds, and to be compensated therefor; and to sell
or liquidate the business or any interest in the business.
B. The powers granted in this Article shall be in
addition to those granted by law and may be exercised even after
termination of all trusts hereunder until actual distribution of
all trust principal, but not to the extent prohibited by any rule
of law relating to perpetuities.
C. To the extent that such requirements can legally
be waived, no trustee hereunder shall ever be required to give
bond or security as trustee, or to qualify before, be appointed
by or account to any court, or to obtain the order of approval of
any court with respect to the exercise of any power or discretion
granted in this instrument.
D. The trustee's exercise or nonexercise of powers
and discretions in good faith shall be conclusive on all persons.
No person paying money or delivering property to any trustee
hereunder shall be required or privileged to see to its
application. The certificate of the trustee that the trustee is
acting in compliance with this instrument shall fully protect all
persons dealing with a trustee.
E. Irrespective of any other provisions herein, the
trustee is authorized and directed to take such actions as may be
necessary or prudent to preserve and protect any tax elections
which have been made with respect to corporate stock comprising
the trust corpus, including the authority to create and maintain
separate trusts or trust shares for each individual beneficiary.
F. This instrument and all dispositions hereunder
shall be governed by and interpreted in accordance with the laws
of the State of Missouri.
ARTICLE VI
A. Any trustee may resign at any time by giving prior
written notice to the beneficiary or beneficiaries to whom the
current trust income may or must then be distributed.
B. GERARD J. MOS III shall serve as initial trustee
of the trust created herein. From and after the death of GERARD
J. MOS III, my Children then living together with the individual
named to approve and confirm a successor trustee in paragraph F
of this Article, may at any time remove the incumbent trustee by
written notice delivered to that trustee and to the person or
persons indicated in paragraph F of this Article who will appoint
a successor trustee. Except as otherwise provided in paragraphs
D and E of this Article, if GERARD J. MOS III ceases to act as
trustee hereunder for any reason, or if any successor trustee
appointed as hereinafter provided ceases to act as trustee
hereunder for any reason, then the person or persons indicated in
paragraph F of this Article shall, by written instrument, appoint
any person (other than me, a spouse of mine or a descendant of
mine), or any bank or trust company (although it is my preference
that no corporate trustee be utilized hereunder), within or
outside the State of Missouri, as successor trustee.
C. The person or persons indicated in paragraph F of
this Article may at any time, by written instrument, approve the
accounts of the trustee with the same effect as if the accounts
had been approved by a court having jurisdiction of the subject
matter and of all necessary parties.
D. If any corporate trustee designated to act or at
any time acting hereunder is merged with or transfers
substantially all of its assets to another corporation, or is in
any other manner reorganized or reincorporated, the resulting or
transferee corporation shall become trustee in place of its
corporate predecessor.
E. As often as the trustee shall deem such action to
be advantageous to the trusts or to any beneficiary, the trustee
may, by written instrument, resign and appoint as substitute
trustee with respect to all or any part of the trust principal,
including property as to which the trustee cannot act, any person
(other than me, my spouse, or a descendant of mine), or any bank
or trust company, within or outside the State of Missouri. The
substitute trustee shall have all of the title, powers, and
discretion of the original trustee.
F. A successor trustee may be appointed pursuant to
paragraph B of this Article and the accounts of the trustee may
be approved pursuant to paragraph C of this Article by a majority
in number of my Children who are then living, namely ELIZABETH
ALBRIGHT REID SCOTT and CONSTANCE HAYNES LATSHAW; provided, that
such proposed successor trustee, shall not become a successor
trustee unless and until approved and confirmed by the first
named of the individuals specified hereafter in this sentence who
is then living and is then legally competent to so act, to wit:
RANDAL O. CARLSON, WILLIAM H. SANDERS, JAMES GALE or MATTHEW
MYERS. If a successor trustee needs to be named after the deaths
of both of my Children, then in that event the individual named
hereinabove to approve and confirm my Children's choice of
trustee, who is first named and is then living and legally
competent to act, shall have the sole authority to name a
successor trustee. If any such beneficiary so entitled to act is
then under legal disability, the instrument of appointment or
approval may be signed by the lawful guardian of such person on
his or her behalf.
G. The incumbent trustee shall have all of the title,
powers, and discretion granted to the original trustee, without
court order or act of transfer. No successor trustee shall be
personally liable for any act or failure to act of a predecessor
trustee. With the approval of the person or persons indicated in
paragraph F of this Article who may approve the accounts of the
trustee, a successor trustee may accept the account furnished, if
any, and the property delivered by or for a predecessor trustee
without liability for so doing, and such acceptance shall be a
full and complete discharge to the predecessor trustee. The
persons named to approve or confirm a successor trustee shall
have no liability to any trust or beneficiary hereunder for their
action, and the acceptance of such approval by my Children or any
other beneficiary shall be a full and complete discharge to such
individual charged with that responsibility.
ARTICLE VIII
This Agreement and the trust estates created herein are
expressly declared to be irrevocable, and in furtherance of said
declaration:
A. Settlor hereby expressly waives all rights and
powers, whether to be exercised alone or in conjunction with
others, and regardless of when or from what source Settlor may
heretofore or hereafter have acquired such rights or powers, to
alter, amend, revoke or terminate any trust estate created
herein, or to alter, amend or change in any respect the terms and
conditions of this Agreement, in whole or in part.
B. Settlor hereby renounces any interest, either
vested or contingent, in the income or principal of any trust
estate created hereunder, and relinquishes all possession or
enjoyment of, or right to income from, the property constituting
the trust estate, or any part thereof, and all rights and powers,
whether to be exercised alone or in conjunction with others, to
designate the persons who shall possess and enjoy the property of
the trust estate, or the income therefrom.
C. Notwithstanding any other provision of this
Agreement, no portion of the principal or income of the trust
estate, or any share thereof, shall ever revert to or be
distributed for the benefit of Settlor or Settlor's estate, or
shall it be applied or distributed so as to discharge the legal
obligation of Settlor to support or maintain a beneficiary
hereunder, or to discharge any other legal obligation of Settlor.
It is Settlor's intention that no part of the principal
of any trust estate created hereunder be includible in Settlor's
gross estate for federal estate tax purposes, and all provisions
herein shall be construed, limited and applied so as to carry out
this intention. Any provision hereof which cannot be so
construed, limited or applied shall be null and void.
ARTICLE IX
Throughout this instrument, the masculine shall be
deemed to include the feminine or neuter, the singular shall be
deemed to include the plural, and vice versa.
ARTICLE X
This agreement shall extend to and be binding upon the
personal representatives and assigns of Settlor and upon the
successors of the Trustee.
The Trustee and Settlor have signed this agreement as
of the date written above.
I now sign this trust agree on November 16, 1993.
/s/ John Latshaw
JOHN LATSHAW, Settlor
STATE OF MISSOURI )
) ss:
COUNTY OF JACKSON )
On this 16th day of November, 1993, before me, a Notary
Public within and for said County and State, personally appeared
JOHN LATSHAW, a single man, to me known to be the person
described in and who executed the foregoing instrument and
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the above referred County and State,
the day and year last above written.
/s/ Loretta M. Budiani
Notary Public
My Commission Expires:
May 5, 1995 Imprint of Seal having
the following words:
Loretta M. Budiani
Notary Public
Notary Seal
State of Missouri
The trust created by the foregoing instrument are accepted
as of the day and year last above written.
/s/ Gerard J. Mos III
GERARD J. MOS III, Trustee
STATE OF MISSOURI )
) ss:
COUNTY OF JACKSON )
On this 16th day of November, 1993, before me, a Notary
Public within and for said County and State, personally appeared
GERARD J. MOS III, a married person, to me known to be the person
described in and who executed the foregoing instrument and
acknowledged that he executed the same as his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my Notarial Seal the day and year last above written.
/s/ Randal O. Carlson
Notary Public
My Commission Expires:
Imprint of Stamp with the following words:
Randal O. Carlson
Notary Public State of Missouri
County of Jackson
My Commission Expires April 22, 1995
<PAGE>
SCHEDULE OF PROPERTY
This schedule is attached to and forms a part of that
certain trust agreement executed by JOHN LATSHAW and known as the
ELIZABETH ALBRIGHT REID SCOTT IRREVOCABLE TRUST AGREEMENT #2, and
identifies the initial property transferred to the trustee and
held subject to the trust created thereunder.
11/16/93 $ 1,000.00 Cash
11/16/93 24.7827% Partnership Interest CON-LIB Holding
Company, a Missouri general partnership
