Exhibit 10(p)


 




 


 





SURPLUS
NOTE PURCHASE AGREEMENT


 


BETWEEN


 


GOLDEN
GATE CAPTIVE INSURANCE COMPANY,

AS PURCHASER


 


AND


 


LONG
ISLAND INTERNATIONAL LIMITED,


AS
SELLER


 


DATED
OCTOBER 9, 2009




 


 





 

















 


SURPLUS NOTE PURCHASE AGREEMENT


 


October 9, 2009


 


Golden Gate Captive
Insurance Company


c/o Protective Life
Corporation


2801 Highway 280 South


Birmingham, AL 35223


Ladies
and Gentlemen:


 


Long Island International Limited, a Cayman Islands company (the “Seller”), agrees with Golden Gate Captive Insurance Company
(the “Purchaser”) as follows:


 


SECTION 1.                SALE AND PURCHASE OF NOTES.


 


Subject to the terms and conditions of this Agreement, the Seller will
sell to the Purchaser and the Purchaser will purchase from the Seller, at the
Closing provided for in Section 2, $450,000,000 in principal amount of the
Series A Floating Rate Surplus Notes due 2037 (the “Notes”)
issued by Golden Gate Captive Insurance Company (the “Issuer”)
pursuant to 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, the “Fiscal Agency Agreement”),
by and between the Issuer, as issuer, and The Bank of New York Mellon Trust
Company, N.A., as fiscal agent (the “Fiscal Agent”) for
a purchase price of $387 million plus accrued interest up to the date on which
such transfer occurs (the “Purchase Price”).


 


SECTION 2.                CLOSING.


 


Subject to the satisfaction or waiver of the conditions set forth in Section 3,
the sale and purchase of the Notes to be purchased by the Purchaser shall occur
at the offices of Debevoise & Plimpton LLP, 919 Third Avenue, New York,
New York 10022, at 10:00 a.m., New York time, at a closing (the “Closing”) to be held on October 9, 2009 or, if the
conditions to Closing have not been satisfied or waived by such date, on the
Business Day that occurs three Business Days after the date on which all such
conditions to closing (other than those which must occur at Closing) have been
satisfied or waived, or on such other Business Day thereafter as may be agreed
upon by the Seller and the Purchaser.  At
the Closing the Seller will deliver to the Purchaser the Notes to be purchased
by the Purchaser accompanied by written instruments of transfer in the form
printed on the Notes against delivery by the Purchaser to the Seller or its
order of immediately available funds in the amount of the Purchase Price by
wire transfer of immediately available funds for the account of the Seller to
account number 050-01922-8 at Barclays Bank NY, ABA No: 026-0025-74, Account “SWAPS”.  If at the Closing the Seller shall fail to
tender the Notes to the Purchaser as provided above in this Section 2, or
any of the conditions specified in Section 3 shall not have been fulfilled
to the Purchaser’s satisfaction, the 


 

















 


Purchaser shall, at its election, be relieved of all
further obligations under this Agreement, without thereby waiving any rights the
Purchaser may have by reason of such failure or such nonfulfillment.  If no Closing has occurred prior to October 15,
2009, the Seller and the Purchaser shall be relieved of all further obligations
under this Agreement, without thereby waiving any rights either party may have
by reason of such failure of such nonfulfillment.


 


SECTION 3.                CONDITIONS TO CLOSING.


 


The Purchaser’s obligation to purchase and pay for the Notes to be sold
to the Purchaser at the Closing is subject to the fulfillment to the Purchaser’s
satisfaction or waiver by the Purchaser, prior to or at the Closing, of the
following conditions:


 


Section 3.1.              Representations and
Warranties.  The representations and
warranties of the Seller in this Agreement shall be true correct in all
material respects when made and at the time of the Closing (except to the
extent such representations and warranties are qualified as to materiality, in
which case they shall be true and correct in all respects).


 


Section 3.2.             Consents and
Approvals.  All necessary consents,
approvals and authorizations of, and declarations, registrations and filings
with, Governmental Authorities and nongovernmental Persons required in order to
consummate the transactions contemplated by this Agreement, including but not
limited to the receipt of all required approvals from the Director of Insurance
of the State of South Carolina, shall have been obtained or made, as the case
may be, and shall be in full force and effect.


 


Section 3.3              Financing. Protective
Life Corporation shall have obtained new debt financing of not less than $450
million on terms and conditions acceptable to Protective Life Corporation to
fund the purchase by the Protective Life Corporation of the Surplus Notes from
the Issuer immediately prior to the Closing.


 


Section 3.4.              Other Documents.  This Agreement and Amendment No. 1 to
the Fifth Amended and Restated Fiscal Agency Agreement between the Issuer and
the Fiscal Agent (the  “Fiscal Agency Agreement Amendment”) shall have been duly
executed or consented to, as applicable, by each of the parties thereto other
than the Purchaser, all of which documents shall be in full force and effect
and shall be satisfactory in all respects in form and substance to the
Purchaser in its reasonable discretion, and the Purchaser shall have received such
copies of such other documents as the Purchaser  may reasonably request.  In addition, the Issuer and the Fiscal Agent
shall each have received any other certificate, opinion of counsel or other
document reasonably requested by it.


 


SECTION 4.                REPRESENTATIONS AND WARRANTIES OF THE
SELLER.


 


The Seller represents and warrants to the Purchaser that:


 


Section 4.1.              Organization; Power
and Authority.  The Seller is a company
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization,


 


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and is duly qualified as a foreign corporation and is in good standing
in each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the ability of the Seller to perform its
obligations under this Agreement or the validity or enforceability of this
Agreement.  The Seller has the requisite power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder.


 


Section 4.2.              Authorization.  This Agreement has have been duly authorized
by all necessary company action on the part of the Seller, and this Agreement
constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).


 


Section 4.3.              Non-Contravention.  The execution, delivery and performance by
the Seller of this Agreement will not (i) conflict with or result in any
violation or breach of any provision of any of the organizational documents of
the Seller, (ii) require any consent by any Person under any provision of
any material agreement or other instrument to which the Seller is bound except
for such consents that have been obtained and are in full force and effect on
the date of the Closing, (iii) conflict with or result in a breach of any
of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to the Seller
or (iv) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Seller.


 


Section 4.4.              Governmental
Authorizations.  No consent, approval
or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution, delivery
or performance by the Seller of this Agreement.


 


Section 4.5.              No Litigation;
Observance of Statutes and Orders.  (a) There
are no actions, suits, investigations or proceedings pending or, to the
knowledge of the Seller, threatened against or affecting the Seller or any
property of the Seller in any court or before any arbitrator of any kind or
before or by any Governmental Authority that, individually or in the aggregate,
would reasonably be expected to have a material adverse effect on the ability
of the Seller to perform its obligations under this Agreement or the validity
or enforceability of this Agreement.


 


(b)         The
Seller is not in default under any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation of any Governmental
Authority, which default or violation, individually or in the aggregate, would
reasonably be expected to have a material adverse effect on the ability of the
Seller to perform its obligations under this Agreement or the validity or
enforceability of this Agreement.


 


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Section 4.6.              Ownership of Notes.  The Seller owns the Notes, beneficially and
of record, free and clear of any Lien. 
Upon delivery of and payment for the Notes at the Closing, the Purchaser
will acquire good and valid title to the Notes, free and clear of any Lien.


 


SECTION 5.                REPRESENTATIONS OF THE PURCHASER.


 


The Purchaser represents and warrants to the Seller that:


 


Section 5.1.              Organization; Power
and Authority.  The Purchaser is a special
purpose financial captive duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing would not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the ability of the Purchaser to perform its obligations under this Agreement or
the validity or enforceability of this Agreement.  The Purchaser has the requisite power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder.


 


Section 5.2.              Authorization.  This Agreement has have been duly authorized
by all necessary company action on the part of the Purchaser, and this
Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).


 


Section 5.3.              Non-Contravention.  The execution, delivery and performance by
the Purchaser of this Agreement will not (i) conflict with or result in
any violation or breach of any provision of any of the organizational documents
of the Purchaser, (ii) require any consent by any Person under any
provision of any material agreement or other instrument to which the Purchaser is
bound except for such consents that have been obtained and are in full force
and effect on the date of the Closing, (iii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to the Purchaser or (iv) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Purchaser.


 


Section 5.4.              Governmental
Authorizations.  No consent, approval
or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution, delivery
or performance by the Purchaser of this Agreement except for any consents,
approvals or authorizations of, or registrations, filings or declarations that
have been obtained or made and are in full force and effect on the date of the
Closing.


 


Section 5.5.              No Litigation;
Observance of Statutes and Orders.  (a) There
are no actions, suits, investigations or proceedings pending or, to the
knowledge of the Purchaser, threatened against or affecting the Purchaser or
any property of the Purchaser in any court or before any


 


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arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be expected to have a
material adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement or the validity or enforceability of this
Agreement.


 


(b)         The
Purchaser is not in default under any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation of any Governmental
Authority, which default or violation, individually or in the aggregate, would
reasonably be expected to have a material adverse effect on the ability of the Purchaser
to perform its obligations under this Agreement or the validity or
enforceability of this Agreement.


 


Section 5.6.              Status of Purchaser.  The Purchaser is a Qualified Institutional
Buyer and is aware that such offer, sale, pledge or other transfer of the Notes
to it is being made in reliance on Rule 144A under the Securities Act and
is acquiring the Notes for its own account or for the account of another
Qualified Institutional Buyer as to which it exercises sole investment
discretion in respect thereof; provided that
the Purchaser (and each account for which the Purchaser is purchasing) (i) is
not a broker-dealer that owns and invests on a discretionary basis less than $10,000,000
million in securities of unaffiliated issuers; (ii) 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; (iii) is acquiring
such Notes for investment purposes and not with a view to distribution (except
in accordance with Rule 144A); (iv) was not formed for the purpose of
investing in the Issuer; (v) will hold and transfer at least the minimum
denomination of the Notes; (vi) will provide notice of the applicable
transfer restrictions to any subsequent transferees; and (vii) acknowledges
that the Issuer may receive a list of participants holding positions in Global
Notes (as defined in the Fiscal Agency Agreement), if any, from one or more
book-entry depositaries.  The Purchaser
understands that the Notes have not been registered under the Securities Act
and may be resold only if registered pursuant to the provisions of the
Securities Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Issuer is not required to register the Notes.


 


SECTION 6.                EXPENSES.


 


The Seller and the
Purchaser shall each pay its own expenses incurred in connection with the
transactions contemplated by this Agreement, including but not limited to any
commissions due its salesmen and legal fees and expenses of its attorneys.


 


SECTION 7.                SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; ENTIRE AGREEMENT.


 


All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the purchase or transfer by the Purchaser
of any Notes or portion thereof or interest therein. All statements contained
in any certificate or other instrument 


 


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delivered by or on behalf of the Seller pursuant to this
Agreement shall be deemed representations and warranties of the Seller under
this Agreement.  Subject to the preceding
sentence, this Agreement embodies the entire agreement and understanding
between the Purchaser and the Seller and supersede all prior agreements and
understandings relating to the subject matter hereof.


 


SECTION 8.                AMENDMENTS AND WAIVERS.


 


This Agreement may not be
amended orally, but only with the written consent of the Seller and the
Purchaser.  The observance of any term
hereof may not be waived orally, but only by the written agreement of the party
against which such waiver is sought to be enforced.


 


SECTION 9.                NOTICES.


 


All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return
receipt requested (postage prepaid), or (c) by a recognized overnight
delivery service (with charges prepaid). 
Any such notice must be sent:


 


(i)         if to the Purchaser, Golden
Gate Captive Insurance Company, c/o Protective Life Corporation, 2801 Highway
280 South, Birmingham, AL 35223, Attn: Nancy Kane, Senior Vice President and
Senior Associate Counsel, or at such other address as the Purchaser shall have
specified to the Seller in writing, and


 


(ii)          if to the Seller, to the
Seller at 5 The North Colonnade, Canary Wharf, London E14 4BB, England, or at
such other address as the Seller shall have specified to the Purchaser.


 


Notices
under this Section 9 will be deemed given only when actually received.


 


SECTION 10.              REPRODUCTION OF DOCUMENTS.


 


This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by the Purchaser at the Closing, and (c) 
certificates and other information previously or hereafter furnished to the Purchaser,
may be reproduced by the Purchaser by any photographic, photostatic,
electronic, digital, or other similar process and the Purchaser may destroy any
original document so reproduced.  The Seller
agrees and stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Purchaser in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.  This Section 10 shall not
prohibit the Seller from contesting any such reproduction 


 


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to the same extent that it could contest the original,
or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.


 


SECTION 11.              MISCELLANEOUS.


 


Section 11.1.               Defined Terms;
Construction.  Certain capitalized
and other terms used in this Agreement are defined in Schedule A.  The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.  For the avoidance of doubt, any Schedule
attached to this Agreement shall be deemed to be a part hereof.


 


Section 11.2.               Successors and
Assigns.  All covenants and other
agreements contained in this Agreement by or on behalf of any of the parties
hereto bind and inure to the benefit of their respective successors and assigns
whether so expressed or not.


 


Section 11.3.               Severability.  Any provision of this Agreement that 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 (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other
jurisdiction.


 


Section 11.4.               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 instrument.  Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.


 


Section 11.5.               Submission to
Jurisdiction; Waiver of Jury Trial. (a)  The Seller and the Purchaser
hereby irrevocably submit to the non-exclusive jurisdiction of any New York
State or federal court sitting in the Borough of Manhattan, The City of New
York, over any suit, action or proceeding arising out of or relating to this
Agreement.  To the fullest extent
permitted by applicable law, each of the Seller and the Purchaser irrevocably
waives and agrees not to assert, by way of motion, as a defense or otherwise,
any claim that it is not subject to the jurisdiction of any such court, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. Each of the Seller and the Purchaser hereby agrees
that the mailing of process or other papers in any suit, action or proceeding
of the nature referred to in Section 12.5 in the manner provided in Section 9
(i) shall be deemed in every respect effective service of process upon it
in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by applicable law, be taken and held to be valid personal
service upon and personal delivery to it.


 


(b)             THE PARTIES HERETO
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH.


 


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Section 11.6.               Governing Law.  This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to the conflict of laws provisions thereof to the extent such
provisions would permit or require the application of the law of another
jurisdiction and are not mandatorily applicable.


 


*    *    *   
*    *


 


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If you are in agreement with the foregoing, please sign the form of
agreement on a counterpart of this Agreement and return it to the Seller,
whereupon this Agreement shall become a binding agreement between you and the Seller.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  LONG ISLAND
  INTERNATIONAL LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Nick Brand

  
	
   

  	
   

  	
  Name: 

  	
  Nick Brand

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  



 


 


This Agreement is hereby


accepted and agreed to as


of the date thereof.


 


	
  GOLDEN GATE CAPTIVE
  INSURANCE COMPANY

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/ Richard J. Bielen

  	
   

  
	
   

  	
  Name: 

  	
  Richard J. Bielen

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  



 


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SCHEDULE A


 


DEFINED TERMS


 


As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:


 


“Affiliate” means, at any time,
and with respect to any Person, any other Person that at such time directly or
indirectly through one or more intermediaries Controls, or is Controlled by, or
is under common Control with, such first Person.  As used in this definition, “Control” means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.


 


“Agreement” means this Surplus
Note Purchase Agreement, dated as of October 9, 2009 between the Purchaser
and the Seller.


 


“Business Day” means any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed.


 


“Closing” is defined in Section 2.


 


“Code” means the Internal Revenue
Code of 1986, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.


 


“Fiscal Agency Agreement” is
defined in Section 1.


 


“Fiscal Agency Agreement Amendment”
is defined in Section 3.6.


 


“Fiscal Agent” is defined in Section 1.


 


“Governmental Authority” means
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” is defined in Section 1.


 


“Lien” means, with respect to any
Person, any mortgage, lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor, lender or other 


 

















 


secured party to or of such Person under any
conditional sale or other title retention agreement or capital lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).


 


“Notes” is defined in Section 1.


 


“Officer’s Certificate” means a
certificate of a Senior Financial Officer or of any other officer of the Seller
whose responsibilities extend to the subject matter of such certificate.


 


“Person” means an individual,
partnership, corporation, limited liability company, association, trust,
unincorporated organization, business entity or Governmental Authority.


 


“Purchase Price” is defined in Section 1.


 


“Purchaser” is defined in the
first paragraph of this Agreement.


 


“Qualified Institutional Buyer”
means any Person who is a “qualified institutional buyer” within the meaning of
such term as set forth in Rule 144A(a)(1) under the Securities Act.


 


“Responsible Officer” means any
Senior Financial Officer and any other officer of the Company with
responsibility for the administration of the relevant portion of this
Agreement.


 


“Rule 144A” means Rule 144A
promulgated under the Securities Act.


 


“Securities Act” means the
Securities Act of 1933, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.


 


“Seller” is defined in the first
paragraph of this Agreement.


 


“Senior Financial Officer” means
the chief financial officer, principal accounting officer, treasurer or
comptroller of the Company.


 


“Subsidiary” means, as to any
Person, any other Person in which such first Person or one or more of its
Subsidiaries or such first Person and one or more of its Subsidiaries owns
sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such second Person, and
any partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such first Person or one or more of its
Subsidiaries or such first Person and one or more of its Subsidiaries (unless
such partnership or joint venture can and does ordinarily take major business
actions without the prior approval of such Person or one or more of its
Subsidiaries).


 


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