Exhibit 10(g)




 





 


 


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,


 

















 


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.


 

















 


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


 

















 


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


 

















 


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


 
















 


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.


 

















 


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.


 


*    *    *   
*    *


 

















 


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

  
				



 

















 


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).