EXHIBIT 10.1
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT (“this Amendment”) dated as of
October 2, 2009 (the “Effective Date”) is entered
into by PROTECTIVE LIFE CORPORATION , a Delaware corporation
(“PLC”), PROTECTIVE LIFE INSURANCE COMPANY , a
Tennessee corporation (“PLICO”; PLC and PLICO are
together referred to as the “Borrowers”), REGIONS
BANK , an Alabama banking corporation (“Regions”),
and the various lenders identified on the signature
pages hereto (collectively, the “Lenders”), and
REGIONS BANK , in its capacity, as Administrative Agent for
the Lenders (the “Administrative Agent”).
Recitals
A.
The Borrowers, the Lenders and the
Administrative Agent are parties to a certain Second Amended and
Restated Credit Agreement dated as of April 16, 2008 (as
amended or supplemented from time to time, the “Credit
Agreement”).
B.
The Borrowers have requested that
the Lenders and the Administrative Agent amend the Credit Agreement
to make certain modifications to the Credit Agreement as set forth
herein.
C.
The Lenders and the Administrative
Agent have agreed to make such modifications, provided that the
Borrowers, the Lenders and the Administrative Agent enter into this
Amendment.
Agreement
NOW, THEREFORE
, in consideration of the foregoing
recitals and in further consideration of the mutual agreements set
forth herein, the Borrowers, the Lenders and the Administrative
Agent hereby agree as follows, with such agreements to become
effective as of the Effective Date:
1.
Rules of
Construction .
This Amendment is subject to the rules of construction set
forth in the Credit Agreement.
2.
Definitions
. Capitalized terms used in
this Amendment and not otherwise defined herein have the meanings
defined for them in the Credit Agreement.
3.
Representations and Warranties
of Borrowers .
The Borrowers represent and warrant to the Lenders and the
Administrative Agent as follows:
(a)
Representations and Warranties
in Credit Documents .
All of the representations and warranties set forth in the
Credit Documents are true and correct on
and as of the Effective Date, except
to the extent that such representations and warranties expressly
relate to an earlier date.
(b)
No Default
. As of the Effective Date,
each Borrower is in compliance with all the terms and provisions
set forth in the Credit Documents on its part to be observed or
performed, and no Event of Default, nor any event that upon notice
or lapse of time or both would constitute such an Event of Default,
has occurred and is continuing.
(c)
Borrowers’
Organizational Documents . The Borrowers’ organizational
documents have not been amended since April 16,
2008.
4.
Amendments to Credit
Agreement . The
Credit Agreement is hereby amended as follows:
(a)
The third sentence of the definition
of Indebtedness in Article I of the Credit Agreement shall be
amended and restated to read in its entirety as follows:
“Notwithstanding the
foregoing, Indebtedness shall not include: (1) the following
obligations issued in connection with the funding of statutory
reserves and with respect to which the Borrowers have no obligation
to repay: (A) surplus notes or other obligations of
Subsidiaries of the Borrowers (“Capital Market Notes”),
(B) any securities backed by such Capital Market Notes,
(C) letters of credit issued for the account of Subsidiaries
of the Borrowers that are not issued under this Agreement, and
(D) any guarantees by the issuers of the obligations described
in (A), (B) and (C) above, (2) the sale and issuance
of up to $800 million of senior notes of PLC during the fourth
quarter of 2009, the proceeds of which will be used to purchase
Capital Market Notes in connection with the funding of statutory
reserves and any subsequent reserve financing transaction for which
the Borrowers will receive approval from the Required Lenders to
exclude from this definition of Indebtedness, (3) any
short-term indebtedness incurred for the pre-funding of anticipated
policy obligations or anticipated investment cash flow, or
(4) obligations that are not otherwise included in items
(i) through (viii) of the definition of Indebtedness, but
which would be classified as a liability on the Borrowers’
financial statements only by reason of FASB Interpretation
No. 46 or a subsequent accounting pronouncement having a
substantially similar impact.
(b)
The definition of
“Unconsolidated Cash Inflow Available for Interest
Expense” in Article I of the Credit Agreement shall be
amended and restated to read in its entirety as follows:
“ Unconsolidated Cash
Inflow Available for Interest Expense ” means, for any
period of calculation, the sum (without duplication) of
(a) all amounts received by PLC from its Subsidi
