EXHIBIT 4.1
PROTECTIVE LIFE
CORPORATION
to
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Trustee
SUPPLEMENTAL INDENTURE NO.
14
Dated as of October 9,
2009
8.00% Senior Notes due
October 15, 2024
$100,000,000
PROTECTIVE LIFE
CORPORATION
SUPPLEMENTAL INDENTURE NO.
14
$100,000,000
8.00% Senior Notes due
October 15, 2024
SUPPLEMENTAL INDENTURE NO. 14, dated
as of October 9, 2009, from PROTECTIVE LIFE CORPORATION, a
Delaware corporation (the “Company”), to THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association, as trustee (the “Trustee”).
The Company has heretofore executed
and delivered to The Bank of New York a Senior Indenture, dated as
of June 1, 1994 (the “Indenture”), providing for
the issuance from time to time of series of the Company’s
Securities.
The Company, The Bank of New York
and the Trustee have heretofore entered into that certain Agreement
of Resignation, Appointment and Acceptance effective as of
August 25, 2006, providing for the resignation of The Bank of
New York as Trustee under the Indenture and the appointment of the
Trustee as successor to The Bank of New York as Trustee under the
Indenture.
The Trustee changed its name to The
Bank of New York Mellon Trust Company, N.A. effective
October 1, 2006.
Section 3.1 of the Indenture
provides for various matters with respect to any series of
Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 8.1(7) of the
Indenture provides for the Company and the Trustee to enter into an
indenture supplemental to the Indenture to establish the form or
terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
For and in consideration of the
premises and the issuance of the series of Securities provided for
herein, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities of such
series:
ARTICLE I
RELATION TO INDENTURE;
DEFINITIONS
Section 1.1.
This Supplemental Indenture
No. 14 constitutes an integral part of the
Indenture.
Section 1.2.
For all purposes of this
Supplemental Indenture No. 14:
Section 1.2.1.
Capitalized terms used herein
without definition shall have the meanings specified in the
Indenture;
Section 1.2.2.
All references herein to Articles
and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Supplemental Indenture
No. 14; and
Section 1.2.3.
The terms “herein,”
“hereof,” “hereunder” and other words of
similar import refer to this Supplemental Indenture
No. 14.
ARTICLE II
THE SERIES 2009C SENIOR
NOTES
Section 2.1.
TITLE OF THE SECURITIES. There
shall be a series of Securities designated the 8.00% Senior Notes due October 15, 2024
(the “Series 2009C Notes”).
Section 2.2.
LIMITATION ON AGGREGATE PRINCIPAL
AMOUNT; DATE OF SERIES 2009C NOTES. The aggregate principal
amount of the Series 2009C Notes shall be limited to
$100,000,000 or such higher principal amount as shall be
outstanding as a result of the issuance of Additional Notes (as
defined herein). Each Series 2009C Note shall be dated
the date of its authentication.
Section 2.3.
PRINCIPAL PAYMENT DATES. The
principal on the Series 2009C Notes Outstanding (together with
any accrued and unpaid interest thereon) shall be payable in a
single installment on October 15, 2024.
Section 2.4.
INTEREST AND INTEREST RATES.
The rate of interest on each Series 2009C Note shall be 8.00%
per annum, accruing from October 9, 2009 or from the most
recent Interest Payment Date to which interest on such
Series 2009C Note has been paid or duly provided for.
Interest shall be payable in arrears on each Series 2009C Note
quarterly on January 15, April 15, July 15 and
October 15 of each year (each an “Interest Payment
Date”), commencing on January 15, 2010. The
interest so payable on any Series 2009C Note which is
punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Person in whose name such Series 2009C
Note is registered at the close of business on the January 1,
April 1, July 1 or October 1, as the case may be,
preceding such January 15, April 15, July 15 or
October 15 (each a “Regular Record Date”).
The interest so payable on a Series 2009C Note which is not
punctually paid or duly provided for on any Interest Payment Date
shall forthwith cease to be payable to the Person in whose name
such Series 2009C Note is registered on the relevant Regular
Record Date, and such defaulted interest shall instead be payable
to the Person in whose name such Series 2009C Note is
registered on the Special Record Date or other specified date
determined in accordance with the Indenture.
Section 2.5.
PLACE OF PAYMENT. The Place of
Payment where the Series 2009C Notes may be presented or
surrendered for payment, where the Series 2009C Notes may be
surrendered for registration of transfer or exchange and where
notices and demands to and upon the Company in respect of the
Series 2009C Notes and the Indenture may be served shall be in
the Borough of Manhattan, The City of New York, New York, and the
office or agency
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maintained by the Company for such
purpose shall initially be the Corporate Trust Office of the
Trustee.
Section 2.6.
ADDITIONAL COVENANTS. For the
benefit of the Holders from time to time of the Series 2009C
Notes and in addition to the covenants set forth in Article 9
of the Indenture, the Company further covenants and agrees as
follows:
Section 2.6.1.
Limitations on Disposition of
Capital Stock of Restricted Subsidiaries. The Company will not, and will not permit any
Subsidiary to, sell, assign, transfer or otherwise dispose of any
shares of the capital stock of any Restricted Subsidiary unless the
entire capital stock of such Restricted Subsidiary at the time
owned directly or indirectly by the Company and its Subsidiaries
shall be disposed of at the same time for a consideration
consisting of cash or other property which the Board of Directors,
as evidenced in a Board Resolution, has determined to be at least
equal to the fair value thereof. Notwithstanding the
foregoing provision, (i) the Company shall be permitted to
sell, assign, transfer or otherwise dispose of shares of the
capital stock of a Restricted Subsidiary (A) to any director
(or any individual nominated to become a director) of such
Restricted Subsidiary but only to the extent ownership of such
shares is required as directors’ qualifying shares for such
director or individual and (B) to any Subsidiary; and
(ii) any Restricted Subsidiary shall be permitted to sell,
assign, transfer or otherwise dispose of shares of its capital
stock or the capital stock of any other Restricted Subsidiary
(A) to any director (or any individual nominated to become a
director) of such Restricted Subsidiary but only to the extent
ownership of such shares is required as directors’ qualifying
shares for such director or individual, or (B) to the Company
or any Subsidiary.
Section 2.6.2.
Limitations upon Creation of
Liens on Capital Stock of Restricted Subsidiaries.
(a)
The Company will not, and will not
permit any Restricted Subsidiary to, at any time directly or
indirectly, issue, assume, guarantee or permit to exist any
indebtedness secured by a Lien on the capital stock of any
Restricted Subsidiary without making effective provision whereby
the Series 2009C Notes then outstanding (and if the Company so
elects, any other indebtedness ranking on a parity with the
Series 2009C Notes) shall be equally and ratably secured with
such indebtedness as to such property so long as such other
indebtedness shall be so secured; provided, however, that the
covenant set forth in this Section 2.6.2. will not be
applicable to Liens (i) on the shares of stock of a subsidiary
of a Person that is merged with or into the Company or a Subsidiary
securing debt of such Person, which debt was outstanding prior to
such merger, but only if such pledge and debt were not incurred in
anticipation of such merger, (ii) in favor of the Company
securing debt of a Restricted Subsidiary owed to the Company,
(iii) for taxes or assessments or governmental charges or
levies not then due and delinquent or the validity of which are
being contested in good faith or which are less than $30,000,000,
or (iv) created by or resulting from any litigation or legal
proceeding being contested in good faith or which are less than
$30,000,000.
(b)
If the Company shall hereafter be
required to secure the Series 2009C Notes equally and ratably
with any other indebtedness pursuant to this Section 2.6.2.,
(i)
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the Company will promptly deliver to
the Trustee an Officers’ Certificate stating that the
foregoing covenant has been complied with and an Opinion of Counsel
stating that in the opinion of such counsel the foregoing covenant
has been complied with and that any instruments executed by the
Company or any Restricted Subsidiary in the performance of the
foregoing covenant comply with the requirements of the foregoing
covenant and (ii) the Trustee is hereby authorized to enter
into an indenture or agreement supplemental hereto and to take such
action, if any, as it may deem advisable to enable it to enforce
the rights of the Holders of the Series 2009C
Notes.
Section 2.6.3.
For purposes of this
Section 2.6., “Restricted Subsidiary” shall mean
any Subsidiary of the Company with assets greater than or equal to
20% of all assets of the Company and its Subsidiaries, computed and
consolidated in accordance with generally accepted accounting
principles.
Section 2.6.4.
For purposes of this
Section 2.6., “Lien” shall mean any mortgage,
pledge, lien, charge, security interest, conditional sale or other
title retention agreement or other encumbrance of any nature
whatsoever.
Section 2.7.
MODIFICATION OF EVENTS OF
DEFAULT. For the benefit of the Holders from time to time of
the Series 2009C Notes, clause 4 of Section 5.1 of the
Indenture is hereby modified by deleting such clause 4 in its
entirety and replacing it with the following:
A default under any mortgage,
agreement, indenture or instrument under which there may be issued,
or by which there may be secured, guaranteed or evidenced any Debt
of the Company (including this Indenture) whether such Debt now
exists or shall hereafter be created, in an aggregate principal
amount then outstanding of $25,000,000 or more, which default
(a) shall constitute a failure to pay any portion of the
principal of such Debt when due and payable or (b) shall
result in such Debt becoming or being declared due and payable
prior to the date on which it would otherwise become due and
payable, and such acceleration shall not be rescinded or annulled,
or such Debt shall not be paid in full, within a period of 30 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of the Series 2009C Notes, a written
notice specifying such event of default and requiring the Company
to cause such acceleration to be rescinded or annulled or to pay in
full such Debt and stating that such notice is a “Notice of
Default” hereunder; (it being understood, however, that the
Trustee shall not be deemed to have knowledge of such default under
such agreement or instrument unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such default
or (B) a Responsible Officer of the Trustee shall have
received written notice thereof from the Company, from any Holder,
from the holder of any such indebtedness or from the trustee under
any such agreement or other instrument); PROVIDED, HOWEVER, that if
such default under such mortgage, agreement, indenture or
instrument is remedied or cured by the Company or waived by the
holders of such indebtedness, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or any of such Holders; PROVIDED, FURTHER, that
the foregoing shall not apply to any secured Debt under which the
obligee has recourse (exclusive of recourse for ancillary matters
such as environmental indemnities,
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misapplication of funds, costs of
enforcement and the like) only to the collateral pledged for
repayment so long as the fair market value of such collateral does
not exceed 2% of Total Assets at the time of the
“default.”
Section 2.8.
REDEMPTION AT THE OPTION OF THE
COMPANY.
Section 2.8.1.
Redemption Right at
Company’s Option . The Company has the right to redeem the
Series 2009C Notes, in whole or in part, on or after
October 15, 2014, at its sole option, at any time and from
time to time, prior to October 15, 2024 at a “Redemption
Price” equal to 100% of their principal amount, plus accrued
and unpaid interest to the date of redemption, subject to the terms
and conditions set forth in this Section 2.8.
Section 2.8.2.
Notice to Trustee.
If the Company wishes to
redeem Series 2009C Notes pursuant to the terms hereof and of
the Series 2009C Notes, it shall notify the Trustee of the
redemption date and the principal amount of Series 2009C Notes
to be redeemed. The Company shall give the notice provided
for in this Section not less than 45 nor more than 60 days
prior to the redemption date.
Section 2.8.3.
Selection of Series 2009C
Notes to be Redeemed. If less than all the Series 2009C
Notes are to be redeemed, the Trustee shall select the
Series 2009C Notes to be redeemed by lot or by any other
method the Trustee shall deem fair and reasonable. The
Trustee shall make the selection not more than 60 days before the
redemption date from Series 2009C Notes then outstanding that
have not been previously called for redemption. The Trustee
shall promptly notify the Company in writing of the
Series 2009C Notes selected for redemption and, in the case of
any Series 2009C Note selected for partial purchase or
redemption, the principal amount thereof to be purchased or
redeemed. Series 2009C Notes and portions of
Series 2009C Notes that the Trustee selects shall be in
amounts of $20 or in integral multiples thereof. Provisions
of this Indenture that apply to Series 2009C Notes called for
redemption also apply to portions of Series 2009C Notes called
for redemption.
Section 2.8.4.
Notice of Redemption.
At least 30 days but not more
than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to
each Holder whose Series 2009C Notes are to be redeemed at its
registered address.
(a)
The notice shall identify the
Series 2009C Notes to be redeemed and shall state:
(i)
the redemption date;
(ii)
if any Series 2009C Note is
being redeemed in part, the portion of the principal amount of such
Series 2009C Note to be redeemed;
(iii)
the name and address of the Paying
Agent;
(iv)
that the Series 2009C Notes
called for redemption must be
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surrendered to the Paying Agent to
collect the Redemption Pric
