EXHIBIT 4.5
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PREFERRED SECURITIES GUARANTEE AGREEMENT
FBL FINANCIAL GROUP CAPITAL TRUST
Dated as of May 30, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation
ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee
SECTION 2.2 Waiver of Notice and Demand
SECTION 2.3 Obligations Not Affected
SECTION 2.4 Rights of Holders
SECTION 2.5 Guarantee of Payment
SECTION 2.6 Subrogation
SECTION 2.7 Independent Obligations
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1 Limitation of Transactions
SECTION 3.2 Ranking
ARTICLE IV
TERMINATION
SECTION 4.1 Termination
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Successors and Assigns
SECTION 5.2 Amendments
SECTION 5.3 Notices
SECTION 5.4 Benefit
SECTION 5.5 Execution in Counterparts
SECTION 5.6 Governing Law
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of May 30, 1997, is executed and delivered by FBL Financial Group, Inc., an
Iowa corporation (the "Guarantor"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of FBL
Financial Group Capital Trust, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to the Declaration (as defined herein), the Issuer is
issuing on the date hereof 97,000 Preferred Securities, having an aggregate
liquidation amount of $97,000,000, such Preferred securities being designated
the 5% Preferred Securities (the "Preferred Securities").
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders the Guarantee Payments (as defined herein).
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Preferred Securities Guarantee for the
benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution of
this Preferred Securities Guarantee have the same meaning when used in this
Preferred Securities Guarantee unless otherwise defined in this Preferred
Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee has
the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(f) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"DECLARATION" means the Declaration of Trust, dated as of May 30, 1997,
as amended, modified or supplemented from time to time, among the trustees, the
Issuer, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Preferred
Securities to the extent the Issuer has funds legally available therefor at such
time, (ii) the redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price") to the extent
the Issuer has funds legally available therefor at such time, with respect to
any Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary termination and liquidation of the Issuer (other than
in connection with the distribution of Notes to the Holders in exchange for
Preferred Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer has
funds legally available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution").
"HOLDER" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor.
"MAJORITY IN LIQUIDATION AMOUNT OF THE PREFERRED SECURITIES" means, a
vote by the Holder(s) of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities. In determining
whether the Holders of the requisite amount of Preferred Securities have voted,
Preferred Securities which are owned by the Guarantor on the Preferred
Securities shall be disregarded for the purpose of any such determination.
"NOTE" means the Note dated as of May 30, 1997, in the principal amount
of $100,000,000 and any Note or Notes supplemental thereto pursuant to which the
Notes are to be issued to the Administrative Trustees (as defined in the
Declaration) of the Issuer.
"NOTE AGREEMENT" means the Subordinated Deferrable Interest Note
Agreement dated as of May 30, 1997 pursuant to which the Notes are issued by the
Guarantor to the Trust (as defined in the Declaration).
"NOTES" means the subordinated deferrable interest notes to be issued
by the Guarantor designated the 5% Subordinated Deferrable Interest Notes due
June 30, 2047 held by the Trust (as defined in the Declaration) of the Issuer.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert other than the
defense of payment. The Guarantor's obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 2.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Notwithstanding anything to the contrary herein, the Guarantor retains all of
its rights under the Note Agreement to extend the interest payment period on the
Notes (in accordance with the terms of the Note Agreement) and the Guarantor
shall not be obligated hereunder to make any Guarantee Payments during any
Extended Interest Payment Period (as defined in the Note Agreement) with respect
to the Distributions (as defined in the Declaration) on the Preferred
Securities.
SECTION 2.3 Obligations Not Affected.
Except as otherwise provided herein, the obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) The extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sums payable that results from the extension of any interest payment period on
the Notes permitted by the Note Agreement);
(c) Any failure, omission, delay or lack of diligence on the part of
the Administrative Trustees (as defined in the Declaration) or the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred on
the Administrative Trustees (as defined in the Declaration) or the Holders
pursuant to the terms of the Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) Any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) The settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 1.3 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or
any defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Preferred Securities Guarantee.
SECTION 2.4 Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Holders in respect of this Preferred
Securities Guarantee.
(b) Any Holder may, to the extent permitted under applicable law,
institute a legal proceeding directly against the Guarantor to enforce the
Holder's rights under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, or any other person or
entity. If the Guarantor has failed to make a Guarantee Payment, a Holder may
directly institute a proceeding against the Guarantor for enforcement of this
Preferred Securities Guarantee for such payment to the Holder, and the amount of
the payment will be based on the Holder's pro rata share of the amount due and
owing on all of the Preferred Securities. The Guarantor hereby waives any right
or remedy to require that any action on this Preferred Securities Guarantee be
brought first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
SECTION 2.5 Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 2.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Preferred Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 2.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 1.3 hereof.
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, the Guarantor
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Guarantor's stock (which includes Class A Common Stock, Class B Common Stock and
preferred stock), (ii) make any payment of principal, interest, or premium, if
any, on or repay, repurchase or redeem any debt securities of the Guarantor that
rank pari passu with or junior in right of payment to the Notes or (iii) make
any guarantee payments with respect to any guarantee by the Guarantor of any
securities of any subsidiary of the Guarantor if such guarantee ranks pari passu
with or junior in right of payment to the Notes (other than (a) dividends or
distributions in shares of or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholder's rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under this
Preferred Securities Guarantee, (d) as a direct result of, and only to the
extent required in order to avoid the issuance of fractional shares of preferred
stock following, a reclassification of the Guarantor's preferred stock or the
exchange or conversion of one class or series of the Guarantor's preferred stock
for another class or series of the Guarantor's preferred stock or pursuant to an
acquisition in which fractional shares of the Guarantor's preferred stock would
otherwise be issued, (e) the purchase of fractional interests in shares of the
Guarantor's preferred stock pursuant to the conversion or exchange provisions of
such Preferred stock or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common stock or rights
under any benefit plan for directors, officers, agents or employees of the
Guarantor or its Affiliates or Subsidiaries or any of the Guarantor's dividend
reinvestment or director, officer, agent or employee stock purchase plans), if
at such time (i) an Event of Default (as defined in the Note Agreement) shall
have occurred and be continuing, or would occur upon the taking of any action
specified in clauses (i) through (iii) above, (ii) there shall have occurred any
event of which the Guarantor has actual knowledge that (a) is, or with the
giving of notice or the lapse of time, or both, would be an Event of Default (as
defined in the Note Agreement) and (b) in respect of which the Guarantor shall
not have taken reasonable steps to cure, (iii) the Guarantor shall be in default
with respect to its payment of any obligations under this Preferred Securities
Guarantee or (iv) the Guarantor shall have given notice of its election of the
exercise of its right to extend the interest payment period pursuant to Section
14.01 of the Note Agreement and any such extension shall be continuing.
SECTION 3.2 Ranking.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all Senior Indebtedness (as defined in the Note Agreement), to the
same extent and in the same manner that the Notes are subordinated to Senior
Indebtedness pursuant to the Note Agreement, it being understood that the terms
of Article XIII of the Note Agreementshall apply to the obligations of the
Guarantor under this Preferred Securities Guarantee as if (x) such Article XIII
were set forth herein in full and (y) such obligations were substituted for the
term "Notes" appearing in such Article XV, (ii) Subordinate and junior in right
of payment to all other liabilities of the Guarantor, except those liabilities
of the Guarantor made pari passu or subordinate by their terms, (iii) pari passu
with the most senior preferred or preference stock now or hereafter issued by
the Guarantor and any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred stock of any Affiliate of the Guarantor, and (iv)
senior to the Guarantor's common stock.
ARTICLE IV
TERMINATION
SECTION 4.1 Termination.
This Preferred Securities Guarantee shall terminate upon full payment
of the Redemption Price of all Preferred Securities, or upon liquidation of the
Issuer, the full payment of the amounts payable in accordance with the
Declaration or the distribution of the Notes to the Holders of all of the
Preferred Securities. Notwithstanding the foregoing, this Preferred Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid under the
Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding.
SECTION 5.2 Amendments.
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of a Majority in liquidation amount of the
Preferred Securities. The provisions of the Declaration with respect to consents
to amendments thereof (whether at a meeting or otherwise) shall apply to the
giving of such approval.
SECTION 5.3 Notices.
All notices provided for in this Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
FBL Financial Group, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
Attention: Chief Executive Officer
(b) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
(d) If given to the Issuer, in care of the Administrative Trustees at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders):
FBL Financial Group Capital Trust
c/o FBL Financial Group, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 5.4 Benefit.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and is not separately transferable from the
Preferred Securities.
SECTION 5.5 Execution in Counterparts.
This Preferred Securities Guarantee may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
constitute but one and the same instrument.
SECTION 5.6 Governing Law.
This Preferred Securities Guarantee shall be governed by, and construed
and interpreted in accordance with, the laws of the state of Iowa, without
regard to conflicts of law principles thereof.
IN WITNESS WHEREOF, this Preferred Securities Guarantee is executed as
of the day and year first above written.
FBL FINANCIAL GROUP, INC. AS GUARANTOR
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Chief Operating Officer
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