Exhibit 10(o)


 


EXECUTION


 


NOTE SALE AGREEMENT


 


THIS
NOTE SALE AGREEMENT is dated as of October 15, 2009 (the “Agreement”),
by and between GOLDEN GATE CAPTIVE INSURANCE COMPANY, its successors and
assigns (the “Purchaser”) and Dr. Michael Frege, in his capacity as
insolvency administrator (Insolvenzverwalter) of LEHMAN
BROTHERS BANKHAUS AG (i. Ins.) (the “Insolvency
Administrator”) over the assets of LEHMAN BROTHERS BANKHAUS AG (i.
Ins.) (the “Seller”).


 


RECITALS


 


WHEREAS,
insolvency proceedings have been commenced over the assets of LEHMAN BROTHERS
BANKHAUS AG, (local court of Frankfurt/Main, case no. 810 IN 1120/08 L);


 


WHEREAS,
in accordance with the terms and conditions hereof, the Purchaser desires to
purchase from the Seller, and the Seller desires to sell to the Purchaser,
certain surplus notes as further identified on Schedule I attached hereto;


 


NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Purchaser and the Seller agree as
follows:


 


SECTION 1.
Definitions. For purposes of this Agreement the following capitalized
terms shall have the respective meanings set forth below. Any capitalized term
used but not defined herein shall have the meaning assigned to such term in the
Fiscal Agency Agreement.


 


“Assignment(s)”
shall mean the related assignment of any Note, a form of which is attached
hereto as Exhibit A.


 


“Closing
Date” shall mean October 15, or such other date prior to December 31,
2009 as the Purchaser and Seller may mutually agree.


 


“Company”
shall mean Protective Life Corporation.


 


“Fiscal
Agency Agreement” shall mean the Third Amended and Restated Fiscal Agency
Agreement, dated as of December 20, 2007 (as the same has been and may be
amended, supplemented and modified), by and between Issuer and The Bank of New
York Mellon Trust Company, N.A.


 


“Fiscal
Agent” shall mean The Bank of New York Mellon Trust Company, N.A.


 


“Governmental
Authority” shall mean any nation or government, any state or other 


 

















 


political
subdivision thereof, any entity, authority or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, any court, tribunal or arbitrator, and any self-regulatory
organization.


 


“Issuer”
shall mean Golden Gate Captive Insurance Company.


 


“Lien”
shall mean any mortgage, lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party under any conditional sale or other title retention agreement or
capital lease.


 


“Note(s)”
shall mean those Series A Floating Rate Surplus Notes identified on
Schedule I attached hereto.


 


“Purchase
Price” shall mean Two hundred eighty million dollars in United States
currency (U.S.$280,000,000).


 


SECTION 2.
Purchase and Sale of Notes.


 


(a)             Subject to the
terms and conditions hereof, Seller agrees to sell, and the Purchaser agrees to
purchase, on the Closing Date, all of the Seller’s right, title and interest in
and to each Note identified on Schedule I attached hereto.


 


(b)             On the Closing
Date, subject to the satisfaction or waiver of the conditions set forth herein:


 


(i)             Purchaser shall pay to the Seller the Purchase Price
for the Notes in immediately available funds by wire transfer to the following
account of Seller:


 


FRNYUS33


Federal
Reserve Bank of New York, New York, NY


ABA
(Fed Wire No.) 021084018


Acc:        021084018


MARKDEFF


 


Deutsche
Bundesbank


Acc:       5041034066


 MARKDEFF


FFC:       SLBSDEFX


Lehman Brothers Bankhaus AG; and


 


(ii)          Seller shall
deliver the Notes or cause the Notes to be delivered and the related
Assignments to Purchaser. At the Seller’s option, the closing shall be either:
by telephone, confirmed by letter or wire as the parties shall agree, or
conducted in person, at such place as the Purchaser and Seller shall agree.


 


(j)             It is the intention of the parties that the
Purchaser is purchasing, and the Seller 


 

















 


is
selling, the Notes and not a debt instrument of the Seller or other security.
Accordingly, each party intends to treat the transaction for United States
federal income tax purposes as a sale by the Seller, and a purchase by the
Purchaser, of the Notes.


 


SECTION 3.
Closing Documents.


 


The Closing Documents with respect to the sale of
the Notes on the Closing Date shall consist of the following original
documents:


 


(a)           this Agreement, duly executed by authorized
representatives of the Seller and the Purchaser;


 


(b)           evidence, acceptable to Seller, of Issuer’s authorization,
from the Director of Insurance of the State of South Carolina, to: (i) issue
not less than $350,000,000 of the Floating Rate Surplus Notes to the Protective
Life Corporation and (ii) purchase the Notes from the Seller; and


 


(c)             the Assignments,
duly executed by an authorized representative of the Seller.


 


SECTION 4.
Conditions to Closing.


 


The closing for the Notes to be sold on the Closing
Date shall be subject to each of the following conditions:


 


(a)           the Seller and the Purchaser shall have executed and
delivered all Closing Documents as specified in Section 3 of this
Agreement, duly executed by all signatories as required pursuant to the
respective terms thereof;


 


(b)           all other terms and conditions of this Agreement shall
have been complied with (unless mutually waived by the Seller and the
Purchaser);


 


(c)           Issuer shall have received regulatory approval from the
Director of Insurance of the State of South Carolina as necessary to (i) issue
not less than $350,000,000 of the Issuer’s Floating Rate Surplus Notes to the
Company and (ii) purchase the Notes from Seller; and


 


(d)           the Company shall have obtained new debt financing of not
less than $350,000,000 on terms and conditions acceptable to the Company to
fund the purchase by the Company of the Issuer’s Floating Rate Surplus Notes.


 


If one or more of the conditions set forth in this
section have not been satisfied by December 31, 2009, either the Seller or
Purchaser is entitled to rescind this Agreement by written declaration to the
other party. In this event all rights and duties from this Agreement shall be
cancelled except for the provisions of sections 8, 10, 12, 13, 19.


 


SECTION 5. Representations and Warranties.
The parties make the following representations and warranties which shall be
true, correct and complete as of the date hereof:


 

















 


(a)           The Purchaser represents and warrants to the Seller that (i) it
is duly organized and validly existing as an entity under the laws of the
jurisdiction in which it is chartered or organized, (ii) it has the
requisite power and authority to enter into and perform this Agreement, and (iii) this
Agreement has been duly authorized by all necessary action, has been duly
executed by one or more duly authorized officers and is the valid and binding
agreement of such party, enforceable against such party in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium and other laws relating to or
affecting creditors’ rights generally and to general principles of equity
(regardless of whether considered by a court in equity or at law).


 


(b)           The Seller represents and warrants to the Purchaser that (i) to
the best of Seller’s knowledge (being understood as the positive knowledge of
the Insolvency Administrator), the Seller is entitled to freely dispose of this
Agreement and the Notes without requiring any third-party consent; (ii) LEHMAN
BROTHERS BANKHAUS AG is a stock corporation duly established under the laws of
Germany; insolvency proceedings have been commenced over its assets; (iii) the
Seller has the requisite power and authority to enter into and perform this
Agreement, and (iv) this Agreement has been duly authorized by all
necessary action on the part of the Seller, its creditors, the Insolvency
Administrator and any Governmental Authority with jurisdiction over the
insolvency proceedings of the Seller, has been duly executed by one or more
duly authorized representatives of the Seller and is the valid and binding
agreement of the Seller, enforceable against the Seller in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium and other laws relating to or
affecting creditors’ rights generally and to general principles of equity
(regardless of whether considered by a court in equity or at law).


 


(c)           The Seller represents and warrants to the Purchaser that: (i) the
Insolvency Administrator has been duly appointed as the insolvency administrator
of LEHMAN BROTHERS BANKHAUS AG (i. Ins.) over
the assets of LEHMAN BROTHERS BANKHAUS AG (i.
Ins.) by the Local Court Frankfurt am Main, Insolvency Court as set
forth in the order dated as of November 13, 2008, issued by the Local
Court Frankfurt am Main, Insolvency Court, a copy of which is attached hereto
as Exhibit B-1; (ii) the insolvency proceedings of LEHMAN BROTHERS
BANKHAUS AG (i. Ins.) and the
appointment of the Insolvency Administrator have been acknowledged by the
United States Bankruptcy Court for the Southern District of New York pursuant
to the order dated as of May 22, 2009, issued by the United States
Bankruptcy Court for the Southern District of New York , a copy of which is
attached hereto as Exhibit B-2; (iii) as of November 13, 2008,
the Notes were deposited, on behalf of LEHMAN BROTHERS BANKHAUS AG (i. Ins.),
at JPMorgan Chase Bank in the custody account numbered “Account G 69702 LEHMAN
BROTHERS BANKHAUS” and the Notes are listed in the asset list
(Vermoegensverzeichnis) as of November 13, 2008 of the bankruptcy estate
(Insolvenzmasse) of LEHMAN BROTHERS BANKHAUS AG (i. Ins.); (iv) the
Insolvency Administrator is duly authorized and entitled to dispose of the
Notes in accordance with the terms of this Agreement; (v) the Notes have
been deposited, on behalf of LEHMAN BROTHERS BANKHAUS AG (i. Ins.), at JPMorgan Chase Bank in the
custody account numbered “Account G 69702 LEHMAN BROTHERS BANKHAUS”; (vi) since
the 


 

















 


commencement of the insolvency proceedings of LEHMAN BROTHERS BANKHAUS
AG (i. Ins.) the Insolvency
Administrator has not sold, transferred or otherwise disposed of, or created
any Lien on, any of the Notes; (vii) the Insolvency Administrator has not
been notified of any Lien on or claim to any right, title or interest to or in
the Notes made by any third party; (viii) to the best of Seller’s
knowledge (being understood as the positive knowledge of the Insolvency
Administrator) there are no Liens on any of the Notes and no claim to any
right, title or interest in the Notes has been made by any third party; (ix) the
Insolvency Administrator has not been notified of any claims against JPMorgan
Chase Bank for the delivery of the Notes; and (x) to the best of Seller’s
knowledge (being understood as the positive knowledge of the Insolvency
Administrator), no claim has been made against JPMorgan Chase Bank for the
delivery of the Notes.


 


(d)           The Purchaser represents and warrants to the Seller that (i) the
Purchaser is a “qualified institutional buyer” (a “QIB”) within the
meaning assigned to that term in Rule 144A of the Securities Act of 1933,
as amended (the “Act”), who is aware that the offer, sale, pledge or
other transfer of the Notes to it is being made in reliance on Rule 144A
and is acquiring the Notes (or a beneficial interest in a Global Note) for its
own account or for the account of another QIB as to which it exercises sole
investment discretion in respect thereof; (ii) the Purchaser (and each
account for which the Purchaser is purchasing) is not a broker-dealer that owns
and invests on a discretionary basis less than U.S. $25 million in securities
of unaffiliated issuers; (iii) the Purchaser (and each account for which
the Purchaser is purchasing) is not a participant-directed employee plan, such
as a 401(k) plan, or another plan referred to in paragraph (a)(1)(i)(D) or
(a)(1)(i)(E) of Rule 144A, or a trust fund referred to in paragraph
(a)(1)(i)(F) of Rule 144A that holds the assets of such a plan, if
investment decisions with respect to the plan are made by the beneficiaries of such
plan; (iv) the Purchaser (and each account for which the Purchaser is
purchasing) is acquiring such Notes or such beneficial interest for investment
purposes and not with a view to distribution (except in accordance with Rule 144A);
(V) the Purchaser (and each account for which the Purchaser is purchasing)
was not formed for the purpose of investing in Golden Gate Captive Insurance
Company; (VI) the Purchaser (and each account for which the Purchaser is
purchasing) will hold and transfer at least the minimum denomination of the
Notes; (VII) the Purchaser (and each account for which the Purchaser is
purchasing) will provide notice of the applicable transfer restrictions to any
subsequent transferees; and (VIII) the Purchaser (and each account for
which the Purchaser is purchasing) acknowledges that the Purchaser may receive
a list of participants holding positions in the Global Notes, if any, from one
or more book-entry depositaries.


 


(e)           The Purchaser represents that is not an employee benefit
plan or other retirement arrangement subject to Section 406 of ERISA
and/or Section 4975 of the Code, or a person acting for, on behalf of or
with the assets of, any such plan or arrangement.


 


(f)            The Purchaser represents that (i) the Purchaser is a
sophisticated buyer and seller of securities, claims, notes and other rights
such as the Notes and has adequate information concerning the Notes to enable
it to make an informed decision regarding the purchase of the Notes and (ii) the
Purchaser has independently and without reliance upon the Seller, and based on
such information as it deemed appropriate, made its own credit and legal
analysis of, and decision to purchase, the Notes.


 

















 


(g)           Purchaser, in its capacity as a transferee of the Notes,
represents that it is in compliance with any and all transfer restrictions
contained in the Notes and the Fiscal Agency Agreement.


 


SECTION 6.
Covenants.


 


(a)        Each of Purchaser and Seller covenant and agree to comply
with the reasonable requests of the Fiscal Agent regarding the transfer of the
Notes to the Purchaser hereunder.


 


(b)           Purchaser covenants and agrees to use its best efforts to
obtain regulatory approval from the Director of Insurance of the State of South
Carolina as necessary for the Issuer to: (i) issue not less than
$350,000,000 of the Issuer’s Floating Rate Surplus Notes to the Company and (ii) purchase
the Notes from Seller; and


 


(c)           The Company covenants and agrees to use its best efforts
to obtain new debt financing of not less than $350,000,000 on terms and conditions
acceptable to the Company to fund the purchase by the Company of the Issuer’s
Floating Rate Surplus Notes.


 


SECTION 7.
Notes Sold “AS IS”.


 


The
Purchaser acknowledges and agrees that, except for representations and
warranties set forth in this Agreement, the Seller has not and does not
represent, warrant or covenant the nature, accuracy, completeness,
enforceability or validity of any of the Notes, and, subject to the terms of
this Agreement, all documentation, information, analysis and/or correspondence,
if any, which is or may be sold, transferred, assigned and conveyed to
Purchaser with respect to any and all Notes is sold, transferred, assigned and
conveyed to Purchaser on an “AS IS, WHERE IS” basis WITH ALL FAULTS.


 


SECTION 8.
No Personal Liability for the Insolvency Administrator.


 


The
Insolvency Administrator shall incur no personal liability whatsoever under, or
by virtue of, this Agreement nor in relation to any matter or claim howsoever,
whenever and wherever arising hereunder and whether such claims are formulated
in contract and/or tort by reference to any other right or remedy and in
whatever jurisdiction or forum and to the extent any such personal liability
exists, the parties hereto explicitly waive any and all potential rights and
claims against the Insolvency Administrator personally. In particular, the
Insolvency Administrator shall not be liable, on any document executed after
and with a view to or for the purpose of putting this Agreement into effect,
whether or not such document so provides and the Insolvency Administrator shall
be entitled at any time to have such documents amended to include an exclusion
of personal liability in the above terms.


 


SECTION 9.
Limitation to Set-Off.


 


The
parties hereto agree that any rights to set-off between them shall be limited
to rights and claims related to, or arising from, this Agreement and that no
other claims and rights between the parties hereto will be affected by this
Agreement. The parties hereto acknowledge that they have entered into various
other agreements between each other and agree that nothing provided for in this
Agreement shall lead to, result in, or imply a right to set-off


 

















 


under
claims existing or arising under any such other agreements.


 


SECTION 10.Costs.


 


Each
of the Seller and the Purchaser shall each pay its own expenses, including but
not limited to any commissions due its salesmen and legal fees and expenses of
its attorneys.


 


SECTION 11.
Amendments.


 


This
Agreement may not be modified, amended, altered or supplemented, except upon
the execution and delivery of a written agreement by the parties hereto.


 


SECTION 12.
Confidential Information.


 


The
parties hereto shall keep confidential and shall not divulge to any party,
without the other party’s written consent, the Purchase Price, except to the
extent that it is appropriate for either party to do so in working with legal
counsel, auditors, rating agencies, taxing authorities, governmental insurance
regulators or other governmental agencies or as may be necessary or advisable
under federal or state securities laws. The Seller shall keep confidential and
shall not divulge to any party, other than its professional advisors and as
otherwise may be required by applicable law, without the Purchaser’s consent
any information about the Company or the Purchaser received by Seller from the
Purchaser or its affiliates.


 


SECTION 13.
Notices.


 


Except
as may be otherwise agreed between the parties, all communications hereunder
shall be made in writing to the relevant party by personal delivery or by
courier or first-class registered mail, or the closest local equivalent
thereto, by electronic mail or by facsimile transmission confirmed by personal
delivery or by courier or first-class registered mail or electronic mail as
follows:


 


To
the Purchaser:


 


Golden
Gate Captive Insurance Company


c/o
Protective Life Corporation


2801
Highway 280 South


Birmingham,
AL 35223


Attention: Nancy Kane, Senior Vice President and
Senior Associate Counsel


Telephone: 205-268-3366


E-mail:
nancy.kane@protective.com


Fax:
205-268-5516


 


To
the Seller:


 


CMS
Hasche Sigle


Barckhausstraße
12-16


 

















 


60325
Frankfurt am Main


Germany


Attention:
Dr. Joachim Kaetzler, Partner


Telephone:
011-49-69-71701-132


Email:
jkaetzlerk@cms-hs.com


Fax:
011-49-69-71701-40433


 


or
to such other address, telephone number or facsimile number or e-mail addresses
as either party may notify to the other in accordance with the terms hereof
from time to time. Any communications hereunder shall be effective upon
receipt.


 


SECTION 14.
Successors.


 


This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns, and no other person
shall have any right or obligation hereunder. Neither party may assign its
rights under this Agreement without the written consent of the other party.


 


SECTION 15.
Severability.


 


Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


SECTION 16.
Headings.


 


The
headings of the various Sections herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.


 


SECTION 17.
Entire Agreement.


 


This
Agreement embodies the entire agreement of the parties with respect to the
subject matter hereof and supersedes any prior written or oral agreement or
understanding relating to the subject matter hereof.


 


SECTION 18.
Further Assurances.


 


The
Seller and the Purchaser shall from time to time execute such financing or
continuation statements, documents, security agreements, reports and other
documents, or deliver such instruments, certificates of title or other
documents as may be reasonably necessary to perfect or otherwise evidence the
Purchaser’s right, title and the interest in and to the Notes.


 


SECTION 19.
Governing Law.


 


This
Agreement shall be deemed to have been made in the State of New York. This 


 

















 


Agreement
shall be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with the laws of the State of New York, without regard to
principles of conflicts of law (other than Sections 5-1401 and 5-1402 of the
New York General Obligations Law or any successor provisions which shall
govern). The parties hereby agree that all disputes arising hereunder shall be
submitted to and hereby subject themselves to the jurisdiction of the courts of
competent jurisdiction, state and federal, in the State of New York.


 


SECTION 20.
Counterparts.


 


This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.


 


SECTION 21.
Remedies.


 


In the event that the Purchaser fails to pay to the
Seller the Purchase Price for any Note as provided in Section 2 of this
Agreement, the Seller shall have the right to exercise all remedies available
to it at law or equity. In the event that the Seller fails to tender any Note
to the Purchaser as provided in Section 2 of this Agreement, the Purchaser
shall have the right to exercise all remedies available to it at law or equity.


 


[Signature Page Follows]


 

















 


IN
WITNESS WHEREOF, the Seller and Purchaser have caused this Agreement to he duly
executed and delivered as of the day and year first above written.


 


 


	
  LEHMAN BROTHERS BANKHAUS AG (i. Ins.), the Seller

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Dr. Michael Frege

  	
   

  	
   

  
	
  Name:

  	
  Dr. Michael
  Frege

  	
   

  	
   

  
	
  Title:

  	
  Insolvency
  Administrator (lnsolvenzverwalter)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GOLDEN GATE CAPTIVE INSURANCE COMPANY, the
  Purchaser

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Richard J Bielen

  	
   

  	
   

  
	
  Name:
  

  	
  Richard
  J. Bielen

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ACCEPTED
  AND AGREED with respect to Section 6(c):

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PROTECTIVE
  LIFE CORPORATION, the Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Richard J. Bielen

  
	
   

  	
   

  	
  Name:

  	
   Richard J. Bielen

  
	
   

  	
   

  	
  Title:

  	
   Vice Chairman and Chief Financial Officer

  
					



 

















 


SCHEDULE I


SCHEDULE OF NOTES


 


1.               $100 million Golden Gate
Captive Insurance Company Series A Floating Rate Surplus Notes Due August 15,
2037


 


2.               $100 million Golden Gate
Captive Insurance Company Series A Floating Rate Surplus Notes Due August 15,
2037


 


3.               $150 million Golden Gate
Captive Insurance Company Series A Floating Rate Surplus Notes Due August 15,
2037S-1


 














 


Exhibit A


 


Form of Note Assignment


 


ASSIGNMENT FORM


 


To assign this Note fill in the form below:


 


We assign and transfer this Note to


 


	
   

  
	
  (Insert assignee’s social security or tax identification number)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  



 


And irrevocably appoint                                                                                 as  agent to
transfer this Note on the books of Golden Gate Captive Insurance Company. The
agent may substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  	
  Your signature:

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the other side of this Note)

  
	
   

  	
   

  
	
  Signature
  Guaranteed:

  	
   

  



 


A-1

















 


EXHIBIT B-1


Court Order from Local Court Frankfurt am Main,
Insolvency Court

follows this page


 

















 


Translation (G E)


 


—
Copy —


 




	
  Local
  Court Frankfurt am Main

  	
  11/13/2008

  
	
  Insolvency
  Court

  	
   

  
	
  Ref.
  No.: 810 IN 1120/08 L

  	
   

  
	
  (Please
  quote in any correspondence)

  	
   

  






 


Order


 


In the insolvency
proceedings over the assets of Lehman Brothers Bankhaus Aktiengesellschaft,
Rathenauplatz 1, 60313 Frankfurt am Main (Commercial Register of the Local
Court Frankfurt am Main, no HRB 28139), represented by


 


1.   Michael Bonacker, (Board of
Directors)


2.   Hans Martin Bury, (Board of
Directors)


3.   Dr. Patrick Schmitz-Morkramer,
(Board of Directors)


4.   Christian Spieler, (Board of
Directors)


5.   Helmut Olivier, (Board of
Directors)


 


are
opened today on November 13th, 2008 at 11:45 AM the
insolvency proceedings pursuant to sections 2, 3, 11, 16 ff Insolvency Act due
to excessive indebtedness.


 


As
the insolvency administrator is appointed:


 


Rechtsanwalt
Michael C. Frege, Barckhausstrasse 12 — 16, 60325 Frankfurt/Main, tel.:
069/71701-300, fax: 069/71701-40-410.


 


The
debtor is prohibited to dispose of its present and future assets while the insolvency
proceedings are pending and the right of disposal of the debtor’s assets is
transferred to the insolvency administrator. After the time of the opening,
performances in fulfilment of an obligation to the debtor will not
have discharging effects. Nevertheless, if performances are effected and the
respective funds do not accrue to the insolvent’s assets, the performing party
may run the risk to be obligated to the insolvency administrator to perform
again.


 


Mickerts


Judge
at the Local Court


 

















 


EXIBIT B-2


Court Order from United States Bankruptcy Court for the Southern
District of New York

follows this page


 

















 


SONNENSCHEIN
NATH & ROSENTHAL LLP D. Farrington Yates, Esq. (DY 8383)


Jillian
Gutman Mann (admitted pro hac)


1221
Avenue of the Americas, 24th Floor New York, New York 10020-1089




	
  Telephone:

  	
   

  	
  (212)
  768-6700

  
	
  Facsimile:

  	
   

  	
  (212)
  768-6800

  






 


Attorneys for Dr. Michael C. Frege, in his capacity as
Insolvency Administrator of Lehman Brothers Bankhaus AG (in Insolvenz)


 


UNITED STATES BANKRUPTCY COURT


FOR THE SOUTHERN DISTRICT OF NEW YORK


 


	
  -------------------------------------------------------------------------------

  	
  x

  
	
  In
  Re

  	
  :  Chapter
  15

  
	
   

  	
  :

  
	
  LEHMAN BROTHERS BANKHAUS AG

  	
  :  Case
  No. 09-12704 (JMP)

  
	
  (in Insolvenz)

  	
  :

  
	
   

  	
  :

  
	
  Debtor in a Foreign Proceeding.

  	
  :

  
	
  -------------------------------------------------------------------------------

  	
  x

  



 


ORDER GRANTING RECOGNITION OF FOREIGN

REPRESENTATIVE AND FOREIGN MAIN PROCEEDING

AND FOR ADDITIONAL RELIEF UNDER 11 U.S.C. § 1521


 


This
matter having come before the Court upon the petition for recognition of a
foreign main proceeding (the “Official Form Petition”) commencing this
Chapter 15 case, the Verified Petition Under Chapter 15 of the Bankruptcy Code
for Recognition of Foreign Representative and Foreign Main Proceeding and for
Additional Relief Under 11 U.S.C. § 1521 (the “Verified Petition,” and together
with the Official Form Petition, the “Chapter 15 Petition”), the Declaration
of Joachim Kane, as German Counsel, in Support of the Verified Petition Under
Chapter 15 of the Bankruptcy Code for Recognition of Foreign Representative and
Foreign Main Proceeding and for Additional Relief Under 11 U.S.C. § 1521 (the
“Kane Declaration”), the Statement of Foreign Representative Pursuant to 11  U.S.C.
§ 1515(c) Identifying Foreign Proceedings (the “Section 1515(c) Statement”)
and the Statement of Foreign Representative Listing Information Pursuant to
Federal Rule of Bankruptcy Procedure 1007(a)(4) (the 


 


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“Bankruptcy
Rule 1007(a)(4) List,” together with the Chapter 15 Petition, the
Kiihne Declaration and the Section 1515(c) Statement, the “Chapter 15
Pleadings”) each filed on April 29, 2009 by or on behalf of Dr. Michael
C. Frege in his capacity as duly authorized Insolvency Administrator and
putative foreign representative of Lehman Brothers Bankhaus AG (in Insolvenz) (“LBB”), a debtor in a
currently ongoing insolvency proceeding in Germany (the “German Insolvency”)
that is pending before the insolvency court at the Frankfurt Lower District
Court (Amtsgericht Frankfurt am Main) (the
“German Court”); Germany’s Federal Financial Supervisory Authority, Bundesanstalt far Finanzdienleistungsaufsicht (“BaFin”),
having filed an application for the opening of insolvency proceedings with the
German Court on November 12, 2008; insolvency proceedings having been
opened by the German Court on November 13, 2008, and on that same day the
German Court having issued an order appointing Dr. Frege as the Insolvency
Administrator (Insolvenzverwalter) of
LBB (the “November 13 Order”); the Court having reviewed and considered
the Chapter 15 Pleadings; due, proper and timely notice of the filing of the
Chapter 15 Pleadings having been given pursuant to the Order (I) Scheduling
Hearing Regarding Chapter 15 Petition, and (II) Specifying Form and
Manner of Service of Notice, dated May 1, 2009 which notice is deemed
adequate for all purposes so that no other or further notice thereof need be
given; no objections or other responses having been filed thereto that have not
been overruled, withdrawn or otherwise resolved; all interested parties having
had due and proper notice and an opportunity to be heard and after due
consideration and good cause appearing therefore, the Court hereby FINDS AND
CONCLUDES THAT:


 


A.            This Court has jurisdiction
over this matter pursuant to 28 U.S.C. §§ 157 and 1334, and the Standing Order
of Referral of Cases to Bankruptcy Judges of the United States District Court
for the Southern District of New York (Ward, Acting C.J.), dated July 10,
1984.


 


B.            This is a core proceeding
pursuant to 28 U.S.C. § 157(b)(2)(P).


 


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C.            Venue is proper in this
District pursuant to 28 U.S.C. § 1410.


 


D.            This case was properly commenced
pursuant to 11 U.S.C. §§ 1504 and 1517.


 


E.             The Verified Petition and
the other Chapter 15 Pleadings meet the requirements of 11 U.S.C. § 1515.


 


F.             The German Insolvency is a
foreign proceeding within the meaning of 11 U.S.C. § 101(23).


 


G.            The German Insolvency is
entitled to recognition by this Court pursuant to 11 U.S.C. §§ 1515 and
1517(a).


 


H.            Germany is where LBB’s
center of main interest is located and, therefore, the German Insolvency is
entitled to recognition as a foreign main proceeding pursuant to 11 U.S.C. §§
1502(4) and 1517(b)(1).


 


I.              Dr. Frege is a person
and the duly appointed foreign representative of LBB within the meaning of 11
U.S.C. § 101(24).


 


J.             Dr. Frege is entitled
to all of the relief set forth in 11U.S.C. § 1520 immediately upon entry of
this Order.


 


K.            The relief sought in the
Verified Petition will not cause undue hardship or inconvenience to
parties-in-interest and, to the extent that any hardship or inconvenience may
result, such hardship or inconvenience is outweighed by the benefits to LBB,
its estate and its creditors.


 


L.             The relief sought in the
Verified Petition is necessary to effectuate the purpose of Chapter 15, to
protect LBB and the interests of its creditors, and is not manifestly contrary
to the public policy of the United States.


 


M.           Dr. Frege
is entitled to additional relief set forth herein under 11 U.S.C. § 1521. For
all of the foregoing reasons, and after due consideration and good cause
appearing therefor, IT IS HEREBY ORDERED THAT:


 


1.             The German Insolvency is
granted recognition as a foreign proceeding as defined 


 


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in
11 U.S.C. §  101(23),
pursuant to 11 U.S.C. §  1517(a); and


 


2.             The German Insolvency is
granted recognition as a foreign main proceeding pursuant to 11 U.S.C. §  1517(b)(1); and


 


3.             Dr. Frege is recognized
as the duly appointed foreign representative of LBB within the meaning of 11
U.S.C. § 101(24); and


 


4.             The provisions of 11 U.S.C. §  1520 shall be
effective immediately upon entry of this Order; and


 


5.             Dr. Frege shall be
entitled to seek discovery in connection with LBB’s assets located within the
territorial jurisdiction of the United States pursuant to 11 U.S.C. §
1521(a)(4), subject to compliance with the  provisions of Rule 2004
of the Federal Rules of Bankruptcy Procedure; and


 


6.             Dr. Frege is hereby
entrusted with the administration, realization and distribution of all of LBB’s
assets located within the territorial jurisdiction of the United States, along
with LBB’s worldwide assets, pursuant to 11 U.S.C. §§ 1521(a)(5) and
1521(b).


 


	
  Dated:
  

  	
  New
  York, New York

  	
   

  	
   

  
	
   

  	
  May 22,
  2009

  	
   

  	
   

  
	
   

  	
   

  	
  s/ James
  M Peck

  
	
   

  	
   

  	
  United
  States Bankruptcy Judge

  



 


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