UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 21, 2009 (May 18, 2009)
PRINCIPAL FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of |
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1-16725 (Commission file number) |
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42-1520346 (I.R.S. Employer |
711 High Street, Des Moines, Iowa 50392
(Address of principal executive offices)
(515) 247-5111
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On May 21, 2009, Principal Financial Group, Inc. (the Company) issued $400,000,000 aggregate principal amount of its 7.875% Senior Notes due 2014 (the 2014 Notes) and $350,000,000 aggregate principal amount of its 8.875% Senior Notes due 2019 (the 2019 Notes and, together with the 2014 Notes, the Notes). The Notes were issued pursuant to the Senior Indenture, dated as of May 21, 2009 (the Senior Indenture), among the Company, Principal Financial Services, Inc. (PFSI) and The Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented by the First Supplemental Indenture, dated as of May 21, 2009 (the First Supplemental Indenture), with respect to the 2014 Notes, and the Second Supplemental Indenture, dated as of May 21, 2009 (the Second Supplemental Indenture), with respect to the 2019 Notes. The 2014 Notes and 2019 Notes are fully and unconditionally guaranteed by PFSI pursuant to separate Guarantees, each dated as of May 21, 2009 (together, the Guarantees).
The Notes were sold pursuant to an effective automatic shelf registration statement on Form S-3 (the Registration Statement) (File Nos. 333-151582 and 333-151582-04) which became effective upon filing with the Securities and Exchange Commission on June 11, 2008. The closing of the sale of the Notes occurred on May 21, 2009. The Senior Indenture, the First Supplemental Indenture with respect to the 2014 Notes (including the form of 2014 Notes), the Second Supplemental Indenture with respect to the 2019 Notes (including the form of 2019 Notes), the Guarantee of PFSI with respect to the 2014 Notes and the Guarantee of PFSI with respect to the 2019 Notes are filed hereto as Exhibits 4.1, 4.2, 4.3, 4.4 and 4.5, respectively, and are incorporated by reference herein.
Item 8.01 Other Events.
In connection with the issuance and sale of the Notes, the Company entered into the Underwriting Agreement, dated May 18, 2009 (the Underwriting Agreement), among the Company, PFSI and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as representatives of the underwriters named in Schedule I thereto. A copy of the Underwriting Agreement is filed as Exhibit 1.1 hereto.
A copy of the opinion of Debevoise & Plimpton LLP, relating to the validity of the Notes and the Guarantees is filed as Exhibit 5.1 hereto, and a copy of the opinion of Karen E. Shaff, Executive Vice President and General Counsel of the Company and PFSI, relating to certain legal matters relating to the issuance of the Guarantees is filed as Exhibit 5.2 hereto.
Item 9.01 Financial Statements and Exhibits.
The exhibits to this Current Report on Form 8-K are hereby incorporated by reference into the Registration Statement.
(d) Exhibits.
Exhibit No. |
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Description |
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Exhibit 1.1 |
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Underwriting Agreement, dated May 18, 2009, among Principal Financial Group, Inc., Principal Financial Services, Inc. and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as representatives of the underwriters named in Schedule I thereto. |
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Exhibit 4.1 |
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Senior Indenture, dated as of May 21, 2009, among Principal Financial Group, Inc., as issuer, Principal Financial Services, Inc., as guarantor, and The Bank of New York Mellon Trust Company, as trustee. |
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Exhibit 4.2 |
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First Supplemental Indenture (including the form of 2014 Notes), dated as of May 21, 2009, among Principal Financial Group, Inc., as issuer, Principal Financial Services, Inc., as guarantor, and The Bank of New York Mellon Trust Company, as trustee. |
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Exhibit 4.3 |
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Second Supplemental Indenture (including the form of 2019 Notes), dated as of May 21, 2009, among Principal Financial Group, Inc., as issuer, Principal Financial Services, Inc., as guarantor, and The Bank of New York Mellon Trust Company, as trustee. |
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Exhibit 4.4 |
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Guarantee from Principal Financial Services, Inc. with respect to the 7.875% Senior Notes due 2014. |
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Exhibit 4.5 |
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Guarantee from Principal Financial Services, Inc. with respect to the 8.875% Senior Notes due 2019. |
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Exhibit 5.1 |
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Opinion of Debevoise & Plimpton LLP. |
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Exhibit 5.2 |
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Opinion of Karen E. Shaff, Executive Vice President and General Counsel of Principal Financial Group, Inc. and Principal Financial Services, Inc. |
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Exhibit 23.1 |
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Consent of Debevoise & Plimpton LLP (contained in Exhibit 5.1). |
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Exhibit 23.2 |
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Consent of Karen E. Shaff, Executive Vice President and General Counsel of Principal Financial Group, Inc. and Principal Financial Services, Inc. (contained in Exhibit 5.2). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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PRINCIPAL FINANCIAL GROUP, INC. |
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By: |
/s/ Joyce N. Hoffman |
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Name: |
Joyce N. Hoffman |
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Title: |
Senior Vice President and |
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Corporate Secretary |
Date: May 21, 2009
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Exhibit 1.1
Execution Copy
Principal Financial Group, Inc.
$400,000,000 of 7.875% Senior Notes due 2014
$350,000,000 of 8.875% Senior Notes due 2019
Underwriting Agreement
May 18, 2009
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
As representatives of the several underwriters
named in Schedule I hereto
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Principal Financial Group, Inc., a Delaware corporation (the Company), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the Underwriters), and for whom each of you are acting as representatives (the Representatives), an aggregate of $400,000,000 principal amount of the Companys 7.875% Senior Notes due 2014 (the 2014 Notes) and an aggregate of $350,000,000 principal amount of the Companys 8.875% Senior Notes due 2019 (the 2019 Notes and, together with the 2014 Notes, the Securities) to be issued pursuant to the Indenture (as defined below).
Principal Financial Services, Inc., an Iowa corporation (PFS), will fully and unconditionally guarantee each series of Securities in accordance with the applicable terms of the Indenture (collectively, the Guarantees).
1. Each of the Company and PFS jointly and severally represents and warrants to, and agrees with, each of the Underwriters that:
(a) An automatic shelf registration statement as defined in Rule 405 under the Securities Act of 1933, as amended (the Act), on Form S-3 (File Nos. 333-151582 and 333-151582-04) in respect of the Securities and the Guarantees has been filed with the Securities and Exchange Commission (the Commission) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company or PFS, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company or PFS; the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the Basic Prospectus; the Basic Prospectus, together with the preliminary prospectus supplement dated May 18, 2009 to the Basic Prospectus relating to the Securities and the Guarantees, filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called the Preliminary Prospectus; the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including the Prospectus (as defined below) that is deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the Registration Statement; the Basic Prospectus, together with the final prospectus supplement dated the date hereof relating to the Securities and the Guarantees, filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the Prospectus; any reference herein to the Basic Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities and the Guarantees filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the Exchange Act), and incorporated therein, in each case after the date of the Basic Prospectus, the Preliminary Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any issuer free writing prospectus as defined in Rule 433 under the Act relating to the Securities and the Guarantees is hereinafter called an Issuer Free Writing Prospectus;
(b) No order preventing or suspending the use of the Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the Trust Indenture Act), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the
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light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or PFS by an Underwriter through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 5:06 p.m. (Eastern time) on the date of this Agreement; the Preliminary Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof and substantially in the form attached as Exhibit A to Schedule II(a) hereto (the Final Term Sheet) (collectively, the Pricing Disclosure Package) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(b) hereto as of its date did not conflict with the information contained in the Registration Statement and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company or PFS by an Underwriter through the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Disclosure Package and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents, at its time of filing with the Commission, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission or become effective, as the case may be, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or PFS by an Underwriter through the Representatives expressly for use therein; and no such documents were filed with the Commission since the Commissions close of business
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on the business day immediately prior to the date of this Agreement except as set forth on Schedule II(c) hereto;
(e) The Registration Statement conformed, as of the filing by the Company with the Commission of its Annual Report on Form 10-K for the year ended December 31, 2008, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement (within the meaning of the rules and regulations of the Commission under the Act) and as of the date of the Prospectus and as of the applicable filing date of any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or PFS by an Underwriter through the Representatives expressly for use therein;
(f) Each of PFS, Principal Life Insurance Company, an Iowa insurance company (PLIC), and Principal Global Investors LLC, a Delaware limited liability company (together with PFS and PLIC, the Significant Subsidiaries), is a significant subsidiary, as such term is defined in Rule 405 under the Act, and the Company has no other subsidiary that is a significant subsidiary within the meaning of such Rule 405;
(g) Neither the Company nor any of its Significant Subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, except for such losses or interferences as would not have a material adverse effect on the general affairs, management, financial position, stockholders equity or results of operations of the Company and its subsidiaries considered as a whole (Material Adverse Effect); and, since the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there has not been any (i)(A) decrease in the outstanding capital stock of the Company in excess of 10 million shares or (B) increase in the consolidated long-term debt of the Company in excess of $10,000,000 except for the incurrence of debt as contemplated by this Agreement or (ii) material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders equity or results of operations of the Company and its Significant Subsidiaries, in each case, otherwise than as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
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(h) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified or in good standing would not have a Material Adverse Effect; and each Significant Subsidiary has been duly incorporated and is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus, and has been duly qualified as a foreign corporation or limited liability company for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to be so qualified or in good standing would not have a Material Adverse Effect;
(i) The Company has an authorized capitalization as set forth in the Pricing Disclosure Package and the Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and all of the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(j) The Securities and the Guarantees have been duly authorized by the Company and PFS, respectively, and, when issued and delivered by the Company and PFS, respectively, pursuant to this Agreement and the Indenture against payment therefor and, in the case of the Securities, when duly authenticated and delivered by the Trustee, the Securities and the Guarantees will constitute valid and legally binding obligations of the Company and PFS, as applicable, enforceable in accordance with their respective terms subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors rights and to general equitable principles, and will be entitled to the benefits provided by the Indenture to be dated as of May 21, 2009 (the Basic Indenture) among the Company, PFS, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as amended and supplemented by the First Supplemental Indenture thereto to be dated as of May 21, 2009 (the First Supplemental Indenture) among the Company, PFS, as guarantor, and the Trustee relating to the 2014 Notes and the Second Supplemental Indenture thereto to be dated as of May 21, 2009 (together with the First Supplemental Indenture, the Supplemental Indentures) among the Company, PFS, as guarantor, and the Trustee relating to the 2019 Notes (together with the Basic Indenture, as so amended and supplemented, and including the terms of the Securities set forth in the order of the
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Company thereunder, the Indenture) under which they are to be issued; this Agreement has been duly authorized, executed and delivered by the Company and PFS; the Indenture has been duly authorized by the Company and PFS and duly qualified under the Trust Indenture Act and, when the Basic Indenture and the Supplemental Indentures have been duly executed and delivered by the Company, PFS and the Trustee, as applicable, will constitute a valid and legally binding obligation of the Company and PFS, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors rights and to general equitable principles; and the Securities, the Guarantees and the Indenture will conform to the descriptions thereof in the Pricing Disclosure Package and the Prospectus in all material respects;
(k) The issue and sale of the Securities by the Company, the issuance by PFS of the Guarantees and the compliance by the Company and PFS with all of the provisions of the Securities, the Indenture, the Guarantees and this Agreement, as applicable, and the consummation of the transactions by the Company and PFS, as applicable, herein and therein contemplated (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject except for such conflict, breach, violation or default that would not have a Material Adverse Effect or have a material adverse effect on the consummation of the transactions contemplated by this Agreement; (ii) will not result in any violation of (A) the provisions of the Certificate of Incorporation or By-laws of the Company or similar organizational documents of the Significant Subsidiaries or (B) any existing statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties, except for, in the case of clause (B), such violation that would not have a Material Adverse Effect or have a material adverse effect on the consummation of the transactions contemplated by this Agreement; and (iii) do not require any consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is to be obtained by the Company or PFS for the issue and sale by the Company of the Securities, the issuance by PFS of the Guarantees or the consummation by the Company or PFS of the transactions contemplated by this Agreement, the Indenture or the Guarantees, as applicable, except (x) such as have been obtained under the Act and the Trust Indenture Act, (y) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Securities by the Underwriters, or (z) where the failure to obtain or make such consent, approval, authorization, order, registration or qualification would not have a Material Adverse Effect or have a material adverse effect on the consummation of the transactions contemplated by this Agreement;
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(l) Other than as set forth in the Pricing Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its Significant Subsidiaries is a party or of which any property of the Company or any of its Significant Subsidiaries is the subject, which, would reasonably be expected to individually or in the aggregate, have a Material Adverse Effect; and, to the best of the Companys and PFS knowledge, no such proceedings are threatened or contemplated by governmental authorities or others;
(m) Neither the Company nor any of its Significant Subsidiaries is in violation of (i) its Certificate of Incorporation or By-laws or similar organizational documents or (ii) in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for, in the case of clause (ii) above, such violation that would not have a Material Adverse Effect;
(n) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions Description of the Notes and Description of the Debt Securities, when taken together, insofar as they purport to constitute a summary of the terms of the Securities, the Indenture and the Guarantees, are accurate in all material respects;
(o) Neither the Company nor PFS is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof and the issuance of the Guarantees, will be an investment company, as such term is defined in the Investment Company Act of 1940, as amended (the Investment Company Act); it being understood that certain separate accounts of PLIC are registered as investment companies under the Investment Company Act in the ordinary course of PLICs business;
(p) (i) (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a well-known seasoned issuer as defined in Rule 405 under the Act; and
(ii) at the earliest time after the filing of the Registration Statement that the Company, PFS or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities or the Guarantees, neither the Company nor PFS was an ineligible issuer as defined in Rule 405 under the Act;
(q) Ernst & Young LLP, who have audited certain of the financial statements of the Company and its subsidiaries and the effectiveness of the Companys internal
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control over financial reporting and whose report is incorporated by reference in the Preliminary Prospectus and the Prospectus and who have delivered letters referred to in Section 8(e) hereof, are an independent registered public accounting firm as required by the Act and the rules and regulations of the Commission thereunder;
(r) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Companys principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States (GAAP). The Companys internal control over financial reporting is effective to perform the functions for which it was established and the Company is not aware of any material weaknesses in its internal control over financial reporting;
(s) Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, there has been no change in the Companys internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting;
(t) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Companys principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective to perform the functions for which they were established;
(u) The audited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in all material respects the consolidated financial position of the Company and its subsidiaries at the dates indicated, to the extent required under the Exchange Act, and the consolidated results of operations, stockholders equity and cash flows of the Company and its subsidiaries for the periods specified. Such financial statements have been prepared in conformity with GAAP applied on a consistent basis (except as noted with respect to the adoption of new accounting standards) throughout the periods involved. The supporting schedules, if any, included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus present fairly in all material respects in accordance with GAAP the information required to be stated therein;
(v) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would
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result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the FCPA), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;
(w) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with (i) applicable financial recordkeeping requirements in all material respects, (ii) all applicable reporting requirements in all material respects and (iii) the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened; and
(x) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, (a) at a purchase price of 99.35% of the principal amount thereof, the principal amount of 2014 Notes and (b) at a purchase price of 99.35% of the principal amount thereof, the principal amount of 2019 Notes, in each case, as set forth opposite the name of such Underwriter in Schedule I hereto (plus an additional amount of Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof).
3. Upon the authorization by the Representatives of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Pricing Disclosure Package.
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4. (a) The Securities of each series to be purchased by each Underwriter hereunder will be represented by one or more definitive global notes in book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company (DTC) or its designated custodian. The Company will deliver the Securities to Credit Suisse Securities (USA) LLC (Credit Suisse), for the account of each Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor, as set forth above, by wire transfer of Federal (same-day) funds to the account specified by the Company to Credit Suisse at least forty-eight hours prior to the Time of Delivery (as defined below) or such other time as Credit Suisse and the Company may agree to, by causing DTC to credit the Securities to the account of Credit Suisse at DTC. The Company will cause the certificates representing the Securities to be made available to Credit Suisse for checking at least twenty-four hours prior to the Time of Delivery (as defined below) at the office of DTC or its designated custodian (the Designated Office). The time and date of such delivery and payment shall be 10:00 a.m., New York City time, on May 21, 2009 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date are herein called the Time of Delivery.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriters pursuant to Section 8(l) hereof, will be delivered at the offices of Pillsbury Winthrop Shaw Pittman LLP, 1540 Broadway, New York, New York 10036 or such other location as the Representatives and the Company may agree to (the Closing Location), and the Securities will be delivered at the Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at 1:00 p.m., New York City time, on the New York Business Day next preceding the Time of Delivery or such other time as the Representatives and the Company may agree to, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, New York Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.
5. Each of the Company and PFS jointly and severally agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representatives and to file the Prospectus pursuant to Rule 424(b) under the Act not later than the Commissions close of business on the second business day following the date of this Agreement or, if applicable, such earlier time as may be required by Rule 424(b) under the Act; to make no further amendment or any supplement to the Registration Statement, or the Prospectus prior to the Time of Delivery which shall be disapproved by the Representatives promptly after reasonable notice thereof; to advise the Representatives, promptly after it receives notice thereof for so long as the delivery of a prospectus is required in connection with the offering and sale of the Securities and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) under the Act),
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of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed with the Commission and to furnish the Representatives with copies thereof for so long as the delivery of a prospectus is required in connection with the offering and sale of the Securities and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) under the Act); to prepare and file the Final Term Sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed in connection with the offering and sale of the Securities and the Guarantees by the Company and PFS with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company and PFS with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities and the Guarantees to promptly notify the Representatives of any written notice given to the Company or PFS by any nationally recognized statistical rating organization within the meaning of Rule 436(g)(2) under the Act (a Rating Agency) of any intended decrease in any rating of any securities of the Company or PFS or of any intended change in any such rating that does not indicate the direction of the possible change of any such rating, in each case by any such Rating Agency for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) under the Act); to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or other prospectus in respect of the Securities or the Guarantees, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose or pursuant to Section 8A of the Act against the Company or PFS or relating to the offering of the Securities or the issuance of the Guarantees, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any such order preventing or suspending the use of the Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Securities and the Guarantees by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement);
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(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Representatives promptly after reasonable notice thereof;
(c) If at any time when Securities remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (A) promptly notify the Representatives, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form satisfactory to the Representatives, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the registration statement that was the subject of Rule 401(g)(2) under the Act notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(d) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities, provided that in connection therewith neither the Company nor PFS shall be required to qualify as a foreign corporation, to file a general consent to service of process in any jurisdiction, to subject itself to taxation in any jurisdiction in which it would not otherwise be subject or to make any changes to its Certificate of Incorporation, By-Laws or other organizational documents, or any agreement with its shareholders; and provided further that neither the Company nor PFS shall be required to qualify the Securities in any jurisdiction if such qualification would result in any obligation on the part of the Company or PFS to make filings with any governmental entity in such jurisdiction after the completion of the offering;
(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus, as amended or supplemented, in New York City in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue
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statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act), as then amended or supplemented, is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of such amended or supplemented Prospectus which will correct such statement or omission or effect such compliance and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon request by the Representatives but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representatives may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158 under the Act);
(g) During the period beginning from the date hereof and continuing to and including the Time of Delivery, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any debt securities of the Company or PFS which mature more than one year after such Time of Delivery and which are substantially similar to the Securities, without the prior written consent of the Representatives;
(h) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rule 457(r) under the Act; and
(i) To use the net proceeds received by the Company from the sale of the Securities in the manner specified in the Prospectus under the caption Use of Proceeds.
6. (a) (i) Each of the Company and PFS jointly and severally represents and agrees that, other than the Final Term Sheet prepared and filed pursuant to Section 5(a) hereof and any other Issuer Free Writing Prospectus, the use of which has been consented to by the Company, PFG and the Representatives, and identified
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in Schedule II (a) or (b) hereto, without the prior consent of the Representatives, which consent shall not be unreasonably withheld, it has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus as defined in Rule 405 under the Act;
(ii) Each Underwriter represents and agrees that, without the prior consent of the Company, PFS and the Representatives, which consent shall not be unreasonably withheld, it has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus, as defined in Rule 405 under the Act, required to be filed with the Commission (each such free writing prospectus the use of which has been consented to by the Company, PFS and the Representatives is identified on Schedule II(a) or II(d) hereto); and
(iii) Any such free writing prospectus the use of which has been consented to by the Company, PFS and the Representatives (including the Final Term Sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a), (b) or (d) hereto;
(b) Each of the Company and PFS has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c) Each of the Company and PFS jointly and severally agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus or, when taken together with the information set forth in the Registration Statement, the Preliminary Prospectus or the Prospectus, as applicable, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company or PFS, as applicable, will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company and PFS by an Underwriter through the Representatives expressly for use therein.
7. Whether or not any sale of the Securities is consummated, each of the Company and PFS jointly and severally covenants and agrees with the several Underwriters that the Company and PFS will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel, PFSs counsel and the Companys accountants in connection with the registration of the Securities and the Guarantees under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the
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Registration Statement, the Basic Prospectus, the Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and any dealers; (ii) the cost of printing or producing any agreement among underwriters, this Agreement, the Indenture, the Guarantees, any blue sky surveys, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities and the issuance of the Guarantees, which costs, for the avoidance of doubt, shall not include any costs and expenses of the counsel to the Underwriters; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(d) hereof (including the fees and disbursements of counsel in connection with such qualification and in connection with any such blue sky survey; (iv) any fees charged by securities rating services for rating the Securities; (v) the cost of preparing certificates for the Securities; (vi) the cost and charges of any transfer agent or registrar or dividend disbursing agent; (vii) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture, the Securities and the Guarantees; and (viii) all other costs and expenses incurred by the Company or PFS incident to the performance of their obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section 7, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the several Underwriters hereunder shall be subject, in the discretion of the Underwriters, to the condition that all representations and warranties and other statements of the Company and PFS contained herein are, at and as of the Applicable Time and the Time of Delivery, true and correct, the condition that the Company and PFS shall have performed all of their obligations hereunder theretofore to be performed at and as of the Applicable Time and the Time of Delivery, as the case may be, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the Final Term Sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company or PFS pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or PFS or related to the offering of the Securities or the issuance of the Guarantees shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any
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Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives;
(b) At the Time of Delivery, Pillsbury Winthrop Shaw Pittman LLP, counsel for the Underwriters, shall have furnished to the Representatives such written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information from the Company as they may reasonably request to enable them to pass upon such matters;
(c) At the Time of Delivery, Debevoise & Plimpton LLP, counsel for the Company, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, in form and substance satisfactory to the Representatives, substantially in the form of Exhibits B-1 and B-2 hereto, respectively;
(d) At the Time of Delivery, Karen E. Shaff, Executive Vice President and General Counsel to the Company and PFS, shall have furnished to the Representatives her written opinion and negative assurance letter, dated the Time of Delivery, in form and substance satisfactory to the Representatives, substantially in the form of Exhibits C-1 and C-2, hereto, respectively;
(e) At the time of execution of this Agreement, Ernst & Young LLP shall have furnished to the Representatives a letter, dated the date hereof (the initial letter), and at the Time of Delivery, Ernst & Young LLP shall have furnished the Representatives a letter, dated the Time of Delivery (the bring-down letter), to the effect that such accountants reaffirm, as of the Time of Delivery and as though made on the Time of Delivery, the statements made in the initial letter, and each of the initial letter and the bring-down letter covering such matters ordinarily included in accountants comfort letters to underwriters and in form and substance satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package, and (ii) since the respective dates as of which information is given in the Pricing Disclosure Package, there shall not have been any decrease in the capital stock of the Company in excess of 10 million shares or increase in the consolidated long-term debt of the Company in excess of $10,000,000 except for the incurrence of debt as contemplated by this Agreement or any change or any development involving a prospective change in or affecting the general affairs, management, financial position, stockholders equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing Disclosure Package, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the
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Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus;
(g) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Companys or PFS debt securities or preferred stock or the financial strength or claims paying ability of PLIC by any Rating Agency, and (ii) no such Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Companys or PFS debt securities or preferred stock or the financial strength or claims paying ability of PLIC;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Companys securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere; if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus; and
(i) Each of the Company and PFS shall have furnished or caused to be furnished to the Representatives at the Time of Delivery certificates of officers of the Company and PFS, as applicable, reasonably satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company and PFS herein at and as of such Time of Delivery, as to the performance by the Company and PFS of all of their obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (f) of this Section 8 and as to such other matters as the Representatives may reasonably request.
9. (a) The Company and PFS will jointly and severally indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements
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therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that neither the Company nor PFS shall be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant to Rule 433(d) under the Act, in reliance upon and in conformity with written information furnished to the Company or PFS by any Underwriter through the Representatives expressly for use therein. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to the Underwriters.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless, in each case, the Company and PFS against any losses, claims, damages or liabilities to which the Company or PFS may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant to Rule 433(d) of the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus or any Issuer Free Writing Prospectus or any such issuer information or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company or PFS by such Underwriter through the Representatives expressly for use therein and will reimburse the Company and PFS for any legal or other expenses reasonably incurred by the Company or PFS in connection with investigating or defending any such action or claim as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company, or PFG.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under Section 9(a) or (b) except to the extent it did not otherwise learn of such action and it has been materially prejudiced by such failure and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under Section 9(a) or (b). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party
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of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 9 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company or PFS on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company or PFS on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company or PFS on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or PFS, on the one hand, or the Underwriters, on the other, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, PFS and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were
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determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. The Companys and PFS obligation in this subsection (d) to contribute is joint and several.
(e) The obligations of the Company and PFS under this Section 9 shall be in addition to any liability which the Company or PFS may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of Section 15 under the Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each employee, officer and director of the Company or PFS and to each person, if any, who controls the Company or PFS within the meaning of Section 15 under the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the non-defaulting Underwriters or another party or other parties to purchase such Securities on the terms contained herein. If within thirty six hours after such default by any Underwriter the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of thirty six hours within which to procure another party or other parties satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. In the event that, within the respective prescribed periods but no later than the Time of Delivery, the non-defaulting Underwriters notify the Company that the non-defaulting Underwriters have so arranged for the purchase of such Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Securities, or the non-defaulting Underwriters are required to purchase the Securities of the defaulting Underwriters pursuant to subsection (b) below, the non-defaulting Underwriters or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or
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supplements to the Registration Statement or the Prospectus which in the non-defaulting Underwriters and the Companys opinion may thereby be made necessary. The term Underwriter as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in subsection (a) above, by the Time of Delivery, the aggregate principal amount of such Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities which such non-defaulting Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Securities which such non-defaulting Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made by the Time of Delivery; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements of the Company, PFS and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company or PFS, or any officer or director or controlling person of the Company or PFS, and shall survive delivery of and payment for the Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not then be under any liability to any non-defaulting Underwriter except as provided in Sections 7 and 9 hereof; but if the Securities are not delivered by or on behalf of the Company as provided herein by reason of any failure, refusal or inability on part of the Company to perform any agreement on its part or because any other condition of the Underwriters obligations hereunder required to be fulfilled by the Company is not fulfilled, the
21
Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the Company shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof. If this Agreement is terminated pursuant to Section 10 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of those expenses.
13. In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by any of the Representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the Representatives in care of Citigroup Global Markets Inc., 388/90 Greenwich Street, New York, New York 10013, Attention: General Counsel (facsimile: (212) 816-7912); Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, New York 10010, Attention: LCD-IBD (facsimile: (212) 325-4296); and Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005, Attention: Debt Capital Markets-Syndicate Desk (facsimile: (212) 797-5420); and if to the Company or PFS shall be delivered or sent by mail, telex or facsimile transmission to the respective addresses of the Company and PFS set forth in the Registration Statement, Attention: Secretary. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and PFS and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company or PFS and each person who controls the Company or PFS or any Underwriter within the meaning of Section 15 of the Act, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term business day shall mean any day when the Commissions office in Washington, D.C. is open for business.
16. Each of the Company and PFS acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arms-length commercial transaction between the Company and PFS, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of
22
the Company or PFS with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or PFS on other matters) or any other obligation to the Company or PFS except the obligations expressly set forth in this Agreement and (iv) the Company and PFS have consulted their own legal and financial advisors to the extent they deemed appropriate. Each of the Company and PFS agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or PFS, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company, PFS and the Underwriters, or any of them, with respect to the subject matter hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
19. The Company, PFS and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, each of the Company and PFS is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company or PFS relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, tax structure is limited to any facts that may be relevant to that treatment.
23
If the foregoing is in accordance with the Representatives understanding, please sign and return to us six (6) counterparts hereof, and upon the acceptance hereof by the Representatives, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and PFS.
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Very truly yours, |
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Principal Financial Group, Inc. |
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By: |
/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title: Senior Vice President and |
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Chief Financial Officer |
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By: |
/s/ Karen E. Shaff |
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Name: Karen E. Shaff |
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Title: Executive Vice President and |
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General Counsel |
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Principal Financial Services, Inc. |
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By: |
/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title: Senior Vice President and |
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Chief Financial Officer |
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By: |
/s/ Karen E. Shaff |
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Name: Karen E. Shaff |
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Title: Executive Vice President and |
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General Counsel |
24
Accepted as of the date hereof:
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
As representatives of the several
Underwriters named in Schedule I hereto
Citigroup Global Markets Inc. |
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By: |
/s/ Jack D. McSpadden, Jr. |
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Name: Jack D. McSpadden, Jr. |
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Title: Managing Director |
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Credit Suisse Securities (USA) LLC |
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By: |
/s/ Sharon Harrison |
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Name: Sharon Harrison |
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Title: Director |
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Deutsche Bank Securities Inc. |
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By: |
/s/ Mary Hardgrove |
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Name: Mary Hardgrove |
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Title: Director |
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By: |
/s/ Craig Wenzel |
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Name: Craig Wenzel |
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Title: Director |
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25
SCHEDULE I |
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Principal Amount |
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Principal Amount |
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||
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of |
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of |
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||
|
|
2014 Notes |
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2019 Notes |
|
||
Underwriter |
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to be Purchased |
|
to be Purchased |
|
||
|
|
|
|
|
|
||
Citigroup Global Markets Inc. |
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$ |
93,333,334 |
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$ |
81,666,667 |
|
Credit Suisse Securities (USA) LLC |
|
93,333,333 |
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81,666,667 |
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||
Deutsche Bank Securities Inc. |
|
93,333,333 |
|
81,666,666 |
|
||
Barclays Capital Inc. |
|
26,666,667 |
|
23,333,334 |
|
||
Morgan Stanley & Co. Incorporated |
|
26,666,667 |
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23,333,333 |
|
||
UBS Securities LLC |
|
26,666,666 |
|
23,333,333 |
|
||
Wachovia Capital Markets, LLC |
|
13,333,334 |
|
11,666,667 |
|
||
RBS Securities Inc. |
|
13,333,333 |
|
11,666,667 |
|
||
The Williams Capital Group, L.P. |
|
13,333,333 |
|
11,666,666 |
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||
Total |
|
$ |
400,000,000 |
|
$ |
350,000,000 |
|
SCHEDULE II
(a) Issuer Free Writing Prospectuses included in the Pricing Disclosure Package: Final Term Sheet dated May 18, 2009 (attached hereto as Exhibit A).
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package: None.
(c) Additional Documents Incorporated by Reference: None.
(d) Free Writing Prospectus referred to in Section 6(a)(ii): None.
Exhibit A
Free Writing Prospectus (to the |
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Filed Pursuant to Rule 433 |
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Preliminary Prospectus |
|
Registration Statement Nos. 333-151582 |
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Supplement dated May 18, 2009) |
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333-151582-04 |
|
$400,000,000 of 7.875% Senior Notes due 2014
$350,000,000 of 8.875% Senior Notes due 2019
Final Term Sheet
May 18, 2009
7.875% Senior Notes due 2014
Issuer: |
Principal Financial Group, Inc. |
Expected Ratings (Moodys/S&P)*: |
A3(negative)/BBB+(positive) |
Issue: |
7.875% Senior Notes due 2014 fully and unconditionally guaranteed by Principal Financial Services, Inc. |
Offering Size: |
$400,000,000 |
Coupon: |
7.875% per annum |
Trade Date: |
May 18, 2009 |
Settlement Date: |
May 21, 2009 |
Maturity: |
May 15, 2014 |
Treasury Benchmark: |
UST 1.875% due April 30, 2014 |
US Treasury Spot: |
98-29¾ |
US Treasury Yield: |
2.104% |
Spread to Treasury: |
+577.2 basis points |
Re-offer Yield: |
7.876% |
Price to Public (Issue Price): |
100% |
Interest Payment Dates: |
Semi-annually on May 15 and November 15, commencing on November 15, 2009 |
Optional Redemption: |
At any time in whole or in part at greater of par and make-whole call at a discount rate of Treasury plus 50 basis points, plus accrued and unpaid interest on the date of redemption |
Day Count: |
30/360 |
CUSIP/ISIN: |
74251VAB8/US74251VAB80 |
Minimum Denomination: |
$2,000 and in integral multiples of $1,000 in excess thereof |
Joint Book-Running Managers: |
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. |
Senior Co-Managers: |
Barclays Capital Inc., Morgan Stanley & Co. Incorporated, UBS Securities LLC and Wachovia Capital Markets, LLC |
Co-Managers: |
RBS Securities Inc. and The Williams Capital Group, L.P. |
A-2
8.875% Senior Notes due 2019
Issuer: |
Principal Financial Group, Inc. |
Expected Ratings (Moodys/S&P)*: |
A3(negative)/BBB+(positive) |
Issue: |
8.875% Senior Notes due 2019 fully and unconditionally guaranteed by Principal Financial Services, Inc. |
Offering Size: |
$350,000,000 |
Coupon: |
8.875% per annum |
Trade Date: |
May 18, 2009 |
Settlement Date: |
May 21, 2009 |
Maturity: |
May 15, 2019 |
Treasury Benchmark: |
UST 3.125% due May 15, 2019 |
US Treasury Spot: |
99-01 |
US Treasury Yield: |
3.239% |
Spread to Treasury: |
+563.6 basis points |
Re-offer Yield: |
8.875% |
Price to Public (Issue Price): |
100% |
Interest Payment Dates: |
Semi-annually on May 15 and November 15, commencing on November 15, 2009 |
Optional Redemption: |
At any time in whole or in part at greater of par and make-whole call at a discount rate of Treasury plus 50 basis points, plus accrued and unpaid interest on the date of redemption |
Day Count: |
30/360 |
CUSIP/ISIN: |
74251VAD4/US74251VAD47 |
Minimum Denomination: |
$2,000 and in integral multiples of $1,000 in excess thereof |
Joint Book-Running Managers: |
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. |
Senior Co-Managers: |
Barclays Capital Inc., Morgan Stanley & Co. Incorporated, UBS Securities LLC and Wachovia Capital Markets, LLC |
Co-Managers: |
RBS Securities Inc. and The Williams Capital Group, L.P. |
A-3
Net Proceeds |
Our net proceeds from this offering are estimated to be approximately $744.4 million after deducting underwriting discounts and commissions and estimated expenses relating to this offering. |
Capitalization
The following provides updates to the capitalization table contained in the Preliminary Prospectus Supplement, giving effect to the repayment in full of the $441.0 million in outstanding principal amount of the 8.2% unsecured redeemable notes due August 15, 2009 of Principal Financial Services, Inc. as if such repayment had been made as of March 31, 2009.
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As of March 31, 2009 |
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|||||||
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Pro Forma |
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Actual |
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Pro Forma |
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As Adjusted |
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|||
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(dollars in millions) |
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|||||||
Cash and cash equivalents |
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$ |
2,699.6 |
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$ |
3,664.2 |
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$ |
3,967.6 |
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Current maturities of long-term debt(1) |
|
463.6 |
|
463.6 |
|
22.6 |
|
|||
2014 Notes offered hereby |
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|
|
|
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400.0 |
|
|||
2019 Notes offered hereby |
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|
|
|
|
350.0 |
|
|||
Other long-term debt, excluding current maturities |
|
829.1 |
|
829.1 |
|
829.1 |
|
|||
Total long-term debt |
|
1,292.7 |
|
1,292.7 |
|
1,601.7 |
|
|||
Total stockholders equity |
|
2,708.9 |
|
3,673.5 |
|
3,673.5 |
|
|||
Total capitalization |
|
$ |
4,001.6 |
|
$ |
4,966.2 |
|
$ |
5,275.2 |
|
(1) Represents maturities during the next twelve months.
In addition to long-term debt outstanding, as of March 31, 2009, we had short-term debt outstanding of $530.8 million.
The issuer and the guarantor have filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer and the guarantor have filed with the SEC for more complete information about the issuer and the guarantor and this offering. You may get these documents for free by
A-4
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Citigroup Global Markets Inc. toll-free at 1-877-858-5407, Credit Suisse Securities (USA) LLC toll-free at 1-800-221-1037 or Deutsche Bank Securities Inc. toll-free at 1-800-503-4611.
* A securities rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. The rating is subject to revision or withdrawal at any time by the assigning rating organization.
Any disclaimer or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers were automatically generated as a result of the communication being sent via Bloomberg or another email system.
A-5
Exhibit B-1
May [], 2009
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
as representatives of the
several Underwriters
named in Schedule I to the
Underwriting Agreement
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Principal Financial Group, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Principal Financial Group, Inc., a Delaware corporation (the Company), in connection with the issuance and sale today by the Company of $[] aggregate principal amount of its []% Senior Notes due 2014 (the 2014 Notes) and $[] aggregate principal amount of its []% Senior Notes due 2019 (the 2019 Notes and, together with the 2014 Notes, the Securities) pursuant to the Underwriting Agreement, dated May [], 2009 (the Underwriting Agreement), among Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as representatives of the several underwriters, and the other underwriters named therein (the representatives and such other underwriters, collectively, the Underwriters), the Company and Principal Financial Services, Inc., an Iowa corporation (PFSI). The 2014 Notes and the 2019 Notes will be fully and unconditionally guaranteed (the Guarantees) by PFSI. The Securities will be issued pursuant to the Indenture, dated as of May [], 2009 (the Base Indenture), among the Company, PFSI, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as supplemented and amended by the First Supplemental Indenture dated as of May [], 2009, among the Company, PFSI and the Trustee relating to the 2014 Notes (the First Supplemental Indenture) and the Second Supplemental Indenture, dated as of
May [], 2009, among the Company, PFSI and the Trustee relating to the 2019 Notes (the Second Supplemental Indenture and, together with the First Supplement Indenture, the Supplemental Indentures; the Base Indenture, as supplemented and amended by the Supplemental Indentures, the Indenture). We are delivering this letter to you pursuant to Section 8(c) of the Underwriting Agreement.
As used herein, the following terms shall have the following meanings: The term DGCL means the General Corporation Law of the State of Delaware, as currently in effect. The term 1940 Act means the Investment Company Act of 1940, as amended. The term Prospectus means the base prospectus, dated June 11, 2008, filed as part of the registration statement on Form S-3 of the Company and PFSI (Registration Nos. 333-151582 and 333-151582-04) (the Base Prospectus), as supplemented by, and together with, the prospectus supplement, dated May [], 2009, relating to the Securities and the Guarantees, in the form filed with the Securities and Exchange Commission (the SEC) pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the 1933 Act). The term Preliminary Prospectus means the Base Prospectus, as supplemented by, and together with, the preliminary prospectus supplement, dated May [], 2009, relating to the Securities and the Guarantees, in the form filed with the SEC pursuant to Rule 424(b) under the 1933 Act. The term Final Term Sheet means the final term sheet relating to the Securities and the Guarantees in the form filed with the SEC under the 1933 Act and attached hereto as Schedule A.
In rendering the opinions expressed below, (a) we have examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of such agreements, documents and records of the Company, PFSI and their respective subsidiaries and such other instruments and certificates of public officials, officers and representatives of the Company, PFSI and their respective subsidiaries and others as we have deemed necessary or appropriate for the purposes of such opinions, (b) we have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements made in the certificates of public officials, officers and representatives of the Company, PFSI and their respective subsidiaries and others delivered to us and the representations and warranties contained in or made pursuant to the Underwriting Agreement and (c) we have made such investigations of law as we have deemed necessary or appropriate as a basis for such opinions. In rendering the opinions expressed below, we have assumed, with your permission, without independent investigation or inquiry, (i) the authenticity and completeness of all documents submitted to us as originals, (ii) the genuineness of all signatures on all documents that we examined, (iii) the conformity to authentic originals and completeness of documents submitted to us as certified, conformed or reproduction copies, (iv) the legal capacity of all natural persons
B-1-2
executing documents, (v) the power and authority of PFSI to execute, deliver and perform its obligations under the Base Indenture, the Supplemental Indentures and the Guarantees, (vi) all necessary action has been taken by PFSI to duly authorize its execution, delivery and performance of the Base Indenture, the Supplemental Indentures and the Guarantees, (vii) the due execution and delivery of the Base Indenture, the Supplemental Indentures and the Guarantees by PFSI, (viii) the power and authority of the Trustee to enter into and perform its obligations under the Indenture, (ix) the due authorization, execution and delivery of the Indenture by the Trustee, (x) the enforceability of the Indenture against the Trustee and (xi) the due authentication of the Securities on behalf of the Trustee in the manner provided in the Indenture.
Based upon and subject to the foregoing and the assumptions, qualifications and limitations hereinafter set forth, we are of the opinion that:
B-1-3
Our opinions set forth above are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other similar laws relating to or affecting enforcement of creditors rights or remedies generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) concepts of good faith, reasonableness and fair dealing, and standards of materiality and (iv) limitations on the validity or enforceability of indemnification, contribution or exculpation under applicable law (including court decisions) or public policy. Without limiting the foregoing, we express no opinion as to the validity, binding effect or
B-1-4
enforceability of any provision of the Indenture or the Securities that purports to (i) waive, release or vary any defense, right or privilege of, or any duties owing to, any party to the extent that such waiver, release or variation may be limited by applicable law, (ii) constitute a waiver of inconvenient forum or improper venue, (iii) relate to the subject matter jurisdiction of a court to adjudicate any controversy, (iv) grant a right to collect any amount that a court determines to constitute unearned interest, or post-judgment interest or a penalty or forfeiture or (v) provide for liquidated damages or otherwise specify or limit damages, liabilities or remedies. In addition, the enforceability of any provision in the Indenture or the Securities to the effect that (x) the terms thereof may not be waived or modified except in writing, (y) the express terms thereof supersede any inconsistent course of dealing, performance or usage or (z) certain determinations made by one party shall have conclusive effect, may be limited under certain circumstances.
We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York, the DGCL and the Federal laws of the United States of America, as currently in effect, in each case that in our experience are normally applicable to transactions of the type contemplated by the Underwriting Agreement and the Indenture without regard to the particular nature of the business conducted by the Company.
The opinions expressed herein are solely for the benefit of the Underwriters and, without our prior written consent, neither our opinions nor this opinion letter may be disclosed to or relied upon by any other person. This opinion letter is limited to, and no opinion is implied or may be inferred beyond, the matters expressly stated herein. The opinions expressed herein are rendered only as of the date hereof, and we assume no responsibility to advise the Underwriters of facts, circumstances, changes in law, or other events or developments that hereafter may occur or be brought to our attention and that may alter, affect or modify the opinions expressed herein.
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Very truly yours, |
B-1-5
Schedule A
·[Insert Final Term Sheet]
B-1-6
Exhibit B-2
May [], 2009
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
as representatives of the
several Underwriters
named in Schedule I to the
Underwriting Agreement
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Principal Financial Group, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Principal Financial Group, Inc., a Delaware corporation (the Company), in connection with the issuance and sale today by the Company of $[] aggregate principal amount of its []% Senior Notes due 2014 (the 2014 Notes) and $[] aggregate principal amount of its []% Senior Notes due 2019 (the 2019 Notes and, together with the 2014 Notes, the Securities) pursuant to the Underwriting Agreement, dated May [], 2009 (the Underwriting Agreement), among Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as representatives of the several underwriters, and the other underwriters named therein (the representatives and such other underwriters, collectively, the Underwriters), the Company and Principal Financial Services, Inc., an Iowa corporation (PFSI). The 2014 Notes and the 2019 Notes will be fully and unconditionally guaranteed (the Guarantees) by PFSI. The Securities will be issued pursuant to the Indenture, dated as of May [], 2009 (the Base Indenture), among the Company, PFSI, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as supplemented and amended by the First Supplemental Indenture, dated as of May [], 2009, among the Company, PFSI and the Trustee relating to the 2014 Notes and the Second Supplemental Indenture, dated as of May [], 2009, among the Company, PFSI and the Trustee relating to the 2019 Notes (collectively, the Supplemental Indentures; the Base Indenture, as supplemented and amended by the Supplemental Indentures, the Indenture). We are delivering this letter to you pursuant to Section 8(c) of the Underwriting Agreement.
In so acting, we have reviewed the registration statement on Form S-3 (Registration Nos. 333-151582 and 333-151582-04) of the Company and PFSI filed with the Securities
and Exchange Commission (the SEC) pursuant to the Securities Act of 1933, as amended (the 1933 Act), the Time of Sale Information (as defined below) and the final prospectus supplement, dated May [], 2009 (the Prospectus Supplement), relating to the Securities and the Guarantees, in the form filed with the SEC pursuant to Rule 424(b) under the 1933 Act. As used herein, the term Registration Statement means such registration statement on the date such registration statement is deemed to be effective pursuant to Rule 430B under the 1933 Act for purposes of liability under Section 11 of the 1933 Act of the Company and the Underwriters (which, for purposes hereof, is May [], 2009, the Effective Date), including the information deemed to be a part of such registration statement as of the Effective Date pursuant to Rule 430B under the 1933 Act. The term Base Prospectus means the basic prospectus, dated June 11, 2008, filed as part of the Registration Statement. The term Preliminary Prospectus Supplement means the preliminary prospectus supplement, dated May [], 2009, relating to the Securities and the Guarantees, in the form filed with the SEC pursuant to Rule 424(b) under the 1933 Act. The term Time of Sale Information means, collectively, the Base Prospectus, the Preliminary Prospectus Supplement and the final term sheet in the form filed with the SEC pursuant to Rule 433 under the 1933 Act and attached hereto as Schedule A.(1) The term Prospectus means the Base Prospectus as supplemented by, and together with, the Prospectus Supplement.
We have reviewed and discussed the contents of the Registration Statement, the Time of Sale Information and the Prospectus with certain officers and employees of the Company, PFSI and their subsidiaries, their inside counsel, representatives of the Companys independent accountants, representatives of the Underwriters and Underwriters counsel. We have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, and we are not passing upon and assume no responsibility for the accuracy, completeness or fairness of, the statements contained in the Registration Statement, the Time of Sale Information, the Prospectus or the documents incorporated by reference in any of the foregoing, and have made no independent check or verification thereof. We have assumed the accuracy of the representations and warranties of the Company set forth in Section 1(p) of the Underwriting Agreement as to its status as a well-known seasoned issuer as defined in Rule 405 under the 1933 Act.
On the basis of the foregoing, we advise you as follows:
(1) Note: Assumes no other FWPs included in the Time of Sale Information.
B-2-2
This letter is solely for the benefit of the Underwriters and, without our prior written consent, neither our beliefs nor this letter may be disclosed to or relied upon by any other person. This letter is limited to the matters stated herein and no views are implied or may be inferred beyond the matters expressly stated herein. The beliefs expressed herein are rendered only as of the date hereof, and we assume no responsibility to advise the Underwriters of facts, circumstances, changes in law or other events or developments that hereafter may occur or be brought to our attention and that may alter, affect or modify the beliefs expressed herein.
|
Very truly yours, |
B-2-3
Schedule A
·[Insert Final Term Sheet]
B-2-4
Exhibit C-1
May [], 2009
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
and Deutsche Bank Securities Inc.
as representatives of the
several Underwriters
named in Schedule I to the
Underwriting Agreement
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Principal Financial Group, Inc.
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of Principal Financial Group, Inc., a Delaware corporation (the Company), and Principal Financial Services, Inc., an Iowa corporation (PFSI). In such capacity, I or lawyers in the Companys law department under my supervision have acted as counsel to the Company in connection with the issuance and sale today by the Company of $[] aggregate principal amount of its []% Senior Notes due 2014 (the 2014 Notes) and $[] aggregate principal amount of its []% Senior Notes due 2019 (the 2019 Notes and, together with the 2014 Notes, the Securities) pursuant to the Underwriting Agreement, dated May [], 2009 (the Underwriting Agreement), among Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as representatives of the several underwriters, and the other underwriters named therein (the representatives and such other underwriters, collectively, the Underwriters), the Company and PFSI. The 2014 Notes and the 2019 Notes will be fully and unconditionally guaranteed (the Guarantees) by PFSI. The Securities will be issued pursuant to the Indenture, dated as of May [], 2009 (the Base Indenture), among the Company, PFSI, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as supplemented and amended by the First Supplemental Indenture, dated as of May [], 2009, among the Company, PFSI and the Trustee relating to the 2014 Notes and the Second Supplemental Indenture, dated as of May [], 2009, among the Company, PFSI and the Trustee relating to the 2019 Notes (collectively, the Supplemental Indentures; the Base Indenture, as supplemented and amended by the Supplemental Indentures, the Indenture). I am delivering this letter to you pursuant to Section 8(d) of the Underwriting Agreement.
Unless otherwise defined herein, terms defined in the Underwriting Agreement and used herein will have the meanings assigned thereto in the Underwriting Agreement. As used herein, the following terms shall have the following meanings: The term Prospectus
means the base prospectus, dated June 11, 2008, filed as part of the registration statement on Form S-3 (Registration Nos. 333-151582 and 333-151582-04) of the Company and PFSI, as supplemented by, and together with, the prospectus supplement, dated May [], 2009, relating to the Securities and the Guarantees, in the form filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended.
In rendering the opinions expressed below, (a) I or lawyers under my supervision have examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of such agreements, documents and records and such other instruments and certificates as we have deemed necessary or appropriate for the purposes of such opinions, (b) I or lawyers under my supervision have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements made in the certificates of others delivered to us and the representations and warranties contained in or made pursuant to the Underwriting Agreement and (c) I or lawyers under my supervision have made such investigations of law as we have deemed necessary or appropriate as a basis for such opinions. In rendering the opinions expressed below, I have assumed, with your permission, without independent investigation or inquiry, (i) the authenticity and completeness of all documents submitted to me or lawyers under my supervision as originals, (ii) the genuineness of all signatures on all documents that I or lawyers under my supervision examined, (iii) the conformity to authentic originals and completeness of documents submitted to me or lawyers under my supervision as certified, conformed or reproduction copies, (iv) the legal capacity of all natural persons executing documents, (v) the power and authority of the Trustee to enter into and perform its obligations under the Indenture, (vi) the due authorization, execution and delivery of the Indenture by the Trustee, (vii) the enforceability of the Indenture against the Trustee and (viii) the due authentication of the Securities on behalf of the Trustee in the manner provided in the Indenture.
Based upon and subject to the foregoing and the assumptions, qualifications and limitations hereinafter set forth, I am of the opinion that:
C-1-2
C-1-3
The opinions set forth in paragraphs 6 and 7 as to the performance by the Company of its obligations in accordance with the terms of the Underwriting Agreement are based solely upon the facts and circumstances as they exist on the date hereof and are rendered as if the Company had performed such obligations on the date hereof.
I express no opinion as to the laws of any jurisdiction other than the laws of the State of Iowa, the General Corporation Law of the State of Delaware and the Federal laws of the United States of America, as currently in effect, in each case that in my experience are normally applicable to transactions of the type contemplated by the Underwriting Agreement.
The opinions expressed herein are solely for the benefit of the Underwriters and, without my prior written consent, neither my opinions nor this opinion letter may be disclosed to or relied upon by any other person. This opinion letter is limited to, and no opinion is implied or may be inferred beyond, the matters expressly stated herein. The opinions expressed herein are rendered only as of the date hereof, and I assume no responsibility to advise the Underwriters of facts, circumstances, changes in law, or other events or developments that hereafter may occur or be brought to my attention and that may alter, affect or modify the opinions expressed herein.
|
Very truly yours, |
|
|
|
|
|
Karen E. Shaff |
|
Executive Vice President and |
|
General Counsel |
C-1-4
Exhibit C-2
May [], 2009
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
as representatives of the
several Underwriters
named in Schedule I to the
Underwriting Agreement
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Principal Financial Group, Inc.
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of Principal Financial Group, Inc., a Delaware corporation (the Company), and Principal Financial Services, Inc., an Iowa corporation (PFSI). In such capacity, I or lawyers in the Companys law department under my supervision have acted as counsel to the Company in connection with the issuance and sale today by the Company of $[] aggregate principal amount of its []% Senior Notes due 2014 (the 2014 Notes) and $[] aggregate principal amount of its []% Senior Notes due 2019 (the 2019 Notes and, together with the 2014 Notes, the Securities) pursuant to the Underwriting Agreement, dated May [], 2009 (the Underwriting Agreement), among Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as representatives of the several underwriters, and the other underwriters named therein (the representatives and such other underwriters, collectively, the Underwriters), the Company and PFSI. The 2014 Notes and the 2019 Notes will be fully and unconditionally guaranteed (the Guarantees) by PFSI. The Securities will be issued pursuant to the Indenture, dated as of May [], 2009 (the Base Indenture), among the Company, PFSI, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as supplemented and amended by the First Supplemental Indenture, dated as of May [], 2009, among the Company, PFSI and the Trustee relating to the 2014 Notes and the Second Supplemental Indenture, dated as of May [], 2009, among the Company, PFSI and the Trustee relating to the 2019 Notes (collectively, the Supplemental Indentures; the Base Indenture, as supplemented and amended by the Supplemental Indentures, the Indenture). I am delivering this letter to you pursuant to Section 8(d) of the Underwriting Agreement.
In so acting, I or lawyers in the Companys law department under my supervision have reviewed and discussed with lawyers in the Companys law department under my supervision the registration statement on Form S-3 (Registration Nos. 333-151582 and 333-151582-04) of the Company and PFSI filed with the Securities and Exchange Commission (the SEC) pursuant to the Securities Act of 1933, as amended (the 1933 Act), the Time of Sale Information (as defined below) and the final prospectus supplement, dated May [], 2009 (the Prospectus Supplement), relating to the Securities and the Guarantees, in the form filed with the SEC pursuant to Rule 424(b) under the 1933 Act. As used herein, the term Registration Statement means such registration statement, on the date such registration statement is deemed to be effective pursuant to Rule 430B under the 1933 Act for purposes of liability under Section 11 of the 1933 Act of the Company and the Underwriters (which, for purposes hereof, is May [], 2009, the Effective Date), including the information deemed to be a part of such registration statement as of the Effective Date pursuant to Rule 430B under the 1933 Act. The term Base Prospectus means the basic prospectus, dated June 11, 2008, filed as part of the Registration Statement. The term Preliminary Prospectus Supplement means the preliminary prospectus supplement, dated May [], 2009, relating to the Securities and the Guarantees, in the form filed with the SEC pursuant to Rule 424(b) under the 1933 Act. The term Time of Sale Information means, collectively, the Base Prospectus, the Preliminary Prospectus Supplement and the final term sheet in the form filed with the SEC pursuant to Rule 433 under the 1933 Act and attached hereto as Schedule A.(1) The term Prospectus means the Base Prospectus as supplemented by, and together with, the Prospectus Supplement.
I have not myself checked the accuracy, completeness or fairness of, or otherwise verified, and I am not passing upon and assume no responsibility for the accuracy, completeness or fairness of, the statements contained in the Registration Statement, the Time of Sale Information, the Prospectus or the documents incorporated by reference in any of the foregoing, and have made no independent check or verification thereof.
On the basis of the foregoing, I advise you as follows:
(1) The Registration Statement, as of the Effective Date, and the Prospectus, as of the date of the Prospectus Supplement, appeared to me on their face to be appropriately responsive in all material respects to the requirements as to form of the 1933 Act and the applicable rules and regulations of the SEC thereunder; except that I express no view as to (a) the financial statements, the related notes and schedules, and other financial information contained in or omitted from the Registration Statement or the Prospectus; (b) the statement of eligibility of the Trustee under the Indenture or (c) Regulation S-T.
(2) No facts have come to my attention that has caused me to believe that (a) the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (b) the Time of Sale Information, as of [] [a.m.][p.m.], New York City time, on May [], 2009, contained any untrue statement of a material fact or omitted to state a material
(1) Note: Assumes no other FWPs included in the Time of Sale Information.
C-2-2
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (c) the Prospectus, as of the date of the Prospectus Supplement and as of the date and time of delivery of this letter, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and that any amendment to the Registration Statement required to be filed or any contract or document required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus are so filed or described as required; except that in each case I express no belief as to (1) the financial statements, the related notes and schedules, and other financial information contained in or omitted from the Registration Statement, the Time of Sale Information or the Prospectus, or (2) the statement of eligibility of the Trustee under the Indenture.
This letter is solely for the benefit of the Underwriters and, without my prior written consent, neither my beliefs nor this letter may be disclosed to or relied upon by any other person. This letter is limited to the matters stated herein and no views are implied or may be inferred beyond the matters expressly stated herein. The beliefs expressed herein are rendered only as of the date hereof, and I assume no responsibility to advise the Underwriters of facts, circumstances, changes in law or other events or developments that hereafter may occur or be brought to my attention and that may alter, affect or modify the beliefs expressed herein.
|
Very truly yours, |
|
|
|
|
|
Karen E. Shaff |
|
Executive Vice President and |
|
General Counsel |
C-2-3
Schedule A
·[Insert Final Term Sheet]
C-2-4
Exhibit 4.1
Execution Copy
PRINCIPAL FINANCIAL GROUP, INC.
and
PRINCIPAL FINANCIAL SERVICES, INC.,
as guarantor
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
SENIOR INDENTURE
Dated as of May 21, 2009
Table of Contents
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Page |
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Article One |
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Definitions and Other Provisions of General Application |
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Section 101. |
Definitions |
1 |
Section 102. |
Compliance Certificates and Opinions |
10 |
Section 103. |
Form of Documents Delivered to Trustee |
10 |
Section 104. |
Acts of Holders; Record Dates |
11 |
Section 105. |
Notices, Etc., to Trustee, Company and Subsidiary Guarantor |
13 |
Section 106. |
Notice to Holders; Waiver |
14 |
Section 107. |
Conflict With Trust Indenture Act |
14 |
Section 108. |
Effect of Headings and Table of Contents |
14 |
Section 109. |
Successors and Assigns |
15 |
Section 110. |
Separability Clause |
15 |
Section 111. |
Benefits of Indenture |
15 |
Section 112. |
Governing Law; Waiver of Jury Trial |
15 |
Section 113. |
Legal Holidays |
15 |
Section 114. |
Computations |
15 |
Section 115. |
Force Majeure |
16 |
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Article Two |
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Security Forms |
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Section 201. |
Forms Generally |
16 |
Section 202. |
Form of Legend for Global Securities |
17 |
Section 203. |
Form of Trustees Certificate of Authentication |
17 |
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Article Three |
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The Securities |
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Section 301. |
Title; Terms |
18 |
Section 302. |
Denominations |
21 |
Section 303. |
Execution, Authentication, Delivery and Dating |
21 |
Section 304. |
Temporary Securities |
22 |
Section 305. |
Registration; Registration of Transfer and Exchange |
23 |
Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities |
25 |
Section 307. |
Payment of Interest; Interest Rights Preserved |
26 |
Section 308. |
Persons Deemed Owners |
27 |
Section 309. |
Cancellation |
28 |
Section 310. |
Computation of Interest |
28 |
i
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Table of Contents |
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(continued) |
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Page |
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Section 311. |
CUSIP Numbers |
28 |
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Article Four |
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Satisfaction and Discharge |
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Section 401. |
Satisfaction and Discharge of Indenture |
28 |
Section 402. |
Application of Trust Money |
30 |
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Article Five |
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Remedies |
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Section 501. |
Events of Default |
30 |
Section 502. |
Acceleration of Maturity; Rescission and Annulment |
31 |
Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
32 |
Section 504. |
Trustee May File Proofs of Claim |
33 |
Section 505. |
Trustee May Enforce Claims Without Possession of Securities |
34 |
Section 506. |
Application of Money Collected |
34 |
Section 507. |
Limitation on Suits |
35 |
Section 508. |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
35 |
Section 509. |
Restoration of Rights and Remedies |
36 |
Section 510. |
Rights and Remedies Cumulative |
36 |
Section 511. |
Delay or Omission Not Waiver |
36 |
Section 512. |
Control by Holders |
36 |
Section 513. |
Waiver of Past Defaults |
37 |
Section 514. |
Undertaking for Costs |
37 |
Section 515. |
Waiver of Usury, Stay or Extension Laws |
37 |
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Article Six |
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The Trustee |
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Section 601. |
Certain Duties and Responsibilities |
38 |
Section 602. |
Notice of Defaults |
39 |
Section 603. |
Certain Rights of Trustee |
39 |
Section 604. |
Not Responsible for Recitals or Issuance of Securities |
41 |
Section 605. |
May Hold Securities |
42 |
Section 606. |
Money Held in Trust |
42 |
Section 607. |
Compensation and Reimbursement |
42 |
Section 608. |
Disqualification; Conflicting Interests |
43 |
ii
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Table of Contents |
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(continued) |
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Page |
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Section 609. |
Corporate Trustee Required; Eligibility |
43 |
Section 610. |
Resignation and Removal; Appointment of Successor |
43 |
Section 611. |
Acceptance of Appointment by Successor |
45 |
Section 612. |
Merger, Conversion, Consolidation or Succession to Business |
46 |
Section 613. |
Preferential Collection of Claims Against Company |
46 |
Section 614. |
Appointment of Authenticating Agent |
46 |
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Article Seven |
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Holders Lists and Reports by Trustee and Company |
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Section 701. |
Company to Furnish Trustee Names and Addresses of Holders |
48 |
Section 702. |
Preservation of Information; Communications to Holders |
49 |
Section 703. |
Reports by Trustee |
49 |
Section 704. |
Reports by Company |
49 |
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Article Eight |
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Consolidation, Merger, Conveyance, Transfer or Lease |
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Section 801. |
Company May Consolidate, Etc., Only on Certain Terms |
50 |
Section 802. |
Successor Corporation Substituted |
52 |
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Article Nine |
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Supplemental Indentures |
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Section 901. |
Supplemental Indentures Without Consent of Holders |
52 |
Section 902. |
Supplemental Indentures With Consent of Holders |
53 |
Section 903. |
Execution of Supplemental Indentures |
55 |
Section 904. |
Effect of Supplemental Indentures |
55 |
Section 905. |
Conformity with Trust Indenture Act |
55 |
Section 906. |
Reference in Securities to Supplemental Indentures |
55 |
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Article Ten |
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Covenants |
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Section 1001. |
Payment of Principal, Premium and Interest |
55 |
Section 1002. |
Maintenance of Office or Agency |
56 |
Section 1003. |
Money for Securities Payments to Be Held in Trust |
56 |
Section 1004. |
Statement by Officers as to Default |
57 |
iii
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Table of Contents |
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(continued) |
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Page |
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Section 1005. |
Existence |
58 |
Section 1006. |
Payment of Taxes |
58 |
Section 1007. |
Limitation on Liens |
58 |
Section 1008. |
Waiver of Certain Covenants |
58 |
Section 1009. |
Calculation of Original Issue Discount |
59 |
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Article Eleven |
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Redemption of Securities |
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Section 1101. |
Companys Right of Redemption |
59 |
Section 1102. |
Applicability of Article |
59 |
Section 1103. |
Election to Redeem; Notice to Trustee |
59 |
Section 1104. |
Selection by Trustee of Securities to Be Redeemed |
60 |
Section 1105. |
Notice of Redemption |
60 |
Section 1106. |
Deposit of Redemption Price |
61 |
Section 1107. |
Securities Payable on Redemption Date |
62 |
Section 1108. |
Securities Redeemed in Part |
62 |
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Article Twelve |
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Defeasance and Covenant Defeasance |
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Section 1201. |
Companys Option to Effect Defeasance or Covenant Defeasance |
62 |
Section 1202. |
Defeasance and Discharge |
62 |
Section 1203. |
Covenant Defeasance |
63 |
Section 1204. |
Conditions to Defeasance or Covenant Defeasance |
63 |
Section 1205. |
Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions |
65 |
Section 1206. |
Reinstatement |
66 |
Section 1207. |
Qualifying Trustee |
66 |
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Exhibit A |
Form of Security |
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iv
CERTAIN SECTIONS
OF THIS INDENTURE RELATING
TO SECTIONS 310 THROUGH 318,
INCLUSIVE OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE ACT SECTION |
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INDENTURE SECTION |
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SECTION 310(a)(1) |
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609, 610 |
(a)(2) |
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609 |
(a)(3) |
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NOT APPLICABLE |
(a)(4) |
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NOT APPLICABLE |
(a)(5) |
|
609 |
(b) |
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608, 610 |
SECTION 311(a) |
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613 |
(b) |
|
613 |
SECTION 312(a) |
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701, 702 |
(b) |
|
702 |
(c) |
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702 |
SECTION 313(a) |
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703 |
(b) |
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703 |
(c) |
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703 |
(d) |
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703 |
SECTION 314(a) |
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704 |
(a)(4) |
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101, 1004 |
(b) |
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NOT APPLICABLE |
(c)(1) |
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102 |
(c)(2) |
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102 |
(c)(3) |
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NOT APPLICABLE |
(d) |
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NOT APPLICABLE |
(e) |
|
102 |
SECTION 315(a) |
|
601 |
(b) |
|
602 |
(c) |
|
601 |
(d) |
|
601 |
(e) |
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514 |
SECTION 316(a) |
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101 |
(a)(1)(a) |
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502, 512 |
(a)(1)(b) |
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513 |
(a)(2) |
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NOT APPLICABLE |
(b) |
|
508 |
(c) |
|
104 |
SECTION 317(a)(1) |
|
503 |
(a)(2) |
|
504 |
v
(b) |
1003 |
SECTION 318(a) |
107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
vi
SENIOR INDENTURE, dated as of May 21, 2009, among PRINCIPAL FINANCIAL GROUP, INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the Company, as such term is further defined herein), PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the State of Iowa, as guarantor (herein called the Subsidiary Guarantor, as such term is further defined herein), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association incorporated and existing under the laws of the United States of America, as Trustee (herein called the Trustee, as such term is further defined herein).
RECITALS OF THE
COMPANY AND
THE SUBSIDIARY GUARANTOR
Each of the Company and the Subsidiary Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Companys unsecured senior debt securities in one or more series (the Securities) of substantially the tenor hereinafter provided, and, if applicable, the guarantee thereof by the Subsidiary Guarantor, on an unsecured senior basis, subject to the limitations hereinafter provided, and to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered; and all things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and, if applicable, any guarantee, the valid obligation of the Subsidiary Guarantor, and to make this Indenture a valid and legally binding agreement of the Company and, to the extent applicable, the Subsidiary Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of a series thereof, as follows:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term generally accepted accounting principles with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the time of such computation; provided, that when two or more principles are so generally accepted, it shall mean that set of principles consistent with those in use by the Company;
(4) unless the context otherwise requires, any reference to an Article or a Section refers to an Article or a Section, as the case may be, of this Indenture; and
(5) the words herein, hereinafter, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, control when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities.
Board of Directors means the board of directors of the Company or the Subsidiary Guarantor, as applicable, any duly authorized committee of that board or any officer of the Company or the Subsidiary Guarantor, as applicable, delegated the power of either the board of directors of the Company or the Subsidiary Guarantor, as applicable, or any duly authorized committee of that board.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Subsidiary Guarantor, as applicable, to have
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been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the Corporate Trust Office, banking institutions in New York, New York, Chicago, Illinois or Des Moines, Iowa, or any Place of Payment are authorized or obligated by law or executive order to close.
Commission means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
Company means the Person named as the Company in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Company shall mean such successor Person.
Company Request and Company Order mean, respectively, a written request or order signed in the name of the Company by (i) its Chairman, President, Chief Executive Officer, any Vice President or any other person duly authorized from time to time by the Company or its Board of Directors and (ii) its Treasurer, any Associate Treasurer, any Director, Corporate Treasury, its Controller, its Secretary, any Assistant Secretary or any other person duly authorized from time to time by the Company or its Board of Directors, and delivered to the Trustee, or, with respect to Company Requests and Company Orders delivered pursuant to Section 303, Section 304, Section 305 and Section 603, any other employee of the Company named in an Officers Certificate delivered to the Trustee.
Corporate Trust Office means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602, Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
corporation means a corporation, association, company, joint-stock company or business trust.
Covenant Defeasance has the meaning specified in Section 1203.
Defaulted Interest has the meaning specified in Section 307.
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Defeasance has the meaning specified in Section 1202.
Depositary means the clearing agency registered under the Exchange Act that is designated by the Company in Section 301 to act as depositary for any series of Securities with respect to such series (or any successor to such clearing agency).
Dollar means the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Event of Default unless otherwise specified with respect to Securities of a series pursuant to Section 301, has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
Expiration Date has the meaning specified in Section 104.
Foreign Currency means any currency issued by (1) the government of one or more countries other than the United States of America or (2) by any recognized confederation or association of such governments that is reasonably acceptable to the Trustee.
Global Security means a Security that evidences all or part of a series of Securities issued to the Depositary or its nominee for such series, and registered in the name of such Depositary or its nominee and bearing the legend set forth in Section 202.
Governmental Authority means any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
Government Obligations means, with respect to the Securities of any series, securities which are (i) direct obligations of the United States of America or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed by the United States of America and which, in either case, are full faith and credit obligations of the United States of America and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Government Obligation held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
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Holder means a Person in whose name a Security is registered in the Security Register.
Indebtedness of any Person means the principal of (and premium, if any) and interest due on indebtedness of such Person, whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, whether recourse is to all or a portion of the assets of such Person and whether or not contingent which is (a) indebtedness for money borrowed, and (b) any amendments, renewals, extensions, modifications and refundings of any such indebtedness. For the purposes of this definition, indebtedness for money borrowed means (i) any obligation of, or any obligation guaranteed by, such Person for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, (ii) any obligation of, or any such obligation guaranteed by, such Person evidenced by bonds, debentures, notes or similar written instruments, including obligations assumed or incurred in connection with the acquisition of property, assets or businesses (provided, however, that the deferred purchase price of any property, assets or business shall not be considered Indebtedness if the purchase price thereof is payable in full within 90 days from the date on which such indebtedness was created), and (iii) any obligations of such Person as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles and leases of property or assets made as part of any sale and lease-back transaction to which such Person is a party. Indebtedness does not include trade accounts payable or accrued liabilities arising in the ordinary course of business.
Indenture means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of each particular series of Securities established as contemplated by Section 301, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
Interest Payment Date means as to each series of Securities the Stated Maturity of an installment of interest on such Securities.
Interest Rate means the rate of interest specified or determined as specified in each Security as being the rate of interest payable on such Security.
Investment Company Act means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
Lien means any mortgage, pledge, lien, security interest or other encumbrance.
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Maturity when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as provided in the Securities or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 501(3).
Officers Certificate means a certificate signed by (i) the Chairman, President, Chief Executive Officer or any Vice President, and (ii) the Treasurer, any Associate Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary, of the Company or the Subsidiary Guarantor, as applicable, and delivered to the Trustee. One of the officers signing an Officers Certificate given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Company or the Subsidiary Guarantor, as applicable.
Opinion of Counsel means a written opinion of counsel, who may be counsel for (and an employee of) the Company or the Subsidiary Guarantor, as applicable.
Original Issue Date means the date of issuance specified as such in each Security.
Original Issue Discount Security means any security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
Outstanding when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that
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such Securities are held by Holders in whose hands such Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, and (C) Securities beneficially owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in conclusively relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means the Trustee or any other Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, joint venture, association, limited liability or joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Place of Payment means, with respect to the Securities of any series, the place or places where the principal of and any premium and interest on the Securities of such series are payable as specified as contemplated by Section 301.
Predecessor Security of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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Preferred Stock shall mean any capital stock entitled by its terms to a preference (a) as to dividends or (b) upon a distribution of assets.
Redemption Date when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities of a series means, unless otherwise provided pursuant to Section 301 with respect to Securities of a series, the date which is fifteen days next preceding such Interest Payment Date (whether or not a Business Day).
Responsible Officer shall mean any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such persons knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
Restricted Subsidiary means Principal Life Insurance Company and any other Subsidiary which is incorporated in any State of the United States or in the District of Columbia and which is a regulated insurance company principally engaged in one or more of the life, annuity, property and casualty insurance businesses, provided that no such Subsidiary, other than Principal Life Insurance Company, shall be a Restricted Subsidiary if (i) the total assets of such Subsidiary are less than 10% of the total assets of the Company and its consolidated Subsidiaries (including such Subsidiary), in each case as set forth on the most recent fiscal year-end balance sheets of such Subsidiary and the Company and its consolidated Subsidiaries, respectively, and computed in accordance with generally accepted accounting principles, or (ii) in the judgment of the Board of Directors, as evidenced by a Board Resolution, such Subsidiary is not material to the financial condition of the Company and its consolidated Subsidiaries taken as a whole.
Securities or Security means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
Security Register and Security Registrar have the respective meanings specified in Section 305.
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Special Record Date for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
Stated Maturity when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, in the case of such principal or installment of principal, as such date may be extended or shortened as provided pursuant to the terms of such Security.
Subsidiary means a corporation, partnership or other entity of which, at the time of determination, more than 50% of the outstanding voting stock or equivalent interest is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, voting stock means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
Subsidiary Guarantee or Guarantee when used with respect to the Securities of or within any series, means a guarantee by the Subsidiary Guarantor, on an unsecured senior basis, of the obligations of the Company under the Securities, which guarantee may be included in an indenture or indentures supplemental hereto or in a separate agreement pursuant to such indenture supplemental hereto; provided, however, that the Subsidiary Guarantor may guarantee, on an unsecured senior basis, only obligations of the Company under non-convertible Securities.
Subsidiary Guarantor or Guarantor means the Person named as the Subsidiary Guarantor in the first paragraph of this instrument and its successors and assigns.
Trustee means the Person named as the Trustee in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee hereunder, and, if at any time there is more than one such Person, Trustee as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of that series.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
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Vice President when used with respect to the Company or the Trustee, means any officer with a title of Vice President, Senior Vice President or Executive Vice President.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers, or other management employee of the Company or any Subsidiary stating that the information with respect to such factual matters is in the possession of the Company or such Subsidiary, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
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The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration, or any rescission or annulment of any such declaration, referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the
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applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Companys expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the Expiration Date and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(1) the Trustee by any Holder or by the Company or by the Subsidiary Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed to or with the Trustee in writing at its Corporate Trust Office;
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument
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or at any other address previously furnished in writing to the Trustee by the Company, Attention: General Counsel; or
(3) the Subsidiary Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class, postage prepaid, to the Subsidiary Guarantor addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Subsidiary Guarantor, Attention: General Counsel.
None of the Company, the Subsidiary Guarantor and the Trustee shall be deemed to have received any such request, demand, authorization, direction, notice, consent, waiver or Act of Holders unless given, furnished or filed as provided in this Section 105.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the written approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
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EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
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The Trustees certificate of authentication shall be substantially in the form set forth in this Article.
The definitive Securities shall be printed, typewritten or produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
The Securities of each series will initially be issued in the form of one or more Global Securities. Each such Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and each shall provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amounts of Outstanding Securities of such series represented thereby may from time to time be reduced or increased, as appropriate. The
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Global Security or Securities evidencing the Securities of a series (and all Securities issued in exchange therefor) shall bear the legend indicated in Section 202.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Certificate of Authentication
This is one of the Securities referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
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By: |
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Authorized Signatory |
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Dated: |
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The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of a series:
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provided, that if the Subsidiary Guarantor will guarantee the obligations of the Company under the Securities of a series, such matters shall be established in one or more indenture supplements hereto to which the Company, the Subsidiary Guarantor and the Trustee shall be a party.
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set forth in such Officers Certificate or in any such indenture supplemental hereto.
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If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers Certificate setting forth the terms of the series.
Securities bearing the manual or facsimile signature of an individual who was at any time a proper officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities.
Notwithstanding the provisions of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Company Order otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such Company Order is delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security
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shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Minor typographical and other minor errors in the text of any Security shall not affect the validity and enforceability of such Security if it has been duly authenticated and delivered by the Trustee.
The Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities with respect to each series of Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the initially issued Securities of such series, (ii) shall be registered in the name of the Depositary or the nominee of the Depositary, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositarys instruction and (iv) shall bear a legend substantially in the form required in Section 202.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines in good faith that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
The Depositary must, at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act, and any other applicable statute or regulation.
Neither the Trustee nor any agent shall have any responsibility for any actions taken or not taken by the Depositary.
If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company in a Place of Payment without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and having the same
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Original Issue Date and Stated Maturity and having the same terms as such temporary Securities. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.
Upon surrender for registration of transfer of any Security at the office or agency of the Company in a Place of Payment, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of any authorized denominations and of a like tenor and aggregate principal amount, of the same original Issue Date and Stated Maturity and having the same terms.
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the individual Securities represented thereby, a Global Security representing all or a portion of the Securities may not be transferred except as a whole by the Depositary to a nominee of such Depositary, or by a nominee of such Depositary to such Depositary or another nominee of such Depositary, or by such Depositary or any such nominee to a successor Depositary or nominee of such successor Depositary.
At the option of the Holder, Securities may be exchanged for other Securities, of the same series of any authorized denominations, of like tenor and aggregate principal amount, of the same Original Issue Date and Stated Maturity and having the same terms, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary or if at any time the Depositary shall cease to be a clearing agency registered under the Exchange Act as provided in Section 303, the Company shall appoint a successor Depositary. If a successor Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal
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to the principal amount of the Global Security or Securities representing the Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion (subject to the procedures of the Depositary) determine that individual Securities issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing the Securities in exchange for such Global Security or Securities.
The Depositary may surrender a Global Security in exchange in whole or in part for individual Securities on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and make available for delivery, without service charge:
(1) to each Person specified by such Depositary a new individual Security or Securities of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Persons beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of individual Securities delivered to Holders thereof.
Upon the exchange of a Global Security for individual Securities in an aggregate principal amount equal to the principal amount of such Global Security, such Global Security shall be canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall make available for delivery such individual Securities to the Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to
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the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, Section 906 or Section 1108 not involving any transfer.
Neither the Company nor the Trustee shall be required, pursuant to the provisions of this Section: (i) to issue, register the transfer of or exchange any Security of any series during a period beginning at the opening of business 15 calendar days before the day of the mailing of a notice of redemption of any such Securities selected for redemption of Securities pursuant to Article Eleven and ending at the close of business on the day of such mailing of notice of redemption; or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except, in the case of any Security to be redeemed in part, any portion thereof that is not redeemed.
If there shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the issuing Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same issue and series of like tenor and principal amount, having the same Original Issue Date and Stated Maturity and bearing the same Interest Rate as such destroyed, lost or stolen Security, and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
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that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Any interest on any Security which is payable, but is not timely paid or duly provided for, on any Interest Payment Date for Securities of such series (herein called Defaulted Interest), shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series in respect of which interest is in default (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not
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less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class, postage prepaid, to each Holder of a Security of such series at the address of such Holder as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of the series in respect of which interest is in default may be listed, and upon such notice as may be required by such exchange (or by the Trustee if the Securities are not listed), if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
None of the Company, the Subsidiary Guarantor, the Trustee and any agent of the Company, the Subsidiary Guarantor, or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
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Section 309. Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Securities surrendered directly to the Trustee for any such purpose shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed by the Trustee in accordance with its customary procedures or as directed by a Company Order, and the Trustee shall deliver to the Company a certificate evidencing the disposition of the cancelled Securities upon its request therefor. Acquisition by the Company of any Security shall not operate as a redemption or satisfaction of the indebtedness represented by such Security unless and until the same is delivered to the Trustee for cancellation.
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(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year of the date of deposit, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds: (A) money; (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money; or (C) a combination thereof, in each case in an amount sufficient to pay and discharge, and which shall be applied by the Trustee, to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; provided, that the Trustee shall have the right (but not the obligation) to require the Company to deliver to the Trustee an opinion of a nationally recognized firm of independent public accountants expressed in a written certification, or other evidence satisfactory to the Trustee, as to the sufficiency of deposits made by the Company pursuant to this Section;
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to this Section 401 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607 and the preceding paragraph, the obligations of the Company to any Authenticating Agent under Section 614 and, if money and/or Government Obligations shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
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At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
No such rescission shall affect any subsequent default or impair any right consequent thereon.
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If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
(i) to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding, and
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(ii) in particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same in accordance with Section 506; and
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors or other similar committee.
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid upon such series of Securities for principal (and premium, if any) and interest in respect of which or for the benefit of which such money has been collected, ratably, without
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preference or priority of any kind, according to the amounts due and payable on such series of Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its successors or assigns or as a court of competent jurisdiction may direct.
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Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
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(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgement made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any
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series, determined as provided in Section 101, Section 104 and Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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Notwithstanding anything else herein contained, (i) the Trustee shall not be liable for any error of judgment made in good faith by any officer of the Trustee and (ii) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it believes the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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The Trustee may resign as Trustee at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the resigning Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent
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jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed as Trustee hereunder at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
If at any time an instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the date a notice of removal is delivered to the Trustee, the Trustee being removed may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the
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applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security for at least six months may, subject to Section 514, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
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If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of an Authenticating Agent, shall be the successor Authenticating Agent hereunder, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested
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with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time compensation for its services under this Section as agreed to in writing between the parties.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustees certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned Indenture.
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The Bank of New York Mellon Trust Company, N.A., as Trustee |
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The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee whenever any Securities are listed on any stock exchange and any delisting thereof.
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Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
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In case of any such consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form may be made in the Securities thereafter to be issued as may be appropriate.
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rights of the Holders of Securities of such series under this Indenture and, if applicable, the Subsidiary Guarantor and the Trustee may enter into an agreement or agreements supplemental hereto to add to or to change or eliminate any provisions of a Subsidiary Guarantee; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture, or a supplemental agreement which changes or eliminates any covenant or other provision of a Subsidiary Guarantee, which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
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Unless otherwise specified as contemplated by Section 301, the Company shall pay interest on overdue amounts at the rate set forth in the first paragraph of the Securities, and it shall pay interest on overdue interest at the same rate (to the extent that the payment of such interest shall be legally enforceable), which interest on overdue interest shall accrue from the date such amounts became overdue.
The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York and each other Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of the principal of or interest on any Securities, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
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Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent, (2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal (and premium, if any) or interest, and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by the Company or any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money or U.S. Government Obligation (including the proceeds thereof and the interest thereon) deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company at its option on Company Request (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) or (if then held by the Company) shall (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
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the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
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provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
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a series, the Company shall, at least 45 days but not more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers Certificate and an Opinion of Counsel evidencing compliance with such restriction or condition.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in the case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.
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redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at its address appearing in the Security Register. Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest shall cease to accrue on the Securities.
All notices of redemption shall state:
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Companys request, by the Trustee in the name and at the expense of the Company and shall be irrevocable; provided that, in the latter case, the Company will give the Trustee at least 10 days prior notice of the date of the giving of such notice. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.
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Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
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deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1204 are satisfied (hereinafter called Defeasance). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company and upon Company Request, shall execute proper instruments acknowledging the same), subject to the following, which shall survive until otherwise terminated or discharged hereunder: (1) the Companys obligations with respect to such Securities under Section 304, Section 305, Section 306, Section 1002 and Section 1003; (2) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including but not limited to those enumerated under Section 601, Section 603 and Section 607; and (3) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1203 applied to such Securities.
Notwithstanding any Covenant Defeasance with respect to Section 801, any Person that would otherwise have been required to assume the obligations of the Company pursuant to said Section shall be required, as a condition to any merger, consolidation, conveyance, transfer or lease contemplated thereby, to assume the obligations of the Company to the Trustee under Section 607 and Section 1205.
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1204 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
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Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations held by it as provided in Section 1204 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee or in the opinion of such other Persons delivered to the Trustee as shall be reasonably satisfactory to the Trustee (which may be the same opinion delivered to the Trustee under Section 1204(1)), are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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PRINCIPAL FINANCIAL GROUP, INC. |
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/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title: Senior Vice President and |
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PRINCIPAL FINANCIAL SERVICES, |
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/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title: Senior Vice President and |
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THE BANK OF NEW YORK MELLON |
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/s/ Roxane Ellwanger |
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Name: Roxane Ellwanger |
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Title: Assistant Vice President |
[Signature page to Senior Indenture]
EXHIBIT A
[SPECIMEN BOND]
(FORM OF FACE OF SECURITY)
[If the Security is an Original Issue Discount Security, insertFor purposes of Section 1271 of the United States Internal Revenue Code of 1986, as amended, the issue price of this security is % of its principal amount and the Issue Date is ]
PRINCIPAL
FINANCIAL GROUP, INC.
[Title of Security]
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CUSIP: |
No. |
$ |
PRINCIPAL FINANCIAL GROUP, INC., a corporation organized and existing under the laws of Delaware (hereinafter called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to [Insert if Global Security-Cede & Co.], or registered assigns, the principal sum of Dollars on [If the Security is to bear interest prior to Maturity, insert , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on and in each year, commencing , at the rate of % per annum, on the basis of a 360-day year consisting of twelve 30-day months, until the principal hereof is paid or duly provided for or made available for payment] [(If applicable insert , and (to the extent that the payment of such interest shall be legally enforceable) at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest)].
[If the Security is to bear interest prior to Maturity, insert The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the date which is fifteen days (whether or not a Business Day) next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of
A-1
this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable, insert any interest] on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert ; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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PRINCIPAL FINANCIAL GROUP, INC. |
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A-2
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON |
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By: |
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Authorized Signatory |
Dated:
A-3
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be issued in one or more series under a Senior Indenture, dated as of as supplemented and amended from time to time (herein called the Indenture), between the Company, Principal Financial Services, Inc., as guarantor (herein called the Subsidiary Guarantor, as such term is further defined in the Indenture), and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Subsidiary Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable insert , limited in aggregate principal amount to $ ].
All terms used in this Security that are defined in the Indenture shall have the meaning assigned to them in the Indenture.
[If applicable, insert The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice by mail, at any time [on or after ], as a whole or in part, at the election of the Company. The Redemption Price for any Security so redeemed shall be equal to 100% of the principal amount of such Securities then Outstanding plus accrued and unpaid interest up to but not including the date fixed for redemption. In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[Installments of accrued and unpaid interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of the Securities of this series, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Dates according to their terms.]
The Indenture contains provisions for satisfaction, discharge and defeasance of the entire indebtedness on this security, upon compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.] [If the security is an Original Issue Discount Security, If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be
A-4
declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to insert formula for determining the amount.
Upon payment of the amount of principal so declared due and payable [if applicable insert and of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable)], all of the Companys obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
[If the securities of this series are not guaranteed by the Subsidiary Guarantor, insert The Subsidiary Guarantor shall not guarantee the obligations of the Company under this Security.] [If the securities of this series are guaranteed by the Subsidiary Guarantor, insert The Subsidiary Guarantor shall guarantee, on an unsecured senior
basis, the obligations of the Company this Security, subject to the terms, conditions and limitations provided in the Indenture and the subsidiary guarantee dated .]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this
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series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $ and in multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THIS SECURITY OR THE TRANSACTION CONTEMPLATED HEREBY.
A-6
Exhibit 4.2
Execution Copy
7.875% Senior Notes due 2014
PRINCIPAL FINANCIAL GROUP, INC.,
as Issuer,
and
PRINCIPAL FINANCIAL SERVICES, INC.,
as Guarantor
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 21, 2009
TABLE OF CONTENTS
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ARTICLE I |
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The Series of Securities |
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SECTION 1.1. |
Establishment |
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SECTION 1.2. |
Definitions |
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SECTION 1.3. |
Payment of Principal, Premium, if any, and Interest |
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SECTION 1.4. |
Denominations |
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SECTION 1.5. |
No Sinking Fund |
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SECTION 1.6. |
Global Securities |
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SECTION 1.7. |
Transfer |
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SECTION 1.8. |
Defeasance |
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SECTION 1.9. |
Optional Redemption |
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SECTION 1.10. |
Events of Default |
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ARTICLE II |
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Guarantee |
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SECTION 2.1. |
Guarantee |
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ARTICLE III |
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Miscellaneous |
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SECTION 3.1. |
Recitals by the Company |
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SECTION 3.2. |
Application of Supplemental Indenture |
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SECTION 3.3. |
Executed in Counterparts |
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SECTION 3.4. |
Governing Law; Waiver of Jury Trial |
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Exhibit A |
Form of Global Note |
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Exhibit B |
Form of Guarantee |
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FIRST SUPPLEMENTAL INDENTURE, dated as of May 21, 2009, among PRINCIPAL FINANCIAL GROUP, INC., a corporation duly organized and existing under the laws of the State of Delaware (the Company, as further defined in the Original Indenture hereinafter referred to), PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the State of Iowa, as guarantor (the Guarantor, as further defined in the Original Indenture hereinafter referred to), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association incorporated and existing under the laws of the United States of America, as trustee (the Trustee, as further defined in the Original Indenture hereinafter referred to).
WHEREAS, the Company, the Guarantor and the Trustee have heretofore entered into an Indenture, dated as of May 21, 2009 (the Original Indenture), with the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference and the Original Indenture, as supplemented by this First Supplemental Indenture, is herein called the Indenture;
WHEREAS, Section 301 of the Original Indenture provides for various matters with respect to Securities issued under the Original Indenture to be established in an indenture supplemental to the Original Indenture;
WHEREAS, Section 901(4) of the Original Indenture permits the execution and delivery of a supplemental indenture without the consent of any Holders to establish the form or terms of Securities of any series;
WHEREAS, the Company proposes to create under the Indenture a new series of Securities;
WHEREAS, the Guarantor will fully and unconditionally guarantee the obligations of the Company under the new series of Securities in accordance with the provisions of the Indenture; and
WHEREAS, all the conditions and requirements necessary to make this First Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in accordance with its terms and for the purposes herein expressed have been performed and fulfilled.
NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
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There is hereby established a new series of Securities to be issued under the Indenture, to be designated as the Companys 7.875% Senior Notes due 2014 (the Senior Notes).
The initial limit upon the aggregate principal amount of the Senior Notes that may be authenticated and delivered under the Indenture (except for (i) Senior Notes authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, other Senior Notes pursuant to Sections 304, 305, 306, 906 or 1108 of the Original Indenture, and (ii) any Senior Notes which, pursuant to Section 303 of the Original Indenture, are deemed never to have been authenticated and delivered thereunder) is $400,000,000; provided, however, that the aggregate principal amount of the Senior Notes may be increased in the future, without the consent of the holders of the Senior Notes, on the same terms and with the same CUSIP and ISIN numbers as the Senior Notes, except that the issue price, the first interest payment date and the issue date may vary.
The Senior Notes shall be issued in the form of one or more Global Securities in substantially the form set forth in Exhibit A hereto. The Depositary with respect to the Senior Notes shall be The Depository Trust Company.
The following defined terms used herein shall, unless the context otherwise requires, have the meanings specified below. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Original Indenture.
Interest Payment Date means May 15 and November 15 of each year, commencing November 15, 2009.
Regular Record Date mean, the May 1 or November 1 of each year (whether or not a Business Day) immediately preceding the related Interest Payment Date.
The Senior Notes will mature on May 15, 2014. The Senior Notes shall bear interest at the rate of 7.875% per annum from May 21, 2009. Interest shall be paid semi-annually on each Interest Payment Date, commencing November 15, 2009, to the Person in whose name the Senior Notes are registered on the Regular Record Date for
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such Interest Payment Date. Any such interest that is not so punctually paid or duly provided for will forthwith cease to be payable to the holders on such Regular Record Date and may be paid as provided in Section 307 of the Original Indenture.
Principal of, and premium, if any, and interest on the Senior Notes will be payable, and transfers of the Senior Notes will be registrable, at the Companys office or agency in the Borough of Manhattan, The City of New York, which initially shall be the Corporate Trust Office of the Trustee. Transfers of the Senior Notes will also be registrable at any of the Companys other offices or agencies that it may maintain for that purpose.
The Senior Notes may be issued in denominations of $2,000 or any multiple of $1,000 in excess thereof.
The Senior Notes are not entitled to the benefit of any sinking fund.
The Senior Notes will be issued in the form of one or more Global Securities registered in the name of the Depositary or its nominee. Except under the limited circumstances described below, Senior Notes represented by Global Securities will not be exchangeable for, and will not otherwise be issuable as, Senior Notes in definitive form. The Global Securities described above may not be transferred except as a whole by the Depositary to a nominee of the Depositary, or by a nominee of the Depositary to the Depositary or another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or its nominee.
Owners of beneficial interests in such Global Securities will not be considered the holders thereof for any purpose under the Indenture, and no Global Security representing a Senior Note shall be exchangeable, except for another Global Security of like denomination and tenor to be registered in the name of the Depositary or its nominee or to a successor Depositary or its nominee. The rights of holders of such Global Securities shall be exercised only through the Depositary.
A Global Security shall be exchangeable for Senior Notes registered in the names of Persons other than the Depositary or its nominee only as provided by Section 305 of the Original Indenture. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Senior Notes registered in such names as the Depositary shall direct.
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No service charge will be made for any registration of transfer or exchange of Senior Notes, but payment will be required of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The provisions of Sections 1202 and 1203 of the Original Indenture will apply to the Senior Notes.
The Senior Notes will be redeemable, at the option of the Company, in whole at any time or in part from time to time (a Redemption Date), at a redemption price (the Redemption Price) equal to the greater of (i) 100% of the principal amount of the Senior Notes to be redeemed or (ii) an amount equal to the sum of the present values of the remaining scheduled payments of principal and interest on the Senior Notes to be redeemed, not including any portion of the payments of interest accrued as of such Redemption Date, discounted to such Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 50 basis points, as calculated by an Independent Investment Banker; plus in each case, accrued and unpaid interest on the Senior Notes to be redeemed to, but excluding, such Redemption Date.
If the Company has given notice as provided in the Original Indenture and made funds available for the redemption of any Senior Notes called for redemption on the Redemption Date referred to in that notice, those Senior Notes will cease to bear interest on that Redemption Date. Any interest accrued to the date fixed for redemption will be paid as specified in such notice. The Company will give written notice of any redemption of any Senior Notes to holders of the Senior Notes to be redeemed at their addresses, as shown in the security register for the Senior Notes, at least 30 days and not more than 60 days prior to the date fixed for redemption. The notice of redemption will specify, among other items, the date fixed for redemption, the redemption price and the aggregate principal amount of the Senior Notes to be redeemed.
If the Company chooses to redeem less than all of the Senior Notes, the particular Senior Notes to be redeemed shall be selected by the Trustee not more than 45 days prior to the Redemption Date. The Trustee will select the method in its sole discretion, in such manner as it shall deem appropriate and fair, for the Senior Notes to be redeemed in part.
Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Senior Notes to be redeemed that would be utilized, at the time of selection
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and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Senior Notes.
Comparable Treasury Price means, with respect to any Redemption Date for the Senior Notes, the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or if the Company obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means an independent investment banking institution of national standing appointed by the Company.
Reference Treasury Dealer means each of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and two other primary U.S government securities dealers (each, a Primary Treasury Dealer), as specified by the Company; provided that if any of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. or any Primary Treasury Dealer as specified by the Company shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to the Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed, in each case, as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such Redemption Date.
Treasury Rate means the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third business day preceding the Redemption Date.
In addition to the Events of Default set forth in Section 501 of the Original Indenture, each of the following will also constitute an Event of Default for the Senior Notes:
· default for 30 days in the payment of any interest on the Senior Notes under the Guarantee by the Guarantor;
· default in the payment of principal of the Senior Notes, or premium, if any, when due under the Guarantee by the Guarantor;
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· default in the performance, or breach, of any covenant or warranty of the Guarantor in the Indenture or the Guarantee (other than a covenant or warranty a default in the performance of which or the breach of which is specifically dealt with elsewhere in this Section), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Guarantor by the Trustee or to the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a Notice of Default hereunder;
· the entry of a decree or order by a court having jurisdiction in the premises adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Guarantor or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or
· the Guarantee ceases to be in full force and effect (other than in accordance with its terms) or the Guarantor denies or disaffirms its obligations under the Guarantee.
The Guarantor shall fully and unconditionally guarantee the Senior Notes pursuant to a guarantee in substantially the form set forth in Exhibit B hereto.
The recitals in this First Supplemental Indenture are made by the Company and the Guarantor only and not by the Trustee, and all of the provisions contained in the Original Indenture in respect of the rights, privileges, immunities, powers and duties of
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the Trustee shall be applicable in respect of the Senior Notes and of this First Supplemental Indenture as fully and with like effect as if set forth herein in full.
Each and every term and condition contained in this First Supplemental Indenture that modifies, amends or supplements the terms and conditions of the Original Indenture shall apply to the Senior Notes created hereby and not to any future series of Securities established under the Original Indenture.
This First Supplemental Indenture may be simultaneously executed in several counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE SENIOR NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE SENIOR NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, each party hereto has caused this First Supplemental Indenture to be duly executed as of the day and year first above written.
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PRINCIPAL FINANCIAL GROUP, INC. |
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By: |
/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title:
Senior Vice President and |
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PRINCIPAL FINANCIAL SERVICES, |
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By: |
/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title:
Senior Vice President and |
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THE BANK OF
NEW YORK MELLON |
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By: |
/s/ Roxane Ellwanger |
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Name: Roxane Ellwanger |
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Title: Assistant Vice President |
[Signature page to First Supplemental Indenture]
EXHIBIT A
[FORM OF
GLOBAL NOTE]
(FORM OF FACE OF SECURITY)
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
PRINCIPAL
FINANCIAL GROUP, INC.
7.875% Senior Notes due 2014
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CUSIP: |
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No. |
$[ ] |
PRINCIPAL FINANCIAL GROUP, INC., a corporation organized and existing under the laws of Delaware (hereinafter called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] Dollars on May 15, 2014, and to pay interest thereon from May 21, 2009 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on May 15 and November 15 in each year, commencing November 15, 2009, at the rate of 7.875% per annum, on the basis of a 360-day year
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consisting of twelve 30-day months, until the principal hereof is paid or duly provided for or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the May 1 or November 1 (whether or not a Business Day) immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
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THE BANK OF
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(FORM OF REVERSE OF SECURITY)
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be issued in one or more series under a Senior Indenture, dated as of May 21, 2009, as supplemented and amended from time to time (herein called the Indenture), between the Company, Principal Financial Services, Inc., as guarantor (herein called the Guarantor, as such term is further defined in the Indenture), and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), including by the First Supplemental Indenture thereto dated as of May 21, 2009 among the Company, the Guarantor and the Trustee (the Supplemental Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $400,000,000.
All terms used in this Security that are defined in the Indenture shall have the meaning assigned to them in the Indenture.
The Securities of this series will be redeemable, at the option of the Company, as set forth in Section 1.9 of the Supplemental Indenture.
The Indenture contains provisions for satisfaction, discharge and defeasance of the entire indebtedness on this security, upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
Upon payment of the amount of principal so declared due and payable and of interest on any overdue principal and overdue interest at the rate per annum applicable to the Securities of this series set forth on the face hereof (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Companys obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
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Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holders of the Securities of such series shall be conclusive and binding upon such Holders and upon all future Holders of Securities of such series and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon such Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and in multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Guarantor shall guarantee, on an unsecured senior basis, the obligations of the Company under this Security, subject to the terms, conditions and limitations provided in the Indenture and the Guarantee, dated as of May 21, 2009, from the Guarantor to the Trustee, relating to this Security.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
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OUT OF OR RELATING TO THE INDENTURE, THIS SECURITY OR THE TRANSACTION CONTEMPLATED HEREBY.
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EXHIBIT B
[FORM OF GUARANTEE]
7.875% Senior Notes due 2014
GUARANTEE
from
PRINCIPAL FINANCIAL SERVICES, INC., as Guarantor
to
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
Dated as of May 21, 2009
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GUARANTEE
This Guarantee (this Guarantee) is made and entered into as of May 21, 2009, from PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the State of Iowa, as guarantor (herein called the Guarantor, which term includes any successor hereunder), to THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association incorporated and existing under the laws of the United States of America, as trustee (the Trustee, as further defined in the Indenture hereinafter referred to). Defined terms used herein without definition shall have the meanings given to them in the Senior Indenture, dated as of May 21, 2009 among Principal Financial Group, Inc., a Delaware corporation (the Company, as further defined in the Indenture hereinafter referred to), the Guarantor and the Trustee, as supplemented by the First Supplemental Indenture, dated as of May 21, 2009, 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 Companys 7.875% Senior Notes due 2014 (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
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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.
Subject to the provisions of this Article 2, 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 to it in accordance with the terms of the Indenture (collectively the Guaranteed Obligation). 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 Guarantors 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:
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(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;
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(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 Company of any or all of its interest in any capital stock of the Guarantor, or any change, restructuring or termination of the corporate structure, ownership, corporate existence or any rights or franchises of the Guarantor;
(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 shall have been finally, indefeasibly and unconditionally paid in full. Any claim of the Guarantor against the Company arising
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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, Merger Conveyance, Transfer or Lease.
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In case of any such consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form may be made in this Guarantee thereafter to be issued as may be appropriate.
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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. All reports, information and documents described in this Section 3.2(a) and filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (EDGAR) system or any successor system shall be deemed to be filed with the Trustee.
(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 Guarantors 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.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its
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covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
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. 711 High Street, Des Moines, Iowa 50392, 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
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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 Guarantors 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. 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.
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SECTION 5.8 Amendment; Modification.
This Guarantee may be amended or modified pursuant to the terms of the Indenture.
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
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Exhibit 4.3
Execution Copy
8.875% Senior Notes due 2019
PRINCIPAL FINANCIAL GROUP, INC.,
as Issuer,
and
PRINCIPAL FINANCIAL SERVICES, INC.,
as Guarantor
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of May 21, 2009
TABLE OF CONTENTS
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ARTICLE I |
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The Series of Securities |
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SECTION 1.1. |
Establishment |
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SECTION 1.2. |
Definitions |
2 |
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SECTION 1.3. |
Payment of Principal, Premium, if any, and Interest |
2 |
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SECTION 1.4. |
Denominations |
3 |
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SECTION 1.5. |
No Sinking Fund |
3 |
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SECTION 1.6. |
Global Securities |
3 |
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SECTION 1.7. |
Transfer |
4 |
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SECTION 1.8. |
Defeasance |
4 |
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SECTION 1.9. |
Optional Redemption |
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SECTION 1.10. |
Events of Default |
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ARTICLE II |
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Guarantee |
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SECTION 2.1. |
Guarantee |
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ARTICLE III |
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Miscellaneous |
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SECTION 3.1. |
Recitals by the Company |
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SECTION 3.2. |
Application of Supplemental Indenture |
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SECTION 3.3. |
Executed in Counterparts |
7 |
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SECTION 3.4. |
Governing Law; Waiver of Jury Trial |
7 |
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Exhibit A |
Form of Global Note |
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Exhibit B |
Form of Guarantee |
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SECOND SUPPLEMENTAL INDENTURE, dated as of May 21, 2009, among PRINCIPAL FINANCIAL GROUP, INC., a corporation duly organized and existing under the laws of the State of Delaware (the Company, as further defined in the Original Indenture hereinafter referred to), PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the State of Iowa, as guarantor (the Guarantor, as further defined in the Original Indenture hereinafter referred to), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association incorporated and existing under the laws of the United States of America, as trustee (the Trustee, as further defined in the Original Indenture hereinafter referred to).
WHEREAS, the Company, the Guarantor and the Trustee have heretofore entered into an Indenture, dated as of May 21, 2009 (the Original Indenture), with the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference and the Original Indenture, as supplemented by this Second Supplemental Indenture, is herein called the Indenture;
WHEREAS, Section 301 of the Original Indenture provides for various matters with respect to Securities issued under the Original Indenture to be established in an indenture supplemental to the Original Indenture;
WHEREAS, Section 901(4) of the Original Indenture permits the execution and delivery of a supplemental indenture without the consent of any Holders to establish the form or terms of Securities of any series;
WHEREAS, the Company proposes to create under the Indenture a new series of Securities;
WHEREAS, the Guarantor will fully and unconditionally guarantee the obligations of the Company under the new series of Securities in accordance with the provisions of the Indenture; and
WHEREAS, all the conditions and requirements necessary to make this Second Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in accordance with its terms and for the purposes herein expressed have been performed and fulfilled.
NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
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There is hereby established a new series of Securities to be issued under the Indenture, to be designated as the Companys 8.875% Senior Notes due 2019 (the Senior Notes).
The initial limit upon the aggregate principal amount of the Senior Notes that may be authenticated and delivered under the Indenture (except for (i) Senior Notes authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, other Senior Notes pursuant to Sections 304, 305, 306, 906 or 1108 of the Original Indenture, and (ii) any Senior Notes which, pursuant to Section 303 of the Original Indenture, are deemed never to have been authenticated and delivered thereunder) is $350,000,000; provided, however, that the aggregate principal amount of the Senior Notes may be increased in the future, without the consent of the holders of the Senior Notes, on the same terms and with the same CUSIP and ISIN numbers as the Senior Notes, except that the issue price, the first interest payment date and the issue date may vary.
The Senior Notes shall be issued in the form of one or more Global Securities in substantially the form set forth in Exhibit A hereto. The Depositary with respect to the Senior Notes shall be The Depository Trust Company.
The following defined terms used herein shall, unless the context otherwise requires, have the meanings specified below. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Original Indenture.
Interest Payment Date means May 15 and November 15 of each year, commencing November 15, 2009.
Regular Record Date mean, the May 1 or November 1 of each year (whether or not a Business Day) immediately preceding the related Interest Payment Date.
The Senior Notes will mature on May 15, 2019. The Senior Notes shall bear interest at the rate of 8.875% per annum from May 21, 2009. Interest shall be paid semi-annually on each Interest Payment Date, commencing November 15, 2009, to the Person in whose name the Senior Notes are registered on the Regular Record Date for
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such Interest Payment Date. Any such interest that is not so punctually paid or duly provided for will forthwith cease to be payable to the holders on such Regular Record Date and may be paid as provided in Section 307 of the Original Indenture.
Principal of, and premium, if any, and interest on the Senior Notes will be payable, and transfers of the Senior Notes will be registrable, at the Companys office or agency in the Borough of Manhattan, The City of New York, which initially shall be the Corporate Trust Office of the Trustee. Transfers of the Senior Notes will also be registrable at any of the Companys other offices or agencies that it may maintain for that purpose.
The Senior Notes may be issued in denominations of $2,000 or any multiple of $1,000 in excess thereof.
The Senior Notes are not entitled to the benefit of any sinking fund.
The Senior Notes will be issued in the form of one or more Global Securities registered in the name of the Depositary or its nominee. Except under the limited circumstances described below, Senior Notes represented by Global Securities will not be exchangeable for, and will not otherwise be issuable as, Senior Notes in definitive form. The Global Securities described above may not be transferred except as a whole by the Depositary to a nominee of the Depositary, or by a nominee of the Depositary to the Depositary or another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or its nominee.
Owners of beneficial interests in such Global Securities will not be considered the holders thereof for any purpose under the Indenture, and no Global Security representing a Senior Note shall be exchangeable, except for another Global Security of like denomination and tenor to be registered in the name of the Depositary or its nominee or to a successor Depositary or its nominee. The rights of holders of such Global Securities shall be exercised only through the Depositary.
A Global Security shall be exchangeable for Senior Notes registered in the names of Persons other than the Depositary or its nominee only as provided by Section 305 of the Original Indenture. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Senior Notes registered in such names as the Depositary shall direct.
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No service charge will be made for any registration of transfer or exchange of Senior Notes, but payment will be required of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The provisions of Sections 1202 and 1203 of the Original Indenture will apply to the Senior Notes.
The Senior Notes will be redeemable, at the option of the Company, in whole at any time or in part from time to time (a Redemption Date), at a redemption price (the Redemption Price) equal to the greater of (i) 100% of the principal amount of the Senior Notes to be redeemed or (ii) an amount equal to the sum of the present values of the remaining scheduled payments of principal and interest on the Senior Notes to be redeemed, not including any portion of the payments of interest accrued as of such Redemption Date, discounted to such Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 50 basis points, as calculated by an Independent Investment Banker; plus in each case, accrued and unpaid interest on the Senior Notes to be redeemed to, but excluding, such Redemption Date.
If the Company has given notice as provided in the Original Indenture and made funds available for the redemption of any Senior Notes called for redemption on the Redemption Date referred to in that notice, those Senior Notes will cease to bear interest on that Redemption Date. Any interest accrued to the date fixed for redemption will be paid as specified in such notice. The Company will give written notice of any redemption of any Senior Notes to holders of the Senior Notes to be redeemed at their addresses, as shown in the security register for the Senior Notes, at least 30 days and not more than 60 days prior to the date fixed for redemption. The notice of redemption will specify, among other items, the date fixed for redemption, the redemption price and the aggregate principal amount of the Senior Notes to be redeemed.
If the Company chooses to redeem less than all of the Senior Notes, the particular Senior Notes to be redeemed shall be selected by the Trustee not more than 45 days prior to the Redemption Date. The Trustee will select the method in its sole discretion, in such manner as it shall deem appropriate and fair, for the Senior Notes to be redeemed in part.
Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Senior Notes to be redeemed that would be utilized, at the time of selection
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and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Senior Notes.
Comparable Treasury Price means, with respect to any Redemption Date for the Senior Notes, the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or if the Company obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means an independent investment banking institution of national standing appointed by the Company.
Reference Treasury Dealer means each of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and two other primary U.S government securities dealers (each, a Primary Treasury Dealer), as specified by the Company; provided that if any of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. or any Primary Treasury Dealer as specified by the Company shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to the Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed, in each case, as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such Redemption Date.
Treasury Rate means the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third business day preceding the Redemption Date.
In addition to the Events of Default set forth in Section 501 of the Original Indenture, each of the following will also constitute an Event of Default for the Senior Notes:
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default for 30 days in the payment of any interest on the Senior Notes under the Guarantee by the Guarantor; |
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default in the payment of principal of the Senior Notes, or premium, if any, when due under the Guarantee by the Guarantor; |
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default in the performance, or breach, of any covenant or warranty of the Guarantor in the Indenture or the Guarantee (other than a covenant or warranty a default in the performance of which or the breach of which is specifically dealt with elsewhere in this Section), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Guarantor by the Trustee or to the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a Notice of Default hereunder; |
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the entry of a decree or order by a court having jurisdiction in the premises adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Guarantor or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or |
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the Guarantee ceases to be in full force and effect (other than in accordance with its terms) or the Guarantor denies or disaffirms its obligations under the Guarantee. |
The Guarantor shall fully and unconditionally guarantee the Senior Notes pursuant to a guarantee in substantially the form set forth in Exhibit B hereto.
The recitals in this Second Supplemental Indenture are made by the Company and the Guarantor only and not by the Trustee, and all of the provisions contained in the Original Indenture in respect of the rights, privileges, immunities, powers and duties of
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the Trustee shall be applicable in respect of the Senior Notes and of this Second Supplemental Indenture as fully and with like effect as if set forth herein in full.
Each and every term and condition contained in this Second Supplemental Indenture that modifies, amends or supplements the terms and conditions of the Original Indenture shall apply to the Senior Notes created hereby and not to any future series of Securities established under the Original Indenture.
This Second Supplemental Indenture may be simultaneously executed in several counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument.
THIS SECOND SUPPLEMENTAL INDENTURE AND THE SENIOR NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECOND SUPPLEMENTAL INDENTURE, THE SENIOR NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, each party hereto has caused this Second Supplemental Indenture to be duly executed as of the day and year first above written.
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PRINCIPAL FINANCIAL GROUP, INC. |
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/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title: Senior
Vice President and |
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PRINCIPAL FINANCIAL SERVICES, INC., as guarantor |
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/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title:
Senior Vice President and |
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
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/s/ Roxane Ellwanger |
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Name: Roxane Ellwanger |
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Title: Assistant Vice President |
[Signature page to Second Supplemental Indenture]
EXHIBIT A
[FORM OF
GLOBAL NOTE]
(FORM OF FACE OF SECURITY)
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
PRINCIPAL
FINANCIAL GROUP, INC.
8.875% Senior Notes due 2019
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PRINCIPAL FINANCIAL GROUP, INC., a corporation organized and existing under the laws of Delaware (hereinafter called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] Dollars on May 15, 2019, and to pay interest thereon from May 21, 2009 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on May 15 and November 15 in each year, commencing November 15, 2009, at the rate of 8.875% per annum, on the basis of a 360-day year
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consisting of twelve 30-day months, until the principal hereof is paid or duly provided for or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the May 1 or November 1 (whether or not a Business Day) immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
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Dated:
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(FORM OF REVERSE OF SECURITY)
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be issued in one or more series under a Senior Indenture, dated as of May 21, 2009, as supplemented and amended from time to time (herein called the Indenture), between the Company, Principal Financial Services, Inc., as guarantor (herein called the Guarantor, as such term is further defined in the Indenture), and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), including by the Second Supplemental Indenture thereto dated as of May 21, 2009 among the Company, the Guarantor and the Trustee (the Supplemental Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $350,000,000.
All terms used in this Security that are defined in the Indenture shall have the meaning assigned to them in the Indenture.
The Securities of this series will be redeemable, at the option of the Company, as set forth in Section 1.9 of the Supplemental Indenture.
The Indenture contains provisions for satisfaction, discharge and defeasance of the entire indebtedness on this security, upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
Upon payment of the amount of principal so declared due and payable and of interest on any overdue principal and overdue interest at the rate per annum applicable to the Securities of this series set forth on the face hereof (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Companys obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
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Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holders of the Securities of such series shall be conclusive and binding upon such Holders and upon all future Holders of Securities of such series and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon such Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and in multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Guarantor shall guarantee, on an unsecured senior basis, the obligations of the Company under this Security, subject to the terms, conditions and limitations provided in the Indenture and the Guarantee, dated as of May 21, 2009, from the Guarantor to the Trustee, relating to this Security.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
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OUT OF OR RELATING TO THE INDENTURE, THIS SECURITY OR THE TRANSACTION CONTEMPLATED HEREBY.
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EXHIBIT B
[FORM OF GUARANTEE]
8.875% Senior Notes due 2019
GUARANTEE
from
PRINCIPAL FINANCIAL SERVICES, INC., as Guarantor
to
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
Dated as of May 21, 2009
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GUARANTEE
This Guarantee (this Guarantee) is made and entered into as of May 21, 2009, from PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the State of Iowa, as guarantor (herein called the Guarantor, which term includes any successor hereunder), to THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association incorporated and existing under the laws of the United States of America, as trustee (the Trustee, as further defined in the Indenture hereinafter referred to). Defined terms used herein without definition shall have the meanings given to them in the Senior Indenture, dated as of May 21, 2009 among Principal Financial Group, Inc., a Delaware corporation (the Company, as further defined in the Indenture hereinafter referred to), the Guarantor and the Trustee, as supplemented by the Second Supplemental Indenture, dated as of May 21, 2009, 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 Companys 8.875% Senior Notes due 2019 (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
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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.
Subject to the provisions of this Article 2, 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 to it in accordance with the terms of the Indenture (collectively the Guaranteed Obligation). 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 Guarantors 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:
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(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;
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(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 Company of any or all of its interest in any capital stock of the Guarantor, or any change, restructuring or termination of the corporate structure, ownership, corporate existence or any rights or franchises of the Guarantor;
(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 shall have been finally, indefeasibly and unconditionally paid in full. Any claim of the Guarantor against the Company arising
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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, Merger Conveyance, Transfer or Lease.
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In case of any such consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form may be made in this Guarantee thereafter to be issued as may be appropriate.
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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. All reports, information and documents described in this Section 3.2(a) and filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (EDGAR) system or any successor system shall be deemed to be filed with the Trustee.
(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 Guarantors 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.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its
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covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
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. 711 High Street, Des Moines, Iowa 50392, 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
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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 Guarantors 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. 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.
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SECTION 5.8 Amendment; Modification.
This Guarantee may be amended or modified pursuant to the terms of the Indenture.
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
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Exhibit 4.4
Execution Copy
7.875% Senior Notes due 2014
GUARANTEE
from
PRINCIPAL FINANCIAL SERVICES, INC., as Guarantor
to
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
Dated as of May 21, 2009
GUARANTEE
This Guarantee (this Guarantee) is made and entered into as of May 21, 2009, from PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the State of Iowa, as guarantor (herein called the Guarantor, which term includes any successor hereunder), to THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association incorporated and existing under the laws of the United States of America, as trustee (the Trustee, as further defined in the Indenture hereinafter referred to). Defined terms used herein without definition shall have the meanings given to them in the Senior Indenture, dated as of May 21, 2009 among Principal Financial Group, Inc., a Delaware corporation (the Company, as further defined in the Indenture hereinafter referred to), the Guarantor and the Trustee, as supplemented by the First Supplemental Indenture, dated as of May 21, 2009, 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 Companys 7.875% Senior Notes due 2014 (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
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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.
Subject to the provisions of this Article 2, 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 to it in accordance with the terms of the Indenture (collectively the Guaranteed Obligation). 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 Guarantors 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:
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(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;
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(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 Company of any or all of its interest in any capital stock of the Guarantor, or any change, restructuring or termination of the corporate structure, ownership, corporate existence or any rights or franchises of the Guarantor;
(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 shall have been finally, indefeasibly and unconditionally paid in full. Any claim of the Guarantor against the Company arising
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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, Merger Conveyance, Transfer or Lease.
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In case of any such consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form may be made in this Guarantee thereafter to be issued as may be appropriate.
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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. All reports, information and documents described in this Section 3.2(a) and filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (EDGAR) system or any successor system shall be deemed to be filed with the Trustee.
(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 Guarantors 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.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its
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covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
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. 711 High Street, Des Moines, Iowa 50392, 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
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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 Guarantors 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. 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.
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SECTION 5.8 Amendment; Modification.
This Guarantee may be amended or modified pursuant to the terms of the Indenture.
[Remainder of this page intentionally blank]
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
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PRINCIPAL FINANCIAL SERVICES, INC. |
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/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title: Senior Vice President and |
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Chief Financial Officer |
[Signature page to Guarantee of 7.875% Senior Notes due 2014]
Exhibit 4.5
Execution Copy
8.875% Senior Notes due 2019
GUARANTEE
from
PRINCIPAL FINANCIAL SERVICES, INC., as Guarantor
to
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
Dated as of May 21, 2009
GUARANTEE
This Guarantee (this Guarantee) is made and entered into as of May 21, 2009, from PRINCIPAL FINANCIAL SERVICES, INC., a corporation duly organized and existing under the laws of the State of Iowa, as guarantor (herein called the Guarantor, which term includes any successor hereunder), to THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association incorporated and existing under the laws of the United States of America, as trustee (the Trustee, as further defined in the Indenture hereinafter referred to). Defined terms used herein without definition shall have the meanings given to them in the Senior Indenture, dated as of May 21, 2009 among Principal Financial Group, Inc., a Delaware corporation (the Company, as further defined in the Indenture hereinafter referred to), the Guarantor and the Trustee, as supplemented by the Second Supplemental Indenture, dated as of May 21, 2009, 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 Companys 8.875% Senior Notes due 2019 (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
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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.
Subject to the provisions of this Article 2, 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 to it in accordance with the terms of the Indenture (collectively the Guaranteed Obligation). 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 Guarantors 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:
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(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;
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(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 Company of any or all of its interest in any capital stock of the Guarantor, or any change, restructuring or termination of the corporate structure, ownership, corporate existence or any rights or franchises of the Guarantor;
(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 shall have been finally, indefeasibly and unconditionally paid in full. Any claim of the Guarantor against the Company arising
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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, Merger Conveyance, Transfer or Lease.
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In case of any such consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form may be made in this Guarantee thereafter to be issued as may be appropriate.
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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. All reports, information and documents described in this Section 3.2(a) and filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (EDGAR) system or any successor system shall be deemed to be filed with the Trustee.
(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 Guarantors 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.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its
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covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
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. 711 High Street, Des Moines, Iowa 50392, 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
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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 Guarantors 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. 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.
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SECTION 5.8 Amendment; Modification.
This Guarantee may be amended or modified pursuant to the terms of the Indenture.
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
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PRINCIPAL FINANCIAL SERVICES, INC. |
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By: |
/s/ Terrance J. Lillis |
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Name: Terrance J. Lillis |
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Title: Senior Vice President and |
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Chief Financial Officer |
[Signature page to Guarantee of 8.875% Senior Notes due 2019]
Exhibit 5.1
[Debevoise & Plimpton LLP Letterhead]
May 21, 2009
Principal
Financial Group, Inc.
711 High Street
Des Moines, Iowa 50392
Principal Financial Group, Inc.
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration Statement on Form S-3 (File Nos. 333-151582 and 333-151582-04) (the Registration Statement) and the Prospectus Supplement, dated May 18, 2009 (the Prospectus Supplement), to the Prospectus, dated June 11, 2008, of Principal Financial Group, Inc., a Delaware corporation (the Company), filed with the Securities and Exchange Commission (the Commission), relating to the issuance and sale by the Company of $400,000,000 aggregate principal amount of its 7.875% Senior Notes due 2014 (the 2014 Notes) and $350,000,000 aggregate principal amount of its 8.875% Senior Notes due 2019 (the 2019 Notes and, together with the 2014 Notes, the Securities) issued pursuant to the Indenture, dated as of May 21, 2009 (the Base Indenture), among the Company, Principal Financial Group, Inc., as guarantor (PFSI), and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as supplemented and amended by the First Supplemental Indenture, dated as of May 21, 2009, among the Company, PFSI and the Trustee relating to the 2014 Notes and the Second Supplemental Indenture, dated as of May 21, 2009, among the Company, PFSI and the Trustee relating to the 2019 Notes (together, the Supplemental Indentures; the Base Indenture, as supplemented and amended by the Supplemental Indentures, the Indenture). The 2014 Notes and the 2019 Notes are fully and unconditionally guaranteed by PFSI pursuant to separate Guarantees, each dated as of May 21, 2009 (together, the Guarantees).
In rendering the opinions expressed below, (a) we have examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of such agreements, documents and records of the Company and PFSI and such other instruments and certificates of public officials, officers and representatives of the Company and PFSI and others as we have deemed necessary or appropriate for the purposes of such opinions, (b) we have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements made in the certificates of public officials, officers and representatives of the Company and PFSI and others delivered to us and (c) we have made such investigations of law as we have deemed necessary or appropriate as a basis
for such opinions. In rendering the opinions expressed below, we have assumed, with your permission, without independent investigation or inquiry, (i) the authenticity and completeness of all documents submitted to us as originals, (ii) the genuineness of all signatures on all documents that we examined, (iii) the conformity to authentic originals and completeness of documents submitted to us as certified, conformed or reproduction copies, (iv) the legal capacity of all natural persons executing documents, (v) the power and authority of the Trustee to enter into and perform its obligations under the Indenture, (vi) the due authorization, execution and delivery of the Indenture by the Trustee, (vii) the enforceability of the Indenture against the Trustee and (viii) the due authentication of the Securities on behalf of the Trustee in the manner provided in the Indenture.
Based upon and subject to the foregoing and the qualifications and limitations hereinafter set forth, we are of the opinion that:
Our opinion set forth above is subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other similar laws relating to or affecting enforcement of creditors rights or remedies generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) concepts of good faith, reasonableness and fair dealing, and standards of materiality.
The opinions expressed herein are limited to the laws of the State of New York and the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware Constitution and the reported cases interpreting those laws, as currently in effect, and we do not express any opinion herein concerning any other laws. In rendering the opinion expressed in paragraph 2 above with respect to the Guarantees, we have relied on all matters relating to the laws of the State of Iowa on the opinion of Karen E. Shaff, the Executive Vice President and General Counsel of the Company and PFSI, delivered to you today.
We hereby consent to the filing of this opinion as an exhibit to the Companys Current Report on Form 8-K filed on May 21, 2009, incorporated by reference in the Registration Statement, and to the reference to our firm under the caption Validity of the Notes in the Prospectus Supplement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
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Very truly yours, |
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/s/ Debevoise & Plimpton LLP |
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Exhibit 5.2
[Principal Financial Group, Inc. Letterhead]
May 21, 2009
Principal
Financial Group, Inc.
711 High Street
Des Moines, Iowa 50392
Principal Financial Group, Inc.
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of Principal Financial Group, Inc., a Delaware corporation (the Company), and Principal Financial Services, Inc., an Iowa corporation (PFSI). In such capacity, I or lawyers in the Companys law department under my supervision have acted as counsel to the Company and PFSI in connection with the Registration Statement on Form S-3 (File Nos. 333-151582 and 333-151582-04) (the Registration Statement) and the Prospectus Supplement, dated May 18, 2009 (the Prospectus Supplement), to the Prospectus, dated June 11, 2008, of the Company, filed with the Securities and Exchange Commission (the Commission) relating to the issuance and sale by the Company of $400,000,000 aggregate principal amount of its 7.875% Senior Notes due 2014 (the 2014 Notes) and $350,000,000 aggregate principal amount of its 8.875% Senior Notes due 2019 (the 2019 Notes) issued pursuant to the Indenture, dated as of May 21, 2009, among the Company, PFSI, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as supplemented and amended by the First Supplemental Indenture, dated as of May 21, 2009, among the Company, PFSI and the Trustee relating to the 2014 Notes and the Second Supplemental Indenture, dated as of May 21, 2009, among the Company, PFSI and the Trustee relating to the 2019 Notes. The 2014 Notes and the 2019 Notes are fully and unconditionally guaranteed by PFSI pursuant to separate Guarantees, each dated as of May 21, 2009 (together, the Guarantees).
In rendering the opinions expressed below, (a) I or lawyers under my supervision have examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of such agreements, documents and records and such other instruments and certificates as we have deemed necessary or appropriate for the purposes of such opinions, (b) I or lawyers under my supervision have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements made in the certificates of others delivered to us and (c) I or lawyers under my supervision have made such
investigations of law as we have deemed necessary or appropriate as a basis for such opinions. In rendering the opinions expressed below, I have assumed, with your permission, without independent investigation or inquiry, (i) the authenticity and completeness of all documents submitted to me or lawyers under my supervision as originals, (ii) the genuineness of all signatures on all documents that I or lawyers under my supervision examined, (iii) the conformity to authentic originals and completeness of documents submitted to me or lawyers under my supervision as certified, conformed or reproduction copies and (iv) the legal capacity of all natural persons executing documents.
Based upon and subject to the foregoing and the qualifications and limitations hereinafter set forth, I am of the opinion that (i) PFSI has the corporate power and authority to execute and deliver the Guarantees and (ii) each Guarantee has been duly authorized, executed and delivered by PFSI.
The opinions expressed herein are limited to the laws of the State of Iowa, as currently in effect, and I do not express any opinion herein concerning any other laws.
I hereby consent to the filing of this opinion as an exhibit to the Companys Current Report on Form 8-K filed on May 21, 2009, incorporated by reference in the Registration Statement, and to the reference to me under the caption Validity of the Notes in the Prospectus Supplement. In giving such consent, I do not thereby concede that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
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Very truly yours, |
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/s/ Karen E. Shaff |
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Karen E. Shaff |
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Executive Vice President and |
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General Counsel |
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