GUARANTEE from PRINCIPAL FINANCIAL SERVICES, INC., as Guarantor to THE BANK OF NEW YORK, as Trustee Dated as of October 16, 2006
Exhibit 4.4
from
PRINCIPAL FINANCIAL SERVICES, INC., as Guarantor
to
THE BANK OF NEW YORK, as Trustee
Dated as of October 16, 2006
This Guarantee (this “Guarantee”) is made and entered into as of October 16, 2006, from
PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the
State of Iowa and having its principal office at 000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000, as
guarantor (the “Guarantor”), to THE BANK OF NEW YORK, a New York banking corporation, as trustee
(the “Trustee”). Defined terms used herein without definition shall have the meanings given to them
in the Senior Indenture, dated as of October 11, 2006 between Principal Financial Group, Inc., a
Delaware corporation (the “Company”), and the Trustee, as supplemented by the First Supplemental
Indenture, dated as of October 16, 2006, among the Company, the Guarantor and the Trustee with
respect to the Securities, as defined below, (the “Indenture”).
RECITALS
The Guarantor is a wholly-owned subsidiary of the Company and has duly authorized the
execution and delivery of this Guarantee to provide for the guarantee by the Guarantor for the
benefit of the Holders of the Company’s 6.05% Senior Notes due 2036 (the “Securities”) issued
pursuant to the Indenture.
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the
Holders of the Securities:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
SECTION 1.1 Guarantor Representations and Warranties.
The Guarantor does hereby represent and warrant that it is a corporation duly incorporated and
in good standing under the laws of the State of Iowa, has the power to enter into and perform this
Guarantee and to own its corporate property and assets, has duly authorized the execution and
delivery of this Guarantee by proper corporate action and neither this Guarantee, the
authorization, execution, delivery and performance hereof, the performance of the agreements herein
contained nor the consummation of the transactions herein contemplated will violate in any material
respect any provision of law, any order of any court or agency of government or any agreement,
indenture or other instrument to which the Guarantor is a party or by which it or its property is
bound, or in any material respect be in conflict with or result in a breach of or constitute a
default under any indenture, agreement or other instrument or any provision of its certificate of
incorporation, bylaws or any requirement of law. This Guarantee constitutes the legal, valid
and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its
terms, except as the enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors generally and by
general equitable principles.
ARTICLE II
GUARANTEE OF OBLIGATIONS
SECTION 2.1 Obligations Guaranteed.
The Guarantor hereby unconditionally guarantees (a) to each Holder of a Security authenticated
and delivered by the Trustee or Authenticating Agent, (i) the full and prompt payment of the
principal of, and premium, if any, and interest on, and any Redemption Price with respect to, such
Security, when, where and as the same shall become due and payable, whether at the stated maturity
thereof, by acceleration, call for redemption or otherwise in accordance with the terms of such
Security and the Indenture and (ii) the full and prompt payment of interest on the overdue
principal and interest, if any, on such Security, at the rate specified in such security and to the
extent lawful and (b) to the Trustee the full and prompt payment upon written demand therefor of
all amounts due it in accordance with the terms of the Indenture (collectively, the “Guaranteed
Obligations”). If for any reason the Company shall fail punctually to pay any such Guaranteed
Obligation, the Guarantor hereby agrees to cause any such Guaranteed Obligation to be made
punctually when, where and as the same shall become due and payable, whether at the stated maturity
thereof, by acceleration, call for redemption or otherwise. All payments by the Guarantor hereunder
shall be paid in lawful money of the United States of America. This Guarantee is unsecured and
ranks equally in right of payment with all of the Guarantor’s existing and future senior
indebtedness.
SECTION 2.2 Obligations Unconditional.
The obligations of the Guarantor under this Guarantee shall be absolute, unconditional and
irrevocable and shall constitute a continuing guarantee of payment and not of collectability. Such
obligations shall remain in full force and effect until this Guarantee shall terminate in
accordance with the provisions of Section 5.1 hereof, and, to the maximum extent permitted by
applicable law, such obligations shall not be affected, modified, released or impaired by any state
of facts or the happening from time to time of any event, including, without limitation, any of the
following, whether or not with notice to, or the consent of, the Guarantor:
(a) the waiver, compromise, settlement, release or termination of any or all of the
obligations, covenants or agreements of the Company contained in the Securities or the Indenture,
or of the payment, performance or observance thereof;
(b) the failure to give notice to the Guarantor of the occurrence of any default or an Event
of Default under the terms and provisions of the Securities or the Indenture;
(c) the assignment or purported assignment of any of the obligations, covenants and agreements
contained in this Guarantee;
(d) the extension of the time for payment of any principal of, premium, if any, or interest
on, or any Redemption Price with respect to the Securities or of the time for performance of any
obligations, covenants or agreements under or arising out of the Securities or the Indenture or the
extension or the renewal of any thereof;
(e) the modification or amendment (whether material or otherwise) of any obligation, covenant
or agreement set forth in the Securities or the Indenture;
(f) the taking or the omission to take any of the actions referred to in this Guarantee or in
the Indenture;
(g) any failure, omission or delay on the part of, or the inability of, the Trustee or the
Holders of the Securities to enforce, assert or exercise any right, power or remedy conferred on
the Trustee, such Holders or any other person in this Guarantee or in the Indenture for any reason;
(h) the voluntary or involuntary liquidation, dissolution, merger, consolidation, sale or
other disposition of all or substantially all the assets, marshaling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other similar proceedings affecting
the Company or any or all of its assets, or any allegation or contest of the validity of the
Securities or the Indenture or the disaffirmance of the Securities or the Indenture in any such
proceeding; it being specifically understood, consented and agreed to that this Guarantee shall
remain and continue in full force and effect and shall be enforceable against the Guarantor to the
same extent and with the same force and effect as if such proceedings had not been instituted, and
it is the intent and purpose of this Guarantee that the Guarantor shall and does hereby waive, to
the maximum extent permitted by applicable law, all rights and benefits which might accrue to the
Guarantor by reason of any such proceedings;
(i) any event or action that would, in the absence of this clause, result in the release or
discharge by operation of law of the Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Guarantee;
(j) the default or failure of the Guarantor fully to perform any of its obligations set forth
in this Guarantee;
(k) the release, substitution or replacement of any security pledged for the benefit of the
Holders of the Securities under the Indenture;
(l) the disposition by the Guarantor of any or all of its interest in any capital stock of the
Company, or any change, restructuring or termination of the corporate structure, ownership,
corporate existence or any rights or franchises of the Company;
(m) any other circumstances which might otherwise constitute a legal or equitable discharge or
defense of a surety or a guarantor; or
(n) any other occurrence whatsoever, whether similar or dissimilar to the foregoing.
SECTION 2.3 No Waiver or Set-Off.
The Guarantor agrees that, to the maximum extent permitted by law, (a) no act of commission or
omission of any kind or at any time on the part of the Trustee or any Holder of the Securities, or
their successors and assigns, in respect of any matter whatsoever shall in any way impair the
rights of the Trustee or such Holders to enforce any right, power or benefit under this Guarantee,
and (b) no set-off, counterclaim, reduction, or diminution of any obligation, or any defense of any
kind or nature (other than performance), which the Guarantor or the Company has or may have against
the Trustee or such Holders or any assignee or successor thereof shall be available hereunder to
the Guarantor.
SECTION 2.4 Waiver of Notice; Expenses.
The Guarantor hereby expressly waives notice from the Trustee or the Holders of the Securities
of their acceptance and reliance on this Guarantee. The Guarantor further waives, to the maximum
extent permitted by law, any right that it may have (a) to require the Trustee or the Holders of
the Securities to take action or otherwise proceed against the Company, (b) to require the Trustee
or the Holders of the Securities to proceed against or exhaust any security pledged for the benefit
of the Holders of the Securities under the Indenture or (c) to require the Trustee or the Holders
of the Securities otherwise to enforce, assert or exercise any other right, power or remedy that
may be available to the Trustee or such Holders. The Guarantor agrees to pay all costs, expenses
and fees, including all reasonable attorneys’ fees and expenses, that may be incurred by the
Trustee in enforcing or attempting to enforce this Guarantee or protecting the rights of the
Trustee or the Holders of the Securities following any default on the part of the Guarantor
hereunder, whether the same shall be enforced by suit or otherwise.
SECTION 2.5 Subrogation of Guarantor; Subordination.
Notwithstanding any payment or payments made by the Guarantor, the Guarantor agrees that it
will not enforce, by reason of subrogation, contribution, indemnity or otherwise, any rights the
Trustee or the Holders of the Securities may have against the Company until all of the Guaranteed
Obligations guaranteed hereby shall have been finally, indefeasibly and unconditionally paid in
full. Any claim of the Guarantor against the Company arising from payments made by the Guarantor by
reason of this Guarantee shall be in all respects subordinated to the final, indefeasible,
unconditional, full and complete payment or discharge of all of the Guaranteed Obligations
guaranteed hereby.
SECTION 2.6 Reinstatement.
This Guarantee shall continue to be effective, or be automatically reinstated, as the case may
be, if at any time payment, or any part thereof, made by or on behalf of the Company or the
Guarantor in respect of any of the Securities is rescinded or must otherwise be restored or
returned by the Trustee or any Holder of such Securities for any reason whatsoever, whether upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company, or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for the Company or any substantial part of its properties, or otherwise, all as though such
payment had not been made.
SECTION 2.7 Rights of Holders.
The Guarantor expressly acknowledges that the Trustee has the right to enforce this Guarantee
on behalf of the Holders of the Securities in accordance with and subject to the provisions of the
Indenture.
ARTICLE III
COVENANTS OF THE GUARANTOR
SECTION 3.1 Consolidation or Merger of the Guarantor.
The Guarantor may merge or consolidate with or into any other Person or sell, convey, transfer
or otherwise dispose of all or substantially all of its assets to any Person, if (a) (i) in the
case of a merger or consolidation, the Guarantor or the Company is the surviving Person or (ii) in
the case of a merger or consolidation where the Guarantor or the Company is not the surviving
Person and in the case of any sale, conveyance, transfer or other disposition, the resulting,
surviving or transferee Person is organized and existing under the laws of the United States or a
State thereof or the District of Columbia and such
Person expressly assumes by supplemental agreement all the obligations of the Guarantor under
this Guarantee, (b) immediately after giving effect to such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing and (c) the Guarantor shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel each stating that such merger, consolidation, sale,
conveyance, transfer or other disposition complies with this Section and that all conditions
precedent herein provided for relating to such transaction have been complied with. In the event of
the assumption by a successor Person of the obligations of the Guarantor as provided in clause
(a)(ii) of the immediately preceding sentence, such successor Person shall succeed to and be
substituted for the Guarantor hereunder and all such obligations of the Guarantor shall terminate.
SECTION 3.2 Reports by the Guarantor.
During the term hereof, the Guarantor covenants:
(a) to file with the Trustee, within 30 days after the Guarantor is required to file the same
with the Commission, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Guarantor may be required to file with the Commission
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended; or, if
the Guarantor is not required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission pursuant to Section 314(a) of the Trust
Indenture Act such of the supplementary and periodic information, documents and reports which may
be required pursuant to section 13 of the Securities Exchange Act of 1934, as amended, in respect
of a security listed and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission pursuant to Section 314(a) of the Trust Indenture
Act such additional information, documents and reports with respect to compliance by the Guarantor
with the conditions and covenants provided for in this Guarantee and the Indenture, as may be
required from time to time by such rules and regulations;
(c) to transmit to all Holders of the Securities within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be filed by the Guarantor
pursuant to subsections (a) and (b) of this Section 3.2, as may be required by rules and
regulations prescribed from time to time by the Commission pursuant to Section 314(a) of the Trust
Indenture Act; and
(d) to deliver to the Trustee, within 120 days after the end of each fiscal year of the
Guarantor, a brief certificate from the principal executive officer, principal financial officer,
or principal accounting officer as to his or her knowledge of the Guarantor’s compliance with all
conditions and covenants under this Guarantee. For purposes of this Section 3.2, such compliance
shall be determined without regard to any period of grace or requirement of notice provided under
this Guarantee.
ARTICLE IV
NOTICES
SECTION 4.1 Notices.
All notices, certificates or other communications to the Guarantor hereunder shall be
sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to
the Guarantor addressed to it at Principal Financial Services, Inc. 000 Xxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000, Attention: General Counsel, or at any other address previously furnished in writing to
the Trustee by the Guarantor.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Effective Date; Termination.
The obligations of the Guarantor hereunder shall arise absolutely and unconditionally upon the
date of the initial delivery of and authentication of the Securities. Subject to Section 2.6, this
Guarantee shall terminate on such date as the Indenture is discharged and satisfied.
SECTION 5.2 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide the Trustee with such evidence of compliance with such conditions
precedent, if any, provided for in this Guarantee that relate to the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers’ Certificate.
SECTION 5.3 Remedies Not Exclusive.
No remedy herein conferred upon or reserved to the Trustee or Holders of the Securities is
intended to be exclusive of any other available remedy or remedies, but, to the maximum extent
permitted by law, each and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Guarantee or now or hereafter existing at law or in equity. No delay
or omission to exercise any right or power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right or power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the Trustee and Holders of the Securities to exercise any
remedy reserved to any of them in this Guarantee, to the maximum extent permitted by applicable
law, it shall not be necessary to give any notice. In the event any provision contained in this
Guarantee should be breached, and thereafter duly waived, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach hereunder. To the
maximum extent permitted by applicable law, no waiver, amendment, release or modification of this
Guarantee shall be established by conduct, custom or course of dealing, but solely by an instrument
in writing duly executed by the parties to this Guarantee and consistent with the terms of the
Indenture.
SECTION 5.4 Limitation of Guarantor’s Liability.
Any term or provision of this Guarantee notwithstanding, the Guarantee shall not exceed the
maximum amount that can be guaranteed by the Guarantor without rendering the Guarantee voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
SECTION 5.5 Entire Agreement; Counterparts.
This Guarantee constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the subject matter
hereof and may be executed simultaneously in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same instrument.
SECTION 5.6 Severability.
To the maximum extent permitted by applicable law, the invalidity or unenforceability of any
one or more phrases, sentences, clauses or sections contained in this Guarantee shall not affect
the validity or enforceability of the remaining portions of this Guarantee, or any part thereof.
SECTION 5.7 Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. This Guarantee is subject to the
Trust Indenture Act and if any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required by the Trust Indenture Act to be a part of and govern this
Guarantee, the latter provision shall control. If any provision of this Guarantee modifies or
excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Guarantee as so modified, or to be excluded, as the case
may be, whether or not such provision of this Guarantee refers expressly to such provision of the
Trust Indenture Act. The Guarantor shall be an “obligor” with respect to the Securities as such
term is defined in and solely for the purposes of the Trust Indenture Act and shall comply with
those provisions of the Indenture compliance with which is required by an “obligor” under the Trust
Indenture Act.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
| PRINCIPAL FINANCIAL SERVICES, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx
|
|||||
| Title: Executive Vice President & Chief Financial Officer | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
|||||
| Title: Senior Vice President & Corporate Secretary | ||||||
