Exhibit 5.3
[Letterhead of Protective Life Corporation]
September 16, 2004
Protective Life Insurance Company
2801 Highway 280 South
Birmingham,Alabama 35223
| Re: | Protective Life Insurance Company
$29,828,000 Inflation Protected InterNotesSM
(Opinion re: Corporate Matters and Enforceability of Funding Agreement) |
Ladies and Gentlemen:
I am Senior Associate Counsel with Protective Life Corporation and have served as in-house counsel to Protective Life Insurance Company ("PLIC") in connection with the issuance by Protective Life Secured Trust 2004-41 (the "Trust") of its secured notes referred to as InterNotesÒ in the aggregate principal amount of $29,828,000 (the"Notes") to be secured by Funding Agreement No. GA-6040 (the "Funding Agreement") between PLIC and the Trust. The Trust was formed for the sole purpose of facilitating the issuance of the Notes. PLIC has filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, (i) a Registration Statement on Form S-3 (File No. 333-100944), on November 1, 2002, as amended by Pre-Effective Amendment No. 1 thereto filed on November 7, 2003 and Pre-Effective Amendment No. 2 thereto filed on November 12, 2003 (the"Registration Statement"); (ii) a prospectus dated December 15, 2003 relating to secured notes; (iii) a prospectus supplement dated June 9, 2004 relating to secured notes referred to as InterNotes® to be sold to retail investors (the "Prospectus Sup plement"); and (iv) a pricing supplement dated September 13, 2004 relating to the issuance of the Notes.
In order to provide this Opinion, I and/or other attorneys in whom I have confidence have examined and are familiar with, among other things, the following:
a. A Certificate of Existence for PLIC issued by the Secretary of State of Tennessee and dated September 10, 2004;
b. A Certificate of Compliance issued by the Commissioner of Commerce and Insurance of the State of Tennessee to PLIC dated September 8, 2004 (the"Certificate of Compliance");
c. A copy of the 2002 Amended and Restated Charter of PLIC, certified by the Tennessee Secretary of State on July 8, 2004;
d. The Funding Agreement;
e. The fully executed Closing Instrument dated September 16, 2004 relating to the issuance of the Notes incorporating the Cross-Receipt; and
f. The Selling Agent Agreement, dated September 13, 2004, relating to the issuance of the Notes, by and among the Trust, PLIC and the agents specified therein, including the Standard Selling Agent Agreement Terms dated as of November 7, 2003, and the related Administrative Procedures (the "Selling Agent Agreement").
I have also examined such certificates and other documents and instruments, researched such questions of law, and examined such government records in Tennessee as I have reasonably considered necessary or appropriate for the purpose of delivering this Opinion. In rendering this Opinion, I have assumed the due authorization, execution and delivery of all documents by the parties thereto, other than as to the authorization, execution and delivery of the Funding Agreement by PLIC, and the conformity to authentic, original documents of all documents submitted to me as certified, conformed or photostatic copies.
Based on the foregoing and subject to the assumptions, qualifications and exceptions set forth herein, I am of the opinion that:
1. PLIC was redomesticated from the State of Alabama to the State of Tennessee in 1992 and is duly incorporated, validly existing and in good standing under the laws of the State of Tennessee.
2. PLIC is duly licensed under the insurance laws of Tennessee.
3. PLIC has full corporate power and authority to execute and deliver, and to perform its obligations under, the Funding Agreement. PLIC has duly authorized, executed and delivered the Funding Agreement. If the Funding Agreement was governed by Tennessee law (rather than Delaware law, which is specified as the governing law in the Funding Agreement), the Funding Agreement would, under Tennessee law, constitute a valid and legally binding obligation of PLIC, enforceable against PLIC in accordance with its terms.
4. To the best of my knowledge, no order, consent, permit or approval of any Tennessee court or Tennessee governmental authority having jurisdiction over PLIC is required for the execution, delivery and performance by PLIC of the Selling Agent Agreement or the Funding Agreement that has not already been obtained.
The foregoing opinions are subject to and expressly limited by the following assumptions, qualifications and limitations, in addition to those previously set forth:
(i) The opinion that PLIC is duly licensed under the insurance laws of Tennessee is based solely upon the Certificate of Compliance.
(ii) The opinion that the Funding Agreement constitutes a valid, legally binding and enforceableobligation is further qualified to the extent that: (a) the agreement is subject to and may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity and the discretion of courts applying equitable principles regardless of whether such enforcement is considered in a proceeding in equity or at law; (b) certain rights, remedies and waivers contained in the agreement may be limited or rendered ineffective by applicable Tennessee laws or judicial decisions; however, such laws and judicial decisions do not render the agreement invalid as a whole, and there exist, in the agreement or pursuant to applicable law, legally adequate remedies to realize the principal benefits and secu rity reasonably intended to be provided by the agreement; and (c) I express no opinion as to usury. With respect to usury, it is my understanding that the rate to be provided for in the Funding Agreement is substantially lower than Tennessee's usury limit, which, in general terms, is the prime rate plus four percentage points (4%), with a maximum of twenty-four percent (24%). A brief summary of the pertinent portions of Tennessee's general usury statutes is attached hereto as Exhibit A.
(iii) All references in this Opinion to facts based upon my"knowledge" refer solely to my current, actual knowledge, acquired during the course of the representation described in the introductory paragraph of this letter and to the knowledge of those attorneys in the legal department of Protective Life Corporation who have rendered advice or legal services in connection with such representation.
(iv) I express no opinion herein other than as to the law of the State of Tennessee.
This Opinion is rendered as of the date hereof, and I assume no obligation to advise you of any change hereafter occurring in circumstances touching or concerning the transaction which is the subject of this Opinion, including any changes in law or fact (or the effect thereof on the opinions expressed herein) that hereafter may come to my attention.
This Opinion is provided to you in connection with the transactions described above. I consent to reliance by Richards, Layton & Finger, P.A. upon this Opinion as to matters of Tennessee law in connection with opinions to be rendered by it on the date hereof. I consent to the filing of this Opinion as an exhibit to PLIC's Form 8-K to be filed in connection with the issuance and sale of the Notes, incorporated by reference in the Registration Statement and to the use of my name under the heading "Legal Matters" in the Prospectus Supplement. In giving such consent, I do not hereby concede that I am within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
| | Very truly yours,
/s/ WILLIAM L. MCCARTY
William L. McCarty |
