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ALLSTATE LIFE GLOBAL FUNDING TRUST 2004-2
SERIES INSTRUMENT
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TABLE OF CONTENTS
Page
PART A TRUST AGREEMENT...................................................................................1
PART B ADMINISTRATIVE SERVICES AGREEMENT.................................................................3
PART C SUPPORT AND EXPENSES AGREEMENT....................................................................5
PART D NAME LICENSING AGREEMENT..........................................................................7
PART E TERMS AGREEMENT...................................................................................9
PART F COORDINATION AGREEMENT...........................................................................12
PART G MISCELLANEOUS AND EXECUTION PAGES................................................................17
EXHIBIT A STANDARD TRUST AGREEMENT TERMS..................................................................A-1
EXHIBIT B STANDARD ADMINISTRATIVE SERVICES AGREEMENT TERMS................................................B-1
EXHIBIT C STANDARD SUPPORT AND EXPENSES AGREEMENT TERMS...................................................C-1
EXHIBIT D STANDARD NAME LICENSING AGREEMENT TERMS.........................................................D-1
EXHIBIT E DISTRIBUTION AGREEMENT..........................................................................E-1
EXHIBIT F CERTIFICATE OF TRUST............................................................................F-1
ANNEX A PRICING SUPPLEMENT............................................................................A-A-1
ANNEX B DELAWARE TRUSTEE SERVICE FEE SCHEDULE.........................................................A-B-1
ANNEX C ADMINISTRATOR SERVICE FEE SCHEDULE............................................................A-C-1
ANNEX D DEALER NOTICE INFORMATION.....................................................................A-D-1
ANNEX E COORDINATION AGREEMENT NOTICE INFORMATION.....................................................A-E-1
WHEREAS, the parties named herein desire to enter into certain
documents relating to the issuance by Allstate Life Global Funding Trust 2004-2
(the "Trust") of Notes to investors under Allstate Life Global Funding's
("Global Funding") secured medium term notes program;
WHEREAS, the Trust will be created under and its activities will be
governed by (i) the provisions of the Trust Agreement (set forth in Part A of
this Series Instrument), dated as of the date of the Pricing Supplement
(attached to this Series Instrument as Annex A) (the "Pricing Supplement"),
between the parties thereto indicated in Part G herein, and (ii) the Certificate
of Trust (attached as Exhibit F to this Series Instrument);
WHEREAS, the Trust will be administered pursuant to the provisions of
the Administrative Services Agreement (set forth in Part B of this Series
Instrument), dated as of the date of the Pricing Supplement, between the parties
thereto indicated in Part G herein;
WHEREAS, certain costs and expenses of the Trust and the service
providers to the Trust will be paid pursuant to the Support and Expenses
Agreement (set forth in Part C of this Series Instrument), dated as of the date
of the Pricing Supplement, between the parties thereto indicated in Part G
herein;
WHEREAS, certain licensing arrangements between the Trust and Allstate
Insurance Company will be governed pursuant to the provisions of the Name
Licensing Agreement (set forth in Part D of this Series Instrument), dated as of
the date of the Pricing Supplement, between the parties thereto indicated in
Part G herein;
WHEREAS, the sale of the Notes will be governed by the Terms Agreement
(set forth in Part E of this Series Instrument), dated as of the date of the
Pricing Supplement, among the parties thereto indicated in Part G herein;
WHEREAS, certain agreements relating to the Notes and the Funding
Agreement(s) are set forth in the Coordination Agreement (set forth in Part F of
this Series Instrument), dated as of the date of the Pricing Supplement, among
the parties thereto indicated in Part G herein;
All capitalized terms used in the above recitals and not otherwise
defined will have the meanings set forth in the Standard Indenture Terms to be
attached as Exhibit A to the Closing Instrument for the Trust.
PART A
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of the date of the Pricing Supplement
attached to this Series Instrument as Annex A (the "Pricing Supplement"), is
entered into among Allstate Life Global Funding, a Delaware statutory trust, as
trust beneficial owner (the "Trust Beneficial Owner"), AMACAR Pacific Corp., a
Delaware corporation, as the sole administrator of the Trust (the
"Administrator") and Wilmington Trust Company, a Delaware banking corporation,
as Delaware trustee (the "Delaware Trustee").
W I T N E S S E T H:
WHEREAS, the Trust Beneficial Owner, the Administrator and the Delaware
Trustee desire to authorize the issuance of Notes in connection with the entry
into this Trust Agreement;
WHEREAS, all things necessary to make this Trust Agreement a valid and
legally binding agreement of the Delaware Trustee, the Administrator and the
Trust Beneficial Owner, enforceable in accordance with its terms, have been
done;
WHEREAS, the parties intend to provide for, among other things, (i) the
issuance and sale of the Notes (pursuant to the Indenture to be set forth in
Part A of the Closing Instrument for the Trust and the Terms Agreement set forth
in Part E herein), (ii) the use of the proceeds of the sale of the Notes to
acquire a Funding Note, which will be surrendered in consideration for the
Funding Agreement(s), and (iii) all other actions deemed necessary or desirable
in connection with the transactions contemplated by this Trust Agreement; and
WHEREAS, the parties hereto desire to incorporate by reference the
Standard Trust Agreement Terms attached to this Series Instrument as Exhibit A
(the "Standard Trust Agreement Terms," together with this Trust Agreement,
collectively, the "Trust Agreement").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
ARTICLE 1.........
Section 1.1.......Incorporation by Reference. All terms, provisions and
agreements of the Standard Trust Agreement Terms (except to the extent expressly
modified herein) are hereby incorporated herein by reference with the same force
and effect as though fully set forth herein. To the extent that the terms set
forth in Article 2 of this Trust Agreement are inconsistent with the terms of
the Standard Trust Agreement Terms, the terms set forth in Article 2 herein
shall apply.
Section 1.2.......Definitions. "Series Instrument" means the Series Instrument
in which this Trust Agreement is included as Part A. All capitalized terms not
otherwise defined in this Trust Agreement shall have the meanings set forth in
the Standard Trust Agreement Terms.
ARTICLE 2.........
Section 2.1.......Name. The Trust created and governed by this Trust Agreement
shall have the name specified in this Series Instrument.
Section 2.2.......Ownership of the Trust. Upon the creation of the Trust, Global
Funding shall be the sole beneficial owner of the Trust.
Section 2.3.......Acknowledgment. The Delaware Trustee, the Trust Beneficial
Owner and the Administrator expressly acknowledge their duties and obligations
set forth in the Standard Trust Agreement Terms incorporated herein.
Section 2.4.......Compensation. The Delaware Trustee shall be entitled to
receive the fees specified in the Delaware Trustee Service Fee Schedule, which
is attached as Annex B to this Series Instrument.
Section 2.5.......Additional Terms. None.
Section 2.6.......Series Instrument; Execution and Incorporation of Terms. The
parties to this Trust Agreement will enter into this Trust Agreement by
executing this Series Instrument.
By executing this Series Instrument, the Delaware Trustee, the
Administrator and the Trust Beneficial Owner hereby agree that this Trust
Agreement will constitute a legal, valid and binding agreement among the
Delaware Trustee, the Administrator and the Trust Beneficial Owner.
All terms relating to the Trust or the Notes not otherwise
included in this Trust Agreement will be as specified in this Series Instrument
or Pricing Supplement as indicated herein.
Section 2.7.......Counterparts. This Trust Agreement, through this Series
Instrument, may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
PART B
ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT, dated as of the date of the
Pricing Supplement attached to this Series Instrument as Annex A (the "Pricing
Supplement"), is entered into between the Allstate Life Global Funding Trust
specified in this Series Instrument (the "Trust") and AMACAR Pacific Corp., a
Delaware corporation (the "Administrator").
W I T N E S S E T H:
WHEREAS, the Trust has requested that the Administrator perform various
services for the Trust;
WHEREAS, the Trust desires to have the Administrator perform various
financial, statistical, accounting and other services for the Trust, and the
Administrator is willing to furnish such services on the terms and conditions
herein set forth; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Administrative Services Agreement Terms attached to this Series
Instrument as Exhibit B (the "Standard Administrative Services Agreement Terms,"
together with this Administrative Services Agreement, collectively, the
"Administrative Services Agreement").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
ARTICLE 1.........
Section 1.1.......Incorporation by Reference. All terms, provisions and
agreements of the Standard Administrative Services Agreement Terms (except to
the extent expressly modified herein) are hereby incorporated herein by
reference with the same force and effect as though fully set forth herein. To
the extent that the terms set forth in Article 2 of this Administrative Services
Agreement are inconsistent with the terms of the Standard Administrative
Services Agreement Terms, the terms set forth in Article 2 herein shall apply.
Section 1.2.......Definitions. "Series Instrument" means the Series Instrument
in which this Administrative Services Agreement is included as Part B. All
capitalized terms not otherwise defined in this Administrative Services
Agreement shall have the meanings set forth in the Standard Administrative
Services Agreement Terms.
ARTICLE 2.........
Section 2.1.......Compensation. The Administrator shall be entitled to receive
the fees specified in the Administrator Service Fee Schedule, which is attached
as Annex C to this Series Instrument.
Section 2.2.......Additional Terms. None.
Section 2.3.......Series Instrument; Execution and Incorporation of Terms. The
parties to this Administrative Services Agreement will enter into this
Administrative Services Agreement by executing this Series Instrument.
By executing this Series Instrument, Wilmington Trust Company
(the "Delaware Trustee"), on behalf of the Trust, and the Administrator hereby
agree that this Administrative Services Agreement will constitute a legal, valid
and binding agreement between the Trust and the Administrator.
All terms relating to the Trust or the Notes not otherwise
included in this Administrative Services Agreement will be as specified in this
Series Instrument or Pricing Supplement as indicated herein.
Section 2.4.......Counterparts. This Administrative Services Agreement, through
this Series Instrument, may be executed in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
Section 2.5.......Third Party Beneficiary. The parties hereto acknowledge that
the Delaware Trustee shall be an express third party beneficiary to this
Administrative Services Agreement, entitled in its own name and on its own
behalf to enforce the provisions hereof against the Trust and the Administrator
with respect to obligations owed to the Delaware Trustee by either the Trust or
the Administrator; provided, however, that such right shall be valid only for so
long as the Delaware Trustee has any outstanding obligations or potential
obligations under the Trust Agreement.
PART C
SUPPORT AND EXPENSES AGREEMENT
This SUPPORT AND EXPENSES AGREEMENT, dated as of the date of the
Pricing Supplement attached to this Series Instrument as Annex A (the "Pricing
Supplement"), is entered into between Allstate Life Insurance Company, an
Illinois stock life insurance company ("Allstate Life") and the Allstate Life
Global Funding Trust specified in this Series Instrument (the "Trust").
W I T N E S S E T H:
WHEREAS, in consideration of the Service Providers providing services
to the Trust in connection with the Program and pursuant to the agreements and
other documents contained in this Series Instrument and the Closing Instrument
to be executed for the Trust, under which the Service Providers will have
certain duties and obligations, Allstate Life hereby agrees to the following
compensation arrangements and terms of indemnity; and
WHEREAS, the parties hereto desire to incorporate by reference the
Standard Support and Expenses Agreement Terms attached to this Series Instrument
as Exhibit C (the "Standard Support and Expenses Agreement Terms," together with
this Support and Expenses Agreement, collectively, the "Support and Expenses
Agreement").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party hereby agrees as follows:
ARTICLE 1.........
Section 1.1.......Incorporation by Reference. All terms, provisions and
agreements of the Standard Support and Expenses Agreement Terms (except to the
extent expressly modified herein) are hereby incorporated herein by reference
with the same force and effect as though fully set forth herein. To the extent
that the terms set forth in Article 2 of this Support and Expenses Agreement are
inconsistent with the terms of the Standard Support and Expenses Agreement
Terms, the terms set forth in Article 2 herein shall apply.
Section 1.2.......Definitions. "Series Instrument" means the Series Instrument
in which this Support and Expenses Agreement is included as Part C. All
capitalized terms not otherwise defined in this Support and Expenses Agreement
shall have the meanings set forth in the Standard Support and Expenses Agreement
Terms.
ARTICLE 2.........
Section 2.1.......Additional Terms. None.
Section 2.2.......Series Instrument; Execution and Incorporation of Terms. The
parties to this Support and Expenses Agreement will enter into this Support and
Expenses Agreement by executing this Series Instrument.
By executing this Series Instrument, each party hereto agrees
that this Support and Expenses Agreement will constitute a legal, valid and
binding agreement by and among such parties.
All terms relating to the Trust or the Notes not otherwise
included in this Support and Expenses Agreement will be as specified in this
Series Instrument or Pricing Supplement as indicated herein.
Section 2.3.......Counterparts. This Support and Expenses Agreement, through
this Series Instrument, may be executed in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
PART D
NAME LICENSING AGREEMENT
This NAME LICENSING AGREEMENT, dated as of the date of the Pricing
Supplement attached to this Series Instrument as Annex A (the "Pricing
Supplement"), is entered into between Allstate Insurance Company (the
"Licensor"), an Illinois stock life insurance company, and the Allstate Life
Global Funding Trust specified in this Series Instrument (the "Licensee").
W I T N E S S E T H:
WHEREAS, Licensor is the owner of certain tradenames, trademarks and
service marks and registrations and pending applications therefor, and may
acquire additional tradenames, trademarks and service marks in the future
(collectively, "Licensor's Marks");
WHEREAS, Licensee desires to use certain of Licensor's Marks and use
Allstate Life as part of its company name;
WHEREAS, Licensor and Licensee wish to formalize the agreement between
them regarding Licensee's use of Licensor's Marks; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Name Licensing Agreement Terms attached to this Series
Instrument as Exhibit D (the "Standard Name Licensing Agreement Terms," together
with this Name Licensing Agreement, collectively, the "Name Licensing
Agreement").
NOW, THEREFORE, in consideration of the mutual promises set forth in
this Name Licensing Agreement and other good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, the parties agree as
follows:
ARTICLE 1.........
Section 1.1.......Incorporation by Reference. All terms, provisions and
agreements set forth in the Standard Name Licensing Agreement Terms (except to
the extent expressly modified herein) are hereby incorporated herein by
reference with the same force and effect as though fully set forth herein. To
the extent that the terms set forth in Article 2 of this Name Licensing
Agreement are inconsistent with the terms of the Standard Name Licensing
Agreement Terms, the terms set forth in Article 2 herein shall apply.
Section 1.2.......Definitions. "Series Instrument" means the Series Instrument
in which this Name Licensing Agreement is included as Part D. All capitalized
terms not otherwise defined in this Name Licensing Agreement shall have the
meanings set forth in the Standard Name Licensing Agreement Terms.
ARTICLE 2.........
Section 2.1.......Additional Terms. None.
Section 2.2.......Series Instrument; Execution and Incorporation of Terms. The
parties to this Name Licensing Agreement will enter into this Name Licensing
Agreement by executing this Series Instrument.
By executing this Series Instrument, Licensor and the Licensee
hereby agree that this Name Licensing Agreement will constitute a legal, valid
and binding agreement between Licensor and the Licensee.
All terms relating to the Trust or the Notes not otherwise
included in this Name Licensing Agreement will be as specified in this Series
Instrument or Pricing Supplement as indicated herein.
Section 2.3.......Counterparts. This Name Licensing Agreement, through this
Series Instrument, may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
PART E
TERMS AGREEMENT
This TERMS AGREEMENT (the "Terms Agreement"), dated as of the date of
the Pricing Supplement attached to this Series Instrument as Annex A (the
"Pricing Supplement"), is entered into among each agent specified in the Pricing
Supplement (each, an "Agent"), Allstate Life Global Funding, a Delaware
statutory trust ("Global Funding") and the Allstate Life Global Funding Trust
specified in this Series Instrument (the "Trust").
W I T N E S S E T H:
WHEREAS, all things necessary to make this Terms Agreement a valid and
legally binding agreement of the Trust, Global Funding and the other parties to
this Terms Agreement, enforceable in accordance with its terms, have been done,
and the Trust proposes to do all things necessary to make the notes referred to
in Section 1.4 below (the "Notes"), when executed by the Trust and authenticated
and delivered pursuant hereto and the Indenture to be set forth in Part A to the
Closing Instrument for the Trust, valid and legally binding obligations of the
Trust as hereinafter provided; and
WHEREAS, the parties hereto desire to incorporate by reference the
Distribution Agreement attached to this Series Instrument as Exhibit E (the
"Distribution Agreement", together with this Terms Agreement, collectively, the
"Terms Agreement").
NOW, THEREFORE, for and in consideration of the premises and the
issuance of the Notes by the Trust, it is mutually agreed by the parties hereto
as follows:
ARTICLE 1.........
Section 1.1.......Agreement to be Bound. Global Funding, the Trust and each
Agent hereby agree to be bound by all of the terms, provisions and agreements
set forth herein, with respect to all matters contemplated herein, including,
without limitation, those relating to the issuance of the Notes.
Section 1.2.......Incorporation by Reference. All terms, provisions and
agreements set forth in the Distribution Agreement (except to the extent
expressly modified hereby) are hereby incorporated herein by reference (as if
fully set forth herein). Should any portion of the Distribution Agreement
conflict with the terms of this Terms Agreement, the terms of this Terms
Agreement shall prevail. References herein to Sections or Exhibits shall refer
respectively to the sections or exhibits of the Distribution Agreement, unless
otherwise expressly provided.
Section 1.3.......Addition of Trust as Party to Distribution Agreement. Pursuant
to the Distribution Agreement, each of the parties hereto acknowledges and
agrees that the Trust, upon execution hereof by the Trust, Global Funding and
the applicable Agent(s), shall become an "Issuing Trust" for purposes of the
Distribution Agreement in accordance with the terms thereof, in respect of the
Notes, with all the authority, rights, powers, duties and obligations of an
"Issuing Trust" under the Distribution Agreement. The Trust confirms that any
agreement, covenant, acknowledgment, representation or warranty under the
Distribution Agreement applicable to the Trust is made by the Trust at the date
hereof, unless another time or times are specified in the Distribution
Agreement, in which case such agreement, covenant, acknowledgment,
representation or warranty shall be deemed to be confirmed by the Trust at such
specified time or times.
Section 1.4.......Designation of the Trust and the Notes. The Trust referred to
in this Terms Agreement is the Allstate Life Global Funding Trust specified in
this Series Instrument. The Notes issued by the Trust pursuant to the Terms
Agreement shall be the notes specified in the Pricing Supplement.
Section 1.5.......Additional Terms. The parties hereto agree that Section 5(b)
of the Distribution Agreement shall not be applicable to the transactions
contemplated by this Terms Agreement. Each Agent specified in the Pricing
Supplement represents, warrants and covenants that it has not and will not sell,
offer to sell or solicit offers to purchase any Notes, or the Funding
Agreement(s) identified in the Pricing Supplement, to or from any persons other
than "institutional investors" and other qualified purchasers under the
circumstances that will not require any registration or qualification of any
Notes or the Funding Agreement(s) identified in the Pricing Supplement for offer
and sale under the securities or Blue Sky laws of any State of the United
States.
Section 1.6.......Definitions. "Series Instrument" means the Series Instrument
in which this Terms Agreement is included as Part E. All capitalized terms not
otherwise defined in this Terms Agreement shall have the meanings set forth in
the Distribution Agreement.
ARTICLE 2.........
Section 2.1.......Purchase/Solicitation of Purchases of Notes.
(1) If specified in the Pricing Supplement, the Notes are being purchased by the
Agent(s) as principal. If the Notes are to be purchased by the Agent(s) as
principal, the Agent(s) specified in the Pricing Supplement severally and not
jointly agree to purchase the Notes having the terms and in the amounts
specified in the Pricing Supplement.
(2) If specified in the Pricing Supplement, the Agent(s) will be acting as
agent. If the Agent(s) are to solicit the purchase of the Notes acting as
agents, the Agent(s) will solicit the purchase of Notes pursuant to Section 1(d)
of the Distribution Agreement.
Section 2.2.......Funding Agreement. On the Original Issue Date set forth in the
Pricing Supplement, Global Funding will assign absolutely to, and deposit into,
the Trust the Funding Agreement(s) identified in the Pricing Supplement.
Section 2.3.......Agent Notice Information. As specified in Annex D to this
Series Instrument.
Section 2.4....... Ratings. Global Funding represents and warrants that (i) it
will seek to obtain ratings of the Notes from Moody's Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. ("S&P"); (ii) it expects the initial Notes to be
rated "Aa2" by Moody's; and (iii) the notes issued under the Programs are rated
"AA" by S&P.
ARTICLE 3.........
Section 3.1.......Series Instrument; Execution and Incorporation of Terms. The
parties to this Terms Agreement will enter into this Terms Agreement by
executing this Series Instrument.
By executing this Series Instrument, each party hereto agrees
that this Terms Agreement will constitute a legal, valid and binding agreement
by and among the Trust, Allstate Life Global Funding and the Agents specified in
the Pricing Supplement.
All terms relating to the Trust or the Notes not otherwise
included in this Terms Agreement will be as specified in this Series Instrument
or Pricing Supplement as indicated herein.
Section 3.2.......Counterparts. This Terms Agreement, through this Series
Instrument, may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
PART F
COORDINATION AGREEMENT
This COORDINATION AGREEMENT (this "Coordination Agreement"), dated as
of the date of the Pricing Supplement attached to this Series Instrument as
Annex A (the "Pricing Supplement"), is entered into among Allstate Life
Insurance Company ("Allstate Life"), Allstate Life Global Funding ("Global
Funding"), Law Debenture Trust Company of New York, as funding note indenture
trustee (in such capacity, the "Funding Note Indenture Trustee") the Allstate
Life Global Funding Trust specified in this Series Instrument (the "Trust") and
Law Debenture Trust Company of New York, as indenture trustee (in such capacity,
the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Trust intends to issue the Notes specified in the Pricing
Supplement (the "Notes") in accordance with the Indenture to be set forth in
Part A to the Closing Instrument for the Trust (the "Indenture");
WHEREAS, the Agent(s) have agreed to sell the Notes in accordance with
the Purchase Agreement, the Terms Agreement and the Registration Statement;
WHEREAS, the Trust intends to purchase the Funding Note issued by
Global Funding and dated as of the Original Issue Date specified in the Pricing
Supplement (the "Funding Note") with the net proceeds from the sale of the
Notes;
WHEREAS, Global Funding intends to sell the Funding Note to the Trust
and use the proceeds therefrom to purchase the Funding Agreement(s) described in
the Pricing Supplement (the "Funding Agreement(s)") from Allstate Life;
WHEREAS, Allstate Life intends to sell the Funding Agreement(s) to
Global Funding in consideration for the proceeds Global Funding receives from
the sale of the Funding Note;
WHEREAS, Global Funding intends to immediately pledge and collaterally
assign each Funding Agreement to and grant a security interest in each Funding
Agreement and the related collateral in favor of, the Funding Note Indenture
Trustee to secure its obligations under the Funding Note;
WHEREAS, Global Funding intends to immediately thereafter assign
absolutely to, and deposit into, the Trust the Funding Agreement(s), and the
Funding Note will be surrendered for cancellation by or on behalf of the Trust,
and will be cancelled by the Funding Note Indenture Trustee, and the pledge and
collateral assignment of each Funding Agreement to, and the security interest in
favor of, the Funding Note Indenture Trustee will be terminated;
WHEREAS, the Trust intends to pledge and collaterally assign the
Funding Agreement(s) to the Indenture Trustee to secure its obligations under
the Notes; and
WHEREAS, the Trust intends to grant a security interest to the
Indenture Trustee for the benefit of the Secured Parties (as defined in the
Indenture).
NOW, THEREFORE, to give effect to the agreements and arrangements
established under the Terms Agreement set forth in Part E of this Series
Instrument, the Trust Agreement set forth in Part A of this Series Instrument,
the Indenture, and the Notes, and in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party hereby agrees as
follows:
ARTICLE 1.........
PURCHASE OF FUNDING NOTE
The Trust hereby agrees to purchase the Funding Note from Global
Funding with the net proceeds from the sale of the Notes. Global Funding hereby
agrees to sell the Funding Note to the Trust in consideration for the net
proceeds from the sale of the Notes.
ARTICLE 2.........
PURCHASE OF FUNDING AGREEMENT(S)
Allstate Life hereby agrees to sell the Funding Agreement(s) to Global
Funding in consideration for the proceeds Global Funding receives from the sale
of the Funding Note. Global Funding hereby agrees to immediately purchase the
Funding Agreement(s) with the proceeds Global Funding receives from the sale of
the Funding Note. Global Funding agrees to immediately pledge and collaterally
assign each Funding Agreement to, and grant a security interest in each Funding
Agreement and the related collateral in favor of, the Funding Note Indenture
Trustee.
ARTICLE 3.........
SALE OF FUNDING AGREEMENT(S);
CANCELLATION OF FUNDING NOTE
The parties hereto agree that Global Funding will assign the Funding
Agreement(s) absolutely to, and deposit the Funding Agreement(s) into, the
Trust, immediately following the pledge, collateral assignment and grant of
security interest described in Article 2, and the Funding Note will be
surrendered for cancellation by or on behalf of the Trust. The Trust hereby
agrees to accept the Funding Agreement(s) from Global Funding in consideration
for the Trust's surrender of the Funding Note. The parties hereto agree that the
Funding Note shall be cancelled by the Funding Note Indenture Trustee
immediately upon such surrender, and the pledge and collateral assignment of
each Funding Agreement to, and the security interest in favor of, the Funding
Note Indenture Trustee will be terminated. Such cancellation shall operate as a
redemption of the Funding Note.
ARTICLE 4.........
DELIVERY OF THE FUNDING AGREEMENT(S)
The parties hereby appoint the entity specified as Collateral Custodian in
Part G of this Series Instrument (including its successors in such capacity, the
"Collateral Custodian") to act as custodian for the Funding Agreement(s) in
connection with (i) the sale of the Funding Agreement(s) by Allstate Life to
Global Funding and the pledge and collateral assignment of each Funding
Agreement to, and the security interest in favor of, the Funding Note Indenture
Trustee, pursuant to Article 2 above, (ii) the sale and deposit of the Funding
Agreement(s) by Global Funding to the Trust pursuant to Article 3 above, (iii)
the collateral assignment of the Funding Agreement(s) by the Trust to the
Indenture Trustee and (iv) any subsequent permitted transfer of the Funding
Agreement(s) by the Indenture Trustee, and in such capacity to accept and hold
in its physical custody the Funding Agreement(s) in the State of Illinois until
such time when the Indenture Trustee notifies the Collateral Custodian in
writing to the contrary, in connection with the release of the Funding
Agreement(s) in accordance with the terms of the Indenture or upon the
occurrence and during the continuation of an Event of Default (as defined in the
Standard Indenture Terms to be attached as Exhibit A to the Closing Instrument
for the Trust) whereupon such physical custody and possession of the Funding
Agreement(s) will be transferred to the Indenture Trustee or another person in
the manner directed by the Indenture Trustee. The Collateral Custodian hereby
accepts such appointment and agrees to perform all of its obligations in its
capacity as Collateral Custodian for the Funding Agreement(s).
ARTICLE 5.........
PERIODIC PAYMENTS; MATURITY
Section 5.1.......Directions Regarding Periodic Payments. As registered owner of
the Funding Agreement(s) as collateral securing payments on the Notes, following
the pledge and collateral assignment of the Funding Agreement(s) by the Trust to
the Indenture Trustee. The Indenture Trustee will receive payments on the
Funding Agreement(s) on behalf of the Trust. The Trust hereby directs the
Indenture Trustee to use such funds to make payments on behalf of the Trust
pursuant to the Trust Agreement and the Indenture.
Section 5.2.......Amendment to Directions.
(a) The Trust may, at any time and at its sole discretion, amend the directions
set forth in Section 5.1 in accordance with the Trust Agreement and the
Indenture.
(b) Any notice to a payor of the change in identity of any payee or the
appointment of any successor payee, which notice is acknowledged by the Trust,
shall be deemed to be an amendment to these directions which replaces such new
payee for the payee named in these directions.
Section 5.3.......Maturity of the Funding Agreement(s). Upon the maturity of the
Funding Agreement(s) and the return of funds thereunder, the Trust hereby
directs the Indenture Trustee to set aside from such funds an amount sufficient
for the repayment of the outstanding principal on the Notes when due.
ARTICLE 6.........
MISCELLANEOUS
Section 6.1.......No Additional Liability. Nothing in this Coordination
Agreement shall impose any liability or obligation on the part of any party to
this Coordination Agreement to make any payment or disbursement in addition to
any liability or obligation such party has under the other documents related to
the Programs (the "Program Documents"), except to the extent that a party has
actually received funds which it is obligated to disburse pursuant to this
Coordination Agreement.
Section 6.2.......No Conflict. This Coordination Agreement is intended to be in
furtherance of the agreements reflected in the Program Documents, and not in
conflict. To the extent that a provision of this Coordination Agreement
conflicts with the provisions of one or more Program Documents, the provisions
of such documents shall govern.
Section 6.3.......Governing Law. Pursuant to Section 5-1401 of the General
Obligations Law of the State of New York, this Coordination Agreement shall be
governed by and construed in accordance with, the laws of the State of New York.
Section 6.4.......Definitions. "Series Instrument" means the Series Instrument
in which this Coordination Agreement is included as Part F. All capitalized
terms not otherwise defined in this Coordination Agreement shall have the
meanings set forth in the Distribution Agreement.
Section 6.5.......Severability. If any provision of this Coordination Agreement
shall be invalid, illegal or unenforceable, such provisions shall be deemed
severable from the remaining provisions of this Coordination Agreement and shall
in no way affect the validity or enforceability of such other provisions of this
Coordination Agreement.
Section 6.6.......Counterparts. This Coordination Agreement, through this Series
Instrument, may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 6.7.......Notices. All demands, notices and communications under this
Coordination Agreement shall be in writing and shall be deemed to have been duly
given upon receipt at the addresses set forth in Annex E to this Series
Instrument or at such other address as shall be designated by any party in a
written notice to the other parties.
PART G
MISCELLANEOUS AND EXECUTION PAGES
This Series Instrument may be executed by each of the parties hereto in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Facsimile signatures shall be deemed original
signatures.
Each signatory, by its execution hereof, does hereby become a party to,
or executes, each of the agreements and certificates identified below for such
signatory as of the date specified in such agreements and certificates.
It is expressly understood and agreed by the parties that (a)
Wilmington Trust Company (the "Delaware Trustee") is hereby instructed by Global
Funding and the Trust to execute this Series Instrument on their behalf, (b)
this Series Instrument is executed and delivered by the Delaware Trustee, 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 set forth in Part A herein (the "Trust Agreement"), (c) each of the
representations, undertakings and agreements made on the part of the Trust in
this Series Instrument 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, (d) nothing contained herein shall be
construed as creating any liability on the Delaware Trustee 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 (e)
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 any breach
or failure of any obligation, representation, warranty or covenant to be made or
undertaken by the Trust under the Indenture to be set forth in Part A to the
Closing Instrument for the Trust or any other related documents; provided,
however, that such waiver shall not affect the liability of the Delaware Trustee
(or any entity acting as successor or additional trustee) to any person under
any other agreement to the extent expressly agreed to in its individual capacity
under the Trust Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Series
Instrument.
ALLSTATE INSURANCE COMPANY
(for purposes of the Name
Licensing Agreement set
forth in Part D herein)
By:
/s/ Michael J. Velotta
------------------------
Name: Michael J. Velotta
Title: VP, Deputy General
Counsel & Assistant
Secretary
ALLSTATE LIFE INSURANCE
COMPANY (for purposes of
(i) the Support and
Expenses Agreement set
forth in Part C herein and
(ii) the Coordination
Agreement set forth in Part
F herein)
By:
/s/ Sarah R. Donahue
------------------------
Name: Sarah R. Donahue
Title: Assistant Vice
President
ALLSTATE LIFE GLOBAL
FUNDING (for purposes of
(i) the Trust Agreement set
forth in Part A herein,
(ii) the Terms Agreement
set forth in Part E herein
and (iii) the Coordination
Agreement set forth in Part
F herein)
By: Wilmington Trust
Company, solely in its
capacity as Delaware
Trustee
By:
/s/ Charisse L. Rodgers
------------------------
Name: Charisse L. Rodgers
Title: Vice President
THE ALLSTATE LIFE GLOBAL
FUNDING TRUST SPECIFIED
ABOVE (for purposes of (i)
the Administrative Services
Agreement set forth in Part
B herein, (ii) the Support
and Expenses Agreement set
forth in Part C herein,
(iii) the Name Licensing
Agreement set forth in Part
D herein, (iv) the Terms
Agreement set forth in Part
E herein and (v) the
Coordination Agreement set
forth in Part F herein)
By: Wilmington Trust
Company, solely in its
capacity as Delaware
Trustee
By:
/s/ Charisse L. Rodgers
------------------------
Name: Charisse L. Rodgers
Title: Vice President
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION,
Chicago, Illinois office
(for purposes of the
Coordination Agreement set
forth in Part E herein, as
Collateral Custodian)
By: /s/ Donna Fanning
------------------------
Name: Donna Fanning
Title:Vice President
WILMINGTON TRUST COMPANY
(for purposes of the Trust
Agreement set forth in Part
A herein as Delaware
Trustee)
By:
/s/ Charisse L. Rodgers
------------------------
Name: Charisse L. Rodgers
Title: Vice President
LAW DEBENTURE TRUST COMPANY
OF NEW YORK (for purposes
of the Coordination
Agreement set forth in Part
F herein, as Funding Note
Indenture Trustee, and as
Indenture Trustee)
By:
/s/ Nancy Kuenstner
------------------------
Name: Nancy Kuenstner
Title: President
AMACAR PACIFIC CORP. (for
purposes of (i) the Trust
Agreement set forth in Part
A herein and (ii) the
Administrative Services
Agreement set forth in Part
B herein as Administrator)
By:
/s/ Evelyn Echevarria
------------------------
Name: Evelyn Echevarria
Title: Vice President
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
(for purposes of the Terms
Agreement set forth in Part
E herein)
By:
/s/ Sabina Ceddia
------------------------
Name: Sabina Ceddia
Title: Duly Authorized
Attorney
BANC OF AMERICA SECURITIES
LLC (for purposes of the
Terms Agreement set forth
in Part E herein)
By:
/s/ Lily Chang
------------------------
Name: Lily Chang
Title: Principal
CREDIT SUISSE FIRST BOSTON
LLC (for purposes of the
Terms Agreement set forth
in Part E herein)
By:
/s/ Helena Willner
------------------------
Name: Helena Willner
Title: Director
DEUTSCHE BANK SECURITIES
INC. (for purposes of the
Terms Agreement set forth
in Part E herein)
By:
/s/ Scott Flieger
------------------------
Name: Scott Flieger
Title: Managing Director
By:
/s/ Anguel Zaprianov
------------------------
Name: Anguel Zaprianov
Title: Vice President
GOLDMAN, SACHS & CO. (for
purposes of the Terms
Agreement set forth in Part
E herein)
/s/ GOLDMAN, SACHS & CO.
------------------------
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
(for purposes of the Terms
Agreement set forth in Part
E herein)
By:
/s/ Carl J. Mehldau Jr.
------------------------
Name: Carl J. Mehldau Jr.
Title: Vice President
LEHMAN BROTHERS INC. (for
purposes of the Terms
Agreement set forth in Part
E herein)
By:
/s/ Martin Goldberg
------------------------
Name: Martin Goldberg
Title: Senior Vice
President
MORGAN STANLEY & CO.
INCORPORATED (for purposes
of the Terms Agreement set
forth in Part E herein)
By:
/s/ Michael Fusco
------------------------
Name: Michael Fusco
Title: Executive Director
UBS SECURITIES LLC (for
purposes of the Terms
Agreement set forth in Part
E herein)
By:
/s/ Joseph Moore
------------------------
Name: Joseph Moore
Title: Director, Debt
Capital Markets
By:
/s/ Spencer Haimes
------------------------
Name: Spencer Haimes
Title: Director
EXHIBIT A
STANDARD TRUST AGREEMENT TERMS
================================================================================
STANDARD TRUST AGREEMENT TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING TRUSTS
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS.....................................................................................1
SECTION 1.1 Definitions..............................................................................1
SECTION 1.2 Other Definitional Provisions............................................................6
ARTICLE 2 CREATION OF TRUST...............................................................................7
SECTION 2.1 Name of the Trust........................................................................7
SECTION 2.2 Office of the Delaware Trustee; Principal Place of Business..............................7
SECTION 2.3 Statutory Trust..........................................................................7
SECTION 2.4 Trust Beneficial Owner...................................................................7
SECTION 2.5 Purposes of the Trust....................................................................7
SECTION 2.6 Allocation of Trust Expenses.............................................................8
SECTION 2.7 Liability................................................................................8
SECTION 2.8 Income Tax Treatment.....................................................................8
SECTION 2.9 Situs of Trust...........................................................................8
ARTICLE 3 PAYMENT ACCOUNT.................................................................................8
SECTION 3.1 Payment Account..........................................................................8
ARTICLE 4 NOTES; COLLATERAL...............................................................................9
SECTION 4.1 Issuance of Notes........................................................................9
SECTION 4.2 Acquisition of Funding Note and Funding Agreements.......................................9
SECTION 4.3 Security Interest in the Collateral.....................................................10
SECTION 4.4 Title to Collateral.....................................................................10
ARTICLE 5 REPRESENTATIONS AND WARRANTIES BY THE DELAWARE TRUSTEE.........................................10
ARTICLE 6 DELAWARE TRUSTEE...............................................................................11
SECTION 6.1 General Authority.......................................................................11
SECTION 6.2 General Duties..........................................................................16
SECTION 6.3 Specific Duties.........................................................................16
SECTION 6.4 Acceptance of Trust and Duties; Limitation on Liability.................................17
SECTION 6.5 Reliance; Advice of Counsel.............................................................20
SECTION 6.6 Delegation of Authorities and Duties....................................................21
SECTION 6.7 Indemnification.........................................................................21
ARTICLE 7 DISSOLUTION, LIQUIDATION AND TERMINATION.......................................................22
SECTION 7.1 Dissolution Upon Trust Expiration Date..................................................22
SECTION 7.2 Termination of Agreement................................................................22
SECTION 7.3 Liquidation; Distributions..............................................................22
ARTICLE 8 SUCCESSOR AND ADDITIONAL DELAWARE TRUSTEES.....................................................23
SECTION 8.1 Eligibility Requirements for the Delaware Trustee.......................................23
SECTION 8.2 Resignation or Removal of the Delaware Trustee..........................................23
SECTION 8.3 Successor Delaware Trustee..............................................................24
SECTION 8.4 Merger or Consolidation of Delaware Trustee.............................................25
SECTION 8.5 Appointment of Co-Delaware Trustee or Separate Delaware Trustee.........................25
SECTION 8.6 Delaware Trustee May Own Notes..........................................................26
ARTICLE 9 MISCELLANEOUS PROVISIONS.......................................................................27
SECTION 9.1 Limitation on Rights of Others..........................................................27
SECTION 9.2 Amendments..............................................................................27
SECTION 9.3 Notices.................................................................................28
SECTION 9.4 No Recourse.............................................................................30
SECTION 9.5 Limited Recourse........................................................................30
SECTION 9.6 No Petition.............................................................................30
SECTION 9.7 Governing Law...........................................................................30
SECTION 9.8 Severability............................................................................30
SECTION 9.9 Third Party Beneficiaries...............................................................30
SECTION 9.10 Counterparts............................................................................31
This document constitutes the Standard Trust Agreement Terms, which
will be incorporated by reference in, and form a part of, the Trust Agreement
(as defined below) among Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee, (the "Delaware Trustee"), AMACAR Pacific
Corp., a Delaware corporation, as the sole administrator of the Trust (as
defined below) (the "Administrator") and Allstate Life Global Funding, a
statutory trust formed under the laws of the State of Delaware, as the sole
beneficial owner of the Trust (the "Trust Beneficial Owner").
These Standard Trust Agreement Terms shall not in and of itself create
a trust and shall be of no force and effect unless and until incorporated by
reference in, and then only to the extent not modified by, the Trust Agreement.
The following terms and provisions shall govern the activities of the
Trust, subject to contrary terms and provisions expressly adopted in the Trust
Agreement, which contrary terms shall be controlling.
ARTICLE 1.........
DEFINITIONS
SECTION 1.1.......Definitions. The following terms have the meanings set forth
below:
"Administrative Services Agreement" means that certain Administrative
Services Agreement, included in Part B of the Series Instrument, between the
Administrator and the Trust, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Additional Amounts" has the meaning set forth in the Indenture.
"Administrator" means the party named as such in the preamble, in its
capacity as the sole administrator of the Trust pursuant to the Administrative
Services Agreement, and its successors.
"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, by contract or otherwise.
"Agents" has the meaning set forth in the Distribution Agreement.
"Allstate Life" means Allstate Life Insurance Company, a stock life
insurance company organized and licensed under the laws of the State of
Illinois, and any successor.
"Business Day" has the meaning set forth in the Indenture.
"Certificate of Trust" means the Certificate of Trust of the Trust as
filed with the Secretary of State of the State of Delaware.
"Closing Instrument" means the closing instrument of the Trust,
pursuant to which the Indenture is entered into, and certain other documents are
executed, in connection with the issuance of the Notes by the Trust.
"Code" means the Internal Revenue Code of 1986, as amended, including
any successor or amendatory statutes and any applicable rules, regulations,
notices or orders promulgated thereunder.
"Collateral" has the meaning ascribed in the Indenture.
"Commission" means the Securities and Exchange Commission or any
successor body.
"Coordination Agreement" means that certain Coordination Agreement
included in Part F of the Series Instrument, among Allstate Life, Global
Funding, the Funding Note Indenture Trustee, the Trust and the Indenture
Trustee, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"Corporate Trust Office" means the principal office of the Delaware
Trustee located at Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001.
"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).
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C.ss.3801, et seq., as amended from time to time.
"Delaware Trustee" means the party named as such in the preamble, in
its capacity as the sole Delaware trustee of the Trust, and its successors. If
there shall be at any time more than one Delaware Trustee under the Trust
Agreement, "Delaware Trustee" shall mean each such Delaware Trustee.
"Distribution Agreement" means that certain Distribution Agreement
dated as of April 27, 2004, by and among Global Funding and the Agents named
therein, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"DTC" means The Depository Trust Company and its successors and
assigns.
"Funding Agreement" means each funding agreement issued by Allstate
Life to Global Funding, which is immediately assigned absolutely to, and
deposited into, the Trust by Global Funding, and immediately pledged and
collaterally assigned by the Trust to the Indenture Trustee for the benefit of
the Holders of the Notes, as the same may be modified, restated, replaced,
supplemented or otherwise amended from time to time in accordance with the terms
thereof.
"Funding Agreement Event of Default" means an "Event of Default" as
defined in the Funding Agreement.
"Funding Note" has the meaning set forth in Part F of the Series
Instrument.
"Funding Note Indenture" means that certain Funding Note Indenture
included in Part B of the Closing Instrument, between Global Funding and the
Funding Note Indenture Trustee, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Funding Note Indenture Trustee" means the party named as such in the
preamble to the Funding Note Indenture, and, subject to the applicable
provisions of the Funding Note Indenture, its successors.
"Global Funding" means Allstate Life Global Funding, a statutory trust
formed under the laws of the State of Delaware.
"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.
"Holder" has the meaning set forth in the Indenture.
"Indenture" means that certain Indenture included in Part A of the
Closing Instrument, between the Trust and the Indenture Trustee, as the same may
be amended, restated, modified, supplemented or replaced from time to time.
"Indenture Trustee" means the party named as such in the preamble to
the Indenture, and, subject to the applicable provisions of the Indenture, its
successors.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, 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.
"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.
"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, restated, modified, supplemented or
replaced from time to time.
"Note" has the meaning set forth in the Indenture.
"Note Certificate" has the meaning set forth in the Indenture.
"Obligations" means the obligations of the Trust secured under the
Notes and the Indenture, including (a) all principal of, any premium and
interest (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.
"Original Issue Date" has the meaning set forth in the Pricing
Supplement.
"Paying Agent" has the meaning set forth in the Indenture.
"Payment Account" means the segregated non-interest-bearing corporate
trust account for the Trust maintained by the Delaware Trustee in its trust
department in which all amounts paid to the Delaware Trustee in respect of the
Collateral will be held and from which the Delaware Trustee shall make payments
pursuant to Section 3.1(b) and Article 7 of the Trust Agreement, to the extent
such amounts are paid to the Trust and deposited in the Payment Account.
"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, business trust, statutory trust or other
organization, whether or not a legal entity, and governments and agencies and
political subdivisions thereof.
"Pricing Supplement" means, the pricing supplement attached to the
Series Instrument as Annex A, as prepared by the Trust in connection with the
issuance of the Notes, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Program" has the meaning set forth in the Indenture.
"Program Documents" means each Note, the Series Instrument, the
Indenture, the Trust Agreement, the Administrative Services Agreement, the
Support Agreement, the Name Licensing Agreement, the Distribution Agreement, the
Terms Agreement, each Funding Agreement and any other documents, certificates,
agreements or instruments entered into by, or with respect to, or on behalf of,
the Trust.
"Rating Agency" means each of Moody's Investors Service, Inc., Standard
& Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., and
any other rating agency which provides a rating of the Notes.
"Registrar" has the meaning set forth in the Indenture.
"Responsible Officer" means any vice president, assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer
or assistant trust officer, or any other officer of the Delaware Trustee, as the
case may be, customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Act" means the Securities Act of 1933, 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.
"Security Interest" has the meaning set forth in the Indenture.
"Series Instrument" means the series instrument of the Trust, pursuant
to which the Administrative Services Agreement, the Coordination Agreement, 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.
"Standard Trust Agreement Terms" means these Standard Trust Agreement
Terms.
"Standing Order" has the meaning set forth in Section 3.1(d).
"Supplemental Indenture" has the meaning set forth in the Indenture.
"Support Agreement" means that certain Support and Expenses Agreement
included in Part C of the Series Instrument, by and between Allstate Life and
the Trust, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"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, and which incorporates by reference these Standard
Trust Agreement Terms, by and among the Delaware Trustee, the Administrator and
the Trust Beneficial Owner, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Trust Beneficial Owner" means the party named as such in the preamble,
in its capacity as the sole beneficial owner of the Trust, and its successors.
"Trust Expiration Date" means the date on which all of the outstanding
Notes are redeemed in full by the Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as it may
be amended.
"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.
SECTION 1.2.......Other Definitional Provisions. For all purposes of the Trust
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) all accounting terms not otherwise defined in the Trust
Agreement have the meanings assigned to them in accordance
with generally accepted accounting principles in the United
States and, except as otherwise expressly provided in the
Trust Agreement, the term "generally accepted accounting
principles" with respect to any computation required or
permitted under the Trust Agreement shall mean such accounting
principles as are generally accepted at the date of such
computation in the United States;
(c) the words "include", "includes" and "including" shall be
construed to be followed by the words "without limitation";
(d) Article and Section headings are for the convenience of the
reader and shall not be considered in interpreting the Trust
Agreement or the intent of the parties to the Trust Agreement;
and
(e) capitalized terms not otherwise defined in the Trust Agreement
will have the respective meanings set forth in the Indenture.
ARTICLE 2
CREATION OF TRUST
SECTION 2.1 Name of the Trust. The Trust created under the Trust Agreement shall
have the name specified in the Series Instrument. The Trust's activities shall
be conducted under the name of the Trust.
SECTION 2.2 Office of the Delaware Trustee; Principal Place of Business. The
principal office of the Trust shall be in care of the Delaware Trustee at the
Corporate Trust Office, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Trust Beneficial Owner,
the Indenture Trustee, the Administrator and the Rating Agencies. The Trust
shall also maintain an office in care of the Administrator at:
c/o AMACAR Pacific Corp.
6525 Morrison Boulevard, Suite 318
Charlotte, North Carolina 28211
Attention: President
SECTION 2.3 Statutory Trust. It is the intention of the parties that the Trust
constitute a statutory trust organized under the Delaware Statutory Trust Act
and that the Trust Agreement constitute the governing instrument of the Trust.
Pursuant to Section 3810 of the Delaware Statutory Trust Act, on or before the
date of the Trust Agreement, the Delaware Trustee shall file a Certificate of
Trust with the Secretary of State to form the Trust. The parties to the Trust
Agreement hereby appoint the Delaware Trustee as trustee of the Trust, to have
all rights, powers and duties set forth in the Trust Agreement and in accordance
with the applicable law, subject to modification by the Trust Agreement, with
respect to accomplishing the purposes of the Trust.
SECTION 2.4 Trust Beneficial Owner. The Trust Beneficial Owner shall not be
required to make any deposit, perform any service or otherwise provide any
consideration in exchange for its beneficial interest in the Trust. The
beneficial interest of the Trust Beneficial Owner in the Trust will not be
represented by any certificate or other instrument. Upon the creation of the
Trust, the Trust Beneficial Owner shall be the beneficial owner of the Trust and
shall have an undivided beneficial ownership interest in the property related to
the Trust. To the fullest extent permitted by law, any attempted transfer of the
Trust Beneficial Owner's interest in the Trust shall be void.
SECTION 2.5 Purposes of the Trust. The exclusive purposes and functions of the
Trust are, and the Trust shall have the power and authority, to:
(a) issue and sell the Notes,
(b) use the net proceeds from the sale of the Notes to acquire the
Funding Note,
(c) receive one or more Funding Agreements from Global Funding
pursuant to the terms of the Funding Note,
(d) grant a security interest in, and pledge and collaterally
assign, the rights, title and interest of the Trust in the
Collateral to the Indenture Trustee 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,
(e) make, or cause to be made, all payments due in respect of the
Notes, in accordance with the terms of the Indenture, and
(f) engage in other activities and enter into other agreements, in
each case that are necessary, suitable or convenient to
accomplish the foregoing or are incidental to or connected
with those activities, including the execution, delivery and
performance of the Series Instrument, the Closing Instrument
and the Program Documents to which it is a signatory.
SECTION 2.6 Allocation of Trust Expenses. Any costs and expenses of the Trust
shall be paid by Allstate Life pursuant to the Support Agreement to the extent
provided therein.
SECTION 2.7 Liability. None of the Delaware Trustee, the Administrator, the
Trust Beneficial Owner or the Holders shall have any personal liability for any
liability or obligation of the Trust.
SECTION 2.8 Income 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 Allstate Life, (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.
SECTION 2.9 Situs of Trust. The Trust shall be located in the State of Delaware.
The Trust shall have the right, upon consent of the Indenture Trustee, and under
certain circumstances set forth in the Indenture, to change its domicile from
Delaware to any other jurisdiction. All bank accounts maintained by the Delaware
Trustee on behalf of the Trust shall be located in the State of Delaware except
that those accounts established under the Indenture shall be maintained with the
Indenture Trustee in accordance with the Indenture. The Trust shall not have any
employees in any state other than in the State of Delaware.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1 Payment Account.
(a) On the Original Issue Date, the Delaware Trustee shall establish the
Payment Account. The Delaware Trustee and any agent of the Delaware Trustee
shall have exclusive control and sole right of withdrawal with respect to
the Payment Account for the purpose of making deposits in and withdrawals
from the Payment Account in accordance with the Trust Agreement and the
Indenture. Subject to the Indenture, all funds or other property received
by the Delaware Trustee on behalf of the Trust in respect of the Collateral
will be deposited in the Payment Account. All funds and other property
deposited or held from time to time in the Payment Account shall be held by
the Delaware Trustee in the Payment Account for the exclusive benefit of
the Trust Beneficial Owner, subject to the security interest in the
Collateral in favor of the Indenture Trustee on behalf of the Holders of
the Notes and any other Person for whose benefit the Indenture Trustee is
or will be holding the Collateral, and for distribution by the Delaware
Trustee as provided in the Trust Agreement, including (and subject to) any
priority of payments provided for in the Trust Agreement.
(b) Except for payments made on the Trust Expiration Date or otherwise pursuant
to Section 7.3, all funds and other property deposited into the Payment
Account shall be distributed by the Trust as follows:
first, to the Indenture Trustee for the payment of all amounts then due
and unpaid upon the Note, and any other amounts due and payable, in accordance
with the Indenture; and
second, any remaining funds and other property deposited into the
Payment Account shall be distributed to the Trust Beneficial Owner.
(c) The Delaware Trustee shall deposit in the Payment Account, promptly upon
receipt, any payments received with respect to the Collateral. Amounts held
in the Payment Account shall not be invested by the Delaware Trustee.
(d) Notwithstanding anything in the Trust Agreement to the contrary, the
Delaware Trustee, on behalf of the Trust, shall execute a standing order
(the "Standing Order") to the Indenture Trustee pursuant to which the
Indenture Trustee shall distribute all amounts due and unpaid under Section
3.1(b); provided, however, that all payments to be made by the Trust to the
Trust Beneficial Owner on the Trust Expiration Date or otherwise pursuant
to Section 7.3 of the Trust Agreement shall be made by the Delaware Trustee
on behalf of the Trust. For so long as (i) the Delaware Trustee, on behalf
of the Trust, has not rescinded the Standing Order and (ii) the Indenture
Trustee is able to, and does, comply with the Standing Order, the Delaware
Trustee will not be required to establish a separate Payment Account in
accordance with Section 3.1; provided, however, that the Delaware Trustee
shall establish a separate Payment Account to facilitate payments made on
the Trust Expiration Date or otherwise pursuant to Section 7.3 of the Trust
Agreement.
ARTICLE 4
NOTES; COLLATERAL
SECTION 4.1 Issuance of Notes. The Trust shall, in accordance with the
Indenture, issue and deliver or cause to be issued and delivered the aggregate
principal amount of the Notes specified in the Pricing Supplement against
payment therefor. The Holders of the Notes shall only have a right to receive
payments from the Collateral as described in the Indenture and shall have no
right to receive payments from the assets of Global Funding or the assets held
in any other trust organized under the Program.
SECTION 4.2 Acquisition of Funding Note and Funding Agreements. In connection
with the issuance and sale of the Notes, pursuant to Articles 2 and 3 of the
Coordination Agreement: (i) the Trust will use the net proceeds received from
the offering of Notes to purchase the Funding Note from Global Funding; (ii)
Global Funding will use the net proceeds received from the sale of the Funding
Note to purchase one or more Funding Agreements; and (iii) Global Funding will
immediately assign absolutely to, and deposit into, the Trust each such Funding
Agreement, and the relevant Funding Note will be surrendered pursuant to the
terms of the Funding Note.
SECTION 4.3 Security Interest in the Collateral. Simultaneously with the
issuance and sale of the Notes, pursuant to the Indenture, the Trust shall
pledge and collaterally assign to the Indenture Trustee, and will grant to the
Indenture Trustee, 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, a security interest in and to the Collateral, including, without
limitation, each Funding Agreement purchased by the Trust.
SECTION 4.4 Title to Collateral. Legal title to the Collateral shall be vested
at all times in the Trust as a separate legal entity, except where applicable
law in any jurisdiction requires title to any part of the Collateral to be
vested in the Delaware Trustee or any co-Delaware Trustee, in which case legal
title shall be deemed to be vested in the Delaware Trustee or any co-Delaware
Trustee appointed under the Trust Agreement for such purpose, and shall be held
and administered by the Delaware Trustee for the benefit of the Trust and each
Holder, subject to the rights of the Indenture Trustee pursuant to the
Indenture.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES BY THE DELAWARE TRUSTEE
The Delaware Trustee represents and warrants for the benefit of the
Holders and the Trust Beneficial Owner as follows:
(a) it is a banking corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and it is a "bank" within
the meaning of Section 581 of the Code;
(b) it is a "United States person" within the meaning of Section 7701(a)(30) of
the Code;
(c) it has full corporate or other power, authority and legal right to execute,
deliver and perform its obligations under the Trust Agreement and has taken
all necessary action to authorize the execution, delivery and performance
by it of the Trust Agreement;
(d) the Trust Agreement has been duly authorized, executed and delivered by it
and constitutes the valid and legally binding agreement of it enforceable
against it in accordance with its terms;
(e) neither the execution or delivery by it of the Trust Agreement, nor the
performance by it of its obligations under the Trust Agreement, will (i)
violate its organizational documents, (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of any Lien on any properties or
assets held in the Trust pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other contract, agreement, judgment,
order or instrument to which it is a party or by which it is bound, or
(iii) violate any law, governmental rule or regulation of the State of
Delaware or the United States governing the banking, trust or general
powers of it or any order, judgment or decree applicable to it;
(f) the authorization, execution or delivery by it of the Trust Agreement and
the consummation of any of the transactions by it contemplated by the Trust
Agreement do not require the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to
any governmental authority or agency (other than the filing of the
Certificate of Trust with the Secretary of State); and
(g) there are no proceedings pending or, to the best of its knowledge,
threatened against or affecting it in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or
in the aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of it to enter into or perform its
obligations under the Trust Agreement.
ARTICLE 6
DELAWARE TRUSTEE
SECTION 6.1 General Authority.
(a) The Delaware Trustee is authorized and empowered, among other things, to
(a) execute and deliver on behalf of the Trust the Program Documents and
each certificate or other document attached as an exhibit to, or
contemplated by, the Program Documents and any amendment or other agreement
to any of the Program Documents, (b) take all actions required of the Trust
pursuant to the Program Documents including, but not limited to (i) paying,
or causing to be paid, on behalf of the Trust any amounts due and owing by
the Trust under the Program Documents or any other documents or instruments
to which the Trust is a party, (ii) providing certificates required under
the Program Documents or other documents or instruments to which the Trust
is a party and (iii) preparing for execution or executing amendments to and
waivers under the Program Documents or any other documents or instruments
deliverable by the Trust thereunder or in connection therewith or with the
Trust Agreement, (c) cause the Trust to perform under the Program Documents
and (d) engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
any other of the purposes of the Trust or are incidental thereto or
connected therewith including, from time to time, taking such action on
behalf of the Trust as is permitted by the Program Documents. In addition
to any other duties under the Trust Agreement, the Delaware Trustee shall
be the trustee of the Trust for the purpose of fulfilling the requirements
of Section 3807 of the Delaware Statutory Trust Act. Subject to the
limitations set forth in Section 6.1(b), the Delaware Trustee shall have
the power and authority to act on behalf of the Trust, with respect to the
following matters:
(i) to execute and deliver on behalf of the Trust the Notes in accordance with
the Trust Agreement and the Indenture;
(ii) to cause the Trust to perform the Trust Agreement and to enter into, and to
execute, deliver and perform on behalf of the Trust, the documents
contained in the Series Instrument and the Closing Instrument, the
Distribution Agreement, the Notes, the Funding Note, each Funding Agreement
and such other certificates, other documents or agreements as may be
necessary, contemplated by or desirable in connection with the purposes and
function of the Trust or any of the above-referenced documents;
(iii)subject to the applicable provisions of the Indenture, to receive and
maintain custody of each Funding Agreement and to exercise all of the
rights, powers and privileges of an owner or policyholder of each Funding
Agreement;
(iv) to grant to the Indenture Trustee a security interest in the Collateral for
the Notes and to pledge and collaterally assign the rights, title and
interest of the Trust in the Collateral to the Indenture Trustee for the
benefit of the Holders of Notes and any other Person on whose behalf the
Indenture Trustee is or will be holding the Collateral, and to seek release
of such security interest upon payment in full of all amounts required to
be paid with respect to the Notes pursuant to the terms and conditions of
the Notes or the Indenture;
(v) to establish the Payment Account;
(vi) to send notices regarding the Notes and the Funding Agreements to Allstate
Life, the Indenture Trustee, the Rating Agencies, the Trust Beneficial
Owner and the applicable Agents under the Terms Agreement in accordance
with the terms of the Notes, the Indenture, each Funding Agreement and the
Trust Agreement;
(vii)to take all actions necessary or appropriate to enable the Trust to comply
with Section 2.8 of the Trust Agreement regarding income tax treatment;
(viii) after the occurrence of a Funding Agreement Event of Default actually
known to a Responsible Officer, subject to the applicable provisions of the
Indenture, to take any action as it may from time to time determine (based
solely upon the advice of counsel) is necessary or advisable to give effect
to the terms of the Trust Agreement and to protect and conserve the
Collateral for the benefit of each Holder (without consideration of the
effect of any such action on any particular Holder) and, within five
Business Days after the occurrence of a Funding Agreement Event of Default
actually known to a Responsible Officer, to give notice thereof to the
Administrator, the Trust Beneficial Owner and the Indenture Trustee;
(ix) to the extent permitted by the Trust Agreement, to participate in the
winding up of the affairs of and liquidation of the Trust and assist with
the preparation, execution and filing of a certificate of cancellation with
the Secretary of State;
(x) subject to the Indenture, to take any action and to execute any documents
on behalf of the Trust, incidental to the foregoing as the Delaware Trustee
may from time to time determine (based on the advice of counsel) is
necessary or advisable to give effect to the terms of the Trust Agreement;
(xi) to execute and file documents with the Secretary of State; and
(xii)to accept service of process on behalf of the Trust in the State of
Delaware.
It is expressly understood and agreed that the Delaware Trustee shall
be entitled to engage outside counsel, independent accountants and other experts
appointed with due care to assist the Delaware Trustee in connection with the
performance of its duties and powers set forth in this Section 6.1(a),
including, without limitation, certificates, reports, opinions, notices or any
other documents. The Delaware Trustee shall be entitled to rely conclusively on
the advice of such counsel, accountants and other experts in the performance of
all its duties under the Trust Agreement and shall have no liability for any
documents prepared by such counsel, accountants or experts or any action or
inaction taken pursuant to the advice of such counsel, accountants or experts.
Any expenses of such counsel, accountants and experts shall be paid by the
Trust.
(b) So long as the Trust Agreement remains in effect, the Trust (and the
Delaware Trustee and the Administrator acting on behalf of the Trust) shall
not undertake any business, activity or transaction except as expressly
provided for or contemplated by the Trust Agreement or the Indenture. In
particular, the Trust shall not, except as otherwise contemplated by the
Indenture:
(i) sell, transfer, exchange, assign, lease, convey or otherwise dispose of any
assets held in the Trust (as of the date of the Trust Agreement or
thereafter acquired), including, without limitation, any portion of the
Collateral, except as expressly permitted under the Indenture;
(ii) engage in any business or activity other than in connection with, or
relating to, (A) the performance of the Trust Agreement and the execution,
delivery and performance of any documents, including the Program Documents
(other than the Trust Agreement as set forth above), relating to the Notes
and the transactions contemplated thereby, (B) the issuance of the Notes
pursuant to the Indenture and (C) any activities, including entering into
agreements that are necessary, suitable or convenient to accomplish the
purposes of the Trust specified in Section 2.5;
(iii)incur, directly or indirectly, any Debt except for the Notes or as
otherwise contemplated under the Indenture or the Trust Agreement;
(iv) (A) permit the validity or effectiveness of the Indenture or the Security
Interest securing the Notes to be impaired, or permit such Security
Interest to be amended, hypothecated, subordinated, terminated or
discharged, (B) permit any Person to be released from any covenants or
obligations under any Funding Agreement securing the Notes, except as
expressly permitted thereunder, under the Indenture, the Trust Agreement,
or each applicable Funding Agreement, (C) create, incur, assume, or permit
any Lien or other encumbrance (other than the Security Interests securing
the Notes) on any of its properties or assets, or any interest therein or
the proceeds thereof, or (D) permit a Lien with respect to the Collateral
not to constitute a valid first priority perfected security interest in the
Collateral securing the Notes;
(v) amend, modify or fail to comply with any material provision of the Trust
Agreement, except for any amendment or modification of the Trust Agreement
expressly permitted under the Trust Agreement or under the Indenture or the
relevant Funding Agreement(s);
(vi) own any subsidiary or lend or advance any funds to, or make any investment
in, any Person, except for an investment in the Funding Agreements, the
Funding Note or the investment of any funds of the Trust held by the
Indenture Trustee, Paying Agent, Registrar, Delaware Trustee or
Administrator as provided in (or in the documents or agreements contained
in) the Series Instrument or the Closing Instrument, or in any Funding
Agreement;
(vii)directly or indirectly declare or pay a distribution or make any
distribution or other payment, or redeem or otherwise acquire or retire for
value any securities other than the Notes, provided that the Trust may
declare or pay a distribution or make any distribution or other payment to
the Trust Beneficial Owner in compliance with the Trust Agreement if the
Trust has paid or made provision for the payment of all amounts due to be
paid on the Notes, and pay all of its debt, liabilities, obligations and
expenses, the payment of which is provided for under the Support Agreement;
(viii) become required to register as an "investment company" under and as such
term is defined in the Investment Company Act of 1940, as amended;
(ix) except as permitted under the Indenture, enter into any transaction of
merger or consolidation or liquidate or dissolve itself (or, to the fullest
extent permitted by law, suffer any liquidation or dissolution), or acquire
by purchase or otherwise all or substantially all the business or assets
of, or any stock or other evidence of beneficial ownership of, any Person;
(x) take any action that would cause the Trust not to be either ignored or
treated as a grantor trust for United States Federal income tax purposes;
(xi) issue any Notes unless Allstate Life has affirmed in writing to the Trust
that it has made changes to its books and records to reflect the grant of a
security interest in, and the making of an assignment for collateral
purposes of, the relevant Funding Agreement(s) by the Trust to the
Indenture Trustee in accordance with the terms of such Funding Agreement
and the Trust has taken such other steps as may be necessary to cause the
Security Interest in or assignment for all collateral purposes of, the
Collateral to be perfected for purposes of the UCC or effective against its
creditors and subsequent purchasers of the Collateral pursuant to insurance
or other state laws;
(xii)make any deduction or withholding from any payment of principal of or
interest on the Notes (other than amounts that may be required to be
withheld or deducted from such payments under the Code or any other
applicable tax law) by reason of the payment of any taxes levied or
assessed upon any portion of the Collateral except to the extent specified
in the Indenture or a Note Certificate or Supplemental Indenture;
(xiii) have any employees other than the Delaware Trustee, the Administrator or
any other Persons necessary to conduct its business and enter into
transactions contemplated under the Program Documents;
(xiv)have an interest in any bank account other than (A) those accounts
contemplated by the Program Documents, and (B) those accounts expressly
permitted by the Indenture Trustee; provided that any such further account
or such interest of the Trust therein shall be charged or otherwise secured
in favor of the Indenture Trustee on terms acceptable to the Indenture
Trustee;
(xv) permit any Affiliate, employee or officer of Allstate Life or any agent of
Allstate Life or Agent to be a trustee of the Trust; or
(xvi)commingle any of its assets with assets of any of the Trust's Affiliates,
or guarantee any obligation of any of the Trust's Affiliates.
(c) Notwithstanding any other provision of the Trust Agreement, the Delaware
Trustee and the Administrator, acting on behalf of the Trust, shall not
take any action that would cause the Trust not to be either ignored or
treated as a "grantor trust" for United States Federal income tax purposes.
(d) The Delaware Trustee shall, based on the advice of counsel, defend against
all claims and demands of all Persons at any time claiming any Lien on any
of the assets of the Trust adverse to the interest of the Trust or any
Holder, other than the security interest in the Collateral granted in favor
of the Indenture Trustee for the benefit of each Holder of the Notes and
any other Person for whose benefit the Indenture Trustee is or will be
holding the Collateral.
(e) If and for so long as any Funding Agreement is held by the Delaware Trustee
for the benefit of the Trust, the Delaware Trustee shall not (i) waive any
default under the Funding Agreement or (ii) consent to any amendment,
modification or termination of the Funding Agreement, without, in each
case, obtaining the prior approval of the Indenture Trustee in accordance
with the Indenture and an opinion of counsel experienced in such matters to
the effect that any such action shall not cause the Trust not to be either
ignored or treated as a grantor trust for United States Federal income tax
purposes. The Delaware Trustee, upon a Responsible Officer obtaining actual
knowledge of the occurrence of a Funding Agreement Event of Default, will
notify the Indenture Trustee of any such Funding Agreement Event of
Default.
(f) The Delaware Trustee is authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not (i) become
required to register as an "investment company" under the Investment
Company Act or (ii) fail to be either ignored or treated as a grantor trust
for United States Federal income tax purposes. In connection with the
preceding sentence, the Delaware Trustee shall have no duty to determine
whether any action it takes complies with the preceding sentence and shall
be entitled to rely conclusively on an opinion of counsel with respect to
any such matters.
SECTION 6.2 General Duties. It shall be the duty of the Delaware Trustee to
discharge, or cause to be discharged, all of its responsibilities pursuant to
the terms of the Trust Agreement, or any other documents or instruments to which
it is a party, and to administer the Trust, in accordance with the provisions of
the Trust Agreement and the other Program Documents and any other documents or
instruments to which the Trust is a party. Notwithstanding the foregoing, the
Delaware Trustee shall be deemed to have discharged its duties and
responsibilities under the Trust Agreement and any other documents or
instruments to which the Trust is a party to the extent (a) such duties and
responsibilities shall have been performed by the Administrator and (b) the
Administrator is required or permitted under the Trust Agreement, under the
Administrative Services Agreement or under any other documents or instruments to
which the Trust is a party, to perform such act or discharge such duty of the
Delaware Trustee or the Trust; provided, however, that the Delaware Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its required obligations under the Trust Agreement or thereunder but
only to the extent such obligations are not also required to be carried out by
the Delaware Trustee.
SECTION 6.3 Specific Duties.
(a) The Delaware Trustee will manage the business and affairs of the Trust in
accordance with the terms of the Delaware Statutory Trust Act; provided,
however, that the Delaware Trustee undertakes to perform only such duties
as are specifically set forth in the Trust Agreement and as it may be
directed from time to time by the Administrator, the Trust Beneficial Owner
and the Indenture Trustee in accordance with the terms of the Trust
Agreement and the Indenture.
(b) The Delaware Trustee agrees that it will not manage, control, use, sell,
dispose of or otherwise deal with the Collateral except as expressly
required or permitted by the terms of the Trust Agreement and the
Indenture.
(c) The Delaware Trustee shall not take any action, or direct the Administrator
to take any action, which would be inconsistent with Section 2.8 of the
Trust Agreement.
SECTION 6.4 Acceptance of Trust and Duties; Limitation on Liability. The
Delaware Trustee accepts the trust created by the Trust Agreement and agrees to
perform its duties under the Trust Agreement with respect to the same, but only
upon the terms of the Trust Agreement. No implied covenants or obligations shall
be read into the Trust Agreement. The Delaware Trustee shall not be liable under
the Trust Agreement under any circumstances except for (i) its own willful
misconduct, bad faith or gross negligence, (ii) its failure to use ordinary care
to disburse funds, or (iii) the inaccuracy of any representation or warranty
contained in the Trust Agreement expressly made by the Delaware Trustee. In
particular (but without limitation), subject to the exceptions set forth in the
preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless such error of judgment
constitutes gross negligence;
(b) the Delaware 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 written
instructions of the Administrator, the Trust Beneficial Owner or the
Indenture Trustee or pursuant to the advice of counsel, accountants or
other experts selected by it in good faith, so long as such action or
omission is consistent with the terms of the Trust Agreement and the
Indenture;
(c) no provision of the Trust Agreement shall require the Delaware Trustee to
expend or risk personal funds or otherwise incur any financial liability in
the performance of any of its rights or powers under the Trust Agreement if
the Delaware Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Delaware Trustee be liable for
indebtedness or other obligations evidenced by or arising under the Trust
Agreement, any Funding Agreement or any related document, including the
principal of and interest on the Notes;
(e) the Delaware Trustee shall not be responsible for, or in respect of, the
validity or sufficiency of the Trust Agreement or any related document or
for the due execution of the Trust Agreement or thereof by any party
(except by the Delaware Trustee itself) or for the form, character,
genuineness, sufficiency, value or validity of any of the Collateral, other
than, the signature and countersignature of the Delaware Trustee on any of
the Program Documents and the execution of any certificate;
(f) the Delaware Trustee shall (i) not be liable for any action, inaction,
default or misconduct of the Administrator, the Indenture Trustee or any
Paying Agent under the Indenture, the Notes or any related documents or
otherwise, and (ii) not have any obligation or liability to perform the
obligations of the Trust under the Trust Agreement or any related document
or under any Federal, state, foreign or local tax or securities law, in
each case, that are required to be performed by other Persons, including
the Administrator under the Trust or under the Administrative Services
Agreement or the Indenture Trustee under the Indenture;
(g) the Delaware Trustee shall not be liable for any action, inaction, default
or misconduct of Allstate Life, and the Delaware Trustee shall not have any
obligation or liability to perform the obligations of Allstate Life under
the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any of
the rights or powers vested in it by the Trust Agreement, or to institute,
conduct or defend any litigation under the Trust Agreement or otherwise or
in relation to the Trust Agreement or any related document, at the request,
order or direction of any Person unless such Person has offered to the
Delaware Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that may be incurred by the Delaware
Trustee. The right of the Delaware Trustee to perform any discretionary act
enumerated in the Trust Agreement or in any related document shall not be
construed as a duty, and the Delaware Trustee shall not be answerable in
connection therewith other than for its gross negligence or willful
misconduct in the performance of any such act;
(i) except as expressly provided in the Trust Agreement, in accepting the
trusts created by the Trust Agreement, the Delaware Trustee acts solely as
trustee under the Trust Agreement and not in its individual capacity, and
all Persons having any claim against the Delaware Trustee by reason of the
transactions contemplated by the Trust Agreement shall look only to the
Trust's property for payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or liability for or
with respect to the genuineness, value, sufficiency or validity of any
Collateral, and the Delaware Trustee shall in no event assume or incur any
liability, duty or obligation to the Administrator, the Trust Beneficial
Owner or any other Person other than as expressly provided for in the Trust
Agreement;
(k) the Delaware 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, direction, consent, order,
bond, debenture, note or other paper or document;
(l) every provision of the Trust Agreement relating to the Delaware Trustee
shall be subject to the provisions of this Article 6;
(m) except in accordance with the written instructions furnished by the Trust
Beneficial Owner or as provided in the Trust Agreement, the Delaware
Trustee shall have no duty (i) to see to any recording or filing of any
document, (ii) to confirm or verify any financial statements of the
Administrator, the Trust Beneficial Owner or the Indenture Trustee, (iii)
to inspect the Administrator's, the Trust Beneficial Owner's or the
Indenture Trustee's books and records at any time or (iv) to see to the
payment or discharge of any tax, assessment or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or
levied against any part of the Trust, except to the extent the Delaware
Trustee has received funds, on behalf of the Trust, pursuant to the Support
Agreement from Allstate Life in satisfaction of any such tax, assessment or
other governmental charge or any lien or encumbrance of any kind and in
accordance with payment or transfer instructions provided by Allstate Life;
(n) the Delaware Trustee shall have no duty or obligation to manage, control,
use, sell, dispose of or otherwise deal with the Trust or to otherwise take
or refrain from taking any action under the Trust Agreement, except as
expressly required by the terms of the Trust Agreement, or as expressly
provided in written instructions from the Administrator, and in no event
shall the Delaware Trustee have any implied duties or obligations under the
Trust Agreement; the Delaware Trustee nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any liens on any part of the property of the Trust which result
from claims against the Delaware Trustee personally that are not related to
the ownership or the administration of the property of the Trust or the
transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under the
Trust Agreement unless the Delaware Trustee shall have been indemnified by
the Trust, in manner and form satisfactory to the Delaware Trustee, against
any liability, cost or expenses (including counsel fees and disbursements)
which may be incurred in connection therewith, and, in addition, the Trust
shall pay the reasonable compensation of the Delaware Trustee for the
services performed; provided, that the Delaware Trustee shall not be
indemnified by any Person for the Delaware Trustee's willful misconduct,
bad faith or gross negligence, its failure to use ordinary care to disburse
funds or the inaccuracy of its own representations or warranties, made in
its individual capacity, contained in the Trust Agreement;
(p) the Delaware Trustee shall not be required to take any action under the
Trust Agreement if the Delaware Trustee shall reasonably determine or shall
have been advised by counsel that such action is contrary to the terms of
the Trust Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability in
connection with calculations or instructions forwarded to the Delaware
Trustee by the Administrator or the Indenture Trustee, nor shall the
Delaware Trustee have any obligation to furnish information to any Person
if it has not received such information as it may need from the
Administrator, the Indenture Trustee or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or
omission in good faith in accordance with the advice or direction of the
Administrator or the Indenture Trustee. Whenever the Delaware Trustee is
unable to decide between alternative courses of action permitted or
required by the terms of the Trust Agreement, or is unsure as to the
application, intent, interpretation or meaning of any provision of the
Trust Agreement, the Delaware Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Administrator
requesting instructions as to the course of action to be adopted, and, to
the extent the Delaware Trustee acts in good faith in accordance with any
such instruction received, the Delaware Trustee shall not be liable on
account of such action to any Person. If the Delaware Trustee shall not
have received appropriate instructions within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances), it may, but shall be
under no duty to, take or refrain from taking such action which is
consistent, in its view, with the Trust Agreement and as it shall deem to
be in the best interest of the Trust Beneficial Owner, and the Delaware
Trustee shall have no liability to any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable for
any representation, warranty, covenant, agreement, indebtedness or other
obligation of the Trust;
(t) the Delaware Trustee shall incur no liability if, by reason of any
provision of any present or future law or regulation thereunder, or by any
force majeure event, including but not limited to natural disaster, war or
other circumstances beyond its control, the Delaware Trustee shall be
prevented or forbidden from doing or performing any act or thing which the
terms of the Trust Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the Delaware
Trustee shall not be required to execute, deliver or certify on behalf of
the Trust any filings, certificates, affidavits or other instruments
required under the Sarbanes-Oxley Act of 2002.
SECTION 6.5 Reliance; Advice of Counsel.
(a) The Delaware Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper reasonably
believed by it in good faith to be genuine and signed by the proper party
or parties. The Delaware Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to
any fact or matter the manner of ascertainment of which is not specifically
prescribed in the Trust Agreement, the Delaware Trustee may for all
purposes of the Trust Agreement rely on a certificate, signed by the
president or any vice president or by the treasurer or any assistant
treasurer or the secretary or any assistant secretary of the relevant
party, as to such fact or matter, and such certificate shall constitute
full protection to the Delaware Trustee for any action taken or omitted to
be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust, the Delaware Trustee (i)
may act directly or through its agents or attorneys pursuant to agreements
entered into with any of them; provided that, the Delaware Trustee shall
not be liable for the conduct or misconduct of such agents or attorneys if
such agents or attorneys shall have been selected by the Delaware Trustee
in good faith and with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected in good faith and with
reasonable care and employed by it, and it shall not be liable for anything
done, suffered or omitted to be done in good faith by it in accordance with
the written opinion or advice of any such counsel, accountants or other
skilled Persons.
SECTION 6.6 Delegation of Authorities and Duties. The Delaware Trustee delegates
to the Administrator all duties required to be performed by the Administrator
pursuant to the terms of the Trust Agreement and the Administrative Services
Agreement. The Delaware Trustee undertakes no responsibility for the
performance, or non-performance, of any duties delegated to the Administrator
under the Trust Agreement, the Administrative Services Agreement or the
Indenture, as applicable.
SECTION 6.7 Indemnification. The Trust hereby agrees, whether or not any of the
transactions contemplated by the Trust Agreement shall be consummated, to assume
liability for, and hereby indemnifies, protects, saves and keeps harmless the
Delaware Trustee, and its officers, directors, successors, assigns, legal
representatives, agents and servants (each an "Indemnified Person"), from and
against any and all liabilities, obligations, losses, damages, penalties, taxes
(excluding any taxes payable by the Delaware Trustee on or measured by any
compensation received by the Delaware Trustee), claims, actions, investigations,
proceedings, costs, expenses or disbursements (including, without limitation,
reasonable legal fees and expenses, subject to the limitations contained in the
preceding paragraphs) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted at any time against an Indemnified Person (whether or
not also indemnified against by any other person but in all cases subject to the
following two paragraphs) in any way relating to or arising out of (i) the Trust
Agreement or any of the other agreements to which the Trust is or becomes a
party or the enforcement of any of the terms of any thereof or the
administration of the assets of the Trust or the action or inaction of the
Delaware Trustee under the Trust Agreement, except where any such claim for
indemnification has arisen as a result of the willful misconduct or gross
negligence on the part of the Delaware Trustee, or the Delaware Trustee's
failure to use ordinary care to disburse funds or the performance or
nonperformance of its duties under the Trust Agreement or any of the other
agreements to which the Trust becomes a party.
ARTICLE 7
DISSOLUTION, LIQUIDATION AND TERMINATION
SECTION 7.1 Dissolution Upon Trust Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve on the Trust Expiration Date.
SECTION 7.2 Termination of Agreement. The Trust Agreement and the Trust created
by the Trust Agreement shall dissolve, wind-up and terminate in accordance with
Section 3808 of the Delaware Statutory Trust Act upon the latest to occur of:
(a) a distribution by the Delaware Trustee of all funds and other property of
the Trust upon the liquidation of the Trust pursuant to Section 7.3 of the
Trust Agreement;
(b) the payment of, or reasonable provision for payment of, all expenses and
other liabilities owed by the Trust; and
(c) the performance of all administrative actions by the Delaware Trustee and
the Administrator necessary to accomplish the purposes of the Trust,
including the performance of any tax reporting obligations with respect to
the Trust or the Holders.
The Trust shall dissolve only as provided in this Article 7, and
otherwise no Person, including the Indenture Trustee, the Administrator and the
Trust Beneficial Owner, shall be entitled to revoke or dissolve the Trust. The
Administrator shall act as the liquidator of the Trust and shall be responsible
for directing the Delaware Trustee to take all required actions in connection
with `winding up the Trust. The Delaware Trustee shall have no liability for
following such direction to the extent it acts in good faith.
Upon the last event to occur as described above, the Delaware Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Delaware Statutory Trust Act, at which time the Trust and
the Trust Agreement shall terminate.
SECTION 7.3 Liquidation; Distributions. On the Trust Expiration Date, the Trust
shall be wound-up by the Delaware Trustee pursuant to Section 7.2 and in
accordance with Section 3808(d) and (e) of the Delaware Statutory Trust Act, and
the remaining Collateral and any other assets held in the Trust shall be
liquidated, and distributed in the following order of priority:
first, to pay all amounts due and unpaid on the Notes and any other
amounts due and payable in accordance with the Indenture and
second, any remaining funds and other property shall be paid to the
Trust Beneficial Owner.
ARTICLE 8
SUCCESSOR AND ADDITIONAL DELAWARE TRUSTEES
SECTION 8.1 Eligibility Requirements for the Delaware Trustee. The Delaware
Trustee shall at all times (a) be a Person satisfying the provisions of Section
3807(a) of the Delaware Statutory Trust Act, (b) be authorized to exercise
corporate trust powers, (c) have a combined capital and surplus of at least
$50,000,000 and be subject to supervision or examination by Federal or State
authorities, (d) have (or have a parent which has) a rating of at least Baa3 by
Moody's or BBB- by Standard & Poor's, (e) be a "bank" within the meaning of
Section 581 of the Code and (f) be a "United States person" within the meaning
of Section 7701(a)(30) of the Code. In addition, the Delaware Trustee shall be
an entity with its Corporate Trust Office in the State of Delaware. If the
Delaware Trustee shall publish reports of condition at least annually, pursuant
to applicable law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 8.1, the combined
capital and surplus of the Delaware Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Delaware Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.1, the Delaware Trustee shall
resign immediately in the manner and with the effect specified in Section 8.2.
SECTION 8.2 Resignation or Removal of the Delaware Trustee. The Delaware Trustee
may resign as Delaware Trustee, or the Administrator, acting on behalf of the
Trust, may, in its sole discretion, remove the Delaware Trustee, in each case
with thirty (30) days' prior notice to the Delaware Trustee, the Indenture
Trustee and each Rating Agency then rating the Program or the Notes. Upon any
resignation or removal of the Delaware Trustee, the Administrator, acting on
behalf of the Trust, shall appoint a successor Delaware Trustee whereupon such
successor Delaware Trustee shall succeed to the rights, powers and duties of the
Delaware Trustee, and the term "Delaware Trustee" shall thereupon mean such
successor Delaware Trustee effective upon such appointment and approval, and the
predecessor Delaware Trustee's powers and duties as Delaware Trustee shall be
terminated, without any other or further act or deed on the part of such
predecessor Delaware Trustee or any of the parties to the Trust Agreement or any
holders of the obligations owing hereunder; provided, that if at any time the
Delaware Trustee shall cease to be eligible in accordance with Section 8.1 and
shall have not resigned, or if at any time the Delaware Trustee, shall become
incapable of acting or shall be adjudged bankrupt or insolvent, or a receiver
for the Delaware Trustee or for its property shall be appointed, or any public
officer shall take charge or control of the Delaware Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, then
the Administrator may remove the Delaware Trustee. On and after the effective
date of any resignation or removal of the Delaware Trustee hereunder, the
provisions of this Article 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Delaware Trustee under the Trust
Agreement. Any such resignation or removal shall become effective following the
appointment of a successor Delaware Trustee in accordance with the provisions of
this Section 8.2.
If no successor Delaware Trustee shall be appointed and shall have
accepted such appointment within thirty (30) days after the aforesaid notice of
resignation or removal, the Trust (or the Administrator, acting on its behalf)
or the resigning Delaware Trustee may apply to any court of competent
jurisdiction to appoint a successor Delaware Trustee to act until such time, if
any, as a successor Delaware Trustee shall have been appointed as provided in
this Section 8.2. Any successor so appointed by such court shall immediately and
without further act be superseded by any successor Delaware Trustee appointed
pursuant to this Section 8.2.
Any resignation or removal of the Delaware Trustee and appointment of a
successor Delaware Trustee pursuant to any of the provisions of this Section 8.2
shall not become effective until all fees and expenses, including any indemnity
payments, due to the outgoing Delaware Trustee have been paid and until
acceptance of appointment by the successor Delaware Trustee pursuant to Section
8.3.
If at any time the Delaware Trustee shall resign or be removed or
otherwise become incapable of acting, or if at any time a vacancy shall occur in
the office of the Delaware Trustee for any other cause, a successor Delaware
Trustee shall be appointed as set forth in this Section 8.2. The powers, duties,
authority and title of the predecessor Delaware Trustee shall be terminated and
canceled without any formality (except as may be required by applicable law)
other than appointment and designation of a successor Delaware Trustee in
writing duly acknowledged and delivered to the predecessor Delaware Trustee and
the Trust.
SECTION 8.3 Successor Delaware Trustee. Each successor Delaware Trustee
appointed pursuant to Section 8.2 shall execute, acknowledge and deliver to the
Administrator, the Trust Beneficial Owner and the predecessor Delaware Trustee
an instrument accepting such appointment under the Trust Agreement, and
thereupon the resignation or removal of the predecessor Delaware Trustee shall
become effective, the resigning Delaware Trustee shall be released of all duties
and trusts under the Trust Agreement and such successor Delaware Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties, and obligations of its predecessor under the Trust
Agreement, with like effect as if originally named as Delaware Trustee. The
predecessor Delaware Trustee shall deliver to the successor Delaware Trustee all
documents and statements and funds held by it under the Trust Agreement; and the
Administrator and the predecessor Delaware Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Delaware Trustee all
such rights, powers, duties and obligations.
Any successor Delaware Trustee appointed under the Trust Agreement
shall promptly file an amendment to the Certificate of Trust with the Secretary
of State identifying the name and principal place of business of such successor
Delaware Trustee in the State of Delaware.
No successor Delaware Trustee shall accept appointment as provided in
this Section 8.3 unless at the time of such acceptance such successor Delaware
Trustee shall be eligible pursuant to Section 8.1.
Upon acceptance of appointment by a successor Delaware Trustee pursuant
to this Section 8.3, the Administrator shall mail notice of such appointment to
the Indenture Trustee and each Rating Agency then rating the Program or the
Notes. If the Administrator shall fail to mail such notice within ten (10) days
after acceptance of appointment by the successor Delaware Trustee, the successor
Delaware Trustee shall cause such notice to be mailed in the manner aforesaid.
SECTION 8.4 Merger or Consolidation of Delaware Trustee. Any Person into which
the Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Delaware Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Delaware Trustee, shall, without the execution or filing of any instrument or
any further act on the part of any of the parties to the Trust Agreement,
anything in the Trust Agreement to the contrary notwithstanding, be the
successor of the Delaware Trustee under the Trust Agreement; provided, such
Person shall be eligible pursuant to Section 8.1.
SECTION 8.5 Appointment of Co-Delaware Trustee or Separate Delaware Trustee.
(a) Notwithstanding any other provisions of the Trust Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in
which any part of any Collateral may at the time be located, the
Administrator and the Delaware Trustee shall at any time have the power and
shall execute and deliver all instruments necessary to appoint one or more
Persons approved by the Delaware Trustee to act as co-Delaware Trustee,
jointly with it, or as separate Delaware Trustee or separate Delaware
Trustees, of all or any part of any Collateral and, subject to Section 4.4
of the Trust Agreement, to vest in such Person, in such capacity, such
title to any Collateral, or any part thereof, and, subject to the other
provisions of this Section 8.5, such powers, duties, obligations, rights
and trusts as the Administrator and the Delaware Trustee may deem necessary
or desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do,
the Delaware Trustee alone shall have the power to make such appointment.
No co-Delaware Trustee or separate Delaware Trustee under the Trust
Agreement shall be required to meet the terms of eligibility as a successor
Delaware Trustee pursuant to Section 8.1 and no notice of the appointment
of any co-Delaware Trustee or separate Delaware Trustee shall be required;
provided, however, that any co-Delaware Trustee or separate Delaware
Trustee must be a "United States person" within the meaning of Section
7701(a)(30) of the Code and a "bank" within the meaning of Section 581 of
the Code.
(b) Each separate Delaware Trustee and co-Delaware Trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed upon the
Delaware Trustee shall be conferred or imposed upon and exercised or
performed by the Delaware Trustee and such separate Delaware Trustee or
co-Delaware Trustee jointly (it being understood that such separate
Delaware Trustee or co-Delaware Trustee is not authorized to act separately
without the Delaware Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the Delaware Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate Delaware Trustee or co-Delaware Trustee, but
solely at the discretion of the Delaware Trustee;
(ii) the Administrator and the Delaware Trustee acting jointly may at any time
accept the resignation of or remove any separate Delaware Trustee or
co-Delaware Trustee; and
(iii)no Delaware Trustee shall be personally liable by reason of the act or
omission of any other Delaware Trustee under the Trust Agreement.
(c) Any notice, request or other writing given to the Delaware Trustee shall be
deemed to have been given to each of the then separate Delaware Trustee and
co-Delaware Trustee, as effectively as if given to each of them. Every
instrument appointing any separate Delaware Trustee or co-Delaware Trustee
shall refer to this Section 8.5 and the conditions of this Article 8. Each
separate Delaware Trustee and co-Delaware Trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property
specified in its instruments of appointment, either jointly with the
Delaware Trustee or separately, as may be provided therein, subject to all
the provisions of the Trust Agreement, specifically including every
provision of the Trust Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Delaware Trustee. Each such
instrument shall be filed with the Delaware Trustee and a copy thereof
given to the Administrator.
(d) Any separate Delaware Trustee or co-Delaware Trustee may at any time
appoint the Delaware Trustee as its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of the Trust Agreement on its behalf and in its
name. If any separate Delaware Trustee or co-Delaware Trustee shall become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Delaware
Trustee, to the extent permitted by law, without the appointment of a new
or successor Delaware Trustee.
SECTION 8.6 Delaware Trustee May Own Notes. Except to the extent prohibited
under the terms of the Notes, the Delaware Trustee, in its individual or any
other capacity, may become the beneficial owner or pledgee of Notes, to the
extent that such ownership does not inhibit the Trust from relying on the
applicable exemption from registration as an "investment company" under the
Investment Company Act, with the same rights as it would have if it were not the
Delaware Trustee; provided, that any Notes so owned or pledged shall not be
entitled to participate in any decisions made or instructions given to the
Delaware Trustee or the Indenture Trustee by the Holders as a group. Except as
provided in this Section 8.6, the Delaware Trustee may deal with the Trust and
the Trust Beneficial Owner in banking and trustee transactions with the same
rights as it would have if it were not the Delaware Trustee.
ARTICLE 9
MISCELLANEOUS PROVISIONS
SECTION 9.1 Limitation on Rights of Others.
The death, bankruptcy, termination, dissolution or incapacity of any
Person having an interest, beneficial or otherwise, in the Trust shall not
operate to terminate the Trust Agreement, nor to annul, dissolve or terminate
the Trust, nor to entitle the legal successors, representatives or heirs of any
such Person, to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements contemplated by the
Trust Agreement, nor otherwise affect the rights, obligations and liabilities of
the parties to the Trust Agreement or any of them.
SECTION 9.2 Amendments.
(a) The Trust Agreement may be amended from time to time by the Delaware
Trustee and the Administrator by a written instrument executed by the
Delaware Trustee and the Administrator, in any way that is not inconsistent
with the intent of the Trust Agreement, including, without limitation to:
(i) cure any ambiguity, (ii) correct, supplement or modify any provision of
the Trust Agreement that is inconsistent with another provision of the
Trust Agreement or (iii) modify, eliminate or add to any provisions of the
Trust Agreement to the extent necessary to ensure that the Trust will, at
all times, for United States Federal income tax purposes will be either
ignored or treated as a grantor trust or to ensure that the Trust will not
be required to register as an investment company under the Investment
Company Act and no such amendment shall require the consent of any other
Person, except to the extent specified in Sections 9.2(c) and 9.2(d).
(b) So long as any Notes remain outstanding, except as provided in Sections
9.2(c) and 9.2(d), any amendment to the Trust Agreement that would
adversely affect, in any material respect, the terms of any Notes, other
than any amendment of the type contemplated by clause (iii) of Section
9.2(a), shall require the prior consent of the Holders of a majority of the
outstanding principal amount of the Notes.
(c) So long as any Notes remain outstanding, the Trust Agreement may not be
amended to (i) change the amount or timing of any payment of any Notes or
(ii) impair the right of any Holder to institute suit for the enforcement
of any right for principal and interest or other distribution without the
consent of each affected Holder.
(d) The Delaware Trustee shall not be required to enter into any amendment to
the Trust Agreement which adversely affects its own rights, duties or
immunities under the Trust Agreement.
(e) Prior to the execution of any amendment to the Trust Agreement, the
Delaware Trustee shall be entitled to an opinion of counsel as to whether
such amendment is permitted by the terms of the Trust Agreement and whether
all conditions precedent to such amendment have been met, in each case
under the laws of the State of Delaware.
(f) Promptly after the execution of any such amendment or consent, the
Administrator shall furnish a copy of such amendment or consent (including
those obtained or effected by the Trust Agreement) to the Indenture
Trustee, the Trust Beneficial Owner, the Agents and the Rating Agencies.
(g) Contemporaneously with, or promptly after, the execution of any amendment
to the Trust Agreement requiring amendment to the Certificate of Trust, the
Delaware Trustee shall cause the filing of such amendment to the
Certificate of Trust with the Secretary of State.
(h) Notwithstanding any other provision of the Trust Agreement, no amendment to
the Trust Agreement may be made (i) if such amendment would cause (A) the
Trust not to be either ignored or treated as a "grantor trust" for United
States Federal income tax purposes or (B) the Notes to be treated as other
than indebtedness of Allstate Life and (ii) no amendment to the Trust
Agreement may be made without the prior consent of Allstate Life.
SECTION 9.3 Notices. All demands, notices, instructions and other communications
shall be in writing (including telecopied or telegraphic communications) and
shall be personally delivered, mailed or transmitted by telecopy or telegraph,
respectively, addressed as set forth below (or, in the case of any other
relevant party, addressed as set forth in a separate notice delivered to all
relevant parties):
If to Delaware Trustee:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
If to the Trust Beneficial Owner:
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
6525 Morrison Boulevard, Suite 318
Charlotte, North Carolina 28211
Attention: President
Facsimile: (704) 365-1632
If to the Administrator:
AMACAR Pacific Corp.
6525 Morrison Blvd., Suite 318
Charlotte, North Carolina 28211
Attention: Douglas K. Johnson
Facsimile: (704) 365-1632
with a copy to:
Tannenbaum Helpern Syracuse & Hirschtritt LLP
900 3rd Avenue
New York, NY 10022
Attention: Stephen Rosenberg
Facsimile: (212) 371-1084
If to the Indenture Trustee:
J.P. Morgan Trust Company, National Association
201 North Central Avenue
Phoenix, AZ 85004
Attention: Donna V. Fanning
Facsimile: (623) 551-8801
If to the Rating Agencies:
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street
New York, NY 10041
Attention: Capital Markets
Facsimile: (212) 438-5215
Moody's Investors Service Inc.
99 Church Street
New York, NY 10007
Attention: Life Insurance Group
Facsimile: (212) 553-4805
or at such other address as shall be designated by any such party in a written
notice to the other parties. Notwithstanding the foregoing, any notice required
or permitted to be mailed to the Trust Beneficial Owner shall be given by first
class mail, postage prepaid, at Allstate Life Global Funding, c/o AMACAR Pacific
Corp., 6525 Morrison Blvd., Suite 318, Charlotte, North Carolina 28211, and any
notices mailed within the time prescribed in the Trust Agreement shall be
conclusively presumed to have been duly given, whether or not the Trust
Beneficial Owner received such notice. Any notice required or permitted to be
mailed to any Holder of a Note shall be given as specified in the Indenture.
SECTION 9.4 No Recourse. The Trust Beneficial Owner acknowledges that its
beneficial interest in the Trust does not represent an obligation of Allstate
Life, the Delaware Trustee, the Administrator, the Indenture Trustee or any
Affiliate of any of the foregoing and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
the Trust Agreement or the Indenture.
SECTION 9.5 Limited Recourse. Notwithstanding anything to the contrary contained
in the Trust Agreement, the obligations of the Trust under the Trust Agreement
and all Program Documents and other documents or instruments entered into by the
Trust, are solely the obligations of the Trust and shall be payable solely to
the extent of funds received by and available to the Trust under the Funding
Agreements, the other Collateral and the Support Agreement. No recourse shall be
had for the payment of any amount owing in respect of any obligation of, or
claim against, the Trust arising out of or based upon the Trust Agreement, the
Notes or any other Program Document against any holder of a beneficial interest,
employee, agent, officer or Affiliate of the Trust and, except as specifically
provided in the Trust Agreement and in the other Program Documents, no recourse
shall be had for the payment of any amount owing in respect of any obligation
of, or claim against, the Trust arising out of or based upon the Trust
Agreement, the Notes or any other Program Documents against the Indenture
Trustee, the Delaware Trustee, the Administrator, Allstate Life, the Agents or
any of their respective holders of beneficial interests, employees, agents,
officers, directors, incorporators or Affiliates.
SECTION 9.6 No Petition. To the extent permitted by applicable law, each of the
Delaware Trustee and the Administrator covenants and agrees, and the Trust
Beneficial Owner by its acceptance of a beneficial interest in the Trust will be
deemed to have covenanted and agreed, 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 9.6
shall survive termination of the Trust Agreement.
SECTION 9.7 Governing Law. The Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to its choice of law principles.
SECTION 9.8 Severability. If any provision in the Trust Agreement shall be
invalid, illegal or unenforceable, such provisions shall be deemed severable
from the remaining provisions of the Trust Agreement and shall in no way affect
the validity or enforceability of such other provisions of the Trust Agreement.
SECTION 9.9 Third Party Beneficiaries. The Trust Agreement shall inure to the
benefit of and be binding upon the parties to the Trust Agreement and their
respective successors and permitted assigns. Except as otherwise provided in the
Trust Agreement, no other Person shall have any right or obligation under the
Trust Agreement.
SECTION 9.10 Counterparts. The Trust Agreement and any amendments,
modifications, restatements, supplements and/or replacements of the Trust
Agreement, or waivers or consents to the Trust Agreement, may be executed in any
number of counterparts, and by different parties to the Trust 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 Trust Agreement shall become
effective upon the execution of a counterpart to each of the parties to the
Trust Agreement.
B-1
EXHIBIT B
STANDARD ADMINISTRATIVE SERVICES AGREEMENT TERMS
================================================================================
STANDARD ADMINISTRATIVE SERVICES AGREEMENT TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING TRUSTS
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS; OTHER DEFINITIONAL PROVISIONS
Section 1.1. Covenants..............................................................................1
Section 1.2. Definitions............................................................................1
Section 1.3. Other Definitional Provisions..........................................................4
ARTICLE 2 APPOINTMENT; ADMINISTRATIVE SERVICES
Section 2.1. Appointment............................................................................4
Section 2.2. Administrative Services................................................................5
ARTICLE 3 ACTIVITIES OF THE TRUST; EMPLOYEES; OFFICES.
Section 3.1. Activities of the Trust................................................................7
Section 3.2. Employees..............................................................................7
Section 3.3. Offices................................................................................8
ARTICLE 4 COMPENSATION; INDEMNITIES
Section 4.1. Compensation...........................................................................8
Section 4.2. Indemnities............................................................................8
ARTICLE 5 TERM
Section 5.1. Term...................................................................................8
ARTICLE 6 OBLIGATION TO SUPPLY INFORMATION
Section 6.1. Obligation to Supply Information.......................................................9
Section 6.2. Reliance on Information................................................................9
ARTICLE 7 LIABILITY OF ADMINISTRATOR; STANDARD OF CARE
Section 7.1. Liability of Administrator.............................................................9
Section 7.2. No Implied Obligations.................................................................9
Section 7.3. Standard of Care.......................................................................9
ARTICLE 8 LIMITED RECOURSE
Section 8.1. Limited Recourse to Trust.............................................................10
Section 8.2. No Recourse to Trustees and Agents....................................................10
ARTICLE 9 TAX MATTERS
Section 9.1. Income Tax Treatment..................................................................10
ARTICLE 10 MISCELLANEOUS
Section 10.1. Amendments............................................................................10
Section 10.2. No Joint Venture......................................................................11
Section 10.3. Assignment............................................................................11
Section 10.4. Governing Law, Consent to Jurisdiction; Waiver of Jury Trial..........................11
Section 10.5. Counterparts..........................................................................11
Section 10.6. Limitation of Delaware Trustee Liability..............................................12
Section 10.7. No Petition...........................................................................12
Section 10.8. Severability..........................................................................12
Section 10.9. Entire Agreement......................................................................12
Section 10.10. Administrator to Provide Access to Books and Records..................................12
Section 10.11. No Waiver.............................................................................13
Section 10.12. Remedies Cumulative...................................................................13
Section 10.13. Notices...............................................................................13
This document constitutes the Standard Administrative Services
Agreement Terms, which will be incorporated by reference in, and form a part of,
the Administrative Services Agreement (as defined below).
These Standard Administrative Services 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 Administrative Services Agreement.
These Standard Administrative Services Agreement Terms shall govern the
administration of the activities of the Trust, subject to contrary terms and
provisions expressly adopted in the Administrative Services Agreement, which
contrary terms shall be controlling.
ARTICLE 1
DEFINITIONS; OTHER DEFINITIONAL PROVISIONS
Section 1.1. Covenants. The Trust repeats and reaffirms to the
Administrator the covenants of the Trust set forth in Article 4 of the
Standard Indenture Terms.
Section 1.2. Definitions.
"Administration Fee" has the meaning ascribed in Section 4.1.
"Administrative Services Agreement" means that certain Administrative
Services Agreement included in Part B of the Series Instrument, and which
incorporates by reference these Standard Administrative Services Agreement
Terms, by and between the Trust and the Administrator, as the same may be
amended, modified or supplemented from time to time.
"Administrator" means AMACAR Pacific Corp., a Delaware corporation, in
its capacity as the sole administrator of the Trust pursuant to the
Administrative Services Agreement, and its successors.
"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 set forth in the Distribution Agreement.
"Allstate Life" means Allstate Life Insurance Company, a stock life
insurance company organized and licensed under the laws of the State of
Illinois, and any successor.
"Closing Instrument" means the closing instrument of the Trust,
pursuant to which the Indenture is entered into, and certain other documents are
executed, in connection with the issuance of the Notes by the Trust.
"Collateral" means, with respect to the Notes, the right, title and
interest of the Trust in and to (a) the Funding Agreement(s) held by the Trust,
(b) all proceeds of such Funding Agreement(s) and (c) all books and records
pertaining to the Funding Agreement(s).
"Commission" has the meaning ascribed in Section 2.2(d).
"Coordination Agreement" means that certain Coordination Agreement
included in Part F of the Series Instrument, among Allstate Life Insurance
Company, the Trust and the Indenture Trustee, as the same may be amended,
modified or supplemented from time to time.
"Delaware Trustee" means Wilmington Trust Company, a Delaware banking
corporation, in its capacity as the sole Delaware trustee of the Trust and its
successors.
"Distribution Agreement" means that certain Distribution Agreement
dated as of April 27, 2004, by and among Global Funding and the Agents named
therein, as the same may be amended, modified or supplemented from time to time.
"Funding Agreement" means each funding agreement issued by Allstate
Life to Global Funding, which is sold to and deposited into, the Trust by Global
Funding, and immediately pledged and collaterally assigned by the Trust to the
Indenture Trustee, as the same may be modified, restated, replaced, supplemented
or otherwise amended from time to time in accordance with the terms thereof.
"Global Funding" means Allstate Life Global Funding, a statutory trust
formed under the laws of the State of Delaware.
"Indenture" means that certain Indenture included in Part A of the
Closing Instrument, between the Trust and the Indenture Trustee, as the same may
be amended, modified or supplemented from time to time.
"Indenture Trustee" means the party named as such in the preamble to
the Indenture, and, subject to the applicable provisions of the Indenture, its
successors.
"Loss and Expense" has the meaning ascribed in Section 4.2.
"Moody's" means Moody's Investors Services, Inc.
"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, modified or supplemented from time to
time.
"Note" has the meaning set forth in the Indenture.
"Paying Agent" has the meaning set forth in the Indenture.
"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, business 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.
"Program" means the program for the issuance, from time to time, of
secured medium term notes of the Allstate Life Global Funding Trusts.
"Program Documents" means each Note, the Series Instrument, the
Indenture, the Trust Agreement, the Administrative Services Agreement, the
Support Agreement, the Name Licensing Agreement, the Distribution Agreement, the
Terms Agreement, each Funding Agreement and any other documents or instruments
entered into by, or with respect to, or on behalf of, the Trust.
"Rating Agency" means each of Moody's Investors Services, Inc.,
Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies,
Inc., and any other rating agency which provides a rating of the Notes.
"Registrar" has the meaning set forth in the 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 Delaware 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 Delaware 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.
"S&P" means Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies, Inc.
"Series Instrument" means the closing instrument of the Trust, pursuant
to which the Administrative Services Agreement, the Coordination Agreement, 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" has the meaning set forth in the Support Agreement.
"Support Agreement" means that certain Support and Expenses Agreement
included in Part C of the Series Instrument, by and between Allstate Life and
the Trust, as the same may be amended, modified or supplemented from time to
time.
"Survivor's Option" means the provision in the Notes permitting
optional repayment of such Notes prior to maturity, if requested, following the
death of the beneficial owner of such Notes, in accordance with such Notes.
"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 1.3. Other Definitional Provisions. For all purposes of the
Administrative Services 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; provided, that all capitalized terms
used in and not otherwise defined in the Administrative
Services Agreement will have the meanings set forth in the
Indenture;
(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
Administrative Services Agreement or the intent of the parties
to the Administrative Services Agreement; and
(d) capitalized terms not otherwise defined in the Administrative
Services Agreement will have the respective meanings set forth
in the Indenture.
ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
Section 2.1. Appointment. Pursuant to Section 3806(b)(7) of the Delaware
Statutory Trust Act, the Administrator is hereby appointed, as an agent of the
Trust with full power and authority, and agrees to carry out all of the duties
and responsibilities (a) of the Trust under the Program Documents and any other
document to which the Trust is a party and (b) of the Administrator under the
Administrative Services Agreement.
Section 2.2. Administrative Services. Without limiting the generality of Section
2.1, the Trust authorizes and empowers the Administrator, as its agent, to
perform, and the Administrator agrees to perform, the following services:
(a) subject to the timely receipt of all necessary information,
providing, or causing to be provided, all clerical, and
bookkeeping services necessary and appropriate for the
administration of the Trust, including, without limitation,
the following services as well as those other services
specified in the following subsections:
(i) maintenance of all books and records of the Trust relating to
the fees, costs and expenses of the Trust which books and
records shall be maintained separately from those of the
Administrator;
(ii) maintenance of records of cash payments and disbursements
(excluding principal and interest on any Funding Agreement) of
the Trust in accordance with generally accepted accounting
principles, and preparation for audit of such periodic
financial statements as may be necessary or appropriate;
(iii) upon request, preparing for, and causing, execution by the
Trust, through a Responsible Officer, of the Program
Documents, any amendments to and waivers under the Program
Documents and any other documents or instruments deliverable
by the Trust thereunder or in connection therewith;
(iv) holding, maintaining, and preserving executed copies of the
Program Documents and other documents or instruments executed
by the Trust thereunder or in connection therewith, which
shall be maintained separately from those of the
Administrator;
(v) upon receipt of notice, taking such action as may be
reasonably necessary to enforce the performance by the other
parties to agreements to which the Trust is a party, and
enforce the obligations of those parties to the Trust under
such agreements;
(vi) upon request, preparing for execution by a Responsible Officer
such notices, consents, instructions and other communications
that the Trust may from time to time be required or permitted
to give under the Program Documents or any other document
executed by the Trust;
(vii) obtaining services of outside counsel, accountants and other
Service Providers on behalf of the Trust;
(viii) preparing for execution by a Responsible Officer any
instruction for payment of any amounts due and owing by the
Trust under the Program Documents to which the Trust is a
party or any other document to which the Trust is a party;
provided that the foregoing shall not obligate the
Administrator to advance any of its own monies for such
purpose, it being understood that such amounts shall be
payable only to the extent assets held in the Trust are
available therefor and at such times and in such amounts as
shall be permitted by the Program Documents;
(ix) preparing for execution by a Responsible Officer any instruction for
payment of any amounts due and owing by the Trust to the Indenture Trustee,
the Paying Agent, the Registrar and other Service Providers on request for
all expenses, disbursements and advances to the extent not paid pursuant to
the Support Agreement; provided that the foregoing shall not obligate the
Administrator to advance any of its own monies for such purpose, it being
understood that such amounts shall be payable only to the extent assets
held in the Trust are available therefor and at such times and in such
amounts as shall be permitted by the Program Documents; and
(x) taking such other actions as may be incidental or reasonably necessary (A)
to the accomplishment of the actions of the Administrator authorized in
this subsection (a) or (B) upon receipt of notice from a Responsible
Officer directing specifically the Administrator to do so, to the
accomplishment of the duties and responsibilities, and compliance with the
obligations, of the Trust, under the Program Documents and under any other
document to which the Trust is or may be a party to the extent not
otherwise performed by the Indenture Trustee, a Paying Agent, the Transfer
Agent, the Registrar or the Delaware Trustee, provided that no such duties
or responsibilities shall materially enlarge the duties and
responsibilities of the Administrator which are set forth specifically in
the Administrative Services Agreement;
(b) upon the issuance of the Notes, directing the Indenture Trustee to pay the
expenses of the Trust relating to the Notes to the extent not paid under
the Support Agreement;
(c) performing the administrative services to ensure compliance with all of the
obligations, representations, covenants and agreements of the Trust set
forth in the Program Documents;
(d) subject to the timely receipt of all necessary information or notices from
the Delaware Trustee, and based on the advice of counsel, on behalf of the
Trust, (i) the preparation and filing with the Securities and Exchange
Commission (the "Commission") and, if necessary, executing, in each case
solely on behalf of the Trust and not in the Administrator's individual
capacity such documents, forms, certifications and filings as may be
required by the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Trust Indenture Act of 1939, as amended, or
other securities laws in each case relating to the Notes; (ii) the
preparation and filing of any documents or forms required to be filed by
any rules or regulations of any securities exchange, including without
limitation, the New York Stock Exchange, or market quotation dealer system
or the National Association of Securities Dealers, Inc. in connection with
the listing of the Notes thereon; (iii) preparing, filing and executing
solely on behalf of the Trust and not in the Administrator's individual
capacity, such filings, applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers
and documents as may be necessary or desirable to register, or establish
the exemption from registration of, the Notes under the securities or "Blue
Sky" laws of any relevant jurisdictions; and (iv) executing and delivering,
solely on behalf of the Trust and not in the Administrator's individual
capacity, letters or documents to, or instruments for filing with, a
depositary relating to the Notes;
(e) if the Pricing Supplement relating to the Notes provides for a Survivor's
Option, taking such actions as may be incidental or reasonably necessary to
administer the Survivor's Option; and
(f) undertaking such other administrative services as may be reasonably
requested by the Trust or the Delaware Trustee, including (i) causing the
preparation by the Trust of any prospectus, prospectus supplement, pricing
supplement, registration statement, amendments, including any exhibits and
schedules thereto, any reports or other filings or documents, or supplement
thereto or (ii) securing and maintaining the listing of the Notes on any
securities exchange or complying with the securities or "Blue Sky" laws of
any relevant jurisdictions, in connection with the performance by the Trust
of its obligations under the Program Documents or any other document to
which the Trust is a party or other documents executed thereunder or in
connection therewith.
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.
ARTICLE 3
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.
All services to be furnished by the Administrator under the Administrative
Services Agreement shall be performed from the Administrator's office in North
Carolina.
ARTICLE 4
COMPENSATION; INDEMNITIES
Section 4.1. Compensation. The Trust agrees to pay the Administrator the fees
set forth in 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.
ARTICLE 5
TERM
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 any 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.
ARTICLE 6
OBLIGATION TO SUPPLY INFORMATION
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.
ARTICLE 7
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.
ARTICLE 8
LIMITED RECOURSE
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 by the Trust
(subject to the lien created by the Indenture on the Collateral held in the
Trust) only on a payment date of the Notes and only to the extent of funds
available therefor under the Indenture and, to the extent such funds are not
available or are insufficient for the payment thereof, shall not constitute a
claim against the Trust to the extent of such unavailability or insufficiency
until such time as the Collateral held in the Trust has produced proceeds
sufficient to pay such prior deficiency. This Section 8.1 shall survive the
termination of the Administrative Services Agreement.
Section 8.2. No Recourse to Trustees and Agents. 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.
ARTICLE 9
TAX MATTERS
Section 9.1. Income Tax Treatment. The Administrator agrees that for all United
States Federal, state and local income and franchise tax purposes (i) to treat
the Notes as indebtedness of Allstate Life, (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.
ARTICLE 10
MISCELLANEOUS
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 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 parties. The foregoing shall not
limit the ability of any party to the Administrative Services Agreement to
bring suit in the courts of any other jurisdiction.
(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, modifications, restatements, supplements and/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 during the occurrence and continuation of a Default or an Event of
Default), (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. Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this Section, 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:
If to the Trust:
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
If to the Administrator:
AMACAR Pacific Corp.
6525 Morrison Blvd., Suite 318
Charlotte, North Carolina 28211
Attention: Douglas K. Johnson
Facsimile: (704) 365-1632
EXHIBIT C
STANDARD SUPPORT AND EXPENSES AGREEMENT TERMS
================================================================================
STANDARD SUPPORT AND EXPENSES AGREEMENT TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING TRUSTS
================================================================================
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 ("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.
ARTICLE 1
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, restated, modified,
supplemented or replaced from time to time.
"Administrator" means AMACAR Pacific Corp. and its successors.
"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, by contract or otherwise.
"Agents" has the meaning set forth in the Distribution Agreement.
"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.
"Closing Instrument" means the closing instrument of the Trust,
pursuant to which the Indenture is entered into, and certain other documents are
executed, in connection with the issuance of the Notes by the Trust.
"Coordination Agreement" means that certain Coordination Agreement
included in Part F of the Series Instrument, among Allstate Life, Global
Funding, the Funding Note Indenture Trustee, the Trust and the Indenture
Trustee, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"Delaware Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as trustee, and its successors.
"Distribution Agreement" means that certain Distribution Agreement
dated as of April 27, 2004, by and among Global Funding and the Agents named
therein, as the same may be amended, restated, modified, supplemented 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 Additional
Amounts paid to any Holder.
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 assigned absolutely to, and
deposited into, the Trust by Global Funding, and immediately pledged and
collaterally assigned by the Trust to the Indenture Trustee for the benefit of
the Holders of the Notes, as the same may be modified, restated, replaced,
supplemented or otherwise amended from time to time in accordance with the terms
thereof.
"Funding Note" has the meaning set forth in Part F of the Series
Instrument.
"Funding Note Indenture" means that certain Funding Note Indenture
included in Part B of the Closing Instrument, between Global Funding and the
Funding Note Indenture Trustee, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Funding Note Indenture Trustee" means the party named as such in the
preamble to the Funding Note Indenture, and, subject to the applicable
provisions of the Funding Note Indenture, 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 A of the
Closing Instrument, between the Trust and the Indenture Trustee, as the same may
be amended, restated, modified, supplemented or replaced from time to time.
"Indenture Trustee" means the party named as such in the preamble to
the Indenture, and, subject to the applicable provisions of the Indenture, its
successors.
"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, restated, modified, supplemented or
replaced from time to time.
"Note" has the meaning specified 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.
"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
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 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, and which
incorporates by reference these Standard Support and Expenses Agreement Terms,
as the same may be amended, restated, modified, supplemented 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, 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 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 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.
ARTICLE 2
REPRESENTATIONS
SECTION 2.1 General. 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 obtained or acquired.
ARTICLE 3
SUPPORT OBLIGATIONS
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 Global Funding
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 Obligation.
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 extension of any kind;
(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 the Support Agreement.
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; and
(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 Trust.
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 circumstances.
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.
ARTICLE 4
GENERAL PROVISIONS
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, modified,
restated, supplemented 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):
If to the Trust, to:
c/o AMACAR Pacific Corp.
6525 Morrison Boulevard, Suite 318
Charlotte, North Carolina 28211
Attention: Douglas K. Johnson
Facsimile: (704) 365-1632
If to Allstate Life, to:
Allstate Life Insurance Company
3100 Sanders Road, Suite M3A
Northbrook, Illinois 60062
Attention: Assistant Vice President, Institutional Markets
Facsimile: (847) 326-6289
or such other address previously furnished in writing to the other party.
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,
modifications, restatements, supplements 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.
EXHIBIT A
NOTICE OF OBLIGATION
Date: o
By [Hand or Overnight] Delivery and/or Facsimile
Allstate Life Insurance Company
Office of the General Counsel
3100 Sanders Road
Northbrook, Illinois 60062
Telephone: o
Facsimile: o
Ladies and Gentlemen:
Reference is hereby made to the Support and Expenses Agreement
dated as of o (the "Support Agreement") entered into between Allstate Life
Insurance Company, an Illinois stock life insurance company ("Allstate Life")
and Allstate Life Global Funding Trust o , 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 o, the Trust incurred a Support Obligation in an
amount of $ o;
(b) the Support Obligation resulted from o; 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:
[Name of Bank:
Account No.:
Reference No.:]
IN WITNESS WHEREOF, the Trust has executed and delivered this
Notice of Obligation as of the date first written above.
ALLSTATE LIFE GLOBAL FUNDING o
By: Wilmington Trust Company, not in its individual
capacity, but solely as Delaware Trustee
By:
-----------------------------------------------------
_________________________________________________Name:
__________________________________________________Title:
C-1
EXHIBIT D
STANDARD NAME LICENSING AGREEMENT TERMS
D-1
9
================================================================================
STANDARD NAME LICENSING AGREEMENT TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING TRUSTS
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS................................................................................1
SECTION 1.1. Definitions.......................................................................1
SECTION 1.2. Other Definitional Provisions.....................................................2
ARTICLE 2 GRANT OF LICENSE; INDEPENDENT CONTRACTORS..................................................2
SECTION 2.1. Grant of License..................................................................2
SECTION 2.2. Independent Contractors...........................................................2
ARTICLE 3 AGREEMENTS AND ACKNOWLEDGEMENTS OF LICENSEE................................................2
SECTION 3.1. Agreements and Acknowledgements of Licensee.......................................2
ARTICLE 4 INFRINGEMENT PROCEEDINGS...................................................................4
SECTION 4.1. Notification of Unauthorized Use..................................................4
SECTION 4.2. Payments for Damages..............................................................4
ARTICLE 5 TERM AND TERMINATION.......................................................................4
SECTION 5.1. Term..............................................................................4
SECTION 5.2. Automatic Termination.............................................................5
SECTION 5.3. Immediate Termination.............................................................5
SECTION 5.4. Termination on Notice.............................................................5
ARTICLE 6 EFFECT OF TERMINATION......................................................................5
SECTION 6.1. Change of Licensee Marks..........................................................5
SECTION 6.2. Licensee Cooperation..............................................................5
SECTION 6.3. Rights in Licensed Marks..........................................................5
ARTICLE 7 MISCELLANEOUS..............................................................................6
SECTION 7.1. Enforcement.......................................................................6
SECTION 7.2. Severability......................................................................6
SECTION 7.3. Entire Agreement..................................................................6
SECTION 7.4. Amendment of Name Licensing Agreement.............................................6
SECTION 7.5. Governing Law.....................................................................6
SECTION 7.6. Consent to Jurisdiction...........................................................6
SECTION 7.7. Waiver of Jury Trial..............................................................6
SECTION 7.8. No Waiver.........................................................................7
SECTION 7.9. Remedies Cumulative...............................................................7
SECTION 7.10. Notices...........................................................................7
SECTION 7.11. Counterparts......................................................................7
SECTION 7.12. Limitation of Delaware Trustee Liability..........................................8
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:
"Licensed Marks" shall include all marks listed on Appendix A attached
hereto as the same may be amended, restated, modified, supplemented 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, restated, modified, supplemented or replaced from time
to time.
"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.
"Program Documents" has the meaning set forth in the Trust Agreement.
"Series Instrument" means the series instrument pursuant to which
certain Program Documents are executed and the Trust is established.
"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, between AMACAR Pacific Corp., as Administrator and
Wilmington Trust Company, as the Delaware Trustee, as the same may be amended,
restated, modified, supplemented or replaced from time to time.
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 hereof.
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. 333-112249), 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,
modifications, restatements, supplements 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,
modifications, restatements, supplements and/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.
SECTION 7.12. Limitation of Delaware Trustee Liability. Notwithstanding any
provision of the Name Licensing Agreement to the contrary, it is expressly
understood and agreed by the parties that (a) the Name Licensing Agreement is
executed and delivered by Wilmington Trust Company (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 for the Licensee, (b) each of the representations, undertakings
and agreements in the Name Licensing Agreement made on the part of the Licensee
is made and intended not as personal representations, undertakings or agreements
by the Delaware Trustee but is made and intended for the purpose of binding only
the Licensee, (c) nothing contained in the Name Licensing 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
Name Licensing Agreement, all such liability, if any, being expressly waived by
the parties to the Name Licensing Agreement and by any person claiming by,
through or under the parties to the Name Licensing Agreement, and (d) under no
circumstances shall the Delaware Trustee be personally liable for the payment of
any indebtedness or expenses of the Licensee or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Licensee under the Name Licensing Agreement or any other
related documents.
A-1
APPENDIX A
LICENSED MARKS
o Allstate
o Allstate Life
o [GRAPHIC OMITTED][GRAPHIC OMITTED]
EXHIBIT E
DISTRIBUTION AGREEMENT
E-1
19
Execution Copy
------------------------
Allstate LifeSM is a service mark of Allstate Life Insurance Company.
CoreNotes(R) is a registered service mark of Merrill Lynch & Co.
ALLSTATE LIFE GLOBAL FUNDING
$4,000,000,000
SECURED MEDIUM TERM NOTE PROGRAM
DISTRIBUTION AGREEMENT
April 27, 2004
Merrill Lynch, Pierce, Fenner & Smith Incorporated
A.G. Edwards & Sons, Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Barclays Capital Inc.
Citigroup Global Markets Inc.
Credit Suisse
First Boston LLC
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
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 LifeSM CoreNotesSM
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 Schedule1 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 hereof, the Issuing Trusts are authorized to issue
collectively up to U.S. $4,000,000,000 aggregate initial offering price of Notes
(or its equivalent as determined in Section 4(o)).
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, 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 J.P.
Morgan Trust Company, National Association, 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 J.P. Morgan Trust Company, National Association, 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
19 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. The Company and Global Funding have filed with the
Commission a registration statement on Form S-3 (No. 333-112249) and
pre-effective amendment nos.1, 2 and 3 thereto as amended, if applicable (the
"Registration Statement") 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 rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). The Registration Statement 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. The
final prospectus and all applicable amendments or supplements thereto (including
the final prospectus supplement and Pricing Supplement relating to the offering
of Notes), in the form first furnished to the applicable Agent for use in
confirming sales of Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the 1934 Act, prior to any
acceptance by Global Funding and any Issuing Trust of an offer for the purchase
of Notes; provided, further, that 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. A "preliminary prospectus" shall
be deemed to refer to any prospectus used before the Registration Statement
became effective and any prospectus furnished by the Company or Global Funding
after the Registration Statement became effective and before any acceptance by
Global Funding and an Issuing Trust of an offer for the purchase of its Notes
which omitted information to be included upon pricing in a form of prospectus
filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations.
For purposes of this Agreement, all references to the Registration Statement,
Prospectus or preliminary 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, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary 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 from 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, as of the date of
each acceptance by an Issuing Trust of an offer for the purchase of Notes
(whether to such Agent as principal or through such Agent as agent), 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"), and 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 and Prospectus; Filing Status.
Global Funding meets the requirements for use of Form S-3 under the
1933 Act; the Registration Statement (and any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or any Rule
462(b) 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
the Registration Statement (including any Rule 462(b) Registration
Statement) and any post-effective amendment thereto became effective
and at each Global Funding Representation Date, the Registration
Statement (including any Rule 462(b) 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, 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 Prospectus
and each amendment or supplement thereto and at each Global Funding
Representation Date, neither the 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; provided,
however, that the representations and warranties in this subsection
shall not apply to (i) statements in or omissions from the Registration
Statement 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 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
Prospectus, 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 Prospectus, at the date
hereof, at the date of the 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) Independent Accountants. The accountants who
certified the financial statements and any supporting schedules thereto
included in the Registration Statement and the Prospectus are
independent public accountants to the extent required by the 1933 Act
and the 1933 Act Regulations.
(v) 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 Prospectus present fairly the information shown
therein.
(vi) No Material Changes. Since the respective dates as of
which information is given in the Registration Statement and the
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
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.
(vii) 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.
(viii) 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 Prospectus, the consummation of the transactions
contemplated in the Prospectus (including the issuance and sale of the
Notes by an Issuing Trust and the use of proceeds therefrom as
described in the Prospectus) (collectively, the "Global Funding Program
Documents") 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.
(ix) 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 Prospectus (other than as stated therein), or which may
reasonably be expected to result in a Global Funding Material Adverse
Effect, or which may reasonably be expected to materially and adversely
affect the assets, properties or operations thereof, the performance by
Global Funding of its obligations under this Agreement and the other
Global Funding Program Documents or the consummation of the
transactions contemplated in the Prospectus; 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
Prospectus, including ordinary routine litigation incidental to the
business, may not reasonably be expected to result in a Global Funding
Material Adverse Effect.
(x) 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;
and 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.
(xi) 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.
(xii) 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 Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(xiii) 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.
(xiv) 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.
(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 the date of
each acceptance by such Issuing Trust of an offer for the purchase of its Notes
(whether to each such Agent as principal or through each such Agent as agent)
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
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 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 Prospectus, the consummation of the transactions contemplated in
the Prospectus (including the issuance and sale of the Notes by an
Issuing Trust and the use of proceeds therefrom as described in the
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 Prospectus (other than as stated
therein), or which may reasonably be expected to result in an Issuing
Trust Material Adverse Effect, or which may reasonably be expected to
materially and adversely affect the assets, properties or operations
thereof, the performance by such Issuing Trust of its obligations under
this Agreement and the other Issuing Trust Program Documents or the
consummation of the transactions contemplated in the Prospectus; 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 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;
and 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
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 GlobalFunding 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 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 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 Prospectus. 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 from 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(j) and 4(k), 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 with respect to the
Registration Statement and Prospectus 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 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, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (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(p). With respect to
the Registration Statement, 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 (including any filing under Rule 462(b) of the 1933
Act Regulations) or any amendment or supplement to the prospectus included in
the Registration Statement at the time it became effective 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, will furnish to such Agents copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which an Agent or
counsel for the Agents shall object.
(c) Delivery of the Registration Statement. Global Funding has
furnished to the Agents and to counsel for the Agents, without charge, signed
and conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed and conformed copies of all consents and
certificates of experts. The Registration Statement and each amendment thereto
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.
(d) Delivery of the Prospectus. Global Funding will deliver to each
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 Agent, without charge, such number of copies of the Prospectus (as
amended or supplemented) as such Agent may reasonably request. 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.
(e) Preparation of Pricing Supplements. Global Funding will prepare,
with respect to any Notes to be sold to or through one or more Agents 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 date of the relevant Issuing Trust's acceptance of the offer for
the purchase of such Notes and will file such Pricing Supplement pursuant to
Rule 424(b) under the 1933 Act.
(f) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in Section 4(m), 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 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 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 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 Registration Statement and 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) Periodic Financial Information. Except as otherwise provided in
Section 4(m), on or prior to the date on which there shall be released to the
general public interim financial statement information related to the Company or
Global Funding with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, Global Funding shall, and Global Funding agrees to cause the Company to,
furnish such information to the Agents, confirmed in writing, and thereafter
promptly shall cause the Prospectus to be amended or supplemented to include
financial information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations, to the extent required by the 1933 Act or the 1933
Act Regulations.
(h) Audited Financial Information. Except as otherwise provided in
Section 4(m), on or prior to the date on which there shall be released to the
general public financial information included in or derived from the audited
consolidated financial statements of the Company or Global Funding for the
preceding fiscal year, Global Funding shall, and Global Funding agrees to cause
the Company to, as applicable, furnish such information to the Agent, confirmed
in writing, and thereafter promptly shall cause the Prospectus to be amended or
supplemented to include such audited consolidated financial statements and the
report or reports, and consent or consents to such inclusion, of the independent
accountants with respect thereto, as well as such other information and
explanations, to the extent required by the 1933 Act or the 1933 Act
Regulations.
(i) Reporting Requirements. Global Funding, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file, or cause to be filed, all documents required to be filed by it and
each Issuing Trust with the Commission pursuant to the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(j) 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)).
(k) 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 Trust 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).
(l) 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 Prospectus.
(m) Suspension of Certain Obligations. Global Funding shall not be
required to comply with the provisions of Sections 4(f), (g) or (h) during any
period commencing from the time (i) the Agents shall have suspended solicitation
of offers for the purchase of Notes in their capacity as agents pursuant to a
request from Global Funding or any Issuing Trust and (ii) no Agent shall then
hold any Notes purchased from any Issuing Trust as principal, and ending at the
time Global Funding and/or applicable Issuing Trusts shall determine that
solicitation of offers for the purchase of Notes should be resumed or an Agent
shall subsequently purchase Notes from an Issuing Trust as principal.
(n) 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.
(o) 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.
(p) 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.
(q) 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").
(r) 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.
(s) 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.
(t) 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.
(u) 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.
(a) Each Issuing Trust, only with respect to itself, covenants and
agrees with each Agent as follows:
(b) 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 Prospectus.
(c) 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.
(d) 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 the Depository Trust Company ("DTC").
(e) 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.
(f) 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.
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. 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 (including any Rule 462(b) 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, the Agents shall have received the following legal opinions,
memoranda and negative assurance letters dated as of the date hereof 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 Counsel for the Company.
The negative assurance letter of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
or other legal counsel selected by the Company and reasonably
satisfactory to the Agents ("Company Counsel") 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 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 Brown & Wood 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 6(b) above will be delivered as of each April
27, commencing April 27, 2005, modified as necessary to relate to such time of
delivery.
(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 acertificate 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 that the signatory of such
certificate has carefully examined the Registration Statement, the Prospectus
and amendments and supplements thereto and this Agreement and that:
(i) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened;
(ii) 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; and
(iii) nothing has come to the attention of the Company that
would cause it to believe that the priority status of the Funding
Agreements under Section 5/205 of the Illinois Insurance Code has been
adversely modified since the date of the last delivery of the opinion
issued by Lord, Bissell & Brook, substantially in the form of Exhibit C
attached hereto.
(e) Comfort Letter of Accountants to the Company. On the date hereof,
the Agents shallhave received a letter from Deloitte & Touche LLP or its
successor, as accountants to the Company (the "Accountants"), dated as of the
date hereof, 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 6 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 11 hereof and except that Sections
9, 10, 12, 15 and 16 hereof shall survive any such termination and remain in
full force and effect.
SECTION 7. 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 8. 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 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")), (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 6(c) and 6(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 and the Prospectus 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 6(c) and 6(d) hereof,
modified as necessary to relate to the Registration Statement and the Prospectus
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
8(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 6(b)(i), Section 6(b)(iii), Section 6(b)(iv),
Section 6(b)(v), Section 6(b)(vi), Section 6(b)(viii), Section 6(b)(ix), Section
6(b)(x), Section 6(b)(xi), Section 6(b)(xii), Section 6(b)(xiii) and Section
6(b)(xiv) hereof, as applicable, modified as necessary to relate to any report
filed by the Company under Section 13 or Section 15(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 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 counsel for the Company 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 6(b)(ii) hereof, but modified, as
necessary, to relate to the Registration Statement and the 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
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance); provided, however, that any delivery of a negative
assurance letter as required by this Section 8(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. As of each April 27, Global Funding agrees to furnish or cause to be
furnished forthwith to the Agents the negative assurance letter of Sidley Austin
Brown & Wood LLP, counsel to the Agents, or such other counsel reasonably
satisfactory to the Agents, dated as of the date of the filing of such Form 10-K
with the Commission, of the same tenor as the opinion referred to in Section
6(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.
(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 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 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 6(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 delivery of any letter as required by this Section
8(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 9. Indemnification.
(a) Indemnification of the Agent. 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 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 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 9(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 Agents
concerning the Agents expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary 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 Global Funding and the Company shall have furnished the
Agents with copies of such amendment or supplement to the Prospectus pursuant to
Section 4(f) hereunder or Section 2(f) of the Representations and Indemnity
Agreement 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. 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 9(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 Registration Statement (or any amendment
thereto) or any preliminary prospectus 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 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 9(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 9(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 9 or Section
10 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 9(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 10. Contribution.
If the indemnification provided for in Section 9 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 10 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 10. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 10 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 10, (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 10
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 10, 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 11. 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, the 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 12. 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 13. 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 Prospectus, 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 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 8 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the provisions of Section 11 hereof, the indemnity and
contribution agreements set forth in Sections 9 and 10 hereof, and the
provisions of Sections 12, 15 and 16 hereof shall remain in effect.
SECTION 14. 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) 326-6289
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 14.
SECTION 15. 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 9 and 10
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 16. 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 17. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 18. 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 19. 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 19 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.
55 Water Street
New York, New York 10041
Attention: Capital Markets
Facsimile: (212) 438-5215
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
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 the Trust to
deliver copies of any amendment required to be delivered pursuant to this
Section 19 shall not constitute a breach of or an event of default under this
Agreement. The term "Rating Agency", for purposes of this Section 19, 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).
SECTION 20. 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 21. 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 22. 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***
*Signature Page to Distribution Agreement, Part 1 of 3*
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:
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Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
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Authorized Signatory
A.G. EDWARDS & SONS, INC.
By:
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Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By:
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Authorized Signatory
*Signature Page to Distribution Agreement, Part 3 of 3*
*Signature Page to Distribution Agreement, Part 2 of 3*
BANC ONE CAPITAL MARKETS, INC.
By:
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Authorized Signatory
BARCLAYS CAPITAL INC.
By:
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Authorized Signatory
CITIGROUP GLOBAL MARKETS INC.
By:
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Authorized Signatory
CREDIT SUISSE FIRST BOSTON LLC
By:
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Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:
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Authorized Signatory
GOLDMAN SACHS & CO.
By:
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Authorized Signatory
J.P. MORGAN SECURITIES INC.
By:
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Authorized Signatory
LEHMAN BROTHERS INC.
By:
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Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By:
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Authorized Signatory
UBS SECURITIES LLC
By:
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Authorized Signatory
By:
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Authorized Signatory
WACHOVIA CAPITAL MARKETS, LLC
By:
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Authorized Signatory
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
EXHIBIT F
CERTIFICATE OF TRUST
F-1
CERTIFICATE OF TRUST OF
ALLSTATE LIFE GLOBAL FUNDING TRUST 2004-2
THIS Certificate of Trust of Allstate Life Global Funding Trust 2004-2
(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, ss.
3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is Allstate Life
Global Funding Trust 2004-2.
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 ss. 3811(a)(1) of the Act.
Wilmington Trust Company, not in its
individual capacity but solely as Delaware Trustee
By:
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Name:
Title:
ANNEX A
PRICING SUPPLEMENT
Filed pursuant to Rule 424(b)(2)
Registration Statement No. 333-112249 and 333-112249-01
Pricing Supplement No. 2 Dated May 20, 2004
(To Prospectus dated April 27, 2004, and
Prospectus Supplement dated April 27,
2004) CUSIP: 02003MAB0
ISIN: US02003MAB0
Common Code: 019355837
Allstate Life Global Funding
Secured Medium Term Notes
Issued Through
Allstate Life Global Funding Trust 2004-2 (the "Trust")
The description in this pricing supplement of the particular terms of
the Secured Medium Term Notes offered hereby supplements the description of the
general terms and provisions of the notes set forth in the accompanying
prospectus and prospectus supplement, to which reference is hereby made.
Principal Amount: $300,000,000 Agent(s) Discount: 0.042%
Issue Price: 100.000% Original Issue Date: May 27, 2004
Net Proceeds to the Trust: $299,875,000 Stated Maturity Date: May 25, 2007
Funding Agreement Number(s): FA-41068
Specified Currency: U.S. Dollars
Interest Payment Dates: February 25, May 25, August 25 and November 25 in each year
Initial Interest Payment Date: August 25, 2004
Regular Record Dates: 15 calendar days prior to each Interest Payment Date
Type of Interest Rate: [ ] Fixed Rate [ v ] Floating Rate
Fixed Rate Notes: [ ] Yes [ x] No. If, Yes,
Interest Rate:
Floating Rate Notes: [ v ] Yes [ ] No. If, Yes,
Regular Floating Rate Notes: [ v ] Yes [ ] No. If, Yes,
Interest Rate: Interest Rate Basis plus the Spread
Interest Rate Basis(es): See below
Floating Rate/Fixed Rate Note: [ ] Yes [ x ] No. If, Yes,
Floating Interest Rate:
Interest Rate Basis(es):
Fixed Interest Rate:
Fixed Rate Commencement Date:
Inverse Floating Rate Note: [ ] Yes [ x ] No. If, Yes,
Fixed Interest Rate:
Floating Interest Rate:
Interest Rate Basis(es):
Initial Interest Rate, if any: Interest Rate Basis plus the Spread determined as of the second
London banking day preceding the Original Issue Date
Initial Interest Reset Date: August 25, 2004
Interest Rate Basis(es). Check all that apply:
[ ] CD Rate [ ] Commercial Paper Rate
[ ] CMT Rate [ ] Eleventh District Cost of Funds Rate
[ x ] LIBOR [ ] Federal Funds Rate
[ ] EURIBOR [ ] Treasury Rate
[ ] Prime Rate [ ] Other (See Attached)
If LIBOR:
[ ] LIBOR Reuters Page [ x ] LIBOR Moneyline Telerate Page 3750
LIBOR Currency: U.S. Dollars
If CMT Rate:
Designated CMT Telerate Page:
If 7052: [ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
Index Maturity: Three months
Spread (+/-): +0.06%
Spread Multiplier: Not applicable
Interest Reset Date(s): Each Interest Payment Date
Interest Determination Date(s): The second London banking day preceding the related
Interest Reset Date
Maximum Interest Rate, if any: Not applicable
Minimum Interest Rate, if any; Not applicable
Calculation Agent: J.P. Morgan Trust Company, National Association
Exchange Rate Agent: Not applicable
Computation of Interest (not applicable unless different than as specified in
the prospectus and prospectus supplement):
Day Count Convention (not applicable unless different than as specified in the
prospectus and prospectus supplement):
Amortizing Note: [ ] Yes [ x ] No. If, Yes,
Amortizing Schedule:
Additional/Other Terms:
Discount Note: [ ] Yes [ x ] No. If, Yes,
Total Amount of Discount:
Initial Accrual Period of Discount:
Additional/Other Terms:
Redemption Provisions: [ ] Yes [ x ] No. If, Yes,
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction (if any):
Redemption: [ ] In whole only and not in part
[ ] May be in whole or in part
Additional/Other Terms:
Repayment: [ ] Yes [ x ] No. If, Yes,
Repayment Date(s):
Repayment Price:
Repayment: [ ] In whole only and not in part
[ ] May be in whole or in part
Additional/Other Terms: Sinking Fund (not applicable unless specified):
Additional Amounts to be Paid for Withholding Tax (not applicable unless
specified):
Securities Exchange Listing: [ ] Yes [ x ] No. If Yes, Name of Exchange
Authorized Denominations: $1,000
Ratings:
The Notes issued under the Program are rated "AA" by Standard & Poor's
Ratings Services, a division of The McGraw Hill Companies, Inc. and "Aa2"
by Moody's Investors Service, Inc.
Agent(s) Purchasing Notes as Principal: [ x ] Yes [ ] No. If Yes,
Agent(s) Principal Amount
Merrill Lynch, Pierce, Fenner & Smith Incorporated $138,000,000
Deutsche Bank Securities Inc. $54,000,000
J.P. Morgan Securities Inc. $54,000,000
Credit Suisse First Boston LLC $15,000,000
Lehman Brothers Inc. $15,000,000
Banc of America Securities LLC $6,000,000
Goldman, Sachs & Co. $6,000,000
Morgan Stanley & Co. Incorporated $6,000,000
UBS Securities LLC $6,000,000
Total: $300,000,000
Agent(s) Acting as Agent: [ ] Yes [ x ] No. If Yes,
Agent(s) Principal Amount
Total:
- -------------------------------------------------------------------------------------------------------------------
Additional/Other Terms: Not applicable
Special Tax Considerations: Interest payable on the Notes will be treated as
"qualified stated interest" for United States Federal income tax purposes, as it
meets the specified criteria referenced in the prospectus supplement under the
heading "United States Federal Income Tax Considerations-U.S. Holders-Floating
Rate Notes."
A-A-1
ANNEX B
DELAWARE TRUSTEE SERVICE FEE SCHEDULE
As specified in a separate fee agreement.
A-B-1
ANNEX C
ADMINISTRATOR SERVICE FEE SCHEDULE
As specified in a separate fee agreement.
A-C-1
ANNEX D
AGENT NOTICE INFORMATION
As specified in Schedule 1 to the Distribution Agreement
attached to the Series Instrument as Exhibit E.
A-D-1
ANNEX E
COORDINATION AGREEMENT NOTICE INFORMATION
If to Allstate Life, at
Allstate Life Insurance Company
3100 Sanders Road
Northbrook, IL 60062
Attention: Secretary
If to Global Funding, at
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
6525 Morrison Boulevard, Suite 318
Charlotte, NC 28211
Attention: President
If to the Funding Note Indenture Trustee, at
Law Debenture Trust Company of New York
767 Third Avenue, 31st Floor
New York, NY 10017
Attention: Senior Vice President
If to the Trust, at
Allstate Life Global Funding Trust
c/o AMACAR Pacific Corp.
6525 Morrison Boulevard, Suite 318
Charlotte, NC 28211
Attention: President
If to the Indenture Trustee, at
Law Debenture Trust Company of New York
767 Third Avenue, 31st Floor
New York, NY 10017
Attention: Senior Vice President
A-E-1