| the Program Documents or any other document to which the Trust is a |
| party or other documents executed | thereunder or in connection |
| Any of the above services (other than those described in Sections 2.2(c), |
2.2(d) and 2.2(e)) may, if the Administrator or the Trust deems it necessary or
desirable, be subcontracted by the Administrator; provided that notice is given
to the Trust of such subcontract and, notwithstanding such subcontract, the
Administrator shall remain responsible for performance of the services set forth
above unless such services are subcontracted to accountants or legal counsel
selected with due care by the Administrator and reasonably satisfactory to the
Trust and in which case the Administrator shall not remain responsible for the
performance of such services and the Administrator shall not, in any event, be
responsible for the costs, fees or expenses in connection therewith.
| ACTIVITIES OF THE TRUST; EMPLOYEES; OFFICES. |
| SECTION 3.1 Activities of the Trust. The Administrator agrees to carry out |
and perform the administrative activities of the Trust set forth in Article 2 in
the name and on behalf of the Trust as its agent.
| SECTION 3.2 Employees. All services to be furnished by the Administrator |
under the Administrative Services Agreement may be furnished by an officer or
employee of the Administrator, an officer or employee of any Affiliate of the
Administrator, or, subject to Article 2, any other person or agent designated or
retained
by it; provided that the Administrator shall remain ultimately responsible for
the provision of such services by an officer or employee of the Administrator or
any of its Affiliates or any other person or agent designated or retained by it,
unless selected with due care and reasonably satisfactory to the Trust in
accordance with the last paragraph of Article 2. No director, officer or
employee of the Administrator or any Affiliate of the Administrator shall
receive from the Trust a salary or other compensation.
| SECTION 3.3 Offices. The Administrator agrees to provide its own office |
space, together with appropriate materials and any necessary support personnel,
for the day to day activities of the Trust set forth in Article 2 to be carried
out and performed by the Administrator, all for the compensation specified in
Article 4. Unless otherwise specified in the Administrative Services Agreement,
all services to be furnished by the Administrator under the Administrative
Services Agreement shall be performed from the Administrator's office in North
Carolina.
| COMPENSATION; INDEMNITIES |
| SECTION 4.1 Compensation. The Trust agrees to pay the Administrator the |
fees set forth in or pursuant to the Administrative Services Agreement (the
"Administration Fee").
| SECTION 4.2 Indemnities. To the fullest extent permitted under applicable |
law and subject to limitations imposed by public policy, the Trust agrees to
indemnify the Administrator, and hold the Administrator harmless, from and
against any and all losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, out-of-pocket costs and expenses
(including, without limitation, interest and reasonable attorneys fees, but
excluding costs and expenses attributable solely to administrative overhead)
arising out of, in connection with, or resulting from the exercise of the
Administrator's rights and/or the performance of the Administrator's duties, by
the Administrator or its agents and employees, under the Administrative Services
Agreement (collectively, "Loss and Expense"); provided, however, that the Trust
shall not be liable to indemnify the Administrator, or hold the Administrator
harmless, from and against any and all Loss and Expense resulting from or
attributable to the negligence, bad faith or willful misconduct of the
Administrator.
| SECTION 5.1 Term. The Administrator may terminate the Administrative |
Services Agreement upon at least 30 days' written notice to the Trust and
Allstate Life and the Trust may terminate the Administrative Services Agreement
upon at least 30 days' notice to the Administrator (copies of any notice of
termination shall also be sent to the Indenture Trustee). Such termination will
not become effective until (a) the Trust appoints a successor Administrator; (b)
the successor Administrator accepts such appointment; (c) the Administrator has
obtained the prior written confirmation of each Rating Agency that such action
will not result in a reduction or withdrawal of its then current ratings, if
any, of the Program and/or the Notes, as applicable; and (d) the Trust has paid
all accrued and unpaid | amounts | owed to the | Administrator | under the |
Administrative Services Agreement.
OBLIGATION TO SUPPLY INFORMATION; RELIANCE ON INFORMATION; COVENANTS
| SECTION 6.1 Obligation to Supply Information. The Delaware Trustee shall |
forward to the Administrator such information (which is in the possession of the
Trust) in connection with the Program Documents and the Administrative Services
Agreement as the Administrator may from time to time reasonably request in
connection with the performance of its obligations under the Administrative
Services Agreement. The Administrator will: (a) hold and safely maintain all
records, files, Program Documents and other material of the Trust; and (b)
permit the Trust, the Delaware Trustee, and each of their respective officers,
directors, agents and consultants on reasonable notice at any time and from time
to time during normal business hours to inspect, audit, check and make abstracts
from the accounts, records, correspondence, documents and other materials of the
Trust, or relating to the provision of services and facilities under the
Administrative Services Agreement.
| SECTION 6.2 Reliance on Information. The Trust recognizes that the accuracy |
and completeness of the records maintained and the information supplied by the
Administrator under the Administrative Services Agreement is dependent upon the
accuracy and completeness of the information obtained by the Administrator from
the parties to the Program Documents and other sources and the Administrator
shall not be responsible for any inaccurate or incomplete information so
obtained or for any inaccurate or incomplete records maintained by the
Administrator under the Administrative Services Agreement that may result
therefrom. The Administrator shall have no duty to investigate the accuracy or
completeness of any information provided to it and shall be entitled to fully
rely on all such information provided to it.
| SECTION 6.3 Covenants. The Trust repeats and reaffirms to the Administrator |
the covenants of the Trust set forth in Article 4 of the Indenture.
| LIABILITY OF ADMINISTRATOR; STANDARD OF CARE |
| SECTION 7.1 Liability of Administrator. The Administrator assumes no |
liability for anything other than the services rendered by it pursuant to
Articles 2, 3, 6 and 9, and neither the Administrator nor any of its directors,
officers, employees or Affiliates shall be responsible for any action of the
Trust, the Delaware Trustee or the officers or employees thereof taken outside
the scope of Articles 2, 3, 6 and 9 and without | direction from the |
Administrator. Without limiting the generality of the foregoing, it is agreed
that the Administrator assumes no liability with respect to any of the Trust's
obligations under the Program Documents.
| SECTION 7.2 No Implied Obligations. The Administrator shall not perform, |
endeavor to perform or agree to perform any act on behalf of the Trust not
specifically required or permitted under the Program Documents.
| SECTION 7.3 Standard of Care. The Administrator shall perform its duties |
under the Administrative Services Agreement diligently, in conformity with the
Trust's obligations under the Program Documents and applicable laws and
regulations and in accordance with the same standard of care exercised by a
prudent person in connection with the performance of the same or similar duties
and, in no event with less care than the Administrator exercises or would
exercise in connection with the same or similar obligations if those obligations
were the direct obligations of the Administrator.
| SECTION 8.1 Limited Recourse to Trust. Notwithstanding anything to the |
contrary contained in the Administrative Services Agreement, all obligations of
the Trust under the Administrative Services Agreement shall be payable: (i) to
the extent any such obligation constitutes a Support Obligation, by Allstate
Life pursuant to and in accordance with the terms of the Support Agreement; and
(ii) to the extent any such obligation does not constitute a Support Obligation,
by Global Funding, only to the extent of funds available therefor under and in
accordance with the terms of the Indenture and, to the extent such funds are not
available or are insufficient for the payment thereof, such unavailability or
insufficiency of funds shall not constitute a claim against the Trust to the
extent of such unavailability or insufficiency. This Section 8.1 shall survive
the termination of the Administrative Services Agreement.
| SECTION 8.2 No Recourse Against Certain Persons. The obligations of the |
Trust under the Administrative Services Agreement are solely the obligations of
the Trust and no recourse shall be had with respect to the Administrative
Services | Agreement or any of the | obligations of the Trust under the |
Administrative Services Agreement or for the payment of any fee or other amount
payable under the Administrative Services Agreement or for any claim based on,
arising out of or relating to any provision of the Administrative Services
Agreement against any trustee, employee, settlor, Affiliate, agent or servant of
the Trust. This Section 8.2 shall survive the termination of the Administrative
Services Agreement.
| SECTION 9.1 Income Tax Treatment. The Administrator agrees that for all |
United States Federal, state and local income and franchise tax purposes: (i)
the Notes will be treated as indebtedness of Allstate Life; and (ii) Global
Funding and the Trust will be ignored and will not be treated as an association
or a publicly traded partnership taxable as a corporation. The Administrator
will not take any action inconsistent with the treatment described in the
immediately preceding sentence unless otherwise required by applicable law.
| SECTION 10.1 Amendments. No waiver, alteration, modification, amendment or |
supplement of the terms of the Administrative Services Agreement shall be
effective unless: (a) accomplished by written instrument signed by the parties
to the Administrative Services Agreement; and (b) for so long as any Notes
remain outstanding, each of Moody's and S&P has confirmed in writing that such
action will not result in reduction or withdrawal of its then current ratings,
if any, of the Program and/or the Trust's Notes, as applicable. The Trust shall
provide each of Moody's and S&P with a copy of each such waiver, alteration,
modification, amendment or supplement. Notwithstanding anything in this Section
10.1 to the contrary, no waiver, alteration, modification, amendment or
supplement to the terms of the Administrative Services Agreement shall be
effective without the prior written consent of Allstate Life.
| SECTION 10.2 No Joint Venture. Nothing contained in the Administrative |
Services Agreement shall constitute the Trust and the Administrator as members
of any partnership, joint venture, association, syndicate or unincorporated
business.
| SECTION 10.3 Assignment. Except as set forth in this Section 10.3, and |
subject to the rights of the Administrator to subcontract its services under the
Administrative Services Agreement pursuant to Article 2, the Administrative
Services Agreement may not be assigned by either party without: (i) the prior
written consent of the other party and Allstate Life; and (ii) the prior written
confirmation of each of Moody's and S&P that such action will not result in a
reduction or withdrawal of its then current ratings, if any, of the Program
and/or the Notes, as applicable. Subject to the foregoing, the Administrative
Services Agreement shall be binding upon and inure to the benefit of the parties
to the Administrative Services Agreement and their respective successors and
assigns. Any party's transfer or assignment of the Administrative Services
Agreement in violation of this Section 10.3 shall be void as to the other party.
| SECTION 10.4 Governing Law, Consent to Jurisdiction; Waiver of Jury Trial. |
| (a) Pursuant to Section 5-1401 of the General Obligations Law of the State |
| of New York, the Administrative Services Agreement shall be governed |
| by and construed in accordance with the laws of the State of New York. |
| Each party to the Administrative Services Agreement submits to the |
| nonexclusive jurisdiction of the United States District Court for the |
| Southern District of New York and of any New York State Court sitting |
| in New York City for purposes of all legal proceeding arising out of |
| or relating to the | Administrative | Services | Agreement or the |
| transactions contemplated by the Administrative Services Agreement. |
| Each party to the Administrative Services Agreement irrevocably |
| waives, to the fullest extent permitted by law, any objection which it |
| may have to the laying of the venue of any such proceeding brought in |
| such a court and any claim that any such proceeding brought in such a |
| court has been brought in an inconvenient forum. Each party to the |
| Administrative Services Agreement consents to process being served in |
| any suit, action or proceeding with respect to the Administrative |
| Services Agreement, | or any document delivered pursuant to the |
| Administrative Services Agreement by the mailing of a copy thereof by |
| registered or certified mail, | postage prepaid, | return receipt |
| requested, to its respective address specified at the time for notices |
| under the Administrative Services Agreement or to any other address of |
| which it shall have given written notice to the other party. The |
| foregoing | shall not limit the | ability | of any party to the |
| Administrative Services Agreement to bring suit in the courts of any |
| (b) Each of the parties irrevocably waives any and all right to a trial by |
| jury with respect to any legal proceeding arising out of or relating |
| to the Administrative Services Agreement or any transaction. Each of |
| the parties to the Administrative Services Agreement acknowledges that |
| such waiver is made with full understanding and knowledge of the |
| nature of the rights and benefits waived. |
| SECTION 10.5 Counterparts. The Administrative Services Agreement and any |
amendments, supplements, modifications, restatements or replacements of the
Administrative Services Agreement, or waivers or consents to the Administrative
Services Agreement, may be executed in any number of counterparts, and by
different parties to the | Administrative | Services Agreement in separate |
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, when taken together, shall
constitute one and the same instrument. The Administrative Services Agreement
shall become effective upon the execution of a counterpart by each of the
parties.
| SECTION 10.6 Limitation of Delaware Trustee Liability. Notwithstanding any |
provision of the Administrative Services Agreement to the contrary, it is
expressly understood and agreed by the parties that: (a) the Administrative
Services Agreement is executed and delivered by the Delaware Trustee, not
individually or personally, but solely as trustee, as applicable, in the
exercise of the powers and authority conferred and vested in it, pursuant to the
Trust Agreement; (b) each of the representations, undertakings and agreements in
the Administrative Services Agreement made on the part
of the Trust is made and intended not as personal representations, undertakings
and agreements by the Delaware Trustee but is made and intended for the purpose
of binding only the Trust; (c) nothing contained in the Administrative Services
Agreement shall be construed as creating any liability on the Delaware Trustee,
individually or personally, to perform any covenant either expressed or implied
contained in the Administrative Services Agreement, all such liability, if any,
being expressly waived by the parties to the Administrative Services Agreement
and by any person | claiming by, | through or under the parties to the |
Administrative Services Agreement; and (d) under no circumstances shall the
Delaware Trustee be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under the
Administrative Services Agreement or any other related documents.
| SECTION 10.7 No Petition. To the extent permitted by applicable law, the |
Administrator covenants and agrees that it will not institute against, or join
with any other Person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any applicable bankruptcy or similar law. This Section 10.7
shall survive termination of the Administrative Services Agreement.
| SECTION 10.8 Severability. If any provision in the Administrative Services |
Agreement shall be invalid, illegal or unenforceable, such provisions shall be
deemed severable from the remaining provisions of the Administrative Services
Agreement and shall in no way affect the validity or enforceability of such
other provisions of the Administrative Services Agreement.
| SECTION 10.9 Entire Agreement. The Administrative Services Agreement |
constitutes the entire agreement between the parties with respect to matters
covered by the Administrative Services Agreement and supersedes all prior
agreements and understandings with respect to such matters between the parties
whether written or oral.
| SECTION 10.10 Administrator to Provide Access to Books and Records. The |
Administrator shall provide the Indenture Trustee with access to the books and
records of the Trust, without charge, but only: (a) upon the reasonable request
of the Indenture Trustee (for which purpose one Business Day shall be deemed
reasonable); | (b) during | normal | business | hours; | (c) | subject to the |
Administrator's normal security and confidentiality procedures; and (d) at
offices designated by the Administrator.
| SECTION 10.11 No Waiver. No failure on the part of the parties to the |
Administrative Services Agreement to exercise, and no delay in exercising, and
no course of dealing with respect to, any right, power or privilege under the
Administrative Services Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise thereof or the exercise of any other right, power
or privilege operate as such a waiver.
| SECTION 10.12 Remedies Cumulative. No right, power or remedy of the parties |
under the Administrative Services Agreement shall be exclusive of any other
right, power or remedy, but shall be cumulative and in addition to any other
right, power or remedy thereunder or existing by law or in equity.
| SECTION 10.13 Notices. All notices, demands, instructions and other |
communications required or permitted to be given to or made upon either party to
the Administrative Services Agreement shall be in writing (including by
facsimile transmission) and shall be personally delivered or sent by guaranteed
overnight delivery or by facsimile transmission (to be followed by personal or
guaranteed overnight delivery) and shall be deemed to be given for purposes of
the Administrative Services Agreement on the day that such writing is received
by the intended recipient thereof in accordance with the provisions of this
Section 10.13. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this Section 10.13, notices,
demands, instructions and other communications in writing shall be given to or
made upon the respective parties thereto at their respective addresses (or their
respective telecopy numbers) indicated below:
| c/o Wilmington Trust Company |
| Attention: Corporate Trust Administration |
| Facsimile: (302) 636-4140 |
| 6525 Morrison Blvd., Suite 318 |
| Charlotte, North Carolina 28211 |
| Attention: Douglas K. Johnson |
| Facsimile: (704) 365-1632 |
or at such other address as shall be designated by any party in a written notice
to the other party.
EXHIBIT C
STANDARD SUPPORT AND EXPENSES AGREEMENT TERMS
| DEFINITIONS; OTHER DEFINITIONAL PROVISIONS |
SECTION 1.1 | Definitions......................................................................1 |
SECTION 1.2 | Other Definitional Provisions....................................................4 |
| REPRESENTATIONS AND WARRANTIES |
SECTION 2.1 | Representations and Warranties...................................................4 |
SECTION 3.1 | Payment of Support Obligations...................................................5 |
SECTION 3.2 | Amended or Additional Arrangements...............................................6 |
SECTION 3.3 | Waiver of Notice.................................................................6 |
SECTION 3.4 | No Impairment....................................................................6 |
SECTION 3.5 | Enforcement......................................................................6 |
SECTION 3.6 | Subrogation......................................................................7 |
SECTION 3.7 | Actions; Notification............................................................7 |
SECTION 3.8 | Settlement Without Consent.......................................................8 |
SECTION 3.9 | Third Party Beneficiaries........................................................8 |
SECTION 4.1 | Binding Effect...................................................................8 |
SECTION 4.2 | Amendments; Assignments..........................................................8 |
SECTION 4.3 | Term of Support Agreement........................................................8 |
SECTION 4.4 | Notices..........................................................................8 |
SECTION 4.5 | Governing Law....................................................................9 |
SECTION 4.6 | Consent to Jurisdiction..........................................................9 |
SECTION 4.7 | Waiver of Jury Trial............................................................10 |
SECTION 4.8 | Counterparts....................................................................10 |
SECTION 4.9 | Severability....................................................................10 |
SECTION 4.10 | Entire Agreement................................................................10 |
SECTION 4.11 | No Waiver.......................................................................10 |
SECTION 4.12 | Remedies Cumulative.............................................................10 |
SECTION 4.13 | Limitation of Delaware Trustee Liability........................................10 |
EXHIBIT A | Notice of Obligation...........................................................A-1 |
| This document constitutes the Standard Support and Expenses Agreement |
Terms, which will be incorporated by reference in, and form a part of, the
Support Agreement (as defined below) by and between Allstate Life Insurance
Company, an Illinois stock life insurance company (including any successor,
"Allstate Life") and the Trust (as defined below).
| These Standard Support and Expenses Terms shall be of no force and effect |
unless and until incorporated by reference in and then only to the extent not
modified by, the Support Agreement.
| The following terms and provisions | shall govern the | reimbursement |
arrangement and terms of indemnity with respect to the Trust, subject to
contrary terms and provisions expressly adopted in the Support Agreement, which
contrary terms shall be controlling.
| DEFINITIONS; OTHER DEFINITIONAL PROVISIONS |
| SECTION 1.1 Definitions. The following terms, as used in the Support |
Agreement, have the following meanings:
| "Additional Amounts" has the meaning set forth in the Indenture. |
| "Administrative Services Agreement" means that certain Administrative |
Services Agreement included in Part B of the Series Instrument, by and between
the Trust and the Administrator, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
| "Administrator" means the party named as such in the Administrative |
Services Agreement, and its successors.
| "Agents" has the meaning set forth in the Distribution Agreement. |
| "Allstate Life" has the meaning ascribed in the introductory paragraph. |
| "Business Day" means a day (other than a Saturday, Sunday or legal holiday) |
on which commercial banks in the City of New York, the Borough of Manhattan and
Cook County, State of Illinois, are open for business.
| "Coordination Agreement" means that certain Coordination Agreement included |
in Part F of the Series Instrument, among the Trust and the other parties
specified therein, as the same may be amended, supplemented, modified, restated
or replaced from time to time.
| "Delaware Trustee" means the party named as such in the Trust Agreement, |
not in its individual capacity but solely as trustee of the Trust, and its
successors.
| "Distribution Agreement" means that certain Distribution Agreement dated |
June 28, 2007, by and among Global Funding and the Agents named therein, as the
same may be amended, supplemented, modified, restated or replaced from time to
time.
| "Excluded Amounts" means (i) any obligation of Global Funding or the Trust |
to make any payment in accordance with the terms of the Funding Note or the
Notes, (ii) any obligation or expense of Global Funding or the Trust to the
extent that such obligation or expense has actually been paid utilizing funds
from payments under the Funding Agreement(s) or the Funding Note, as applicable,
(iii) any cost, loss, damage, claim, action, suit, expense, disbursement, tax,
penalty and liability of any kind or nature whatsoever resulting from or
relating to any insurance regulatory or other governmental authority asserting
that: (a) the Funding Note or the Notes are, or are deemed to be, (1)
participations in the Funding Agreement(s) or (2) contracts of insurance, or (b)
the offer, purchase, sale or transfer of the Funding Notes or the Notes, or the
pledge and collateral assignment of, or the grant of a security interest in, the
Funding Agreement(s), (1) constitute the conduct of the business of insurance or
reinsurance in any jurisdiction or (2) require Global Funding, the Trust or any
Holder to be licensed as an insurer, insurance agent or broker in any
jurisdiction, (iv) any cost, loss, damage, claim, action, suit, expense,
disbursement, tax, penalty and liability of any kind imposed on a Service
Provider resulting from the bad faith, misconduct or negligence of such Service
Provider, (v) any income taxes or overhead expenses of any Service Provider,
(vi) any withholding taxes imposed with respect to payments made under any
Funding Agreement(s), the Funding Note or the Notes, or (viii) any obligation to
pay Additional Amounts.
| With respect to any Support Obligation owed to the Delaware Trustee and the |
Administrator, clause (iii) of the definition of "Excluded Amounts" shall not
apply.
| "Funding Agreement" means each funding agreement issued by Allstate Life to |
Global Funding, which is immediately pledged and collaterally assigned by Global
Funding to the Funding Note Indenture Trustee, and immediately thereafter
assigned absolutely to, and deposited into, the Trust by Global Funding, as the
same may be amended, supplemented, modified, restated or replaced from time to
time.
| "Funding Note" has the meaning set forth in the Funding Note Indenture. |
| "Funding Note Indenture" means that certain Funding Note Indenture included |
in Part H of the Series Instrument, among Global Funding and the other parties
specified therein, as the same may be amended, supplemented, modified, restated
or replaced from time to time.
| "Funding Note Indenture Trustee" means the party specified as such in the |
Funding Note Indenture, solely as the Funding Note Indenture Trustee, and its
successors.
| "Global Funding" means Allstate Life Global Funding, a statutory trust |
formed under the laws of the State of Delaware.
| "Holder" means any holder of the Notes. |
| "Indenture" means that certain Indenture included in Part G of the Series |
Instrument, among the Trust and the other parties specified therein, as the same
may be amended, supplemented, modified, restated or replaced from time to time.
| "Indenture Trustee" means the party specified as such in the Indenture, |
solely as the Indenture Trustee, and its successors.
| "Name Licensing Agreement" means that certain Name Licensing Agreement |
included in Part D of the Series Instrument, as the same may be amended,
supplemented, modified, restated or replaced from time to time.
| "Notes" has the meaning ascribed in the Indenture. |
| "Notice of Obligation" means the instrument evidencing a Support Obligation |
of the Trust in, or substantially in, the form attached as Exhibit A.
| "Proceeding" has the meaning ascribed in Section 3.7(a). |
| "Program" means the program for the issuance, from time to time, of secured |
medium term notes of the Allstate Life Global Funding Trusts.
| "Series Instrument" means the Series Instrument of the Trust, pursuant to |
which the Administrative Services Agreement, the Coordination Agreement, the
Funding Note Indenture, the Indenture, the Name Licensing Agreement, the Support
Agreement, the Terms Agreement and the Trust Agreement are entered into, and
certain other documents are executed, in connection with the issuance of the
Notes by the Trust.
| "Service Provider" means each of the Delaware Trustee, the Funding Note |
Indenture Trustee, the Indenture Trustee, the Administrator and any other agent
or provider of services to the Trust (other than the Agents), in each case
acting in such capacity with respect to the Notes.
| "Support Agreement" means the Support and Expenses Agreement with respect |
to the Trust included in Part C of the Series Instrument, as the same may be
amended, supplemented, modified, restated or replaced from time to time, which
Support Agreement incorporates by reference these Standard Support and Expenses
Agreement Terms.
| "Support Obligations" means any and all (i) reasonable costs and expenses |
reasonably incurred (including the reasonable fees and expenses of counsel),
relating to
the offering, sale and issuance of the Notes by the Trust and (ii) costs,
expenses and taxes of the Trust; in each case except the Excluded Amounts.
| "Terms Agreement" means that certain Terms Agreement related to the |
offering of the Notes included in Part E of the Series Instrument, by and among
Global Funding, the Trust and each Agent named therein, which will incorporate
by reference the terms of the Distribution Agreement.
| "Trust" means the Allstate Life Global Funding Trust specified in the |
Series Instrument, together with its permitted successors and assigns.
| "Trust Agreement" means that certain Trust Agreement included in Part A of |
the Series Instrument, pursuant to which the Trust is created.
| SECTION 1.2 Other Definitional Provisions. For all purposes of the Support |
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
| (a) the terms defined in this Article shall have the meanings ascribed to |
| them in this Article and shall include the plural as well as the |
| (b) the words "include", "includes" and "including" shall be construed to |
| be followed by the words "without limitation"; |
| (c) Article and Section headings are for the convenience of the reader and |
| shall not be considered in interpreting the Support Agreement or the |
| intent of the parties to the Support Agreement; and |
| (d) capitalized terms not otherwise defined in the Support Agreement will |
| have the respective meanings set forth in the Indenture. |
| REPRESENTATIONS AND WARRANTIES |
| SECTION 2.1 Representations and Warranties. Each party to the Support |
Agreement represents and warrants to the other that as of the date of the
Support Agreement:
| (a) it has the power to enter into the Support Agreement and to consummate |
| the transactions contemplated by the Support Agreement; |
| (b) it has duly authorized, executed and delivered the Support Agreement; |
| (c) assuming the due authorization, execution and delivery of the Support |
| Agreement by the other party, the Support Agreement constitutes a |
| legal, valid and binding obligation of the representing party; |
| (d) the Support Agreement is enforceable against the representing party in |
| accordance | with its terms, | subject to applicable | bankruptcy, |
| insolvency and similar laws affecting creditors' rights, and subject |
| as to enforceability to general principles of equity, regardless of |
| whether enforcement is sought in a proceeding in equity or at law; |
| (e) its execution and delivery of the Support Agreement, consummation by |
| it of the transactions contemplated by the Support Agreement and the |
| performance of its obligations under the Support Agreement do not and |
| will not constitute or result in a default, breach or violation of the |
| terms or provisions of its organizational documents or any material |
| indenture, contract, agreement, | instrument, | mortgage, judgment, |
| injunction or order applicable to which it is a party or by which any |
| of its properties may be bound; and |
| (f) no filing with or authorization, order, consent, permit or approval of |
| any federal or state governmental authority or agency or political |
| subdivision thereof is required for the execution, delivery and |
| performance of the Support Agreement that has not been already |
| SECTION 3.1 Payment of Support Obligations. |
| (a) Allstate Life irrevocably and unconditionally agrees to (i) indemnify |
| the Trust against, and pay, all Support Obligations and (ii) without |
| duplication, indemnify each Service Provider against, and pay, all |
| Support Obligations due and payable by the Trust to such Service |
| Provider, in each case within two Business Days of receipt of the |
| applicable Notice of Obligation, subject only to the terms and |
| conditions of the Support Agreement. |
| (b) Allstate Life agrees to pay any amount due under the Support Agreement |
| in the currency in which the related Support Obligation originated. |
| (c) Allstate Life and the Trust agree that all payments due under this |
| Section 3.1 in respect of any Support Obligation shall be effected, |
| and any responsibility of Allstate Life to pay such Support Obligation |
| pursuant to the indemnity provided to the Trust in the Support |
| Agreement shall be discharged, by the payment by Allstate Life, at the |
| order of the Trust, to the account of the person to whom such Support |
| Obligation is owed, as specified in the applicable | Notice of |
| SECTION 3.2 Amended or Additional Arrangements. The Trust will not, without |
the prior written approval of Allstate Life (a) enter into or amend, modify,
restate, and/or supplement any compensation or indemnification arrangements with
respect to the Program or (b) waive any of its rights under any compensation or
indemnification provisions under the Program.
| SECTION 3.3 Waiver of Notice. Allstate Life waives notice of any fact or |
circumstance that could give rise to the payment of any Support Obligation under
Section 3.1 and, except as otherwise provided in the Support Agreement, Allstate
Life also waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
| SECTION 3.4 No Impairment. The obligations, covenants, agreements and |
duties of Allstate Life under the Support Agreement will in no way be affected
or impaired by reason of the happening from time to time of any of:
| (a) the extension of time for the payment of all or any portion of any |
| Support Obligation or for the performance of any other obligation |
| arising under, out of, or in connection with, any Support Obligation; |
| (b) any failure, omission, delay or lack of diligence on the part of the |
| Trust to enforce, assert or exercise any right, privilege, power or |
| remedy conferred on the Trust with respect to any Support Obligation |
| or any action on the part of the Trust granting indulgence or |
| (c) 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 |
| Trust or any of the assets of the Trust; |
| (d) the existence of any claim, set-off or other rights that Allstate Life |
| may have at any time against the Trust; provided, that nothing in the |
| Support Agreement shall prevent the assertion of any such claim by |
| separate suit or compulsory counterclaim; or |
| (e) any other act or omission to act or delay of any kind by the Trust or |
| any other Person or any other circumstance whatsoever which might, but |
| for the provisions of this Section 3.4(e), constitute a legal or |
| equitable discharge of or defense to Allstate Life's obligations under |
| SECTION 3.5 Enforcement. Notwithstanding any rights granted to Allstate |
Life under Section 3.7, Allstate Life waives any right or remedy to require that
any action be brought against any Person prior to the assertion of a claim under
the Support Agreement.
| SECTION 3.6 Subrogation. Upon, and subject to, the payment by Allstate Life |
of any Support Obligation:
| (a) Allstate Life shall be subrogated to all of the rights, interests and |
| remedies, if any, of the Trust in respect of such Support Obligation; |
| (b) the Trust will (i) from time to time execute all such instruments and |
| other agreements and take all such other actions as may be necessary |
| or desirable, or that Allstate Life may request, to protect any |
| interest of Allstate Life with respect to any Support Obligation or to |
| enable Allstate Life to exercise or enforce any right, interest or |
| remedy it may have with respect to any such Support Obligation and |
| (ii) release to Allstate Life any amount received relating to any |
| Support Obligation, | or any portion of any Support Obligation, |
| immediately after any such amount relating to such Support Obligation, |
| or any portion of any such Support Obligation, is received by the |
| SECTION 3.7 Actions; Notification. |
| (a) The Trust shall give prompt written notice to Allstate Life of any |
| litigation, or any investigation or proceeding by any governmental |
| agency or body or other Person, whether commenced or threatened, |
| against the Trust that may give rise to any Support Obligation (each, |
| a "Proceeding"), but the Trust's failure to so notify Allstate Life |
| shall not relieve Allstate Life from any liability which it may have |
| otherwise under the Support Agreement unless the failure to so notify |
| had an adverse impact on Allstate Life. |
| (b) Allstate Life may, in its sole discretion, elect to assume the defense |
| of the Trust in any Proceeding that could give rise to any Support |
| Obligation, and if it so elects, Allstate Life shall select counsel |
| reasonably acceptable to the Trust to represent the Trust in such |
| Proceeding and pay the fees and expenses of such counsel. In any |
| Proceeding, the Trust shall have the right to retain its own counsel, |
| but the fees and disbursements of such counsel shall not constitute a |
| Support Obligation unless (i) Allstate Life and the Trust shall have |
| mutually agreed to the retention of such counsel or (ii) the named |
| parties to any such Proceeding (including any impleaded parties) |
| include both Allstate Life and the Trust, and representation of both |
| parties by the same counsel would be inappropriate due to actual or |
| potential differing interests between them. In no event shall Allstate |
| Life be liable for fees and expenses of more than one counsel (in |
| addition to any local counsel) for the Trust in connection with any |
| one action or separate but similar or related actions in the same |
| jurisdiction | arising out of the same general | allegations | or |
| SECTION 3.8 Settlement Without Consent. The Trust may not settle any |
Proceeding without the consent of Allstate Life.
| SECTION 3.9 Third Party Beneficiaries. Allstate Life understands and agrees |
that each Service Provider | (including such parties in their respective |
individual capacity) shall be a third party beneficiary of the indemnity
provided under the Support Agreement, subject to the limitations on such
indemnity provided in the Support Agreement. No other Person shall have any
legal or equitable right, remedy or claim under or in respect of the Support
Agreement or any covenants, conditions or provisions contained in the Support
Agreement.
| SECTION 4.1 Binding Effect. All obligations, covenants, agreements and |
duties contained in the Support Agreement shall bind the permitted successors
and assigns, and receivers, trustees and representatives of each of Allstate
Life and the Trust.
| SECTION 4.2 Amendments; Assignments. |
| (a) The Support Agreement will not be amended, supplemented, modified, |
| restated or replaced in any manner, except with the unanimous written |
| consent of the Trust, Allstate Life, the Administrator, the Delaware |
| Trustee and the Indenture Trustee. |
| (b) Neither the Support Agreement nor any title, right or interest in the |
| Support Agreement may be sold, transferred, assigned, hypothecated or |
| alienated in any manner whatsoever, except with the express written |
| consent of the Trust and Allstate Life. |
| SECTION 4.3 Term of Support Agreement. The Support Agreement shall |
terminate and be of no further force and effect upon the later of (a) the date
on which full payment has been made of all amounts payable to each Holder in
accordance with the terms of the Notes, whether upon maturity, redemption or
otherwise, and (b) the date on which the Trust Agreement and the Trust created
by the Trust Agreement terminate. Unless and until the Support Agreement is
terminated as specified in this Section 4.3, the Support Agreement will be
continuing, irrevocable, unconditional and absolute.
| SECTION 4.4 Notices. | All demands, | notices, | instructions or other |
communications required or permitted to be given under the Support Agreement
shall be given in writing by delivering the same against receipt by facsimile
transmission (confirmed by registered or certified mail, postage prepaid, return
receipt requested), or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of a confirmation, if sent by facsimile):
| 6525 Morrison Boulevard, Suite 318 |
| Charlotte, North Carolina 28211 |
| Attention: Douglas K. Johnson |
| Facsimile: (704) 365-1632 |
| Allstate Life Insurance Company |
| Northbrook, Illinois 60062 |
| Attention: Assistant Vice President, Institutional Markets |
| Facsimile: (847) 326-6289 |
| or such other address previously furnished in writing to the |
| SECTION 4.5 Governing Law. Pursuant to Section 5-1401 of the General |
Obligations Law of the State of New York, the Support Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
| SECTION 4.6 Consent to Jurisdiction. Each party to the Support Agreement |
submits for itself and in connection with its properties, generally and
unconditionally, to the nonexclusive jurisdiction of the United States Federal
court located in the City of New York, the Borough of Manhattan for purposes of
any legal proceeding arising out of or relating to the Support Agreement or the
transactions contemplated by the Support Agreement. Each party to the Support
Agreement irrevocably waives, to the fullest extent permitted by law, any
objection which it may have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. Each party to the Support
Agreement consents to process being served in any suit, action or proceeding
with respect to the Support Agreement, or any document delivered pursuant to the
Support Agreement by the mailing of a copy thereof by registered or certified
mail, postage prepaid, return receipt requested, to its respective address
specified at the time for notices under the Support Agreement or to any other
address of which it shall have given written notice to the other party. The
foregoing shall not limit the ability of any party to the Support Agreement to
bring suit in the courts of any other jurisdiction.
| SECTION 4.7 Waiver of Jury Trial. Each of the parties to the Support |
Agreement irrevocably and expressly waives any and all right to a trial by jury
with respect to any legal proceeding arising out of or relating to the Support
Agreement or any claims or transactions in connection with the Support
Agreement. Each of the parties to the Support Agreement acknowledges that such
waiver is made with full understanding and knowledge of the nature of the rights
and benefits waived.
| SECTION 4.8 Counterparts. The Support Agreement and any amendments, |
supplements, | modifications, | restatements or replacements of the Support |
Agreement, or waivers or consents to the Support Agreement, may be executed in
any number of counterparts, and by parties to the Support Agreement in separate
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, when taken together shall
constitute one and the same instrument. The Support Agreement shall become
effective upon the execution of a counterpart by each of the parties to the
Support Agreement.
| SECTION 4.9 Severability. In the event any provision or obligation of the |
Support | Agreement shall be invalid, | illegal or | unenforceable | in any |
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby to the
fullest extent permitted under applicable law.
| SECTION 4.10 Entire Agreement. The Support Agreement constitutes the entire |
agreement between the parties relating to its subject matter, and supersedes all
previous agreements between the parties, whether written or oral.
| SECTION 4.11 No Waiver. No failure on the part of the parties to the |
Support Agreement to exercise, and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under the Support
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise thereof or the exercise of any other right, power or privilege operate
as such a waiver.
| SECTION 4.12 Remedies Cumulative. No right, power or remedy of the parties |
under the Support Agreement shall be exclusive of any other right, power or
remedy, but shall be cumulative and in addition to any other right, power or
remedy thereunder or existing by law or in equity.
| SECTION 4.13 Limitation of Delaware Trustee Liability. Notwithstanding any |
provision of the Support Agreement to the contrary, it is expressly understood
and agreed by the parties that (a) the Support Agreement is executed and
delivered by Wilmington Trust Company, not individually or personally, but
solely as Delaware Trustee, in the exercise of the powers and authority
conferred and vested in it pursuant to the Trust Agreement, (b) each of the
representations, undertakings and agreements in the Support Agreement made on
the part of the Trust is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company, but is made and
intended for the purpose of binding only the Trust, (c) nothing contained in the
Support Agreement shall be construed as creating any liability on Wilmington
Trust Company, individually or personally, to perform any covenant either
expressed or implied in the Support Agreement, all such liability, if any, being
expressly waived by the parties to the Support Agreement and by any person
claiming by, through or under the parties to the Support Agreement and (d) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under the Support Agreement or any other related
documents.
BY [HAND OR OVERNIGHT] DELIVERY AND/OR FACSIMILE
Allstate Life Insurance Company
Office of the General Counsel
3100 Sanders Road
Northbrook, Illinois 60062
Telephone: -
Facsimile: -
Ladies and Gentlemen:
| Reference is hereby made to the Support and Expenses Agreement dated as of |
- (the "Support Agreement") entered into between Allstate Life Insurance
Company, an Illinois stock life insurance company ("Allstate Life") and Allstate
Life Global Funding Trust -, a statutory trust organized under the laws of
the State of Delaware (the "Trust"). Capitalized terms used in this notice (this
"Notice of Obligation") and not otherwise defined have the respective meanings
ascribed in the Support Agreement.
| The Trust hereby represents to Allstate Life that: |
| (a) on -, the Trust incurred a Support Obligation in an amount |
| (b) the Support Obligation resulted from -; and |
| (c) all documents and instruments evidencing the Support Obligation |
| are attached to this Notice of Obligation. |
| The Trust hereby requests Allstate Life to pay the Support Obligation in |
accordance with the Support Agreement to the following account:
| IN WITNESS WHEREOF, the Trust has executed and delivered this Notice of |
Obligation as of the date first written above.
| ALLSTATE LIFE GLOBAL FUNDING TRUST - |
| By: | WILMINGTON TRUST COMPANY, not in its |
| individual capacity, but solely as Delaware |
| --------------------------------------------- |
EXHIBIT D
STANDARD NAME LICENSING AGREEMENT TERMS
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS3
ARTICLE 2
GRANT OF LICENSE; INDEPENDENT CONTRACTORS
SECTION 2.1 GRANT OF LICENSE4
SECTION 2.2 INDEPENDENT CONTRACTORS4
ARTICLE 3
AGREEMENTS AND ACKNOWLEDGEMENTS OF LICENSEE
SECTION 3.1 AGREEMENTS AND ACKNOWLEDGEMENTS OF LICENSEE4
ARTICLE 4
INFRINGEMENT PROCEEDINGS
SECTION 4.1 NOTIFICATION OF UNAUTHORIZED USE6
SECTION 4.2 PAYMENTS FOR DAMAGES6
ARTICLE 5
TERM AND TERMINATION
SECTION 5.1 TERM6
SECTION 5.2 AUTOMATIC TERMINATION6
SECTION 5.3 IMMEDIATE TERMINATION7
SECTION 5.4 TERMINATION ON NOTICE7
ARTICLE 6
EFFECT OF TERMINATION
SECTION 6.1 CHANGE OF LICENSEE MARKS7
SECTION 6.2 LICENSEE COOPERATION7
SECTION 6.3 RIGHTS IN LICENSED MARKS7
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 ENFORCEMENT7
SECTION 7.2 SEVERABILITY7
SECTION 7.3 ENTIRE AGREEMENT8
SECTION 7.4 AMENDMENT OF NAME LICENSING AGREEMENT8
SECTION 7.5 GOVERNING LAW8
SECTION 7.6 CONSENT TO JURISDICTION8
SECTION 7.7 WAIVER OF JURY TRIAL8
SECTION 7.8 NO WAIVER8
SECTION 7.9 REMEDIES CUMULATIVE9
SECTION 7.10 NOTICES9
SECTION 7.11 COUNTERPARTS9
| APPENDIX A | LICENSED MARKS | A-1 |
This document constitutes the Standard Name Licensing Agreement Terms which will be incorporated by reference in the Name Licensing Agreement (as defined below) between Allstate Insurance Company (the “Licensor”) and the Trust (as defined below) (the “Licensee”).
These Standard Name Licensing Agreement Terms shall be of no force and effect unless and until incorporated by reference in, and then only to the extent not modified by, the Name Licensing Agreement.
The following terms and provisions shall govern the use of the Licensor’s Licensed Marks (as defined below) by the Licensee, subject to contrary terms and provisions expressly adopted in the Name Licensing Agreement, which contrary terms shall be controlling.
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. THE FOLLOWING TERMS, AS USED HEREIN, HAVE THE FOLLOWING MEANINGS:
“Administrative Services Agreement” means that certain Administrative Services Agreement included in Part B of the Series Instrument, by and between the Trust and the Administrator, as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Administrator” means AMACAR Pacific Corp., a Delaware corporation, in its capacity as the sole administrator of the Trust, or another entity specified in the Indenture as the Administrator, and, in each case, its permitted successors and assigns.
“Agents” has the meaning ascribed in the Distribution Agreement.
“Coordination Agreement” means that certain Coordination Agreement included in Part F of the Series Instrument, among the Trust and the other parties specified therein, as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Delaware Trustee” means Wilmington Trust Company, a Delaware banking corporation, or another entity specified in the Indenture as the Delaware Trustee, in each case not in its individual capacity but solely as trustee, and its successors.
“Distribution Agreement” means that certain Distribution Agreement dated as of June 28, 2007, by and among Allstate Life Global Funding and the Agents named therein, as the same may be amended, restated, modified or supplemented from time to time.
“Funding Note Indenture” means that certain Funding Note Indenture included in Part H of the Series Instrument, among Global Funding and the other parties specified therein, as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Indenture” means that certain Indenture included in Part G of the Series Instrument, among the Trust and the other parties specified therein, as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Licensed Marks” shall include all marks listed on Appendix A attached hereto as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Licensed Services” means the activities necessary to accomplish all purposes of the Trust as set forth in the Trust Agreement.
“Licensee” means the Trust.
“Licensor” means Allstate Insurance Company, an Illinois stock insurance company, and its successors.
“Name Licensing Agreement” means that certain Name Licensing Agreement included in Part D of the Series Instrument, between Licensor and Licensee, as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Note” means each medium term note issued by the Trust under the Indenture, each in an authorized denomination and represented, individually or collectively, by a Note Certificate authenticated by the Indenture Trustee pursuant to the terms of the Indenture.
“Note Certificate” means a security certificate representing one or more Notes.
“Person” means any natural person, corporation, limited partnership, general partnership, joint stock company, limited liability company, joint venture, association, company, trust (including any beneficiary thereof), bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and governments and agencies and political subdivisions thereof.
“Series Instrument” means the series instrument of the Trust, pursuant to which the Administrative Services Agreement, the Coordination Agreement, the Funding Note Indenture, the Indenture, the Name Licensing Agreement, the Support Agreement, the Terms Agreement and the Trust Agreement are entered into, and certain other documents are executed, in connection with the issuance of the Notes by the Trust.
“Support Agreement” means that certain Support and Expenses Agreement included in Part C of the Series Instrument, by and between Allstate Life Insurance Company and the Trust, as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Terms Agreement” means that certain Terms Agreement included in Part E of the Series Instrument, by and among Allstate Life Global Funding, the Trust and each Agent named therein, which will incorporate by reference the terms of the Distribution Agreement.
“Territory” shall mean worldwide.
“Trust” means the Allstate Life Global Funding Trust specified in the Series Instrument, together with its permitted successors and assigns.
“Trust Agreement” means that certain Trust Agreement included in Part A of the Series Instrument, among the Trust Beneficial Owner, the Administrator and the
Delaware Trustee, as the same may be amended, supplemented, modified, restated or replaced from time to time.
“Trust Beneficial Owner” means Allstate Life Global Funding, a Delaware statutory trust, in its capacity as trust beneficial owner.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS. FOR ALL PURPOSES OF THE NAME LICENSING AGREEMENT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED OR UNLESS THE CONTEXT OTHERWISE REQUIRES:
| (a) | the terms defined in this Article shall have the meanings ascribed to them in this Article and shall include the plural as well as the singular; |
| (b) | the words “include”, “includes” and “including” shall be construed to be followed by the words “without limitation”; |
| (c) | Article and Section headings are for the convenience of the reader and shall not be considered in interpreting the Name Licensing Agreement or the intent of the parties to the Name Licensing Agreement; |
| (d) | the words “herein”, “hereof” and “hereunder” and other words of similar import refer to the Name Licensing Agreement as a whole and not to any particular Article, Section, Appendix or other subdivision; and |
| (e) | references herein to Articles, Sections and Appendices shall, unless otherwise specified, refer respectively to Articles, Sections and Appendices |
ARTICLE 2
GRANT OF LICENSE; INDEPENDENT CONTRACTORS
SECTION 2.1 GRANT OF LICENSE. LICENSOR HEREBY GRANTS TO LICENSEE FOR THE TERM OF THE NAME LICENSING AGREEMENT A NONEXCLUSIVE, NONTRANSFERABLE RIGHT AND LICENSE TO USE THE LICENSED MARKS FOR THE LICENSED SERVICES WITHIN THE TERRITORY. LICENSOR IS NOT REPRESENTING THAT IT HAS RIGHTS WITH RESPECT TO LICENSED MARKS OR THE LICENSED MARKS IN EVERY JURISDICTION WITHIN THE TERRITORY.
SECTION 2.2 INDEPENDENT CONTRACTORS. LICENSOR AND LICENSEE ARE INDEPENDENT CONTRACTORS AND ARE NOT, AND SHALL NOT, REPRESENT THEMSELVES AS PRINCIPAL AND AGENT, PARTNERS OR JOINT VENTURERS.
ARTICLE 3
AGREEMENTS AND ACKNOWLEDGEMENTS OF LICENSEE
SECTION 3.1 AGREEMENTS AND ACKNOWLEDGEMENTS OF LICENSEE. LICENSEE ACKNOWLEDGES AND AGREES THAT:
| (a) | Licensor is the sole owner of the Licensed Marks; |
| (b) | Licensee shall do nothing inconsistent with the ownership of the Licensed Marks by Licensor; |
| (c) | all use of the Licensed Marks by Licensee shall inure only to the benefit of and be on behalf of Licensor; |
| (d) | Licensee shall assist Licensor in executing any additional documents that may be necessary or desirable to effect the protection of Licensor’s interests in Licensed Marks, including, but not limited to, the execution of any and all documents required by governmental agencies in order to register or maintain trademark and service mark registrations; in addition, Licensee shall not oppose Licensor’s registration of the Licensed Marks nor take action that jeopardizes Licensor’s rights in Licensed Marks; |
| (e) | nothing in the Name Licensing Agreement shall give Licensee any right, title or interest in Licensed Marks other than the license granted in the Name Licensing Agreement; |
| (f) | Licensee shall not attack or challenge in any way Licensor’s rights in and to Licensed Marks or the validity or enforceability of the Name Licensing Agreement; |
| (g) | Licensee shall not assign any of the rights granted under the Name Licensing Agreement without the prior express written consent of Licensor; |
| (h) | Licensee shall not grant to any Person a right and license to use the Licensed Marks without the prior express written consent of Licensor; |
| (i) | Licensee shall not use any Licensor’s Mark not covered by the Name Licensing Agreement which is the property or is claimed as the property of Licensor or Licensor’s subsidiaries or affiliates, except with the prior express written consent of Licensor; |
| (j) | Licensee shall comply with all applicable law, rules and regulations pertaining to its business; |
| (k) | Licensor has the sole and exclusive right to control the appearance of the Licensed Marks, including the quality of the mark in the Licensed Marks; |
| (l) | the nature and quality of the business conducted by Licensee under the Licensed Marks, and all related advertising, promotional and other uses of Licensed Marks by Licensee shall conform to standards set by and under the control of Licensor and communicated to Licensee from time to time; |
| (m) | except as otherwise agreed in writing by Licensor from time to time, Licensee shall submit to Casey Mangan, or successor in the Corporate Law Division of Licensor for Licensor’s prior approval representative samples of all proposed materials bearing the Licensed Marks, to the extent that such materials are not contained in the Registration Statement on Form S-3 (File No. 333-●), as amended and exhibits thereto; |
| (n) | Licensor shall have the right to inspect, upon reasonable notice, the business facilities of Licensee and to request submission of written materials at any time during the term of the Name Licensing Agreement so that Licensor may satisfy itself that quality standards are being appropriately complied with and will immediately modify or discontinue any use of Licensed Marks that Licensor deems not to be in compliance with its quality standards; |
| (o) | the standards of conduct of Licensee’s business shall be equivalent to the high standards of quality and ethics characteristic of the businesses conducted by Licensor; |
| (p) | the value and goodwill of the Licensed Marks accrues solely to Licensor; and |
| (q) | Licensee will not act or use Licensed Marks in any manner which may, in Licensor’s judgment, be in bad taste, be inconsistent with Licensor’s public image or which may in any way disparage Licensor or its reputation including, but not limited to, types and placement of advertising, or take any action which will harm or jeopardize the Licensed Marks or Licensor’s ownership thereof. |
ARTICLE 4
INFRINGEMENT PROCEEDINGS
SECTION 4.1 NOTIFICATION OF UNAUTHORIZED USE. LICENSEE AGREES TO PROMPTLY NOTIFY LICENSOR OF ANY UNAUTHORIZED USE OF ANY OF LICENSED MARKS AS SUCH UNAUTHORIZED USE COMES TO LICENSEE'S ATTENTION. LICENSOR SHALL HAVE THE SOLE RIGHT AND DISCRETION TO TAKE ANY ACTION RELATING TO LICENSED MARKS; PROVIDED, THAT LICENSEE AGREES TO COOPERATE FULLY, SHOULD LICENSOR DECIDE TO TAKE ANY SUCH ACTION.
SECTION 4.2 PAYMENTS FOR DAMAGES. IF INFRINGEMENT PROCEEDINGS RESULT IN AN AWARD OF DAMAGES OR THE PAYMENT OF ANY SUMS TO LICENSOR, ANY SUCH DAMAGES OR PAYMENTS SHALL BELONG SOLELY TO LICENSOR.
ARTICLE 5
TERM AND TERMINATION
SECTION 5.1 TERM. THE NAME LICENSING AGREEMENT SHALL CONTINUE IN FORCE AND EFFECT FOR SO LONG AS LICENSEE CONTINUES TO EXIST IN ACCORDANCE WITH THE TERMS OF THE TRUST AGREEMENT, UNLESS IT IS SOONER TERMINATED AS PROVIDED FOR IN THE NAME LICENSING AGREEMENT.
SECTION 5.2 AUTOMATIC TERMINATION. THE NAME LICENSING AGREEMENT SHALL AUTOMATICALLY TERMINATE UPON THE HAPPENING OF ANY OF THE FOLLOWING EVENTS:
| (a) | Licensee is ordered or adjudged bankrupt, is placed under the supervision of a receiver, or enters into any scheme or composition with creditors to make an assignment for the benefit of creditors; |
| (b) | any assets of Licensee are seized or attached in conjunction with any action against Licensee by a third party; or |
| (c) | any of the assets of Licensee are seized or appropriated by any governmental authority, whether or not compensation for such action is offered to Licensee. |
SECTION 5.3 IMMEDIATE TERMINATION. LICENSOR SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO IMMEDIATELY TERMINATE THE NAME LICENSING AGREEMENT AND ALL RIGHTS GRANTED UNDER THE NAME LICENSING AGREEMENT IN THE EVENT THAT LICENSEE (A) CEASES TO CONDUCT BUSINESS AS A STATUTORY TRUST, (B) BREACHES ANY OF ITS REPRESENTATIONS, AGREEMENTS, COVENANTS AND UNDERTAKINGS IN THE NAME LICENSING AGREEMENT, (C) FAILS TO COMPLY WITH LAWS, RULES AND REGULATIONS APPLICABLE TO IT OR THE CONDUCT OF ITS BUSINESS TO THE COMPLETE SATISFACTION OF LICENSOR, (D) ACTS IN A MANNER THAT IMPUGNS LICENSOR'S REPUTATION OR (E) USES THE LICENSED MARKS IN A MANNER THAT IS INCONSISTENT WITH OR BEYOND THE SCOPE OF THE LICENSE GRANTED HEREIN.
SECTION 5.4 TERMINATION ON NOTICE. LICENSOR MAY TERMINATE THE NAME LICENSING AGREEMENT WITHOUT CAUSE UPON THE PROVISION OF TEN DAYS' PRIOR WRITTEN NOTICE TO LICENSEE.
ARTICLE 6
EFFECT OF TERMINATION
SECTION 6.1 CHANGE OF LICENSEE MARKS. UPON TERMINATION OF THE NAME LICENSING AGREEMENT, LICENSEE AGREES TO IMMEDIATELY CHANGE LICENSEE'S NAME AS TO NOT INCLUDE ANY LICENSED MARKS, AND TO DISCONTINUE AND NOT TO USE IN THE FUTURE ANY OF THE LICENSED MARKS, ANY TRADE NAME INCORPORATING ANY OF THE LICENSED MARKS, OR ANY TERMS CONFUSINGLY SIMILAR TO ANY OF LICENSED MARKS.
SECTION 6.2 LICENSEE COOPERATION. UPON TERMINATION OF THE NAME LICENSING AGREEMENT, LICENSEE AGREES TO COOPERATE FULLY WITH LICENSOR TO AMEND OR CANCEL ANY GOVERNMENTAL RECORDATIONS OR APPROVALS PERTAINING TO ANY TRADENAMES, TRADEMARKS OR SERVICEMARKS WHICH CONSIST OF OR INCLUDE ANY OF LICENSED MARKS.
SECTION 6.3 RIGHTS IN LICENSED MARKS. UPON TERMINATION OF THE NAME LICENSING AGREEMENT, ANY AND ALL RIGHTS IN THE LICENSED MARKS HERETOFOR GRANTED TO LICENSEE AND THE GOODWILL CONNECTED THEREWITH SHALL REMAIN THE PROPERTY OF LICENSOR.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 ENFORCEMENT. THE PARTIES AGREE THAT ANY BREACHES OF THE NAME LICENSING AGREEMENT SHALL CAUSE IRREPARABLE INJURY TO THE NONBREACHING PARTY AND THAT AN INJUNCTION SHALL BE AN APPROPRIATE REMEDY.
SECTION 7.2 SEVERABILITY. IN THE EVENT ANY PROVISION OF, OR OBLIGATION UNDER, THE NAME LICENSING AGREEMENT SHALL BE INVALID, ILLEGAL OR UNENFORCEABLE, IN ANY JURISDICTION, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OR OBLIGATIONS, OR OF SUCH PROVISION OR OBLIGATION IN ANY OTHER JURISDICTION, SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SECTION 7.3 ENTIRE AGREEMENT. THE NAME LICENSING AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER OF THE NAME LICENSING AGREEMENT, AND SUPERSEDES ALL PREVIOUS AGREEMENTS BETWEEN THE PARTIES, WHETHER WRITTEN OR ORAL.
SECTION 7.4 AMENDMENT OF NAME LICENSING AGREEMENT. ANY AMENDMENTS, SUPPLEMENTS, MODIFICATIONS, RESTATEMENTS OR REPLACEMENTS OF THE NAME LICENSING AGREEMENT, OR WAIVERS OR CONSENTS TO THE NAME LICENSING AGREEMENT, SHALL BE IN WRITING SIGNED BY THE PARTIES.
SECTION 7.5 GOVERNING LAW. THE NAME LICENSING AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO ITS CHOICE OF LAW PRINCIPLES.
SECTION 7.6 CONSENT TO JURISDICTION. EACH PARTY TO THE NAME LICENSING AGREEMENT SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURT LOCATED IN COOK COUNTY, ILLINOIS, FOR PURPOSES OF ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE NAME LICENSING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE NAME LICENSING AGREEMENT. EACH PARTY TO THE NAME LICENSING AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY TO THE NAME LICENSING AGREEMENT CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THE NAME LICENSING AGREEMENT, OR ANY DOCUMENT DELIVERED PURSUANT TO THE NAME LICENSING AGREEMENT BY THE MAILING OF A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO ITS RESPECTIVE ADDRESS SPECIFIED AT THE TIME FOR NOTICES UNDER THE NAME LICENSING AGREEMENT OR TO ANY OTHER ADDRESS OF WHICH IT SHALL HAVE GIVEN WRITTEN NOTICE TO THE OTHER PARTY. THE FOREGOING SHALL NOT LIMIT THE ABILITY
OF ANY PARTY TO THE NAME LICENSING AGREEMENT TO BRING SUIT IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 7.7 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THE NAME LICENSING AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE NAME LICENSING AGREEMENT OR ANY CLAIMS OR TRANSACTIONS IN CONNECTION WITH THE NAME LICENSING AGREEMENT. EACH OF THE PARTIES TO THE NAME LICENSING AGREEMENT HEREBY ACKNOWLEDGES THAT SUCH WAIVER IS MADE WITH FULL UNDERSTANDING AND KNOWLEDGE OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY.
SECTION 7.8 NO WAIVER. NO FAILURE ON THE PART OF LICENSOR TO EXERCISE, AND NO DELAY IN EXERCISING, AND NO COURSE OF DEALING WITH RESPECT TO, ANY RIGHT, POWER OR PRIVILEGE UNDER THE NAME LICENSING AGREEMENT SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE OPERATE AS SUCH A WAIVER.
SECTION 7.9 REMEDIES CUMULATIVE. NO RIGHT, POWER OR REMEDY OF LICENSOR UNDER THE NAME LICENSING AGREEMENT SHALL BE EXCLUSIVE OF ANY OTHER RIGHT, POWER OR REMEDY, BUT SHALL BE CUMULATIVE AND IN ADDITION TO ANY OTHER RIGHT, POWER OR REMEDY THEREUNDER OR EXISTING BY LAW OR IN EQUITY.
SECTION 7.10 NOTICES. ALL NOTICES, DEMANDS, OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED TO BE GIVEN UNDER THE NAME LICENSING AGREEMENT SHALL BE GIVEN IN WRITING BY DELIVERING THE SAME AGAINST RECEIPT THEREOF BY FACSIMILE TRANSMISSION (CONFIRMED BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED), OR BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, ADDRESSED AS FOLLOWS (AND IF SO GIVEN, SHALL BE DEEMED GIVEN WHEN MAILED OR UPON RECEIPT OF A CONFIRMATION, IF SENT BY FACSIMILE):
If to Licensor:
Allstate Insurance Company
3100 Sanders Road
Northbrook, Illinois 60062
Attention: Michael J. Velotta, Vice President, Deputy General
Counsel and Assistant Secretary
Facsimile: (847) 326-6742
If to Licensee:
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
6525 Morrison Boulevard, Suite 318
Charlotte, North Carolina 28211
Attention: President
Facsimile: (704) 365-1362
or at such other address as shall be designated by any party in a written notice to the other party.
SECTION 7.11 COUNTERPARTS. THE NAME LICENSING AGREEMENT AND ANY AMENDMENTS, SUPPLEMENTS, MODIFICATIONS, RESTATEMENTS OR REPLACEMENTS OF THE NAME LICENSING AGREEMENT, OR WAIVERS OR CONSENTS TO THE NAME LICENSING AGREEMENT, MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, AND BY DIFFERENT PARTIES TO THE NAME LICENSING AGREEMENT IN SEPARATE COUNTERPARTS, EACH OF WHICH, WHEN SO EXECUTED AND DELIVERED, SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH COUNTERPARTS, WHEN TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. THE NAME LICENSING AGREEMENT SHALL BECOME EFFECTIVE UPON THE EXECUTION OF A COUNTERPART BY EACH OF THE PARTIES.
APPENDIX A
LICENSED MARKS
Allstate
Allstate Life
[ALLSTATE® LOGO]
EXHIBIT E
ALLSTATE LIFE GLOBAL FUNDING
$8,400,000,000
SECURED MEDIUM TERM NOTE PROGRAM
DISTRIBUTION AGREEMENT
June 28, 2007
Merrill Lynch, Pierce, Fenner & Smith
A.G. Edwards & Sons, Inc.
Banc of America Securities LLC
Barclays Capital Inc.
Bear, Stearns & Co. Inc.
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Greenwich Capital Markets, Inc.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
UBS Securities LLC
Wachovia Capital Markets, LLC
Ladies and Gentlemen:
Allstate Life Global Funding, a Delaware statutory trust (“Global Funding”), formed pursuant to a Trust Agreement, dated June 24, 2002, as amended, restated or modified from time to time (the “Global Funding Trust Agreement”), between Wilmington Trust Company, as Delaware trustee (the “Global Funding Delaware Trustee”), and AMACAR Pacific Corp., as trust beneficial owner, in connection with the Allstate Life Global Funding Secured Medium Term Note Program (the “Institutional Program”) and the Allstate Life® CoreNotes® Program (the “Retail Program” and, together with the Institutional Program, the “Programs”), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated and each other institution named on Schedule 1 hereto (each, an “Agent”) with respect to the issue and sale, from time to time by separate and distinct Delaware statutory trusts formed and beneficially owned by Global Funding (each, an “Issuing Trust” and, collectively, the “Issuing Trusts”), of notes due between nine months and thirty years from the date of issuance (the “Notes”). As of the date
________________________
Allstate Life® is a registered service mark of Allstate Insurance Company.
CoreNotes® is a registered service mark of Merrill Lynch & Co.
hereof, the Issuing Trusts are authorized to issue collectively up to U.S. $8,400,000,000 aggregate initial offering price of Notes (or its equivalent as determined in Section 4(s)).
From time to time, upon the formation of a new Issuing Trust, in connection with the offer and sale of Notes by such Issuing Trust, upon execution and delivery by such Issuing Trust and the applicable Agent or Agents of the terms agreement (the “Terms Agreement”) set forth in Part E of the series instrument to be executed by Global Funding, such Issuing Trust and the applicable Agent or Agents, among others (the “Series Instrument”), such Issuing Trust shall become a party hereto in relation to its Notes (the time of such execution and delivery referred to herein as such Issuing Trust’s “Trust Effective Time”), with all the authority, rights, powers, duties and obligations of an Issuing Trust as if originally named as an Issuing Trust hereunder. Any agreement, covenant, acknowledgment, representation or warranty made by an Issuing Trust hereunder shall be deemed to have been made by each Issuing Trust at its Trust Effective Time and at the Applicable Time (as defined in the applicable Terms Agreement for such Issuing Trust, the “Applicable Time”) unless another time or times are specified herein, in which case such specified time or times shall instead apply.
The Notes of each Issuing Trust will be issued pursuant to an indenture, as amended or modified from time to time, which will adopt and incorporate the standard indenture terms (each, an “Indenture” and, collectively, the “Indentures”) between the relevant Issuing Trust and The Bank of New York Trust Company, N.A. (or another entity specified as Indenture Trustee in the applicable Indenture), as indenture trustee (the “Indenture Trustee”). Each Issuing Trust shall issue only one series of Notes.
Each Issuing Trust will immediately use the proceeds from the sale of its Notes to purchase a funding note (each a “Funding Note”) from Global Funding. Each Funding Note will be issued pursuant to a funding note indenture, as amended or modified from time to time, which will adopt and incorporate the standard funding note indenture terms (each, a “Funding Note Indenture”) between Global Funding and The Bank of New York Trust Company, N.A. (or another entity specified as Funding Note Indenture Trustee in the applicable Funding Note Indenture), as the funding note indenture trustee (the “Funding Note Indenture Trustee”). Global Funding will immediately use the net proceeds received from the sale of the Funding Note to purchase one or more funding agreements (the “Funding Agreement(s)”) issued by Allstate Life Insurance Company, an Illinois stock life insurance company (the “Company”). Global Funding will immediately assign absolutely to, and deposit into the relevant Issuing Trust, the relevant Funding Agreement(s) and the relevant Funding Note will be surrendered. The Notes of the Issuing Trust will be secured by the relevant Funding Agreement(s). The Issuing Trust will immediately collaterally assign, and grant a first priority perfected security interest in, the Funding Agreement(s) to the Indenture Trustee for the benefit of the holders of the Notes of the Issuing Trust pursuant to the terms of the Indenture. In connection with the sale of its Notes, the Issuing Trust will prepare a Pricing Supplement (the “Pricing Supplement”) including or incorporating by reference a description of the terms of the Notes and the terms of the offering.
The Agents include those institutions named from time to time in Schedule 1 hereto and any institution appointed as an Agent pursuant to Section 20 below. If any institution is
appointed as an Agent only with respect to the Notes of a particular Issuing Trust, such institution shall only be an Agent with respect to Notes of such Issuing Trust.
This Agreement specifies the terms and conditions on which Notes may be sold by an Issuing Trust (i) to one or more Agents as principal for resale to investors, (ii) directly to investors through the applicable Agent as an agent of such Issuing Trust in soliciting offers for the purchase of Notes and (iii) to such other investors in compliance with all applicable securities laws as such Issuing Trust may determine from time to time.
The Company has registered shares of its common stock with the Securities and Exchange Commission (the “Commission”) pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), on Form 10 under the 1934 Act. Pursuant to Rule 429 of the rules and regulations of the Commission under the Securities Act of 1933, as amended (the “1933 Act Regulations”), the Company and Global Funding have filed with the Commission (i) a registration statement on Form S-3 (No. 333-143541) and pre-effective amendment No.1 under the Securities Act of 1933, as amended (the “1933 Act”), for the registration of the Funding Agreement(s), the Funding Notes, and the Notes, and the offering thereof in accordance with Rule 415 of the 1933 Act Regulations; (ii) the related prospectus dated June 28, 2007 covering the Notes offered under the Programs (the “Base Prospectus”); (iii) the prospectus supplement to the Base Prospectus, dated June 28, 2007, covering the Notes offered under the Institutional Program (the “Institutional Prospectus Supplement” and together with the Base Prospectus, the “Institutional Base Prospectus”); and (iv) the prospectus supplement to the Base Prospectus, dated June 28, 2007, covering the Notes offered under the Retail Program (the “Retail Prospectus Supplement” and, together with the Base Prospectus, the “Retail Base Prospectus”). Such registration statement (as so amended, if applicable), is also the first post-effective amendment to registration statement on Form S-3 (No. 333-129157) filed by the Company and Global Funding. The registration statement on Form S-3 (No. 333-143541) (as so amended, if applicable) has been declared effective by the Commission, and the form of Indenture and the form of Funding Note Indenture have been duly qualified under the Trust Indenture Act of 1939, as amended (the “1939 Act”), and the Company and Global Funding have filed such post-effective amendments thereto as may be required prior to the acceptance by Global Funding and any Issuing Trust of any offer for the purchase of Notes and each such post-effective amendment has been declared effective by the Commission. Such registration statement on Form S-3 (No. 333-143541), at any relevant time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or included therein by the 1933 Act Regulations is referred to herein as the “Registration Statement”. If the Company or Global Funding file a registration statement with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the “Rule 462(b) Registration Statement”), then, after such filing, all references to the “Registration Statement” shall also be deemed to include the Rule 462(b) Registration Statement. With respect to the offering of a series of Notes under the Institutional Program, the Institutional Base Prospectus, and with respect to the offering of a series of Notes under the Retail Program, the Retail Base Prospectus, in each case including the Pricing Supplement relating to the offering of such series of Notes, in the form first filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations (or in the form first made available to the applicable Agent(s) by the Company and the applicable Issuing Trust to meet
requests of purchasers pursuant to Rule 173 under the 1933 Act Regulations), are referred to herein as the “Prospectus.” The term “preliminary prospectus” means any preliminary form of the Prospectus. For all purposes of this Agreement, the term “free writing prospectus” has the meaning set forth in Rule 405 under the 1933 Act Regulations and the term “Time of Sale Prospectus” means (i) with respect to the offer and sale of any series of Notes under the Institutional Program, the Institutional Base Prospectus and (ii) with respect to the offer and sale of any series of Notes under the Retail Program, the Retail Base Prospectus in each case as amended or supplemented from time to time, together with any other preliminary prospectus relating to the offer and sale of such series of Notes, any Pricing Supplement relating to the offer and sale of such series of Notes filed with the Commission prior to the Applicable Time and each free writing prospectus (including any final term sheet relating to such series of Notes) attached as, or identified in, Exhibit A to the applicable Terms Agreement and any other information identified in Exhibit A to the applicable Terms Agreement. “Issuer Free Writing Prospectus” means, under either Program, any electronic road show approved or prepared by the Company and made available by the Company and reviewed by the applicable investor(s) in connection with an offering of Notes that is not required to be filed pursuant to Rule 433(d)(8)(i). All references to the “Registration Statement”, the “Institutional Base Prospectus”, the “Retail Base Prospectus”, any “preliminary prospectus”, the “Time of Sale Prospectus”, the “Issuer Free Writing Prospectus” and the “Prospectus” shall also be deemed to include all amendments and supplements thereto and all documents incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, Time of Sale Prospectus, Prospectus, any preliminary prospectus or free writing prospectus, or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is “disclosed”, “contained”, “included” or “stated” (or other references of like import) in the Registration Statement, Time of Sale Prospectus, Prospectus, any preliminary prospectus or free writing prospectus shall be deemed to include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, Time of Sale Prospectus, Prospectus, any preliminary prospectus or free writing prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, Time of Sale Prospectus, Institutional Base Prospectus, Retail Base Prospectus, Prospectus, any preliminary prospectus or free writing prospectus shall be deemed to include all documents subsequently filed with the Commission pursuant to the 1934 Act which are incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be part of or included in the Registration Statement, Time of Sale Prospectus, Institutional Base Prospectus, Retail Base Prospectus, Prospectus, any preliminary prospectus or free writing prospectus, as the case may be.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein, Global Funding and the relevant Issuing Trust hereby agree that the Notes of such Issuing Trust will be sold to or through the Agents pursuant to the terms of this Agreement. Global Funding and the relevant Issuing Trust agree that they will not appoint any other agents to act on an Issuing Trust’s behalf or to assist an Issuing Trust, in the placement of the Notes; provided, however that with respect to transactions in which the sales of Notes will be targeted to institutional purchasers under the Institutional Program, Global Funding and an Issuing Trust may enter into arrangements with
other agent(s) not a party to this Agreement provided that such agent(s) enter into an agreement with terms substantially identical to those contained herein. Global Funding and each Issuing Trust agree that they hereby appoint only Merrill Lynch, Pierce, Fenner & Smith Incorporated (the “Purchasing Agent”) to act on an Issuing Trust’s behalf or to assist an Issuing Trust in connection with transactions in which the sale of Notes will be targeted to retail purchasers under the Retail Program. For purposes of this Agreement, all references to any Agent shall be deemed to include the Purchasing Agent.
(b) Sale of Notes. Each Issuing Trust shall not sell or approve the solicitation of offers for the purchase of Notes in excess of the aggregate initial offering price of Notes registered pursuant to the Registration Statement. The Agents shall have no responsibility for maintaining records with respect to the aggregate initial offering price of Notes sold, or of otherwise monitoring the availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to purchase Notes issued through any Issuing Trust as principal. However, absent an agreement by and between Global Funding and the relevant Issuing Trust, on the one hand, and an Agent, on the other hand, for such Agent to act as an agent for the relevant Issuing Trust, such Agent shall be deemed to be acting as principal in connection with any offering of Notes by such Issuing Trust. Accordingly, the Agents, individually or in a syndicate, may agree from time to time to purchase Notes from an Issuing Trust as principal for resale to investors determined by such Agents. Any purchase of Notes from an Issuing Trust by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon between an Agent, on the one hand, and Global Funding and an Issuing Trust, on the other hand, then such Agent, acting solely as an agent for such Issuing Trust and not as principal, will solicit offers for the purchase of Notes. Such Agent will communicate to such Issuing Trust, orally, each offer for the purchase of Notes solicited by it on an agency basis other than those offers rejected by such Agent. Such Agent shall have the right, in its discretion reasonably exercised, to reject any offer for the purchase of Notes, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein. Such Issuing Trust may accept or reject any offer for the purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts to assist such Issuing Trust in obtaining performance by each purchaser whose offer for the purchase of Notes has been solicited by it on an agency basis and accepted by such Issuing Trust. Such Agent shall not have any liability to such Issuing Trust in the event that any such purchase is not consummated for any reason. If such Issuing Trust shall default on its obligation to deliver Notes to a purchaser whose offer has been solicited by an Agent on an agency basis and accepted by such Issuing Trust, then (i) such Issuing Trust shall hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by such Issuing Trust and (ii) the Issuing Trust shall be responsible to pay to such Agent any commission to which such Agent would otherwise be entitled absent such default.
(e) Reliance. Each Issuing Trust and Global Funding, on the one hand, and the Agents, on the other hand, agree that any Notes purchased from an Issuing Trust by one or more Agents as principal shall be purchased, and any Notes the placement of which an Agent arranges as an agent of such Issuing Trust shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of Global Funding and such Issuing Trust contained herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) Representations and Warranties of Global Funding. Global Funding represents and warrants to each Agent as of the date hereof, to the applicable Agent(s) as of the Applicable Time for the relevant Issuing Trust, to the applicable Agent(s) as of the date of each delivery of Notes (whether to such Agent as principal or through such Agent as agent) (the date of each such delivery is referred to herein as a “Settlement Date”), to each Agent as of any time the Time of Sale Prospectus shall be amended or supplemented and to each Agent as of any time that the Registration Statement or the Prospectus shall be amended or supplemented (each of the times referenced above is referred to herein as a “Global Funding Representation Date”), as follows:
(i) Due Formation and Good Standing of Global Funding. Global Funding is a statutory trust, duly formed under Delaware law pursuant to the Global Funding Trust Agreement and the filing of a certificate of trust with the Delaware Secretary of State, which is validly existing and in good standing as a statutory trust under the laws of the State of Delaware.
(ii) Registration Statement, Preliminary Prospectuses, Time of Sale Prospectus, and Prospectus; Filing Status. Global Funding meets the requirements for use of Form S-3 under the 1933 Act; the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of Global Funding, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; the form of Indenture has been duly qualified under the 1939 Act; the form of Funding Note Indenture has been duly qualified under the 1939 Act; at the respective times that each part of the Registration Statement became effective and at each Global Funding Representation Date, the Registration Statement complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”) and the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”) and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; each preliminary prospectus and Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act Regulations, complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations; each preliminary prospectus and the Prospectus delivered to an Agent for use in connection with the offering of Notes are identical in all material respects to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T; and at the date hereof, at the date of the Base Prospectus and each amendment or supplement thereto and at each Global Funding Representation Date, neither the Base Prospectus nor any amendment or supplement thereto included or will include an untrue
statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of the Time of Sale Prospectus and the Time of Sale Prospectus taken together with the applicable Issuer Free Writing Prospectus (the “Time of Sale Disclosure Package”)does not, and at the Applicable Time and at the applicable Settlement Date, each of the Time of Sale Prospectus, as then amended or supplemented by Global Funding, if applicable, and the Time of Sale Prospectus, as then amended or supplemented by Global Funding, if applicable, taken together with the applicable Issuer Free Writing Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to (i) statements in or omissions from the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the applicable Issuer Free Writing Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to Global Funding in writing by the applicable Agents concerning such Agents expressly for use in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the applicable Issuer Free Writing Prospectus or the Prospectus or (ii) the parts of the Registration Statement which constitute the Statement of Eligibility and Qualification (Form T-1) of the Indenture Trustee and the Funding Note Indenture Trustee under the 1939 Act.
(iii) Incorporated Documents; 1934 Act Filings. The documents incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Base Prospectus, as amended or supplemented, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations and, when read together with the other information in the Time of Sale Prospectus or the Base Prospectus, at the date hereof, at the date of the Time of Sale Prospectus or the Base Prospectus and at each Global Funding Representation Date, did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any reports, filings or other documents, exhibits or schedules filed by Global Funding and each Issuing Trust pursuant to the 1934 Act comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations.
(iv) Free Writing Prospectuses. At the time of initial filing of the Registration Statement, at the earliest time thereafter that Global Funding or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of any Notes and at each Global Funding Representation Date, Global Funding was not and is not an “ineligible issuer,” as defined in Rule 405 of the 1933 Act Regulations. Any free writing prospectus that Global Funding is required to file pursuant to Rule 433(d) under the 1933 Act Regulations has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the 1933 Act Regulations. Each free writing prospectus that Global Funding has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act Regulations or that was prepared by or on behalf of or used by Global Funding complies or will comply in all material respects with the requirements of the applicable 1933 Act Regulations. Except with respect to the offering of any series of Notes, the free writing prospectuses attached as, or identified in, Exhibit A to the applicable Terms Agreement, Global Funding and the Issuing Trusts have not prepared, used or referred to, and will not, without the prior consent of the applicable Agents, prepare, use or refer to, any free writing prospectus or any other
marketing materials other than the preliminary prospectus relating to or to be used in connection with any offer or sale of the Notes. No free writing prospectus used in connection with the offering of a series of Notes will conflict with either the Registration Statement or the Base Prospectus.
(v) Independent Registered Public Accounting Firm. The accounting firm which certified the financial statements and any supporting schedules thereto included in the Registration Statement and the Base Prospectus, as amended or supplemented, is an independent registered public accounting firm to the extent required by the 1933 Act and the 1933 Act Regulations.
(vi) Global Funding Financial Statements. The consolidated financial statements of Global Funding, if any, included in any report or filing under the 1934 Act, together with the related schedules and notes present fairly the consolidated financial position of Global Funding at the dates indicated to the extent required under the 1934 Act; such financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved; the supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein; the selected financial data and the summary financial information included in the Registration Statement and the Time of Sale Prospectus present fairly the information shown therein.
(vii) No Material Changes. Since the respective dates as of which information is given in the Registration Statement and the Time of Sale Prospectus, except as otherwise stated therein, (1) there has been no event or occurrence that would result in a material adverse effect on the condition (financial or otherwise) of Global Funding or on the power or ability of Global Funding to perform its obligations under this Agreement, the Global Funding Trust Agreement, any Funding Note or the Administrative Services Agreement (the “Global Funding Administration Agreement”), dated June 24, 2002, as amended, restated or modified from time to time, between the Global Funding Delaware Trustee, on behalf of Global Funding, and AMACAR Pacific Corp., as administrator (the “Global Funding Administrator”), or to consummate the transactions to be performed by it as contemplated in the Time of Sale Prospectus (a “Global Funding Material Adverse Effect”) and (2) there have been no transactions entered into by Global Funding, other than those in the ordinary course of business, which are material with respect to Global Funding.
(viii) Authorization of this Agreement, each Funding Agreement, Global Funding Trust Agreement, Global Funding Administration Agreement, the Funding Note Indenture and the Funding Notes. This Agreement, the Global Funding Trust Agreement and Global Funding Administration Agreement have been, and each Funding Note Indenture, Funding Note and relevant Funding Agreement will be, duly authorized, executed and delivered by Global Funding and this Agreement, each relevant Funding Agreement, the Global Funding Trust Agreement, the Global Funding Administration Agreement, the Funding Note Indenture and the Funding Notes will each be a valid and legally binding agreement of Global Funding enforceable against Global Funding in accordance with its terms, as applicable, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim with respect to any Funding Note that is payable in a foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or by governmental authority to limit, delay or prohibit the making of payments outside the United States. The holder of the Funding Notes will be entitled to the benefits of the Funding Note Indenture.
(ix) Absence of Defaults and Conflicts. Global Funding is not in violation of its certificate of trust or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan or credit agreement, note, lease or other agreement or instrument to which Global Funding is a party or by which it may be bound or to which any of the property or assets of Global Funding is subject (the “Global Funding Agreements and Instruments”), except for such violations or defaults that would not result in a Global Funding Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Global Funding Trust Agreement, the Funding Agreement(s), Global Funding Administration Agreement and each Funding Note and any other agreement or instrument entered into or issued or to be entered into or issued by Global Funding in connection with the transactions contemplated by the Time of Sale Prospectus (collectively, the “Global Funding Program Documents”), the consummation of the transactions contemplated in the Time of Sale Prospectus (including the issuance and sale of the Notes by an Issuing Trust and the use of proceeds therefrom as described in the Time of Sale Prospectus) and the compliance by Global Funding with its obligations hereunder and under Global Funding Program Documents, have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by Global Funding under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of any Issuing Trust or Global Funding pursuant to, any Global Funding Agreements and Instruments, nor will such action result in any violation of Global Funding’s certificate of trust, the Global Funding Trust Agreement or Global Funding Administration Agreement which may reasonably be expected to result in a Global Funding Material Adverse Effect and Global Funding is not in default in the performance or observance of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Global Funding or any of its assets, properties or operations, except for such defaults which would not reasonably be expected to result in a Global Funding Material Adverse Effect.
(x) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or to the knowledge of Global Funding threatened, against or
affecting Global Funding which is required to be disclosed in the Registration Statement and the Base Prospectus, as amended or supplemented (other than as stated therein), or which may reasonably be expected to result in a Global Funding Material Adverse Effect; and the aggregate of all pending legal or governmental proceedings to which Global Funding is a party or of which any of its assets, properties or operations is the subject which are not described in the Registration Statement and the Base Prospectus, as amended or supplemented, including ordinary routine litigation incidental to the business, may not reasonably be expected to result in a Global Funding Material Adverse Effect.
(xi) Possession of Licenses and Permits. Global Funding possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it; Global Funding is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Global Funding Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not result in a Global Funding Material Adverse Effect. Except as set forth in the Time of Sale Prospectus, Global Funding has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Global Funding Material Adverse Effect.
(xii) No Filings, Regulatory Approvals etc. No filing with, or approval, authorization, consent, license, registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the due authorization, execution and delivery by Global Funding of Global Funding Program Documents or for the performance by Global Funding of the transactions contemplated in Global Funding Program Documents, except such as have been previously made, obtained or rendered, as applicable.
(xiii) Investment Company Act. Neither Global Funding nor any Issuing Trust is, and upon any sale of Funding Notes and the Notes as herein contemplated and the application of the net proceeds therefrom as described in the Time of Sale Prospectus, will not be an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”).
(xiv) Ratings. The Programs are (A) expected to be rated Aa2 by Moody’s Investors Service, Inc. (“Moody’s”) and (B) rated AA by Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (“Standard & Poor’s”) (Moody’s and Standard & Poor’s are referred to herein as the “Ratings Agencies”), or, in each case, such other rating as to which Global Funding shall have most recently notified the Agents pursuant to Section 4(u) hereof.
(xv) Notes Listed on any Stock Exchange. If specified in a Pricing Supplement, the Notes described in such Pricing Supplement shall be listed on the securities exchange designated in the Pricing Supplement.
(xvi) Relationship between Global Funding and the Agents. Global Funding acknowledges and agrees that (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction between Global Funding, on the one hand, and the several Agents, on the other hand, (ii) in connection with the offerings contemplated hereby and the process leading to such transactions each Agent is and has been acting solely as a principal and is not the agent or fiduciary of Global Funding, or its stockholders, creditors, employees or any other party, (iii) no Agent has assumed or will assume an advisory or fiduciary responsibility in favor of Global Funding with respect to the offerings contemplated hereby or the process leading thereto (irrespective of whether such Agent has advised or is currently advising Global Funding on other matters) and no Agent has any obligation to Global Funding with respect to the offerings contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Agents and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Global Funding, and (v) the Agents have not provided any legal, accounting, regulatory or tax advice with respect to the offerings contemplated hereby and Global Funding has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
(b) Representations and Warranties of the relevant Issuing Trust. Each Issuing Trust represents and warrants, only as to itself, to each applicable Agent as of the such Issuing Trust’s Trust Effective Time, as of its Applicable Time and as of the date of each delivery of its Notes (whether to each such Agent as principal or through each such Agent as agent) (the date of each such delivery is referred to herein as a “Settlement Date”) (each of the times referenced above is referred to herein as an “Issuing Trust Representation Date”), as follows:
(i) Due Formation and Good Standing of the Issuing Trust. Such Issuing Trust is a statutory trust, duly formed under Delaware law pursuant to the trust agreement between Wilmington Trust Company, as Delaware trustee (the “Relevant Issuing Trust Trustee”) and Global Funding (the “Issuing Trust Agreement”) and the filing of a certificate of trust with the Delaware Secretary of State, which is validly existing and in good standing as a statutory trust under the laws of the State of Delaware.
(ii) No Material Changes. Since the respective dates as of which information is given in the Registration Statement and the Time of Sale Prospectus or the Trust Effective Time, whichever is later, except as otherwise stated therein, (1) there has been no event or occurrence that would result in a material adverse effect on the condition (financial or otherwise) of such Issuing Trust or on the power or ability of such Issuing Trust to perform its obligations under this Agreement, the Issuing Trust Agreement, its Notes, any Funding Agreement, the Indenture or the Issuing Trust Administrative Services Agreement (the “Issuing Trust Administration Agreement”), as amended or modified from time to time, between the Relevant Issuing Trust Trustee, on behalf of such Issuing Trust, and AMACAR Pacific Corp., as administrator (the “Issuing Trust
Administrator”), or to consummate the transactions to be performed by it as contemplated in the Time of Sale Prospectus (an “Issuing Trust Material Adverse Effect”) and (2) there have been no transactions entered into by such Issuing Trust, other than those in the ordinary course of business, which are material with respect to such Issuing Trust.
(iii) Authorization of this Agreement, the Issuing Trust Agreement, the Issuing Trust Administration Agreement, the Indenture and the Notes. This Agreement, the Issuing Trust Agreement, the Issuing Trust Administration Agreement and the relevant Indenture have been or will be, duly authorized, executed and delivered by such Issuing Trust and each is or will be a valid and legally binding agreement of the Issuing Trust enforceable against the Issuing Trust in accordance with its terms, as applicable, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim with respect to any Notes issued under the Indenture that are payable in a foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or by governmental authority to limit, delay or prohibit the making of payments outside the United States; the Notes have been duly authorized by such Issuing Trust for offer, sale, issuance and delivery pursuant to this Agreement and, when issued, authenticated and delivered in the manner provided for in the Indenture and delivered against payment of the consideration therefor, will constitute valid and legally binding obligations of such Issuing Trust, enforceable against such Issuing Trust in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law); the Notes will be substantially in a form previously certified to the Agents and contemplated by the Indenture; and each holder of Notes will be entitled to the benefits set forth in the Indenture.
(iv) Absence of Defaults and Conflicts. Such Issuing Trust is not in violation of its certificate of trust or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan or credit agreement, note, lease or other agreement or instrument to which such Issuing Trust is a party or by which it may be bound or to which any of the property or assets of such Issuing Trust is subject (the “Issuing Trust Agreements and Instruments”), except for such violations or defaults that would not result in an Issuing Trust Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Issuing Trust Agreement, the Issuing Trust Administration Agreement, its Notes and the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by such Issuing Trust in connection with the transactions contemplated by the Time of Sale Prospectus, the consummation of the transactions contemplated in the Time of Sale Prospectus (including the issuance and sale of the Notes by an Issuing Trust and the use of proceeds therefrom as described in the Time of Sale Prospectus)
(collectively, the “Issuing Trust Program Documents”) and the compliance by such Issuing Trust with its obligations hereunder and under the Issuing Trust Program Documents, have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by such Issuing Trust under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of any Issuing Trust or such Issuing Trust pursuant to, any Issuing Trust Agreements and Instruments, nor will such action result in any violation of such Issuing Trust’s certificate of trust, the Issuing Trust Agreement or the Issuing Trust Administration Agreement which may reasonably be expected to result in an Issuing Trust Material Adverse Effect and such Issuing Trust is not in default in the performance or observance of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Issuing Trust or any of its assets, properties or operations, except for such defaults which would not reasonably be expected to result in an Issuing Trust Material Adverse Effect.
(v) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or to the knowledge of such Issuing Trust threatened, against or affecting such Issuing Trust which is required to be disclosed in the Registration Statement and the Base Prospectus, as amended or supplemented (other than as stated therein), or which may reasonably be expected to result in an Issuing Trust Material Adverse Effect; and the aggregate of all pending legal or governmental proceedings to which such Issuing Trust is a party or of which any of its assets, properties or operations is the subject which are not described in the Registration Statement and the Time of Sale Prospectus, including ordinary routine litigation incidental to the business, may not reasonably be expected to result in an Issuing Trust Material Adverse Effect.
(vi) Possession of Licenses and Permits. Such Issuing Trust possesses such Governmental Licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it; such Issuing Trust is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Issuing Trust Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not result in an Issuing Trust Material Adverse Effect. Except as otherwise set forth in the Time of Sale Prospectus, such Issuing Trust has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in an Issuing Trust Material Adverse Effect.
(vii) No Filings, Regulatory Approvals etc. Other than the filing of the applicable financing statements, if any, no filing with, or approval, authorization,
consent, license, registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the due authorization, execution and delivery by such Issuing Trust of the Issuing Trust Program Documents or for the performance by such Issuing Trust of the transactions contemplated in the Issuing Trust Program Documents, except such as have been previously made, obtained or rendered, as applicable.
(viii) Investment Company Act. Such Issuing Trust is not, and upon any sale of Notes by such Issuing Trust as herein contemplated and the application of the net proceeds therefrom as described in the Time of Sale Prospectus will not be, an “investment company” within the meaning of the 1940 Act.
(ix) Notes Listed on any Stock Exchange. If specified in a Pricing Supplement, such Issuing Trust’s Notes described in such Pricing Supplement shall be listed on the securities exchange designated in the Pricing Supplement.
(c) Additional Certifications. Any certificate signed by any officer of the Global Funding Delaware Trustee, on behalf of Global Funding or any officer of the Delaware Issuing Trustee, on behalf of the applicable Issuing Trust, and delivered to one or more Agents or to counsel for the Agents in connection with an offering of Notes to one or more Agents as principal or through an Agent as agent shall be deemed a representation and warranty by Global Funding or Issuing Trust (as applicable) to such Agent(s) as to the matters covered thereby on the date of such certificate and, unless subsequently amended or supplemented, at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent; Other Sales.
(a) Purchases as Principal. Notes purchased from an Issuing Trust by the Agents, individually or in a syndicate, as principal shall be made in accordance with terms agreed upon between such Agent(s), on one hand, and Global Funding and such Issuing Trust, on the other hand, specified in the Terms Agreement. An Agent’s commitment to purchase Notes as principal shall be deemed to have been made on the basis of the representations and warranties of Global Funding and Issuing Trust herein contained and shall be subject to the terms and conditions herein set forth. Unless the context otherwise requires, references herein to “this Agreement” shall include the applicable Terms Agreement Each purchase of Notes by Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the Purchasing Agent, unless otherwise agreed, shall be at a discount from the principal amount of each such Note equivalent to the applicable commission set forth in Schedule 2 hereto. Any other purchase of Notes, unless otherwise agreed, shall be at a discount from the principal amount of each such Note equivalent to the applicable commission set forth in Schedule 3 hereto. The Agents may engage the services of any broker or dealer in connection with the resale of the Notes purchased by them as principal and may allow all or any portion of the discount received by them in connection with such purchases to any broker or dealer.
If Global Funding and an Issuing Trust, on one hand, and two or more Agents, on the other hand, enter into a Terms Agreement pursuant to which such Agents agree to purchase Notes from such Issuing Trust as principal and one or more of such Agents shall fail at the
Settlement Date to purchase the Notes which it or they are obligated to purchase (the “Defaulted Notes”), then the nondefaulting Agents shall have the right, within 24 hours thereafter, to make arrangements for one of them or one or more other Agents or underwriters to purchase all, but not less than all, of the Defaulted Notes in such amounts as may be agreed upon and upon the terms herein set forth; provided, however, that if such arrangements shall not have been completed within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes does not exceed 10% of the aggregate principal amount of Notes to be so purchased by all of such Agents on the Settlement Date, the nondefaulting Agents shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective initial underwriting obligations bear to the underwriting obligations of all nondefaulting Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds 10% of the aggregate principal amount of Notes to be so purchased by all of such Agents on the Settlement Date, such agreement shall terminate without liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent from liability in respect of its default. In the event of any such default which does not result in a termination of such Terms Agreement, either the nondefaulting Agents, on one hand, or Global Funding and such Issuing Trust, on the other hand, shall have the right to postpone the Settlement Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the Time of Sale Prospectus or the Prospectus or in any other documents or arrangements.
(b) Solicitations as Agent. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, when agreed by an Issuing Trust, on one hand, and an Agent, on the other hand, such Agent, as an agent of the such Issuing Trust, will use its reasonable efforts to solicit offers for the purchase of such Issuing Trust’s Notes upon the terms set forth in the Registration Statement. Unless the context otherwise requires, references herein to “this Agreement” shall include the applicable Terms Agreement. Such Agent is authorized to appoint any sub-agent with respect to solicitations of offers to purchase Notes; provided, however, that any such appointment of a sub-agent shall be subject to the prior consent of the Company and such Issuing Trust. All Notes sold through such Agent as agent will be sold at one hundred percent (100%) of their principal amount unless otherwise agreed upon between the relevant Issuing Trust, on one hand, and such Agent, on the other hand.
An Issuing Trust reserves the right, in its sole discretion, to suspend solicitation of offers for the purchase of Notes through an Agent, as an agent of such Issuing Trust, commencing at any time for any period of time or permanently. As soon as practicable after receipt of instructions from such Issuing Trust, such Agent will suspend solicitation of offers for the purchase of Notes issued through such Issuing Trust until such time as such Issuing Trust has advised such Agent that such solicitation may be resumed.
Each Issuing Trust agrees to pay Merrill Lynch, Pierce, Fenner & Smith Incorporated, for acting as the Purchasing Agent, as consideration for soliciting offers to purchase its Notes as an agent of such Issuing Trust, a commission, in the form of a discount, equal to the applicable percentage of the principal amount of each Note sold by such Issuing Trust as a result of any such solicitation made by the Purchasing Agent, as set forth in Schedule 2 hereto.
Each Issuing Trust agrees to pay the Agent, as consideration for soliciting offers to purchase Notes as an agent of such Issuing Trust, a commission, in the form of a discount, equal to the applicable percentage of the principal amount of each Note sold by such Issuing Trust as a result of any such solicitation made by such Agent, as set forth in Schedule 3 hereto.
(c) Administrative Procedures. The purchase price, interest rate or formula, maturity date and other terms of the Notes shall be agreed upon between Global Funding and the relevant Issuing Trust, on one hand, and the applicable Agent(s), on the other hand, and specified in a Pricing Supplement prepared in connection with each sale of Notes. Except as otherwise specified in the applicable Pricing Supplement, the Notes will be issued in denominations of U.S. $1,000 or any larger amount that is an integral multiple of U.S. $1,000. Administrative procedures with respect to the issuance and sale of the Notes (the “Administrative Procedures”) shall be agreed upon from time to time among Global Funding, the relevant Issuing Trust, the Agent(s), the relevant Issuing Trust Administrator and the Indenture Trustee. The Agents, Global Funding and each Issuing Trust agree to perform and Global Funding agrees to cause the Company, and the Issuing Trust agrees to cause the Issuing Trust Administrator and the Indenture Trustee to agree to perform, their respective duties and obligations specifically provided to be performed by them in the Administrative Procedures.
(d) Obligations Several. Global Funding and each Issuing Trust acknowledge that the obligations of the Agents under this Agreement are several and not joint.
(e) Other Sales. Subject to the terms and conditions of Sections 1(a), 4(n) and 4(o), Global Funding and each Issuing Trust reserves the right, to be exercised in their sole discretion, to sell Notes of such Issuing Trust, in compliance with all applicable securities laws, to other investors without the assistance of any Agent.
SECTION 4. Covenants of Global Funding.
| Global Funding covenants and agrees with each Agent as follows: |
(a) Notice of Certain Events. Global Funding will notify the Agents immediately, and confirm such notice in writing of (i) the effectiveness of any post-effective amendment to the Registration Statement or the filing of any amendment or supplement to the Time of Sale Prospectus or the Prospectus (other than any amendment or supplement thereto providing solely for the determination of the variable terms of the Notes), (ii) the receipt of any comments from the Commission with respect to the Registration Statement, any preliminary prospectus and the Prospectus, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Base Prospectus, in each case as amended or supplemented, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or of any order preventing or suspending the use of
any preliminary prospectus or Prospectus, or of the initiation of any proceedings for that purpose or (v) the failure of the Notes of any Issuing Trust to be qualified for offer and sale under the securities or blue sky laws of such jurisdiction as the Agents may request pursuant to Section 4(t). With respect to the Registration Statement, any preliminary prospectus and the Prospectus, Global Funding will make every reasonable effort to prevent the issuance of any stop order (or any similar order under blue sky laws) and, if any stop order (or any similar order under blue sky laws) is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing or Use of Amendments. Global Funding will give each Agent advance notice of its intention to file or prepare any additional registration statement with respect to the registration of additional Notes, any amendment to the Registration Statement or any amendment or supplement to any preliminary prospectus, or to the Prospectus (other than an amendment or supplement thereto providing solely for the determination of the variable terms of the Notes), whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will provide immediate notice to each relevant Agent of any intention to prepare an amendment or supplement to the Time of Sale Prospectus and, if applicable to file such amendment or supplement pursuant to the 1933 Act, and will furnish to such Agents copies of any such document a reasonable amount of time prior to such proposed filing or the use of such material, as the case may be, and will not file or use any such document to which an Agent or counsel for the Agents shall object.
(c) Revisions of Registration Statement. If at any time during the term of this Agreement any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Agents or counsel for Global Funding, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or if it shall be necessary, in the reasonable opinion of either such counsel, to amend the Registration Statement in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, Global Funding shall give immediate notice, confirmed in writing, to the Agents to cease the solicitation of offers for the purchase of Notes and to cease sales of any Notes they may then own, and Global Funding will promptly prepare and file with the Commission, subject to Section 4(b) hereof, such amendment as may be necessary to correct such statement or omission or to make the Registration Statement comply with such requirements, and Global Funding will furnish to the Agents, without charge, such number of copies of such amendment as the Agents may reasonably request.
(d) Use of Free Writing Prospectuses. Global Funding and the Issuing Trusts will not take any action that would result in an Agent being required to file with the Commission pursuant to Rule 433(d) of the 1933 Act Regulations a free writing prospectus prepared by or on behalf of an Agent that such Agent otherwise would not have been required to file thereunder.
(e) Revisions of Time of Sale Prospectuses. If the Time of Sale Prospectus is being used to solicit offers to buy any Notes of a series at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the applicable Agent(s) or counsel for Global Funding, to amend or supplement the Time of Sale Prospectus in writing in order that the Time of Sale Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time the Time of Sale Prospectus is conveyed to a prospective purchaser, or if, in the reasonable opinion of either such counsel, it is necessary to amend or supplement the Time of Sale Prospectus to comply with the 1933 Act or 1933 Act Regulations, Global Funding shall give notice, confirmed in writing, to each of the applicable Agents and Global Funding will promptly prepare and, if applicable, file with the Commission such amendment or supplement as may be necessary to correct such statement or omission or to make the Time of Sale Prospectus comply with such requirements, and Global Funding will furnish to each of the applicable Agents, without charge, such number of copies of such amendment or supplement, as the relevant Agents may reasonably require.
(f) Revisions of Prospectus. If at any time when, in the reasonable opinion of counsel to the Agents or counsel to the Company, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the 1933 Act Regulations) is required to be delivered, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Agents or counsel for Global Funding, to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time the Prospectus or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act Regulations, is delivered to a purchaser, or if it shall be necessary, in the opinion of any such counsel, to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, as applicable, Global Funding shall give immediate notice, confirmed in writing, to the Agents to cease the solicitation of offers for the purchase of Notes in their capacity as agent and to cease sales of any Notes they may then own as principal, and Global Funding will promptly prepare and file with the Commission, subject to Section 4(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Prospectus comply with such requirements, and Global Funding will furnish to the Agents, without charge, such number of copies of such amendment or supplement as the Agents may reasonably request. In addition, Global Funding will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of each offering of Notes.
(g) Delivery of the Registration Statement. Global Funding will furnish to the Agents and to counsel for the Agents, without charge, signed and conformed copies of the Registration Statement and conformed copies of all consents and certificates of experts. The Registration Statement furnished to an Agent will be identical in all material respects to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(h) Delivery of the Preliminary Prospectus and Time of Sale Prospectus. Global Funding will deliver to each applicable Agent, without charge, as many copies of each preliminary prospectus as such Agent may reasonably request, and Global Funding hereby consents to the use of such copies for purposes permitted by the 1933 Act. Global Funding will furnish to each applicable Agent, without charge, such number of copies of the applicable Time of Sale Prospectus (as amended or supplemented) as such Agent may reasonably request. Each such document furnished to the applicable Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(i) Delivery of Free Writing Prospectuses. Global Funding will deliver to each applicable Agent and, without charge, as many copies of each free writing prospectus, prepared by or on behalf of, used by, or referred to by Global Funding. To the extent applicable, each such document furnished to the Agents will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(j) Delivery of the Prospectus. Global Funding will deliver to each applicable Agent, without charge, as many copies of the Base Prospectus (as amended or supplemented) as such Agent may reasonably request, and Global Funding hereby consents to the use of such copies for purposes permitted by the 1933 Act. It is hereby acknowledged that Global Funding intends to rely on the provisions of Rule 172 of the 1933 Act Regulations with respect to the delivery of the Prospectus. The Prospectus and any amendments or supplements thereto furnished to such Agent will be identical in all material respects to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(k) Preparation of Pricing Supplements. Global Funding will prepare, with respect to any Notes to be sold pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by the Agents. Global Funding will deliver such Pricing Supplement no later than 11:00 a.m., New York City time, on the business day following the Applicable Time for the relevant Issuing Trust and will file such Pricing Supplement pursuant to Rule 424(b) under the 1933 Act Regulations.
(l) Reporting Requirements. Global Funding will file, or cause to be filed, all documents required to be filed on its behalf or on behalf of the Issuing Trusts with the Commission pursuant to the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(m) Restrictions on the Offer and Sale of Securities to Institutional Purchasers. Unless otherwise agreed upon between one or more Agents, on one hand, and the Company and Global Funding, on the other hand, from the date of the agreement by such Agent(s) to purchase Notes from an Issuing Trust to and including the Settlement Date with respect thereto, Global Funding will not, and will cause all Issuing Trusts not to, without the prior written consent of such Agent(s), issue, sell, offer or contract to sell, grant any option for the sale of, or otherwise dispose of, any substantially similar debt securities of each such Issuing Trust to the same potential institutional investors (other than Notes to be offered and/or sold to or through such Agent(s)).
(n) Restrictions on the Offer and Sale of Securities to Retail Purchasers. Unless otherwise agreed upon between the Purchasing Agent, on the one hand, and the Company and Global Funding, on the other hand, from the date the retail pricing levels are posted out to the selling group members through and including the applicable Settlement Date with respect thereto, Global Funding will not, and will cause all Issuing Trusts not to, without the prior written consent of the Purchasing Agent, issue, sell, offer or contract to sell, grant any option for
the sale of, or otherwise dispose of, any substantially similar debt securities of each such Issuing Trust to the same potential retail investors (other than Notes to be offered and/or sold to or through the Purchasing Agent).
(o) Use of Proceeds. Global Funding shall cause each Issuing Trust to use the net proceeds received by it from the issuance and sale of the Notes in the manner specified in the Time of Sale Prospectus.
(p) Listing. Global Funding shall use reasonable efforts to obtain and maintain approval for the listing of at least one series of Notes of an Issuing Trust on a national securities exchange as defined in Section 18(a)(3)(B) of the 1933 Act as long as Notes of any Issuing Trust are outstanding.
(q) Outstanding Aggregate Principal Amount of Notes. Global Funding will promptly, upon request by an Agent notify such Agent of the aggregate principal amount of Notes from time to time outstanding under the Programs in their currency of denomination and (if so requested) expressed in United States dollars. For the purpose of determining the aggregate principal amount of Notes outstanding (i) the principal amount of Notes, denominated in a currency other than United States dollars shall be converted into United States dollars using the spot rate of exchange for the purchase of the relevant currency against payment of United States dollars being quoted by the Paying Agent or Calculation Agent, as applicable (each as defined in the Indenture), on the date on which the relevant Notes were initially offered, (ii) any Notes which provide for an amount less than the principal amount thereof to be due and payable upon redemption following an Event of Default as defined in the Indenture in respect of such Notes, shall have a principal amount equal to their redemption amount, (iii) any zero coupon (and any other Notes issued at a discount or premium) shall have a principal amount equal to their issue amount and (iv) the currency in which any Notes are payable, if different from the currency of their denomination, shall be disregarded.
(r) Blue Sky Qualifications. Global Funding shall endeavor, and shall cause the applicable Issuing Trust, to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agents shall reasonably request and to maintain such qualifications for as long as such Agents shall reasonably request.
(s) Depository Trust Company. Global Funding shall endeavor to assist the Agents in arranging to cause the Notes to be eligible for settlement through the facilities of the Depository Trust Company (“DTC”).
(t) Notice of Amendment to Global Funding Trust Agreement. Global Funding will give the Agents at least three (3) business days’ prior notice in writing of any proposed amendment to the Global Funding Trust Agreement and, except in accordance with the applicable provisions of the Global Funding Trust Agreement, not make or permit to become effective any amendment to Global Funding Trust Agreement which may adversely affect the interests of the Agents or any holder of any outstanding Notes without the consent of the affected party.
(u) Authorization to Act on Behalf of Global Funding. Global Funding will, from time to time, without request, deliver to the Agents a certificate as to the names and signatures of those persons authorized to act on behalf of Global Funding in relation to the Programs if such information has changed.
(v) Notice of Meeting. Global Funding will furnish to the Agents, at the same time as it is dispatched, a copy of notice of any meeting of the holders of Notes which is called to consider any matter which is material in the context of Global Funding.
(w) Notices Regarding Ratings. Global Funding will notify the Agents immediately, and confirm such notice in writing, of any change in the rating assigned by Moody’s or Standard & Poor’s to the Program or the Notes issued pursuant to the Registration Statement as applicable.
SECTION 5. Covenants of the Issuing Trusts.
Each Issuing Trust, only with respect to itself, covenants and agrees with each Agent as follows:
(a) Use of Proceeds. Such Issuing Trust shall use the net proceeds received by it from the issuance and sale of the Notes in the manner specified in the Time of Sale Prospectus.
(b) Blue Sky Qualifications. Such Issuing Trust shall endeavor to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agents shall reasonably request and to maintain such qualifications for as long as such Agents shall reasonably request.
(c) Depository Trust Company. Such Issuing Trust shall endeavor to assist the Agents in arranging to cause the Notes to be eligible for settlement through the facilities of DTC.
(d) Notice of Amendment to Indenture and Issuing Trust Agreement. Such Issuing Trust will give the Agents at least three (3) business days’ prior notice in writing of any proposed amendment to the relevant Indenture and relevant Issuing Trust Agreement and, except in accordance with the applicable provisions of the relevant Indenture and relevant Issuing Trust Agreement, not make or permit to become effective any amendment to such Indenture or such Issuing Trust Agreement which may adversely affect the interests of the Agents or any holder of any outstanding Notes without the consent of the affected party.
(e) Authorization to Act on Behalf of the Issuing Trust. Such Issuing Trust will, from time to time, without request, deliver to the Agents a certificate as to the names and signatures of those persons authorized to act on behalf of such Issuing Trust in relation to the Programs if such information has changed.
(f) Notice of Meeting. Such Issuing Trust will furnish to the Agents, at the same time as it is dispatched, a copy of notice of any meeting of the holders of Notes which is called to consider any matter which is material in the context of such Issuing Trust.
SECTION 6. Covenants of the Agents. Each Agent covenants with Global Funding:
(a) Delivery of Free Writing Prospectuses and Other Marketing Materials. Except as otherwise provided in the applicable Terms Agreement, such Agent will, prior to its first use, furnish Global Funding with a copy of each proposed free writing prospectus that is required to be filed pursuant to Rule 433(d) under the 1933 Act Regulations or is or will be part of the Time of Sale Prospectus and any other marketing materials (other than (x) any free writing prospectus that is not required to be filed or will not be part of the Time of Sale Prospectus or (y) any marketing material that complies with Rule 134 of the 1933 Act Regulations) relating to or to be used in connection with any offer or sale of the Notes, in each case prepared by or on behalf of such Agent and will not use any such free writing prospectus or other marketing materials to which Global Funding reasonably objects.
(b) Use of Free Writing Prospectuses and Other Marketing Materials. Such Agent may use a free writing prospectus or any other marketing materials prepared by or on behalf of such Agent, only if such free writing prospectus or such marketing materials complies in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(c) Distribution of Free Writing Prospectuses and Other Marketing Materials. Such Agent will not distribute any free writing prospectus or any other marketing materials (other than any marketing material that complies with Rule 134 of the 1933 Act Regulations) used or referred to by such Agent in a manner reasonably designed to lead to its broad unrestricted dissemination; provided that this covenant shall not apply to any free writing prospectus or such marketing materials forming part of the Time of Sale Prospectus or any free writing prospectus or such marketing materials prepared or approved by Global Funding for broad unrestricted dissemination.
SECTION 7. Conditions of Agent’s Obligations.
The obligations of one or more Agents to purchase Notes from an Issuing Trust as principal, the obligations of an Agent to solicit offers for the purchase of Notes as an agent of an Issuing Trust and the obligations of any purchasers of Notes sold through an Agent as an agent of an Issuing Trust, will be subject to the accuracy of the representations and warranties on the part of Global Funding and such Issuing Trust herein contained, and the accuracy of the representations and warranties on the part of the Company contained in the Representations and Indemnity Agreement entered into, as of even date herewith, by and among the Company and the Agents, as amended, restated or modified from time to time (the “Representations and Indemnity Agreement”) or contained in any certificate of an officer or trustee of Global Funding, Issuing Trust or the Company delivered pursuant to the provisions hereof and thereof, as applicable, to the performance and observance by Global Funding and such Issuing Trust of its covenants and other obligations hereunder or the performance and observance by the Company of its covenants and other obligations under the Representations and Indemnity Agreement, and to the following additional conditions precedent:
(a) Effectiveness of the Registration Statement. The Registration Statement has become effective under the 1933 Act and the 1934 Act, as applicable, and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933
Act or the 1934 Act, as applicable, and no proceedings for that purpose shall have been instituted or shall be pending or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Agents.
(b) Legal Opinions, Memoranda and Negative Assurance Letters. On the date hereof (or in the case of the negative assurance and opinion letters specified in clauses (ii), (viii) and (xi) below, prior to the Applicable Time for the first issuance of Notes following the date of this Agreement), the Agents shall have received the following legal opinions, memoranda and negative assurance letters dated as of the date hereof (or in the case of the negative assurance and opinion letters specified in clauses (ii), (viii) and (xi) below, as of the date of such negative assurance letter or opinion letter, as the case may be) and in form and substance satisfactory to the Agent:
(i) Opinion of Internal Counsel for the Company. The opinion of internal Counsel for the Company, to the effect set forth in Exhibit A hereto and to such further effect as the Agents may reasonably request;
(ii) Negative Assurance Letter of Company’s Internal Counsel or Other Legal Counsel for the Company. The negative assurance letter of the General Counsel of the Company or other legal counsel selected by the Company and reasonably satisfactory to the Agents to the effect set forth in Exhibit B hereto and to such further effect as the Agents may reasonably request;
(iii) Opinion of Counsel for the Company Concerning Certain Insolvency, Funding Agreement Authority and Funding Agreement Enforceability Matters. The opinion of Lord, Bissell & Brook or other legal counsel selected by the Company and reasonably satisfactory to the Agents to the effect set forth in Exhibit C hereto and to such further effect as the Agents may reasonably request;
(iv) Opinion of Counsel for the Company Concerning Certain Illinois Security Interest Matters. The opinion of Lord, Bissell & Brook, counsel for the Company, to the effect set forth in Exhibit D hereto and to such further effect as the Agents may reasonably request;
(v) Opinion of Counsel for the Company Concerning Certain Federal Securities and New York Matters. The opinion of LeBoeuf, Lamb, Greene & MacRae, LLP or other legal counsel selected by the Company and reasonably satisfactory to the Agents (“Company Counsel”) to the effect set forth in Exhibit E hereto and to such further effect as the Agents may reasonably request;
(vi) Opinion of Counsel for the Company Concerning Certain Tax Matters. The opinion of Company Counsel to the effect set forth in Exhibit F hereto and to such further effect as the Agents may reasonably request;
(vii) Memorandum of Counsel for the Company Concerning Certain Insurance Matters. The memorandum of Company Counsel to the effect set forth in Exhibit G hereto and to such further effect as the Agents may reasonably request;
(viii) Negative Assurance Letter of Counsel for the Agents. The negative assurance letter of Sidley Austin LLP or other legal counsel selected by the Agents and reasonably satisfactory to Global Funding and the Company, with respect to the matters set forth in Exhibit H hereto;
(ix) Opinion of Counsel for the Global Funding Delaware Trustee and the Relevant Issuing Trust Trustee. The opinion of Richards, Layton & Finger, counsel for the Global Funding Delaware Trustee, to the effect set forth in Exhibit I hereto and to such further effect as the Agents may reasonably request;
(x) Opinion of Counsel for Global Funding Administrator and Issuing Trust Administrator. The opinion of counsel for Global Funding Administrator, to the effect set forth in Exhibit J hereto and to such further effect as the Agents may reasonably request;
(xi) Opinion of Counsel for the Indenture Trustee. The opinion of counsel for the Indenture Trustee to the effect set forth in Exhibit K hereto and to such further effect as the Agents may reasonably request;
(xii) Opinion of Counsel for Global Funding and relevant Issuing Trust Concerning Certain Delaware Security Interest Matters. The opinion of Richards, Layton & Finger or other legal counsel selected by the Global Funding Delaware Trustee and reasonably satisfactory to the Agents, to the effect set forth in Exhibit L hereto and to such further effect as the Agents may reasonably request;
(xiii) Opinion of Counsel for Global Funding. The opinion of Richards, Layton & Finger or other legal counsel selected by the Global Funding Delaware Trustee and reasonably satisfactory to the Agents, to the effect set forth in Exhibit M hereto and to such further effect as the Agents may reasonably request; and
(xiv) Opinion of Counsel for the relevant Issuing Trust. The opinion of Richards, Layton & Finger or other legal counsel selected by the Global Funding Delaware Trustee and reasonably satisfactory to the Agents, to the effect set forth in Exhibit N hereto and to such further effect as the Agents may reasonably request.
Unless otherwise agreed among the relevant Issuing Trust and the Agents, each of the opinions set forth in Section 7(b) above, except for the letter set forth in Section 7(b)(viii) above, will be delivered as of each June 30th, commencing June 30, 2008 (each, an “Annual Delivery Requirement”), modified as necessary to relate to such time of delivery; provided, however, that the delivery of each opinion letter or memorandum as required by this Section 7(b) due to each Annual Delivery Requirement shall only be required to be delivered to each Agent prior to the pricing date for such Issuing Trust’s Notes issued immediately after each such Annual Delivery Requirement.
(c) Global Funding Certificate. Global Funding shall have furnished to the Agents a certificate of Global Funding, signed by Global Funding Administrator of Global Funding, dated the date of such certificate, to the effect that:
(i) the representations and warranties of Global Funding and, if applicable, the relevant Issuing Trust in this Agreement are true and correct on and as of the date of
such certificate with the same effect as if made on the date hereof and Global Funding and, if applicable, relevant Issuing Trust have complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the date of such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to Global Funding’s knowledge, threatened; and
(iii) since the date of the Prospectus there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus, and there has been no document required to be filed under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations which, upon filing, would be deemed to be incorporated by reference in the Prospectus which has not been so filed.
(d) Company Officer’s Certificate. The Company shall have furnished to the Agents a certificate of the Company, signed by either the Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Secretary, General Counsel or Treasurer of the Company, dated the date of such certificate, to the effect set forth in Section 4(c) of the Representations and Indemnity Agreement.
(e) Comfort Letter of Accountants to the Company. Prior to the first issuance of Notes under the Program, the Agents shall have received a letter from Deloitte & Touche LLP or its successor, as the independent registered public accounting firm to the Company (the “Accountants”), , and in form and substance satisfactory to the Agent, to the effect set forth in Exhibit O hereto.
(f) Additional Documents. On the date hereof, counsel to the Agents shall have been furnished with such documents and opinions as such counsel may require for the purpose of enabling such counsel to pass upon the issuance and sale of Notes as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and Global Funding in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the applicable Agent(s) by notice to Global Funding or relevant Issuing Trust at any time and any such termination shall be without liability of any party to any other party except as provided in Section 12 hereof and except that Sections 10, 11, 13, 16 and 17 hereof shall survive any such termination and remain in full force and effect.
SECTION 8. Delivery of and Payment for Notes Sold through an Agent as Agent.
Delivery of Notes sold through an Agent as an agent of an Issuing Trust shall be made by the Issuing Trust to such Agent for the account of any purchaser only against payment therefor in immediately available funds. In the event that a purchaser shall fail either to accept delivery of or
to make payment for a Note on the date fixed for settlement, such Agent shall promptly notify such Issuing Trust and deliver such Note to such Issuing Trust and, if such Agent has theretofore paid such Issuing Trust for such Note, such Issuing Trust will promptly return such funds to such Agent. If such failure has occurred for any reason other than default by such Agent in the performance of its obligations hereunder, such Issuing Trust will reimburse such Agent on an equitable basis for its loss of the use of the funds for the period such funds were credited to such Issuing Trust’s account.
SECTION 9. Additional Covenants of Global Funding and Issuing Trust.
Global Funding and each Issuing Trust (only with respect to itself) further covenants and agrees with each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by an Issuing Trust of an offer for the purchase of Notes (whether to one or more Agents as principal or through one or more Agents as agent), and each delivery of Notes (whether to one or more Agents as principal or through an Agent as agent) shall be deemed to be an affirmation that the representations and warranties of Global Funding and such Issuing Trust contained in any certificate theretofore delivered to such Agent pursuant hereto are true and correct at the time of such acceptance or sale, as the case may be, and an undertaking that such representations and warranties will be true and correct at the time of delivery to such Agent(s) or to the purchaser or its agent, as the case may be, of the Notes relating to such acceptance or sale, as the case may be, as though made at and as of each such time (it being understood that such representations and warranties shall relate to the Registration Statement and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. At (i) each time that the Registration Statement or Base Prospectus shall be amended or supplemented (other than by (A) an amendment or supplement providing solely for the determination of the variable terms of the Notes and (B) an amendment deemed to have occurred as a result of a periodic filing by the Company, Global Funding or any Issuing Trust under the 1934 Act or the 1934 Act Regulations, except any quarterly report of the Company on Form 10-Q or any annual report of the Company on Form 10-K (any such report, an “SEC Periodic Report”)), and (ii) each Settlement Date, Global Funding shall, and agrees to cause the Company to, furnish or cause to be furnished to the Agents, forthwith a certificate dated the date of filing with the Commission or the date of effectiveness of such amendment or supplement, as applicable, or the date of such sale, as the case may be, in form satisfactory to the Agents to the effect that the statements contained in the certificate referred to in Sections 7(c) and 7(d) hereof which were last furnished to the Agents are true and correct at the time of the filing or effectiveness of such amendment or supplement, as applicable, or the time of such sale, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Sections 7(c) and 7(d) hereof, modified as necessary to relate to the Registration Statement as amended and supplemented to the time of delivery of such certificate (it being understood that, in the case of clause (ii) above, any such certificate shall also include a certification that there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or of Global Funding or any Issuing Trust since the date of the agreement by such Agent to purchase Notes from such Issuing Trust as principal); provided, however, that any delivery of certificates as required by this Section 9(b) due to the filing of an SEC Periodic Report shall only be required to be delivered prior to the pricing date for such Issuing Trust’s Notes issued immediately after such SEC Periodic Report.
(c) Subsequent Delivery of Legal Opinions. As agreed to from time to time by the Agents and Global Funding, Global Funding shall furnish or cause to be furnished to the Agents legal opinions of internal counsel for the Company, counsel for the Company, counsel for the Global Funding Delaware Trustee and the Relevant Issuing Trust Trustee, counsel for Global Funding and the relevant Issuing Trust, counsel for the Indenture Trustee and counsel for Global Funding Administrator and the Issuing Trust Administrator, as applicable, dated the date agreed to by the Agents and Global Funding, in form and substance reasonably satisfactory to the Agents, of substantially the same tenor as the legal opinions referred to in Section 7(b)(i), Section 7(b)(iii), Section 7(b)(iv), Section 7(b)(v), Section 7(b)(vi), Section 7(b)(viii), Section 7(b)(ix), Section 7(b)(x), Section 7(b)(xi), Section 7(b)(xii), Section 7(b)(xiii) and Section 7(b)(xiv) hereof, as applicable, modified as necessary to relate to any report filed by the Company under Section 14 or Section 16(d) of the 1934 Act, to the time of delivery of such legal opinions or, in lieu of such legal opinions, counsel last furnishing such legal opinions to the Agents shall furnish such Agents with a letter substantially to the effect that the Agents may rely on such last legal opinions to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last legal opinions shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Negative Assurance Letter of Internal Counsel or Other Counsel for the Company. Each time that (i) the Registration Statement or Prospectus shall be amended or supplemented (other than by (A) an amendment or supplement providing solely for the determination of the variable terms of the Notes and (B) an amendment deemed to have occurred as a result of a periodic filing by the Company, Global Funding or any Issuing Trust under the 1934 Act or the 1934 Act Regulations, except any SEC Periodic Report), (ii) (if required in connection with the purchase of Notes from an Issuing Trust by one or more Agents as principal) an Issuing Trust sells Notes to one or more Agents as principal or (iii) an Issuing Trust sells Notes in a form not previously certified to the Agents by such Issuing Trust, Global Funding agrees to cause the Company to furnish or cause to be furnished forthwith to the Agents and to counsel to the Agents, a negative assurance letter of the General Counsel of the Company or other legal counsel for the Company selected by the Company and reasonably satisfactory to the Agents dated the date of filing with the Commission or the date of effectiveness of such amendment or supplement, as applicable, or the date of such sale, as the case may be, in form and substance satisfactory to the Agent, of the same tenor as the negative assurance letter referred to in Section 7(b)(ii) hereof, but modified, as necessary, to relate to the Registration Statement and the Base Prospectus, as amended and supplemented, to the time of delivery of such negative assurance letter or, in lieu of such negative assurance letter, counsel last furnishing such negative assurance letter to the Agents shall furnish such Agents with a letter substantially to the effect that the Agents may rely on such last negative assurance letter to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last negative assurance letter shall be deemed to relate to the Registration Statement and the Base
Prospectus, as amended and supplemented, to the time of delivery of such letter authorizing reliance); provided, however, that any negative assurance letter to be delivered pursuant to Section 9(d)(ii) in connection with the proposed issuance of a series of Notes will be further modified, as necessary, to also relate to the applicable Time of Sale Prospectus, and provided, further, that any delivery of a negative assurance letter as required by this Section 9(d) due to the filing of an SEC Periodic Report shall only be required to be delivered prior to the pricing date for an Issuing Trust’s Notes to be issued immediately after such SEC Periodic Report. Global Funding agrees to furnish or cause to be furnished forthwith to the Agents the negative assurance letter of Sidley Austin LLP, counsel to the Agents, or such other counsel reasonably satisfactory to the Agents, dated within ten (10) days of the date of the filing of the Company’s Form 10-K with the Commission, of the same tenor as the opinion referred to in Section 7(b)(viii) hereof, but modified, as necessary, to relate to the Registration Statement and Prospectus as amended and supplemented to the time of delivery of such negative assurance letter; provided, further, that any delivery of a negative assurance letter of Sidley Austin LLP as required by this Section 9(d) due to such filing of the Company’s Form 10-K with the Commission shall only be required to be delivered to each Agent prior to the pricing date for an Issuing Trust’s Notes to be issued immediately after such filing of the Company’s Form 10-K.
(e) Delivery of Legal Opinions or Reliance Letters Upon Issuance of Notes. Unless otherwise agreed to among the Company, Global Funding and the applicable Agent(s), Global Funding shall furnish or cause to be furnished to the applicable Agent(s) in connection with each issuance of Notes by an Issuing Trust (i) an opinion of internal counsel for the Company (or a reliance letter authorizing reliance by such Agent(s) on an opinion of like tenor) as to the validity and enforceability of the Funding Agreement(s) being issued in connection therewith and (ii) an opinion of counsel for the Company (or a reliance letter authorizing reliance by such Agent(s) on an opinion of like tenor) as to the validity and enforceability of the Funding Notes of Global Funding and of the Notes of the relevant Issuing Trust, in each case, dated the date of such issuance, and in form and substance reasonably satisfactory to the Agents.
(f) Subsequent Delivery of Comfort Letters. Each time that (i) the Registration Statement or the Base Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment deemed to have occurred as a result of a periodic filing by the Company, Global Funding or any Issuing Trust under the 1934 Act or the 1934 Act Regulations, except any SEC Periodic Report) or (ii) (if required in connection with the purchase of Notes from an Issuing Trust by one or more Agents as principal) an Issuing Trust sells Notes to one or more Agents as principal, such Issuing Trust agrees to cause the Company to cause the Accountants forthwith to furnish to the Agents a letter, dated the date of filing with the Commission or the date of effectiveness of such amendment or supplement, as applicable, or the date of such sale, as the case may be, in form satisfactory to the Agents, of the same tenor as the letter referred to in Section 7(e) hereof but modified to relate to the Registration Statement and Prospectus as amended and supplemented to the date of such letter; provided, however, that any comfort letter to be delivered pursuant to Section 9(f)(ii) in connection with the proposed issuance of a series of Notes will be further modified, if applicable, to also relate to the applicable Time of Sale Prospectus, and provided, further, that any delivery of any letter as required by this Section 9(f) due to the filing of an SEC Periodic Report shall only be required to be delivered prior to the pricing date for an Issuing Trust’s Notes issued immediately after such SEC Periodic Report.
SECTION 10. Indemnification.
(a) Indemnification of the Agent. With respect to any series of Notes, Global Funding and the relevant Issuing Trust (only as to itself in connection with the issuance of its Notes and without respect to any other Issuing Trust) agree to indemnify and hold harmless each applicable Agent, its directors and officers and each person, if any, who controls such Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of an untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, the applicable Time of Sale Prospectus, the applicable Time of Sale Disclosure Package or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 10(d) hereof) any such settlement is effected with the written consent of Global Funding and the relevant Issuing Trust; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by such Agent), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability, claim, damage or expense to the extent arising out of (i) an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to Global Funding by the applicable Agents concerning such Agents expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus, the applicable Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), (ii) any use of the Prospectus by the Agents to sell Notes or solicit offers for the purchase of Notes (x) after such time as Global Funding shall have provided written notice pursuant to Section 4(f) hereunder or the Company shall have provided written notice pursuant to Section 2(f) of the Representations and Indemnity Agreement, to the Agents to cease the sale of Notes and solicitation of offers for the purchase of Notes and (y) before such time as the relevant Issuing Trust shall have advised such Agent as the case may be, that such solicitation may be
resumed or (iii) a claim for indemnity made under the Representations and Indemnity Agreement, only to the extent such claim has previously been satisfied by the Company pursuant to the terms of the Representations and Indemnity Agreement.
(b) Indemnification of Global Funding and Issuing Trusts. With respect to any series of Notes, each Agent agrees, severally but not jointly, to indemnify and hold harmless Global Funding and each Issuing Trust, their administrator, directors, officers and trustees (if applicable) who signed the Registration Statement and each person, if any, who controls Global Funding and any Issuing Trust within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 10(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus, the applicable Time of Sale Prospectus, the applicable Time of Sale Disclosure Package or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to Global Funding by such Agent concerning such Agent expressly for use in the Registration Statement (or any amendment thereto) or Registration Statement Amendment (or any amendment thereto) or such preliminary prospectus, the applicable Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 10(a) hereof or Section 5(a) of the Representations and Indemnity Agreement, counsel to the indemnified parties shall be selected by the applicable Agent(s) and, in the case of parties indemnified pursuant to Section 10(b) hereof or Section 5(b) of the Representations and Indemnity Agreement, counsel to the indemnified shall be selected by Global Funding, the relevant Issuing Trust and the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties (collectively with any other indemnifying parties in connection with the Representations and Indemnity Agreement), whether such indemnity is claimed hereunder or under the Representations and Indemnity Agreement, be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party under this Agreement or the Representations and Indemnity Agreement shall, without the prior written consent of the indemnified parties under this Agreement and the Representations and Indemnity Agreement, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 10 or Section 11 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested in writing an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 10(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 11. Contribution.
If the indemnification provided for in Section 10 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by Global Funding and the relevant Issuing Trust, on one hand, and the applicable Agent(s), on the other hand, from the offering of the Notes that were the subject of the claim for indemnification or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of Global Funding and the relevant Issuing Trust, on one hand, and the applicable Agent(s), on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by Global Funding and the relevant Issuing Trust, on the one hand, and the applicable Agent(s), on the other hand, in connection with the offering of the Notes that were the subject of the claim for indemnification shall be deemed to be in the same respective proportions as the total net proceeds from the offering of such Notes (before deducting expenses) received by the relevant Issuing Trust and the total discount or commission received by the applicable Agent(s), as the case may be, bears to the aggregate initial offering price of such Notes.
The relative fault of Global Funding and the relevant Issuing Trust, on one hand, and the applicable Agent(s), on the other hand, shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by Global Funding and the relevant Issuing Trust, on one hand, or by the applicable Agent(s), on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if contribution pursuant to this Section 11 were determined by pro rata allocation (even if the Agents were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any applicable untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 11, (i) no Agent shall be required to contribute any amount in excess of the amount by which the total discount or commission received by such Agent in connection with the offering of the Notes that were the subject of the claim for indemnification exceeds the amount of any damages which such Agent has otherwise been required to pay by reason of any applicable untrue or alleged untrue statement or omission or alleged omission and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. In addition, in connection with an offering of Notes purchased from an Issuing Trust by two or more Agents as principal, the respective obligations of such Agents to contribute pursuant to this Section 11 are several, and not joint, in proportion to the aggregate principal amount of Notes that each such Agent has agreed to purchase from such Issuing Trust.
For purposes of this Section 11, each director, officer and person, if any, who controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Agent, and each director, officer and trustee (if applicable) of Global Funding and relevant Issuing Trust, and each person, if any, who controls Global Funding and the relevant Issuing Trust within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as Global Funding and relevant Issuing Trust.
SECTION 12. Payment of Expenses.
Global Funding will pay all expenses incident to the performance of the obligations of the Company, Global Funding and the relevant Issuing Trust under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration Statement as originally filed and all amendments thereto and any preliminary prospectus, free writing prospectus, Time of Sale Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements thereto;
(b) The preparation, printing and delivery of Global Funding Program Documents and the Issuing Trust Program Documents;
(c) The preparation, issuance and delivery of the Notes, including any fees and expenses relating to the eligibility and issuance of Notes in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Notes;
(d) The fees and disbursements of the Company’s, Global Funding’s and each Issuing Trust’s accountants, counsel and other advisors or agents (including any calculation agent or exchange rate agent) and of the Global Funding Delaware Trustee, Relevant Issuing Trust Trustee, Global Funding Administrator, Issuing Trust Administrator, Indenture Trustee and Funding Note Indenture Trustee and their counsel;
(e) The reasonable fees and disbursements of counsel to the Agents incurred in connection with the maintenance of the Programs and, unless otherwise agreed, incurred from time to time in connection with the transactions contemplated hereby;
(f) The fees charged by the nationally recognized statistical rating organizations for the rating of the Programs and the Notes;
(g) The fees and expenses incurred in connection with any listing of Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and disbursements of counsel to the Agents in connection with, the review, if any, by the National Association of Securities Dealers, Inc. (the “NASD”); and
(i) Any reasonable advertising and other out-of-pocket expenses of the Agents incurred with the approval of the Company, Global Funding and the Issuing Trust.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, in certificates of the officers of Global Funding Administrator, the Issuing Trust Administrator, the Global Funding Delaware Trustee and the Relevant Issuing Trust Trustee submitted pursuant hereto or thereto shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Agents or any controlling person of the Agents, or by or on behalf of the Company, Global Funding or the Issuing Trust, and shall survive each delivery of and payment for the Notes.
SECTION 14. Termination.
(a) Termination of this Agreement. This Agreement (excluding any agreement by one or more Agents to purchase Notes from an Issuing Trust as principal) may be terminated for any reason, at any time by (i) Global Funding as to all the Agents or one or more but less than all the Agents, or (ii) an Agent as to itself, upon the giving of thirty (30) days’ prior written notice of such termination to the other parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The applicable Agent(s) may terminate any agreement by such Agent(s) to purchase Notes from an Issuing Trust as principal, immediately upon notice to such Issuing Trust, at any time on or prior to the
Settlement Date relating thereto, if (i) there has been, since the date of such agreement or since the respective dates as of which information is given in the Time of Sale Prospectus (exclusive of any supplement thereto), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, or of Global Funding or such Issuing Trust, whether or not arising in the ordinary course of business, or (ii) there has occurred any material adverse change in the financial markets in the United States or any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development or event involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of such Agent(s), impracticable or inadvisable to market such Notes or enforce contracts for the sale of such Notes, (iii) trading in any securities of The Allstate Corporation, a publicly owned holding company incorporated under the laws of the State of Delaware (the “Corporation”), Allstate Insurance Company, a stock property-liability insurance company incorporated under the laws of the State of Illinois (“AIC”), the Company, Global Funding or such Issuing Trust has been suspended or materially limited by the Commission or a national securities exchange, or if trading generally on the New York Stock Exchange or the American Stock Exchange or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by either of said exchanges or by such system or by order of the Commission, the NASD or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) a banking moratorium has been declared by either Federal or New York authorities or by the relevant authorities in the country or countries of origin of any foreign or composite currency in which such Notes are denominated or payable or (v) the rating assigned by any nationally recognized statistical rating organization to the Programs or any other debt securities (including the Notes) of any Issuing Trust or the financial strength of the Company as of the date of such agreement shall have been lowered or withdrawn since that date or if any such rating organization shall have publicly announced that it has under surveillance or review its rating, with possible negative implications, of the Programs or any such debt securities (including the Notes) of any Issuing Trust or the financial strength of the Company.
(c) General. In the event of any such termination, neither party will have any liability to the other party hereto, except that (i) the Agent(s) shall be entitled to any commissions earned in accordance with the third paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own any Notes purchased by it from an Issuing Trust as principal or (b) an offer to purchase any of the Notes has been accepted by an Issuing Trust but the time of delivery to the purchaser or his agent of such Notes relating thereto has not occurred, the covenants set forth in Sections 4, 5 and 9 hereof shall remain in effect until such Notes are so resold or delivered, as the case may be, and (iii) the provisions of Section 12 hereof, the indemnity and contribution agreements set forth in Sections 10 and 11 hereof, and the provisions of Sections 13, 16 and 17 hereof shall remain in effect.
SECTION 15. Notices.
Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any such notice shall be effective when received at the address specified below.
If to Global Funding or any Issuing Trust:
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
6525 Morrison Boulevard
Suite 318
Charlotte, NC 28211
Attention: President
Telecopy No.: (704) 365-1632
With a copy to the Company at the address set forth below.
If to the Agents:
To each Agent at the address specified in Schedule 1.
With a copy to the Company at the address set forth below.
Address of the Company:
Allstate Life Insurance Company
3100 Sanders Road
Northbrook, IL 60062
Attention: Assistant Vice President, Institutional Markets
Telecopy No.: (847) 326-5048
or at such other address as such party or the Company may designate from time to time by notice duly given in accordance with the terms of this Section 15.
SECTION 16. Parties.
This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons, officers and directors referred to in Sections 10 and 11 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto and their respective successors, and said controlling persons, officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes shall be deemed to be a successor by reason merely of such purchase.
SECTION 17. GOVERNING LAW; FORUM.
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE TRUST AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK.
SECTION 18. Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 19. Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts hereof shall constitute a single instrument.
SECTION 20. Amendments.
(a) This Agreement may be amended or supplemented if, but only if, such amendment or supplement is in writing and is signed by Global Funding and the Agents. Global Funding and any Issuing Trust may from time to time nominate any institution as a new Agent hereunder either in respect of the Programs generally or in relation to a particular Issuing Trust’s Notes only; in which event, upon confirmation by such institution of an initial purchaser accession letter (the “Agent Accession Letter”) in the terms or substantially in the form of Exhibit P, such institution shall become a party hereto, subject as provided below, with all the authority, rights, powers, duties and obligations of an Agent as if originally named as an Agent hereunder; provided further that, in the case of an institution which has become an Agent in relation to a particular Issuing Trust’s Notes, following the issue of the relevant Notes, the relevant new Agent shall have no further authority rights, powers, duties or obligations except such as may have accrued or been incurred prior to, or in connection with, the issue of such Issuing Trust’s Notes. Any Agent that executes a counterpart to this Agreement shall simultaneously execute a counterpart to the Representations and Indemnity Agreement.
(b) The parties hereto acknowledge and agree that a copy of each amendment to this Agreement effected pursuant to this Section 20 shall be provided promptly by Global Funding to the following Ratings Agencies at the following addresses:
| Standard & Poor’s Ratings Services, |
| a division of The McGraw-Hill Companies, Inc. |
| Attention: Capital Markets |
| Facsimile: (212) 438-5215 |
| Moody’s Investors Service, Inc. |
| Attention: Moody’s Investors Service Life Insurance Group |
| Facsimile: (212) 553-4805 |
or such other addresses previously furnished in writing to Global Funding by any Rating Agency in the future; provided, however, that any failure by Global Funding to deliver copies of any amendment required to be delivered pursuant to this Section 20 shall not constitute a breach of or an event of default under this Agreement. The term “Rating Agency”, for purposes of this Section 20, means any of Standard & Poor’s, Moody’s or any other “nationally recognized statistical rating organization” (as such term is defined in Rule 436(g)(2) of the 1933 Act Regulations).
SECTION 21. Separate Nature of Each Issuing Trust.
The Agents agree and acknowledge that, as a separate and distinct special purpose statutory trusts, the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Issuing Trust, including such Issuing Trust’s obligations under this Agreement and the applicable Terms Agreement, will be enforceable only against such Issuing Trust and not against any other Issuing Trust.
SECTION 22. Stabilization.
The Agent(s) may, to the extent permitted by applicable laws, over-allot and effect transactions in any over-the-counter market or otherwise in connection with the distribution of the Notes with a view to supporting the market price of Notes at levels higher than those that might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time. In such circumstances, as between an Issuing Trust, on one hand, and one or more Agents, on the other hand, such Agent(s) shall act as principal, and any loss resulting from stabilization shall be borne, and any profit arising therefrom and any sum received by such Agent(s) shall be beneficially retained by such Agent(s), as the case may be, for such Agents’ own account.
SECTION 23. Liability of Delaware Trustee. It is expressly understood and agreed by the parties that (a) this document is executed and delivered by Wilmington Trust Company, not individually or personally, but solely as Delaware Trustee, in the exercise of the powers and authority conferred and vested in it, pursuant to the Global Funding Trust Agreement and the relevant Issuing Trust Agreements, (b) each of the representations, undertakings and agreements herein made on the part of Global Funding and any Issuing Trust is made and intended not as personal representations, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose for binding only Global Funding and the relevant Issuing Trust, as applicable, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, and (d) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of Global Funding or any Issuing Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Global Funding or any Issuing Trust under this Agreement or any other related documents.
***SIGNATURE PAGES FOLLOW***
If the foregoing is in accordance with the Agents’ understanding of our agreement, please sign and return to Global Funding a counterpart hereof, whereupon this Agreement, along with all counterparts, will become a binding agreement by and between the Agents and Global Funding in accordance with its terms.
| | Very truly yours, |
| | ALLSTATE LIFE GLOBAL FUNDING |
| | By Wilmington Trust Company, not in its individual capacity but solely as Delaware Trustee |
| | By: | /s/ Roseline K. Maney | |
| | | Name: Roseline K. Maney
Title: Vice President | |
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED |
By: | /s/ Diane Kenna | |
| Authorized Signatory | |
A.G. EDWARDS & SONS, INC. |
By: | /s/ Michael S. Burd | |
| Authorized Signatory | |
BANC OF AMERICA SECURITIES LLC |
By: | /s/ Lily Chang | |
| Authorized Signatory | |
*Signature Page to Distribution Agreement, Part 1 of 4*
BARCLAYS CAPITAL INC. |
By: | /s/ Pamela Kendall | |
| Authorized Signatory | |
BEAR, STEARNS & CO. INC. |
By: | /s/ Chris O'Connor | |
| Authorized Signatory | |
CITIGROUP GLOBAL MARKETS INC. |
By: | /s/ Jack D. Mcspadden, Jr. | |
| Authorized Signatory | |
CREDIT SUISSE SECURITIES (USA) LLC |
By: | /s/ Helena Willner | |
| Authorized Signatory | |
DEUTSCHE BANK SECURITIES INC. |
By: | /s/ Paul Pulco | |
| Authorized Signatory | |
| | |
By: | /s/ Mary Hardgrove | |
| Authorized Signatory | |
*Signature Page to Distribution Agreement, Part 2 of 4*
GOLDMAN SACHS & CO. |
By: | Goldman, Sachs & Co. | |
| Authorized Signatory | |
GREENWICH CAPITAL MARKETS, INC. |
By: | /s/ Robert B. Fahrbach | |
| Authorized Signatory | |
J.P. MORGAN SECURITIES INC. |
By: | /s/ Robert Bottamedi | |
| Authorized Signatory | |
LEHMAN BROTHERS INC. |
By: | /s/ Martin Goldberg | |
| Authorized Signatory | |
MORGAN STANLEY & CO. INCORPORATED |
By: | /s/ Yurij Slyz | |
| Authorized Signatory | |
UBS SECURITIES LLC |
By: | /s/ Demetrios Tsapralis | |
| Authorized Signatory | |
| | |
By: | /s/ John Modin | |
| Authorized Signatory | |
*Signature Page to Distribution Agreement, Part 3 of 4*
WACHOVIA CAPITAL MARKETS, LLC |
By: | /s/ Jeremy Schwartz | |
| Authorized Signatory | |
*Signature Page to Distribution Agreement, Part 4 of 4*
Index of Exhibits and Schedules
Exhibits
Exhibit A – | Opinion of Internal Counsel for the Company |
Exhibit B – | Negative Assurance Letter of Counsel for the Company |
Exhibit C – | Opinion of Counsel for the Company Concerning Certain Insolvency, Funding Agreement Authority and Funding Agreement Enforceability Matters |
Exhibit D – | Opinion of Counsel for the Company Concerning Certain Illinois Security Interest Matters |
Exhibit E – | Opinion of Counsel for the Company Concerning Certain Federal Securities and New York Matters |
Exhibit F – | Opinion of Counsel for the Company Concerning Certain Tax Matters |
Exhibit G – | Memorandum of Counsel for the Company Concerning Certain Insurance Matters |
Exhibit H – | Negative Assurance Letter of Counsel for the Agents |
Exhibit I – | Opinion of Counsel for the Global Funding Delaware Trustee and the Relevant Issuing Trust Trustee |
Exhibit J – | Opinion of Counsel for Global Funding Administrator and the Issuing Trust Administrator |
Exhibit K – | Opinion of Counsel for the Indenture Trustee |
Exhibit L – | Opinion of Counsel for Global Funding and the relevant Issuing Trust Concerning Certain Delaware Security Interest Matters |
Exhibit M – | Opinion of Counsel for Global Funding |
Exhibit N – | Opinion of Counsel for the relevant Issuing Trust |
Exhibit O – | Form of Comfort Letter of Deloitte & Touche LLP, Accountants to the Company |
Exhibit P – | Form of Agent Accession Letter |
Schedules
Schedule 1 – | List of Agents |
Schedule 2 – | Commission/Discount Schedule for Retail Sales |
Schedule 3 – | Commission/Discount Schedule for Institutional Sales |
i
Exhibit A – Opinion of Internal Counsel for the Company
[To Be Attached]
A-1
Exhibit B – Negative Assurance Letter of Counsel for the Company
[To Be Attached]
B-1
Exhibit C – Opinion of Counsel for the Company Concerning Certain Insolvency, Funding
Agreement Authority and Funding Agreement Enforceability Matters
[To Be Attached]
C-1
Exhibit D – Opinion of Counsel for the Company Concerning Certain Illinois Security Interest Matters
[To Be Attached]
D-1
Exhibit E – Opinion of Counsel for the Company Concerning Certain Federal Securities and New York Matters
[To Be Attached]
E-1
Exhibit F – Opinion of Counsel for the Company Concerning Certain Tax Matters
[To Be Attached]
F-1
Exhibit G – Memorandum of Counsel for the Company Concerning Certain
Insurance Matters
[To Be Attached]
G-1
Exhibit H – Negative Assurance Letter of Counsel for the Agents
[To Be Attached]
H-1
Exhibit I – Opinion of Counsel for the Global Funding Delaware Trustee and the Relevant Issuing Trust Trustee
[To Be Attached]
I-1
Exhibit J – Opinion of Counsel for Global Funding Administrator and the Issuing
Trust Administrator
[To Be Attached]
J-1
Exhibit K – Opinion of Counsel for the Indenture Trustee
[To Be Attached]
K-1
Exhibit L – Opinion of Counsel for Global Funding and the relevant Issuing Trust Concerning Certain Delaware Security Interest Matters
[To Be Attached]
L-1
Exhibit M – Opinion of Counsel for Global Funding
[To Be Attached]
M-1
Exhibit N – Opinion of Counsel for the relevant Issuing Trust
[To Be Attached]
N-1
Exhibit O – Form of Comfort Letter of Deloitte & Touche LLP,
Accountants to the Company
[To Be Attached]
O-1
Exhibit P – Form of Agent Accession Letter
[Name of new Agent]
[Address]
Ladies and Gentlemen:
We refer to the Distribution Agreement, dated [__________], 2007, entered into in respect of the Secured Medium-Term Note Program (such agreement, as amended, restated or modified from time to time, the “Distribution Agreement”) among ourselves and the Agents from time to time party thereto, and have the pleasure of inviting you to become an Agent [but only in respect of [specify Issuing Trust’s Notes (the “Notes”)]]1 subject to and in accordance with the terms of the Distribution Agreement, a copy of which has been supplied to you by us. In addition, we enclose letters from counsel to [__________] entitling you to rely on the original letters referred to in Section 7(b) to the Distribution Agreement, as such letters may have been amended or supplemented, together with copies of such original, amended or supplemented letters. Please return to us a copy of this letter signed by an authorized signatory whereupon you will become an Agent for the purposes of the Distribution Agreement, with all the authority, rights, powers, duties and obligations of an Agent under the Distribution Agreement [except that, following the issue of the Notes, you shall have no further authority, rights, powers, duties or obligations except such as may have accrued or been incurred prior to, or in connection with, the issue of the Notes].2
This letter is governed by, and shall be construed in accordance with, the laws of the State of New York.
Yours faithfully,
| | ALLSTATE LIFE GLOBAL FUNDING |
| | By: | |
| | | Name: Title: |
_________________________
1 Insert where the new Agent is being appointed only in relation to a particular Issuing Trust.
2 Insert where the new Agent is being appointed only in relation to a particular Issuing Trust.
P-1
CONFIRMATION
We hereby accept the appointment as an Agent and accept all of the duties and obligations under, and the terms and conditions of, the Distribution Agreement upon the terms of this letter and affirm all representations, warranties and covenants contained therein as of the applicable date [but only in respect of [specify Issuing Trust’s Notes]].3
We confirm that we are in receipt of all the documents which we have requested and have found them to be satisfactory.
For the purposes of the Distribution Agreement, our communications details are as set out below.
[NEW AGENT]
Date: [__________]
Address: [__________]
Facsimile: [__________]
Attention: [__________]
Copies to:
The Indenture Trustee and the existing Paying Agent
[All existing Agents who have been appointed in respect of the Programs generally]4
_________________________
3 Insert where the new Agent is being appointed only in relation to a particular Issuing Trust.
4 | Insert where the incoming Agent is being appointed in respect of the Program generally. |
P-2
Schedule 1
Merrill Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
New York, NY 10080
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
Saint Louis, MO 63103
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Barclays Capital Inc.
200 Park Avenue
New York, NY 10166
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, NY 10174
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010
Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, CT 06830
J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Schedule 1-1
Lehman Brothers Inc.
745 7th Avenue
New York, NY 10019
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
UBS Securities LLC
677 Washington Blvd.
Stamford, CT 06901
Wachovia Capital Markets, LLC
301 South College Street
Charlotte, North Carolina 28288
Schedule 1-2
Schedule 2
MATURITY RANGES | PRINCIPAL AMOUNT |
From 9 months to less than 1.5 years | .125% |
From 1.5 years to less than 2 years | .200 |
From 2 years to less than 3 years | .400 |
From 3 years to less than 4 years | .625 |
From 4 years to less than 5 years | .750 |
From 5 years to less than 6 years | 1.000 |
From 6 years to less than 7 years | 1.100 |
From 7 years to less than 8 years | 1.200 |
From 8 years to less than 9 years | 1.300 |
From 9 years to less than 10 years | 1.400 |
From 10 years to less than 11 years | 1.500 |
From 11 years to less than 12 years | 1.600 |
From 12 years to less than 15 years | 1.750 |
From 15 years to less than 20 years | 2.000 |
From 20 years to 30 years | 2.500 |
Schedule 2-1
Schedule 3
MATURITY RANGES | PRINCIPAL AMOUNT |
From 9 months to less than 2 years | .150% |
From 2 years to less than 3 years | .200 |
From 3 years to less than 4 years | .250 |
From 4 years to less than 5 years | .300 |
From 5 years to less than 7 years | .350 |
From 7 years to less than 10 years | .400 |
From 10 years to less than 12 years | .450 |
From 12 years to less than 15 years | .475 |
From 15 years to less than 20 years | .500 |
From 20 years to 30 years | .875 |
EXHIBIT F
CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
ALLSTATE LIFE GLOBAL FUNDING TRUST 2008-2
THIS Certificate of Trust of Allstate Life Global Funding Trust 2008-2 (the “Trust”), is being duly executed and filed by the undersigned trustees to form a statutory trust under the Delaware Statutory Trust Act (12 Del. Code, § 3801 et seq.) (the “Act”).
1. Name. The name of the statutory trust formed hereby is Allstate Life Global Funding Trust 2008-2.
2. Delaware Trustee. The name and business address of the trustee of the Trust with its principal place of business in the State of Delaware is Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware, 19890-0001, Attention: Corporate Trust Administration.
3. Effective Time. This Certificate of Trust will be effective upon its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the Trust as of the date of filing of this Certificate of Trust, have executed this Certificate of Trust in accordance with § 3811(a)(1) of the Act.
| | Wilmington Trust Company, not in its
individual capacity but solely as Delaware Trustee |
| | By: |
/s/ Roseline K. Maney
|
| | | Name: Roseline K. Maney
Title: Vice President |
EXHIBIT G
STANDARD INDENTURE TERMS
Allstate Life(R) is a registered service mark of Allstate Insurance Company.
CoreNotes(R) is a registered service mark of Merrill Lynch & Co., Inc.
SECTION 1.1 | Certain Terms Defined............................................................1 |
SECTION 1.2 | Interpretation..................................................................12 |
SECTION 2.1 | Amount Unlimited................................................................12 |
SECTION 2.2 | Status of Notes.................................................................13 |
SECTION 2.3 | Forms Generally.................................................................13 |
SECTION 2.4 | Currency; Denominations.........................................................13 |
SECTION 2.5 | Execution, Authentication, Delivery and Date....................................14 |
SECTION 2.6 | Registration, Transfer and Exchange.............................................15 |
SECTION 2.7 | Mutilated, Destroyed, Lost or Stolen Note Certificates..........................17 |
SECTION 2.8 | Interest Record Dates...........................................................18 |
SECTION 2.9 | Cancellation....................................................................19 |
SECTION 2.10 | Global Securities...............................................................19 |
SECTION 2.11 | Withholding Tax.................................................................21 |
SECTION 2.12 | Tax Treatment...................................................................21 |
REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS
SECTION 3.1 | Redemption of Notes.............................................................22 |
SECTION 3.2 | Repayment at the Option of the Holder...........................................26 |
SECTION 3.3 | Repurchase of Notes.............................................................26 |
SECTION 3.4 | Sinking Funds...................................................................27 |
PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS
SECTION 4.1 | Payment of Principal and Interest...............................................27 |
SECTION 4.2 | Collection Account..............................................................31 |
SECTION 4.3 | Offices for Payments, Etc.......................................................31 |
SECTION 4.4 | Appointment to Fill a Vacancy in Office of Indenture Trustee....................32 |
SECTION 4.5 | Paying Agents...................................................................32 |
SECTION 4.6 | Calculation Agent...............................................................36 |
SECTION 4.7 | Certificate to Indenture Trustee................................................39 |
SECTION 4.8 | Negative Covenants..............................................................39 |
SECTION 4.9 | Non-Petition....................................................................39 |
SECTION 4.10 | Additional Amounts..............................................................39 |
REMEDIES OF THE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default...........41
SECTION 5.2 | Collection of Indebtedness by Indenture Trustee; Indenture |
| Trustee May Prove Debt..........................................................45 |
SECTION 5.3 | Application of Proceeds.........................................................47 |
SECTION 5.4 | Suits for Enforcement...........................................................49 |
SECTION 5.5 | Restoration of Rights on Abandonment of Proceedings.............................49 |
SECTION 5.6 | Limitations on Suits by Holders.................................................49 |
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.........50
SECTION 5.8 | Control by the Holders..........................................................51 |
SECTION 5.9 | Waiver of Past Defaults.........................................................51 |
SECTION 6.1 | Certain Duties and Responsibilities.............................................52 |
SECTION 6.2 | Certain Rights of the Indenture Trustee.........................................53 |
SECTION 6.3 | Not Responsible for Recitals, Validity of the Notes or |
| Application of the Proceeds.....................................................55 |
SECTION 6.4 | May Hold Notes; Collections, Etc................................................55 |
SECTION 6.5 | Funds Held By Indenture Trustee.................................................55 |
SECTION 6.6 | Compensation; Reimbursement; Indemnification....................................55 |
SECTION 6.7 | Corporate Trustee Required; Eligibility.........................................56 |
SECTION 6.8 | Resignation and Removal; Appointment of Successor Trustee.......................57 |
SECTION 6.9 | Acceptance of Appointment by Successor Trustee..................................59 |
SECTION 6.10 | Merger, Conversion, Consolidation or Succession to Business |
| of Indenture Trustee............................................................60 |
SECTION 6.11 | Limitations on Rights of Indenture Trustee as Creditor..........................61 |
| HOLDERS' LISTS AND REPORTS BY INDENTURE TRUSTEE AND TRUST |
SECTION 7.1 | Trust To Furnish Indenture Trustee Names And Addresses Of Holders...............61 |
SECTION 7.2 | Preservation of Information; Communication to Holders...........................61 |
SECTION 7.3 | Reports by Indenture Trustee....................................................61 |
SECTION 7.4 | Reports and Opinions by Trust...................................................62 |
SECTION 7.5 | Reports on Assessment of Compliance with Servicing Criteria |
| and Compliance Statements; Attestation Reports of Registered |
| Public Accounting Firm..........................................................64 |
SECTION 8.1 | Evidence of Action Taken by a Holder............................................64 |
SECTION 8.2 | Proof of Execution of Instruments and of Holding of Notes.......................65 |
SECTION 8.3 | Voting Record Date..............................................................65 |
SECTION 8.4 | Persons Deemed to be Owners.....................................................65 |
SECTION 8.5 | Notes Owned by Trust Deemed Not Outstanding.....................................66 |
SECTION 8.6 | Right of Revocation of Action Taken; Binding Effect of Actions |
| by Holders......................................................................66 |
SECTION 9.1 | Supplemental Indentures Without Consent of Holders..............................67 |
SECTION 9.2 | Supplemental Indentures With Consent of Holders.................................68 |
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indentures..........69
SECTION 9.4 | Documents to Be Given to Indenture Trustee......................................70 |
SECTION 9.5 | Notation on Note Certificates in Respect of Supplemental Indentures.............70 |
SECTION 9.6 | Amendment to Funding Agreements.................................................70 |
| CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
SECTION 10.1 | Trust May Merge, Consolidate, Sell Or Convey Property |
| Under Certain Circumstances.....................................................72 |
| SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS |
SECTION 11.1 | Satisfaction and Discharge of Indenture.........................................72 |
SECTION 11.2 | Application by Indenture Trustee of Funds Deposited for |
| Payment of Notes................................................................73 |
SECTION 11.3 | Repayment of Funds Held by Paying Agent.........................................73 |
SECTION 11.4 | Return of Funds Held by Indenture Trustee and Paying Agent......................74 |
| MEETINGS OF HOLDERS OF NOTES |
SECTION 12.1 | Purposes for Which Meetings May Be Called.......................................74 |
SECTION 12.2 | Call, Notice and Place of Meetings..............................................74 |
SECTION 12.3 | Persons Entitled to Vote at Meetings............................................75 |
SECTION 12.4 | Quorum; Action..................................................................75 |
SECTION 12.5 | Determination of Voting Rights; Conduct of Adjournment of |
| Meetings........................................................................76 |
SECTION 12.6 | Counting Votes and Recording Action of Meetings.................................77 |
SECTION 13.1 | No Recourse.....................................................................78 |
SECTION 13.2 | Provisions of Indenture for the Sole Benefit of Parties |
| and Holders.....................................................................78 |
SECTION 13.3 | Successors and Assigns of Trust Bound by Indenture..............................78 |
SECTION 13.4 | Notices and Demands on Trust, Indenture Trustee and any |
| Holder..........................................................................79 |
SECTION 13.5 | Trust Certificates and Opinions of Counsel; Statements to be |
| Contained Therein...............................................................80 |
SECTION 13.6 | Governing Law...................................................................82 |
SECTION 13.7 | Counterparts....................................................................82 |
SECTION 13.8 | Trust Indenture Act to Control..................................................82 |
SECTION 13.9 | Judgment Currency...............................................................82 |
SECTION 14.1 | Security Interest...............................................................83 |
SECTION 14.2 | Representations and Warranties..................................................84 |
SECTION 14.3 | Additional Representations and Warranties.......................................85 |
SECTION 14.4 | Further Assurances; Covenants...................................................86 |
SECTION 14.5 | General Authority...............................................................88 |
SECTION 14.6 | Remedies Upon Event of Default..................................................88 |
SECTION 14.7 | Limitation on Duties of Indenture Trustee with Respect to |
| Collateral......................................................................89 |
SECTION 14.8 | Concerning the Indenture Trustee................................................89 |
SECTION 14.9 | Termination of Security Interest................................................90 |
EXHIBIT A-1 | Form of Global Security for Secured Medium Term Notes |
EXHIBIT A-2 | Form of Definitive Security for Secured Medium Term Notes |
EXHIBIT A-3 | Form of Global Security for Allstate Life(R) CoreNotes(R) Program | A-3-1 |
EXHIBIT A-4 | Form of Definitive Security for Allstate Life(R) CoreNotes(R) |
EXHIBIT B | Form of Certificate of Authentication | B-1 |
EXHIBIT C | Form of Indenture Trustee Report Pursuant to Section 7.3(f) | C-1 |
Trust Indenture Act Section | Standard Indenture Terms Section |
ss.310(a)(1)..............................................................................................6.7
| (a)(2).............................................................................................6.7 |
| (b)................................................................................................6.8 |
ss.311(a)................................................................................................6.11
ss.312(a) ................................................................................................7.1
| (b)................................................................................................7.2 |
| (c)................................................................................................7.2 |
ss.313(a).................................................................................................7.3(b)
| (b)................................................................................................7.3(c) |
| (c)................................................................................................7.3(d) |
| (d)................................................................................................7.3(d) |
ss.314(a) ................................................................................................7.4
| (b)................................................................................................7.4(d) |
| (c)(1) ...........................................................................................13.5(a) |
| (c)(2) ...........................................................................................13.5(a) |
| (e)...............................................................................................13.5(b) |
| (f)...............................................................................................13.5(a) |
ss.315(c) ................................................................................................6.1(b)
ss.316(a) (last sentence) ................................................................................8.5
| (a)(1)(A)..........................................................................................5.8 |
| (a)(1)(B)..........................................................................................5.9 |
| (b)................................................................................................5.6 |
ss.317(a)(1)..............................................................................................5.2(c)
| (a)(2) ............................................................................................5.2(c) |
| (b)................................................................................................4.5(a) |
ss.318(a) ...............................................................................................13.8
| (c) ..............................................................................................13.8 |
| This reconciliation table shall not be deemed to be part of |
the Indenture for any purpose.
| Attention should also be directed to Section 318(c) of the |
Trust Indenture Act, which provides that certain provisions of Sections 310 to
and including 317 are a part of and govern every qualified indenture, whether or
not physically contained in the Indenture.
| This document constitutes the Standard Indenture Terms, which will be |
incorporated by reference in, and form a part of, the Indenture (as defined
below), by and among the Trust (as defined below) and the Indenture Trustee,
Calculation Agent, Exchange Rate Agent, Paying Agent, Registrar and Transfer
Agent (as defined below).
| These Standard Indenture Terms shall be of no force and effect unless and |
until incorporated by reference into, and then only to the extent not modified
by, such Indenture.
| The following Standard Indenture Terms shall govern the Notes subject to |
contrary terms and provisions | expressly adopted in the Indenture, | any |
Supplemental Indenture or the Notes, which contrary terms shall be controlling.
| SECTION 1.1 Certain Terms Defined. The following terms shall have the |
meanings specified in this Section for all purposes of the Indenture and the
Notes, unless otherwise expressly provided. All other terms used in the
Indenture which are defined in the Trust Indenture Act or which are by reference
therein defined in the Securities Act shall have the meanings (except as
otherwise expressly provided in the Indenture or unless the context otherwise
clearly requires) assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the Indenture as originally executed.
| "Additional Amounts" means any additional amounts which may be required by |
the Notes, under circumstances specified in a Note Certificate or Supplemental
Indenture, to be paid by the Trust in respect of certain taxes, assessments or
other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
| "Administrative Services Agreement" means that certain administrative |
services agreement included in Part B of the Series Instrument, by and between
the Trust and the Administrator, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
| "Administrator" means AMACAR Pacific Corp., a Delaware corporation, in its |
capacity as the sole administrator of the Trust, or another entity specified in
the Indenture as the Administrator, and, in each case, its permitted successors
and assigns.
| "Affiliate" means, as applied to any Person, any other Person directly or |
indirectly controlling, controlled by, or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"),
as applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
| "Agents" has the meaning ascribed in the Distribution Agreement. |
| "Amended and Restated Administrative Services Agreement" means that certain |
Amended and Restated Administrative Services Agreement dated as of -, 2006,
between AMACAR Pacific Corp. and Global Funding, as the same may be amended,
supplemented, modified, restated or replaced from time to time.
| "Annual Redemption Percentage Reduction" has the meaning ascribed in the |
Note Certificate(s) or the Indenture.
| "Annual Report" has the meaning ascribed in Section 7.5. |
| "Book-Entry Note" means a Note, the registered ownership of which is |
represented by a Global Security.
| "Business Day" means (except as otherwise | provided in the Pricing |
Supplement) any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which commercial banks are authorized or required by law,
regulation or executive order to close in The City of New York; provided,
however, that, if the Specified Currency of the Notes is other than U.S.
Dollars, the day must also not be a day on which commercial banks are authorized
or required by law, regulation or executive order to close in the Principal
Financial Center of the country issuing the Specified Currency (or, if the
Specified Currency is Euro, the day must also be a day on which the Target
System is open) ).; and provided further that, with respect to Notes as to which
LIBOR is an applicable interest rate basis, the day must also be a London Banking
Day.
| "Calculation Agent" means the Indenture Trustee in its capacity as |
calculation agent with respect to the Notes, or any other Person specified as
calculation agent with respect to any Notes in the Note Certificate(s) or the
Indenture, and, in each case, it successor in such capacity.
| "Certificated Note" means a Note represented by a Definitive Security. |
| "Clearing Corporation" means DTC, or any other clearing system specified in |
the Note | Certificate(s) | and their respective | successors and "Clearing |
Corporations" means all of the foregoing.
| "Closing Instrument" means the closing instrument of the Trust, pursuant to |
which certain documents are executed in connection with the issuance of the
Notes by the Trust.
| "Code" means the United States Internal Revenue Code of 1986, as amended, |
including any successor statutes and any applicable rules, regulations, notices
or orders promulgated thereunder.
| "Collateral" means, with respect to the Notes, the right, title and |
interest of the Trust in and to (i) each Funding Agreement held in the Trust,
(ii) all Proceeds in respect of each such Funding Agreement and (iii) all books
and records (including without limitation, computer programs, printouts and
other computer materials and files) of the Trust pertaining to the Funding
Agreement(s).
| "Collection Account" has the meaning ascribed in Section 4.2. |
| "Commission" means the Securities and Exchange Commission or any successor |
body.
| "Compliance Report" has the meaning ascribed in Section 7.5. |
| "Coordination Agreement" means that certain Coordination Agreement included |
in Part F of the Series Instrument, among the Trust and the other parties
specified therein, as the same may be amended, supplemented, modified, restated
or replaced from time to time.
| "Corporate Trust Office" means the office of the Indenture Trustee at which |
the Indenture shall, at any particular time, be administered, which office is,
at the date as of which the Indenture is executed located at 2 North LaSalle
Street, Suite 1020, Chicago, IL 60602, except that for the purposes of
Section 4.3 it shall be 4 101 Barclay Street, New York, IL 10286,
or such other location as may be specified in or pursuant to the Note
Certificate(s) or the Indenture.
| "Custodian" has the meaning ascribed in Section 14.3(e). |
| "Debt" of any Person means, at any date, without duplication, (i) all |
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (iv) all contingent
and non-contingent obligations of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit or similar
instrument, (v) all Debt secured by a Lien on any asset of such Person, whether
or not such Debt is otherwise an obligation of such Person, and (vi) all
Guarantees by such Person of Debt of another Person (each such Guarantee to
constitute Debt in an amount equal to the amount of such other Person's Debt
Guaranteed thereby).
| "Defaulted Interest" has the meaning ascribed in Section 2.8(b). |
| "Definitive Security" means any Note Certificate which is not a Global |
Security.
| "Delaware Trustee" means Wilmington Trust Company, a Delaware banking |
corporation, or another entity specified in the Indenture as the Delaware
Trustee, in each case not in its individual capacity but solely as trustee, and
its successors.
| "Depositary" shall mean, if the Notes are represented by one or more Global |
Securities, the Clearing Corporation or its agent or nominee designated as
Depositary by the Trust pursuant to Section 2.10 until a successor Depositary
shall have become such pursuant to the applicable provisions of the Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary under the Indenture. The Depositary must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable | statute or |
regulation. | Unless otherwise specified in the Note Certificate(s), | the |
"Depositary" shall initially be DTC.
| "Distribution Agreement" means that certain Distribution Agreement dated as |
of June 28, 2006, by and among Global Funding and the Agents named therein, as the
same may be amended, supplemented, modified, restated or replaced from time to
time.
| "DTC" means The Depository Trust Company and its successors and assigns. |
| "Entitlement Holder" means any Person in whose name Notes are credited to a |
securities account maintained in the name of such Person on the books and
records of a Clearing Corporation or other Securities Intermediary.
| "Euro" means the currency introduced at the start of the third stage of the |
European economic and monetary union pursuant to the treaty establishing the
European Community, as amended by the Treaty on European Union.
| "Event of Default" means any event or condition specified as such in |
Section 5.1 which shall have continued for the period of time, if any, therein
designated.
| "Exchange Act" means the Securities Exchange Act of 1934, as it may be |
amended or supplemented from time to time, and any successor statute thereto,
and the rules, regulations and published interpretations of the Commission
promulgated thereunder from time to time.
| "Exchange Event" has the meaning ascribed in Section 2.10(b). |
| "Exchange Rate Agent" means the Indenture Trustee in its capacity as |
exchange rate agent with respect to the Notes, or any other person specified as
exchange rate agent with respect to any Notes in the Note Certificate(s) or the
Indenture, and, in each case, its successors in such capacity.
| "Foreign Currency Note" means a Note the Specified Currency of which is |
other than U.S. Dollars.
| "Funding Agreement" means each funding agreement issued by the Funding |
Agreement Provider to Global Funding, | which is immediately pledged and |
collaterally assigned by Global Funding to the Funding Note Indenture Trustee
and immediately thereafter assigned absolutely to, and deposited into, the Trust
by Global Funding, as the same may be amended, supplemented, modified, restated
or replaced from time to time in accordance with the terms thereof.
| "Funding Agreement Provider" means Allstate Life Insurance Company, a stock |
life insurance company organized under the laws of the State of Illinois, and
its successors.
| "Funding Note" has the meaning ascribed in the Funding Note Indenture. |
| "Funding Note Indenture" means that certain Funding Note Indenture included |
in Part H of the Series Instrument, among Global Funding and the other parties
specified therein, as the same may be amended, supplemented, modified, restated
or replaced from time to time.
| "Funding Note Indenture Trustee" has the meaning ascribed in the Funding |
Note Indenture.
| "Global Funding" means Allstate Life Global Funding, a statutory trust |
formed under the laws of the State of Delaware.
| "Global Security" means a single Note Certificate deposited with the |
Depositary and registered in the name of a Clearing Corporation or its agent or
nominee representing the entire issue of Book-Entry Notes, or if the rules of
the applicable Clearing Corporation or the applicable securities laws or
regulations of any jurisdiction limit the maximum principal amount of Note
Certificates, each of the minimum number of Note Certificates so deposited and
registered that are required to comply with such laws, regulations and rules
while representing in the aggregate the entire issue of Book-Entry Notes.
| "Guarantee" by any Person means any obligation, contingent or otherwise, of |
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by virtue of an agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise), (ii) to reimburse a
bank for amounts drawn under a letter of credit for the purpose of paying such
Debt or (iii) entered into for the purpose of
assuring in any other manner the holder of such Debt of the payment thereof or
to protect such holder against loss in respect thereof (in whole or in part);
provided that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business.
| The term "Guarantee" used as a verb has a corresponding meaning. |
| "Holder" means, with respect to any Note, the Person in whose name such |
Note is registered in the Note Register.
| "Holder Representative" has the meaning ascribed in Section 5.8(a). |
| "Indenture" means that certain Indenture included in Part G of the Series |
Instrument, and which incorporates by reference these Standard Indenture Terms,
among the Trust and the other parties specified therein, as the same may be
amended, supplemented, modified, restated or replaced from time to time.
| "Indenture Trustee" means The Bank of New York Trust Company, N.A., or |
another entity specified as the Indenture Trustee in the Indenture, and, in each
case, its successors.
| "Initial Redemption Date" means, with respect to any Note or portion |
thereof to be redeemed pursuant to Section 3.1(b), the date on or after which
such Note or portion thereof may be redeemed as determined by or pursuant to the
Indenture or a Note Certificate of Supplemental Indenture.
| "Initial Redemption Percentage" has the meaning specified in the Note |
Certificate(s).
| "Interest Payment Date" has the meaning ascribed in Section 2.8(a). |
| "Interest Reset Date" has the meaning ascribed in the Note Certificate(s). |
| "Investment Company Act" has the meaning ascribed in Section 4.8. |
| "Judgment Currency" has the meaning ascribed in Section 13.9. |
| "LIBOR", has the meaning ascribed in the Note Certificate(s). |
| "LIBOR Currency" means the currency specified in the Note Certificate(s) as |
to which LIBOR shall be calculated or, if no currency is specified in the
applicable Note Certificate, United States dollars.
| "Lien" means, with respect to any asset, any mortgage, lien, pledge, |
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in
respect of such asset. For purposes hereof, the Trust shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
“London Banking Day” means a day on which commercial banks are open for
business (including dealings in LIBOR currency) in London.
| "Market Exchange Rate" for a Specified Currency other than United States |
dollars means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes (or, if
not so certified, as otherwise determined) by the Federal Reserve Bank of New
York.
| "Maturity Date" means, with respect to the principal (or any installment of |
principal) of the Notes, any date prior to the Stated Maturity Date on which the
principal (or such installment of principal) of the Notes becomes due and
payable whether, as applicable, by the declaration of acceleration of maturity,
notice of redemption at the option of the Trust, notice of the Holder's option
to elect repayment or otherwise.
| "Name Licensing Agreement" means that certain Name Licensing Agreement |
included in Part D of the Series Instrument, between Allstate Insurance Company
and the Trust, as the same may be amended, supplemented, modified, restated or
replaced from time to time.
| "Nonrecourse Parties" has the meaning ascribed in Section 13.1. |
| "Notes" | means any Secured | Medium Term Notes or Allstate | Life(R) |
CoreNotes(R), as the case may be, issued By the Trust under the Indenture, each
in an authorized denomination and represented, individually or collectively, by
one or more Note Certificates authenticated by the Indenture Trustee pursuant to
the terms of the Indenture.
| "Note Certificate" means a security certificate representing one or more |
Notes.
| "Note Register" has the meaning ascribed in Section 2.6(a). |
| "Obligations" means the obligations of the Trust secured under the Notes |
and the Indenture, including (a) all principal of, any premium and interest
payable (including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of the Trust, whether or not allowed or allowable
as a claim in any such proceeding) on, and any Additional Amounts with respect
to, the Notes or pursuant to the Indenture, (b) all other amounts payable by the
Trust under the Indenture or under the Notes including all costs and expenses
(including attorneys' fees) incurred by the Indenture Trustee or any Holder
thereof in realizing on the Collateral to satisfy such obligations and (c) any
renewals or extensions of the foregoing.
| "Opinion of Counsel" means an opinion in writing signed by legal counsel |
who may be an employee of or counsel to the Trust or the Indenture Trustee or
who may be other counsel satisfactory to the Indenture Trustee. Each such
opinion shall include the statements provided for in Section 13.5 hereof, if and
to the extent required hereby.
| "Original Issue Date" has the meaning ascribed in the Pricing Supplement. |
| "Outstanding" shall, subject to the provisions of Section 8.5, mean, as of |
any particular time, all Notes represented by Note Certificates executed by the
Trust and authenticated and delivered by the Indenture Trustee under the
Indenture, except (a) any Note represented by a Note Certificate theretofore
cancelled by the Indenture Trustee or delivered to the Indenture Trustee for
cancellation; (b) any Note as to which funds for the full payment or redemption
of which in the necessary amount shall have been deposited in trust with the
Indenture Trustee or with any Paying Agent; provided that if such Note is to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in or pursuant to the Indenture, | or provision |
satisfactory to the Indenture Trustee shall have been made for giving such
notice; and (c) any Note represented by a Note Certificate in substitution for
which one or more other Note Certificates shall have been authenticated and
delivered pursuant to the terms of Section 2.5 or which shall have been paid
(unless proof satisfactory to the Indenture Trustee is presented that any of
such Note is held by a Person in whose hands such Note is a legal, valid and
binding obligation of the Trust).
| "Owner" shall, with respect to each Funding Agreement, have the meaning |
ascribed in such Funding Agreement.
| "Paying Agent" means the Indenture Trustee in its capacity as paying agent |
with respect to the Notes, and/or any other Person specified as paying agent
with respect to any Notes in the Note Certificate(s) or the Indenture, and, in
each case, its successors in such capacity.
| "Person" means any natural person, corporation, limited partnership, |
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, trust or other organization, whether or not a legal
entity, and any government or any agency or political subdivision thereof.
| "Pricing Supplement" means the pricing supplement included as Annex A to |
the Series Instrument.
| "Principal Amount" with respect to a Funding Agreement, has the meaning |
ascribed in such Funding Agreement.
| "Principal Financial Center" means, as applicable (i) the capital city of |
the country issuing the Specified Currency; or (ii) the capital city of the
country to which
the LIBOR Currency relates; provided, however, that with respect to United
States dollars, Australian dollars, Canadian dollars, Euro, South African rands
and Swiss francs, the "Principal Financial Center" shall be The City of New
York, Sydney, Toronto, London (solely in the case of the LIBOR Currency),
Johannesburg and Zurich, respectively.
| "Proceeds" means all of the proceeds of, and all other profits, products, |
rents, principal payments, interest payments or other receipts, in whatever
form, arising from the collection, sale, lease, exchange, assignment, licensing
or other disposition or maturity of, or other realization upon, a Funding
Agreement, including without limitation all claims of the Trust against third
parties for loss of, damage to or destruction of, or for proceeds payable under,
such Funding Agreement, in each case whether now existing or hereafter arising.
| "Program" means the program for issuance, from time to time, of Secured |
Medium Term Notes and Allstate Life(R) CoreNotes(R) through Allstate Life Global
Funding Trusts, as described in the Registration Statement.
| "Redemption Date" means, with respect to any Note to be redeemed, pursuant |
to Section 3.1(b) or Section 3.1(c), the date of redemption of such Note
specified in the relevant notice of redemption provided to the Indenture Trustee
pursuant to Section 3.1(d).
| "Redemption Price" means, with respect to the Notes, an amount equal to the |
Initial Redemption Percentage specified in the Note Certificate(s) (as adjusted
by the Annual Redemption Percentage Reduction, if applicable) multiplied by the
unpaid principal amount thereof to be redeemed.
| "Registrar" has the meaning ascribed in Section 2.6(a). |
| "Registration Statement" means the Registration Statement relating to the |
Program (File No. 333-143541), filed with the Commission by the Funding
Agreement Provider and Global Funding on June 5, 2007, as amended by
Amendment No. 1 filed with the Commission on June 26, 2007, and as it may further be amended,
supplemented, modified, restated or replaced from time to time.
| "Regular Interest Record Date" has the meaning ascribed in Section 2.8(a). |
| "Regulation AB" has the meaning ascribed in Section 7.5. |
| "Repayment Date" means, with respect to any Note or portion thereof to be |
repaid pursuant to Section 3.2, the date for the repayment of such Note or
portion thereof as determined by or pursuant to the Indenture or a Note
Certificate or Supplemental Indenture.
| "Repayment Price" means, with respect to any Note or portion thereof to be |
repaid pursuant to Section 3.2, the price for repayment of such Note or portion
thereof as determined by, or pursuant to, the Indenture or an applicable Note
Certificate or Supplemental Indenture.
| "Responsible Officer" when used with respect to any Person means the |
chairman of the board of directors or any vice chairman of the board of
directors or the president or any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "vice
president") of such Person. With respect to the Trust, Responsible Officer means
any Responsible Officer (as defined in the preceding sentence) plus any
assistant secretary and any financial services officer of the Delaware Trustee,
and with respect to the Indenture Trustee, Responsible Officer means any
Responsible Officer (as defined in the first sentence of this definition) plus
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the cashier, the secretary, the
treasurer, any trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other authorized officer of the Indenture Trustee customarily
performing functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
| "Secured Parties" has the meaning ascribed in Section 14.1(a). |
| "Securities Act" means the Securities Act of 1933, as amended, and any |
successor | statute | thereto, | and the rules, | regulations | and published |
interpretations of the Commission promulgated thereunder from time to time.
| "Securities | Intermediary" means any Person, | including any Clearing |
Corporation, bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
| "Security Interest" has the meaning ascribed in Section 14.1(a). |
| "Series Instrument" means the series instrument of the Trust, pursuant to |
which the Administrative Services Agreement, the Coordination Agreement, the
Funding Note Indenture, the Indenture, the Name Licensing Agreement, the Support
Agreement, the Terms Agreement and the Trust Agreement are entered into, and
certain other documents are executed, in connection with the issuance of the
Notes by the Trust.
| "Special Interest Record Date" has the meaning ascribed in Section 2.8(b). |
| "Specified Currency" has the meaning ascribed in Section 2.4. |
| "Standard Trust Terms" means those certain Standard Trust Agreement Terms, |
which will be incorporated by reference in and form a part of the Trust
Agreement.
| "Stated Maturity Date," means with respect to any Note, any installment of |
principal thereof, or interest thereon, any premium thereon or any Additional
Amounts with respect thereto, the date established by or pursuant to the
Indenture or Note Certificate or Supplemental Indenture as the date on which the
principal of such Note or such installment of principal or interest or such
premium is, or such Additional Amounts are, due and payable.
| "Supplemental Indenture" has the meaning ascribed in Section 9.1(a). |
| "Support Agreement" means that certain Support and Expenses Agreement |
included in Part C of the Series Instrument, by and between the Funding
Agreement Provider and the Trust, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
| "Target System" means the Trans-European | Automated Real Time Gross |
Settlement Express Transfer (TARGET) System.
| "Tax Event" has the meaning ascribed in Section 3.1(c). |
| "Terms Agreement" means that certain Terms Agreement included in Part E of |
the Series Instrument, by and among Global Funding, the Trust and each Agent
named therein, which will incorporate by reference the terms of the Distribution
Agreement.
| "Trust" means the Allstate Life Global Funding Trust specified in the |
Series Instrument, together with its permitted successors and assigns.
| "Trust Agreement" means that certain Trust Agreement included in Part A of |
the Series Instrument, among the Delaware Trustee, the Administrator and the
Trust Beneficial Owner.
| "Trust Beneficial Owner" means Global Funding, in its capacity as the sole |
beneficial owner of the Trust, and its successors.
| "Trust Certificate" means a certificate signed by the Administrator on |
behalf of the Trust and delivered to the Indenture Trustee. Each such
certificate shall include the statements provided for in Section 13.5.
| "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, |
and any successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
| "UCC" means the Uniform Commercial Code, as from time to time in effect in |
the State of New York; provided that, with respect to the perfection, effect of
perfection or non-perfection, or priority of any security interest in the
Collateral, "UCC" shall mean the applicable jurisdiction whose law governs such
perfection, non-perfection or priority.
| "United States", except as otherwise provided in or pursuant to the |
Indenture or any Note Certificate, means the United States of America (including
the states thereof and the District of Columbia), | its territories and |
possessions and other areas subject to its jurisdiction.
| "United States Dollars", "U.S. Dollars" or "$" means lawful currency of the |
United States.
| SECTION 1.2 Interpretation. For all purposes of the Indenture except as |
otherwise expressly provided or unless the context otherwise requires:
| (a) the terms defined in this Article shall have the meanings |
| ascribed to them in this Article and shall include the plural as |
| (b) all accounting terms used and not expressly defined shall have |
| the meanings given to them in accordance with United States |
| generally accepted accounting principles, and the term "generally |
| accepted accounting | principles" shall mean such accounting |
| principles which are generally accepted at the date or time of |
| any computation or at the date of the Indenture; |
| (c) references | to | Exhibits, | Articles, | Sections, | paragraphs, |
| subparagraphs and clauses shall be construed as references to the |
| Exhibits, Articles, Sections, paragraphs, | subparagraphs and |
| clauses of the Indenture; |
| (d) the words "include", | "includes" and "including" | shall be |
| construed to be followed by the words "without limitation"; and |
| (e) Article and Section headings are for the convenience of the |
| reader and shall not be considered in interpreting the Indenture |
| or the intent of the parties. |
| SECTION 2.1 Amount Unlimited. The aggregate principal amount of Notes that |
may be authenticated and delivered under the Indenture shall be the principal
amount of the Notes set forth in the Pricing Supplement.
| SECTION 2.2 Status of Notes. The Notes constitute direct, unconditional, |
unsubordinated and secured non-recourse obligations of the Trust and rank
equally among themselves.
| SECTION 2.3 Forms Generally. |
| (a) The Note Certificates, shall be in, or substantially in, the form |
| set forth in Exhibit A-1, Exhibit A-2, Exhibit A-3 and Exhibit |
| A-4 attached hereto, as applicable, in each case with such |
| appropriate insertions, | omissions, | substitutions and other |
| variations as are required or permitted by the Indenture or as |
| may in the Trust's judgment be necessary, | appropriate or |
| convenient to permit the Notes to be issued and sold, or to |
| comply, or facilitate compliance, with applicable laws, and may |
| have such letters, numbers or other marks of identification and |
| such legends or endorsements placed thereon as may be required to |
| comply with the rules of any securities exchange on which the |
| Notes may be listed, or as may, consistently herewith, be |
| determined by the Responsible Officer of the Trust executing such |
| Note Certificates, with the approval of the Indenture Trustee, as |
| evidenced by his or her execution thereof. |
| (b) Note Certificates may be printed, | lithographed, | engraved, |
| typewritten, photocopied or otherwise produced in any manner as |
| the Responsible Officer of the Trust executing such Notes may |
| (c) The terms and provisions contained in the Note Certificates and |
| in any Supplemental Indenture shall constitute, and are expressly |
| made, a part of the Indenture and, to the extent applicable, the |
| Trust and the Indenture Trustee, by their execution and delivery |
| of the Indenture, expressly agree to such terms and provisions |
| SECTION 2.4 Currency; Denominations. |
| (a) Unless otherwise specified in the Note Certificates or in any |
| Supplemental Indenture, | Notes will be denominated in, and |
| payments of principal of, premium and interest on, and Additional |
| Amounts in respect to, the Notes will be made in, U.S. dollars. |
| The currency in which the Notes are denominated (or, if such |
| currency is no longer legal tender for the payment of public and |
| private debts in the country issuing such currency or, in the |
| case of Euro, in the member states of the European Union that |
| have adopted the single currency in accordance with the Treaty |
| establishing the European Community, as amended by the Treaty on |
| European Union, such currency which is then such legal tender) is |
| in the Indenture referred to as the "Specified Currency". |
| (b) Unless otherwise provided in or pursuant to the Indenture, the |
| Trust appoints the Indenture Trustee as Exchange Rate Agent with |
| respect to the Notes and the Indenture Trustee accepts such |
| (c) Unless otherwise specified in the Note Certificates or in a |
| Supplemental | Indenture, | Notes shall be issued in minimum |
| denominations of $1,000 and integral multiples of $1,000 in |
| excess thereof or equivalent denominations in other currencies. |
| (d) The Trust may (if so specified in a Note Certificate or |
| Supplemental Indenture) without the consent of the Holder of any |
| Note, redenominate all, but not less than all, of the Notes on or |
| after the date on which the member state of the European Union in |
| whose national currency the Notes are denominated has become a |
| participant member in the third stage of the European economic |
| and monetary union as more fully set out in a Note Certificate or |
| (e) Unless otherwise specified in a Note Certificate or Supplemental |
| Indenture, if the Specified Currency of the Notes is other than |
| U.S. Dollars, the Trust shall not sell the Notes in, or to |
| residents of, the country issuing such Specified Currency. |
| SECTION 2.5 Execution, Authentication, Delivery and Date. |
| (a) Each Note Certificate shall be executed on behalf of the Trust by |
| any Responsible Officer of the Delaware Trustee. The signature of |
| any Responsible Officer of the Delaware Trustee may be manual, in |
| facsimile form, imprinted or otherwise reproduced and may, but |
| (b) Each Note Certificate bearing the signature of a Person who was |
| at any time a Responsible Officer of the Delaware Trustee shall |
| bind the Trust, notwithstanding that such Person has ceased to |
| hold such office prior to the authentication and delivery of such |
| Note Certificate or did not hold such office at the date of such |
| (c) At any time, and from time to time, after the execution and |
| delivery of the | Indenture, | the Trust may | deliver | Note |
| Certificates executed by or on behalf of the Trust to the |
| Indenture Trustee for authentication, and the Indenture Trustee |
| shall thereupon authenticate and deliver such Note Certificates |
| as provided in the Indenture and not otherwise. |
| (d) The Indenture Trustee shall have the right to decline to |
| authenticate and deliver any Note Certificates under this Section |
| if the Indenture Trustee has obtained an Opinion of Counsel |
| reasonably acceptable to the Trust, to the effect that the |
| issuance of the Notes will adversely affect the Indenture |
| Trustee's own rights, duties or immunities under the Indenture. |
| (e) The Note | Certificates | shall be dated the date of their |
| (f) No Note shall be entitled to any benefit under the Indenture or |
| be valid or obligatory for any purpose, unless there appears on |
| the Note Certificate representing such Note a certificate of |
| authentication substantially in the form attached as Exhibit B |
| executed by the Indenture Trustee by manual signature of one of |
| its authorized signatories. Such certificate upon any Note |
| Certificate shall be conclusive evidence, and the only evidence, |
| that such Note Certificate has been duly authenticated and |
| delivered under the Indenture. |
| SECTION 2.6 Registration, Transfer and Exchange. |
| (a) The Indenture Trustee will serve initially as registrar (in such |
| capacity, | and together with any successor registrar, | the |
| "Registrar") for the Notes. In such capacity, the Indenture |
| Trustee will cause to be kept at the Corporate Trust Office of |
| the Indenture Trustee a register (the "Note Register") in which, |
| subject to such reasonable regulations as it may prescribe, the |
| Indenture Trustee will provide for the registration of the Notes |
| and of transfers of the Notes. The Note Register shall be in |
| written form in the English language or in any other form capable |
| of being converted into such form within a reasonable time. |
| (b) Subject to Section 2.10, upon surrender of a Note Certificate for |
| registration of transfer of any Note represented | thereby, |
| together with the form of transfer | endorsed thereon duly |
| completed and executed, at the designated office of the Registrar |
| or of any applicable transfer agent, each as provided in a Note |
| or Supplemental Indenture, the Delaware Trustee, on behalf of the |
| Trust shall execute, and the Indenture Trustee shall authenticate |
| and deliver, in the name of the designated transferee or |
| transferees, one or more new Note Certificates representing an |
| aggregate principal amount of Notes equal to the aggregate |
| principal | amount of the Notes | represented | by such Note |
| Certificate surrendered for registration of transfer. |
| (c) Subject to Section 2.10, at the option of the applicable Holder, |
| any Note Certificate may be exchanged for one or more new Note |
| Certificates, and any two or more Note Certificates may be |
| consolidated into and exchanged for a single Note Certificate or |
| fewer than the number of Note Certificates duly presented for |
| exchange, in each case representing one or more Notes in an |
| aggregate principal amount equal to the aggregate principal |
| amount of the Notes represented by the Note Certificate or Note |
| Certificates duly presented for exchange. Each Note Certificate |
| to be exchanged shall be surrendered at the designated office of |
| the Registrar or of any applicable transfer agent, each as |
| provided in a Note Certificate or Supplemental | Indenture. |
| Whenever any Note Certificate is so surrendered for exchange, the |
| Delaware Trustee, on behalf of the Trust shall execute, and the |
| Indenture Trustee shall authenticate and deliver, the Note |
| Certificate or Note Certificates which the applicable Holder is |
| entitled to | receive, | bearing | numbers, | letters or other |
| designating marks not contemporaneously outstanding. |
| (d) Each Note Certificate executed, authenticated and delivered upon |
| any transfer or exchange shall be a valid obligation of the |
| Trust, evidencing the same debt, and entitled to the same |
| benefits | under the | Indenture, | as the Note | Certificates |
| surrendered in connection with any such transfer or exchange. |
| Upon surrender, transfer or exchange of a Note Certificate |
| pursuant to this Section 2.6, each new Note Certificate will, |
| within three Business Days of the receipt of the applicable form |
| of transfer or the applicable surrender, as the case may be, be |
| delivered to the designated office of the Registrar or of any |
| applicable transfer agent, each as provided in a Note Certificate |
| or Supplemental Indenture, or mailed at the risk of the Person |
| entitled to such Note Certificate to such address as may be |
| specified in the form of transfer or in written instructions of |
| the applicable Holder upon surrender for exchange. |
| (e) Every Note Certificate presented or surrendered in connection |
| with any transfer or exchange shall (if so required by the Trust |
| the Indenture Trustee) be duly endorsed, or be accompanied by a |
| written instrument of transfer in form satisfactory to the Trust |
| and the Indenture Trustee duly executed by, the applicable Holder |
| or his attorney duly authorized in writing. |
| (f) No service charge shall be made in connection with any transfer |
| of Notes or exchange of Note Certificates, but the Trust or the |
| Indenture Trustee may require payment of a sum sufficient to |
| cover any tax or other governmental charge that may be imposed in |
| connection with any transfer of Notes or exchange of Note |
| (g) Except as otherwise provided in or pursuant to the Indenture, the |
| Trust and the Indenture Trustee shall not be required to (i) upon |
| presentation or surrender of a Note Certificate in connection |
| with any transfer or exchange during a period beginning at the |
| opening of business 15 days before the day of the selection for |
| redemption of Notes under Section 3.1 and ending at the close of |
| business on the day of such selection, exchange any Note |
| Certificate | representing any Note selected for redemption, |
| register the transfer of any such Note, or portion thereof, |
| except in the case of any Note to be redeemed in part, with |
| respect to the portion of such Note not to be redeemed, or (ii) |
| exchange any Note Certificate representing any Note the Holder or |
| Holders of which shall have exercised the option pursuant to |
| Section 3.2 to require the Trust to repay any such Note prior to |
| its Stated Maturity Date or register the transfer of any such |
| Note except, in the case of any Note to be repaid in part, with |
| respect to the portion of such Note not to be repaid. |
| SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Note Certificates. |
| (a) If (i) any Note Certificate is mutilated and is surrendered to |
| the Indenture Trustee or the Trust, or the Indenture Trustee and |
| the Trust receive | evidence to their | satisfaction of the |
| destruction, loss or theft of any Note Certificate, and (ii) |
| there is delivered to the Trust and the Indenture Trustee such |
| security or indemnity as may be required by them to save each of |
| them harmless, then, in the absence of notice to the Trust or the |
| Indenture Trustee that such Note Certificate has been acquired by |
| a protected purchaser, the Trust shall execute and upon its |
| request the Indenture Trustee shall authenticate and deliver, in |
| exchange for or in lieu of any such mutilated, destroyed, lost or |
| stolen Note Certificate, a new Note Certificate representing |
| Notes of like tenor and principal amount, bearing a number not |
| contemporaneously outstanding. |
| (b) If any Note represented by any such mutilated or apparently |
| destroyed, lost or stolen Note Certificate has become or is about |
| to become due and payable, the Trust in its discretion may, |
| instead of issuing a new Note Certificate, pay such amounts in |
| respect of the Notes represented by such Note Certificate. |
| (c) Upon the execution, authentication and delivery of any new Note |
| Certificate under this Section, the Indenture Trustee or the |
| Trust may require the Holder to pay a sum sufficient to cover any |
| tax or other governmental charge that may be imposed in relation |
| thereto and any other expenses (including the fees and expenses |
| of the Indenture Trustee) connected therewith. |
| (d) The Notes represented by every Note Certificate | executed, |
| authenticated and delivered pursuant to this Section in lieu of |
| any apparently destroyed, lost or stolen Note Certificate shall |
| constitute an original additional contractual obligation of the |
| Trust, whether or not any obligation with respect to the Notes |
| represented by the apparently destroyed, lost or stolen Note |
| Certificate shall be at any time enforceable by any Person, and |
| shall be entitled to all of the benefits of the Indenture equally |
| and proportionately with any and all other Notes duly issued |
| (e) The provisions of this Section are exclusive with respect to the |
| replacement of any mutilated or apparently destroyed, lost or |
| stolen Note Certificate or the payment of the Notes represented |
| thereby and shall preclude all other rights and remedies with |
| respect to the replacement of any mutilated or apparently |
| destroyed, lost or stolen Note Certificate or the payment of the |
| Notes represented thereby. |
| SECTION 2.8 Interest Record Dates. |
| (a) Interest on and Additional Amounts with respect to any Note which |
| is payable, on any interest payment date specified in the Note |
| Certificates or in any Supplemental Indenture (each such date, an |
| "Interest Payment Date") shall be paid to the Holder of such Note |
| at the close of business on the date specified as the regular |
| interest record date in the Note Certificates or Supplemental |
| Indenture (the "Regular Interest Record Date") or, if no such |
| date is specified, the date that is 15 calendar days preceding |
| such Interest Payment Date. |
| (b) Unless otherwise provided in the Note Certificates or in any |
| Supplemental Indenture, any interest on, and any Additional |
| Amounts with respect to, any Note which is payable, but is not |
| punctually paid or duly provided for, on any Interest Payment |
| Date specified in the Note Certificates or Supplemental Indenture |
| (the "Defaulted Interest") shall forthwith cease to be payable to |
| the Holder of such Note on the relevant Regular Interest Record |
| Date by virtue of having been such Holder, and such Defaulted |
| Interest shall be paid by the Trust to the Holder of such Note at |
| the close of business on a special record date (the "Special |
| Interest Record Date") established by the Trust by notice to each |
| applicable Holder and the Indenture Trustee in accordance with |
| Section 13.4, which Special Interest Record Date shall be not |
| more than 15 nor less than 10 days prior to the date of the |
| proposed payment of Defaulted Interest and not less than 10 days |
| after the receipt by the Indenture Trustee of the notice of the |
| proposed payment of Defaulted Interest. |
| SECTION 2.9 Cancellation. Each Note Certificate surrendered for exchange or |
in connection with any payment, redemption, transfer of any Note represented
thereby shall be delivered to the Indenture Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Trust may at any time deliver
to the Indenture Trustee for cancellation any Note Certificate previously
authenticated and delivered under the Indenture which the Trust may have
acquired in any manner whatsoever, and each Note Certificate so delivered shall
be promptly cancelled by the Indenture Trustee. No Note Certificates shall be
authenticated in lieu of or in exchange for any Note Certificate cancelled as
provided in this Section, except as expressly permitted by the Indenture. The
Indenture Trustee shall destroy all cancelled Note Certificates held by it and
deliver a certificate of destruction to the Trust. If the Trust shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until each
Note Certificate representing such Notes is delivered to the Indenture Trustee
for cancellation.
| SECTION 2.10 Global Securities. |
| (a) Unless (i) permitted by applicable law and (ii) an Exchange Event |
| shall have occurred and be continuing with respect to Book-Entry |
| Notes represented by one or more Global Securities, no Book-Entry |
| Note | represented | by any such Global | Security | shall be |
| exchangeable for Certificated Notes. |
| (b) For purposes of the Indenture, the term "Exchange Event" means |
| (i) the Depositary with which any Global Security is deposited |
| shall have notified the Trust that it is unwilling or unable |
| to continue as the Depositary for any Global Security or the |
| Trust becomes aware that the Depository has ceased to be a |
| clearing agency registered under the Exchange Act and, in |
| any such case, the Trust fails to appoint a successor to the |
| Depositary within 60 calendar days; |
| (ii) Subject to the procedures of the DTC, the Trust, in its sole |
| discretion, determines that the Notes should no longer be |
| represented solely by one or more Global Securities; or |
| (iii) an Event of Default shall have occurred and be continuing |
| with respect to the Notes and the maturity of the Notes |
| shall have been accelerated in accordance with the terms of |
| the Indenture and the Notes. |
| (c) If any Exchange Event shall have occurred and be continuing, |
| (i) with respect to each Global Security deposited with, and |
| registered in the name of, the applicable Depositary or its |
| nominee, the Delaware Trustee, on behalf of the Trust shall |
| promptly, and in any event not later than 10 Business Days |
| after the occurrence of such Exchange Event, cause to be |
| executed, authenticated and delivered to the applicable |
| Depositary or its nominee, | against | surrender by the |
| applicable | Depositary | or its nominee of such Global |
| Security, | which shall | thereupon be cancelled by the |
| Indenture Trustee, a Definitive Security or a Definitive |
| Securities each representing such number of Notes as may be |
| specified by the applicable Depositary in an aggregate |
| principal amount equal to the (Outstanding principal amount |
| of Notes that shall have been represented by such Global |
| Security and shall register the Certificated Notes in such |
| names and in such authorized denominations as may be |
| specified by the Depositary for the Global Security; and |
| (ii) if any Certificated Note is issued in exchange for any |
| portion of or all Book-Entry Notes represented by a Global |
| Security after the close of business at the office or agency |
| for such Note where such exchange occurs on (A) any Regular |
| Interest Record Date for such Notes and |
| before the opening of business at such office or agency on |
| the next Interest Payment Date, or (B) any Special Interest |
| Record Date for such Notes and before the opening of |
| business at such office or agency on the related proposed |
| date for payment of interest, any Additional Amounts or |
| Defaulted Interest, as the case may be, interest, Additional |
| Amounts or Defaulted Interest, as the case may be, shall not |
| be payable on such Interest Payment Date or proposed date |
| for payment, as the case may be, in respect of such Notes, |
| but shall be payable on such Interest Payment Date or |
| proposed date for payment, as the case may be, only to the |
| Person to whom interest and any Additional Amounts or |
| Defaulted Interest, as applicable, in respect of such |
| portion of or all Book-Entry Notes, as the case may be, |
| represented by such Global Security shall be payable in |
| accordance with the provisions of the Indenture. |
| (d) The Certificated Notes issued in exchange for any Book-Entry |
| Notes represented by a Global Security shall be of like tenor and |
| of an equal | aggregate | principal | amount, | in | authorized |
| denominations. Such Certificated Notes shall be registered in the |
| name or names of such person or persons as the applicable |
| Depository shall instruct the Registrar. |
| SECTION 2.11 Withholding Tax. All amounts due in respect of the Notes will |
be made without withholding or deduction for or on account of any present or
future taxes, duties, levies, assessments or other governmental charges of
whatever nature imposed or levied by or on behalf of any governmental authority
in the United States having the power to tax payments on the notes unless the
withholding or deduction is required by law. Unless otherwise specified in the
Note Certificate(s), the Trust will not pay any Additional Amounts to Holders of
Notes in the event that any withholding or deduction is so required by law,
regulation or official | interpretation thereof, and the imposition of a |
requirement to make any such withholding or deduction will not give rise to any
independent right or obligation to redeem or repay the Notes and shall not
constitute an Event of Default.
| SECTION 2.12 Tax Treatment. The parties agree, and each Holder and |
beneficial owner of Notes by purchasing the Notes agrees, for all United States
Federal, state and local income and franchise tax purposes (i) to treat the
Notes as indebtedness of the Funding Agreement Provider, (ii) Global Funding and
the Trust will be ignored and will not be treated as an association or a
publicly traded partnership taxable as a corporation and (iii) to not take any
action inconsistent with the treatment described in (i) and (ii) unless
otherwise required by law.
| REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS |
| SECTION 3.1 Redemption of Notes. |
| (a) Redemption of Notes by the Trust as permitted or required by the |
| Indenture and the Note Certificate(s) will be made in accordance |
| with the terms of the Notes and (except as otherwise provided in |
| the Indenture or pursuant to the Indenture) this Section. |
| (b) If any Initial | Redemption Date is specified in the Note |
| Certificate(s), the Trust may redeem Notes prior to the Stated |
| Maturity Date at its option, on, or on any Business Day after, |
| the Initial Redemption Date in whole or from time to time in part |
| in increments of $1,000 or any other integral multiple of an |
| authorized denomination of the Notes at the applicable Redemption |
| Price together with any unpaid interest accrued thereon, any |
| Additional | Amounts and other amounts payable with respect |
| thereto, as of the Redemption Date. |
| (c) If (i) the Trust is required at any time to pay Additional |
| Amounts or if the Trust is obligated to withhold or deduct any |
| United States taxes with respect to any payment under the Notes, |
| as set forth in the Note Certificate(s), or if there is a |
| material probability that the Trust will become obligated to |
| withhold or deduct any such United States taxes or otherwise pay |
| Additional Amounts (in the opinion of independent legal counsel |
| selected by the Funding Agreement Provider), in each case |
| pursuant to any change in or amendment to any United States tax |
| laws (or any regulations or rulings thereunder) or any change in |
| position of the Internal | Revenue | Service | regarding | the |
| application or interpretation thereof (including, but not limited |
| to, the Funding Agreement Provider's or the Trust's receipt of a |
| written | adjustment | from the Internal | Revenue Service in |
| connection with an audit) (a "Tax Event"), and (ii) the Funding |
| Agreement Provider, pursuant to the terms of the relevant Funding |
| Agreement, has delivered to the Owner notice that the Funding |
| Agreement Provider intends to terminate the relevant Funding |
| Agreement pursuant to the terms of such Funding Agreement, then |
| the Trust will redeem the Notes on the Redemption Date at the |
| Redemption Price together with any unpaid interest accrued |
| thereon, any Additional Amounts and other amounts payable with |
| respect thereto, as of the Redemption Date. |
| (d) Unless a shorter notice shall be satisfactory to the Indenture |
| Trustee, the Trust shall provide to the Indenture Trustee a |
| notice of redemption of any Notes (i) in case of any redemption |
| at the election of the Trust, not more than 60 days nor less than |
| 35 days prior to the Redemption Date and (ii) in case of any |
| mandatory redemption pursuant to Section 3.1(c), at least 75 days |
| prior to the Redemption Date. In case of any redemption at the |
| election of the Trust of less than all of the Notes such notice |
| shall specify the aggregate principal amount of the Notes to be |
| (e) If less than all of the Notes are to be redeemed at the option of |
| the Trust, the particular Notes to be redeemed shall be selected |
| not more than 60 days prior to the Redemption Date by the |
| Indenture Trustee from the Outstanding Notes not previously |
| called for redemption, by such method as the Indenture Trustee |
| shall deem fair and appropriate, acting in accordance with its |
| obligations under the Indenture, and which may provide for the |
| selection for redemption of portions of the principal amount of |
| Notes; provided, however, that no such partial redemption shall |
| reduce the portion of the principal amount of a Note not redeemed |
| to less than the minimum denomination for a Note established in |
| or pursuant to the Indenture; provided further, that if at the |
| time of | redemption | such Notes are | registered as Global |
| Securities, the Depositary shall determine, in accordance with |
| its procedures, the principal amount of such Notes to be redeemed |
| by each of the Depositary's participants. The Indenture Trustee |
| shall promptly notify the Trust and the Registrar (if other than |
| itself) in writing of the Notes selected for redemption and, in |
| the case of any Notes selected for partial redemption, of the |
| aggregate principal amount thereof to be redeemed. For all |
| purposes of the Indenture, unless the context otherwise requires, |
| all provisions relating to the redemption of Notes shall relate, |
| in the case of any Notes redeemed or to be redeemed only in part, |
| to the portion of the principal of such Notes which has been or |
| (f) Unless | otherwise | specified in the Indenture or the Note |
| Certificate(s) the Trust shall give a notice of redemption to |
| each Holder of the Notes to be redeemed at the Trust's option (i) |
| in case of any redemption at the election of the Trust, not more |
| than 60 days nor less than 30 days prior to the Redemption Date |
| and (ii) in case of any mandatory redemption pursuant to Section |
| 3.1(c), not more than 75 days nor less than 30 days prior to the |
| Redemption Date; provided, that in the case of any notice of |
| redemption given pursuant to clause (ii) no such notice of |
| redemption may be given earlier than 90 days prior to the |
| earliest day on which the Trust would become obligated to pay the |
| applicable Additional Amounts were a payment in respect of Notes |
| then due. Failure to give such notice to the Holder of any Note |
| designated for redemption in whole or in part, or any defect in |
| the notice to any such Holder, shall not affect the validity of |
| the proceedings for the redemption of any other Note or any |
| Any notice that is mailed to the Holder of any Notes in the manner provided |
for in Section 13.4 shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
| All notices of redemption shall state: |
| (ii) the Redemption Price or, if not then ascertainable, the |
| manner of calculation thereof, |
| (iii) in case of any redemption at the election of the Trust, if |
| less than all Outstanding Notes are to be redeemed, the |
| identification (and, in the case of partial redemption, the |
| principal amount) of the particular Note or Notes to be |
| (iv) in case any Note is to be redeemed in part only at the |
| election of the Trust, the notice which relates to such Note |
| shall state that on and after the Redemption Date, upon |
| surrender of the Note Certificate representing such Note, |
| the Holder of such Note will receive, without charge, a new |
| Note Certificate representing an authorized denomination of |
| the principal amount of such Note remaining unredeemed, |
| (v) that, on the Redemption Date, the Redemption Price shall |
| become due and payable upon each such Note or portion |
| thereof to be redeemed, and, if applicable, that interest |
| thereon shall cease to accrue on and after the Redemption |
| Date, the place or places where each Note Certificate |
| representing such Note or Notes is to be surrendered for |
| payment of the Redemption Price together with any unpaid |
| interest accrued thereon through the Redemption Date and any |
| Additional Amounts payable with respect thereto, |
| (vi) if applicable, in case of any redemption at the election of |
| the Trust, that the redemption is for a sinking fund, and |
| (vii) the CUSIP number or any other numbers used to identify such |
| (g) On or prior to any Redemption Date, the Trust shall deposit, with |
| respect to any Notes called for redemption pursuant to this |
| Section, with the Paying Agent an amount of money in the |
| Specified Currency sufficient to pay the Redemption Price of, and |
| (except if the Redemption Date shall be an Interest Payment Date, |
| unless otherwise specified in the Note Certificate(s)) any unpaid |
| interest | accrued through the Redemption Date on, and any |
| Additional Amounts payable with respect to, all such Notes or |
| portions thereof which are to be redeemed on the Redemption Date. |
| (h) On the Redemption Date, the Notes to be redeemed shall become due |
| and payable at the Redemption Price together with any unpaid |
| interest | accrued through the Redemption Date on, and any |
| Additional Amounts payable with respect to, such Notes, and from |
| and after such date (unless the Trust shall default in the |
| payment of the Redemption Price and any unpaid interest accrued |
| on such Notes through the Redemption Date) such Notes shall cease |
| to bear interest. Upon surrender of any Note Certificate for |
| redemption of any Note or Notes represented thereby in accordance |
| with the applicable notice of redemption, such Note shall be paid |
| by the Trust at the Redemption Price, together with any unpaid |
| interest accrued thereon through the Redemption Date and any |
| Additional Amounts payable with respect thereto. |
| (i) If any Note called for redemption shall not be so paid upon |
| surrender of the applicable Note Certificate for redemption, the |
| principal and any premium, until paid, shall bear interest from |
| the | Redemption | Date at the rate | specified in the Note |
| Upon surrender of any Note Certificate for partial redemption of any Note |
or Notes represented thereby in accordance with this Section, the Trust shall
execute and the Indenture Trustee shall authenticate and deliver one or more new
Note Certificates of any authorized denomination representing an aggregate
principal amount of Notes equal to the unredeemed portion of the applicable Note
or Notes.
| SECTION 3.2 Repayment at the Option of the Holder. |
| (a) If so specified in the Note Certificate(s), the Holder or Holders |
| of the Notes may require the Trust to repay the Notes prior to |
| the Stated Maturity Date in whole or from time to time in part in |
| increments of $1,000 or any other integral multiple of an |
| authorized denomination specified in the Note Certificate(s) |
| (provided that any remaining principal amount thereof shall be at |
| least $1,000 or other minimum authorized denomination applicable |
| (b) Notes which are repayable at the option of the Holder or Holders |
| thereof before the Stated Maturity Date shall be repaid in |
| accordance with the terms of the Notes. |
| (c) The repayment of any principal amount of Notes pursuant to any |
| option of the applicable Holder or Holders to require repayment |
| of any Notes before the Stated Maturity Date shall not operate as |
| a payment, | redemption or satisfaction of the indebtedness |
| represented by such Notes unless and until the Trust, at its |
| option, | shall deliver or surrender each Note | Certificate |
| representing such Notes to the Indenture Trustee with a directive |
| that such Note Certificates be cancelled. |
| (d) Notwithstanding anything to the contrary contained in this |
| Section, in connection with any repayment of Notes, the Trust may |
| arrange for the purchase of any Notes by an agreement with one or |
| more investment bankers or other purchasers to purchase such |
| Notes by paying the Holder or Holders of such Notes on or before |
| the close of business on the Repayment Date an amount not less |
| than the Repayment Price payable by the Trust on repayment of |
| such Notes, and the obligation of the Trust to pay the Repayment |
| Price of such Notes shall be satisfied and discharged to the |
| extent such payment is so paid by such purchasers. |
| (e) Any exercise of the repayment option will be irrevocable. |
| SECTION 3.3 Repurchase of Notes. |
| (a) The Trust may purchase some or all Notes in the open market or |
| otherwise at any time, and from time to time, with the prior |
| written consent of the Funding Agreement Provider as to both the |
| making of such purchase and the purchase price to be paid for |
| (b) If the Funding Agreement Provider, in its sole discretion, |
| consents to such purchase of Notes by the Trust, the parties to |
| the Indenture agree to take such actions as may be necessary or |
| desirable to effect the prepayment of such portion, or the |
| entirety, of the current Principal Amount, under each applicable |
| Funding Agreement as may be necessary to provide for the payment |
| of the purchase price for such Notes. Upon such payment, the |
| Principal Amount under each Funding Agreement shall be reduced |
| (i) if Notes bear interest at fixed or floating rates, by an |
| amount equal to the aggregate principal amount of Notes so |
| purchased (or the portion thereof applicable to such Funding |
| Agreement) and (ii) if Notes do not bear interest at fixed or |
| floating rates, by an amount to be agreed between the Trust and |
| the Funding Agreement Provider to reflect such prepayment under |
| the Funding Agreement(s). |
| (c) The parties acknowledge and agree that (i) notwithstanding |
| anything to the contrary in the Indenture, any repurchase of |
| Notes in compliance with this Section 3.3 shall not violate any |
| provision of the Indenture or the Trust Agreement and (ii) no |
| Opinion of Counsel, Trust Certificate or any other document or |
| instrument shall be required to be provided in connection with |
| any repurchase of Notes pursuant to this Section 3.3. |
| (d) If applicable, the Trust will comply with the requirements of |
| Section 14(e) of the Exchange Act, and the rules promulgated |
| thereunder, | and any other | applicable | securities laws or |
| regulations in connection with any repurchase pursuant to this |
| SECTION 3.4 Sinking Funds. |
| Unless otherwise provided in the Note Certificate(s), the Notes will not be |
subject to, or entitled to the benefit of, any sinking fund.
| PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS |
| SECTION 4.1 Payment of Principal and Interest. |
| (a) The Trust will duly and punctually pay or cause to be paid the |
| principal of, any premium and interest on, and any Additional |
| Amounts with respect to, each of the Notes, in accordance with |
| the terms of the Notes and the Indenture. |
| (b) Unless otherwise specified in the Note Certificate(s), upon the |
| receipt of the funds necessary therefor, the applicable Paying |
| Agent shall duly and punctually make payments, payable on the |
| Maturity Date, of principal in respect of, any premium and |
| interest on, and any Additional Amounts payable with respect to, |
| any Certificated Notes in immediately available funds against |
| presentation and surrender of the applicable Definitive Security |
| (and in the case of any repayment of a Note pursuant to Section |
| 3.2, upon submission of a duly completed election form at an |
| office or agency of such Paying Agent maintained for such purpose |
| pursuant to Section 4.3). The applicable Paying Agent (unless |
| such Paying Agent is the Indenture Trustee) shall promptly |
| forward each Definitive Security surrendered to it in connection |
| with any payment pursuant to this Section for cancellation in |
| accordance with Section 2.9. Unless otherwise specified in the |
| Note Certificate(s), upon the receipt of the funds necessary |
| therefor, the applicable Paying Agent shall duly and punctually |
| make payments of principal of, any premium and interest on, and |
| any Additional Amounts in respect of, Certificated Notes payable |
| on any date other than the Maturity Date by check mailed to the |
| Holder (or to the first named of joint Holders) of such |
| Certificated Note at the close of business on the Regular |
| Interest Record Date or Special Interest Record Date, as the case |
| may be, at its address appearing in the applicable Note Register. |
| Notwithstanding the foregoing, the applicable Paying Agent shall |
| make payments of principal, any interest, any premium, and any |
| Additional Amounts on any date other than the Maturity Date to |
| each Holder entitled thereto (or to the first named of joint |
| Holders) at the close of business on the applicable Regular |
| Interest Record Date or Special Interest Record Date, as the case |
| may be, of $10,000,000 (or, if the Specified Currency is other |
| than United States dollars, the equivalent thereof in the |
| particular Specified Currency) or more in aggregate principal |
| amount of Certificated Notes by wire transfer of immediately |
| available | funds if the | applicable | Holder has | delivered |
| appropriate | wire transfer | instructions in writing to the |
| applicable Paying Agent not less than 15 days prior to the date |
| on which the applicable payment of principal, interest, premium |
| or Additional Amounts is scheduled to be made. Any wire transfer |
| instructions received by the applicable Paying Agent shall remain |
| in effect until revoked by the applicable Holder. |
| (c) Unless otherwise specified in the Note Certificate(s), upon |
| receipt of the funds necessary therefor, on the Maturity Date the |
| applicable Paying Agent shall (in the absence of any other |
| arrangements | between the applicable | Paying Agent and the |
| applicable Holder) duly and punctually make payments, payable on |
| the Maturity Date, of principal in respect of, any premium and |
| interest payable on, and any Additional Amounts with respect to, |
| any Book-Entry Notes to the account of the Depositary or its |
| nominee at the close of business on the applicable Maturity Date. |
| The applicable Paying Agent (unless such Paying Agent is the |
| Indenture Trustee) shall promptly forward to the Indenture |
| Trustee each Global Security surrendered to it in connection with |
| any payment | pursuant to this section for cancellation in |
| accordance with Section 2.9. Unless otherwise specified in the |
| Note Certificate(s), upon the receipt of the funds necessary |
| therefor in accordance with Section 4.5(b), the applicable Paying |
| Agent shall duly and punctually make payments of principal of, |
| any premium and interest on, and any Additional Amounts in |
| respect of, any Book-Entry Notes payable on any date other than |
| the Maturity Date to the Holder of such Book-Entry Notes by 11:00 |
| a.m. (New York City time) on the applicable Regular Interest |
| Record Date or Special Interest Record Date, as the case may be, |
| to the account of the Depositary or its nominee. |
| (d) Unless otherwise specified in the Note Certificate(s), the Trust |
| shall be obligated to make, or cause to be made, payments of |
| principal of, any premium and interest on, and any Additional |
| Amounts with respect to, a Foreign Currency Note in the Specified |
| Currency. Any amounts so payable by the Trust in the Specified |
| Currency will be converted by the Exchange Rate Agent into United |
| States dollars for payment to the Holder or Holders thereof |
| unless otherwise specified in the Note Certificate(s) or a Holder |
| elects to receive such amounts in the Specified Currency as |
| (e) Unless otherwise specified in the Note Certificate(s), any United |
| States dollar amount to be received by the Holder or Holders of |
| Foreign Currency Notes will be based on the highest bid quotation |
| in The City of New York received by the Exchange Rate Agent at |
| approximately 11:00 a.m. (New York City time) on the second |
| Business Day preceding the applicable payment date from three |
| recognized foreign exchange dealers (one of whom may be the |
| Exchange Rate Agent) selected by the Exchange Rate Agent and |
| approved by the Trust for the purchase by the quoting dealer of |
| the Specified Currency for United States dollars for settlement |
| on that payment date in the aggregate amount of the Specified |
| Currency payable to the Holder or Holders of Foreign Currency |
| Notes scheduled to receive United States dollar |
| payments and at which the applicable dealer commits to execute a |
| contract. All currency exchange costs will be borne by the |
| relevant | Holder or Holders of Foreign | Currency Notes by |
| deductions from any payments. If three bid quotations are not |
| available, payments will be made in the Specified Currency. |
| (f) Holders of Foreign Currency Notes may elect to receive all or a |
| specified | portion of any payment of principal and/or any |
| interest, | premium and Additional Amounts in the Specified |
| Currency by submitting a written request to the Indenture Trustee |
| at its Corporate Trust Office in The City of New York on or prior |
| to the applicable Regular Interest Record Date or Special |
| Interest Record Date or at least 15 calendar days prior to the |
| Maturity Date, as the case may be. Such written request may be |
| mailed or hand delivered or sent by cable, telex or other form of |
| facsimile transmission. Such election will remain in effect until |
| revoked by written notice delivered to the Indenture Trustee on |
| or prior to the applicable Regular Interest Record Date or |
| Special Interest Record Date or at least 15 calendar days prior |
| to the Maturity Date, as the case may be. |
| (g) Unless otherwise specified in the Note Certificate(s), | an |
| Entitlement Holder with respect to a Foreign Currency Note |
| represented by a Global Security which elects to receive payments |
| of principal, and/or any interest, premium and Additional Amounts |
| in the Specified Currency must notify the applicable Depositary's |
| participant through which it owns its interest on or prior to the |
| applicable Regular Interest Record Date or Special Interest |
| Record Date, or at least 15 calendar days prior to the Maturity |
| Date, as the case may be, of its election. The applicable |
| participant must notify the Depositary of such election on or |
| prior to the third Business Day after the applicable Regular |
| Interest Record Date or Special Interest Record Date, or at least |
| 12 calendar days prior to the Maturity Date, as the case may be, |
| and the Depositary will notify the Indenture Trustee of that |
| election on or prior to the fifth Business Day after the |
| applicable Regular Interest Record Date or Special Interest |
| Record Date, or at least 10 calendar days prior to the Maturity |
| Date, as the case may be. If complete instructions are received |
| by the applicable Depositary's participant from the applicable |
| Entitlement Holder and forwarded by the participant to the |
| Depositary, and by the Depositary to the Indenture Trustee, on or |
| prior to such dates, then the applicable Entitlement Holder will |
| receive payments in the Specified Currency. |
| (h) Notwithstanding anything to the contrary in this Indenture, if |
| the Specified | Currency for Foreign Currency Notes is not |
| available for any required payment of principal and/or any |
| interest, premium and Additional Amounts due to the imposition of |
| exchange controls or other circumstances beyond the Trust's |
| control, the Trust will be entitled to satisfy its obligations |
| with respect to such Foreign Currency Notes by making, or causing |
| to be made, payments in United States dollars based on the Market |
| Exchange Rate computed by the Exchange Rate Agent on the second |
| Business Day prior to the particular payment date or, if the |
| Market Exchange Rate is not then available, on the basis of the |
| most recently available Market Exchange Rate. |
| (i) All determinations made by the Exchange Rate Agent shall be at |
| its sole discretion and shall, in the absence of manifest error, |
| be conclusive for all purposes and binding on the Holder or |
| Holders of Foreign Currency Notes and any applicable Entitlement |
| SECTION 4.2 Collection Account. Global Funding shall, on or prior to the |
Original Issue Date, establish a non-interest bearing account with the Indenture
Trustee or such other depository institution that is rated at least AA by
Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies,
Inc. or Aa2 by Moody's Investors Services, Inc., or has an equivalent rating
from another nationally recognized statistical rating organization as may be
designated by the Trust (the "Collection Account"), into which account shall be
deposited payments received under the applicable Funding Agreement(s) and which
account shall be segregated from other accounts held by the Indenture Trustee or
such other depositary institution.
| SECTION 4.3 Offices for Payments, Etc. |
| (a) So long as any of the Notes remain Outstanding, the Trust will |
| maintain in New York and in any other city that may be required |
| by any stock exchange on which the Notes may be listed, and in |
| any city specified in the Note Certificate(s) the following: (i) |
| an office or agency where the Notes may be presented for payment, |
| (ii) an office or agency where the Notes may be presented for |
| registration of transfer and for exchange as provided in the |
| Indenture and (iii) an office or agency where notices and demands |
| to or upon the Trust in respect of the Notes or of the Indenture |
| may be served. The Trust will give to the Indenture Trustee |
| written notice of the location of any such office or agency and |
| of any change of location thereof. The Trust initially designates |
| the Corporate Trust Office of the Indenture Trustee as the office |
| or agency for each such purpose. In case the Trust shall |
| fail to maintain any such office or agency or shall fail to give |
| such notice of the location or of any change in the location |
| thereof, presentations and demands may be made and notices may be |
| served at the Corporate Trust Office. |
| (b) The Trust hereby agrees to issue a standing order to the |
| Indenture Trustee, pursuant to which the Indenture Trustee, |
| either directly or through any Paying Agent, shall distribute all |
| amounts due and unpaid under Section 3.1(b) of the Standard Trust |
| Terms. For so long as (i) the Trust has not rescinded the |
| standing order (notice of such rescission to be promptly given by |
| the Trust to the Indenture Trustee) and (ii) the Indenture |
| Trustee, either directly or through any Paying Agent is able to, |
| and does, comply with the standing order, the Trust will not be |
| required to establish a Payment Account (as defined in the |
| Standard Trust Terms) in accordance with Section 3.1 of the |
| SECTION 4.4 Appointment to Fill a Vacancy in Office of Indenture Trustee. |
The Trust, whenever necessary to avoid or fill a vacancy in the office of
Indenture Trustee, will appoint, in the manner provided in Section 6.8, a
trustee, so that there shall at all times be a trustee under the Indenture.
| SECTION 4.5 Paying Agents. |
| (a) Unless otherwise provided in or pursuant to the Indenture, the |
| Trust appoints the Indenture Trustee as Paying Agent with respect |
| to the Notes and the Indenture Trustee accepts such appointment. |
| The Indenture Trustee, in its capacity as Paying Agent, agrees, |
| and, whenever the Trust shall appoint a Paying Agent other than |
| the Indenture Trustee with respect to the Notes, the Trust will |
| cause such Paying Agent to execute and deliver to the Trust and |
| the Indenture Trustee an instrument in which such Paying Agent |
| shall agree with the Trust and the Indenture Trustee, subject to |
| the provisions of this Section, that it will: |
| (i) hold all sums received by it as such agent for the payment |
| of the principal of, any premium or interest on, or any |
| Additional Amounts with respect to, the Notes (whether such |
| sums have been paid to it by the Funding Agreement Provider, |
| the Trust or by any other obligor on the Notes) in trust for |
| the benefit of each Holder of the Notes; |
| (ii) give the Indenture Trustee notice of any failure by the |
| Trust (or by any other obligor on the Notes) to make any |
| payment of the principal of, any premium and interest on, |
| or any Additional Amounts with respect to, the Notes when |
| the same shall be due and payable; |
| (iii) pay any such sums so held in trust by it to the Indenture |
| Trustee upon the Indenture Trustee's written request at any |
| time during the continuance of the failure referred to in |
| (iv) in the absence of the failure referred in clause (ii) above, |
| pay any such sums so held in trust by it in accordance with |
| the Indenture and the terms of the Notes; and |
| (v) comply with all agreements of Paying Agents in, and perform |
| all functions and obligations imposed on Paying Agents by or |
| pursuant to, the Indenture and a Note Certificate or |
| (b) At or prior to 9:30 a.m. (New York City time) on each due date of |
| the principal of, any premium and interest on, or any Additional |
| Amounts with respect to, the Notes, the Trust will deposit or |
| cause to be deposited with the applicable Paying Agent a sum |
| sufficient to pay such principal, any interest or premium, and |
| any Additional Amounts, and (unless such Paying Agent is the |
| Indenture Trustee) the Trust will promptly notify the Indenture |
| Trustee of any failure to take such action. |
| (c) Anything in this Section to the contrary notwithstanding, the |
| Trust may at any time, | for the purpose of | obtaining a |
| satisfaction and discharge of the Notes under the Indenture, pay |
| or cause to be paid to the Indenture Trustee all sums held in |
| trust by the Trust or any Paying Agent under the Indenture, as |
| required by this Section, such sums to be held by the Indenture |
| Trustee upon the terms contained in the Indenture. |
| (d) Anything in this Section to the contrary notwithstanding, the |
| agreement to hold sums in trust as provided in this Section are |
| subject to the provisions of Sections 11.3 and 11.4. |
| (e) The applicable Paying Agent shall (i) collect all forms from |
| Holders of Notes (or from such other Persons as are relevant) |
| that are required to exempt payments under the Notes and/or the |
| related Funding Agreement(s) from United States Federal income |
| tax withholding, (ii) withhold and pay over to the Internal |
| Revenue Service or other taxing authority with respect to |
| payments under the Notes any amount of taxes required to be |
| withheld by any United States Federal, state or local statute, |
| rule or regulation and (iii) forward copies of such forms to the |
| Trust and the Funding Agreement Provider. |
| (f) Each Paying Agent shall forward to the Trust at least monthly a |
| bank statement in its possession with respect to the performance |
| of its functions and obligations with respect to any Notes. |
| (g) The Trust shall pay the compensation of each Paying Agent at such |
| rates as shall be agreed upon in writing by the Trust and the |
| relevant Paying Agent from time to time and shall reimburse each |
| Paying Agent for reasonable expenses properly incurred by such |
| Paying Agent in connection with the performance of its duties |
| upon receipt of such invoices as the Trust shall reasonably |
| (h) Subject as provided below, each Paying Agent may at any time |
| resign as Paying Agent by giving not less than 60 days' written |
| notice to the Trust and the Indenture Trustee (unless the |
| Indenture Trustee is such Paying Agent) of such intention on its |
| part, specifying the date on which its resignation shall become |
| effective. Except as provided below, the Trust may remove a |
| Paying Agent by giving not less than 20 days' written notice |
| specifying such removal and the date when it shall become |
| effective. Any such resignation or removal shall take effect |
| (i) the appointment by the Trust of a successor Paying Agent; |
| (ii) the acceptance of such appointment by such successor Paying |
| provided that with respect to any Paying Agent who timely |
| receives any amount with respect to any Notes and fails duly to |
| pay any such amounts when due and payable in accordance with the |
| terms of the Indenture and such Notes, any such removal will take |
| effect immediately upon such appointment of, and acceptance |
| thereof by, a successor Paying Agent approved by the Indenture |
| Trustee (unless the Indenture Trustee is such Paying Agent), in |
| which event notice of such appointment shall be given to each |
| Holder of the Notes as soon as practicable thereafter. The Trust |
| agrees with each Paying Agent that if, by the day falling 10 days |
| before the expiration of any notice given pursuant to this |
| Section 4.5(i), the Trust has not appointed a replacement Paying |
| Agent, then the Paying Agent shall be entitled, on behalf of the |
| Trust, to appoint in its place a reputable financial institution |
| of good standing reasonably acceptable to the Trust and the |
| Indenture Trustee (unless the Indenture Trustee is such Paying |
| Agent); provided, however, that notwithstanding the foregoing, |
| the resignation or removal of the relevant Paying Agent shall not |
| be effective unless, upon the expiration of the notice given |
| pursuant to this Section 4.5(i), the successor Paying Agent shall |
| have accepted its appointment. Upon its resignation or removal |
| becoming effective, the retiring Paying Agent shall be entitled |
| to the payment of its compensation and reimbursement of all |
| expenses incurred by such retiring Paying Agent pursuant to |
| Section 4.5(h) up to the effective date of such resignation or |
| (i) If at any time a Paying Agent shall resign or be removed, or |
| shall become incapable of acting with respect to the Notes, or |
| shall be adjudged as bankrupt or insolvent, or a receiver or |
| liquidator of such Paying Agent or of its property shall be |
| appointed, or any public officer shall take charge or control of |
| such Paying Agent or its property or affairs for the purpose of |
| rehabilitation, conservation or liquidation, then a successor |
| Paying Agent shall be appointed by the Trust by an instrument in |
| writing filed with the successor Paying Agent. Upon any such |
| appointment of, and the acceptance of such appointment by, a |
| successor Paying Agent and (except in cases of removal for |
| failure to timely pay any amounts as required by or pursuant to |
| the Indenture or a Note Certificate or Supplemental Indenture) |
| the giving of notice to each Holder of the Notes, the retiring |
| Paying Agent shall cease to be Paying Agent under the Indenture. |
| (j) Any successor Paying Agent appointed under the Indenture shall |
| execute and deliver to its predecessor, the Trust and the |
| Indenture Trustee (unless the Indenture Trustee is such Paying |
| Agent) a reasonably | acceptable | instrument | accepting such |
| appointment under the Indenture, and thereupon such successor |
| Paying Agent, without any further act, deed or conveyance, shall |
| become vested with all the authority, rights, powers, trusts, |
| immunities, duties and obligations of such predecessor with like |
| effect as if originally named as a Paying Agent under the |
| Indenture, and such predecessor, upon payment of any amounts due |
| pursuant to Section 4.5(h) and unpaid, shall thereupon become |
| obliged to transfer and deliver, and such successor Paying Agent |
| shall be entitled to receive, copies of any relevant records |
| maintained by such predecessor Paying Agent. |
| (k) Any entity into which a Paying Agent may be merged or converted |
| or with which it may be consolidated or any entity resulting from |
| any merger, conversion or consolidation to which such Paying |
| Agent shall be a party, or any entity succeeding to all or |
| substantially all of the paying agency business of such Paying |
| Agent shall be a successor Paying Agent under the Indenture |
| without the execution or filing of any paper or any further act |
| on the part of any of the parties, anything in the Indenture to |
| the contrary notwithstanding. At least 30 days' prior notice of |
| any such merger, conversion or consolidation shall be given to |
| the Trust and the Indenture Trustee (unless the Indenture Trustee |
| SECTION 4.6 Calculation Agent. |
| (a) Unless otherwise provided in or pursuant to the Indenture, the |
| Trust appoints the Indenture Trustee as Calculation Agent, and |
| the Indenture Trustee accepts such appointment. |
| (b) The relevant Calculation Agent shall perform all functions and |
| obligations imposed on such Calculation Agent by or pursuant to |
| the Indenture, and a Note Certificate or Supplemental Indenture. |
| (c) Each Calculation Agent, excluding the Indenture Trustee, shall |
| forward to the Trust at least monthly a report providing details |
| with respect to the performance of its functions and obligations |
| with respect to the Notes which shall include dates and amounts |
| of forthcoming payments with respect to the Notes. |
| (d) The relevant Calculation Agent shall, upon the request of any |
| relevant Holder of the Notes, provide the interest rate then in |
| effect and, if determined, the interest rate that will become |
| effective as a result of a determination made for the next |
| succeeding Interest Reset Date with respect to the Notes. |
| (e) All determinations of interest by the Calculation Agent shall, in |
| the absence of manifest errors, be conclusive for all purposes |
| and binding on the Holders of the Notes. |
| (f) The Trust shall pay the compensation of each Calculation Agent at |
| such rates as shall be agreed upon in writing by the Trust and |
| the relevant Calculation Agent from time to time and shall |
| reimburse each Calculation Agent for reasonable expenses properly |
| incurred by such Calculation Agent in connection with the |
| performance of its duties upon receipt of such invoices as the |
| Trust shall reasonably require. | The Trust also agrees to |
| indemnify each Calculation Agent for, and to hold it harmless |
| against, | any loss, | liability or expense incurred without |
| negligence or bad faith on its part, arising out of or in |
| connection with the acceptance or administration of its duties |
| under the Indenture, | including the costs and expenses of |
| defending itself against or investigating any claim of liability |
| in connection with the exercise or performance of any of its |
| powers or duties under the Indenture. |
| (g) Subject as provided below, each Calculation Agent may at any time |
| resign as Calculation Agent by giving not less than 60 days' |
| written notice to the Trust and the Indenture Trustee (unless the |
| Indenture Trustee is such Calculation Agent) of such intention on |
| its part, specifying the date on which its resignation shall |
| become effective. Except as provided below, the Trust may remove |
| a Calculation Agent by giving not less than 20 days' written |
| notice specifying such removal and the date when it shall become |
| effective. Any such resignation or removal shall take effect |
| (i) the appointment by the Trust of a successor Calculation |
| (ii) the acceptance of such | appointment by such successor |
| provided that with respect to any Calculation Agent who fails |
| duly to establish the interest rate or amount for any Interest |
| Reset Period, any such removal will take effect immediately upon |
| such appointment of, and acceptance thereof by, a successor |
| Calculation Agent approved by the Indenture Trustee (unless the |
| Indenture Trustee is such Calculation Agent), in which event |
| notice of such appointment shall be given to each Holder of the |
| Notes as soon as practicable thereafter. The Trust agrees with |
| each Calculation Agent that if, by the day falling 10 days before |
| the expiration of any notice given pursuant to this Section |
| 4.6(g), the Trust has not appointed a replacement Calculation |
| Agent, then the Calculation Agent shall be entitled, on behalf of |
| the Trust, to appoint in its place a reputable financial |
| institution of good standing reasonably acceptable to the Trust |
| and the Indenture Trustee (unless the Indenture Trustee is such |
| Calculation Agent); provided, however, that notwithstanding the |
| foregoing, the resignation or removal of the relevant Calculation |
| Agent shall not be effective unless, upon the expiration of the |
| notice given pursuant to this Section 4.6(g), the successor |
| Calculation Agent shall have accepted its appointment. Upon its |
| resignation | or removal | becoming | effective, | the retiring |
| Calculation Agent shall be entitled to the payment of its |
| compensation and reimbursement of all expenses incurred by such |
| retiring Calculation Agent pursuant to Section 4.6(f) up to the |
| effective date of such resignation or removal. |
| (h) If at any time a Calculation Agent shall resign or be removed, or |
| shall become incapable of acting with respect to the Notes, or |
| shall be adjudged as bankrupt or insolvent, or a receiver or |
| liquidator of such Calculation Agent or of its property shall be |
| appointed, or any public officer shall take charge or control of |
| such Calculation Agent or its property or affairs for the purpose |
| of rehabilitation, conservation or liquidation, then a successor |
| Calculation | Agent shall be appointed by the Trust by an |
| instrument in writing filed with the successor Calculation Agent. |
| Upon any such appointment of, and the acceptance of such |
| appointment by, a successor Calculation Agent and (except in |
| cases of removal for failure to establish the amount of interest) |
| the giving of notice to each Holder of the Notes, the retiring |
| Calculation Agent shall cease to be Calculation Agent under the |
| (i) Any successor Calculation Agent appointed under the Indenture |
| shall execute and deliver to its predecessor, the Trust and the |
| Indenture | Trustee | (unless the Indenture | Trustee is such |
| Calculation Agent) a reasonably acceptable instrument, accepting |
| such appointment | under the Indenture, | and thereupon such |
| successor Calculation Agent, without any further act, deed or |
| conveyance, shall become vested with all the authority, rights, |
| powers, trusts, immunities, duties and obligations of such |
| predecessor with like effect as if originally named as a |
| Calculation Agent under the Indenture, and such predecessor, upon |
| payment of any amounts due pursuant to Section 4.6(f) and unpaid, |
| shall thereupon become obliged to transfer and deliver, and such |
| successor Calculation Agent shall be entitled to receive, copies |
| of any relevant | records | maintained | by such | predecessor |
| (j) Any entity into which a Calculation Agent may be merged or |
| converted or with which it may be consolidated or any entity |
| resulting from any merger, conversion or consolidation to which |
| such Calculation Agent shall be a party, or an entity succeeding |
| to all or substantially all of the paying agency business of such |
| Calculation Agent shall be a successor Calculation Agent under |
| the Indenture without the execution or filing of any paper or any |
| further act on the part of any of the parties hereto, anything in |
| the Indenture to the contrary notwithstanding. At least 30 days' |
| prior notice of any such merger, conversion or consolidation |
| shall be given to the Trust and the Indenture Trustee (unless the |
| Indenture Trustee is such Calculation Agent). |
| SECTION 4.7 Certificate to Indenture Trustee. The Trust will furnish to the |
Indenture Trustee on or before May 15 of each year commencing with the first May
15 following the issuance of any Notes a brief certificate (which need not
comply with Section 13.5) as to its knowledge of the Trust's compliance with all
conditions and covenants under the Indenture (which will be determined without
regard to any period of grace or requirement of notice provided under the
Indenture).
| SECTION 4.8 Negative Covenants. So long as any Notes are Outstanding, the |
Trust will comply with all of its covenants set forth in Section 6.1(b) of the
Standard Trust Terms.
| SECTION 4.9 Non-Petition. |
| Each of the Indenture Trustee, each other party hereto and each Holder |
covenants and agrees that, for a period of one year plus one day after payment
in full of all amounts payable under or in respect of the Indenture and the
Notes, it will not institute against, or join any other Person in instituting
against, the Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law. The immediately preceding sentence shall survive any
termination of the Indenture.
| Notwithstanding the foregoing, each of the Indenture Trustee and each other |
party hereto covenants and agrees that it will not institute against, or join
any other | Person in | instituting | against, | the Trust any | bankruptcy, |
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law, as a result of
the failure to pay fees or expenses pursuant to Section 6.6 to any party
entitled thereto.
| Moreover, each of the Indenture Trustee and each other party hereto |
covenants and agrees that it will not cause an Event of Default as a result of
the Trust's failure to pay any fees or expenses to any party entitled thereto
under the Indenture.
| SECTION 4.10 Additional Amounts. |
| If the Note Certificate(s) provide for the payment of Additional Amounts, |
the Trust agrees to pay to the Holder of any such Note Additional Amounts as
provided in the Note Certificate(s). Whenever in the Indenture there is
mentioned, in any context, the payment of the principal of, or interest or
premium on, or in respect of, any Note or the net proceeds received on the sale
or exchange of any Note, such reference shall be
deemed to include reference to the payment of Additional Amounts provided by the
terms established by the Indenture or pursuant to the Indenture to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms, and express reference to the payment of
Additional Amounts in any provision of the Indenture shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
reference is not made.
| If the Note Certificate(s) provide for the payment of Additional Amounts, |
the Note Certificate will provide that the Trust will pay, or cause to be paid,
Additional Amounts to a Holder of Notes to compensate for any withholding or
deduction for or on account of any present or future taxes, duties, levies,
assessments or governmental charges of whatever nature imposed or levied on
payments on the Notes by or on behalf of any governmental authority in the
United States having the power to tax, so that the net amount received by the
Holder of the Notes, after giving effect to such withholding or deduction,
whether or not currently payable, will equal the amount that would have been
received under the Notes were no such deduction or withholding required;
provided that no such Additional Amounts shall be required for or on account of:
| (a) any tax, duty, levy, assessment or other governmental charge |
| imposed which would not have been imposed but for a Holder or |
| beneficial owner of one or more of the Notes, (i) having any |
| present or former connection with the United States, including, |
| without limitation, being or having been a citizen or resident |
| thereof, or having been present, having been incorporated in, |
| having engaged in a trade or business or having (or having had) a |
| permanent establishment or principal office therein, (ii) being a |
| controlled foreign corporation within the meaning of Section |
| 957(a) of the Code related (within the meaning of Section |
| 864(d)(4) of the Code) to the Funding Agreement Provider, (iii) |
| being a bank for United States Federal income tax purposes whose |
| receipt of interest on the Notes is described in Section |
| 881(c)(3)(A) of the Code, (iv) being an actual or constructive |
| owner of 10 percent or more of the total combined voting power of |
| all classes of stock of the Funding Agreement Provider entitled |
| to vote within the meaning of Section 871(h)(3) of the Code and |
| Treasury Regulations promulgated thereunder or (v) being subject |
| to backup withholding as of the date of the purchase by the |
| (b) any tax, duty, levy, assessment or other governmental charge |
| which would not have been imposed but for the presentation of any |
| Note (where presentation is required) for payment on a date more |
| than 30 days after the date on which such payment becomes due and |
| payable or the date on which payment is duly provided for, |
| (c) any tax, duty, levy, assessment or other governmental charge |
| which is imposed or withheld solely by reason of the failure of |
| the beneficial owner or a Holder of Notes to comply with |
| certification, | identification | or | information | reporting |
| requirements concerning the nationality, residence, identity or |
| connection with the United States of the beneficial owner or a |
| Holder of Notes, if compliance is required by statute, by |
| regulation of the United States Treasury Department, judicial or |
| administrative interpretation, other law or by an applicable |
| income tax treaty to which the United States is a party as a |
| condition to exemption from such tax, duty, levy, assessment or |
| other governmental charge; |
| (d) any inheritance, gift, estate, personal property, sales, transfer |
| or similar tax, duty, levy, assessment, or similar governmental |
| (e) any tax, duty, levy, assessment or other governmental charge that |
| is payable otherwise than by withholding from payments in respect |
| (f) any tax, duty, levy, assessment or other governmental charge |
| imposed by reason of payments on the Notes being treated as |
| contingent interest described in Section 871(h)(4) of the Code |
| for United States Federal income tax purposes provided that such |
| treatment was described in the Pricing Supplement; |
| (g) any tax, duty, levy, assessment or other governmental charge that |
| would not have been imposed but for an election by the Holder of |
| the Notes, the effect of which is to make payment in respect of |
| the Notes subject to United States Federal income tax or |
| withholding tax provisions; or |
| (h) any combination of items (a), (b), (c), (d), (e), (f) or (g) |
| REMEDIES OF THE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT |
| SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of |
Default.
| (a) "Event of Default" with respect to the Notes wherever used in the |
| Indenture, means each of the following events which shall have |
| occurred and be continuing (whatever the reason for such Event of |
| Default and whether it shall be voluntary or involuntary |
| or be effected by operation of law or pursuant to any judgment, |
| decree or order of any court or any order, rule or regulation of |
| any administrative or governmental body): |
| (i) default in the payment when due and payable of the principal |
| of, or any premium on, any Note; |
| (ii) default in the payment, when due and payable, of any |
| interest on, or any Additional Amounts with respect to, any |
| Note and continuance of such default for a period of five |
| (iii) any "Event of Default", as such term is defined in any |
| Funding Agreement | securing the Notes, by the Funding |
| Agreement Provider under such Funding Agreement or any |
| "Event of Default", as such term is defined in any Funding |
| Note, under such Funding Note; |
| (iv) the Trust shall fail to observe or perform any covenant |
| contained in the Notes or in the Indenture for a period of |
| 30 days after the date on which written notice specifying |
| such failure, stating that such notice is a "Notice of |
| Default" under the Indenture and demanding that the Trust |
| remedy the same, will have been given by registered or |
| certified mail, return receipt requested, to the Trust by |
| the Indenture Trustee, or to the Trust and the Indenture |
| Trustee by the Holder or Holders of at least 25% in |
| aggregate principal amount of the Notes Outstanding; or |
| (v) the Indenture for any reason shall cease to be in full force |
| and effect or shall be declared null and void, or the |
| Indenture Trustee shall fail to have or maintain a validly |
| created and first priority perfected security interest (or |
| the equivalent thereof) in the Collateral; or any Person |
| shall successfully claim, as finally determined by a court |
| of competent jurisdiction that any Lien for the benefit of |
| the Holders of the Notes and any other Person for whose |
| benefit the Indenture Trustee is or will be holding the |
| Collateral, that the Collateral is void or is junior to any |
| other Lien or that the enforcement thereof is materially |
| limited because of any preference, fraudulent transfer, |
| conveyance or similar law; |
| (vi) an involuntary case or other proceeding shall be commenced |
| against the Trust seeking liquidation, |
| reorganization or other relief with respect to it or its |
| debts under any bankruptcy, insolvency, reorganization or |
| other similar law or seeking the appointment of a trustee, |
| receiver, liquidator, custodian or other similar official of |
| it or any substantial part of its property, and such |
| involuntary | case or | other | proceeding | shall | remain |
| undismissed and unstayed for a period of 60 days; or an |
| order for relief shall be entered against the Trust under |
| the Federal bankruptcy laws as now or hereafter in effect; |
| (vii) the Trust commences a voluntary case or other proceeding |
| seeking liquidation, reorganization or other relief with |
| respect to itself or its debts under any bankruptcy, |
| insolvency, reorganization or other similar law or seeking |
| the | appointment of a trustee, | receiver, | liquidator, |
| custodian or other similar official of it or any substantial |
| part of its property, or consents to any such relief or to |
| the appointment of or taking possession by any such official |
| in an involuntary case or other proceeding commenced against |
| it, or makes a general assignment for the benefit of |
| creditors, or fails generally to pay its debts as they |
| become due, or takes any action to authorize any of the |
| (viii) any other Event of Default provided in any Supplemental |
| Indenture or in a Note Certificate. |
| (b) If one or more Events of Default shall have occurred and be |
| continuing with respect to the Notes, then, and in every such |
| event, unless the principal of all of the Notes shall have |
| already become due and payable, either the Indenture Trustee or |
| the Holder or Holders of not less than 25% in aggregate principal |
| amount of the Notes Outstanding under the Indenture by notice in |
| writing to the Trust (and to the Indenture Trustee if given by |
| such Holder or Holders), may declare the entire principal and |
| premium (if any) of all the Notes, any interest accrued thereon, |
| and any Additional Amounts due and owing and any other amounts |
| payable with respect thereto, to be due and payable immediately, |
| and upon any such declaration the same shall become immediately |
| due and payable; provided that, if any Event of Default specified |
| in Section 5.1(a)(vi) or 5.1(a)(vii) occurs with respect to the |
| Trust, | or if any Event of Default | specified in Section |
| 5.1(a)(iii) that would cause any Funding Agreement securing the |
| Notes to become immediately due and payable occurs with respect |
| to the Funding Agreement Provider, then |
| without any notice to the Trust or any other act by the Indenture |
| Trustee or any Holder of any Notes, the entire principal and |
| premium (if any) of all the Notes, any interest accrued thereon, |
| and any Additional Amounts due and owing, and any other amounts |
| payable with respect thereto, shall become immediately due and |
| payable without presentment, demand, protest or other notice of |
| any kind, all of which are hereby waived by the Trust. |
| (c) Notwithstanding | Section 5.1(b), if at any time after the |
| principal and premium of the Notes, any interest accrued thereon, |
| and any Additional Amounts due and owing and any other amounts |
| payable with respect thereto shall have been so declared due and |
| payable and before any judgment or decree for the payment of the |
| funds due shall have been obtained or entered as provided in the |
| Indenture, the Trust shall pay or shall deposit with the |
| Indenture Trustee a sum sufficient to pay all due and payable |
| interest on, and any Additional Amounts due and owing and any |
| other amounts payable with respect to, the Notes and the |
| principal and premium (if any) of any and all Notes which shall |
| have become due and payable otherwise than by acceleration |
| pursuant to Section 5.1(b) above (with interest on such principal |
| and, to the extent that payment of such interest is enforceable |
| under applicable law, on any overdue interest and any other |
| amounts payable, at the same rate as the rate of interest |
| specified in each Note Certificate to the date of such payment or |
| deposit) and such amount as shall be sufficient to cover |
| reasonable | compensation to the Indenture Trustee and each |
| predecessor Indenture Trustee, their respective agents, attorneys |
| and counsel, and all other expenses and liabilities incurred, and |
| all advances made, by the Indenture Trustee and each predecessor |
| Indenture Trustee except as a result of negligence or bad faith, |
| and if any and all Events of Default under the Indenture, other |
| than the non-payment of the principal of and premium (if any) on |
| the Notes which shall have become due by acceleration, shall have |
| been cured, waived or otherwise remedied as provided in the |
| Indenture, then and in every such case the Holder Representative |
| (as defined in Section 5.8(a) hereof), by written notice to the |
| Trust and to the Indenture Trustee, may waive all defaults and |
| rescind and annul such declaration and its consequences, but no |
| such waiver or rescission and annulment shall extend to or shall |
| affect any | subsequent | default or shall impair any right |
| SECTION 5.2 Collection of Indebtedness by Indenture Trustee; Indenture |
Trustee May Prove Debt.
| (a) Subject to Section 5.1(c), if any Event of Default contained in |
| Section 5.1(a)(i) or (ii) shall have occurred and be continuing, |
| the Trust will, upon demand by the Indenture Trustee, pay to the |
| Indenture Trustee for the benefit of each Holder of the Notes the |
| whole amount that then shall have become due and payable of the |
| principal of, any premium and interest on, and any Additional |
| Amounts due and owing and any other amounts payable with respect |
| to, the Notes (with interest to the date of such payment upon the |
| overdue principal and, to the extent that payment of such |
| interest is enforceable under applicable law, on overdue interest |
| and any other amounts payable at the same rate as the rate of |
| interest specified in the Notes); and in addition thereto, such |
| further amount as shall be sufficient to cover the costs and |
| expenses of collection, including reasonable compensation to the |
| Indenture Trustee and each predecessor Indenture Trustee, their |
| respective agents, attorneys and counsel, and any expenses and |
| liabilities incurred, and all advances made, by the Indenture |
| Trustee and each predecessor Indenture Trustee except as a result |
| of its negligence or bad faith. |
| (b) Until such demand is made by the Indenture Trustee, the Trust may |
| pay the principal of, any premium and interest on, and any |
| Additional Amounts due and owing and any other amounts payable |
| with respect to, the Notes to the Holders, whether or not the |
| (c) If the Trust shall fail to pay such amounts upon such demand, the |
| Indenture Trustee, in its own name and as trustee of an express |
| trust, shall be entitled and empowered to institute any action or |
| proceedings at law or in equity for the collection of the sums so |
| due and unpaid, and may prosecute any such action or proceedings |
| to judgment or final decree, and may enforce any such judgment or |
| final decree against the Trust or other obligor upon the Notes |
| and collect in the manner provided by law out of the property of |
| the Trust or other obligor upon the Notes, wherever the funds |
| adjudged or decreed to be payable are situated. If there shall be |
| pending proceedings relative to the Trust or any other obligor |
| upon the Notes under Title 11 of the United States Code or any |
| other applicable Federal or state bankruptcy, insolvency or other |
| similar law, or if a receiver, assignee or trustee in bankruptcy |
| or reorganization, liquidator, sequestrator or similar official |
| shall have been appointed for or |
| taken possession of the Trust or its property or such other |
| obligor, or in case of any other comparable judicial proceedings |
| relative to the Trust or other obligor upon the Notes, or to the |
| creditors or property of the Trust or such other obligor, the |
| Indenture Trustee, irrespective of whether the principal of the |
| Notes shall then be due and payable as therein expressed or by |
| declaration or otherwise and | irrespective | of whether the |
| Indenture Trustee shall have made any demand pursuant to the |
| provisions of this Section, shall be entitled and empowered, by |
| intervention in such proceedings or otherwise: |
| (i) to file such proofs of a claim or claims and to file such |
| other papers or documents as may be necessary or advisable |
| in order to have the claims of the Indenture Trustee |
| (including any claim for reasonable compensation to the |
| Indenture Trustee and each predecessor Indenture Trustee, |
| and their respective agents, attorneys and counsel, and for |
| reimbursement of all expenses and liabilities incurred, and |
| all advances made, by the Indenture Trustee and each |
| predecessor Indenture Trustee, except as those adjudicated |
| in a court of competent jurisdiction to be the result of any |
| such Indenture Trustee's negligence or bad faith) and of the |
| Holders allowed in any judicial proceedings relative to the |
| Trust or other obligor upon the Notes, or to the creditors |
| or property of the Trust or such other obligor, |
| (ii) unless prohibited by applicable law and regulations, to vote |
| on behalf of the Holders of the Notes in any election of a |
| trustee or a standby trustee in arrangement, reorganization, |
| liquidation or other bankruptcy or insolvency proceedings or |
| Person | performing | similar | functions | in | comparable |
| (iii) to collect and receive any funds or other property payable |
| or deliverable on any such claims, and to distribute all |
| amounts received with respect to the claims of each Holder |
| and of the Indenture Trustee on each Holder's behalf; and |
| any trustee, receiver, or liquidator, custodian or other |
| similar official is hereby authorized by each Holder to make |
| payments to the Indenture Trustee, and, in the event that |
| the Indenture Trustee shall consent to the making of |
| payments directly to any Holder, to pay to the Indenture |
| Trustee such amounts as shall be sufficient to cover |
| reasonable compensation to the Indenture Trustee, |
| each predecessor Indenture Trustee and their respective |
| agents, attorneys and counsel, and all other expenses and |
| liabilities | incurred, | and all advances made, by the |
| Indenture Trustee and each predecessor Indenture Trustee |
| except as those | adjudicated in a court of competent |
| jurisdiction | to be the result of any such Indenture |
| Trustee's negligence or bad faith. |
| (d) Nothing contained in the Indenture shall be deemed to authorize |
| the Indenture Trustee to authorize or consent to or vote for or |
| accept | or adopt on behalf | of any | Holder | any plan or |
| reorganization, arrangement, adjustment or composition affecting |
| the Notes or the rights of any Holder thereof, or to authorize |
| the Indenture Trustee to vote in respect of the claim of any |
| Holder in any such proceeding except, as aforesaid, to vote for |
| the election of a trustee in bankruptcy or similar Person. |
| (e) All rights of action and of asserting claims under the Indenture, |
| or under any of the Notes, may be enforced by the Indenture |
| Trustee without the possession of any of the Notes or the |
| production thereof on any trial or other proceedings relative |
| thereto, and any such action or proceedings instituted by the |
| Indenture Trustee shall be brought in its own name as trustee of |
| an express trust, and any recovery of judgment, subject to the |
| payment of the expenses, disbursements and compensation of the |
| Indenture Trustee, each predecessor Indenture Trustee and their |
| respective agents and attorneys, shall be for the ratable benefit |
| (f) In any proceedings brought by the Indenture Trustee (and also any |
| proceedings involving the interpretation of any provision of the |
| Indenture to which the Indenture Trustee shall be a party) the |
| Indenture Trustee shall be held to represent every Holder of the |
| Notes, and it shall not be necessary to make any Holder of the |
| Notes party to any such proceedings. |
| SECTION 5.3 Application of Proceeds. |
| (a) Any funds collected by the Indenture Trustee following an Event |
| of Default, and during the continuance thereof, pursuant to this |
| Article or otherwise under the Indenture and any applicable |
| Supplemental Indenture in respect of the Notes shall be held in |
| trust in the Collection Account and be applied in the following |
| order at the date or dates fixed by the Indenture Trustee and, in |
| case of the distribution of such funds on account of principal, |
| premium and | interest | and any | Additional | Amounts, | upon |
| presentation of the Note Certificate or Note | Certificates |
| representing the Notes and the notation thereon of the payment if |
| only partially paid or upon the surrender thereof if fully paid: |
| First: To the payment of costs and expenses, including reasonable |
| compensation to the Indenture Trustee and each predecessor Indenture |
| Trustee and their respective agents and attorneys and of all expenses |
| and liabilities incurred, and all advances made, by the Indenture |
| Trustee and each predecessor Indenture Trustee except as those |
| adjudicated in a court of competent jurisdiction to be the result of |
| any such Indenture Trustee's negligence or bad faith, in an aggregate |
| amount of no more than $250,000 for all series of Secured Medium Term |
| Notes and Allstate Life(R) CoreNotes(R) (including the Notes) issued |
| under the Program, to the extent not paid pursuant to the Support |
| Second: To the payment of principal, any premium and interest, |
| any Additional Amounts and any other amounts then due and owing on the |
| Notes, ratably, without preference or priority of any kind, according |
| to the aggregate principal amounts due and payable on the Notes; |
| Third: To the payment of any other Obligations then due and owing |
| with respect to the Notes, ratably, without preference or priority of |
| Fourth: To the payment of any remaining balance to the Trust for |
| distribution by the Delaware Trustee in accordance with the provisions |
| (b) All funds deposited with the Indenture Trustee pursuant to the |
| Indenture, except when an Event of Default has occurred and is |
| continuing, shall be held in trust in the Collection Account and |
| applied by it, in accordance with the provisions of the Notes and |
| the Indenture, to the payment through any Paying Agent, to the |
| Persons entitled thereto, of the principal, premium, if any, |
| interest and Additional Amounts, if any, for whose payment such |
| money has been deposited with or received by the Indenture |
| Trustee. If no Event of Default with respect to the Notes has |
| occurred and is continuing, the following priority of payments |
| First: To the payment of principal, any premium and interest, any |
| Additional Amounts, and any other amounts then due and owing on the |
| Notes, ratably, without preference or priority of any kind, according |
| to the aggregate principal amounts due and payable on the Notes; |
| Second: To the payment of any other Obligations then due and |
| owing with respect to the Notes, ratably, without preference or |
| priority of any kind; and |
| Third: To the payment of any remaining balance to the Trust for |
| distribution by the Delaware Trustee in accordance with the provisions |
| SECTION 5.4 Suits for Enforcement. If an Event of Default has occurred, has |
not been waived and is continuing, the Indenture Trustee may in its discretion
proceed to protect and enforce the rights vested in it by the Indenture by such
appropriate judicial proceedings as the Indenture Trustee shall deem most
effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the exercise of
any power granted in the Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee by the Indenture or by law.
| SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. If the |
Indenture Trustee shall have proceeded to enforce any right under the Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Indenture Trustee, then and in
every such case the Trust and the Indenture Trustee shall be restored
respectively to their former positions and rights under the Indenture, and all
rights, remedies and powers of the Trust, the Indenture Trustee and each Holder
shall continue as though no such proceedings had been taken.
| SECTION 5.6 Limitations on Suits by Holders. No Holder of any Note shall |
have any right by virtue or by availing of any provision of the Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to the Indenture, or for the appointment
of a trustee, receiver, liquidator, custodian or other similar official or for
any other remedy under the Indenture, unless:
| (i) such Holder has previously given written notice to the |
| Indenture Trustee of a continuing Event of Default; |
| (ii) the Holder or Holders of Notes representing not less than |
| 25% of the aggregate principal amount of the Outstanding |
| Notes shall have made written request to the Indenture |
| Trustee to institute proceedings in respect of such Event of |
| Default in its own name as the Indenture Trustee; |
| (iii) such Holder or Holders have offered to the Indenture |
| Trustee indemnity or security satisfactory to it against the |
| costs, expenses and liabilities to be incurred in compliance |
| (iv) the Indenture Trustee for 60 days after its receipt of such |
| notice, request and offer of indemnity shall have failed to |
| institute any such action or proceedings; and |
| (v) no direction inconsistent with such written request shall |
| have been given to the Indenture Trustee during such 60-day |
| period by the Holder or Holders of Notes representing at |
| least 66 2/3% of the aggregate principal amount of the Notes |
it being understood and intended, and being expressly covenanted by each Holder
of a Note with each other Holder of a Note and the Indenture Trustee, that no
Holder or Holders of Notes shall have any right in any manner whatever by virtue
of, or by availing of, any provision of the Indenture to affect, disturb or
prejudice the rights of any other Holder of any Note, or to obtain or seek to
obtain priority over or preference to any other Holder of any Note or to enforce
any right under the Indenture, except in the manner provided herein and for the
equal, ratable and common benefit of all the Holders of the Notes. For the
protection and enforcement of the provisions of this Section, each Holder and
the Indenture Trustee shall be entitled to such relief as can be given either at
law or in equity.
| Notwithstanding any other provisions in the Indenture, however, the right |
of any Holder of any Note, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any), and interest on, if any, and
Additional Amounts with respect to, if any, such Note, on or after the
respective due dates expressed in such Note, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
| SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of |
Default.
| (a) Except as provided in Section 2.7, no right or remedy in the |
| Indenture conferred upon or reserved to the Indenture Trustee or |
| to any Holder is intended to be exclusive of any other right or |
| remedy, and every right and remedy shall, to the extent permitted |
| by law, be cumulative and in addition to every other right and |
| remedy given under the Indenture or existing at law or in equity |
| or otherwise. The assertion or employment of any right or remedy |
| under the Indenture, or otherwise, | shall not prevent the |
| concurrent assertion or employment of any other appropriate right |
| (b) No delay or omission of the Indenture Trustee or of any Holder of |
| any Note to exercise any right or power accruing upon any Event |
| of Default occurring and continuing as aforesaid shall impair any |
| such right or power or shall be construed to be a waiver of any |
| such Event of Default or an acquiescence therein; and, subject to |
| Section 5.6, every power and remedy given by the Indenture or by |
| law to the Indenture Trustee or to any Holder may be exercised |
| from time to time, and as often as shall be deemed expedient, by |
| the Indenture Trustee or by such Holder. |
| SECTION 5.8 Control by the Holders. |
| (a) The Holders of a majority in aggregate principal amount of the |
| Notes at the time Outstanding shall have the right to elect a |
| holder representative (the "Holder Representative") who shall |
| have binding authority upon all the Holders and shall replace any |
| Holder Representative then acting in such capacity, and who shall |
| direct the time, method, and place of conducting any proceeding |
| for any remedy available to the Indenture Trustee, or exercising |
| any trust or power conferred on the Indenture Trustee by the |
| Indenture, provided that: |
| (i) such direction shall not be otherwise than in accordance |
| with law and the provisions of the Indenture; and |
| (ii) subject to the provisions of Section 6.1, the Indenture |
| Trustee shall have the right to decline to follow any such |
| direction if the Indenture Trustee, | being advised by |
| counsel, shall determine that the action or proceeding so |
| directed may not lawfully be taken or if the Indenture |
| Trustee in good faith by its board of directors, the |
| executive committee, or a trust committee of directors or |
| Responsible | Officers of the | Indenture | Trustee shall |
| determine that the action or proceedings so directed would |
| involve the Indenture Trustee in personal liability. |
| (b) Nothing in the Indenture shall impair the right of the Indenture |
| Trustee in its discretion to take any action deemed proper by the |
| Indenture Trustee and which is not inconsistent with such |
| direction by the Holders. |
| SECTION 5.9 Waiver of Past Defaults. Prior to the declaration of the |
maturity of the Notes as provided in Section 5.1, the Holder Representative may
on behalf of the Holders of all the Notes waive any past default or Event of
Default under the Indenture and its consequences, except a default:
| (i) in the payment of principal of, any premium or interest on, |
| or any Additional Amounts with respect to, any of the Notes; |
| (ii) in respect of a covenant or provision of the Indenture which |
| cannot be modified or amended without the consent of the |
Upon any such waiver, such default shall cease to exist and be deemed to have
been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose
of the Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
| SECTION 6.1 Certain Duties and Responsibilities. |
| (a) Except if an Event of Default has occurred and is continuing (and |
| it has not been cured or waived), | the Indenture Trustee |
| undertakes to perform such duties and only such duties with |
| respect to such Notes as are specifically set forth in the |
| Indenture. No implied covenants or obligations shall be read into |
| the Indenture against the Indenture Trustee. |
| (b) If an Event of Default has occurred and is continuing (and it has |
| not been cured or waived), the Indenture Trustee shall exercise |
| such of the rights and powers with respect to the Notes vested in |
| it by the Indenture, and use the same degree of care and skill in |
| their exercise, as a prudent person would exercise or use under |
| the circumstances in the conduct of his or her own affairs. |
| (c) No provision of the Indenture shall be construed to relieve the |
| Indenture Trustee from liability for its own negligent action, |
| its own negligent failure to act or its own willful misconduct, |
| (i) this subsection (c) shall not be construed to limit the |
| effect of subsection (a) of this Section; |
| (ii) in the absence of bad faith on its part, the Indenture |
| Trustee may conclusively rely, as to the truth of the |
| statements and the correctness of the opinions expressed |
| therein, upon certificates or opinions furnished to the |
| Indenture Trustee and conforming to the requirements of |
| the Indenture unless a Responsible Officer of the Indenture |
| Trustee has actual | knowledge that such statements or |
| opinions are false; provided that the Indenture Trustee must |
| examine such certificates and opinions to determine whether |
| they conform to the requirements of the Indenture; |
| (iii) the Indenture Trustee shall not be liable for any error of |
| judgment made in good faith by any Responsible Officer of |
| the Indenture Trustee, | unless it is proved that the |
| Indenture | Trustee was negligent in | ascertaining | the |
| (iv) the Indenture 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 | Holder |
| Representative relating to the time, method and place of |
| conducting any proceeding for any remedy available to the |
| Indenture | Trustee, | or exercising any trust or power |
| conferred upon the Indenture Trustee, under the Indenture |
| with respect to the Notes; and |
| (v) no provision of the Indenture shall require the Indenture |
| Trustee to expend or risk its own funds or otherwise incur |
| any financial liability in the performance of any of its |
| duties under the Indenture, or in the exercise of any of its |
| rights or powers, if it shall have reasonable grounds for |
| believing that repayment of such funds or adequate indemnity |
| against such liability is not reasonably assured to it. |
| (d) Whether or not therein expressly so provided, every provision of |
| the Indenture relating to the conduct or affecting the liability |
| of or affording protection to the Indenture Trustee shall be |
| subject to the provisions of this Section. |
| SECTION 6.2 Certain Rights of the Indenture Trustee. Subject to Section |
6.1:
| (a) the Indenture Trustee may rely and shall be protected in acting |
| or refraining from acting upon any resolution, certificate, |
| statement, instrument, opinion, report, notice, request, consent, |
| order, bond, debenture, note, coupon, security or other paper or |
| document believed by it to be genuine and to have been signed or |
| presented by the proper party or parties; |
| (b) any request, direction, order or demand of the Trust mentioned in |
| the Indenture shall be sufficiently | evidenced by a Trust |
| Certificate | (unless other evidence in respect | thereof be |
| specifically prescribed in the Indenture); |
| (c) the Indenture Trustee may consult with counsel and any advice of |
| such counsel or any Opinion of Counsel shall be full and complete |
| authorization and protection in respect of any action taken, |
| suffered or omitted to be taken by it under the Indenture in good |
| faith and in reliance on such advice or Opinion of Counsel; |
| (d) the Indenture Trustee shall be under no obligation to exercise |
| any of the trusts or powers vested in it by the Indenture at the |
| request, order or direction of any Holder Representative pursuant |
| to the | provisions of the | Indenture, | unless such Holder |
| Representative shall have offered to the Indenture Trustee |
| reasonable security or indemnity against the costs, expenses and |
| liabilities which might be incurred by it in compliance with such |
| request, order or direction; |
| (e) whenever in the administration of the Indenture the Indenture |
| Trustee shall deem it necessary or desirable that a matter be |
| proved or established prior to taking or suffering or omitting |
| any action under the Indenture, such matter (unless other |
| evidence in respect thereof be specifically prescribed in the |
| Indenture) may, in the absence of negligence or bad faith on its |
| part, be deemed to be conclusively proved and established by a |
| Trust Certificate delivered to the Indenture Trustee; |
| (f) the Indenture Trustee shall not be liable for any action taken or |
| omitted by it in good faith and believed by it to be authorized |
| or within the discretion, rights or powers conferred upon it by |
| (g) the | Indenture | 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, consent, order, approval, appraisal, bond, debenture, |
| note, coupon, security, or other paper or document unless |
| requested in writing so to do by the Holder Representative; |
| provided that, if the payment within a reasonable time to the |
| Indenture Trustee of the costs, expenses or liabilities likely to |
| be incurred by it in the making of such investigation is, in the |
| opinion of the Indenture Trustee, not reasonably assured to the |
| Indenture Trustee by the security afforded to it by the terms of |
| the Indenture, the Indenture |
| Trustee may require reasonable indemnity against such expenses or |
| liabilities as a condition to proceeding; the reasonable expenses |
| of every such examination shall be paid by the Trust or, if paid |
| by the Indenture Trustee or any predecessor trustee, shall be |
| repaid by the Trust upon demand; and |
| (h) the Indenture Trustee may execute any of the trusts or powers |
| under the Indenture or perform any duties under the Indenture |
| either directly or by or through agents or attorneys not |
| regularly in its employ and the Indenture Trustee shall not be |
| responsible for any misconduct or negligence on the part of any |
| such agent or attorney appointed with due care by it under the |
| SECTION 6.3 Not Responsible for Recitals, Validity of the Notes or |
Application of the Proceeds. The recitals contained in the Indenture and in the
Notes, except the Indenture Trustee's certificates of authentication, shall be
taken as the statements of the Trust, and the Indenture Trustee assumes no
responsibility for the correctness of the same. The Indenture Trustee makes no
representation as to the validity or sufficiency of the Indenture or of the
Notes, or of any Funding Agreement, or of the Collateral. The Indenture Trustee
shall not be accountable for the use or application by the Funding Agreement
Provider of the proceeds of the Funding Agreement(s).
| SECTION 6.4 May Hold Notes; Collections, Etc. The Indenture Trustee or any |
agent of the Trust or the Indenture Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would
have if it were not the Indenture Trustee or such agent and, subject to Section
6.7, Section 311(a) of the Trust Indenture Act, and Rule 3a-7 of the Investment
Company Act, may otherwise deal with the Trust, the Administrator, the Funding
Agreement Provider and any other interested party, and receive, collect, hold
and retain collections from the Trust with the same rights it would have if it
were not the Indenture Trustee or such agent.
| SECTION 6.5 Funds Held By Indenture Trustee. Subject to the provisions of |
Section 11.4, all funds received by the Indenture Trustee shall, until used or
applied as provided in the Indenture, be held in trust for the purposes for
which they were received. The Indenture Trustee (and each of its agents and
Affiliates) shall deposit all cash amounts received by it (or any such agents or
Affiliates) that are derived from the Collateral for the benefit of the Holders
of Notes in the Collection Account. Neither the Indenture Trustee nor any agent
of the Trust or the Indenture Trustee shall be under any liability for interest
on any funds received by it under the Indenture.
| SECTION 6.6 Compensation; Reimbursement; Indemnification. |
| (a) The Trust covenants and agrees: |
| (i) to pay to the Indenture Trustee from time to time, and the |
| Indenture | Trustee | shall be entitled | to, | reasonable |
| compensation for all services rendered by it under the |
| Indenture (which compensation shall not be limited by any |
| provision of law in regard to the compensation of a trustee |
| (ii) except as otherwise provided in the Indenture, to pay or |
| reimburse the Indenture Trustee upon its request for all |
| reasonable expenses, disbursements and advances incurred or |
| made by the Indenture Trustee in accordance with any |
| provision of the Indenture | (including | the reasonable |
| compensation and the expenses and disbursements of its |
| agents and counsel), except any such expense, disbursement |
| or advance as may arise from its negligence or bad faith; |
| (iii) to indemnify the Indenture Trustee for, and to hold it |
| harmless against, any loss, liability or expense incurred |
| without negligence or bad faith on its part, arising out of |
| or in connection with the acceptance or administration of |
| the Indenture or the trusts under the Indenture and its |
| duties under the Indenture, including the costs and expenses |
| of defending itself against or investigating any claim of |
| liability in connection with the exercise or performance of |
| any of its powers or duties under the Indenture. |
| (b) The obligations of the Trust under this Section to compensate and |
| indemnify the Indenture Trustee and to pay or reimburse the |
| Indenture Trustee for expenses, disbursements and advances shall |
| constitute additional indebtedness under the Indenture and shall |
| survive the satisfaction and discharge of the Indenture and any |
| resignation or removal of the Indenture Trustee. |
| SECTION 6.7 Corporate Trustee Required; Eligibility. |
| (a) There shall at all times be an Indenture Trustee under the |
| (i) be a banking corporation or national association authorized |
| under its laws of incorporation or formation and the laws of |
| the jurisdiction in which it administers the Indenture and |
| any Supplemental Indenture to exercise corporate trust |
| powers, having an aggregate capital, |
| surplus of at least $50,000,000; provided that if such |
| banking corporation or national | association | publishes |
| reports of condition at least annually, pursuant to law or |
| to the | requirements of its Federal, | State or other |
| governmental supervisor, then for the purposes of this |
| Section, the aggregate capital, | surplus and undivided |
| profits of such banking corporation or national association |
| shall be deemed to be its aggregate capital, surplus and |
| undivided profits as set forth in its most recent report of |
| (ii) not be affiliated (as such term is defined in Rule 405 under |
| the Securities Act) with the Trust or with any Person |
| involved in the organization or operation of the Trust; and |
| (iii) not offer or provide credit or credit enhancement to the |
| (b) If at any time the Indenture Trustee shall cease to be eligible |
| in accordance with the provisions of Section 6.7(a) or the |
| requirements of Section 310 of the Trust Indenture Act, the |
| Indenture Trustee shall resign immediately in the manner and with |
| the effect specified in Section 6.8. |
| SECTION 6.8 Resignation and Removal; Appointment of Successor Trustee. |
| (a) The Indenture Trustee may at any time resign by giving not less |
| than 90 days' prior written notice of resignation to the Trust |
| and to the Holders of Notes as provided in the Indenture. Upon |
| receiving such notice of resignation, the Trust shall promptly |
| cause a successor trustee to be appointed by written instrument |
| in duplicate, executed by the Trust, one copy of which instrument |
| shall be delivered to the resigning trustee and one copy to the |
| successor indenture trustee. If no successor trustee shall have |
| been so appointed and have accepted appointment within 30 days |
| after the giving of such notice of resignation, the resigning |
| trustee may petition any court of competent jurisdiction for the |
| appointment of a successor indenture trustee. Such court may |
| thereupon, after such notice, if any, as it may deem proper and |
| prescribe, appoint a successor trustee. |
| (i) the Indenture | Trustee shall cease to be eligible in |
| accordance with the provisions of Section 6.7(a) or the |
| requirements of Section 310(a) of the Trust Indenture Act or |
| any applicable Supplemental Indenture and shall fail to |
| resign pursuant to Section 6.7(b) or following written |
| request therefor by the Trust or by any such Holder pursuant |
| (ii) the Indenture Trustee shall become incapable of acting with |
| respect to the Notes, or shall be adjudged as bankrupt or |
| insolvent, or a receiver or liquidator of the Indenture |
| Trustee or of its property shall be appointed, or any public |
| officer shall take charge or control of the Indenture |
| Trustee or of its property or affairs for the purpose of |
| rehabilitation, conservation or liquidation; |
| (iii) the Indenture Trustee shall fail to comply with the |
| obligations imposed upon it under Section 310(b) of the |
| Trust Indenture Act with respect to the Notes after written |
| request therefor by the Trust or any Holder of a Note who |
| has been a bona fide Holder of a Note for at least six |
| then, in any such case, except during the existence of an Event |
| of Default, the Trust may remove the Indenture Trustee and |
| appoint a successor trustee by written instrument, in duplicate, |
| one copy of which instrument shall be delivered to the Indenture |
| Trustee so removed and one copy to the successor trustee. |
| (c) In addition to the right of petition given to the resigning |
| trustee and the right of removal given to the Trust under |
| Sections 6.8(a) and 6.8(b), respectively, any Holder who has been |
| a Holder of Notes for at least six months may, on behalf of |
| itself and all others similarly situated, petition any court of |
| competent jurisdiction for the appointment of a successor trustee |
| or the removal of the Indenture Trustee and the appointment of a |
| successor trustee, as the case may be. Such court may thereupon, |
| after such notice, if any, as it may deem proper and prescribe, |
| appoint a successor trustee or remove the Indenture Trustee and |
| appoint a successor trustee, as the case may be. |
| (d) The Holder Representative may at any time remove the Indenture |
| Trustee and appoint a successor trustee by delivering to the |
| Indenture Trustee so removed, to the successor trustee so |
| appointed and to the Trust the evidence provided for in Section |
| 8.1 of the action in that regard taken by a Holder. |
| (e) Any resignation or removal of the Indenture Trustee and any |
| appointment of a successor trustee pursuant to any of the |
| provisions of this Section 6.8 shall only become effective upon |
| acceptance of appointment by the successor trustee as provided in |
| SECTION 6.9 Acceptance of Appointment by Successor Trustee. |
| (a) Every successor trustee appointed as provided in Section 6.8 |
| shall execute, acknowledge and deliver to the Trust and to its |
| predecessor | indenture trustee an instrument accepting such |
| appointment, and thereupon the resignation or removal of the |
| predecessor indenture trustee shall become effective and such |
| successor indenture trustee, without any further act, deed or |
| conveyance, shall become vested with all rights, powers, duties |
| and obligations of its predecessor under the Indenture, with like |
| effect as if originally named as indenture trustee under the |
| Indenture; but, nevertheless, on the written request of the Trust |
| or of the successor indenture trustee, upon payment of its |
| charges then unpaid, the indenture trustee ceasing to act shall, |
| subject to Section 11.4, pay over to the successor indenture |
| trustee all funds at the time held by it under the Indenture and |
| shall execute and deliver an instrument transferring to such |
| successor indenture trustee all such rights, powers, duties and |
| obligations. | Upon request of any such successor indenture |
| trustee, the Trust shall execute any and all instruments in |
| writing for more fully and certainly vesting in and confirming to |
| such successor indenture trustee all such rights and powers. |
| Subject to the Lien created under the Indenture, any indenture |
| trustee ceasing to act shall, nevertheless, retain a claim upon |
| all property or funds held or collected by such indenture trustee |
| to secure any amounts then due it pursuant to the provisions of |
| (b) Upon acceptance of appointment by a successor Indenture Trustee |
| as provided in this Section 6.9, the Trust shall notify each |
| Holder of any Note and each rating agency then rating any Notes |
| at the request of the Trust. If the acceptance of appointment is |
| substantially contemporaneous with the resignation, then the |
| notice called for by the preceding sentence may be combined with |
| the notice called for by Section 6.8. If the Trust fails to make |
| such notice within 10 days after acceptance of appointment by the |
| successor Indenture Trustee, the successor Indenture |
| Trustee shall cause such notice to be mailed at the expense of |
| SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of |
Indenture Trustee.
| (a) Any corporation or entity into which the Indenture Trustee may be |
| merged or converted or with which it may be consolidated, or any |
| corporation or entity resulting from any merger, conversion or |
| consolidation to which the Indenture Trustee shall be a party, or |
| any corporation or entity succeeding to all or substantially all |
| of the corporate trust business of the Indenture Trustee, shall |
| be the successor of the Indenture Trustee under the Indenture, |
| provided that such corporation or entity shall be eligible under |
| the provisions of Section 6.7, without the execution or filing of |
| any paper or any further act on the part of any of the parties to |
| the Indenture, | anything in the Indenture to the contrary |
| (b) In case at the time such successor to the Indenture Trustee shall |
| succeed to the trusts created by the Indenture any of the Notes |
| shall have been authenticated but not delivered, any such |
| successor to the Indenture Trustee may adopt the certificate of |
| authentication of any predecessor Indenture Trustee and deliver |
| such Notes so authenticated; and, in case at that time any of the |
| Notes shall not have been authenticated, any successor to the |
| Indenture Trustee may authenticate such Notes either in the name |
| of any predecessor under the Indenture or in the name of the |
| successor | Indenture Trustee; | and in all such cases such |
| certificate shall have the full force; provided, that the right |
| to adopt the certificate of authentication of any predecessor |
| Indenture Trustee or to authenticate Notes in the name of any |
| predecessor Indenture Trustee shall apply only to its successor |
| or successors by merger, conversion or consolidation. |
| SECTION 6.11 Limitations on Rights of Indenture Trustee as Creditor. The |
Indenture Trustee shall comply with Section 311(a) of the Trust Indenture Act.
| HOLDERS' LISTS AND REPORTS BY INDENTURE TRUSTEE AND TRUST |
| SECTION 7.1 Trust To Furnish Indenture Trustee Names And Addresses Of |
Holders.
| In accordance with Section 312(a) of the Trust Indenture Act, the Trust |
shall furnish or cause to be furnished to the Indenture Trustee:
| (a) semi-annually not later than June 30 and December 31 of the year |
| or upon such other dates as are set forth in or pursuant to a |
| Note Certificate or Supplemental Indenture, a list, in each case |
| in such form as the Indenture Trustee may reasonably require, of |
| the names and addresses of Holders as of the applicable date, and |
| (b) at such other times as the Indenture Trustee may request in |
| writing, within 30 days after the receipt by the Trust of any |
| such request, a list of similar form and content as of a date not |
| more than 15 days prior to the time such list is furnished, |
provided, however, that so long as the Indenture Trustee is the Registrar no
such list shall be required to be furnished.
SECTION 7.2 | Preservation of Information; Communication to Holders. |
| The Indenture Trustee shall comply with the obligations imposed upon it |
pursuant to Section 312 of the Trust Indenture Act. Every Holder of Notes, by
receiving and holding the same, agrees with the Trust and the Indenture Trustee
that neither the Trust, the Indenture Trustee, any Paying Agent or any Registrar
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Notes in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Indenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
| SECTION 7.3 Reports by Indenture Trustee. |
| (a) Within 60 days after May 15 of each year commencing with the |
| first May 15 following the issuance of Notes, if required by |
| Section 313(a) of the Trust Indenture Act, the Indenture Trustee |
| shall transmit, pursuant to Section 313(c) of the Trust Indenture |
| Act, a brief report dated as of May 15 with respect to any of the |
| events specified in Section 313(a) of the Trust Indenture Act |
| which may have occurred since the later of the immediately |
| preceding May 15 and the date of the Indenture. |
| (b) The Indenture Trustee shall transmit the reports required by |
| Section 313(a) of the Trust Indenture Act at the time specified |
| (c) The Indenture Trustee shall comply with Section 313(b) of the |
| (d) Reports pursuant to this Section shall be transmitted in the |
| manner and to the Persons required by Sections 313(c) and 313(d) |
| of the Trust Indenture Act. |
| (e) A copy of each such report shall, | at the time of such |
| transmission to Holders, be filed by the Indenture Trustee with |
| each stock exchange upon which the Notes are listed, with the |
| Commission and the Trust. The Trust will notify the Indenture |
| Trustee whether the Notes are listed on any stock exchange. |
| (f) Within ten days following any distribution made or scheduled to |
| be made on the Notes, including any Interest Payment Date or the |
| Maturity Date, and only to the extent the Trust is required to |
| file reports under the Exchange Act, the Indenture Trustee will |
| deliver to the Funding Agreement Provider and the Holders a |
| report substantially in the form attached as Exhibit C. |
| SECTION 7.4 Reports and Opinions by Trust. |
| Pursuant to Section 314(a) of the Trust Indenture Act, the Trust |
| (a) file, or cause to be filed, with the Indenture Trustee, within 15 |
| days after the Trust or Global Funding is required to file the |
| same with the Commission and to the extent available to the |
| Trust, copies of the annual reports and of the information, |
| documents and other reports (or copies of such portions of any of |
| the foregoing as the Commission may from time to time by rules |
| and regulations prescribe) which the Trust or Global Funding may |
| be required to file with the Commission pursuant to Section 13 or |
| Section 15(d) of the Exchange Act; or, if the Trust is not |
| required to file information, documents or reports pursuant to |
| either of said Sections, then it shall file, or cause to be |
| filed, with the Indenture Trustee and the Commission, | in |
| accordance with rules and regulations prescribed from time to |
| time by the Commission, such of the supplementary and periodic |
| and reports which may be required pursuant to Section 13 of the |
| Exchange Act in respect of a security listed and registered on a |
| national securities exchange as may be prescribed form time to |
| time in such rules and regulations; provided that if, pursuant to |
| any publicly available interpretations of the Commission, the |
| Trust or Global Funding would not be required to make such |
| filings under Section 314(a) of the Trust Indenture Act, then the |
| Trust or Global Funding shall not be required to make such |
| (b) file, or cause to be filed on its behalf, with the Indenture |
| Trustee and the Commission, | in accordance with rules and |
| regulations prescribed from time to time by the Commission, such |
| additional information, documents and reports with respect to |
| compliance by the Trust, with the conditions and covenants of the |
| Indenture as may be required from time to time by such rules and |
| (c) transmit within 30 days after the filing thereof with the |
| Indenture Trustee, in the manner and to the extent provided in |
| Section 313(c) of the Trust Indenture Act, such summaries of any |
| information, documents and reports required to be filed by or on |
| behalf of the Trust pursuant to paragraphs (1) and (2) of this |
| Section as may be required by rules and regulations prescribed |
| from time to time by the Commission. |
| (d) The Trust shall furnish to the Indenture Trustee: |
| (i) promptly after the execution and delivery of the Indenture, |
| an Opinion of Counsel either stating that, in the opinion of |
| such counsel, the Indenture has been properly recorded, |
| registered and filed to the extent necessary to make |
| effective the Security Interest intended to be created by |
| the Indenture, and reciting the details of such action or |
| referring to prior Opinions of Counsel in which such details |
| are given, or stating that, in the opinion of such counsel, |
| no such action is necessary to make the Security Interest |
| (ii) at least annually, an Opinion of Counsel, dated as of such |
| date, either stating that, in the opinion of such counsel, |
| such action has been taken with respect to the recording, |
| filing, re-recording and re-filing of the Indenture, as is |
| necessary to maintain the Security Interest of the Indenture |
| and reciting the details of such action or |
| referring to prior Opinions of Counsel in which such details |
| are given, or stating that, in the opinion of such counsel, |
| no such action is necessary to maintain the Security |
| SECTION 7.5 Reports on Assessment of Compliance with Servicing Criteria and |
Compliance Statements; Attestation Reports of Registered Public Accounting Firm.
In connection with the filing of any Annual Report on Form 10-K of the Trust
filed under the Exchange Act (each, an "Annual Report"), each of the Indenture
Trustee and each Paying Agent (unless the Indenture Trustee is the only Paying
Agent) shall (a) provide to the Funding Agreement Provider, the Trust and Global
Funding (i) a report required pursuant to Item 1122(a) of Regulation AB (17 CFR
229.1100 - 1123)("Regulation AB") on an assessment of compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (each a
"Compliance Report") and (ii) a statement of compliance required pursuant to
Item 1123 of Regulation AB, each of which shall be as an exhibit to, the applicable
Annual Report; and (b) cause, at the expense of the Funding Agreement Provider,
a registered public accounting firm to provide to the Funding Agreement Provider,
the Trust and Global Funding an attestation report on the applicable Compliance
Report as required pursuant to Item 1122(b) of Regulation AB, which shall be filed
as an exhibit to, the applicable Annual Report.
| SECTION 8.1 Evidence of Action Taken by a Holder. |
| (a) Any request, demand, authorization, direction, notice, consent, |
| waiver or other action provided by the Indenture to be given or |
| taken by any Holder may be embodied in and evidenced (i) by any |
| instrument or any number of instruments of similar tenor executed |
| by Holders in person or by agent or proxy appointed in writing, |
| or (ii) by the record of the Holders of Notes voting in favor |
| thereof at any meeting of Holders duly called and held in |
| accordance with the provisions of Article 12, or (iii) by a |
| combination of such instrument or instruments and any such record |
| of such meeting of Holders. Except as otherwise expressly |
| provided in the Indenture, such action shall become effective |
| when such | instrument or instruments are delivered to the |
| Indenture Trustee. Proof of execution of any instrument or of a |
| writing appointing any such agent shall be sufficient for any |
| purpose of the Indenture and (subject to Sections 6.1 and 6.2) |
| conclusive in favor of the Indenture Trustee and the Trust, if |
| made in the manner provided in this Article. The record of any |
| meeting of Holders of Notes shall be proved in the manner |
| provided in Section 12.6. |
| (b) Any request, demand, authorization, direction, notice, consent, |
| waiver or other action of the Holder of any Note shall bind every |
| future Holder of the same Note and the Holder of every Note |
| issued upon the registration of transfer thereof or in exchange |
| therefor or in lieu thereof in respect of anything done, omitted |
| or suffered to be done by the Indenture Trustee or the Trust in |
| reliance thereon, whether or not notation of such action is made |
| upon the applicable Note Certificate. |
| SECTION 8.2 Proof of Execution of Instruments and of Holding of Notes. |
| (a) Subject to Sections 6.1 and 6.2, the execution of any instrument |
| by a Holder or its agent or proxy may be proved in accordance |
| with such reasonable rules and regulations as may be prescribed |
| by the Indenture | Trustee or in such manner as shall be |
| satisfactory to the Indenture Trustee. |
| (b) The ownership, principal amount and CUSIP numbers of Notes shall |
| be proved by the Note Register or by a certificate of the |
| SECTION 8.3 Voting Record Date. The Trust may set a record date for |
purposes of determining the identity of each Holder of a Note entitled to vote
or consent to any action referred to in Section 8.1, which record date may be
set at any time or from time to time by notice to the Indenture Trustee, for any
date or dates (in the case of any adjournment or resolicitation) not more than
60 days nor less than 5 days prior to the proposed date of such vote or consent,
and thereafter, notwithstanding any other provisions of the Indenture, only a
Holder of any Note on such record date shall be entitled to so vote or give such
consent or to withdraw such vote or consent.
| SECTION 8.4 Persons Deemed to be Owners. The Trust, the Indenture Trustee |
and any agent of the Trust or the Indenture Trustee may deem and treat the
Holder of any Note of as the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing on the applicable Note Certificate) for the purpose of receiving payment
of or on account of the principal of, any premium on, and, subject to the
provisions of the Indenture, any interest on, and any Additional Amounts with
respect to, such Note and for all other purposes; and neither the Trust nor the
Indenture Trustee nor any agent of the Trust or the Indenture Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
Person, or upon such Person's order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for funds
payable upon any such Note.
| SECTION 8.5 Notes Owned by Trust Deemed Not Outstanding. In determining |
whether the Holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent or waiver under the Indenture, Notes which
are owned by the Trust or any other obligor on the Notes or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Trust or any other obligor on the Notes shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Indenture
Trustee shall be protected in relying on any such direction, consent or waiver
only Notes which the Indenture Trustee knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Trust or any other obligor upon the Notes or any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Trust or any other obligor on the Notes. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Indenture Trustee in
accordance with such advice. Upon request of the Indenture Trustee, the Trust
shall furnish to the Indenture Trustee promptly a Trust Certificate listing and
identifying all Notes, if any, known by the Trust to be owned or held by or for
the account of any of the above-described Persons; and, subject to Sections 6.1
and 6.2, the Indenture Trustee shall be entitled to accept such Trust
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are Outstanding for the purpose of any
such determination.
| SECTION 8.6 Right of Revocation of Action Taken; Binding Effect of Actions |
by Holders.
| (a) At any time prior to (but not after) the evidencing to the |
| Indenture Trustee, as provided in Section 8.1, of the taking of |
| any action by the Holders of the percentage in aggregate |
| principal amount of the Notes specified in the Indenture in |
| connection with such action, any Holder of a Note represented by |
| a Note Certificate the serial number of which is shown by the |
| evidence to be included among the serial numbers of the Note |
| Certificates | representing Notes the Holders of which have |
| consented to such action may, by filing written notice at the |
| Corporate Trust Office and upon proof of holding as provided in |
| this Article, revoke such action so far as concerns such Note. |
| (b) Any action taken by the Holders of the percentage in aggregate |
| principal amount of the Notes specified in the Indenture in |
| connection with such action shall be conclusively binding upon |
| the Trust, the Indenture Trustee and all present and future |
| Holders of the Notes, irrespective of whether or not any notation |
| in regard of any such action is made on any applicable Note |
| SECTION 9.1 Supplemental Indentures Without Consent of Holders. |
| (a) The Trust and the Indenture Trustee may from time to time and at |
| any time enter into an indenture or indentures supplemental to |
| the Indenture (each, a "Supplemental Indenture") (which shall |
| conform to the provisions of the Trust Indenture Act) for one or |
| more of the following purposes without the consent of any Holder: |
| (i) for the Trust to convey, transfer, assign, mortgage or |
| pledge to the Indenture Trustee as security for the Notes |
| (ii) to add to the covenants of the Trust such further covenants, |
| restrictions, conditions or provisions as the Trust and the |
| Indenture Trustee shall consider to be for the protection of |
| each Holder of any Note, and to make the occurrence, or the |
| occurrence and continuance, of a default in any such |
| additional covenants, restrictions, conditions or provisions |
| an Event of Default permitting the enforcement of all or any |
| of the several remedies provided in the Indenture as set |
| forth in the Indenture; provided, that in respect of any |
| such | additional | covenant, | restriction, | condition or |
| provision such Supplemental Indenture may provide for a |
| particular period of grace after default (which period may |
| be shorter or longer than that allowed in the case of other |
| defaults) or may provide for an immediate enforcement upon |
| such an Event of Default or may limit the remedies available |
| to the Indenture Trustee upon such an Event of Default or |
| may limit the right of the Holder Representative to waive |
| such an Event of Default; |
| (iii) to cure any ambiguity or to correct or supplement any |
| provision contained in the Indenture or in any Supplemental |
| Indenture or Note Certificate which may be defective or |
| inconsistent with any other provision contained in the |
| Indenture | or in any | Supplemental | Indenture or Note |
| Certificate; or to make such other |
| provisions in regard to matters or questions arising under |
| the Indenture or under any Supplemental Indenture or Note |
| Certificate which shall not adversely affect the interests |
| of the Holders of the Notes in any material respect; or |
| (iv) to evidence and provide for the acceptance of appointment |
| under the Indenture by a successor trustee and to add to or |
| change any of the provisions of the Indenture as shall be |
| necessary to provide for or facilitate the administration of |
| the trusts under the Indenture by more than one trustee. |
| (b) The Indenture Trustee is authorized to join with the Trust in the |
| execution of any such Supplemental Indenture, and to make any |
| further appropriate agreements and stipulations which may be |
| therein contained, but the Indenture Trustee shall not be |
| obligated to enter into any such Supplemental Indenture which |
| affects the Indenture Trustee's own rights, duties or immunities |
| under the Indenture or otherwise. |
| (c) Any Supplemental Indenture authorized by the provisions of this |
| Section may be executed without the consent of any Holder of any |
| Note at the time Outstanding, | notwithstanding any of the |
| provisions of Section 9.2. |
| SECTION 9.2 Supplemental Indentures With Consent of Holders. |
| (a) With the consent (evidenced as provided in Article 8) of the |
| Holders of not less than 66 2/3% in aggregate principal amount of |
| the Notes at the time Outstanding, the Trust and the Indenture |
| Trustee may, from time to time and at any time, enter into a |
| Supplemental Indenture for the purpose of adding any provisions |
| to or changing in any manner or eliminating any of the provisions |
| of the Indenture or of any Supplemental Indenture or Note |
| Certificate or of modifying in any manner the rights of the |
| Holders of the Notes; provided, that no such Supplemental |
| Indenture shall, without the consent of the Holder of each Note |
| (i) change the final maturity of any Note, or reduce the |
| principal amount thereof, or reduce the rate or extend the |
| time of payment of interest or any other amount payable |
| thereon, or impair or affect the right of any Holder to |
| institute suit for the payment thereof or modify any |
| redemption or repayment provisions applicable to the Notes; |
| (ii) permit the creation of any Lien on the Collateral or any |
| part thereof (other than the Security Interest) or terminate |
| the Security Interest as to any part of the Collateral, |
| except as permitted by the Indenture; or |
| (iii) modify any of the provisions of this Section 9.2 except to |
| increase the aforementioned percentage of Notes required to |
| approve any Supplemental Indenture. |
| (b) Upon the request of the Trust, and upon the filing with the |
| Indenture Trustee of evidence of the consent of each Holder and |
| other documents, if any, required by Section 8.1 the Indenture |
| Trustee shall join with the Trust in the execution of such |
| Supplemental Indenture unless such Supplemental Indenture affects |
| the Indenture Trustee's own rights, duties or immunities under |
| the Indenture or otherwise, in which case the Indenture Trustee |
| may in its discretion, but shall not be obligated to, enter into |
| such Supplemental Indenture. |
| (c) It shall not be necessary for the consent of the Holders under |
| this Section to approve the particular form of any proposed |
| Supplemental Indenture, but it shall be sufficient if such |
| consent shall approve the substance thereof. |
| (d) Promptly after the execution by the Trust and the Indenture |
| Trustee of any Supplemental Indenture pursuant to the provisions |
| of this Section, the Indenture Trustee shall notify the Holders |
| of each Note, as provided in the Indenture, setting forth in |
| general terms the substance of such Supplemental Indenture. Any |
| failure of the Indenture Trustee to provide such notice, or any |
| defect therein, shall not, however, in any way impair or affect |
| the validity of any such Supplemental Indenture. |
| SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental |
Indentures. Any Supplemental Indenture executed pursuant to the provisions of
this Article shall comply with the Trust Indenture Act. Upon the execution of
any Supplemental Indenture pursuant to the provisions of the Indenture, the
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under the Indenture of the Indenture Trustee, the Trust, each
agent of the Trust and each Holder of Notes shall thereafter be determined,
exercised and enforced under the Indenture subject in all respects to such
modifications and amendments, and all
the terms and conditions of any such Supplemental Indenture shall be and be
deemed to be part of the terms and conditions of the Indenture for any and all
purposes.
| SECTION 9.4 Documents to Be Given to Indenture Trustee. The Indenture |
Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive a Trust
Certificate and an Opinion of Counsel as conclusive evidence that any such
Supplemental Indenture complies with the applicable provisions of the Indenture.
| SECTION 9.5 Notation on Note Certificates in Respect of Supplemental |
Indentures. Any Note Certificate authenticated and delivered after the execution
of any Supplemental Indenture pursuant to the provisions of this Article may
bear a notation in form approved by the Indenture Trustee as to any matter
provided for by such Supplemental Indenture or as to any action taken at any
such meeting. If the Trust or the Indenture Trustee shall so determine, a new
Note Certificate representing Notes so modified as to conform, in the opinion of
the Indenture Trustee and the Trust, to any modification of the Indenture
contained in any such Supplemental Indenture may be prepared by the Trust,
authenticated by the Indenture Trustee and delivered in exchange for each Note
Certificate representing Notes then Outstanding.
| SECTION 9.6 Amendment to Funding Agreements. |
| (a) The Trust and the Indenture Trustee may from time to time and at |
| any time enter into or consent to one or more amendments to any |
| Funding Agreement for one or more of the following purposes |
| without the consent of any Holder: to cure any ambiguity or to |
| correct or supplement any provision contained in such Funding |
| Agreement which may be defective or inconsistent with any other |
| provision contained in such Funding Agreement, or with any |
| provision of the Indenture, the Notes, the Funding Note, the |
| Distribution Agreement, the Trust Agreement, the Administrative |
| Services Agreement, | the Coordination | Agreement, | the Name |
| Licensing Agreement, the Support Agreement, the Terms Agreement |
| or the Pricing Supplement, or to make such other provisions in |
| regard to matters or questions arising under such Funding |
| Agreement or the Indenture which shall not adversely affect the |
| interests of the Holders of the Notes in any material respect. |
| (b) With the consent (evidenced as provided in Article 8) of the |
| Holders of not less than 66 2/3% in aggregate principal amount of |
| the Notes at the time Outstanding, the Trust and the Indenture |
| Trustee may, from time to time and at any time, enter into or |
| consent to one or more amendments to any Funding Agreement for |
| the purpose of adding any provisions to or changing in any manner |
| or eliminating any of the provisions of such Funding |
| Agreement; provided, that no such amendment shall change the |
| Maturity Date (as defined in such Funding Agreement) of such |
| Funding Agreement, or reduce the principal amount thereof, or |
| reduce the rate or extend the time of payment of interest or any |
| other amount payable thereon, or impair or affect the right of |
| the Indenture Trustee or the Trust to institute suit for the |
| payment thereof or modify any redemption or repayment provisions |
| applicable to such Funding Agreement without the consent of the |
| Holder of each Note affected thereby. |
| (c) The Indenture Trustee may receive and conclusively rely upon an |
| Opinion of Counsel stating whether or not any Notes would be |
| affected by any amendment of a Funding Agreement and any such |
| Opinion of Counsel shall be conclusive upon all the Holders of |
| (d) Notwithstanding any other provision, the Trust and the Indenture |
| Trustee will not enter into or consent to any amendment to any |
| Funding Agreement with the Funding Agreement Provider or permit |
| any Funding Agreement to be amended or modified if such amendment |
| or modification would cause the Trust not to be ignored or |
| treated as a "grantor trust" for United States federal income tax |
| purposes (as evidenced by an Opinion of Counsel). Furthermore, |
| the Trust and the Indenture Trustee will not enter into or |
| consent to any agreement or take any action which would cause the |
| Trust to become required to be registered as an "investment |
| company", or come under the "control" of an "investment company," |
| as such terms are defined in the Investment Company Act. |
| (e) The Indenture Trustee, subject to the provisions of Sections 6.1 |
| and 6.2, may receive an Opinion of Counsel as conclusive evidence |
| that any such amendment to a Funding Agreement complies with the |
| requirements of Section 9.6(a) or (b), as applicable, and any |
| such Opinion of Counsel shall be conclusive on the Holders of the |
| (f) It shall not be necessary for the consent of the Holders under |
| this Section to approve the particular form of any proposed |
| amendment to a Funding Agreement, but it shall be sufficient if |
| such consent shall approve the substance thereof. |
| CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
| SECTION 10.1 Trust May Merge, Consolidate, Sell Or Convey Property Under |
Certain Circumstances. The Trust may not consolidate with, or merge into, any
entity (whether or not affiliated with the Trust), or sell, lease or convey the
property of the Trust as an entirety or substantially as an entirety, unless:
| (a) the entity formed by such consolidation or into which the Trust |
| is merged or the entity which acquires by conveyance or transfer |
| the properties and assets of the Trust substantially as an |
| entirety shall be a statutory trust formed under the laws of the |
| State of Delaware or a corporation or other entity organized and |
| existing under the laws of the United States of America or any |
| State or the District of Columbia, and shall expressly assume, by |
| a Supplemental Indenture, executed and delivered to the Indenture |
| Trustee, in form satisfactory to the Indenture Trustee, the due |
| and punctual payment of the principal of, any premium and |
| interest on, and any Additional Amounts with respect to, the |
| Notes and the performance of every covenant of the Indenture on |
| the part of the Trust to be performed or observed; |
| (b) immediately after giving effect to such transaction, no Event of |
| Default, and no event which, after notice or lapse of time, or |
| both, would become an Event of Default, shall have happened and |
| (c) the Trust has received written confirmation from any rating |
| agency then rating any Notes at the request of the Trust that |
| such consolidation, merger, conveyance or transfer shall not |
| cause the rating on the then Outstanding Notes to be downgraded |
| (d) the Trust has delivered to the Indenture Trustee a Trust |
| Certificate and an Opinion of Counsel each stating that such |
| consolidation, | merger, | conveyance | or | transfer | and such |
| Supplemental Indenture comply with this Article and that all |
| conditions precedent provided for in the Indenture relating to |
| such transaction have been complied with. |
| SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS |
| SECTION 11.1 Satisfaction and Discharge of Indenture. If at any time (a) |
the Trust shall have paid or caused to be paid all outstanding principal of, any
premium
and interest on, and any Additional Amounts and other amounts payable with
respect to, all the Notes Outstanding under the Indenture, as and when the same
shall have become due and payable, or (b) the Trust shall have delivered to the
Indenture Trustee for cancellation all Note Certificates representing Notes
theretofore authenticated (other than any Note Certificate which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.7) or (c) the Trust shall have irrevocably deposited or caused to
be deposited with the Indenture Trustee as trust funds the entire amount in cash
(other than funds repaid by the Indenture Trustee or any Paying Agent to the
Trust in accordance with Section 11.4) sufficient to pay at maturity all amounts
payable at maturity on the Notes represented by each Note Certificate not
theretofore delivered to the Indenture Trustee for cancellation, including any
outstanding principal, interest, premium, Additional Amounts and other amounts
due or to become due to such date of maturity as the case may be, and if, in any
such case, the Trust shall also pay or cause to be paid all other sums payable
under the Indenture by the Trust, then the Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and
exchange, (ii) substitution of apparently mutilated, defaced, destroyed, lost or
stolen Note Certificates, (iii) rights of Holders to receive payments of
principal of, any premium and interest on, and any Additional Amounts and other
amounts payable with respect to, the Notes, (iv) the rights, obligations and
immunities of the Indenture Trustee under the Indenture and (v) the rights of
each Holder as beneficiary of the Indenture with respect to the property so
deposited with the Indenture Trustee payable to all or any of them), and the
Indenture Trustee, on demand of the Trust accompanied by a Trust Certificate and
an Opinion of Counsel and at the cost and expense of the Trust, shall execute
proper instruments acknowledging such satisfaction of and discharging the
Indenture. The Trust agrees to reimburse the Indenture Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with the Indenture or the Notes.
| SECTION 11.2 Application by Indenture Trustee of Funds Deposited for |
Payment of Notes. Subject to Section 11.4, all funds deposited with the
Indenture Trustee pursuant to Section 11.1 shall be held in trust in the
Collection Account in accordance with Section 6.5 and applied by it to the
payment, either directly, in its capacity as the Paying Agent, or through any
other Paying Agent, to each Holder of any Note for the payment or redemption of
which such funds have been deposited with the Indenture Trustee, of all sums due
and to become due thereon for any principal, interest, premium, Additional
Amounts or other amounts.
| SECTION 11.3 Repayment of Funds Held by Paying Agent. In connection with |
the satisfaction and discharge of the Indenture, all funds then held by any
Paying Agent under the provisions of the Indenture shall, upon demand of the
Trust, be repaid to the Trust or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such funds.
| SECTION 11.4 Return of Funds Held by Indenture Trustee and Paying Agent. |
Any funds deposited with or paid to the Indenture Trustee or any Paying Agent
for the payment of the principal of, any interest or premium on, or any
Additional Amounts or any other amounts with respect to, any Note and not
applied but remaining unclaimed for three years after the date upon which such
principal, interest, premium, Additional Amounts or any other amount shall have
become due and payable, shall, upon the written request of the Trust and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Trust by the Indenture Trustee or such
Paying Agent, and the Holder of such Note shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Trust for any payment which such Holder may be
entitled to collect, and all liability of the Indenture Trustee or any Paying
Agent with respect to such funds shall thereupon cease.
| MEETINGS OF HOLDERS OF NOTES |
| SECTION 12.1 Purposes for Which Meetings May Be Called. A meeting of |
Holders of Notes may be called at any time and from time to time pursuant to
this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Indenture to
be made, given or taken by Holders of Notes.
| SECTION 12.2 Call, Notice and Place of Meetings. |
| (a) Unless otherwise provided in a Note Certificate, the Indenture |
| Trustee may at any time call a meeting of Holders of Notes for |
| any purpose specified in Section 12.1, to be held at such time |
| and at such place in the City of New York or the city in which |
| the Corporate Trust Office is located. Notice of every meeting of |
| Holders of Notes, setting forth the time and the place of such |
| meeting and in general terms the action proposed to be taken at |
| such meeting, shall be given in the manner provided in Section |
| 13.4, not less than 21 nor more than 180 days prior to the date |
| (b) In case at any time the Trust or the Holder or Holders of at |
| least 10% in principal amount of the Notes shall have requested |
| the Indenture Trustee to call a meeting of the Holders of Notes |
| for any purpose specified in Section 12.1, by written request |
| setting forth in reasonable detail the action proposed to be |
| taken at the meeting, and the Indenture Trustee shall not have |
| made the first publication or mailing of the notice of such |
| meeting within 21 days after receipt of such request or shall not |
| thereafter proceed to cause the meeting to be held as provided in |
| the Trust or the Holder or Holders of Notes in the amount above |
| specified, as the case may be, may determine the time and the |
| place in the City of New York or the city in which the Corporate |
| Trust Office is located for such meeting and may call such |
| meeting for such purposes by giving notice thereof as provided in |
| SECTION 12.3 Persons Entitled to Vote at Meetings. To be entitled to vote |
at any meeting of Holders of Notes, a Person shall be (a) a Holder of one or
more Notes then Outstanding, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Notes then Outstanding
by such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Notes shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Indenture
Trustee and its counsel and any representatives of the Trust and its counsel.
| SECTION 12.4 Quorum; Action. |
| (a) The Persons entitled to vote a majority in principal amount of |
| the Notes then Outstanding shall constitute a quorum for a |
| meeting of Holders of Notes; provided, however, that if any |
| action is to be taken at such meeting with respect to a consent |
| or waiver which the Indenture expressly provides may be given by |
| the Holders of not less than 66 2/3% in principal amount of the |
| Outstanding | Notes, then Persons entitled to vote 66-% in |
| principal amount of the Outstanding Notes shall constitute a |
| quorum. In the absence of a quorum within 30 minutes after the |
| time appointed for any such meeting, the meeting shall, if |
| convened at the request of Holders of Notes, be dissolved. In any |
| other case the meeting may be adjourned for a period of not less |
| than 10 days as determined by the chairman of the meeting prior |
| to the adjournment of such meeting. In the absence of a quorum at |
| any such adjourned meeting, such adjourned meeting may be further |
| adjourned for a period of not less than 10 days as determined by |
| the chairman of the meeting prior to the adjournment of such |
| adjourned meeting. Notice of the reconvening of any adjourned |
| meeting shall be given as provided in Section 12.2, except that |
| such notice need be given only once not less than five days prior |
| to the date on which the meeting is scheduled to be reconvened. |
| Notice of the reconvening of an adjourned meeting shall state |
| expressly the percentage, as provided above, of the principal |
| amount of the Outstanding Notes which shall constitute a quorum. |
| (b) Except as limited by the proviso to Section 9.2(a), | any |
| resolution presented to a meeting or adjourned meeting duly |
| reconvened at which a quorum is present as aforesaid may be |
| adopted only by the affirmative vote of the Holders of a majority |
| in principal amount of the Outstanding Notes; provided, however, |
| that, except as limited by the proviso to Section 9.2(a), any |
| resolution with respect to any consent or waiver which the |
| Indenture expressly provides may be given by the Holders of not |
| less than 66-% in principal amount of the Outstanding Notes may |
| be adopted at a meeting or an adjourned meeting duly convened and |
| at which a quorum is present as aforesaid only by the affirmative |
| vote of the Holders of 66 2/3% in principal amount of the |
| Outstanding Notes; and provided, further, that, except as limited |
| by the proviso to Section 9.2(a), any resolution with respect to |
| any request, demand, authorization, direction, notice, consent, |
| waiver or other action which the Indenture expressly provides may |
| be made, given or taken by the Holders of a specified percentage, |
| which is less than a majority, in principal amount of the |
| Outstanding Notes may be adopted at a meeting or an adjourned |
| meeting duly reconvened and at which a quorum is present as |
| aforesaid by the affirmative vote of the Holders of such |
| specified percentage in principal amount of the Outstanding |
| (c) Any resolution passed or decision taken at any meeting of Holders |
| of Notes duly held in accordance with this Section shall be |
| binding on all the Holders of Notes, whether or not such Holders |
| were present or represented at the meeting. |
| SECTION 12.5 Determination of Voting Rights; Conduct of Adjournment of |
Meetings.
| (a) Notwithstanding any other provisions of the Indenture, the |
| Indenture Trustee may make such reasonable regulations as it may |
| deem advisable for any meeting of Holders of Notes in regard to |
| proof of the holding of Notes and of the appointment of proxies |
| and in regard to the appointment and duties of inspectors of |
| votes, the submission and examination of proxies, certificates |
| and other evidence of the right to vote, and such other matters |
| concerning | the | conduct of the meeting as it shall deem |
| appropriate. Except as otherwise permitted or required by any |
| such regulations, the holding of Notes shall be proved in the |
| manner specified in Section 8.4 and the appointment of any proxy |
| shall be proved in the manner specified in Section 8.2. Such |
| regulations may provide that written instruments appointing |
| proxies, regular on their face, may be presumed valid and genuine |
| without the proof specified in Section 8.2 or other proof. |
| (b) The Indenture Trustee shall, by an instrument in writing, appoint |
| a temporary chairman of the meeting, unless the meeting shall |
| have been called by the Trust or by Holders of Notes as provided |
| in Section 12.2(b), in which case the Trust or the Holders of |
| Notes calling the meeting, as the case may be, shall in like |
| manner appoint a temporary chairman. A permanent chairman and a |
| permanent secretary of the meeting shall be elected by vote of |
| the Persons entitled to vote a majority in principal amount of |
| the Outstanding Notes represented at the meeting. |
| (c) At any meeting, each Holder of a Note or proxy shall be entitled |
| to one vote for each $1,000 of principal amount of Notes held or |
| represented by such Holder or proxy; provided, however, that no |
| vote shall be cast or counted at any meeting in respect of any |
| Note challenged as not Outstanding and ruled by the chairman of |
| the meeting to be not Outstanding. The chairman of the meeting |
| shall have no right to vote, except as a Holder of a Note or |
| (d) Any meeting of Holders of Notes duly called pursuant to Section |
| 12.2 at which a quorum is present may be adjourned from time to |
| time by Persons entitled to vote a majority in principal amount |
| of the Outstanding Notes represented at the meeting; and the |
| meeting may be held as so adjourned without further notice. |
| SECTION 12.6 Counting Votes and Recording Action of Meetings. The vote upon |
any resolution submitted to any meeting of Holders of Notes shall be (a) by
written ballots on which shall be subscribed the signatures of the Holders of
Notes or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Notes held or represented by them or (b) by such
other procedures adopted by the Indenture Trustee in its discretion. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Notes shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 12.2 and, if applicable, Section 12.4.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Trust, and another to the Indenture Trustee to be preserved by the Indenture
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
| SECTION 13.1 No Recourse. | Notwithstanding anything to the contrary |
contained in the Indenture, or any relevant Note Certificate or Supplemental
Indenture, none of the Funding Agreement Provider, its officers, directors,
affiliates, employees or agents, or any of the Delaware Trustee, the Indenture
Trustee or the Trust Beneficial Owner, or any of their officers, directors,
affiliates, employees or agents (the "Nonrecourse Parties") will be personally
liable for the payment of any principal, interest or any other sums at any time
owing under the terms of the Notes. If any Event of Default shall occur with
respect to the Notes, the right of the Holders of the Notes and the Indenture
Trustee on behalf of such Holders in connection with a claim on the Notes shall
be limited solely to a proceeding against the Collateral. Neither the Holders
nor the Indenture Trustee on behalf of the Holders will have the right to
proceed against the Nonrecourse Parties to enforce the Notes (except that to the
extent they exercise their rights, if any, to seize the relevant Funding
Agreement(s), they may enforce the relevant Funding Agreement(s) against the
Funding Agreement Provider) or for any deficiency judgment remaining after
foreclosure of any property included in the relevant Collateral.
| It is expressly understood and agreed that nothing contained in this |
Section shall in any manner or way constitute or be deemed a release of the debt
or other obligations evidenced by the Notes or otherwise affect or impair the
enforceability against the Trust of the liens, assignments, rights and the
Security Interest created by or pursuant to the Indenture, the relevant
Collateral or any other instrument or agreement evidencing, securing or relating
to the indebtedness or the obligations evidenced by the Notes. Nothing in this
Section shall preclude the Holders from foreclosing upon any property included
in the Collateral or any other rights or remedies in law or in equity against
the Trust.
| SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and |
Holders. Nothing in the Indenture or in the Notes, expressed or implied, shall
give or be construed to give to any Person, other than the parties to the
Indenture and their successors and the Holders of the Notes, any legal or
equitable right, remedy or claim under the Indenture or under any covenant or
provision contained in the Indenture, all such covenants and provisions being
for the sole benefit of the parties to the Indenture and their successors and of
the Holders of the Notes.
| SECTION 13.3 Successors and Assigns of Trust Bound by Indenture. All the |
covenants, stipulations, promises and agreements in the Indenture contained by
or in behalf of the Trust shall bind its successors and assigns, whether so
expressed or not.
| SECTION 13.4 Notices and Demands on Trust, Indenture Trustee and any |
Holder.
| (a) Except as otherwise provided by this Section, any notice or |
| demand which by any provision of the Indenture is required or |
| permitted to be given or served by the Indenture Trustee or by |
| any Holder of any Note to or on the Trust may be given or served |
| by being deposited postage prepaid, first-class mail (except as |
| otherwise specifically provided in the Indenture) addressed |
| (until another address of the Trust is filed by the Trust with |
| the Indenture Trustee) to the Delaware Trustee. Any notice, |
| direction, request or demand by the Trust or any Holder to or |
| upon the Indenture | Trustee shall be deemed to have been |
| sufficiently given or made, for all purposes, if given or made at |
| the Corporate Trust Office. |
| (b) Where the Indenture provides for notice to any Holder, such |
| notice shall be sufficiently given (unless otherwise expressly |
| provided in the Indenture) if in writing and mailed, first-class |
| postage prepaid, to each Holder entitled thereto, at such |
| Holder's last address as it appears in the Note Register. In any |
| case where notice to any Holder is given by mail, neither the |
| failure to mail such notice, nor any defect in any notice so |
| mailed, to any particular Holder shall affect the sufficiency of |
| such notice with respect to any other Holder. |
| (c) Where the Indenture provides for notice in any manner, such |
| notice may be waived in writing by the Person entitled to receive |
| such notice, either before or after the event, and such waiver |
| shall be the equivalent of such notice. Waivers of notice by any |
| Holder shall be filed with the Indenture Trustee, but such filing |
| shall not be a condition precedent to the validity of any action |
| taken in reliance upon such waiver. |
| (d) If, by reason of the suspension of or irregularities in regular |
| mail service, it shall be impracticable to mail notice to the |
| Trust and each Holder when such notice is required to be given |
| pursuant to any provision of the Indenture, then any manner of |
| giving such notice as shall be satisfactory to the Indenture |
| Trustee shall be deemed to be a sufficient giving of such notice. |
| (e) The Trust shall deliver promptly to each rating agency then |
| rating the Notes copies of each of the following: |
| (i) any repurchase of Notes pursuant to Section 3.3; |
| (ii) any notice of any default or Event of Default; |
| (iii) any notice of redemption provided by the Trust pursuant to |
| (iv) any notice of change in name, identity, organizational |
| structure, | chief executive office, or chief place of |
| business of the Trust provided by the Trust pursuant to |
| (v) any Supplemental Indenture; |
| (vi) any | resignation, | removal or | appointment | under this |
| (vii) any amendment to any Funding Agreement; and |
| (viii) any other information reasonably requested by such rating |
| Any such notice shall be addressed to: |
| Standard & Poor's Ratings Services, |
| a division of The McGraw-Hill Companies, Inc. |
| Attention: Capital Markets |
| Facsimile: (212) 438-5215 |
| Moody's Investors Service Inc. |
| Attention: Life Insurance Group |
| Facsimile: (212) 553-4805 |
or such other address previously furnished in writing to the Trust by the
applicable rating agency.
| SECTION 13.5 Trust Certificates and Opinions of Counsel; Statements to be |
Contained Therein.
| (a) Except as otherwise expressly provided in the Indenture, |
| upon any application or demand by the Trust to the Indenture |
| Trustee to take any action under any of the provisions of |
| the Indenture, the Trust shall furnish to the Indenture |
| Trustee a Trust Certificate stating that all conditions |
| precedent, if any, provided for in the |
| Indenture relating to the proposed action have been complied |
| with and an Opinion of Counsel stating that in the opinion |
| of the applicable counsel all such conditions precedent, if |
| any, have been complied with, except that in the case of any |
| such application or demand as to which the furnishing of |
| such documents is specifically required by any provision of |
| the Indenture relating to such particular application or |
| demand, no additional | certificate or opinion need be |
| (b) Each certificate or opinion provided for in the Indenture |
| and delivered to the Indenture Trustee with respect to |
| compliance with a condition or covenant provided for in the |
| (i) a statement that the Person making such certificate or |
| opinion has read such covenant or condition; |
| (ii) a brief statement as to the nature and scope of the |
| examination or investigation upon which the statements |
| or opinions contained in such certificate or opinion |
| (iii) a statement that, in the opinion of such Person, he |
| has made such examination or investigation or has |
| received such certificates, opinions, representations |
| or statements of counsel or accountants pursuant to |
| paragraphs (c) or (d) of this Section, as are necessary |
| to enable him to express an informed opinion as to |
| whether or not such covenant or condition has been |
| (iv) a statement as to whether or not, in the opinion of |
| such Person, such condition or covenant has been |
| (c) Any certificate, statement or opinion of the Trust may be |
| based upon a certificate or opinion of or representations by |
| counsel, unless the Trust knows that the certificate or |
| opinion or representations with respect to the matters upon |
| which his certificate, statement or opinion may be based as |
| aforesaid are erroneous, or in the exercise of reasonable |
| care | should know that the same are | erroneous. | Any |
| certificate, statement or opinion of counsel may be based, |
| insofar as it relates to factual matters information with |
| respect to which is in the possession of the Trust, upon the |
| certificate, statement or opinion of or representations by |
| the Trust, unless such counsel knows that the |
| certificate, statement or opinion or representations with |
| respect to the matters upon which the certificate, statement |
| or opinion may be based as aforesaid are erroneous, or in |
| the exercise of reasonable care should know that the same |
| (d) Any certificate, statement or opinion of the Trust or of |
| counsel may be based, insofar as it relates to accounting |
| matters, upon a certificate or opinion of or representations |
| by an accountant or firm of accountants in the employ of the |
| Trust, unless such officer or counsel, as the case may be, |
| knows that the certificate or opinion or representations |
| with respect to the accounting matters upon which the |
| certificate, statement or opinion may be based as aforesaid |
| are erroneous, or in the exercise of reasonable care should |
| know that the same are erroneous. |
| (e) Any certificate or opinion of any independent firm of public |
| accountants filed with the Indenture Trustee shall contain a |
| statement that such firm is independent. |
| SECTION 13.6 Governing Law. Pursuant to Section 5-1401 of the General |
Obligations Law of the State of New York, the Indenture and the Notes shall
(unless specified otherwise in the Note Certificate) be governed by, and
construed in accordance with, the laws of the State of New York, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the Trust's ownership of and security interest in the
Funding Agreement(s) or remedies under the Indenture in respect thereof may be
governed by the laws of a jurisdiction other than the State of New York. All
judicial proceedings brought against the Trust or the Indenture Trustee arising
out of or relating to the Indenture, any Note or any portion of the Collateral
or other assets of the Trust may be brought in any state or Federal court in the
State of New York, provided that a Note Certificate may specify other
jurisdictions as to which the Trust may consent to the nonexclusive jurisdiction
of its courts with respect to the Notes.
| SECTION 13.7 Counterparts. The Indenture may be executed in any number of |
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
| SECTION 13.8 Trust Indenture Act to Control. If and to the extent that any |
provision of the Indenture limits, qualifies or conflicts with any duties under
any required provision of the Trust Indenture Act imposed on the Indenture by
Section 318(c) of the Trust Indenture Act, such provision of the Trust Indenture
Act shall control.
