EXHIBIT 4.9
GUARANTEE
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged,
and in connection with that certain funding agreement (the "Funding Agreement"),
entered into by and between Principal Life Insurance Company, an Iowa insurance
company ("Principal Life"), and Principal Life Income Fundings Trust o - o, a
New York common law trust (the "Trust"), relating to the notes (the "Notes")
issued by the Trust, Principal Financial Group, Inc., a Delaware corporation and
the indirect parent company of Principal Life (the "Guarantor"), hereby
furnishes to the Trust its full and unconditional guarantee of the Guaranteed
Amounts (as hereinafter defined) as follows:
1. GUARANTEE.
(a) The Guarantor hereby fully, irrevocably, absolutely and
unconditionally guarantees, as a guarantee of payment and not merely as a
guarantee of collection, immediate payment when due to the Trust any payments
required to be made by Principal Life to the Trust under the Funding Agreement
which shall become due and payable regardless of whether such payment is due at
maturity, on an interest payment date or as a result of redemption or otherwise
(the "Scheduled Payments") but shall be unpaid by Principal Life (the
"Guaranteed Amounts"). Notwithstanding anything to the contrary contained
herein, in no event shall the Guaranteed Amounts exceed the Deposit (as defined
in the Funding Agreement) of the Funding Agreement, plus accrued but unpaid
interest and any other amounts due and owing under the Funding Agreement, less
any amounts paid by Principal Life to the Trust.
(b) In the event that Principal Life fails to make a Scheduled
Payment in full when due (the "Payment Notice Date"), then the Trust or
Citibank, N.A., as indenture trustee for the benefit of the holders of the Notes
(the "Indenture Trustee"), pursuant to the indenture (the "Indenture") between
the Trust and the Indenture Trustee, may present the Guarantor with notice
(each, a "Payment Notice") of such failure in writing on or after the Payment
Notice Date. The Payment Notice shall identify (1) the Funding Agreement, (2)
the Trust, (3) the Payment Notice Date and (4) the amount of the Scheduled
Payments not paid by Principal Life to the Trust as of the Payment Notice Date.
Upon receipt of such Payment Notice, the Guarantor will immediately pay the
Guaranteed Amounts pursuant to Section 7.
(c) In the event that, after receipt of a Payment Notice from
the Trust, the Guarantor fails to make immediate payment to the Trust or the
Indenture Trustee of the Guaranteed Amounts, then the Trust and the Indenture
Trustee may enforce the obligations of the Guarantor under this Guarantee,
including by immediately bringing suit directly against the Guarantor (without
first bringing suit against Principal Life) for the Guaranteed Amounts not paid
to the Trust as of the Payment Notice Date.
(d) This Guarantee is an unsecured, unsubordinated and
contingent obligation of the Guarantor and ranks equally with all other
unsecured and unsubordinated obligations of the Guarantor.
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2. TERMINATION. This Guarantee is a continuing and irrevocable
guarantee of the Guaranteed Amounts now or hereafter existing and shall
terminate and be of no further force and effect with respect to the Funding
Agreement and the Notes upon the full payment of the Scheduled Payments or upon
the earlier extinguishment of the obligations of Principal Life under the
Funding Agreement.
3. AMENDMENTS. Subject to the trust agreement relating to the Trust and
the Indenture, no provision of this Guarantee may be waived, amended,
supplemented or modified, except by a written instrument executed by the Trust
and the Guarantor.
4. ASSIGNMENT; GOVERNING LAW. This Guarantee shall inure to the benefit
of the Trust and its successors, assigns and pledgees. This Guarantee shall be
governed by, and construed in accordance with, the laws of the State of New York
without regard to conflict of law principles.
5. NOTICES. All notices given pursuant to this Guarantee shall be in
writing, and shall either be delivered, mailed or telecopied to the locations
listed below or at such other address or to the attention of such other persons
as such party shall have designated for such purpose in a written notice
complying as to delivery with the terms of this Section 5. Each such notice
shall be effective (i) if given by telecopy, when transmitted to the applicable
number so specified in this Section 5 (such notice shall also be sent by mail,
with first class postage prepaid), (ii) if given by mail, three days after
deposit in the mails with first class postage prepaid, or (iii) if given by any
other means, when actually delivered at such address.
If to the Guarantor:
Principal Financial Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: o
Telephone: o
Facsimile: o
If to the Trust:
Principal Life Income Fundings Trust (followed by the number of the
Trust specified in this Guarantee)
c/o U.S. Bank Trust National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Citibank, N.A.
Citibank Agency and Trust
000 Xxxx Xxxxxx, 14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants that: (i) it is duly organized and in good standing under the laws of
the jurisdiction of its organization and has full capacity and right to make and
perform this Guarantee, and all necessary authority has been obtained; (ii) this
Guarantee constitutes a legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights and general principles
of equity, regardless of whether enforcement is sought in a proceeding in equity
or at law; (iii) the making and performance of this Guarantee does not and will
not violate the provisions of any applicable law, regulation or order, and does
not and will not result in the breach of, or constitute a default under, any
material agreement, instrument or document to which it is a party or by which it
or any of its property may be bound or affected, except to the extent disclosed
in the registration statement registering the issuance of this Guarantee and the
Funding Agreement, as amended, supplemented or modified from time to time (the
"Registration Statement"), and to the extent that any such violation, breach or
default does not result in a material adverse effect on the Guarantor; and (iv)
all consents, approvals, licenses and authorizations of, and filings and
registrations with, any governmental authority required under applicable law and
regulations for the making and performance of this Guarantee have been obtained
or made and are in full force and effect, except to the extent disclosed in the
Registration Statement and to the extent that the failure to acquire any such
consent, approval, license, authorization, filing or registration does not
result in a material adverse effect on the Guarantor.
7. NOTICE OF, AND CONSENT TO, SECURITY INTEREST. The Trust hereby
notifies the Guarantor that it has granted to the Indenture Trustee, on behalf
of the holders of the Notes, a security interest in the Collateral (as defined
in the Indenture), including, but not limited to, any and all payment to be made
by the Guarantor to the Trust under this Guarantee. The Trust hereby notifies
the Guarantor that it has collaterally assigned to the Indenture Trustee, for
the benefit of the holders of the Notes, this Guarantee. The Guarantor, by
executing this Guarantee, hereby (i) affirms that it has made or simultaneously
will make changes to its books and records to reflect such security interest and
collateral assignment, (ii) consents to the security interest granted, and
collateral assignment made, by the Trust to the Indenture Trustee of this
Guarantee, (iii) agrees to make all payments due under this Guarantee to the
Collection Account (as defined in the Indenture) or any other account designated
in writing to the Guarantor by the Indenture Trustee and (iv) agrees to comply
with all orders of the Indenture Trustee with respect to this Guarantee without
any further consent from the Trust.
8. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, THE GUARANTOR WAIVES TRIAL BY JURY WITH RESPECT TO ANY ACTION,
CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF THIS GUARANTEE. THIS GUARANTEE
REPRESENTS THE FINAL AGREEMENT BETWEEN THE GUARANTOR AND THE TRUST AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS AMONG SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG SUCH
PARTIES.
PRINCIPAL FINANCIAL GROUP, INC.
By:
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Name:
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Title:
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Date: The Effective Date (as defined in the Funding
Agreement)
Acknowledged and Agreed:
THE PRINCIPAL LIFE INCOME FUNDINGS
TRUST DESIGNATED IN THIS GUARANTEE
By:
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Name:
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Title:
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Date: The Effective Date (as defined in the Funding
Agreement)
