EXHIBIT 4.5
[EXECUTION COPY]
COMMON SECURITIES GUARANTEE AGREEMENT
PLC CAPITAL TRUST IV
Dated as of September 25, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation................................................................... 1
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application................................................................. 4
SECTION 2.2. Lists of Holders of Securities................................................................... 5
SECTION 2.3. Reports by the Common Guarantee Trustee.......................................................... 5
SECTION 2.4. Periodic Reports to Common Guarantee Trustee..................................................... 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent................................................. 5
SECTION 2.6. Events of Default; Waiver........................................................................ 5
SECTION 2.7. Event of Default; Notice ........................................................................ 5
SECTION 2.8. Conflicting Interests ........................................................................... 6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF COMMON GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Common Guarantee Trustee ............................................... 6
SECTION 3.2. Certain Rights of Common Guarantee Trustee ...................................................... 8
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee ........................................... 9
ARTICLE IV. COMMON GUARANTEE TRUSTEE
SECTION 4.1. Common Guarantee Trustee; Eligibility ........................................................... 10
SECTION 4.2. Appointment, Removal and Resignation of Common Guarantee Trustees ............................... 10
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee ....................................................................................... 11
SECTION 5.2. Waiver of Notice and Demand ..................................................................... 11
SECTION 5.3. Obligations Not Affected ........................................................................ 11
SECTION 5.4. Rights of Holders ............................................................................... 12
SECTION 5.5. Guarantee of Payment ............................................................................ 13
SECTION 5.6. Subrogation ..................................................................................... 13
SECTION 5.7. Independent Obligations ......................................................................... 13
ARTICLE VI. LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions ...................................................................... 13
SECTION 6.2. Ranking ......................................................................................... 14
ARTICLE VII. TERMINATION
SECTION 7.1. Termination ..................................................................................... 14
i
ARTICLE VIII. INDEMNIFICATION
SECTION 8.1. Exculpation ..................................................................................... 14
SECTION 8.2. Indemnification ................................................................................. 15
ARTICLE IX. MISCELLANEOUS
SECTION 9.1. Successors and Assigns .......................................................................... 15
SECTION 9.2. Amendments ...................................................................................... 16
SECTION 9.3. Notices ......................................................................................... 16
SECTION 9.4. Benefit ......................................................................................... 17
SECTION 9.5. Governing Law ................................................................................... 17
ii
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as
of September 25, 2002, is executed and delivered by
Protective Life Corporation,
a Delaware corporation (the "Guarantor"), and Wilmington Trust Company, as
trustee (the "Common Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Common Securities (as defined herein)
of PLC Capital Trust IV a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of September 25, 2002, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof 4,600,000 preferred securities, having an aggregate
liquidation amount of $115,000,000, designated the 7-1/4% Trust Originated
Preferred Securities (the "Preferred Securities") and 142,280 common securities,
having an aggregate liquidation amount of $3,557,000, designated the 7-1/4%
Trust Originated Common Securities (the "Common Securities");
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
of the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Preferred Securities Guarantee") in substantially identical
terms to this Common Securities Guarantee for the benefit of the holders of the
Preferred Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under this Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under the Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Common Securities Guarantee
for the benefit of the Holders.
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION. In this Common Securities
Guarantee, unless the context otherwise requires:
(a) Capitalized terms used in this Common Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
1
(b) a term defined anywhere in this Common Securities Guarantee has
the same meaning throughout;
(c) all references to "the Common Securities Guarantee" or "this
Common Securities Guarantee" are to this Common Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Common Securities Guarantee to Articles and
Sections are to Articles and Sections of this Common Securities Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Common Securities Guarantee, unless otherwise defined in this
Common Securities Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Business Day" means any day other than a day on which banking
institutions in the City of
New York,
New York are authorized or required by any
applicable law to close.
"Common Guarantee Trustee" means Wilmington Trust Company until a
Successor Common Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Common Securities Guarantee and
thereafter means each such Successor Common Guarantee Trustee.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Common Guarantee
Trustee at which the corporate trust business of the Common Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Wilmington Trust Company,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Common
Securities.
"Debentures" means the series of junior subordinated debt securities
of the Guarantor designated the 7-1/4% Subordinated Debentures due 2032, Series
E held by the Institutional Trustee (as defined in the Declaration) of the
Issuer.
2
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Common Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Common Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Common Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
the Issuer (other than in connection with the distribution of Debentures to the
Holders in exchange for Common Securities as provided in the Declaration), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Common Securities to the date of payment, to the extent the
Issuer shall have funds available therefor, and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an event of default
under the Indenture has occurred and is continuing, the rights of holders of the
Common Securities to receive payments hereunder are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments under the
Preferred Securities Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of any Common Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Common Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Common Guarantee Trustee, any Affiliate
of the Common Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Common Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of June 1, 1994,
among the Guarantor (the "Debenture Issuer") and The Bank of
New York (as
successor to AmSouth Bank as trustee, and any indenture supplemental thereto
pursuant to which certain subordinated debt securities of the Debenture Issuer
are to be issued to the Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Common Securities,
voting separately as a class, of more than 50% of the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all Common Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Common Securities Guarantee shall include:
3
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Common Guarantee
Trustee, any officer within the Corporate Trust Office of the Common Guarantee
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Common Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Common Guarantee Trustee" means a successor Common
Guarantee Trustee possessing the qualifications to act as Common Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION. (a) This Common
Securities Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Common Securities Guarantee and shall, to
the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Common Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
4
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES (a) The Guarantor shall
provide the Common Guarantee Trustee with a list, in such form as the Common
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders of the Common Securities ("List of Holders") as of such date (i)
concurrently with the provision of such a list to the Institutional Trustee
pursuant to the Declaration, and (ii) at any time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a date no more
than 14 days before such List of Holders is given to the Common Guarantee
Trustee provided, that the Guarantor shall not be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Common Guarantee Trustee by the Guarantor. The
Common Guarantee Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Common Guarantee Trustee shall comply with its obligations
under Section 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE COMMON GUARANTEE TRUSTEE. Within 60 days
after May 15 of each year, the Common Guarantee Trustee shall provide to the
Holders of the Common Securities such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Common Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO COMMON GUARANTEE TRUSTEE. The
Guarantor shall provide to the Common Guarantee Trustee such documents, reports
and information as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Common Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Common
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
liquidation amount of Common Securities may, by vote, on behalf of the Holders
of all of the Common Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Common Securities Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE. (a) The Common Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Common
Securities, notices of all Events of Default actually known to a Responsible
Officer of the Common Guarantee Trustee, unless such defaults have been cured
before the giving of such notice, provided, that, the Common Guarantee Trustee
shall be protected in
5
withholding such notice if and so long as a Responsible Officer of the Common
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Common Securities.
(b) The Common Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Common Guarantee Trustee shall have received
written notice, or unless a Responsible Officer of the Common Guarantee Trustee
charged with the administration of the Declaration shall have obtained actual
knowledge thereof.
SECTION 2.8. CONFLICTING INTERESTS. The Declaration shall be deemed to
be specifically described in this Common Securities Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
COMMON GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE COMMON GUARANTEE TRUSTEE. (a)
This Common Securities Guarantee shall be held by the Common Guarantee Trustee
for the benefit of the Holders of the Common Securities, and the Common
Guarantee Trustee shall not transfer this Common Securities Guarantee to any
Person except a Holder of Common Securities exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Common Guarantee Trustee on
acceptance by such Successor Common Guarantee Trustee of its appointment to act
as Successor Common Guarantee Trustee. The right, title and interest of the
Common Guarantee Trustee shall automatically vest in any Successor Common
Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Common Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Common Guarantee Trustee has occurred and is continuing, the Common
Guarantee Trustee shall enforce this Common Securities Guarantee for the benefit
of the Holders of the Common Securities.
(c) The Common Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Common Securities Guarantee, and no implied covenants shall be read into
this Common Securities Guarantee against the Common Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Common
Guarantee Trustee, the Common Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Common Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
6
(d) No provision of this Common Securities Guarantee shall be
construed to relieve the Common Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Common
Guarantee Trustee shall be determined solely by the express
provisions of this Common Securities Guarantee, and the Common
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Common Securities Guarantee, and no implied
covenants or obligations shall be read into this Common
Securities Guarantee against the Common Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Common Guarantee Trustee, the Common Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Common Guarantee
Trustee and conforming to the requirements of this Common
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Common Guarantee Trustee, the
Common Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Common Securities Guarantee;
(ii) the Common Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Common Guarantee Trustee, unless it shall be proved that the Common
Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Common Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Common Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Common Guarantee Trustee, or exercising any trust or
power conferred upon the Common Guarantee Trustee under this Common
Securities Guarantee; and
(iv) no provision of this Common Securities Guarantee shall
require the Common Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Common Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured
to it under the terms of this Common Securities Guarantee or indemnity,
reasonably satisfactory to the Common Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
7
SECTION 3.2. CERTAIN RIGHTS OF COMMON GUARANTEE TRUSTEE. (a) Subject
to the provisions of Section 3.1:
(i) The Common Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Common Securities Guarantee shall be sufficiently evidenced by a
Direction (as defined in the Declaration) or an Officers' Certificate.
(iii) Whenever, in the administration of this Common
Securities Guarantee, the Common Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Common Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Common Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Common Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Common Guarantee Trustee shall have
the right at any time to seek instructions concerning the
administration of this Common Securities Guarantee from any court of
competent jurisdiction.
(vi) The Common Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Common
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Common Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Common Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Common Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Common Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Common Guarantee
8
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Common
Securities Guarantee.
(vii) The Common Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Common Guarantee
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Common Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Common Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Common Guarantee Trustee or its
agents hereunder shall bind the Holders of the Common Securities, and
the signature of the Common Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Common
Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Common Securities Guarantee, both of which
shall be conclusively evidenced by the Common Guarantee Trustee's or
its agent's taking such action.
(x) Whenever in the administration of this Common Securities
Guarantee the Common Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Common Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation
amount of the Common Securities, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(b) No provision of this Common Securities Guarantee shall be deemed
to impose any duty or obligation on the Common Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Common Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Common Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Common Guarantee Trustee does not assume any responsibility
for their correctness. The Common Guarantee
9
Trustee makes no representation as to the validity or sufficiency of this Common
Securities Guarantee.
ARTICLE IV.
COMMON GUARANTEE TRUSTEE
SECTION 4.1. COMMON GUARANTEE TRUSTEE; ELIGIBILITY. (a) There shall at
all times be a Common Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Common Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Common Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2 (c).
(c) If the Common Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Common Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF COMMON GUARANTEE
TRUSTEES. (a) Subject to Section 4.2(b), the Common Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Common Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Common Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Common Guarantee Trustee and delivered to the Guarantor.
10
(c) The Common Guarantee Trustee appointed to office shall hold office
until a Successor Common Guarantee Trustee shall have been appointed or until
its removal or resignation. The Common Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Common Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Common Guarantee Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Common Guarantee Trustee and delivered to the
Guarantor and the resigning Common Guarantee Trustee.
(d) If no Successor Common Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Common
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Common Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Common Guarantee Trustee.
(e) No Common Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Common Guarantee Trustee.
(f) Upon termination of this Common Securities Guarantee or removal or
resignation of the Common Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Common Guarantee Trustee all amounts accrued to the
date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
SECTION 5.1. GUARANTEE. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Common Securities Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Common Securities Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
11
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Common Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Common Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. RIGHTS OF HOLDERS. (a) The Holders of a Majority in
liquidation amount of the Common Securities have the right to direct the time,
method and place of conducting of any proceeding for any remedy available to the
Common Guarantee Trustee in respect of this Common Securities Guarantee or
exercising any trust or power conferred upon the Common Guarantee Trustee under
this Common Securities Guarantee.
(b) If the Common Guarantee Trustee fails to enforce this Common
Securities Guarantee with respect to the right of any Holders to receive any
Guarantee Payment in accordance herewith,
12
such Holder may directly institute a proceeding against the Guarantor for
enforcement of the Common Security Guarantee for such payment. The Guarantor
waves any right or remedy to require that any action be brought first against
the Issuer or any other Person or entity before proceeding directly against the
Guarantor.
SECTION 5.5. GUARANTEE OF PAYMENT. This Common Securities Guarantee
creates a guarantee of payment and not of collection.
SECTION 5.6. SUBROGATION. The Guarantor shall be subrogated to all (if
any) rights of the Holders of Common Securities against the Issuer in respect of
any amounts paid to such Holders by the Guarantor under this Common Securities
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Common
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Common Securities Guarantee. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Common Securities, and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Common Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS. So long as any Common
Securities remain outstanding, if there shall have occurred an Event of Default
or an event of default under the Declaration, then (a) the Guarantor shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Guarantor of its
obligations under any employee benefit plans or the satisfaction by the
Guarantor of its obligations pursuant to any contract or security requiring the
Guarantor to purchase shares of its common stock, (ii) as a result of a
reclassification of its capital stock or the exchange or conversion of one class
or series of its capital stock for another class or series of its capital stock,
(iii) the purchase of fractional interests in shares of its capital stock
pursuant to an acquisition, the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, and (iv) redemptions
or purchases pursuant to the Guarantor's Rights Agreement, dated August 7, 1995,
between the Guarantor and The Bank of
New York (as successor to AmSouth Bank) as
Rights Agent, (b) the Guarantor shall not make any payment of interest,
13
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Guarantor which rank pari passu
with or junior to the Debentures and (c) the Guarantor shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee, dated as of September 25, 2002 of the Guarantor
with respect to the 7-1/4% Trust Originated Preferred Securities, this
Agreement, the Preferred Securities Guarantee, dated as of April 29, 1997 and
the Common Securities Guarantee dated as of April 29, 1997 of the Company with
respect to the 8-1/4% Trust Originated Preferred Securities, Series B of PLC
Capital Trust I and the Preferred Securities Guarantee, dated August 22, 2001
and the Common Securities Guarantee dated as of August 22, 2001 of the Company
with respect to the 7-1/2% Trust Originated Preferred Securities Series D of PLC
Capital Trust III).
SECTION 6.2. RANKING. This Common Securities Guarantee will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all Senior Indebtedness as such term is defined in
the Indenture (ii) PARI PASSU with the Debentures and the Guarantor's Preferred
Securities Guarantee of PLC Capital Trust's 7-1/4% Trust Originated Preferred
Securities, Series E and any other liabilities or obligations that may be PARI
PASSU by their terms and (iii) senior to the Guarantor's common stock, the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any affiliate of the Guarantor.
If an Event of Default has occurred and is continuing under the
Declaration, the rights of the Holders of the Common Securities to receive
Guarantee Payments under this Common Securities Guarantee shall be subordinated
to the rights of the holders of the Preferred Securities to receive payment of
all amounts due and owing under the terms of the Preferred Securities Guarantee.
ARTICLE VII.
TERMINATION
SECTION 7.1. TERMINATION. This Common Securities Guarantee shall
terminate upon (i) full payment of the Redemption Price of all Common
Securities, (ii) upon the distribution of the Debentures to the Holders of all
of the Common Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Common Securities Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder of Common
Securities must restore payment of any sums paid under the Common Securities or
under this Common Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. EXCULPATION. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage
14
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Common Securities
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Common Securities Guarantee or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Common Securities might properly be paid.
SECTION 8.2. INDEMNIFICATION. (a) To the fullest extent permitted by
applicable law, the Guarantor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Guarantee Agreement and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Guarantee Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of negligence or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 8.2(a).
(c) The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of the Common Securities Guarantee.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Common Securities Guarantee shall bind the successors,
assigns, receivers, trustees and
15
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 9.2. AMENDMENTS. Except with respect to any changes that do
not adversely affect the rights of Holders (in which case no consent of Holders
will be required), this Common Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding Common Securities. The
provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Securities apply to the giving of such approval.
SECTION 9.3. NOTICES. All notices provided for in this Common
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by registered or certified
mail, as follows:
(a) if given to the Common Guarantee Trustee, at the Common Guarantee
Trustee's mailing address set forth below (or such other address as the Common
Guarantee Trustee may give notice of to the Holders of the Common Securities):
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Common Securities):
Protective Life Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
(c) If given to any Holder of Common Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
16
SECTION 9.4. BENEFIT. This Common Securities Guarantee is solely for
the benefit of the Holders of the Common Securities and, subject to Section
3.1(a), is not separately transferable from the Common Securities.
SECTION 9.5. GOVERNING LAW. THIS COMMON SECURITIES GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF
NEW YORK.
17
THIS COMMON SECURITIES GUARANTEE is executed as of the day and year
first above written.
PROTECTIVE LIFE CORPORATION, as Guarantor
BY:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Chief
Investment Officer and Treasurer
18
WILMINGTON TRUST COMPANY, as Common
Guarantee Trustee
By:
-----------------------------
Name:
Title:
19