AMENDED AND RESTATED GUARANTY
AMENDED
AND RESTATED GUARANTY
THIS
AMENDED AND RESTATED GUARANTY (this "Guaranty")
is
made as of January 11, 2007, by PROTECTIVE LIFE CORPORATION, a Delaware
corporation (the "Guarantor"),
in
favor of Wachovia Development Corporation (the "Lessor"), for the ratable
benefit of the Lessor and the Lease Participants (as defined
below).
RECITALS
WHEREAS,
pursuant to the Original Ground Lease (as this and other terms used in these
recitals are defined in accordance with Section 1 below), WCI acquired a
ground
lease of certain real property located in Jefferson County, Alabama, and,
pursuant to the Original Lease Documents, constructed and installed on the
Site
an annex office building and a related parking deck and related enhancements
and
improvements, including furniture, fixtures and equipment, all of which comprise
the Facility; and
WHEREAS,
pursuant to the Original Lease Documents, Protective Life Insurance Company
(together with any successor or permitted assign under the terms of the
Operative Documents, the “Company”),
as
agent for WCI under the Original Agency Agreement, completed the construction
and installation of all such enhancements and improvements on the Site and
agreed to provide operations, maintenance and management support for the
Facility; and
WHEREAS,
in order to finance the acquisition of WCI’s ground lease of the Site and the
construction of the Facility on the Site for the ultimate use and benefit
of the
Company in accordance with the Original Lease Agreement, the Company, WCI
(as
lessor) and certain “Lease Participants” entered into the Original Investment
Agreement, whereby WCI, as lessor, made certain advances in an aggregate
amount
of $75,000,000 and the Lease Participants, among other things, made certain
advances in exchange for Ownership Interests in the Facility; and
WHEREAS,
to induce WCI and the Lease Participants to enter into the Original Investment
Agreement and other Original Lease Documents, the Guarantor executed and
delivered the Original Guaranty Agreement in favor of WCI (for the ratable
benefit of the Lease Participants); and
WHEREAS,
WCI has assigned 100% of its right, title, and interest in and to the Original
Lease Documents to Lessor pursuant to the terms of the Lessor Assignment
Agreement; and
WHEREAS,
the Company has requested to refinance and extend the maturity of the Original
Lease Agreement by, among other things, entering into that certain Amended
and
Restated Ground Lease dated as of the date hereof (as the same may be amended,
restated, supplemented, or otherwise modified from time to time, the
“Ground
Lease”),
that
certain Amended and Restated Investment and Participation Agreement dated
as of
the date hereof (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the “Investment
Agreement”),
and
that certain Amended and Restated Lease Agreement dated as of the date hereof
(as the same may be amended, restated, supplemented, or otherwise modified
from
time to time, the “Lease”);
and
WHEREAS,
to induce the Lessor to enter into the Ground Lease, the Investment Agreement,
and the Lease, among other things, the Guarantor has agreed to execute and
deliver this Guaranty (as an amendment and restatement of the Original Guaranty
Agreement), whereby the Guarantor amends and restates its agreement to guarantee
the obligations of the Company to the Lessor (for itself and for the ratable
benefit of the Lease Participants) under the Operative Documents (including,
without limitation, the Investment Agreement and the Lease);
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
herein contained, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the Guarantor
hereby agrees as follows:
SECTION
1. Definitions.
Terms
defined in the Investment Agreement or in Schedule 1.02 to the Investment
Agreement and not otherwise defined herein have, as used herein, the respective
meanings provided for therein.
SECTION
2. Incorporation
of Representations, Warranties and Covenants.
The
representations, warranties and covenants of the Guarantor contained in Articles
VII and VIII of the Investment Agreement are incorporated herein by reference,
and the Guarantor shall be bound thereby as fully as if they were set forth
herein.
SECTION
3. The
Guaranty.
The
Guarantor, as primary obligor and not merely as surety, hereby irrevocably
and
unconditionally guarantees the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) when due of all
obligations of, and all amounts owing by, the Company (but not of the
Lessor) under the Lease, the Investment Agreement, and all other Operative
Documents, including, without limitation:
(a) all
obligations to pay Rent, Impositions, Taxes, Other Taxes, Support Expenses,
the
Termination Value where the Company has not elected to acquire the Facility
by
payment of the Purchase Price upon the occurrence of a Cancellation Event,
the
Purchase Price where the Company elects to acquire the Facility, increased
costs
and compensation for reduced returns under Section 5.03 of the Investment
Agreement, compensation under Section 5.05 of the Investment Agreement,
expenses and indemnities under Section 11.03 of the Investment Agreement
and all other terms and provisions of the Operative Documents and otherwise,
and
Yield or interest at the Default Rate in respect of overdue Rent, Yield and
all
other amounts owing or payable of whatever nature, and
(b) the
full
and punctual performance when due of all obligations and agreements of the
Company to or in favor of the Lessor or the Lease Participants under the
Lease,
the Investment Agreement, and all other Operative Documents, including, without
limitation, the Company's obligation to return the Facility to the Lessor
in
accordance with Section 16 of the Lease if the Company has not elected to
acquire the Facility (all of the foregoing obligations in clauses (a) and
(b) above being referred to collectively as the "Guaranteed
Obligations";
provided,
that
notwithstanding anything herein to the contrary, if no Cancellation Event
has
occurred, and the Company has elected to pay the Final Rent Payment in
accordance with Section 15(a)(ii)(B) of the Lease, the Company shall have
no obligation to pay the Unrecovered Lessor Investments attributable to that
portion of the B Percentage Lessor Investments which constitute the Non-Recourse
Amount, which under such circumstances shall not constitute a part of the
Guaranteed Obligations), and agrees to pay any and all expenses (including
reasonable attorneys' fees and expenses) incurred by the Lessor, the Lease
Participants and their respective successors, transferees and assigns in
enforcing any rights under this Guaranty. Without limiting the generality
of the
foregoing, the Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by the Company to the
Lessor or the Lease Participants but for the fact that they are unenforceable
or
not allowable due to the existence of a bankruptcy, reorganization or similar
case or proceeding involving the Company. For purposes of determining when
an
obligation is "due"
for
purposes of this Guaranty, such term shall be interpreted to mean due in
accordance with the terms of this Guaranty and without regard to the amendment,
modification or rejection of any Guaranteed Obligation in any bankruptcy
or
other reorganization
case or proceeding.
Unless
otherwise directed in writing by Lessor, Guarantor acknowledges and agrees
that,
in accordance with Section 10.02 of the Investment Agreement, all payments
to be
made by Guarantor hereunder shall be made directly to the Administrative
Agent,
on behalf of the Lessor and the Lease Participants, and the Administrative
Agent, in turn, will apply all of such payments so made in accordance with
the
applicable terms of the Operative Documents. All such payments actually received
by the Administrative Agent shall constitute constructive receipt thereof
by the
Lessor.
SECTION
4. Guaranty
Unconditional.
The
Guarantor guarantees that the Guaranteed Obligations will be paid and performed
strictly in accordance with their terms, regardless of any law, regulation
or
order now or hereafter in effect in any jurisdiction affecting any of such
terms
or the rights of the Company with respect thereto. The obligations of the
Guarantor under this Guaranty are independent of the Guaranteed Obligations
and
a separate action or actions may be brought and prosecuted against the Guarantor
to enforce this Guaranty, irrespective of whether any action is brought against
the Company or any of its Affiliates or whether the Company or any of its
Affiliates is joined in any such action or actions. The obligations of the
Guarantor hereunder shall be irrevocable, unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any
extension, renewal, settlement, compromise, waiver or release in respect
of any
obligation of the Company under the Lease, the Investment Agreement, or any
other Operative Document, by operation of law or otherwise or any obligation
of
any other guarantor of any of the Guaranteed Obligations;
(b) any
modification or amendment of or supplement to the Lease, the Investment
Agreement, or any other Operative Document;
(c) any
release, nonperfection or invalidity of any direct or indirect security for
any
obligation of the Company under the Lease, the Investment Agreement, any
other
Operative Document or any obligations of any other guarantor of any of the
Guaranteed Obligations;
(d) any
change in the corporate existence, structure or ownership of the Company,
or any
other guarantor of any of the Guaranteed Obligations, or any insolvency,
bankruptcy, reorganization or other similar case or proceeding affecting
the
Company, or any other guarantor of the Guaranteed Obligations, or its assets
or
any resulting release or discharge of any obligation of the Company, or any
other guarantor of any of the Guaranteed Obligations;
(e) the
existence of any claim, set-off or other rights which the Guarantor may have
at
any time against the Company, any other guarantor of any of the Guaranteed
Obligations, the Administrative Agent, the Lessor, any Lease Participant
or any
other Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim
by
separate suit or compulsory counterclaim;
(f) any
invalidity or unenforceability relating to or against the Company, or any
other
guarantor of any of the Guaranteed Obligations, for any reason related to
the
Investment Agreement, any other Operative Document or any other guaranty
of the
Guaranteed Obligations, or any provision of applicable law or regulation
purporting to prohibit the payment by the Company, or any other guarantor
of the
Guaranteed Obligations, of amounts due under the Lease or any other amount
payable by the Company under the Investment Agreement, or any other Operative
Document, or purporting to limit the claim of the Lessor against the Company
under the Lease; or
(g) any
other
act or omission to act or delay of any kind by the Company, any other guarantor
of the Guaranteed Obligations, the Lessor or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Guarantor's obligations
hereunder, including, without limitation, any failure, omission, delay or
inability on the part of the Lessor or the Lease Participants to enforce,
assert
or exercise any right, power or remedy conferred on the Lessor or the Lease
Participants under the Lease, the Investment Agreement, or
any
other Operative Document.
SECTION
5. Discharge
Only Upon Payment In Full; Reinstatement In Certain
Circumstances.
The
Guarantor's obligations hereunder shall remain in full force and effect until
all Guaranteed Obligations shall have been paid in full. If at any time any
payment of Rent or Yield or any other amount payable by the Company under
the
Investment Agreement, or any other Operative Document is rescinded or must
be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Company or otherwise, the Guarantor's obligations hereunder with respect
to such payment shall be reinstated as though such payment had been due but
not
made at such time.
SECTION
6. Waiver
of Notice by the Guarantor.
The
Guarantor irrevocably waives acceptance hereof, presentment, demand, protest
and, to the fullest extent permitted by law, any notice not provided for
herein,
as well as any requirement that at any time any action be taken by any Person
against the Company, any other guarantor of the Guaranteed Obligations or
any
other Person. The Lessor shall, to the extent reasonably practicable, provide
prior written notice to the Guarantor of any intentional action (or, in the
case
of an unintentional action, such notice shall be provided upon discovery
thereof
by the Lessor) taken by the Lessor referred to in Section 3,
provided,
however,
that
the failure to provide such notice shall not affect the Guarantor's obligations
under this Guaranty.
SECTION
7. Stay
of Acceleration.
If
acceleration of the time for payment of any amount payable by the Company
under
the Lease, the Investment Agreement or any other Operative Document is stayed
upon the insolvency, bankruptcy or reorganization of the Company, all such
amounts otherwise subject to acceleration under the terms of the Lease, the
Investment Agreement or any other Operative Document
shall nonetheless be payable by the Guarantor hereunder forthwith on demand
by
the Lessor.
SECTION
8. Notices.
All
notices and other communications provided for hereunder shall be given in
accordance with the provisions of Section 11.02 of the Investment
Agreement.
Guarantor acknowledges and agrees that, pursuant to Section 11.02 of the
Investment Agreement, the Administrative Agent is entitled to receive and
deliver notices under the Operative Documents on behalf of the Lessor. In
accordance with Section 10.02 of the Investment Agreement, Lessor and Guarantor
agree that notice delivered by Guarantor to the Administrative Agent shall
constitute constructive receipt thereof by Lessor and that notice delivered
by
the Administrative Agent shall constitute in all respects notice delivered
by
the Lessor.
SECTION
9. No
Waivers.
No
failure or delay by the Lessor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided
in this
Guaranty, the Lease, the Investment Agreement and the other Operative Documents
shall be cumulative and shall not be exclusive of any other rights or remedies
provided by law.
SECTION
10. Successors
and Assigns; The Administrative Agent.
(a) This
Guaranty is for the benefit of the Lessor and its successors and assigns,
including the Lease Participants, to the extent of their Ownership Interests.
This Guaranty may not be assigned by the Guarantor without the prior written
consent of the Lessor and each Lease Participant and shall be binding upon
the
Guarantor and its successors and permitted assigns.
(b) In
accordance with Section 10.02 of the Investment Agreement (which is hereby
incorporated herein by this reference), Guarantor acknowledges and agrees
that
the Administrative Agent has been appointed to undertake, on Lessor’s and, in
certain cases, the Lease Participants’ behalf, certain actions with respect to
the administration of this Guaranty, the other Operative Documents, and the
transactions contemplated herein and therein. Guarantor agrees to abide by
the
provisions of Section 10.02 of the Investment Agreement and other provisions
in
the Operative Documents in respect of the Administrative Agent’s role and
function in connection with the administration of the transactions contemplated
therein, including, without limitation, the payment of the Guaranteed
Obligations and other amounts owing under the Operative Documents directly
to
the Administrative Agent for the account of the Lessor and the Lease
Participants, as applicable, the receipt and delivery of notices, reports,
financial statements, and the like to the Administrative Agent on the Lessor’s
and the Lease Participants’ behalf, and permitting, where applicable, the
Administrative Agent to exercise, on the Lessor’s and the Lease Participants’
behalf, the rights and remedies afforded Lessor under the Operative
Documents.
SECTION
11. Changes
in Writing.
Neither
this Guaranty nor any provision hereof may be changed, waived, discharged
or
terminated orally, but only in writing signed by the Guarantor and the Lessor
(with the consent of all of the Funding Parties).
SECTION
12. Governing
Law; Submission To Jurisdiction.
(a) This
Guaranty (including, but not limited to, the validity and enforceability
hereof) shall be governed by, and construed in accordance with, the laws of
the State of New York, other than the conflict of laws rules thereof (other
than
Section 5-1401 of the New York General Obligations Law).
(B) THE
GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE
OR FEDERAL COURT SITTING IN NEW YORK CITY AND ANY APPELLATE COURT FROM ANY
THEREOF IN ANY ACTION OR PROCEEDING BY THE LESSOR IN RESPECT OF, BUT ONLY
IN
RESPECT OF, ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO
THIS
GUARANTY OR THE OTHER OPERATIVE DOCUMENTS (SUCH CLAIMS AND CAUSES OF ACTION,
COLLECTIVELY, BEING "PERMITTED
CLAIMS"),
AND THE GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL PERMITTED CLAIMS MAY
BE
HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR IN SUCH FEDERAL COURT.
THE
GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO
SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR
PROCEEDING IN ANY AFOREMENTIONED COURT IN RESPECT OF PERMITTED CLAIMS. THE
GUARANTOR HEREBY IRREVOCABLY AGREES THAT SERVICE OF COPIES OF THE SUMMONS
AND
COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED BY THE LESSOR IN ANY
SUCH
ACTION OR PROCEEDING IN ANY AFOREMENTIONED COURT IN RESPECT OF PERMITTED
CLAIMS
MAY BE MADE BY DELIVERING A COPY OF SUCH PROCESS TO THE GUARANTOR BY COURIER
AND
BY CERTIFIED MAIL (RETURN RECEIPT REQUESTED), FEES AND POSTAGE PREPAID, AT
THE
GUARANTOR'S ADDRESS DETERMINED PURSUANT TO SECTION 8.
THE GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(c) Nothing
in this Section 12: (i) shall affect the right of the Lessor to serve
legal process in any other manner permitted by law or affect any right otherwise
existing of the Lessor to bring any action or proceeding against the Guarantor
or its property in the courts of other jurisdictions or (ii) shall be
deemed to be a general consent to jurisdiction in any particular court or
a
general waiver of any defense or a consent to jurisdiction of the courts
expressly referred to in Subsection (a) above in any action or
proceeding in respect of any claim or cause of action other than Permitted
Claims.
SECTION
13. Taxes,
Etc.
All
payments required to be made by the Guarantor hereunder shall be made without
set-off or counterclaim and free and clear of, and without deduction or
withholding for or on account of, any present or future taxes, levies, imposts,
duties or other charges of whatsoever nature imposed by any government or
any
political or taxing authority as required pursuant to Section 4.06 of the
Investment Agreement.
SECTION
14. Subrogation.
The
Guarantor hereby agrees that it will not exercise any rights which it may
acquire by way of subrogation under this Guaranty, by any payment made hereunder
or otherwise, unless and until all of the Guaranteed Obligations shall have
been
paid in full. If any amount shall be paid to the Guarantor on account of
such
subrogation rights at any time when all of the Guaranteed Obligations shall
not
have been paid in full, such amount shall be held in trust for the benefit
of
the Lessor and the Lease Participants and shall forthwith be paid to the
Administrative Agent, for the Lessor’s and the Lease Participants’ account, to
be credited and applied to the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of the Investment
Agreement.
SECTION
15. Waiver
of Jury Trial.
EACH
OF THE GUARANTOR AND THE LESSOR WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
TO
ENFORCE OR TO DEFEND ANY RIGHTS UNDER THIS GUARANTY OR ANY OTHER OPERATIVE
DOCUMENT OR UNDER AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH
OR
ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY OR
ANY
OTHER OPERATIVE DOCUMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
SECTION
16. Amendment
and Restatement.
This
Guaranty constitutes an amendment and restatement of the Original Guaranty
Agreement, and no novation of the obligations of Guarantor under the Original
Guaranty Agreement shall be deemed to have occurred. Guarantor ratifies and
reaffirms its guarantee obligations in light of the amendments and restatements
to the Operative Documents entered into contemporaneously herewith.
[Signature
on following page.]
IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed,
under seal, by its authorized officer as of the date first above
written.
[SEAL]
PROTECTIVE
LIFE CORPORATION,
a
Delaware corporation
By:
Name:
