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EXHIBIT 4.10
Common Trust Securities Guarantee Agreement
By
AmerUs Life Holdings, Inc.
(as Guarantor)
In Favor of
The Holders of the Common Trust Securities of AmerUs Capital II
dated as of
________ __, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS................................2
SECTION 1.01. Definitions....................................................2
ARTICLE II
GUARANTEE.................................4
SECTION 2.01. Guarantee......................................................4
SECTION 2.02. Waiver of Notice and Demand....................................4
SECTION 2.03. Obligations Not Affected.......................................4
SECTION 2.04. Rights of Holders..............................................5
SECTION 2.05. Guarantee of Payment...........................................5
SECTION 2.06. Subrogation....................................................5
SECTION 2.07. Independent Obligations........................................5
ARTICLE III
COVENANTS AND SUBORDINATION.......................6
SECTION 3.01. Limitation of Transactions.....................................6
SECTION 3.02. Subordination..................................................6
ARTICLE IV
TERMINATION................................7
SECTION 4.01. Termination....................................................7
ARTICLE V
MISCELLANEOUS...............................7
SECTION 5.01. Successors and Assigns.........................................7
SECTION 5.02. Amendments.....................................................7
SECTION 5.03. Notices........................................................7
SECTION 5.04. Benefit........................................................8
SECTION 5.05. Interpretation.................................................8
SECTION 5.06. GOVERNING LAW..................................................9
SECTION 5.07. Counterparts...................................................9
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COMMON TRUST SECURITIES GUARANTEE AGREEMENT
This Common Trust Securities Guarantee Agreement, dated as of ________
__, 1998, is executed and delivered by AmerUs Life Holdings, Inc., an Iowa
corporation (the "Guarantor") for the benefit of the Holders (as defined herein)
from time to time of the Common Trust Securities (as defined herein) of AmerUs
Capital II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ________ _, 1998, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders, from time to time, of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing up to $_________ aggregate liquidation amount of its ______% Common
Trust Securities (the "Common Trust Securities") and up to $_________ aggregate
liquidation amount of its ___% Capital Securities, (liquidation amount $___ per
Capital Security) (the "Capital Securities" and together with the Common Trust
Securities, the "Trust Securities"), each representing ownership interests in
the assets of the Issuer and having the terms set forth in the Declaration;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined herein) of
the Guarantor which will be deposited with First Union National Bank, as
Property Trustee under the Declaration, as trust assets;
WHEREAS, as an incentive for the Holders to purchase Common Trust
Securities the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, the Guarantor is executing and delivering a Guarantee
Agreement (the "QUIPS Guarantee Agreement") with substantially identical terms
to this Common Trust Securities Guarantee, for the benefit of the holders of the
Capital Securities, except that if a Guarantee Event of Default (as defined in
the QUIPS Guarantee Agreement) has occurred and is continuing, the rights of the
holders of the Common Trust Securities to receive the Guarantee Payments under
this Common Trust Securities Guarantee are subordinated, to the extent and in
the manner set forth in this Common Trust Securities Guarantee, to the rights of
Holders to receive Guarantee Payments under the QUIPS Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Trust Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Common Trust
Securities Guarantee Agreement for the benefit of the Holders from time to time
of the Common Trust Securities.
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Common Trust Securities
Guarantee Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized or otherwise
defined terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Declaration as in effect on the date hereof unless
otherwise indicated.
"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, provided, however that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. 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.
"Capital Securities" has the meaning specified in the recitals to this
Common Trust Securities Guarantee Agreement.
"Common Trust Securities" has the meaning specified in the recitals to
this Common Trust Securities Guarantee Agreement.
"Common Trust Securities Guarantee Agreement" means this Common Trust
Securities Guarantee Agreement, dated as of ________ __, 1998 by AmerUs Life
Holdings, Inc. in favor of the Holders.
"Debentures" means the series of subordinated debt securities of the
Guarantor designated the ____% [Junior Subordinated Deferrable Interest
Debentures] due ________ __, 2003 held by the Property Trustee (as defined in
the Declaration) of the Issuer.
"Declaration" has the meaning specified in the recitals to this Common
Trust Securities Guarantee Agreement.
"Distributions" shall have the same meaning as indicated in the
Declaration.
"Final Redemption Price" means the final redemption price of the
Common Trust Securities, including all accumulated and unpaid Distributions to
the date of redemption.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Common Trust Securities,
to the extent not paid or made by or on behalf of the Issuer: (i) any
accumulated and unpaid Distributions (as defined in the Declaration) required to
be paid on the Common Trust Securities, to the extent the Issuer shall have
funds on hand legally available therefor at such time, and (ii) the Final
Redemption Price with respect to the
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Common Trust Securities outstanding on the Maturity Date of the Debentures (as
defined in the Indenture) to the extent the Issuer shall have funds on hand
legally available therefor at such time. If a Guarantee Event of Default has
occurred and is continuing, no Guarantee Payments under the Common Trust
Securities Guarantee with respect to the Common Trust Securities or any
guarantee payment under any Other Common Trust Securities Guarantees shall be
made until the Holders shall be paid in full the Guarantee Payments to which
they are entitled under the QUIPS Guarantee Agreement.
"Guarantor" has the meaning specified in the recitals to this Common
Trust Securities Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Trust Securities that is deemed to be a holder of
any Common Trust Securities.
"Indenture" means the Junior Subordinated Indenture dated as of
________ __, 1998, among the Guarantor and First Union National Bank, as
trustee, as the same may be amended or supplemented from time to time in
accordance with the terms hereof, pursuant to which the Debentures are to be
issued to the Property Trustee.
"Majority in liquidation amount of the Capital Securities" means
Common Trust Securities representing more than 50% of the liquidation amount of
all then outstanding Common Trust Securities.
"Other Debentures" means all junior subordinated debentures issued by
the Guarantor from time to time and sold to trusts established or to be
established by the Guarantor, in each case similar to the issuer.
"Other Guarantees" means all guarantees issued by the Guarantor with
respect to Common Trust Securities similar to the Common Trust Securities issued
by other trusts to be established by the Guarantor, in each case similar to the
Issuer.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"QUIPS Guarantee Agreement" has the meaning specified in the recitals
to this Common Trust Securities Guarantee Agreement.
"Trust" or "Issuer" means AmerUs Capital II, a Delaware statutory
business trust.
"Trust Securities" has the meaning specified in the recitals to this
Common Trust Securities Guarantee Agreement.
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ARTICLE II
GUARANTEE
SECTION 2.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense (other than the defense of payment), right of set-off
or counterclaim which the Issuer may have or assert. The Guarantor's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 2.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of the Common Trust Securities Guarantee Agreement and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 2.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Common Trust Securities
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Common Trust
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Final Redemption Price or any other sums
payable under the terms of the Common Trust Securities or the extension of
time for the performance of any other obligation under, arising out of, or
in connection with, the Common Trust Securities (other than an extension of
time for the payment of Distributions that results from the extension of
any interest payment period on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Common Trust
Securities or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorgani zation, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
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(e) any invalidity of, or defect or deficiency in, the Common Trust
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor (other than
payment of the underlying obligation) it being the intent of this Section
2.03 that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 2.04. Rights of Holders. The Guarantor expressly acknowledges
that any Holder of Common Trust Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Common Trust
Securities Guarantee, without first instituting a legal proceeding against the
Issuer or any other Person.
SECTION 2.05. Guarantee of Payment. This Common Trust Securities
Guarantee Agreement creates a guarantee of payment and not a guarantee of
collection. This Common Trust Securities Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Debentures to holders thereof as provided in the Declaration.
SECTION 2.06. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of any amounts paid
to the Holders by the Guarantor under this Common Trust Securities Guarantee
Agreement and shall have the right to waive payment by the Issuer pursuant to
Section 2.01; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Common Trust Securities Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Common Trust Securities
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 2.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Common Trust Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Common Trust Securities Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (g), inclusive,
of Section 2.03 hereof.
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ARTICLE III
COVENANTS AND SUBORDINATION
SECTION 3.01. Limitation of Transactions. So long as any Common Trust
Securities remain outstanding, the Guarantor shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Guarantor (including any Other Debentures) that rank pari
passu with or junior in right of payment to the Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Guarantor of any
securities of any subsidiary of the Guarantor (including Other Guarantees) if
such guarantee ranks pari passu or junior in right of payment to the Debentures
(other than in the case of clauses (i), (ii) and (iii), (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the QUIPS
Guarantee, (d) as a result of a reclassification of the Guarantor's capital
stock solely into shares of one or more classes or series of the Guarantor's
capital stock or the exchange or the conversion of one class or series of the
Guarantor's capital stock for another class or series of the Guarantor's capital
stock, (e) the purchase of fractional interests in shares of the Guarantor's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged and (f) purchases of the
Guarantor's common stock in connection with the satisfaction by the Guarantor of
its obligations (including purchases related to the issuance of such common
stock or rights), under any of the Guarantor's benefit plans for its and its
subsidiaries' directors, officers or employees or any of the Guarantor's
dividend reinvestment plans) if at such time (x) a Guarantee Event of Default or
an Event of Default (as defined in the Indenture) shall have occurred and be
continuing, (y) if such Debentures are held by the Property Trustee, the
Guarantor shall be in default with respect to its payment of any obligations
under the QUIPS Guarantee or (z) the Guarantor shall have given notice of its
election of the exercise of its right to extend the interest payment period
pursuant to Section 3.01(b)(6) of the Indenture and any such extension shall
have commenced and not yet terminated.
SECTION 3.02. Subordination. (a) This Common Trust Securities
Guarantee will constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture), to the same extent and in the same
manner that the Debentures are subordinated to all present and future Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article XII of the Indenture shall apply to the obligations of the Guarantor
under this Common Trust Securities Guarantee as if (x) such Article XII were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XII, and pari passu with the Debentures
and Other Debentures.
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(b) If an Event of Default has occurred and is continuing, the rights
of Holders of the Common Trust Securities of the Issuer to receive payments
under this Common Trust Securities Guarantee are subordinated to the rights of
holders of QUIPS to receive Guarantee Payments.
ARTICLE IV
TERMINATION
SECTION 4.01. Termination. This Common Trust Securities Guarantee
shall terminate and be of no further force and effect (i) upon full payment of
the Final Redemption Price of all Common Trust Securities, (ii) at such other
time when there are no longer any QUIPS outstanding (iii) at any such other time
when there are no longer any Common Trust Securities outstanding.
Notwithstanding the foregoing, this Common Trust Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of the Common Trust Securities must restore payment of any sums
paid under the Common Trust Securities or under this Common Trust Securities
Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Successors and Assigns. All guarantees and agreements
contained in this Common Trust Securities Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Common Trust Securities
then outstanding. Except in connection with a consolidation, merger or sale
involving the Guarantor or a conveyance, transfer or lease of the Guarantor's
properties that is permitted under Article __ of the Indenture and pursuant to
which the successor or assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations hereunder,
and any purported assignment other than in accordance with this provision shall
be void.
SECTION 5.02. Amendments. Except with respect to any changes that do
not adversely affect the rights of Holders in any material respect (in which
case no consent of Holders will be required), this Common Trust Securities
Guarantee Agreement may be amended only with the prior approval of the Holders
of not less than a Majority in liquidation amount of the outstanding Common
Trust Securities. The provisions of the Declaration concerning meetings of
Holders shall apply to the giving of such approval.
SECTION 5.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
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(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address as the Guarantor may give notice of to
the Holders:
AmerUs Life Holdings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
(b) if given to the Issuer, at the address or telecopy number set
forth below or such other address as the Issuer may give notice of to the
Holders:
AmerUs Capital II
c/o AmerUs Life Holdings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Administrative Trustee
with copy to:
First Union National Bank
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Facsimile No:
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Attention: Corporate Trust Administration
(c) if given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 5.04. Benefit. This Common Trust Securities Guarantee
Agreement is solely for the benefit of the Holders, and is not separately
transferable from the Common Trust Securities.
SECTION 5.05. Interpretation. In this Common Trust Securities
Guarantee Agreement, unless the context otherwise requires:
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(a) Capitalized terms used in this Common Trust Securities Guarantee
Agreement but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.01 unless otherwise indicated;
(b) a term defined anywhere in this Common Trust Securities Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Common Trust Securities Guarantee
Agreement" or "this Common Trust Securities Guarantee Agreement" are to
this Common Trust Securities Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Common Trust Securities Guarantee Agreement
to Articles and Sections are to Articles and Sections of this Common Trust
Securities Guarantee Agreement unless otherwise specified;
(e) a reference to the singular includes the plural and vice versa;
and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 5.06. GOVERNING LAW. THIS COMMON TRUST SECURITIES GUARANTEE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS
PROVISIONS.
SECTION 5.07. Counterparts. This Common Trust Securities Guarantee
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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THIS Common Trust Securities Guarantee Agreement is executed as of the
day and year first above written.
AMERUS LIFE HOLDINGS, INC.
By:
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Name:
Title:
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