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ALLSTATE LIFE GLOBAL FUNDING TRUST 2004-5
CLOSING INSTRUMENT
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TABLE OF CONTENTS
Page
PART A INDENTURE.........................................................................................1
PART B FUNDING NOTE INDENTURE............................................................................3
PART C ASSIGNMENT OF FUNDING AGREEMENT(S) TO THE FUNDING NOTE INDENTURE TRUSTEE..........................5
PART D ACKNOWLEDGEMENT OF ASSIGNMENT OF FUNDING AGREEMENT(S) TO THE FUNDING
NOTE INDENTURE TRUSTEE............................................................................7
PART E TERMINATION OF SECURITY INTEREST AND TRANSFER OF FUNDING AGREEMENT(S) TO
GLOBAL FUNDING....................................................................................9
PART F ACKNOWLEDGEMENT OF TERMINATION OF SECURITY INTEREST AND TRANSFER OF
FUNDING AGREEMENT(S).............................................................................11
PART G ASSIGNMENT OF FUNDING AGREEMENT(S) TO THE TRUST..................................................12
PART H ACKNOWLEDGEMENT OF ASSIGNMENT OF FUNDING AGREEMENT(S) TO THE TRUST..............................13
PART I ASSIGNMENT OF FUNDING AGREEMENT(S) TO THE INDENTURE TRUSTEE......................................14
PART J ACKNOWLEDGEMENT OF ASSIGNMENT OF FUNDING AGREEMENT(S) TO THE INDENTURE
TRUSTEE..........................................................................................15
PART K CERTIFICATE REGARDING CUSTODY OF FUNDING AGREEMENT(S)............................................16
PART L INSTRUCTIONS OF THE TRUST........................................................................17
PART M ACKNOWLEDGEMENT OF INDENTURE TRUSTEE CONCERNING THE NOTE CERTIFICATE.............................18
PART N CERTIFICATE OF INDENTURE TRUSTEE CONCERNING THE FUNDING AGREEMENT(S).............................19
PART O CERTIFICATE OF GLOBAL FUNDING PURSUANT TO SECTION 6(C) OF THE
DISTRIBUTION AGREEMENT...........................................................................20
PART P OFFICER'S CERTIFICATE OF ALLSTATE LIFE INSURANCE COMPANY PURSUANT TO
SECTION 6(D) OF THE DISTRIBUTION AGREEMENT.......................................................21
PART Q SECRETARY'S CERTIFICATE OF ALLSTATE LIFE INSURANCE COMPANY.......................................22
PART R CERTIFICATE OF INDENTURE TRUSTEE CONCERNING CORPORATE MATTERS....................................26
PART S CERTIFICATE OF AMACAR PACIFIC CORP...............................................................28
PART T CROSS-RECEIPT BETWEEN THE TRUST AND THE AGENT(S).................................................34
PART U CROSS-RECEIPT BETWEEN THE TRUST AND GLOBAL FUNDING...............................................35
PART V CROSS-RECEIPT BETWEEN GLOBAL FUNDING AND ALLSTATE LIFE...........................................36
PART W CROSS-RECEIPT BETWEEN GLOBAL FUNDING AND THE TRUST...............................................37
PART X MISCELLANEOUS AND EXECUTION PAGES.................................................................1
Exhibit A Standard Indenture Terms........................................................................A-1
Exhibit B Standard Funding Note Indenture Terms...........................................................B-1
Exhibit C Funding Agreement(s)............................................................................C-1
Annex A Indenture Trustee Service Fee Schedule........................................................A-A-1
Annex B Funding Note Indenture Trustee Service Fee Schedule...........................................B-B-1
WHEREAS, the parties named herein desire to enter into certain
documents relating to the issuance by Allstate Life Global Funding Trust 2004-5
(the "Trust") of Notes to investors under Allstate Life Global Funding's
("Global Funding") secured medium term notes program;
WHEREAS, the Notes will be issued pursuant to the Indenture (set forth
in Part A herein), dated as of the Original Issue Date specified in the Pricing
Supplement (the "Original Issue Date"), between the parties thereto indicated in
Part X herein;
WHEREAS, the Funding Note will be issued pursuant to the Funding Note
Indenture (set forth in Part B herein), dated as of the Original Issue Date,
between the parties thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to the assignment of the Funding
Agreement(s) by Global Funding to the Funding Note Indenture Trustee are set
forth in the Assignment of Funding Agreement(s) to the Funding Note Indenture
Trustee (set forth in Part C herein), dated as of the Original Issue Date, among
the parties thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to Allstate Life Insurance
Company's ("Allstate Life") acknowledgement of the assignment of the Funding
Agreement(s) from Global Funding to the Funding Note Indenture Trustee are set
forth in the Acknowledgement of Funding Agreement(s) Assignment to the Funding
Note Indenture Trustee (set forth in Part D herein), dated as of the Original
Issue Date, among the parties thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to the transfer of the Funding
Agreement(s) by the Funding Note Indenture Trustee to Global Funding are set
forth in the Termination of Security Interest and Transfer of Funding
Agreement(s) to Global Funding (set forth in Part E herein), dated as of the
Original Issue Date, among the parties thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to Allstate Life's
acknowledgement of the transfer of the Funding Agreement(s) from the Funding
Note Indenture Trustee to Global Funding are set forth in the Acknowledgement of
Termination of Security Interest and Transfer of Funding Agreement(s) (set forth
in Part F herein), dated as of the Original Issue Date, among the parties
thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to the transfer of the Funding
Agreement(s) by Global Funding to the Trust are set forth in the Assignment of
Funding Agreement(s) to the Trust (set forth in Part G herein), dated as of the
Original Issue Date, among the parties thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to Allstate Life's
acknowledgement of the transfer of the Funding Agreement(s) from Global Funding
to the Trust are set forth in the Acknowledgement of Funding Agreement(s)
Transfer to the Trust (set forth in Part H herein), dated as of the Original
Issue Date, among the parties thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to the assignment of the Funding
Agreement(s) by the Trust to the Indenture Trustee are set forth in the
Assignment of Funding Agreement(s) to the Indenture Trustee (set forth in Part I
herein), dated as of the Original Issue Date, among the parties thereto
indicated in Part X herein;
WHEREAS, certain arrangements relating to Allstate Life's
acknowledgement of the assignment of the Funding Agreement(s) from the Trust to
the Indenture Trustee are set forth in the Acknowledgement of Assignment of
Funding Agreement(s) to the Indenture Trustee (set forth in Part J herein),
dated as of the Original Issue Date, among the parties thereto indicated in Part
X herein;
WHEREAS, certain certifications of the Collateral Custodian (as defined
in the Coordination Agreement set forth in Part F of the Series Instrument)
concerning custody of the Funding Agreement(s) are set forth in the Certificate
Regarding Custody of the Funding Agreement(s) (set forth in Part K herein),
dated as of the Original Issue Date;
WHEREAS, certain instructions of the Trust relating to the
authentication, registration, acceptance and retention of the certificate(s)
representing the Notes are set forth in the Instructions of the Trust (set forth
in Part L herein), dated as of the Original Issue Date, between the parties
thereto indicated in Part X herein;
WHEREAS, certain arrangements relating to Allstate Life's
acknowledgement of the receipt, authentication, acceptance and retention of the
certificate(s) representing the Notes are set forth in the Acknowledgment of
Indenture Trustee Concerning the Note Certificate (set forth in Part M herein),
dated as of the Original Issue Date;
WHEREAS, certain arrangements relating to the Indenture Trustee's
acknowledgement of the receipt and retention of the Funding Agreement(s) are set
forth in the Certificate of Indenture Trustee Concerning the Funding
Agreement(s) (set forth in Part N herein), dated as of the Original Issue Date;
WHEREAS, certain certifications of Global Funding pursuant to the
Distribution Agreement are set forth in the Certificate of Global Funding
Pursuant to Section 6(c) of the Distribution Agreement (set forth in Part O
herein), dated as of the Original Issue Date;
WHEREAS, certain certifications of Allstate Life pursuant to the
Distribution Agreement are set forth in the Officer's Certificate of Allstate
Life Insurance Company Pursuant to Section 6(d) of the Distribution Agreement
(set forth in Part P herein), dated as of the Original Issue Date;
WHEREAS, certain certifications of the Secretary of Allstate Life are
set forth in the Secretary's Certificate of Allstate Life Insurance Company (set
forth in Part Q herein), dated as of the Original Issue Date;
WHEREAS, certain certifications of the Indenture Trustee concerning
corporate matters are set forth in the Certificate of Indenture Trustee
Concerning Corporate Matters (set forth in Part R herein), dated as of the
Original Issue Date;
WHEREAS, certain certifications of AMACAR Pacific Corp. are set forth
in the Certificate of AMACAR Pacific Corp. (set forth in Part S herein), dated
as of the Original Issue Date;
WHEREAS, the acknowledgments of the cross-receipt between the Trust and
the Agent(s) are set forth in the Cross-Receipt between the Trust and the
Agent(s) (set forth in Part T herein), dated as of the Original Issue Date;
WHEREAS, the acknowledgments of the cross-receipt between the Trust and
Global Funding are set forth in the Cross-Receipt between the Trust and Global
Funding (set forth in Part U herein), dated as of the Original Issue Date;
WHEREAS, the acknowledgments of the cross-receipt between Global
Funding and Allstate Life are set forth in the Cross-Receipt between Global
Funding and Allstate Life (set forth in Part V herein), dated as of the Original
Issue Date; and
WHEREAS, the acknowledgments of the cross-receipt between Global
Funding and the Trust are set forth in the Cross-Receipt between Global Funding
and the Trust (set forth in Part W herein), dated as of the Original Issue Date.
All capitalized terms used in this Closing Instrument and not otherwise
defined will have the meanings set forth in the Indenture set forth in Part A
herein, including the Standard Indenture Terms incorporated by reference into
the Indenture and attached to this Closing Instrument as Exhibit A.
PART A
INDENTURE
This INDENTURE (together with the Standard Indenture Terms (as defined
below), the "Indenture") is entered into as of the Original Issue Date specified
in the Pricing Supplement attached to the Series Instrument for the Trust as
Annex A (the "Pricing Supplement"), between the Allstate Life Global Funding
Trust specified in this Closing Instrument (the "Trust") and J.P. Morgan Trust
Company, National Association, as indenture trustee (the "Indenture Trustee").
References herein to "Registrar," "Paying Agent" or "Calculation Agent"
shall have the respective meanings ascribed to such terms in the Standard
Indenture Terms, and shall include the permitted successors and assigns of any
such entity from time to time and any agent of the Indenture Trustee acting in
any such capacity pursuant to an appointment in accordance with Section 6.2(h)
of the Standard Indenture Terms.
W I T N E S S E T H:
WHEREAS, the Trust has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the secured notes referred to in
Section 2.2 below (the "Notes");
WHEREAS, all things necessary to make this Indenture a valid and
legally binding agreement of the Trust and the other parties to this Indenture,
enforceable in accordance with its terms, have been done, and the Trust proposes
to do all things necessary to make the Notes, when executed by the Trust and
authenticated and delivered pursuant hereto, valid and legally binding
obligations of the Trust as hereinafter provided; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Indenture Terms attached to this Closing Instrument as Exhibit
A (the "Standard Indenture Terms").
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Notes by the Holders thereof, it is mutually covenanted and
agreed by the parties hereto as follows:
ARTICLE 1.........
Section 1.1.......Incorporation by Reference. All terms, provisions and
agreements set forth in the Standard Indenture Terms (except to the extent
expressly modified hereby) are hereby incorporated herein by reference (as if
fully set forth herein). Should any portion of the Standard Indenture Terms
conflict with the terms of this Indenture, the terms of this Indenture shall
prevail. References herein to Articles, Sections or Exhibits shall refer
respectively to the articles, sections or exhibits of the Standard Indenture
Terms, unless otherwise expressly provided.
Section 1.2.......Definitions. "Closing Instrument" means the Closing Instrument
in which this Indenture is included as Part A. All capitalized terms not
otherwise defined in this Indenture shall have the meanings set forth in the
Standard Indenture Terms.
ARTICLE 2.........
Section 2.1.......Agreement to be Bound. Each of the Trust, the Indenture
Trustee, the Registrar, the Paying Agent and the Calculation Agent hereby agrees
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 2.2.......Designation of the Trust and the Notes. The Trust referred to
in this Indenture is the Allstate Life Global Funding Trust specified in this
Closing Instrument. The Notes issued by the Trust and governed by this Indenture
shall be the Notes specified in the Pricing Supplement.
Section 2.3.......Compensation. The Indenture Trustee shall be entitled to
receive the fees specified in the Indenture Trustee Service Fee Schedule, which
is attached as Annex A to this Closing Instrument.
Section 2.4.......Additional Terms. None.
Section 2.5.......Closing Instrument; Execution and Incorporation of Terms. The
parties to this Indenture will enter into this Indenture by executing this
Closing Instrument.
By executing the signature page thereto, the Indenture Trustee
and the Trust hereby agree that this Indenture will constitute a legal, valid
and binding agreement between the Indenture Trustee and the Trust.
All terms relating to the Trust or the Notes not otherwise
included in this Indenture will be as specified in this Closing Instrument or
the Pricing Supplement, as indicated herein.
Section 2.6.......Counterparts. This Indenture, through this Closing 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 one
and the same instrument.
PART B
FUNDING NOTE INDENTURE
This FUNDING NOTE INDENTURE (together with the Standard Funding Note
Indenture Terms (as defined below), the "Funding Note Indenture") is entered
into as of the Original Issue Date specified in the Pricing Supplement attached
to the Series Instrument for the Trust as Annex A (the "Pricing Supplement"),
between Allstate Life Global Funding ("Global Funding") and J.P. Morgan Trust
Company, National Association, as funding note indenture trustee (the "Funding
Note Indenture Trustee").
References herein to "Funding Note Registrar," "Funding Note Paying
Agent" or "Funding Note Calculation Agent" shall have the respective meanings
ascribed to such terms in the Standard Funding Note Indenture Terms, and shall
include the permitted successors and assigns of any such entity from time to
time and any agent of the Funding Note Indenture Trustee acting in any such
capacity pursuant to an appointment in accordance with Section 6.2(h) of the
Standard Funding Note Indenture Terms.
W I T N E S S E T H:
WHEREAS, Global Funding has duly authorized the execution and delivery
of this Funding Note Indenture to provide for the issuance of the funding note
referred to in Section 2.2 below (the "Funding Note");
WHEREAS, all things necessary to make this Funding Note Indenture a
valid and legally binding agreement of Global Funding and the other parties to
this Funding Note Indenture, enforceable in accordance with its terms, have been
done, and Global Funding proposes to do all things necessary to make the Funding
Note, when executed by Global Funding and authenticated and delivered pursuant
hereto, valid and legally binding obligations of Global Funding as hereinafter
provided; and
WHEREAS, the parties hereto desire to incorporate by reference those
certain Standard Funding Note Indenture Terms attached to this Closing
Instrument as Exhibit B (the "Standard Funding Note Indenture Terms").
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Funding Note by the Holder thereof, it is mutually covenanted
and agreed by the parties hereto as follows:
ARTICLE 1.........
Section 1.1.......Incorporation by Reference. All terms, provisions and
agreements set forth in the Standard Funding Note Indenture Terms (except to the
extent expressly modified hereby) are hereby incorporated herein by reference
(as if fully set forth herein). Should any portion of the Standard Funding Note
Indenture Terms conflict with the terms of this Funding Note Indenture, the
terms of this Funding Note Indenture shall prevail. References herein to
Articles, Sections or Exhibits shall refer respectively to the articles,
sections or exhibits of the Standard Funding Note Indenture Terms, unless
otherwise expressly provided.
Section 1.2.......Definitions. "Closing Instrument" means the Closing Instrument
in which this Funding Note Indenture is included as Part B. All capitalized
terms not otherwise defined in this Funding Note Indenture shall have the
meanings set forth in the Standard Funding Note Indenture Terms.
ARTICLE 2.........
Section 2.1.......Agreement to be Bound. Each of Global Funding, the Funding
Note Indenture Trustee, the Funding Note Registrar, the Funding Note Paying
Agent and the Funding Note Calculation Agent hereby agrees 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 Funding Note.
Section 2.2.......Additional Terms. None.
Section 2.3.......Compensation. The Funding Note Indenture Trustee shall be
entitled to receive the fees specified in the Funding Note Indenture Trustee
Service Fee Schedule, which is attached as Annex B to this Closing Instrument.
Section 2.4.......Closing Instrument; Execution and Incorporation of Terms. The
parties to this Funding Note Indenture will enter into this Funding Note
Indenture by executing this Closing Instrument.
By executing the signature page thereto, the Funding Note
Indenture Trustee and Global Funding hereby agree that this Funding Note
Indenture will constitute a legal, valid and binding agreement between the
Funding Note Indenture Trustee and Global Funding.
All terms relating to Global Funding or the Funding Note not
otherwise included in this Funding Note Indenture will be as specified in this
Closing Instrument.
Section 2.5.......Counterparts. This Funding Note Indenture, through this
Closing 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 one and the same instrument.
PART C
ASSIGNMENT OF FUNDING AGREEMENT(S)
TO THE FUNDING NOTE INDENTURE TRUSTEE
With respect to the Funding Note Indenture set forth in Part B of this
Closing Instrument (the "Funding Note Indenture") between Allstate Life Global
Funding ("Global Funding") and the Funding Note Indenture Trustee and in
furtherance of the grant to the Funding Note Indenture Trustee for the benefit
and security of each Holder of the Funding Note, subject to its right to assign
the Funding Agreement(s) to the Allstate Life Global Funding Trust specified in
this Closing Instrument (the "Trust") in accordance with the terms of the
Funding Note and the Coordination Agreement (as defined below) Global Funding
hereby assigns, as of the Original Issue Date specified in the Pricing
Supplement attached to the Series Instrument for the Trust as Annex A, to the
Funding Note Indenture Trustee all of its rights and interests of every nature
as the Owner (as defined in the Funding Agreement(s)) under the Funding
Agreement(s), attached as Exhibit C to this Closing Instrument. Global Funding
hereby notifies Allstate Life Insurance Company ("Allstate Life") of the
assignment of the Funding Agreement(s) to the Funding Note Indenture Trustee
effected hereby and requests that Allstate Life consent to such assignment, and
Allstate Life hereby gives consent to such assignment.
Each of Global Funding, the Funding Note Indenture Trustee and Allstate
Life hereby agrees that, upon giving effect to the assignment described above
(the "Assignment"), the Funding Note Indenture Trustee shall be a party to and
the "Owner" under the Funding Agreement(s) and shall be the assignee of the
rights and interests of Global Funding under the Funding Agreement(s).
The Funding Note Indenture Trustee hereby represents and covenants that
the Funding Agreement(s) will be held by the Funding Note Indenture Trustee at
its registered office in Chicago, Illinois.
Each of Global Funding, the Funding Note Indenture Trustee and Allstate
Life hereby agrees that the Assignment shall not be effective until the
conditions precedent to assignment set forth in Section 5 of the Funding
Agreement(s) (other than the giving by Allstate Life of its consent to this
Assignment) have been complied with by Global Funding, the Funding Note
Indenture Trustee and Allstate Life, as the case may be. Each of Global Funding
and the Funding Note Indenture Trustee hereby undertakes to take all actions
necessary to comply with such conditions, and Allstate Life hereby affirms that
it will promptly change its books and records to reflect the Assignment upon
receipt of documents required under the Funding Agreement(s).
Each of Global Funding, the Funding Note Indenture Trustee and Allstate
Life agrees that concurrently with the assignment of the Funding Agreement(s) by
Global Funding to the Trust, and the surrender and cancellation of the Funding
Note, in accordance with the terms of the Funding Note and the Coordination
Agreement (as defined below) the Assignment will terminate and all rights and
interests of the Funding Note Indenture Trustee as a party to and the "Owner" of
the Funding Agreement(s) and as the assignee of the rights and interests of
Global Funding under the Funding Agreements will be immediately transferred by
the Funding Note Indenture Trustee, and revert, to Global Funding.
The Assignment and this letter shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York,
without regard to conflicts of laws principles, and shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
All capitalized terms not otherwise defined in this Part C of this
Closing Instrument shall have the meanings set forth in the Coordination
Agreement set forth in Part F of the Series Instrument for the Trust (the
"Coordination Agreement") or the Standard Funding Note Indenture Terms attached
as Exhibit B to this Closing Instrument.
PART D
ACKNOWLEDGEMENT OF ASSIGNMENT OF FUNDING AGREEMENT(S)
TO THE FUNDING NOTE INDENTURE TRUSTEE
With respect to the Assignment of Funding Agreement(s) to the Funding
Note Indenture Trustee, set forth in Part C of this Closing Instrument (the
"Assignment"), executed by Allstate Life Global Funding (the "Funding Agreement
Buyer") and the Funding Note Indenture Trustee, and acknowledged by Allstate
Life Insurance Company ("Allstate Life") regarding the assignment of the Funding
Agreement(s), attached as Exhibit C to this Closing Instrument (the "Funding
Agreement(s)"), dated as of the Original Issue Date identified in the Pricing
Supplement attached as Annex A to the Series Instrument for the Allstate Life
Global Funding Trust specified in this Closing Instrument (the "Trust"), and in
order to induce the Trust to purchase the Funding Note, and the Funding Note
Indenture Trustee to accept the Funding Agreement(s) as security for Global
Funding's obligations under the Funding Note, Allstate Life hereby (a)
represents and warrants to the Funding Agreement Buyer and the Funding Note
Indenture Trustee that (i) it has changed its books and records to reflect the
Assignment as required by Section 5 of the Funding Agreement(s), (ii) all other
conditions precedent to the Assignment set forth in Section 5 of the Funding
Agreement(s) have been satisfied and (iii) no person or entity other than the
Funding Agreement Buyer or the Funding Note Indenture Trustee has been, and no
person or entity other than the Funding Note Indenture Trustee is, shown on
Allstate Life's books and records as the owner of or as having any interest in
the Funding Agreement(s), (b) covenants and agrees with the Funding Agreement
Buyer and the Funding Note Indenture Trustee that it will not hereafter (i)
consent to the transfer or assignment of the Funding Agreement(s) to any person
or entity other than the Funding Agreement Buyer or the Funding Note Indenture
Trustee or (ii) change its books or records to show any person or entity other
than the Funding Note Indenture Trustee or the Funding Agreement Buyer, as the
owner of or as having any interest in the Funding Agreement(s), except in each
case pursuant to written instructions from the Funding Agreement Buyer and the
Funding Note Indenture Trustee or their respective successors or as otherwise
provided pursuit to the terms of the Funding Note and the Coordination Agreement
(as defined below) and (c) covenants and agrees with the Funding Agreement Buyer
and the Funding Note Indenture Trustee to (i) consent to any request by the
Funding Note Indenture Trustee to transfer or assign the Funding Agreement(s) to
any person or entity, (ii) change its books or records to reflect any such
transfer or assignment and (iii) take such other action as may be required on
its part to cause the conditions precedent for such a transfer or assignment
contained in Section 5 of the Funding Agreement(s) to be satisfied with respect
to such transfer or assignment.
Allstate Life hereby also represents that Allstate Life did not receive
any notice of any adverse claim prior to (a) its acknowledgment and consent to
the Assignment or (b) taking the actions under Section 5 of the Funding
Agreement(s) to effect the Assignment.
This letter agreement shall be governed by, and shall be construed and
enforced in accordance with, the laws of the State of New York, without regard
to conflicts of laws principles, and shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Coordination Agreement set forth in Part F of the
Series Instrument for the Trust (the "Coordination Agreement").
PART E
TERMINATION OF SECURITY INTEREST AND
TRANSFER OF FUNDING AGREEMENT(S) TO GLOBAL FUNDING
In connection with the assignment of the Funding Agreement(s), attached
as Exhibit C to this Closing Instrument, by Allstate Life Global Funding
("Global Funding") to the Allstate Life Global Funding Trust specified in this
Closing Instrument (the "Trust"), and the surrender and cancellation of the
Funding Note, in accordance with the terms of the Funding Note and the
Coordination Agreement (as defined below), Global Funding hereby certifies, and
each of Global Funding and the Funding Note Indenture Trustee agrees, that the
Security Agreement (as defined in the Funding Note Indenture set forth in Part C
of this Closing Instrument (the "Funding Note Indenture")) in the Funding Note
Collateral (as defined in the Funding Note Indenture) in favor of the Funding
Note Indenture Trustee has terminated and all rights to the Funding Note
Collateral have reverted to Global Funding. The Funding Note Indenture Trustee
hereby transfers, as of the Original Issue Date specified in the Pricing
Supplement attached to the Series Instrument for the Trust as Annex A, to Global
Funding all of its rights and interests of every nature as the Owner (as defined
in the Funding Agreement(s)) under the Funding Agreement(s). Global Funding and
the Funding Note Indenture Trustee hereby notifies Allstate Life Insurance
Company ("Allstate Life") of the termination of the Security Interest and the
transfer of the Funding Agreement(s) to Global Funding effected hereby (the
"Transfer") and request that Allstate Life consent to the Transfer, and Allstate
Life hereby gives consent to the Transfer.
Each of the Funding Note Indenture Trustee, Global Funding and Allstate
Life hereby agrees that, upon giving effect to the Transfer, Global Funding
shall be a party to and the "Owner" under the Funding Agreement(s) and shall be
the transferee of the rights and interests of the Funding Note Indenture Trustee
under the Funding Agreement(s).
Global Funding hereby represents and covenants that the Funding
Agreement(s) will be held, on its behalf, by the Collateral Custodian at its
registered office located in the State of Illinois.
Each of the Funding Note Indenture Trustee, Global Funding and Allstate
Life hereby agrees that the Transfer shall not be effective until the conditions
precedent to transfer set forth in Section 5 of the Funding Agreement(s) (other
than the giving by Allstate Life of its consent to this Transfer) have been
complied with by the Funding Note Indenture Trustee, Global Funding and Allstate
Life, as the case may be. Each of the Funding Note Indenture Trustee and Global
Funding hereby undertakes to take all actions necessary to comply with such
conditions, and Allstate Life hereby affirms that it will promptly change its
books and records to reflect the Transfer upon receipt of documents required
under the Funding Agreement(s).
The Transfer and this letter shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York,
without regard to conflicts of laws principles, and shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Coordination Agreement set forth in Part F of the
Series Instrument for the Trust (the "Coordination Agreement").
PART F
ACKNOWLEDGEMENT OF TERMINATION OF SECURITY INTEREST
AND TRANSFER OF FUNDING AGREEMENT(S)
With respect to the Termination of Security Interest and Transfer of
Funding Agreement(s) to Allstate Life Global Funding ("Global Funding"), set
forth in Part E of this Closing Instrument (the "Transfer"), executed by the
Funding Note Indenture Trustee and Global Funding, and acknowledged by Allstate
Life Insurance Company ("Allstate Life") regarding the termination of the
Security Interest (as defined in the Funding Note Indenture set forth in Part C
of this Closing Instrument (the "Funding Note Indenture")) in the Funding Note
Collateral (as defined in the Funding Note Indenture) in favor of the Funding
Note Indenture Trustee and the transfer by the Funding Note Indenture Trustee to
Global Funding of the Funding Agreement(s), attached as Exhibit C to this
Closing Instrument (the "Funding Agreement(s)"), dated as of the Original Issue
Date identified in the Pricing Supplement attached as Annex A to the Series
Instrument for the Trust, Allstate Life hereby represents and warrants to the
Funding Note Indenture Trustee and Global Funding that (a) it has changed its
books and records to reflect the Transfer as required by Section 5 of the
Funding Agreement(s), (b) all other conditions precedent to the Transfer set
forth in Section 5 of the Funding Agreement(s) have been satisfied and (c) no
person or entity other than Global Funding or the Funding Note Indenture Trustee
has been, and no person or entity other than Global Funding is, shown on
Allstate Life's books and records as the owner of or as having any interest in
the Funding Agreement(s).
Allstate Life hereby also represents that Allstate Life did not receive
any notice of any adverse claim prior to (a) its acknowledgment and consent to
the Transfer or (b) taking the actions under Section 5 of the Funding
Agreement(s) to effect the Transfer.
This letter agreement shall be governed by, and shall be construed and
enforced in accordance with, the laws of the State of New York, without regard
to conflicts of laws principles, and shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Coordination Agreement set forth in Part F of the
Series Instrument for the Trust.
PART G
ASSIGNMENT OF FUNDING AGREEMENT(S) TO THE TRUST
With respect to (a) the Coordination Agreement among Allstate Life
Insurance Company ("Allstate Life"), Allstate Life Global Funding ("Global
Funding"), the Allstate Life Global Funding Trust specified in this Closing
Instrument (the "Trust") and the Indenture Trustee, set forth in Part F of the
Series Instrument for the Trust and (b) the Terms Agreement set forth in Part E
of the Series Instrument for the Trust, Global Funding hereby assigns absolutely
to, and deposits into, the Trust, as of the Original Issue Date specified in the
Pricing Supplement attached to the Series Instrument for the Trust as Annex A,
all of its rights and interests of every nature as the Owner (as defined in the
Funding Agreement(s)) under the Funding Agreement(s), attached as Exhibit C to
this Closing Instrument. Global Funding hereby notifies Allstate Life of the
assignment of the Funding Agreement(s) to the Trust effected hereby and requests
that Allstate Life consent to such assignment, and Allstate Life hereby gives
consent to such assignment.
Each of Global Funding, the Trust and Allstate Life hereby agrees that,
upon giving effect to the assignment described above (the "Assignment"), the
Trust shall be a party to and the "Owner" under the Funding Agreement(s) and
shall be the assignee of the rights and interests of Global Funding under the
Funding Agreement(s).
The Trust hereby represents and covenants that the Funding Agreement(s)
will be held, on its behalf, by the Collateral Custodian at its registered
office located in the State of Illinois.
Each of Global Funding, the Trust and Allstate Life hereby agrees that
the Assignment shall not be effective until the conditions precedent to transfer
set forth in Section 5 of the Funding Agreement(s) (other than the giving by
Allstate Life of its consent to this Assignment) have been complied with by
Global Funding, the Trust and Allstate Life, as the case may be. Each of Global
Funding and the Trust hereby undertakes to take all actions necessary to comply
with such conditions, and Allstate Life hereby affirms that it will promptly
change its books and records to reflect the Assignment upon receipt of documents
required under the Funding Agreement(s).
The Assignment and this letter shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York,
without regard to conflicts of laws principles, and shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Coordination Agreement set forth in Part F of the
Series Instrument for the Trust.
PART H
ACKNOWLEDGEMENT OF ASSIGNMENT OF FUNDING AGREEMENT(S)
TO THE TRUST
With respect to the Assignment of Funding Agreement(s) to the Trust,
set forth in Part G of this Closing Instrument (the "Assignment"), executed by
Allstate Life Global Funding ("Global Funding") and the Allstate Life Global
Funding Trust specified in this Closing Instrument (the "Funding Agreement
Buyer"), and acknowledged by Allstate Life Insurance Company ("Allstate Life")
regarding the assignment of the Funding Agreement(s), attached as Exhibit C to
this Closing Instrument (the "Funding Agreement(s)"), dated as of the Original
Issue Date identified in the Pricing Supplement attached as Annex A to the
Series Instrument for the Trust, and in order to induce the Funding Agreement
Buyer to purchase the Funding Agreement(s), Allstate Life hereby (a) represents
and warrants to Global Funding and the Funding Agreement Buyer that (i) it has
changed its books and records to reflect the Assignment as required by Section 5
of the Funding Agreement(s), (ii) all other conditions precedent to the
Assignment set forth in Section 5 of the Funding Agreement(s) have been
satisfied and (iii) no person or entity other than the Funding Agreement Buyer,
the Funding Note Indenture Trustee or Global Funding has been, and no person or
entity other than the Funding Agreement Buyer is, shown on Allstate Life's books
and records as the owner of or as having any interest in the Funding
Agreement(s) and (b) covenants and agrees with Global Funding and the Funding
Agreement Buyer that it will not hereafter (i) consent to the transfer or
assignment of the Funding Agreement(s) to any person or entity other than the
Funding Agreement Buyer and the Indenture Trustee or (ii) change its books or
records to show any person or entity other than the Indenture Trustee as the
owner of or as having any interest in the Funding Agreement(s), except in each
case pursuant to written instructions from the Funding Agreement Buyer and the
Indenture Trustee or its successors.
Allstate Life hereby also represents that Allstate Life did not receive
any notice of any adverse claim prior to (a) its acknowledgment and consent to
the Assignment or (b) taking the actions under Section 5 of the Funding
Agreement(s) to effect the Assignment.
This letter agreement shall be governed by, and shall be construed and
enforced in accordance with, the laws of the State of New York, without regard
to conflicts of laws principles, and shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Coordination Agreement set forth in Part F of the
Series Instrument for the Trust.
PART I
ASSIGNMENT OF FUNDING AGREEMENT(S)
TO THE INDENTURE TRUSTEE
With respect to (a) the Indenture set forth in Part A of this Closing
Instrument (the "Indenture") between the Allstate Life Global Funding Trust
specified in this Closing Instrument (the "Trust") and the Indenture Trustee and
(b) the Terms Agreement set forth in Part E of the Series Instrument for the
Trust and in furtherance of the grant to the Indenture Trustee for the benefit
and security of the holders of the Notes, the Trust hereby assigns, as of the
Original Issue Date specified in the Pricing Supplement attached to the Series
Instrument for the Trust as Annex A, to the Indenture Trustee all of its rights
and interests of every nature as the Owner (as defined in the Funding
Agreement(s)) under the Funding Agreement(s), attached as Exhibit C to this
Closing Instrument. The Trust hereby notifies Allstate Life Insurance Company
("Allstate Life") of the assignment of the Funding Agreement(s) to the Indenture
Trustee effected hereby and requests that Allstate Life consent to such
assignment, and Allstate Life hereby gives consent to such assignment.
Each of the Trust, the Indenture Trustee and Allstate Life hereby
agrees that, upon giving effect to the assignment described above (the
"Assignment"), the Indenture Trustee shall be a party to and the "Owner" under
the Funding Agreement(s) and shall be the assignee of the rights and interests
of the Trust under the Funding Agreement(s).
The Indenture Trustee hereby represents and covenants that the Funding
Agreement(s) will be held by the Collateral Custodian at its registered office
located in the State of Illinois.
Each of the Trust, the Indenture Trustee and Allstate Life hereby
agrees that the Assignment shall not be effective until the conditions precedent
to assignment set forth in Section 5 of the Funding Agreement(s) (other than the
giving by Allstate Life of its consent to this Assignment) have been complied
with by the Trust, the Indenture Trustee and Allstate Life, as the case may be.
Each of the Trust and the Indenture Trustee hereby undertakes to take all
actions necessary to comply with such conditions, and Allstate Life hereby
affirms that it will promptly change its books and records to reflect the
Assignment upon receipt of documents required under the Funding Agreement(s).
The Assignment and this letter shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York,
without regard to conflicts of laws principles, and shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Coordination Agreement set forth in Part F of the
Series Instrument for the Trust.
PART J
ACKNOWLEDGEMENT OF ASSIGNMENT OF FUNDING AGREEMENT(S)
TO THE INDENTURE TRUSTEE
With respect to the Assignment of Funding Agreement(s) to the Indenture
Trustee, set forth in Part I of this Closing Instrument (the "Assignment"),
executed by the Allstate Life Global Funding Trust specified in this Closing
Instrument (the "Funding Agreement Buyer") and the Indenture Trustee, and
acknowledged by Allstate Life Insurance Company ("Allstate Life") regarding the
assignment of the Funding Agreement(s), attached as Exhibit C to this Closing
Instrument (the "Funding Agreement(s)"), dated as of the Original Issue Date
identified in the Pricing Supplement attached as Annex A to the Series
Instrument for the Trust, and in order to induce the Funding Agreement Buyer to
purchase the Funding Agreement(s), and the Indenture Trustee to accept the
Funding Agreement(s) as security for the Funding Agreement Buyer's obligations
under the Notes, Allstate Life hereby (a) represents and warrants to the Funding
Agreement Buyer and the Indenture Trustee that (i) it has changed its books and
records to reflect the Assignment as required by Section 5 of the Funding
Agreement(s), (ii) all other conditions precedent to the Assignment set forth in
Section 5 of the Funding Agreement(s) have been satisfied and (iii) no person or
entity other than the Funding Agreement Buyer, Allstate Life Global Funding, the
Funding Note Indenture Trustee or the Indenture Trustee has been, and no person
or entity other than the Indenture Trustee is, shown on Allstate Life's books
and records as the owner of or as having any interest in the Funding
Agreement(s), (b) covenants and agrees with the Funding Agreement Buyer and the
Indenture Trustee that it will not hereafter (i) consent to the transfer or
assignment of the Funding Agreement(s) to any person or entity other than the
Funding Agreement Buyer and the Indenture Trustee or (ii) change its books or
records to show any person or entity other than the Indenture Trustee as the
owner of or as having any interest in the Funding Agreement(s), except in each
case pursuant to written instructions from the Funding Agreement Buyer and the
Indenture Trustee or its successors and (c) covenants and agrees with the
Funding Agreement Buyer and the Indenture Trustee to (i) consent to any request
by the Indenture Trustee to transfer or assign the Funding Agreement(s) to any
person or entity, (ii) change its books or records to reflect any such transfer
or assignment and (iii) take such other action as may be required on its part to
cause the conditions precedent for such a transfer or assignment contained in
Section 5 of the Funding Agreement(s) to be satisfied with respect to such
transfer or assignment.
Allstate Life hereby also represents that Allstate Life did not receive
any notice of any adverse claim prior to (a) its acknowledgment and consent to
the Assignment or (b) taking the actions under Section 5 of the Funding
Agreement(s) to effect the Assignment.
This letter agreement shall be governed by, and shall be construed and
enforced in accordance with, the laws of the State of New York, without regard
to conflicts of laws principles, and shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Coordination Agreement set forth in Part F of the
Series Instrument for the Trust.
PART K
CERTIFICATE REGARDING CUSTODY OF FUNDING AGREEMENT(S)
Reference is hereby made to (i) the Indenture set forth in Part A of
this Closing Instrument and (ii) the Coordination Agreement set forth in Part F
of the Series Instrument for the Trust (the "Coordination Agreement").
Capitalized terms used in this Certificate and not otherwise defined have the
meanings ascribed in the Coordination Agreement.
In connection with (i) Funding Agreement(s) attached to this Closing
Instrument as Exhibit C (the "Funding Agreement(s)"), issued by Allstate Life
Insurance Company ("Allstate Life") and (ii) the Assignment of Funding
Agreement(s) to the Indenture Trustee set forth in Part I of this Closing
Instrument, the Collateral Custodian hereby represents that:
(1) it is holding the Funding Agreement(s) in custody and the Funding
Agreement(s) are in its possession at its registered office located in the State
of Illinois; and
(2) it has no claim against Global Funding or the Trust with respect to
the Funding Agreement(s) and, to the best of its knowledge, all liens, if any,
on the Funding Agreement(s) in favor of Global Funding or the Trust have been
satisfied.
PART L
INSTRUCTIONS OF THE TRUST
Reference is hereby made to the Indenture set forth in Part A of this
Closing Instrument (the "Indenture") between the Trust and the Indenture
Trustee.
The Trust herewith delivers to the Indenture Trustee, or has caused to
be delivered to the Indenture Trustee, pursuant to the Indenture, each Note
Certificate representing the Notes (each, a "Note Certificate"), bearing the
CUSIP No. identified in the Pricing Supplement attached as Annex A to the Series
Instrument for the Trust (the "Pricing Supplement"), having an initial Principal
Amount identified in the Pricing Supplement.
The Trust hereby instructs the Indenture Trustee to (i) authenticate,
or cause to be authenticated, each Note Certificate, (ii) register, or cause to
be registered, the Notes represented by each Note Certificate in the name of the
Depositary identified in each Note Certificate (the "Depositary"), (iii) accept
the deposit of each Note Certificate and hold, or cause to be held, in safe
custody each Note Certificate as custodian or common depositary for the
Depositary, and (iv) take all such other reasonable action as may be required to
give effect to the foregoing.
The Trust hereby further directs the Indenture Trustee to deposit, or
cause to be deposited, the Net Proceeds to the Trust (as defined in the Pricing
Supplement) in respect of the Notes to:
Harris Trust & Savings
Illinois ABA # 0710-0028-8
Credit Account: Allstate Life Insurance Company
.................. Indexed/Matched General Account
Account # 168-123-8
For the Benefit of: RMTN # FA0041074
or such other account as may be specified to the Indenture Trustee by or on
behalf of the Trust.
PART M
ACKNOWLEDGEMENT OF INDENTURE TRUSTEE
CONCERNING THE NOTE CERTIFICATE
Reference is hereby made to the Indenture set forth in Part A of this
Closing Agreement. The Indenture Trustee certifies, as of the Original Issue
Date identified in the Pricing Supplement attached as Annex A to the Series
Instrument for the Trust (the "Pricing Supplement"), the following:
1. it has received each Note Certificate; and
2. (a) it has duly authenticated, or caused to be authenticated, each Note
Certificate (b) if applicable, registered, or cause to be registered, the Notes
represented by each Note Certificate in the name of the Depositary, (c) it has
accepted the deposit and will hold, or cause to be held, in safe custody each
Note Certificate as custodian or common depositary for the Depositary and (d) it
will take all such other reasonable action as may be required to give effect to
the foregoing.
In connection with the above issue, it also hereby confirms that, by
order of the Agent(s) identified in the Pricing Supplement, it has made the
following irrevocable payment instruction:
Payment Date: Original Issue Date identified in the Pricing
Supplement
Amount: Net Proceeds to the Trust identified in the
Pricing Supplement
Payment to: Account specified in Part L of this Closing
Instrument
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Standard Indenture Terms attached as Exhibit A to this
Closing Instrument or in Part L of this Closing Instrument.
PART N
CERTIFICATE OF INDENTURE TRUSTEE CONCERNING
THE FUNDING AGREEMENT(S)
Reference is hereby made to the Indenture set forth in Part A of this
Closing Instrument (the "Indenture") between the Trust and the Indenture
Trustee.
In connection with (i) the Funding Agreement(s) attached as Exhibit C
to this Closing Instrument (the "Funding Agreement(s)") and (ii) the Assignment
of Funding Agreement(s) to the Indenture Trustee set forth in Part I of this
Closing Instrument, the Indenture Trustee hereby represents that the Collateral
Custodian has received delivery of the Funding Agreement(s) and is holding such
Funding Agreement(s) for the benefit and security of the holders of the Notes
specified in the Pricing Supplement attached as Annex A to the Series Instrument
for the Trust and that the Funding Agreement(s) is/are in the possession of the
Collateral Custodian at its registered office located in the State of Illinois.
PART O
CERTIFICATE
OF GLOBAL FUNDING
PURSUANT TO SECTION 6(C)
OF THE DISTRIBUTION AGREEMENT
Allstate Life Global Funding, a statutory trust organized under the
laws of the State of Delaware ("Global Funding"), does hereby certify to each
Agent identified in the Pricing Supplement attached as Annex A to the Series
Instrument for the Allstate Life Global Funding Trust specified in this Closing
Instrument (the "Trust") pursuant to Section 6(c) of the Distribution Agreement
attached as Exhibit E to the Series Instrument for the Trust (the "Distribution
Agreement") that, as of the Original Issue Date (as specified in the Pricing
Supplement attached to the Series Instrument for the Trust as Annex A, the
"Original Issue Date"):
1. the representations and warranties of Global Funding and, if applicable, the
Trust in the Distribution Agreement are true and correct on and as of the
Original Issue Date and Global Funding and, if applicable, the Trust have
complied with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Original Issue Date;
2. 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
3. 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.
All capitalized terms not otherwise defined in this Part O of this Closing
Instrument shall have the meanings set forth in the Distribution Agreement.
PART P
OFFICER'S CERTIFICATE
OF ALLSTATE LIFE INSURANCE COMPANY
PURSUANT TO SECTION 6(D)
OF THE DISTRIBUTION AGREEMENT
The signatory identified in Part X of this Closing Instrument (the
"Officer"), a duly elected officer of Allstate Life Insurance Company, an
Illinois insurance company ("Allstate Life"), does hereby certify to each Agent
identified in the Pricing Supplement attached as Annex A to the Series
Instrument for the Allstate Life Global Funding Trust specified in this Closing
Instrument (the "Trust"), in such capacity and on behalf of Allstate Life,
pursuant to Section 6(d) of the Distribution Agreement attached as Exhibit E to
the Series Instrument for the Trust (the "Distribution Agreement") that, to the
knowledge of the Officer based upon reasonable investigation, as of the Original
Issue Date specified in the Pricing Supplement attached to the Series Instrument
for the Trust as Annex A:
1. no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to Allstate Life's knowledge, threatened;
2. 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
3. nothing has come to the attention of Allstate Life that would cause it
to believe that the priority status of the Funding Agreement(s) 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 to the
Distribution Agreement.
All capitalized terms not otherwise defined in this Part P of this Closing
Instrument shall have the meanings set forth in the Distribution Agreement.
PART Q
SECRETARY'S CERTIFICATE OF
ALLSTATE LIFE INSURANCE COMPANY
The signatory identified in Part X of this Closing Instrument, the duly
elected Secretary of Allstate Life Insurance Company, an Illinois insurance
company ("Allstate Life"), does hereby certify as of the Original Issue Date (as
specified in the Pricing Supplement attached to the Series Instrument for the
Trust as Annex A, the "Original Issue Date") that:
1. Attached hereto as Annex A is a true, complete and correct copy of the
Articles of Amendment to the Articles of Incorporation of Allstate Life as
amended to date and as in full force and effect on the Original Issue Date;
since December 29, 1999, no action has been taken by Allstate Life or any
officers, directors or shareholders of Allstate Life to effect or authorize any
amendment thereto;
2. Attached hereto as Annex B is a true, complete and correct copy of the
By-Laws of Allstate Life as amended to the Original Issue Date and as in full
force and effect on the Original Issue Date;
3. Attached hereto as Annex C is a true, complete and correct copy of the
resolutions of the Board of Directors of Allstate Life duly adopted on November
20, 2003 and such resolutions have not been amended, modified, annulled or
revoked, and are in full force and effect on the Original Issue Date; and
4. Each of the following individuals has been duly elected or appointed to the
position of Allstate Life shown opposite each of their names along with a true
specimen of each of their respective signatures:
NAME TITLE SIGNATURE
Casey J. Sylla President /s/ Casey J. Sylla
Michael J. Velotta Senior Vice President, /s/ Michael J. Velotta
General Counsel and Secretary
Sarah R. Donahue Assistant Vice President /s/ Sarah R. Donahue
- ------------------------------------------------------------------------------
ANNEX A TO PART Q
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
ALLSTATE LIFE INSURANCE COMPANY
ARTICLE I
(a) The name of the company shall be ALLSTATE LIFE INSURANCE COMPANY.
(b) The principal office of the company shall be located in the township of
Northfield, County of Cook, in the State of Illinois.
(c) The period of duration of the company shall be perpetual.
ARTICLE II
The objects and purposes of the company shall be to make, write and issue
the following classes and kinds of insurance:
(a) Life: Insurance on the lives of persons and every insurance appertaining
thereto or connected therewith and granting, purchasing or disposing of
annuities. Policies of life or endowment insurance or annuity contracts or
contracts supplemental thereto which contain provisions for additional benefits
in case of death by accidental means and provisions operating to safeguard such
policies or contracts against lapse or to give a special surrender value, or
special benefit, or an annuity, in the event that the insured or annuitant shall
become totally and permanently disabled as defined by the policy or contract,
shall be deemed to be policies of life or endowment insurance or annuity
contracts within the intent of this clause.
(b) Accident and Health: Insurance against bodily injury, disablement or death
by accident and against disablement resulting from sickness or old age and every
insurance appertaining thereto.
(c) Legal Expense: Insurance which involves the assumption of a contractual
obligation to reimburse the beneficiary against or pay on behalf of the
beneficiary, all or a portion of his fees, costs or expenses related to or
arising out of services performed by or under the supervision of an attorney
licensed to practice in the jurisdiction wherein the services are performed,
regardless of whether the payment is made by the beneficiary individually or by
a third person for them, but does not include the provision of or reimbursement
for legal services incidental to other insurance coverages.
ARTICLE III
(a) The number of Directors shall be as provided in the By-Laws, but shall not
be less than three, nor more than twenty-one. The Directors shall be elected at
each annual meeting of the shareholders for a term of one year. Vacancies in the
Board of Directors shall be filled by vote of the shareholders.
(b) The corporate powers of the company shall be vested in the Board of
Directors, who shall have the power to do any and all acts the company may do
under the law and not otherwise to be performed by the shareholders, and shall
have the power to adopt By-Laws not inconsistent with law for the government and
regulation of the business.
ARTICLE IV
The amount of authorized capital of the company shall be three hundred five
million four hundred two thousand six hundred and no/100 Dollars ($305,402,600),
divided into twenty three thousand eight hundred (23,800) shares of common stock
of the par value of two hundred twenty seven and no/100 dollars ($227.00) per
share, and three million (3,000,000) shares of non-voting preferred stock of the
par value of one hundred and no/100 dollars ($100.00) per share.
Preferred stock may be issued, from time to time and as permitted by law,
in one or more series and with such designation for each such series as shall be
stated in the resolution of the Board of Directors authorizing such series. The
Board of Directors shall fix and determine the relative rights and preferences
of each such series, and shall establish the number of shares to be included in
each such series; provided, however, that in no event may any such series of
preferred stock be issued subject to a right or preference which grants to the
holder thereof any voting rights in the affairs of the Company or permits
conversion of such preferred stock to common stock of the Company; and provided,
further, that the aggregate par value of all such series of preferred stock
issued and outstanding shall not exceed Three Hundred Million Dollars
($300,000,000).
ARTICLE V
The designation of the general officers shall be Chairman of the Board,
President, two or more Vice Presidents, Treasurer and Secretary.
ARTICLE VI
The fiscal year of the company shall commence on the first day of January
and terminate on the 31st day of December of each year.
ARTICLE VII
The company may indemnify any agent as permitted by the Business
Corporation Act of Illinois. The company shall have the power to purchase and
maintain insurance on behalf of any agent against any liability asserted against
and incurred by such agent or arising out of such status as an agent, whether or
not the corporation would have the power to indemnify such agent against such
liability. The company shall also have the power to purchase and maintain
insurance to indemnify the company for any obligation which it may incur as a
result of such indemnification of an agent.
Any indemnification provided to an agent (a) shall not be deemed exclusive
of any other rights to which such agent may be entitled by law or under any
by-law, agreement, vote of shareholders or disinterested Directors or otherwise,
and (b) shall inure to the benefit of the legal representative of such agent or
the estate of such agent, whether such representatives are court-appointed or
otherwise designated, and to the benefit of the heirs of such agent.
As used in this Article, "agent" shall mean any person who is or was
(i) a director, officer or employee of the company and/or any subsidiary,
(ii) a trustee or a fiduciary under any employee pension, profit sharing,
welfare or similar plan or trust of the company and/or any subsidiary, or
(iii)serving at the request of the company as a director, officer and/or
employee of or in a similar capacity in another corporation, partnership,
joint venture, trust or other enterprise (which shall, for the purpose of
this Article be deemed to include not-for-profit entities of any type),
whether acting in such capacity or in any other capacity including, without
limitation, as a trustee or fiduciary under any employee pension, profit
sharing, welfare or similar plan.
ARTICLE VIII
The Company shall be bound by all the terms and provisions of the Illinois
Insurance Code applicable to similar companies organized or incorporated
thereunder.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
-----------------------------------------------------------
Vice President, Secretary and General Counsel
Attest:
Assistant Secretary
SEAL
Approved this day of
-------------
, ____
- ---------------------------------------------------------------------
Director of Insurance
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
ALLSTATE LIFE INSURANCE COMPANY
ARTICLE I
(a) The name of the company shall be ALLSTATE LIFE INSURANCE COMPANY.
(b) The principal office of the company shall be located in the township of
Northfield, County of Cook, in the State of Illinois.
(c) The period of duration of the company shall be perpetual.
ARTICLE II
The objects and purposes of the company shall be to make, write and issue
the following classes and kinds of insurance:
(a) Life: Insurance on the lives of persons and every insurance appertaining
thereto or connected therewith and granting, purchasing or disposing of
annuities. Policies of life or endowment insurance or annuity contracts or
contracts supplemental thereto which contain provisions for additional benefits
in case of death by accidental means and provisions operating to safeguard such
policies or contracts against lapse or to give a special surrender value, or
special benefit, or an annuity, in the event that the insured or annuitant shall
become totally and permanently disabled as defined by the policy or contract,
shall be deemed to be policies of life or endowment insurance or annuity
contracts within the intent of this clause.
(b) Accident and Health: Insurance against bodily injury, disablement or death
by accident and against disablement resulting from sickness or old age and every
insurance appertaining thereto.
(c) Legal Expense: Insurance which involves the assumption of a contractual
obligation to reimburse the beneficiary against or pay on behalf of the
beneficiary, all or a portion of his fees, costs or expenses related to or
arising out of services performed by or under the supervision of an attorney
licensed to practice in the jurisdiction wherein the services are performed,
regardless of whether the payment is made by the beneficiary individually or by
a third person for them, but does not include the provision of or reimbursement
for legal services incidental to other insurance coverages.
ARTICLE III
(a) The number of Directors shall be as provided in the By-Laws, but shall not
be less than three, nor more than twenty-one. The Directors shall be elected at
each annual meeting of the shareholders for a term of one year. Vacancies in the
Board of Directors shall be filled by vote of the shareholders.
(b) The corporate powers of the company shall be vested in the Board of
Directors, who shall have the power to do any and all acts the company may do
under the law and not otherwise to be performed by the shareholders, and shall
have the power to adopt By-Laws not inconsistent with law for the government and
regulation of the business.
ARTICLE IV
The amount of authorized capital of the company shall be two hundred four
million two hundred eighty thousand and no/100 dollars ($204,280,000), divided
into twenty-one thousand four hundred (21,400) shares of common stock of the par
value of two hundred and no/100 dollars ($200.00) per share, and two million
(2,000,000) shares of non-voting preferred stock of the par value of one hundred
and no/l00 dollars ($100.00) per share.
Preferred stock may be issued, from time to time and as permitted by law,
in one or more series and with such designation for each such series as shall be
stated in the resolution of the Board of Directors authorizing such series. The
Board of Directors shall fix and determine the relative rights and preferences
of each such series, and shall establish the number of shares to be included in
each such series; provided, however, that in no event may any such series of
preferred stock be issued subject to a right or preference which grants to the
holder thereof any voting rights in the affairs of the Company or permits
conversion of such preferred stock to common stock of the Company; and provided,
further, that the aggregate par value of all such series of preferred stock
issued and outstanding shall not exceed Two Hundred Million Dollars
($200,000,000).
ARTICLE V
The designation of the general officers shall be Chairman of the Board,
President, two or more Vice Presidents, Treasurer and Secretary.
ARTICLE VI
The fiscal year of the company shall commence on the first day of January
and terminate on the 31st day of December of each year.
ARTICLE VII
The company may indemnify any agent as permitted by the Business
Corporation Act of Illinois. The company shall have the power to purchase and
maintain insurance on behalf of any agent against any liability asserted against
and incurred by such agent or arising out of such status as an agent, whether or
not the corporation would have the power to indemnify such agent against such
liability. The company shall also have the power to purchase and maintain
insurance to indemnify the company for any obligation which it may incur as a
result of such indemnification of an agent.
Any indemnification provided to an agent (a) shall not be deemed exclusive
of any other rights to which such agent may be entitled by law or under any
by-law, agreement, vote of shareholders or disinterested Directors or otherwise,
and (b) shall inure to the benefit of the legal representative of such agent or
the estate of such agent, whether such representatives are court-appointed or
otherwise designated, and to the benefit of the heirs of such agent.
As used in this Article, "agent" shall mean any person who is or was
(i) a director, officer or employee of the company and/or any subsidiary,
(ii) a trustee or a fiduciary under any employee pension, profit sharing,
welfare or similar plan or trust of the company and/or any subsidiary, or
(iii)serving at the request of the company as a director, officer and/or
employee of or in a similar capacity in another corporation, partnership,
joint venture, trust or other enterprise (which shall, for the purpose of
this Article be deemed to include not-for-profit entities of any type),
whether acting in such capacity or in any other capacity including, without
limitation, as a trustee or fiduciary under any employee pension, profit
sharing, welfare or similar plan.
ARTICLE VIII
The Company shall be bound by all the terms and provisions of the
Illinois Insurance Code applicable to similar companies organized or
incorporated hereunder.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
-----------------------------------------------------------
President
Attest:
Secretary
SEAL
Approved this day of
-------------
, ____
- --------------------------------------------------------------------------
Mark Boozell, Director of Insurance
By:
------------------------------------------
ANNEX B TO PART Q
ALLSTATE LIFE INSURANCE COMPANY
BY-LAWS
AMENDED and RESTATED
JUNE 28, 2000
AMENDED AND RESTATED
BY-LAWS OF
ALLSTATE LIFE INSURANCE COMPANY
ARTICLE I
Directors
Section 1. The property, business and affairs of the Company shall be managed
and controlled by a Board of Directors composed of not less than twelve nor more
than seventeen members. The number of directors may be fixed or changed from
time to time, within the minimum and maximum, by the Board of Directors without
further amendment to these By-Laws. The Directors shall be elected at each
annual meeting of the shareholders of the Company for a term of one year. Each
Director shall hold office for the term for which he or she was elected and
until the election and qualification of his or her successor.
Section 2. In the event of a vacancy occurring in the Board of Directors, the
shareholders of the Company shall, by a majority vote at a special meeting
called for that purpose or at the next annual meeting of shareholders, elect a
Director to fill such vacancy, who shall hold office during the unexpired
portion of the term of the Director whose place he or she was elected to fill.
Section 3. The Board of Directors may declare dividends payable out of the
surplus funds of the Company when warranted by law.
Section 4. The Board of Directors shall elect all the general officers of the
Company hereafter provided and may prescribe additional descriptive titles for
any such officers.
The Board of Directors may from time to time appoint an Actuary, Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers, Assistant
Actuaries and other officers of the Company. The Board of Directors may
prescribe the duties and fix the compensation of any elected or appointed
officer and may require from any officer security for his or her faithful
service and for his or her proper accounting for monies and property from time
to time in his or her possession.
All officers of the Company shall hold office at the will of the Board of
Directors.
Section 5. The Board of Directors shall designate in what bank or banks the
funds of the Company shall be deposited and the person or persons who may sign,
on behalf of the Company, checks or drafts against such deposits. Such
designations may also be made by such person or persons as shall be appointed
for that purpose by the Board of Directors.
Section 6. The Board of Directors shall have the power to make rules and
regulations not inconsistent with the laws of this State, the Articles of
Incorporation of the Company, or these By-Laws, for the conduct of its own
meetings and the management of the affairs of the Company.
Section 7. The Board of Directors may authorize payment of compensation to
Directors for their services as Directors, and fix the amount thereof.
Section 8. The Board of Directors shall have the power to appoint committees and
to grant them powers not inconsistent with the laws of this State, the Articles
of Incorporation of the Company, or these By-Laws.
Section 9. An annual meeting of the Board of Directors shall be held each year
immediately after the adjournment of the annual meeting of the shareholders.
Other meetings of the Board of Directors may be held at such time, as the Board
of Directors may determine or when called by the President or by a majority of
the Board of Directors.
Notice of every meeting of the Directors other than the stated annual
meeting shall be given by letter or telegraph sent to each Director at his
business address, not less than three days prior to the meeting. Any Director
may, in writing, waive notice of any meeting, and the presence of a Director at
any meeting shall be considered a waiver by him or her of notice of such
meeting, except as otherwise provided by law.
Any action required or permitted to be taken at any meeting of the Board of
Directors, or of any Committee thereof, may be taken without a meeting if all
members of the Board or such Committee, as the case may be, consent thereto in
writing. Such writing or writings shall be filed with the minutes of proceedings
of the Board or such Committee.
Section 10. A majority of the whole Board of Directors shall constitute a quorum
for the transaction of business, but if at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of those present may
adjourn the meeting, from time to time, until a quorum shall have been obtained.
ARTICLE II
Officers
Section 1. The general officers of the Company shall consist of a Chairman of
the Board, President, two or more Vice Presidents, a Secretary, a Treasurer, and
a Controller, who shall be elected annually by the Board of Directors at the
stated annual meeting held upon adjournment of the annual shareholders' meeting,
and if not elected at such meeting, such officers may be elected at any meeting
of the Board of Directors held thereafter. Such officers shall be elected by a
majority of the directors, and shall hold office for one year and until their
respective successors are elected and qualified, subject to removal at will by
the Board of Directors. In case of a vacancy in any of the general offices of
the Company, such vacancy may be filled by the vote of a majority of the Board
of Directors. Any two of the aforesaid offices may be filled by the same person,
with the exception of the offices of President and Vice President, or President
and Secretary.
Section 2. The Chairman of the Board shall preside at all meetings of the
shareholders and of the Board of Directors. He shall be the Chief Executive
Officer of the Company, shall have general and active management of the business
of the Company subject to the supervision of the Board of Directors, and shall
see that all orders and resolutions of the Board of Directors are carried into
effect. He shall also perform such other duties as shall be prescribed from time
to time by the Board of Directors.
Section 3. The President shall have general administrative control and
supervision over the operations of the company subject to the supervision of the
Chairman Board. He shall, in the absence or inability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of the Board.
He shall execute bonds, mortgages and other contracts requiring a seal, under
the seal of the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the corporation. He shall also perform such other duties as may
properly belong to his office or as shall be prescribed from time to time by the
Chairman of the Board or by the Board of Directors.
Section 4. Each Vice President shall have such powers and shall perform such
duties as may be assigned to him or her by the Chairman of the Board, or by the
President or by the Board of Directors. In the absence or in the case of the
inability of the Chairman of the Board and the President to act, the Board of
Directors may designate which one of the Vice Presidents shall be the acting
Chief Executive Officer of the Company during such absence or inability,
whereupon such acting Chief Executive Officer shall have all the powers and
perform all of the duties incident to the office of the Chairman during the
absence or inability of the Chairman and President to act.
Section 5. The Secretary shall keep the minutes of all meetings of the Board of
Directors, and of all meetings of the shareholders, in books provided by the
Company for such purpose. He or she shall attend to the giving of all notices of
meetings of the Board of Directors or shareholders. He or she may sign with the
Chairman of the Board, the President or a Vice President in the name of the
Company when authorized by the Board of Directors so to do, all contracts and
other instruments requiring the seal of the Company and may affix the seal
thereto. He or she shall, in general, perform all of the duties which are
incident to the office of Secretary and such other duties as the Board of
Directors or Chairman of the Board may from time to time prescribe.
Section 6. The Treasurer shall deposit the monies of the Company in the
Company's name in depositories designated by the Board of Directors, or by such
person or persons as shall be appointed for that purpose by the Board of
Directors. He or she shall, in general, perform all of the duties which are
incident to the office of Treasurer and such other duties as the Board of
Directors or Chairman of the Board may from time to time prescribe. The Board of
Directors may, in its discretion, require him or her to give bond for the
faithful discharge of his or her duties.
Section 7. The Controller shall have such powers and perform such duties as the
Board of Directors or the Chairman of the Board may from time to time prescribe.
ARTICLE III
Shareholders' Meeting
Section 1. The annual meeting of the shareholders shall be held at the principal
office of the Company in Northfield Township, Cook County, Illinois, or at such
other location within or without the State of Illinois as may be set forth in
the notice of call, on the third Tuesday in February of each year, except when
such day shall be a legal holiday, in which case the meeting shall be held on
the next succeeding business day. The Chairman of the Board or the Board of
Directors may at any time call a special meeting of the shareholders, and the
Chairman of the Board shall call such special meeting when requested, in
writing, so to do by the owners of not less than one-fifth of the outstanding
share of the Company.
Section 2. Notice of every meeting of the shareholders shall be given by mailing
notice thereof at least ten days before such meeting to all the shareholders at
their respective post office addresses last furnished by them, respectively, to
the Company. The shareholders may waive notice of any such meeting, in writing,
and the presence of a shareholder, either in person or by proxy, shall be
considered a waiver of notice, except as otherwise provided by law.
Section 3. The presence at such meeting in person or by proxy of shareholders of
the Company representing at least fifty-one percent of the then outstanding
shares of the Company shall be necessary to constitute a quorum for the purpose
of transacting business, except as otherwise provided by law, but a smaller
number may adjourn the meeting from time to time until a quorum shall be
obtained. Each shareholder shall be entitled to cast one vote in person or by
proxy for each share of stock of the Company held and of record in his or her
name on the books of the Company.
Section 4. A shareholder may vote at any meeting of the shareholders either in
person or by proxy duly constituted in writing. No special form of proxy shall
be necessary.
ARTICLE IV
Shares
Section 1. Share certificates shall be signed by the President or a Vice
President and countersigned by the Secretary, shall be sealed with the corporate
seal of the Company, and shall be registered upon the Share Register of the
Company. Each certificate shall express on its face the name of the Company, the
number of the certificate, the number of shares for which it is issued, the name
of the person to whom it is issued, the par value of each of said shares, and
the amount actually received by the Company for each share represented by said
certificate.
Section 2. Transfer of shares of the Company shall be made only on the books of
the Company by the holder thereof in person or by his or her attorney duly
authorized, in writing, and upon the surrender of the certificates or
certificate for the share transfer, upon which surrender and transfer new
certificates will be issued. The Board of Directors may, by resolution, close
the share transfer books of the Company for a period not exceeding ten days
before the holding of any annual or special meeting of the shareholders. The
Board of Directors may, by resolution, also close the transfer books of the
Company for a period not exceeding ten days before the payment of any dividends
which may be declared upon the shares of the Company.
ARTICLE V
Preferred Shares
Section 1. The issuance of preferred shares shall be evidenced by entry thereof
in the Preferred Share Register of the Company or by distribution of preferred
Share Certificates, signed by the President or a Vice President, countersigned
by the Secretary and sealed with the corporate seal of the Company. Each such
certificate shall express on its face the name of the Company, the series in
which it is issued, the number of the certificate, the number of shares for
which it is issued, the name of the person to whom it is issued, the par value
of each of the said shares, and the amount actually received by the Company or
each share represented by said certificate. Such information shall likewise be
recorded in the Preferred Share Register of the Company.
Section 2. Transfers of Preferred Shares of the Company shall be made on the
books of the Company by the holder thereof in person or by the holder's attorney
duly authorized, in writing, and, where a certificate or certificates have been
issued, upon surrender of the certificates or certificate for the share
transfer, upon which surrender and transfer new certificates will be issued. The
Board of Directors may, by resolution, close the preferred share transfer books
of the Company for a period not exceeding ten days before the payment of any
dividends which may be declared upon the preferred shares of the Company.
ARTICLE VI
Insurance Policies
Section 1. All policies of insurance issued by this Company shall comply with
the laws of the respective states or territories in which the policies are
issued. All policies of Insurance issued by this Company shall be signed, either
manually or by facsimile, by the President and the Secretary or by such officer
or officers as the President may designate, and shall be countersigned by a duly
licensed resident agent where so required by law or regulation.
ARTICLE VII
Miscellaneous
Section 1.
(a) As used in this Section:
(i) "acted properly" as to any person shall mean that such person
(A) acted in good faith;
(B) acted in a manner which he or she reasonably believed to be in or
not opposed to the best interests of the corporation; and
(C) with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was unlawful.
The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act properly.
(ii) "covered person" shall mean an Indemnitee (as defined below) or an
Employee Indemnitee (as defined below).
(iii)"Employee Indemnitee" shall mean any non-officer employee of the
corporation (but not subsidiaries of the corporation).
(iv) "expenses" shall include attorneys' fees and expenses and any
attorneys' fees and expenses of establishing a right to
indemnification under this Section.
(v) "Indemnitee" shall mean any person who is or was
(A) a director or officer of the corporation and/or any subsidiary;
(B) a trustee or a fiduciary under any employee pension, profit
sharing, welfare or similar plan or trust of the corporation
and/or any subsidiary; or
(C) serving at the request of the corporation as a director or
officer of or in a similar capacity in another corporation,
partnership, joint venture, trust or other enterprise, (which
shall, for the purpose of this Section be deemed to include
not-for-profit or for-profit entities of any type), whether
acting in such capacity or in any other capacity including,
without limitation, as a trustee or fiduciary under any employee
pension, profit sharing, welfare or similar plan of trust.
(vi) "proceeding" shall mean any threatened, pending or completed action or
proceeding, whether civil or criminal, and whether judicial,
legislative or administrative and shall include investigative action
by any person or body.
(vii)"subsidiary" shall mean a corporation, 50% or more of the shares of
which at the time outstanding having voting power for the election of
directors are owned directly or indirectly by the corporation or by
one or more subsidiaries or by the corporation and one or more
subsidiaries.
(b) The corporation shall indemnify any Indemnitee to the fullest extent
permitted under law (as the same now or hereafter exists), who was or is a
party or is threatened to be made a party to any proceeding by reason of
the fact that such person is or was an Indemnitee against liabilities,
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her.
(c) The corporation shall indemnify any Employee Indemnitee who was or is a
party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation) by reason of the fact that
such person is or was an employee against liabilities, expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him or her in connection with such proceeding if such person acted
properly.
(d) The corporation shall indemnify any Employee Indemnitee who was or is a
party or is threatened to be made a party to any proceeding by or in the
right of the corporation to procure a judgment in its favor by reason of
the fact that such person is or was an employee against amounts paid in
settlement and against expenses actually and reasonably incurred by him or
her in connection with the defense or settlement of such proceeding if he
or she acted properly, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance
of his or her duty to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication or liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
(e) Expense incurred in defending a proceeding shall be paid by the corporation
to or on behalf of a covered person in advance of the final disposition of
such proceeding if the corporation shall have received an undertaking by or
on behalf of such person to repay such amounts unless it shall ultimately
be determined that he or she is entitled to be indemnified by the
corporation as authorized in this Section.
(f) Any indemnification or advance under this Section (unless ordered by a
court) shall be made by the corporation only as authorized in the specific
proceeding upon a determination that indemnification or advancement to a
coveted person is proper in the circumstances. Such determination shall be
made:
(i) by the Board of Directors, by a majority vote of a quorum consisting
of directors who were not made parties to such proceedings, or
(ii) if such a quorum is not obtainable, or, even if obtainable and a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or
(iii)in the absence of a determination made under (i) or (ii), by the
stockholders.
(g) The corporation shall indemnify or advance funds to any Indemnitee
described in Section (a)(v)(C), only after such person shall have sought
indemnification or an advance from the corporation, partnership, joint
venture, trust or other enterprise in which he or she was serving at the
corporation's request, shall have failed to receive such indemnification or
advance and shall have assigned irrevocably to the corporation any right to
receive indemnification which he or she might be entitled to assert against
such other corporation, partnership, joint venture, trust or other
enterprise.
(h) The indemnification provided to a covered person by this Section:
(i) shall not be deemed exclusive of any other rights to which such person
may be entitled by law or under any articles of incorporation, by-law,
agreement, vote of shareholders or disinterested directors or
otherwise;
(ii) shall inure to the benefit of the legal representatives of such person
or his or her estate, whether such representatives are court appointed
or otherwise designated, and to the benefit of the heirs of such
person; and
(iii)shall be a contract right between the corporation and each such
person who serves in any such capacity at any time while this Section
1 of Article VII is in effect, and any repeal or modification of this
Section shall not affect any rights or obligations then existing with
respect to any state of facts or any proceedings then existing.
(i) The indemnification and advances provided to a covered person by this
Section shall extend to and include claims for such payments arising out of
any proceeding commenced or based on actions of such person taken prior to
the effective date of this Section; provided that payment of such claims
had not been agreed to or denied by the corporation at the effective date.
(j) The corporation shall have power to purchase and maintain insurance on
behalf of any covered person against any liability asserted against him or
her and incurred by him or her as a covered person or arising out of his or
her status of such, whether or not the corporation would have the power to
indemnify him or her against such liability under the provisions of this
Section. The corporation shall also have power to purchase and maintain
insurance to indemnify the corporation for any obligation which it may
incur as a result of the indemnification of covered persons under the
provisions of this Section.
(k) The invalidity or unenforceability of any provision in this Section shall
not affect the validity or enforceability of the remaining provisions of
this Section.
Section 2. The fiscal year of the Company shall begin in each year on the first
day of January, and end on the thirty-first day of the December following.
Section 3. The common seal of the Company shall be circular in form and shall
contain the name of the Company and the words: "CORPORATE SEAL" and "ILLINOIS".
Section 4. These By-Laws may be amended or repealed by the vote of a majority of
the Directors present at any meeting at which a quorum is present.
Filed this 24th day of
----------
July , 2000
---------------------- ----
/s/ Betty Ann Bohanek
Betty Ann Bohanek, Supervisor
LAH Co______ Unit
- ------------------------------------------------------------------------------
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
----------------------------------------------
President
Attest:
/s/
Secretary
SEAL
ANNEX C TO PART Q
UNANIMOUS WRITTEN CONSENT OF THE BOARD OF
DIRECTORS
OF
ALLSTATE LIFE INSURANCE COMPANY
The undersigned, being all of the members of the Board of Directors (the
"Board") of Allstate Life Insurance Company (the "Company"), hereby consent and
adopt the following resolutions:
WHEREAS, the Board of the Company deems it to be in the best interest
of the Company to establish, in conjunction with Allstate Financial
Global Funding, a statutory trust organized under the laws of the State
of Delaware (the "Trust"), a global debt issuance program (the
"Program") for the issuance of certain debt instruments (the "Notes")
by newly created Delaware statutory trusts (the "Separate Trusts")
pursuant to the Program in one or more series and in such amounts as
may result in Notes outstanding at any one time of up to $4,000,000,000
(or its equivalent in other currencies or composite currencies) in
aggregate amount under the Securities Act of 1933, as amended (the
"1933 Act"), with payment of principal of, and interest, premium and
additional amounts, if any, on, the Notes to be secured by one or more
funding agreements (the "Funding Agreements") issued and sold by the
Company in such amounts as may result in Funding Agreements outstanding
at any one time of up to $4,000,000,0000 (or its equivalent in other
currencies or composite currencies) in aggregate amount under the 1933
Act.
NOW, THEREFORE, BE IT RESOLVED, that the President of the Company, any
Senior Vice President of the Company, and the elected or appointed
officer charged with the primary responsibility for the Institutional
Markets business unit of the Company (each an "Authorized Officer") of
the Company be, and each of them hereby is, authorized in the name and
on behalf of the Company to cause to be prepared, to execute and to
cause to be filed with the U.S. Securities and Exchange Commission a
registration statement on Form S-3 (or such other form or forms as the
U.S. Securities and Exchange Commission shall require) relating to the
issuance and sale of the Notes and the Funding Agreements to be issued
by the Company under the Program (the "Registration Statement"), and
all amendments and supplements thereto, including without limitation
any prospectus, prospectus supplement or pricing supplement, in such
form as they may deem necessary or desirable and shall approve, such
approval to be conclusively evidenced by their execution thereof; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is authorized and directed, for and in the name and
on behalf of the Company, to deliver to the agents appointed from time
to time by the Trust to assist in the offering of Notes under the
Program (the "Agents") or their counsel a copy of the Registration
Statement and any Rule 462 Registration Statement, together with such
number of copies of the preliminary prospectus and prospectus included
therein as may be requested by the Agents, and to authorize such Agents
to submit the Registration Statement and any amendments or supplements
thereto, the Representations and Indemnity Agreements (as defined
below) and the other exhibits to the Registration Statement and any
Rule 462 Registration Statement for review to the National Association
of Securities Dealers, Inc. in connection with the Program; and
FURTHER RESOLVED, that Michael J. Velotta shall be, and hereby is,
appointed as the Company's agent for service for purposes of the 1933
Act, as amended, in connection with the Registration Statement; and
FURTHER RESOLVED, that each of the officers and directors who may be
required to execute the Registration Statement (whether on behalf of
the Company or as an officer or director thereof or by attesting the
seal of the Company or otherwise) be, and each of them hereby is,
authorized and directed to execute and deliver a power of attorney
appointing Steven E. Shebik, Kevin R. Slawin, Casey J. Sylla and
Michael J. Velotta, and each of them, as his true and lawful attorneys
and agents, to execute in his name, place and stead (in any capacity)
any and all amendments and supplements to the Registration Statement,
including without limitation any prospectus, prospectus supplement or
pricing supplement, and other instruments necessary or appropriate in
connection therewith, to attest the seal of the Company thereon, and to
file the same with the U.S. Securities and Exchange Commission,
granting to said attorneys and agents and each of them, the full power
and authority to do and perform in the name and on behalf of each of
said officers and directors, or both, as the case may be, every act
whatsoever which may be necessary or desirable as set forth in such
Registration Statement, and to take or cause to be taken any and all
such further actions in connection therewith in the name and on behalf
of the Company as they, in their sole discretion, deem necessary or
appropriate; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is appointed to review the Registration Statement
and any amendments and supplements thereto, including the prospectuses
contained therein, and all other documents as such Authorized Officer
in his or her discretion deems necessary or appropriate in order to
effect the registration of the Funding Agreements under the 1933 Act;
and to approve or reject any of the foregoing proposed instruments and
take all such further action as such Authorized Officer may deem to be
desirable or appropriate in connection with the various transactions
contemplated by the Registration Statement, the Representations and
Indemnity Agreements (as defined below), the Funding Agreement Purchase
Letters (as defined below) and the Support and Expenses Agreements (as
defined below); and
FURTHER RESOLVED, that the Company is authorized to issue and sell
Funding Agreements to the Trust in order to provide cash flows
sufficient to permit the Trust to make periodic and other payments with
respect to the Notes, which may be outstanding from time to time;
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is, authorized to, in the name and on behalf of the
Company, execute and deliver one or more Funding Agreements, with such
modifications and amendments as an Authorized Officer may approve, such
approval to be conclusively evidenced by such Authorized Officer's
execution and delivery thereof; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is appointed to set, in the name and on behalf of
the Company, the principal amount of Funding Agreements to be issued
and to determine, on behalf of the Company, (i) the deposit amount of
any Funding Agreement, (ii) the rate of interest on any Funding
Agreement, (iii) the early termination rights of any Funding Agreement,
and (iv) any other terms of any Funding Agreement or any other matters
related thereto; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is, authorized and directed to negotiate, execute
and deliver for and on behalf of the Company one or more
representations and indemnity agreements (the "Representations and
Indemnity Agreements") between the Company and the Agents relating to,
among other things, the issuance and sale of the Notes and the
indemnification by the Company of the Agents with respect to securities
law and other liabilities relating to the Program, in such form and
upon such terms and conditions as any such Authorized Officer shall
deem necessary or desirable, such approval to be conclusively evidenced
by his or her execution thereof; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is, authorized and directed to negotiate, execute
and deliver for and on behalf of the Company one or more support and
expenses agreements (the "Support and Expenses Agreements") between the
Company and the Trust or one or more Separate Trusts relating to the
indemnification of the Trust or one or more Separate Trusts by the
Company for expenses and other liabilities of the Trust or any Separate
Trusts relating to the Program, in such form and upon such terms and
conditions as any such Authorized Officer shall deem necessary or
desirable, such approval to be conclusively evidenced by his or her
execution thereof; and
FURTHER RESOLVED, that upon the effectiveness of the Registration
Statement, and the execution and delivery of the Representations and
Indemnity Agreements, the Company shall, from time to time, issue and
sell Funding Agreements to the Trust and consent to the assignment of
such Funding Agreements to one or more Separate Trusts; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is, authorized to use the net proceeds to the
Company from the sale of the Funding Agreements to purchase investment
assets or for any other valid corporate purpose; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is, authorized to pay any and all expenses and fees
(including attorneys' fees, accountants' fees and investment bankers'
fees) of the Company, the Trust and the Separate Trusts in connection
with the Program; and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is, authorized and directed in the name and on
behalf of the Company to obtain all consents and approvals necessary or
desirable to carry out the purposes and intents of these resolutions,
including, without limitation, any consents required from the lenders
under the Company's bank credit facilities and any consents,
qualifications or approvals required by regulatory authorities of the
respective jurisdictions in which the Company conducts its business;
and
FURTHER RESOLVED, that the Authorized Officers of the Company be, and
each of them hereby is, authorized and directed in the name and on
behalf of the Company to execute such documents and to take such
actions as they may deem necessary or desirable to carry out the
purposes and intents of these resolutions; and
FURTHER RESOLVED, that the authority and power given hereunder shall be
deemed retroactive and any and all acts authorized hereunder performed
prior to the passage of these resolutions are hereby approved and
ratified in all respects; and
FURTHER RESOLVED, that the Authorized Officers be, and each of them
hereby is, authorized to execute and deliver such agreements,
instruments, consents, undertakings, orders, certificates or other
documents to any of the Trust, the Separate Trusts, trustees, agents,
any regulatory authority, any stock exchange or any other person, and
the Authorized Officers, employees, agents, accountants and other
officers of the Company are, and each of them is, hereby authorized to
execute and deliver such agreements, instruments, consents,
undertakings, orders, certificates or other documents and to take any
and all actions in the name of and on behalf of the Company or
otherwise as each such Authorized Officer may deem necessary or
appropriate to effectuate the Program or an issuance of Notes under the
Program, or otherwise to carry out the purposes and intent of the
foregoing resolutions, and to pay or cause to be paid all applicable
filing, registration or other fees and expenses as each such Authorized
Officer may deem necessary, advisable or appropriate in order to
effectuate the Program or otherwise to carry out the purposes and
intent of the foregoing resolutions; and
FURTHER RESOLVED, that this Board hereby adopts the form and content of
any resolutions that any one or more of the Authorized Officers deem
necessary to evidence the approval by the Company of the transactions
contemplated by the foregoing resolutions if (i) in the opinion of such
Authorized Officer so acting, the adoption of such resolutions is
necessary or advisable, and (ii) the Secretary of the Company evidences
such adoption by filing with this Unanimous Written Consent copies of
such resolutions which shall thereupon be deemed to be adopted by the
Board and incorporated in this Unanimous Written Consent as a part of
this Unanimous Written Consent with the same force and effect as if
presented and approved as a part of this Unanimous Written Consent.
EXECUTION
RESOLVED, that this Unanimous Written Consent may be executed in one or
more counterparts and by each Director on a separate counterpart, each
of which shall be deemed to be an original and all of which taken
together shall be deemed to constitute a single document.
/s/ David A. Bird /s/ Robert W. Pike
- ----------------------------- -------------------------------
David A. Bird Robert W. Pike
/s/ Margaret G. Dyer /s/ Steven E. Shebik
- ----------------------------- -------------------------------
Margaret G. Dyer Steven E. Shebik
/s/ Marla G. Friedman /s/ Eric A. Simonson
- ----------------------------- -------------------------------
Marla G. Friedman Eric A. Simonson
/s/ Danny L. Hale /s/ Kevin R. Slawin
- ----------------------------- -------------------------------
Danny L. Hale Kevin R. Slawin
/s/ Edward M. Liddy /s/ Casey J. Sylla
- ----------------------------- -------------------------------
Edward M. Liddy Casey J. Sylla
/s/ John C. Lounds /s/ Michael J. Velotta
- ----------------------------- -------------------------------
John C. Lounds Michael J. Velotta
/s/ J. Kevin McCarthy /s/ Thomas J. Wilson, II
- ----------------------------- -------------------------------
J. Kevin McCarthy Thomas J. Wilson, II
Dated: November 20, 2003
PART R
CERTIFICATE OF INDENTURE TRUSTEE CONCERNING CORPORATE MATTERS
Reference is made to the Indenture set forth in Part A of this Closing
Instrument (the "Indenture") between the Trust and the Indenture Trustee entered
into in connection with the issuance of the secured medium term notes of the
Trust (the "Notes"), and to the Coordination Agreement set forth in Part F of
the Series Instrument for the Trust (the "Coordination Agreement") between the
Trust and the Indenture Trustee.
1. Each of the Indenture and the Coordination Agreement has been duly executed
and delivered on behalf of the Indenture Trustee by an authorized officer of the
Indenture Trustee.
2. Each person who, as an officer of the Indenture Trustee, signed the
Indenture, the Coordination Agreement or any other document included in the
Series Instrument or this Closing Instrument, was duly elected or appointed,
qualified and acting as such officer at the respective time of the signing and
delivery thereof and was duly authorized to sign such document on behalf of the
Indenture Trustee, and the signature of each such person is the genuine
signature of such officer.
3. Each person who, as an officer of the Indenture Trustee, authenticated
certificates representing the Notes issued under the Indenture was at the time
of such authentication and is now a duly elected or appointed officer of the
Indenture Trustee authorized and empowered so to act and the signature of each
such person appearing on any such certificate is genuine. The Indenture Trustee
has examined the form of Notes certificate so authenticated and delivered and
has found the same to be in substantially the form called for by the Indenture.
4. Attached hereto as Exhibit A is a true, correct and complete copy of an
extract from the constitutive documents of the Indenture Trustee (which
constitutive documents are in effect at the Original Issue Date specified in the
Pricing Supplement attached to the Series Instrument for the Trust as Annex A)
or an incumbency certificate of the Indenture Trustee, in each case evidencing
the authority of certain officers of the Indenture Trustee, and in each case not
amended, modified or revoked after the date thereof.
5. There are no actions, suits or proceedings pending or overtly threatened
against the Indenture Trustee before any court, either state or federal, which,
if adversely determined, would affect in any material respect, the performance
of the Indenture Trustee of its obligations under the Indenture, the
Coordination Agreement and the obligations contemplated therein.
6. The Indenture Trustee is eligible to act as Indenture Trustee under Section
6.7 of the Standard Indenture Terms.
EXHIBIT A TO PART R
J.P. Morgan Trust Company, National Association
EXTRACT OF BY-LAWS
Article VIII
Section 8.2. Execution of Instruments. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairperson or Co-Chairpersons of the board, or the
President, or any Vice Chairperson, or any Managing Director, or any Vice
President, or any Assistant Vice President, or the Chief Financial Officer, or
the Controller, or the Secretary, or the Cashier, or, if in connection with the
provision of fiduciary, corporate trust, escrow or agency services, by any of
those officers or by any Trust Officer or any Assistant Trust Officer. Any such
instruments may also be executed, acknowledged, verified, delivered or accepted
on behalf of the Association in such other manner and by such other officers or
other persons as the board may from time to time direct. The provisions of this
Section 8.2 are supplementary to any other provision of these by-laws.
PART S
CERTIFICATE OF AMACAR PACIFIC CORP.
The signatory identified in Part X of this Closing Instrument, the duly
appointed Secretary of AMACAR Pacific Corp., a Delaware corporation ("AMACAR"),
does hereby certify as of the Original Issue Date identified in the Pricing
Supplement attached as Annex A to the Series Instrument for the Trust (the
"Original Issue Date") that:
1. Each of the persons named on Exhibit A hereto has been duly
elected or appointed and is duly qualified as an officer of AMACAR
on the Original Issue Date, holding the office or offices set
forth opposite his or her name, and the signature set forth
opposite his or her name is a specimen of his or her genuine
signature.
2. Attached hereto as Exhibit B is a true and correct copy of the
Certificate of Incorporation of AMACAR as in effect on the
Original Issue Date.
3. Attached hereto as Exhibit C is a true and correct copy of the
By-Laws of AMACAR as in effect on the Original Issue Date.
4. Attached hereto as Exhibit D is a true and correct copy of a
resolution duly adopted by the Board of Directors of AMACAR on
March 1, 2004. Such resolution has not been amended, modified,
rescinded or revoked and is in full force and effect on the
Original Issue Date.
5. Attached hereto as Exhibit E is a true and correct copy of a
resolution duly adopted by the Stockholders of AMACAR on March 1,
2004. Such resolution has not been amended, modified, rescinded or
revoked and is in full force and effect on the Original Issue
Date.
6. AMACAR is a corporation existing and in good standing under the
laws of the State of Delaware.
7. There is no proceeding pending or, to the best of my knowledge,
threatened for the dissolution or liquidation of AMACAR.
All capitalized terms not otherwise defined herein shall have the meanings set
forth in the Administrative Services Agreement set forth in Part B to the Series
Instrument for the Trust.
EXHIBIT A TO PART S
NAME OFFICE SIGNATURE
Douglas K. Johnson President /s/ Douglas K. Johnson
Evelyn Echevarria Vice President, Secretary, Assistant /s/ Evelyn Echevarria
Treasurer
Juliana C. Johnson Vice President, Treasurer, Assistant /s/ Juliana C. Johnson
Secretary
EXHIBIT B TO PART S
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMACAR PACIFIC CORP.
This Amended and Restated Certificate of Incorporation of AMACAR Pacific
Corp. has been duly adopted by the stockholders in accordance with the
provisions of Section 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
The present name of the Corporation (the "Corporation") is AMACAR Pacific
Corp., which is the name under which the corporation was originally
incorporated; and the date of filing the original certificate of incorporation
of the Corporation with the Secretary of State of Delaware is June 24, 1998
ARTICLE I.
NAME
The name of the Corporation is AMACAR Pacific Corp. (the "Corporation").
ARTICLE II.
REGISTERED OFFICER AND REGISTERED AGENT
The address of the Corporation's registered office in the State of Delaware
is The Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III.
CORPORATE PURPOSES
The purpose of the Corporation is to engage in any lawful act or activity
and to exercise any powers permitted to corporations organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV.
CAPITAL STOCK
The total number of shares of capital stock the Corporation shall have
authority to issue is one hundred (100) shares designated as Common Stock and
the par value of each such share of Common Stock is one dollar ($1.00) amounting
in the aggregate to one hundred dollars ($100.00).
ARTICLE V.
DENIAL OF PREEMPTIVE RIGHTS
No holder of any class of capital stock of the Corporation, whether now or
hereafter authorized, shall be entitled, as such, as a matter of right, to
subscribe for or purchase any part of any new or additional issue of capital
stock of the Corporation of any class whatsoever, or of securities convertible
into or exchangeable for capital stock of the Corporation of any class
whatsoever, whether now or hereafter authorized, or whether issued for cash,
property or services.
ARTICLE VI.
DIRECTORS PROTECTED
A director shall be fully protected in relying in good faith upon the books
of account or other records of the Corporation or statements prepared by any of
its officers or by independent public accountants or by an appraiser selected
with reasonable care by the Board of Directors as to the value and amount of the
assets, liabilities and/or net profits of the Corporation, or any other facts
pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared and paid, or with which the Corporation's
capital stock might properly be purchased or redeemed.
ARTICLE VII.
CORPORATE EXISTENCE
The corporation is to have perpetual existence.
ARTICLE VIII.
POWERS OF BOARD OF DIRECTORS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized:
(a) To make, alter, amend or repeal the By-Laws, except as otherwise expressly
provided in any By-Law make by the holders of the capital stock of the
Corporation entitled to vote thereon. Any By-Law may be altered, amended or
repealed by the holders of the capital stock of the Corporation entitled to vote
thereon at any annual meeting or at any special meeting called for that purpose.
(b) To determine the use and disposition of any surplus and net profits of the
Corporation, including the determination of the amount of working capital
required to set apart out of any of the funds of the Corporation, whether or not
available for dividends, a reserve or reserves for any proper purpose and to
abolish any such reserve in the manner in which it was created.
(c) To designate, by resolution passed by a majority of the whole Board of
Directors, one or more committees, each committee to consist of one or more
directors of the Corporation, which, to the extent provided in the resolution
designating the committee or in the By-Laws of the Corporation, shall, subject
to the limitations prescribed by law, have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Such committee or committees shall
have such name or names as may be provided in the By-Laws of the Corporation or
as may be determined from time to time by resolution adopted by a majority of
the whole Board of Directors.
(d) To exercise, in addition to the powers and authorities hereinbefore or by
law conferred upon it, any such powers and authorities and do all such acts and
things as may be exercised or done by the Corporation, subject, nevertheless, to
the provisions of the laws of the State of Delaware and of the Certificate of
incorporation and of the By-Laws of the Corporation.
ARTICLE IX.
TRANSACTIONS WITH DIRECTORS AND OFFICERS
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if (1) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or the committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum, or (2) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed, or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of stockholders, or (3) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE X.
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 10.1 Indemnification by Corporation. (a) Any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent (for purposes of this
Article including trustee) of another corporation, partnership, joint venture,
trust or other enterprise, shall be indemnified and held harmless by the
Corporation to the fullest extent legally permissible under the General
Corporation Law of the State of Delaware, as amended from time to time, against
all expenses, liabilities and losses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding.
(b) To the extent that a director, officer, employee or agent of the Corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (a) of this Section 10.1 or in defense of
any claim, issue or matter therein, he shall be indemnified by the Corporation
against expenses (including attorney's fees) actually and reasonably incurred by
him in connection therewith without the necessity of any action being taken by
the Corporation other than the determination, in good faith, that such defense
has been successful. In all other cases wherein indemnification is provided by
this Article, unless ordered by a court, indemnification shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct specified in
this Article. Such determination shall be made (1) by the Board of Directors by
a majority vote of a quorum consisting of directors who were parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or even
if obtainable a quorum of disinterested directors so directs by independent
legal counsel in a written opinion, or (3) by the holders of a majority of the
shares of capital stock of the Corporation entitled to vote thereon.
(c) The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding had reasonable cause to
believe that his conduct was unlawful. Entry of a judgment by consent as part of
a settlement shall not be deemed a final adjudication of liability for
negligence or misconduct in the performance of duty, nor of any other issue or
matter.
(d) Expenses (including attorney's fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation. Expenses (including attorneys'
fees) incurred by other employees or agents of the Corporation in defending any
civil, criminal, administrative or investigative action, suit or proceeding may
be paid by the Corporation upon such terms and conditions, if any, as the Board
of Directors deems appropriate.
(e) No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law (i) for breach of the
directors' duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Section 10.1 (e) to
Article X shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment.
(f) The indemnification and advancement of expenses provided by this Article X
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement may be entitled under any By-Law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 10.2 Insurance. By action of the Board of Directors, notwithstanding any
interest of the directors in the action, the Corporation may purchase and
maintain insurance, in such amounts as the Board of Directors deems appropriate,
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation shall have the power to indemnify him against
such liability under the provisions of this Article.
ARTICLE XI.
ELECTION OF DIRECTORS Elections of directors need not be by written ballot
unless the By-Laws of the Corporation shall so provide.
Dated this 9th day of January in the year 2001.
AMACAR PACIFIC CORP.
By: /s/ Douglas K. Johnson
-----------------------------------------
Name: Douglas K. Johnson
Title: President
EXHIBIT C TO PART S
BY-LAWS
OF
AMACAR PACIFIC CORP.
ARTICLE I
OFFICES
AMACAR Pacific Corp. (hereinafter called the "Corporation") may establish
or discontinue, from time to time, such offices and places of business within or
without the State of Delaware as the Board of Directors may deem proper for the
conduct of the Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
The annual meeting of the holders of shares of stock entitled to notice
thereof and to vote thereof pursuant to the provisions of the Certificate of
Incorporation (hereinafter called the "Annual Meeting of Stockholders") for the
purpose of electing directors and transacting such other business as may come
before it shall be held each year at such time, on such day and at such place,
within or without the State of Delaware, as shall be designated by the Board of
Directors.
Section 2. Special Meetings.
In addition to such special meetings as are provided for by law or by the
Certificate of Incorporation, special meetings of the holders of the
Corporation's stock may be called at any time by the Board of Directors and may
be held at such time, on such day and at such place, within or without the State
of Delaware, as shall be designated by the Board of Directors.
Section 3. Notice of Meetings.
Except as otherwise provided by law, written notice of each meeting of
stockholders shall be given either by delivering a notice personally or mailing
a notice to each stockholder of record entitled to vote thereat. If mailed, the
notice shall be directed to the stockholder in a postage-prepaid envelope at his
address as it appears on the stock books of the Corporation unless, prior to the
time of mailing, he shall have filed with the Secretary a written request that
notices intended for him be mailed to some other address, in which case such
notice shall be mailed to the address designated in such request. Notice of each
meeting of stockholders shall be in such form as is approved by the Board of
Directors and shall state the purpose or purposes for which the meeting is
called, the date and time when and the place where it is to be held, and shall
be delivered personally or mailed not more than sixty (60) days and not less
than ten (10) days before the day of the meeting. Except as otherwise provided
by law, the business which may be transacted at any such meeting of stockholders
shall consist of and be limited to the purpose or purposes so stated in such
notice. The Secretary or an Assistant Secretary of the Corporation shall, after
giving such notices make an affidavit stating that notice has been given, which
shall be filed with the minutes of such meeting.
Section 4. Waiver of Notice.
Whenever notice is required to be given under any provision of law or of
the Certificate of incorporation or the By-Laws, a waiver thereof in writing or
by telegraph, cable or other form of recorded communication, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deeded equivalent to notice. Attendance of a person at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the person attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business thereat because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any meeting of stockholders need be specified
in any waiver of notice unless so required by the Certificate of Incorporation.
Section 5. Organization.
The Chairman of the Board shall act as chairman at all meetings of
stockholders at which he is present, and as such chairman shall call such
meetings of stockholders to order and preside thereat. If the Chairman of the
Board shall be absent from any meeting of stockholders, the duties otherwise
provided in this Section 5 of Article II to be performed by him at such meeting
shall be performed at such meeting by the officer described in the last section
of Section 6 of Article IV. The Secretary of the Corporation shall act as
secretary at all meetings of the stockholders, but in his absence the chairman
of the meeting may appoint any person present to act as secretary of the
meeting.
Section 6. Stockholders Entitled to Vote.
The Board of Directors may fix a date not more than sixty (60) days nor
less than ten (10) days prior to the date of any meeting of stockholders, or
prior to the last day on which the consent or dissent of stockholders may be
effectively expressed for any purpose without a meeting, as a record date for
the determination of the stockholders entitled to notice of and to vote at such
meeting and any adjournment thereof, or to give such consent or express such
dissent, and in such case such stockholders and only such stockholders as shall
be stockholders of record on the date so fixed shall be entitled to notice of,
and to vote at, such meeting any adjournment thereof, or to give such consent or
express such dissent, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any such record date fixed as
aforesaid. The Secretary shall prepare and make or cause to be prepared and
made, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at such meeting, arranged in
alphabetical order and showing the address of each such stockholder and the
number of shares registered in the name of each such stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, either at a place specified in the notice of the
meeting within the city where the meeting is to be held, or, if not so
specified, at the place where the meeting is to be held. Such list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and shall be subject to the inspection of any stockholder who may be
present.
Section 7. Quorum and Adjournment.
Except as otherwise provided by law or by the Certificate of Incorporation,
the holders of a majority of the shares of stock entitled to vote at the meeting
present in person or by proxy shall constitute a quorum at all meetings of the
stockholders. In the absence of a quorum, the holders of a majority of such
shares of stock present in person or by proxy may adjourn any meeting, from time
to time, until a quorum shall be present. At any such adjourned meeting at which
a quorum may be present, any business may be transacted which might have been
transacted at the meeting as originally called. No notice of any adjourned
meeting need be given other than by announcement at the meeting that is being
adjourned, provided that if the adjournment is for more than thirty (30) days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, then a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 8. Order of Business.
The order of business at all meetings of stockholders shall be as
determined by the chairman of the meeting or as is determined by the vote of the
holders of a majority of the shares of stock present in person or by proxy and
entitled to vote at the meeting; provided, that at special meetings of
stockholders no business other than that specified in the notice of the meetings
or germane thereto shall be transacted.
Section 9. Vote of Stockholders.
Except as otherwise permitted by law or by the Certificate of Incorporation
or the By-Laws, all action by stockholders shall be taken at a stockholders
meeting. Every stockholder of record, as determined pursuant to Section 6 of
this Article II, and who is entitled to vote, shall be entitled at every meeting
of the stockholders to one vote for every share of stock standing in his name on
the books of the Corporation. Every stockholder entitled to vote or entitled to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy duly appointed by an
instrument in writing, subscribed by such stockholder and executed not more than
three (3) years prior to the meeting, unless the instrument provides for a
longer period. The attendance at any meeting of a stockholder who may
theretofore have given a proxy shall not have the effect of revoking such proxy
unless such stockholder shall in writing so notify the secretary of the meeting
prior to the voting of the proxy. Unless otherwise provided by law, no vote on
any question upon which a vote of the stockholders may be taken need be by
written ballot unless the chairman of the meeting shall determine that it shall
be by written ballot or the holders of a majority of the shares of stock present
in person or by proxy and entitled to participate in such vote shall so demand.
In a vote by written ballot each written ballot shall state the number of shares
voted and the name of the stockholder or proxy voting. Except as otherwise
provided by law, by the Certificate of Incorporation or by Section 14 of Article
III, all elections of directors and all questions shall be decided by the vote
of the holders of a majority of the shares of stock present in person or by
proxy at the meeting and entitled to vote in the election or on the question.
Section 10. Consent of Stockholders in Lieu of Meeting.
Except as otherwise provided by law or by the Certificate of Incorporation,
any action required to be taken, or which maybe taken, at any meeting of
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of shares of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares of stock entitled to vote thereon were present
and voted, provided that prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. The written consent shall bear
the date of signature of each stockholder who signs the consent. No written
consent shall be effective to take the corporate action referred to therein
unless within sixty (60) days of the earliest dated consent delivered to the
Corporation, written consents signed by a sufficient number of stockholders to
take action are delivered to the Corporation by delivery to its registered
office in Delaware, its principal place of business, or to the Secretary or
other agent of the Corporation having custody of the minute book of the
Corporation. Delivery made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Election and Term.
The directors shall be elected at the Annual Meeting of the Stockholders
and shall be elected to serve until the next Annual Meeting of Stockholders and
until their successors are elected and have qualified or until their earlier
resignation or removal.
Section 2. Qualification.
A director need not be the record or beneficial owner of shares of capital
stock of the Corporation. Acceptance of the office of director may be expressed
orally or in writing.
Section 3. Number.
The number of directors which shall constitute the whole board shall be
three (3). The number may be increased or decreased from time to time by
amendment of this by-law by the board of directors or the stockholders within
the limits permitted by law; provided that any decrease in the number of
directors shall not change the term of any director in office at the time
thereof.
Section 4. General Powers.
The business, properties and affairs of the Corporation shall be managed by
the Board of Directors, which, without limiting the generality of the foregoing,
shall have power to elect and appoint officers of the Corporation, to appoint
and direct agents, to grant general or limited authority to officers, employees
and agents of the Corporation, to make, execute and deliver contracts and other
instruments and documents in the name and on behalf of the corporation and over
its seal, without specific authority in each case. In addition, the Board of
Directors may exercise all the powers of the Corporation and do all lawful acts
and things which are not reserved to the stockholders by law or by the
Certificate of Incorporation or by these By-Laws.
Section 5. Place of Meetings.
Meetings of the Board of Directors may be held at any place, within or
without the State of Delaware, as is from time to time designated by the Board
of Directors.
Section 6. Organization Meeting.
A newly elected Board of Directors shall meet and organize, and also may
transact any other business which might be transacted at a regular meeting
thereof a soon as practicable after each Annual Meeting of Stockholders, at the
place at which such meeting of stockholders took place, without notice of such
meeting, provided a majority of the whole Board of Directors is present. If such
a majority is not present, such organization meeting may be held at any other
time or place which may be specified in a notice given in the manner provided in
Section 8 of this Article III for special meetings of the Board of Directors, or
in a waiver of notice thereof.
Section 7. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such times as
may be determined by resolution of the Board of Directors and no notice shall be
required for any regular meeting. Except as otherwise provided by law, any
business may be transacted at any regular meeting of the Board of Directors.
Section 8. Special Meetings; Notice and Waiver of Notice.
Special meetings of the Board of Directors shall be called by the Secretary
at the request of the Chairman of the Board or the President or at the request
in writing of any two (2) directors stating the purpose or purposes of such
meeting. Notice of any special meeting shall be in form approved by the Chairman
of the Board or the President, as the case may be. Notices of special meetings
shall be mailed to each director, addressed to him at his residence or usual
place of business, not later than two (2) days before the date on which the
meeting is to be held, or shall be sent to him at such place by telegraph, cable
or other form of recorded communication or be delivered personally or by
telephone not later than the day before such day of meeting. Notice of any
meeting of the Board of Directors need not be given to any director if he shall
sign a written waiver thereof either before or after the time stated therein, or
if he shall attend a meeting, except when he attends such meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business thereat because the meeting is not lawfully called
or convened. The business to be transacted at, or the purpose of, any special
meeting of the Board of Directors shall be specified in any notice or written
waiver of notice.
Section 9. Organization of Meetings.
The Chairman of the Board shall preside at all meetings of the Board of
Directors at which he is present. If the Chairman of the Board shall be absent
from any meeting of the Board of Directors, the duties otherwise provided in
this Section 9 of Article III to be performed by him at such meeting shall be
performed at such meeting by the officer prescribed by Section 6 of Article IV.
If no such officer is present at such meeting, one of the directors present
shall be chosen by the members of the Board of Directors present to preside at
such meetings. The Secretary of the Corporation shall act as the secretary of
all meetings of the Board of Directors, and in his absence a temporary secretary
shall be appointed by the chairman of the meeting.
Section 10. Quorum and Manner of Acting.
At every meeting of the Board of Directors one-third (1/3) but in no event
fewer than two (2) of the total number of directors constituting the whole Board
of Directors shall constitute a quorum. Except as otherwise provided by law or
by the Certificate of Incorporation, by Section 15(a) of this Article III, or by
Section 3 of Article IV, the vote of a majority of the directors present at any
such meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum, a majority of the directors present may
adjourn any meeting, from time to time, until a quorum is present. No notice of
any adjourned meeting need be given other than by announcement at the meeting
that is being adjourned. Members of the Board of Directors or any committee
thereof may participate in a meeting of the Board of Directors or of such
committee by means of telephone conference or similar communications equipment
whereby means all persons participating in the meeting can hear each other, and
participation by a member of the Board of Directors in a meeting pursuant to
this Section 10 of Article III shall constitute his presence in person at such
meeting.
Section 11. Voting.
On any question on which the Board of Directors shall vote, the names of
those voting and their votes shall be entered in the minutes of the meeting if
any member of the Board of Directors so requests at the time.
Section 12. Action Without a Meeting.
Except as otherwise provided by law or by the Certificate of Incorporation,
any action required or permitted to be taken at any meeting by the Board of
Directors or by any committee thereof may be taken without a meeting, if prior
to such action all members of the Board of Directors or of such committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or the
committee.
Section 13. Resignations.
Any director may resign at any time upon written notice of resignation to
the Corporation. Any resignation shall be effective immediately unless a date
certain is specified for it to take effect, in which event it shall be effective
upon such date, and acceptance of any resignation shall not be necessary to make
it effective, irrespective of whether the resignation is tendered subject to
such acceptance.
Section 14. Removal of Directors.
Any director may be removed, either for or without cause, at any time by
action of the holders of a majority of the outstanding shares of stock entitled
to vote thereon, either at a meeting of the holders of such shares or, whenever
permitted by law, without a meeting by their written consents thereto.
Section 15. Filling of Vacancies.
Except as otherwise provided by law and the Certificate of Incorporation,
in case of any increase in the number of directors, or of any vacancy in the
Board of Directors, the additional director or directors may be elected, or, as
the case may be, the vacancy or vacancies may be filled, either (a) by the Board
of Directors at any meeting by affirmative vote of a majority of the remaining
directors though the remaining directors be less than the quorum provided in
Section 10 of this Article III, or (b) by the holders of capital stock of the
Corporation entitled to vote thereon, either at an Annual Meeting of
Stockholders or at a special meeting of such holders called for that purpose.
The directors so chosen shall hold office until the next Annual Meeting of
Stockholders and until their successors are elected and have qualified or until
their earlier resignation or removal.
Section 16. Interested Directors and Officers.
a. No contract or transaction between the corporation and one (1) or more of
its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one
(1) or more of the Corporation's directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transactions, or solely because his or
their votes are counted for such purpose, if:
(1) The material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or known to the Board of
Directors or the committee and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders.
b. Common or interested Directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee
thereby which authorizes the contract or transaction.
ARTICLE IV
THE OFFICERS
Section 1. Officers - Qualifications.
The elected officers of the Corporation shall be a President, a Secretary,
a Treasurer and, at the option of the Board of Directors, a Chairman of the
Board. The elected officers shall be elected by the Board of Directors. The
Chairman of the Board and the President shall be selected from the directors.
The Board of Directors may elect one or more Vice Presidents and elect or
appoint such other officers as may be deemed necessary. Assistant Secretaries,
Assistant Treasurers and other officers and agents may be appointed by the Board
of Directors or may be appointed pursuant to Section 6 of this Article IV.
Section 2. Term of Office; Vacancies.
So far as is practicable, all elected officers shall be elected at the
organization meeting of the Board of Directors in each year and, except as
otherwise provided in Sections 3 and 4, and subject to the Provisions of Section
6 of this Article IV, shall hold office until the organization meeting of the
Board of Directors in the next subsequent year and until their respective
successors are elected and qualified or until their earlier resignation or
removal. If any vacancy shall occur in any office, the Board of Directors may
elect or appoint a successor to fill such vacancy for the remainder of the term.
Section 3. Removal of Elected Officers.
Any elected officer may be removed at any time, either for or without
cause, by affirmative vote of a majority of the whole Board of Directors, at any
regular meeting or at any special meeting called for the purpose.
Section 4. Resignations.
Any officer may resign at any time upon written notice of resignation to
the Corporation. Any resignation shall be effective immediately unless a date
certain is specified for it to take effect, in which event it shall be effective
upon such date, and acceptance of any resignation shall not be necessary to make
it effective, irrespective of whether the resignation is tendered subject to
such acceptance
Section 5. Officers Holding More Than One Office.
Any officer may hold two (2) or more offices the duties of which can be
consistently performed by the same person, except that the offices of President
and Secretary may not be held by the same person at the same time.
Section 6. The Chairman of the Board.
The Chairman of the Board shall be the chief executive officer of the
Corporation. He shall direct, coordinate and control the Corporation's business
and activities and its operating expenses and capital expenditures and shall
have general authority to exercise all the powers necessary for the chief
executive officer of the Corporation, all in accordance with basic policies
established by and subject to the control of the Board of Directors. He shall be
responsible for the employment or appointment of employees, agents and officers
(except officers to be elected by the Board of Directors pursuant to Section 1
of this Article IV) as may be required for the conduct of the business and the
attainment of the objectives of the Corporation. He shall have authority to
suspend or to remove any employee, agent or appointed officer of the Corporation
and, in the case of the suspension for cause of any such elected officer, to
recommend to the Board of Directors what further action should be taken. He
shall have general authority to execute bonds, deeds and contracts in the name
and on behalf of the Corporation. As provided in Section 5 of Article Il, he
shall act as chairman at all meetings of the stockholders at which he is
present, and, as provided in Section 9 of Article III, he shall preside at all
meetings of the Board of Directors at which he is present. In the absence of the
Chairman of the Board, his duties shall be performed and his authority may be
exercised by the President, and, in the absence of the Chairman of the Board and
the President, such duties shall be performed by such officer as may have been
designated by the most senior officer of the Corporation who has made any such
designation, with the right reserved to the Board of Directors to make the
designation or supersede any designation so made.
Section 7. The President.
The President shall be the chief administrative officer of the Corporation.
He shall implement the general directives, plans and policies and shall
establish operating and administrative plans and policies and direct and
coordinate the Corporation's organizational components within the scope of the
authority delegated to him by the Board of Directors. He shall have general
authority to execute bonds, deeds and contracts in the name and on behalf of the
Corporation and the responsibility for the employment or appointment of such
employees, agents and officers (except officers to be elected by the Board of
Directors pursuant to Section I of the Article IV) as may be required to carry
on the operations of the business. He shall have authority to suspend or to
remove any employee or agent of the Corporation (other than officers). As
provided in Section 6 of this Article IV, in the absence of the Chairman of the
Board, the President shall perform all the duties and exercise the authority of
the Chairman of the Board. In the absence of the President, his duties shall be
performed and his authority may be exercised by such officer as may have been
designated by the most senior officer of the Corporation who has made any such
designation, with the right reserved to the Board of Directors to make the
designation or supersede any designation so made.
Section 8. The Vice President.
The several Vice Presidents, if any, shall perform such duties and may
exercise such authority as may from time to time be conferred upon them by the
Board of Directors, the Chairman of the Board or the President.
Section 9. The Secretary.
The Secretary shall attend to the giving of notice of all meetings of
stockholders and of the Board of Directors and, as provided in Section 5 of
Article II and Section 9 of Article III, shall keep minutes of all proceedings
at meetings of the stockholders and of the Board of Directors at which he is
present, and where some other person has served as secretary thereto, the
Secretary shall maintain custody of the minutes of such proceedings. As provided
in Section 2 of Article VII, he shall have charge of the corporate seal and
shall have authority to attest any and all instruments or writings in which the
same may be affixed. He shall keep and account for all books, documents, papers
and records of the Corporation, except those for which some other officer or
agent is properly accountable. He shall generally perform all the duties usually
appertaining to the office of secretary of a corporation. In the absence of the
Secretary, an Assistant Secretary, if any, or such person as shall be designated
by the Chairman of the Board shall perform his duties.
Section 10. The Treasurer.
The Treasurer shall have the care and custody of all the funds of the
Corporation and shall deposit the same in such banks or other depositories as
the Board of Directors or any officer or officers, or any officer and agent
jointly, thereunto duly authorized by the Board of Directors, shall, from time
to time, direct or approve. He shall keep a full and accurate account of all
moneys received and paid on account of the Corporation and shall render a
statement of his accounts whenever the Board of Directors shall require. Except
as otherwise provided by the Board of Directors or in the Corporation's plan of
organization, he shall perform all other necessary acts and duties in connection
with the administration of the financial affairs of the Corporation and shall
generally perform all the duties usually appertaining to the office of the
treasurer of a corporation. Wherever required by the Board of Directors, he
shall give bonds for the faithful discharge of his duties in such sums and with
such sureties as the Board of Directors shall approve. In the absence of the
Treasurer, an Assistant Treasurer, if any, or such person as shall be designated
by the Chairman of the Board shall perform his duties.
Section 11. Additional Duties and Authority.
In addition to the foregoing specifically enumerated duties and authority,
the several officers of the Corporation shall perform such other duties and may
exercise such further authority as the Board of Directors may, from time to
time, determine or as may be assigned to them by any superior officer.
ARTICLE V
STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates.
The capital stock of the Corporation shall be represented by certificates
signed by, or in the name of the Corporation by the President or any Vice
President, and by the Secretary or an Assistant Secretary, or by the Treasurer
or an Assistant Treasurer, and sealed with the seal of the Corporation. Such
seal may be a facsimile, engraved or printed. In case any such officer who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer before such certificate is issued by the
corporation, it may nevertheless be issued by the Corporation with the same
effect as if such officer had not ceased to be such at the date of its issue.
The certificates representing the capital stock of the Corporation shall be in
such form as shall be approved by the Board of Directors.
Section 2. Transfers of Stock.
Transfers of stock shall be made on the books of the Corporation by the
person named in the certificate, or by an attorney lawfully constituted in
writing, upon surrender and cancellation of a certificate or certificates for a
like number of shares of the same class or series of stock, duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, with such proof of the authenticity of the signatures as the
Corporation or its agents may reasonably require and with all required stock
transfer tax stamps affixed thereto and canceled or accompanied by sufficient
funds to pay such taxes.
Section 3. Lost Certificate.
In case any certificate of stock shall be lost, stolen or destroyed, the
Board of Directors, in its discretion, or any officer or officers thereunto duly
authorized by the Board of Directors, may authorize the issuance of a substitute
certificate in place of the certificate so lost, stolen or destroyed; provided,
however, that in each such case the applicant for a substitute certificate shall
furnish evidence to the Corporation, which it determines in its discretion is
satisfactory, of the loss, theft or destruction of such certificate and of the
ownership thereof, and also such security or indemnity as may be required by it.
Section 4. Determination of Holders of Record for Certain Purposes.
In order to determine the stockholders or other holders of securities
entitled to receive payment of any dividend or other distribution or allotment
or any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of capital stock or other securities or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a record
date, not more than sixty (60) days prior to the date of payment of such rights
or the date when any such rights in respect of any change, conversion or
exchange of stock or securities may be exercised, and in such case only holders
of record on the date so fixed shall be entitled to receive payment of such
dividend or other distribution or to receive such allotment of rights, or to
exercise such rights, notwithstanding any transfer of any stock or other
securities on the books of the Corporation after any such record date has been
fixed as aforesaid.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 1. Indemnification.
a. The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including, without
limitation, attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation or such other
person and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interest of the Corporation or
such other person and, with respect to any criminal action or proceeding, such
person had reasonable cause to believe that his conduct was unlawful.
b. The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including, without
limitation, attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Corporation or such other person and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 2. Expenses.
To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section l of this Article VI, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including, without limitation, attorneys' fees) actually and
reasonably incurred by him in connection therewith, if any, as the Board of
Directors deems appropriate.
Section 3. Determination of Indemnification.
Any indemnification under Section l or 2 of this Article VI (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the Director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or 2 of this Article VI.
Such determination shall be made (i) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, (ii) if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested Directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders.
Section 4. Nonexclusive Right.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be such a Director, officer, employee or agent and shall inure
to the benefit of the successors, assigns, heirs, executors and administrators
of such person.
ARTICLE VII
CORPORATE SEAL
Section 1. Seal.
The seal of the Corporation shall be in the form of a circle and shall bear
the name of the Corporation and in the center of the circle the words "Corporate
Seal Delaware" and the figures representing the year of the organization of the
Corporation.
Section 2. Affixing and Attesting.
The seal of the Corporation shall be in the custody of the Secretary, who
shall have power to affix it to the proper corporate instruments and documents,
and who shall attest it. In his absence, it may be affixed and attested by an
Assistant Secretary, or by the Treasurer or an Assistant Treasurer, or by any
other person or persons as may be designated by the Board of Directors.
ARTICLE VIII
MISCELLANEOUS
Section 1. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section 2. Signatures on Negotiable Instruments.
All bills, notes, checks or other instruments for the payment of money
shall be signed or countersigned by such officers or agents and in such manner
as, from time to time, may be prescribed by resolution (whether general or
special) of the Board of Directors, or may be prescribed by any officer or
officers, or any officer and agent jointly, thereunto duly authorized by the
Board of Directors.
Section 3. References to Article and Section Numbers and to the By-Laws
and the Certificate of Incorporation.
Whenever in the By-Laws reference is made to an Article or Section number,
such reference is to the number of an Article or Section of the By-laws.
Whenever in the By-laws reference is made to the By-Laws, such reference is to
these By-laws of the Corporation, as amended, and whenever reference is made to
the Certificate of Incorporation, such reference is to the Certificate of
Incorporation of the Corporation, as amended, including all documents deemed by
the General Corporation Law of the State of Delaware to constitute a part
thereof.
ARTICLE IX
AMENDMENTS
Section 1. Amendments.
The By-Laws may be altered, amended, or repealed at any Annual Meeting of
Stockholders, or at any special meeting of holders of shares of stock entitled
to vote thereon and entitled to vote thereon and by the Board of Directors at
any valid meeting by affirmative vote of a majority of the whole Board of
Directors or by the written consent of all members of the whole Board of
Directors; provided, that in no event shall any alteration, amendment or repeal
of any By-law impair, or impair the intent of, or be inconsistent with, the
Certificate of Incorporation of the Corporation; and provided, further, that
notice of such proposed alteration, amendment or repeal be included in the
notice of meeting, by a vote of the holders of a majority of the shares of stock
present in person or by proxy at the meeting.
Section 2. Amendment of Certain By-Laws.
Notwithstanding any other provision of these By-Laws, the affirmative vote
of 100% of the members of the Board of Directors of the Corporation shall be
required in order to alter, amend, or repeal Sections 1, 3, 4, 6 or 10 of
Article III, or Sections 1 or 2 of this Article IX of these By-laws, or to adopt
any By-law which would have the substantive effect of altering, amending or
repealing Sections 1, 3, 4, 6 or 10 of Article III, or Sections 1 or 2 of this
Article IX of these By-laws.
EXHIBIT D TO PART S
ACTION BY UNANIMOUS CONSENT OF THE
BOARD OF DIRECTORS WITHOUT A MEETING
AND WAIVER OF NOTICE
The undersigned, being all of the directors of AMACAR PACIFIC CORP., a
Delaware corporation (the "Corporation"), hereby waive all call and notice and,
acting pursuant to the Delaware General Corporation Law, Section 141(f), do
hereby adopt, by unanimous written consent, the following resolutions as the
resolutions of the Board of Directors of this Corporation:
RESOLVED, that the following persons are hereby elected to the
offices set forth opposite their names, to hold office, subject to the
By-Laws of the Corporation, until the next annual meeting, of the Board
of Directors and until their respective successors are elected and
qualified:
President Douglas K. Johnson
Vice President, Secretary,
Assistant Treasurer Evelyn Echevarria
Vice President, Treasurer,
Assistant Secretary Juliana C. Johnson
IN WITNESS WHEREOF, the undersigned have executed this consent in
writing as of the 1st day of March, 2004.
/s/ Douglas K. Johnson
----------------------
Douglas K. Johnson
/s/ Juliana C. Johnson
----------------------
Juliana C. Johnson
/s/ Evelyn Echevarria
---------------------
Evelyn Echevarria
EXHIBIT E TO PART S
ACTION BY UNANIMOUS WRITTEN CONSENT OF
THE STOCKHOLDERS WITHOUT A MEETING
AND WAIVER OF NOTICE
The undersigned, being all of the stockholders of AMACAR PACIFIC CORP., a
Delaware corporation (the "Corporation"), pursuant to Section 229 of the
Delaware General Corporation Law, hereby waive all call and notice and, acting
pursuant to the Delaware General Corporation Law, section 228, do hereby adopt,
by unanimous written consent, the following resolutions as the resolutions of
the Stockholders of this Corporation.
RESOLVED, that the following persons are hereby elected to the
Board of Directors, subject to the By-Laws of the Corporation, until
the next annual meeting of the Stockholders and until their respective
successors are elected and qualified:
Douglas K. Johnson Director
Evelyn Echevarria Director
Juliana C. Johnson Director
IN WITNESS WHEREOF, the undersigned has executed this consent in
writing as of the 1st day of March, 2004.
/s/ Douglas K. Johnson
----------------------
Douglas K. Johnson
AMACAR Investments, L.L.C., Member
PART T
CROSS-RECEIPT BETWEEN THE
TRUST AND THE AGENT(S)
Reference is hereby made to the Terms Agreement set forth in Part E of
the Series Instrument for the Trust (the "Terms Agreement"). All capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Terms Agreement.
1. The Trust hereby acknowledges receipt from the Agent(s) of
immediately available funds in the amount of the Net Proceeds to
the Trust identified in the Pricing Supplement attached as Annex A
to the Series Instrument for the Trust, representing payment in
full of the Notes sold to the Agent(s) pursuant to the Terms
Agreement.
2. The Agent(s) hereby acknowledge(s) receipt from the Trust of the
Notes sold to the Agent(s) by the Trust pursuant to the Terms
Agreement.
PART U
CROSS-RECEIPT BETWEEN THE TRUST
AND GLOBAL FUNDING
Reference is hereby made to the Coordination Agreement set forth in
Part F of the Series Instrument for the Trust (the "Coordination Agreement").
All capitalized terms not otherwise defined herein shall have the meanings set
forth in the Coordination Agreement.
1. Global Funding hereby acknowledges receipt from the Trust of
immediately available funds in the amount of the Net Proceeds to
the Trust identified in the Pricing Supplement attached as Annex A
to the Series Instrument for the Trust), representing payment in
full of the Funding Note sold to the Trust pursuant to the
Coordination Agreement.
2 . The Trust hereby acknowledges receipt from Global Funding of the
Funding Note sold to the Trust pursuant to the Coordination
Agreement.
PART V
CROSS-RECEIPT BETWEEN
GLOBAL FUNDING AND
ALLSTATE LIFE
Reference is hereby made to the Coordination Agreement set forth in
Part F of the Series Instrument for the Trust (the "Coordination Agreement").
All capitalized terms not otherwise defined herein shall have the meanings set
forth in the Coordination Agreement.
1. Allstate Life hereby acknowledges receipt from Global Funding of
immediately available funds in the amount of the Net Proceeds to
the Trust identified in the Pricing Supplement attached as Annex A
to the Series Instrument for the Trust), representing payment in
full of the Funding Agreement(s) sold to Global Funding pursuant
to the Coordination Agreement.
2. Global Funding hereby acknowledges receipt from Allstate Life of
the Funding Agreement(s) sold to Global Funding pursuant to the
Coordination Agreement.
PART W
CROSS-RECEIPT BETWEEN
GLOBAL FUNDING AND
THE TRUST
Reference is hereby made to the Coordination Agreement set forth in
Part F of the Series Instrument for the Trust (the "Coordination Agreement").
All capitalized terms not otherwise defined herein shall have the meanings set
forth in the Coordination Agreement.
1. The Trust hereby acknowledges receipt from Global Funding of the Funding
Agreement(s).
2. Global Funding hereby acknowledges the Trust's surrender of the Funding
Note.
PART X
MISCELLANEOUS AND EXECUTION PAGES
This Closing 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 Closing Instrument on their behalf, (b)
this Closing 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 to the Series Instrument for the Trust (the "Trust
Agreement"), (c) each of the representations, undertakings and agreements made
on the part of the Trust in this Closing 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 set forth in
Part A to this Closing Instrument 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 Closing
Instrument.
ALLSTATE LIFE INSURANCE
COMPANY (for purposes of
(i) the Assignment of
Funding Agreement(s) to the
Funding Note Indenture
Trustee set forth in Part C
herein, (ii) the
Acknowledgement of
Assignment of Funding
Agreement(s) to the Funding
Note Indenture Trustee set
forth in Part D herein,
(iii) the Termination of
Security Interest and
Transfer of Funding
Agreement(s) to Global
Funding set forth in Part E
herein, (iv) the
Acknowledgement of
Termination of Security
Interest and Transfer of
Funding Agreement(s) set
forth in Part F herein, (v)
the Assignment of Funding
Agreement(s) to the Trust
set forth in Part G herein,
(vi) the Acknowledgement of
Assignment of Funding
Agreement(s) to the Trust
set forth in Part H herein,
(vii) the Assignment of
Funding Agreement(s) to the
Indenture Trustee set forth
in Part I herein, (viii)
the Acknowledgement of
Assignment of Funding
Agreement(s) to the
Indenture Trustee set forth
in Part J herein and (ix)
the Cross-Receipt between
Global Funding and Allstate
Life set forth in Part V
herein)
By: /s/ Sarah R. Donahue
-----------------------------------------------------
Name: Sarah R. Donahue
Title: Assistant Vice President
SECRETARY OF ALLSTATE LIFE INSURANCE COMPANY (for purposes
of the Secretary's Certificate of Allstate Life Insurance
Company set forth in Part Q herein)
By: /s/ Michael J. Velotta
-----------------------------------------------------
Name: Michael J. Velotta
Title: Secretary
I, an authorized officer of
ALLSTATE LIFE INSURANCE
COMPANY, do hereby certify
that the above signature is
the true and genuine
signature of the duly
elected, qualified and
acting Secretary of
Allstate Life Insurance
Company.
By: /s/ John C. Lounds
-----------------------------------------------------
Name: John C. Lounds
Title: Senior Vice President
AUTHORIZED OFFICER OF
ALLSTATE LIFE INSURANCE
COMPANY (for purposes of
the Officer's Certificate
of Allstate Life Insurance
Company Pursuant to Section
6(d) of the Distribution
Agreement set forth in Part
P herein)
By: /s/ Sarah R. Donahue
-----------------------------------------------------
Name: Sarah R. Donahue
Title: Assistant Vice President
ALLSTATE LIFE GLOBAL
FUNDING (for purposes of
(i) the Funding Note
Indenture set forth in Part
B herein, (ii) the
Assignment of Funding
Agreement(s) to the Funding
Note Indenture Trustee set
forth in Part C herein,
(iii) the Acknowledgement
of Assignment of Funding
Agreement(s) to the Funding
Note Indenture Trustee set
forth in Part D herein,
(iv) the Termination of
Security Interest and
Transfer of Funding
Agreement(s) to Global
Funding set forth in Part E
herein, (v) the
Acknowledgement of
Termination of Security
Interest and Transfer of
Funding Agreement(s) set
forth in Part F herein,
(vi) the Assignment of
Funding Agreement(s) to the
Trust set forth in Part G
herein, (vii) the
Acknowledgement of
Assignment of Funding
Agreement(s) Transfer to
the Trust set forth in Part
H herein, (viii) the
Certificate of Global
Funding Pursuant to Section
6(c) of the Distribution
Agreement set forth in Part
O herein, (ix) the
Cross-Receipt between the
Trust and Global Funding
set forth in Part U herein,
(x) the Cross-Receipt
between Global Funding and
Allstate Life set forth in
Part V herein and (xi) the
Cross-Receipt between
Global Funding and the
Trust set forth in Part W
herein)
By: Wilmington Trust Company, solely in its
capacity as Delaware Trustee
By: /s/ Robert J. Perkins
-----------------------------------------------------
Name: Robert J. Perkins
Title: Administrative Account Manager
Authorized Signer
THE ALLSTATE LIFE GLOBAL
FUNDING TRUST SPECIFIED
ABOVE (for purposes of (i)
the Indenture set forth in
Part A herein, (ii) the
Assignment of Funding
Agreement(s) to the Trust
set forth in Part G herein,
(iii) the Acknowledgement
of Assignment of Funding
Agreement(s) to the Trust
set forth in Part H herein,
(iv) the Assignment of
Funding Agreement(s) to the
Indenture Trustee set forth
in Part I herein, (v) the
Acknowledgement of
Assignment of Funding
Agreement(s) Assignment to
the Indenture Trustee set
forth in Part J herein,
(vi) the Instructions of
the Trust set forth in Part
L herein, (vii)
Cross-Receipt between the
Trust and the Agent(s) set
forth in Part T herein,
(viii) the Cross-Receipt
between the Trust and
Global Funding set forth in
Part U herein and (ix) the
Cross-Receipt between
Global Funding and the
Trust set forth in Part W
herein)
By: Wilmington Trust Company, solely in its
capacity as Delaware Trustee
By: /s/ Robert. J. Perkins
-----------------------------------------------------
Name: Robert J. Perkins
Title: Administrative Account Manager
Authorized Signer
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION (for
purposes of (i) the
Indenture set forth in Part
A herein, (ii) the Funding
Note Indenture set forth in
Part B herein, (iii) the
Assignment of Funding
Agreement(s) to the Funding
Note Indenture Trustee set
forth in Part C herein,
(iv) the Acknowledgement of
Assignment of Funding
Agreement(s) to the Funding
Note Indenture Trustee set
forth in Part D herein, (v)
the Termination of Security
Interest and Transfer of
Funding Agreement(s) to
Global Funding set forth in
Part E herein, (vi) the
Acknowledgement of
Termination of Security
Interest and Transfer of
Funding Agreement(s) set
forth in Part F
herein,(vii) the Assignment
of Funding Agreement(s) to
the Indenture Trustee set
forth in Part I herein,
(viii) the Acknowledgement
of Assignment of Funding
Agreement(s) to the
Indenture Trustee set forth
in Part J herein, (ix) the
Instructions of the Trust
set forth in Part L herein,
(x) the Acknowledgement of
Indenture Trustee
Concerning the Note
Certificate set forth in
Part M herein, (xi) the
Certificate of Indenture
Trustee Concerning the
Funding Agreement(s) set
forth in Part N herein and
(xii) the Certificate of
Indenture Trustee
Concerning Corporate
Matters set forth in Part R
herein)
By: /s/ Janice Ott Rotunno
-----------------------------------------------------
Name: Janice Ott Rotunno
Title: Vice President
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION,
Chicago, Illinois office
(for purposes of the
Certificate Regarding
Custody of Funding
Agreement(s) set forth in
Part K herein)
By: /s/ Janice Ott Rotunno
-----------------------------------------------------
Name: Janice Ott Rotunno
Title: Vice President
SECRETARY OF AMACAR PACIFIC CORP. (for purposes of the
Certificate of AMACAR PACIFIC CORP. set forth in Part S
herein)
By: /s/ Evelyn Echevarria
-----------------------------------------------------
Name: Evelyn Echevarria
Title: Secretary
I, an authorized officer of
AMACAR PACIFIC CORP., do
hereby certify that the
above signature is the true
and genuine signature of
the duly elected, qualified
and acting Secretary of
AMACAR PACIFIC CORP.
By: /s/ Douglas K. Johnson
-----------------------------------------------------
Name: Douglas K. Johnson
Title: President
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED (for
purposes of the Cross-Receipt between the Trust and the
Agent(s) set forth in Part T herein)
By: /s/ Sebina Ceddia
-----------------------------------------------------
Name: Sebina Ceddia
Title: Duly Authorized Attorney
DEUTSCHE BANK SECURITIES INC. (for purposes of the
Cross-Receipt between the Trust and the Agent(s) set forth
in Part T herein)
By: /s/ Erich Mauff
-----------------------------------------------------
Name: Erich Mauff
Title: Managing Director
By: /s/ Mary Myers
-----------------------------------------------------
Name: Mary Myers
Title: Vice President
EXHIBIT A
STANDARD INDENTURE TERMS
A-1
================================================================================
STANDARD INDENTURE TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING TRUSTS
================================================================================
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms Defined..................................................................1
SECTION 1.2 Interpretation........................................................................10
ARTICLE 2
THE NOTES
SECTION 2.1 Amount Unlimited......................................................................10
SECTION 2.2 Status of Notes.......................................................................10
SECTION 2.3 Forms Generally.......................................................................10
SECTION 2.4 Currency; Denominations...............................................................11
SECTION 2.5 Execution, Authentication, Delivery and Date..........................................12
SECTION 2.6 Registration, Transfer and Exchange...................................................13
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Note Certificates................................14
SECTION 2.8 Interest Record Dates.................................................................15
SECTION 2.9 Cancellation..........................................................................16
SECTION 2.10 Global Securities.....................................................................16
SECTION 2.11 Withholding Tax.......................................................................18
SECTION 2.12 Tax Treatment.........................................................................18
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS
SECTION 3.1 Redemption of Notes...................................................................18
SECTION 3.2 Repayment at the Option of the Holder.................................................21
SECTION 3.3 Repurchase of Notes...................................................................22
SECTION 3.4 Sinking Funds.........................................................................23
ARTICLE 4
PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS
SECTION 4.1 Payment of Principal and Interest.....................................................23
SECTION 4.2 Offices for Payments, etc.............................................................26
SECTION 4.3 Appointment to Fill a Vacancy in Office of Indenture Trustee..........................26
SECTION 4.4 Paying Agents.........................................................................26
SECTION 4.5 Calculation Agent.....................................................................30
SECTION 4.6 Certificate to Indenture Trustee......................................................32
SECTION 4.7 Negative Covenants....................................................................32
SECTION 4.8 Additional Amounts....................................................................35
ARTICLE 5
REMEDIES OF THE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.................36
SECTION 5.2 Collection of Indebtedness by Indenture Trustee; Indenture Trustee May Prove Debt.....39
SECTION 5.3 Application of Proceeds...............................................................41
SECTION 5.4 Suits for Enforcement.................................................................42
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings...................................43
SECTION 5.6 Limitations on Suits by Holders.......................................................43
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default...............44
SECTION 5.8 Control by the Holders................................................................44
SECTION 5.9 Waiver of Past Defaults...............................................................45
ARTICLE 6
THE INDENTURE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities...................................................45
SECTION 6.2 Certain Rights of the Indenture Trustee...............................................46
SECTION 6.3 Not Responsible for Recitals, Validity of the Notes or Application of the Proceeds....48
SECTION 6.4 May Hold Notes; Collections, etc......................................................48
SECTION 6.5 Funds Held by Indenture Trustee.......................................................48
SECTION 6.6 Compensation; Reimbursement; Indemnification..........................................48
SECTION 6.7 Corporate Trustee Required; Eligibility...............................................49
SECTION 6.8 Resignation and Removal; Appointment of Successor Trustee.............................50
SECTION 6.9 Acceptance of Appointment by Successor Trustee........................................51
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of Indenture Trustee......52
SECTION 6.11 Limitations on Rights of Indenture Trustee as Creditor................................52
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY INDENTURE TRUSTEE AND TRUST
SECTION 7.1 Trust to Furnish Indenture Trustee Names and Addresses of Holders.....................52
SECTION 7.2 Preservation of Information; Communication to Holders.................................53
SECTION 7.3 Reports by Indenture Trustee..........................................................53
SECTION 7.4 Reports by Trust......................................................................54
SECTION 7.5 Compliance Certificates and Auditor's Reports.........................................55
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 Evidence of Action Taken by a Holder..................................................55
SECTION 8.2 Proof of Execution of Instruments and of Holding of Notes.............................56
SECTION 8.3 Voting Record Date....................................................................56
SECTION 8.4 Persons Deemed to be Owners...........................................................56
SECTION 8.5 Notes Owned by Trust Deemed Not Outstanding...........................................56
SECTION 8.6 Right of Revocation of Action Taken; Binding Effect of Actions by Holders.............57
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders....................................57
SECTION 9.2 Supplemental Indentures With Consent of Holders.......................................58
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indenture.................59
SECTION 9.4 Documents to Be Given to Indenture Trustee............................................60
SECTION 9.5 Notation on Note Certificates in Respect of Supplemental Indentures...................60
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 Trust May Merge, Consolidate, Sell or Convey Property Under Certain Circumstances.....60
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 Satisfaction and Discharge of Indenture...............................................61
SECTION 11.2 Application by Indenture Trustee of Funds Deposited for Payment of Notes..............61
SECTION 11.3 Repayment of Funds Held by Paying Agent...............................................62
SECTION 11.4 Return of Funds Held by Indenture Trustee and Paying Agent............................62
ARTICLE 12
MEETINGS OF HOLDERS OF NOTES
SECTION 12.1 Purposes for Which Meetings May Be Called.............................................62
SECTION 12.2 Call, Notice and Place of Meetings....................................................62
SECTION 12.3 Persons Entitled to Vote at Meetings..................................................63
SECTION 12.4 Quorum; Action........................................................................63
SECTION 12.5 Determination of Voting Rights; Conduct of Adjournment of Meetings....................64
SECTION 12.6 Counting Votes and Recording Action of Meetings.......................................65
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 No Recourse...........................................................................65
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and Holders...................66
SECTION 13.3 Successors and Assigns of Trust Bound by Indenture....................................66
SECTION 13.4 Notices and Demands on Trust, Indenture Trustee and any Holder........................66
SECTION 13.5 Trust Certificates and Opinions of Counsel; Statements To Be Contained Therein........68
SECTION 13.6 Governing Law.........................................................................69
SECTION 13.7 Counterparts..........................................................................69
SECTION 13.8 Trust Indenture Act to Control........................................................69
SECTION 13.9 Judgment Currency.....................................................................70
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 Security Interest.....................................................................71
SECTION 14.2 Representations and Warranties........................................................71
SECTION 14.3 Additional Representations and Warranties.............................................72
SECTION 14.4 Further Assurances; Covenants.........................................................73
SECTION 14.5 General Authority.....................................................................75
SECTION 14.6 Remedies upon Event of Default........................................................75
SECTION 14.7 Limitation on Duties of Indenture Trustee with Respect to Collateral..................76
SECTION 14.8 Concerning the Indenture Trustee......................................................76
SECTION 14.9 Termination of Security Interest......................................................77
EXHIBIT A-1.......Form of Global Security for Secured Medium Term Notes Program
EXHIBIT A-2.......Form of Definitive Security for Secured Medium Term Notes Program
EXHIBIT A-3.......Form of Global Security for Allstate LifeSM CoreNotes(R)Program
EXHIBIT A-4.......Form of Definitive Security for Allstate LifeSM CoreNotes(R)Program
EXHIBIT B.........Form of Certificate of Authentication
EXHIBIT C.........Form of Annual Statement of Compliance
RECONCILIATION TABLE
Trust Indenture Act Section Standard Indenture Terms Section
ss.310(a)(1)...................................................................................................6.7
(a)(2)......................................................................................................6.7
(b).........................................................................................................6.8
ss.311(a).....................................................................................................6.11
ss.312(a) .....................................................................................................7.1
(b).........................................................................................................7.2
(c).........................................................................................................7.2
ss.313(a)...................................................................................................7.3(b)
(b)......................................................................................................7.3(c)
(c)......................................................................................................7.3(d)
(d)......................................................................................................7.3(d)
ss.314(a) .....................................................................................................7.4
(b).......................................................................................................7.3(f)
(c)(1) ..................................................................................................13.5(a)
(c)(2) .................................................................................................13.5(a)
(e).....................................................................................................13.5(b)
(f).....................................................................................................13.5(a)
ss.315(c) ..................................................................................................6.1(b)
ss.316(a) (last sentence) .....................................................................................8.5
(a)(1)(A)...................................................................................................5.8
(a)(1)(B)...................................................................................................5.9
(b).........................................................................................................5.6
ss.317(a)(1)................................................................................................5.2(c)
(a)(2) ..................................................................................................5.2(c)
(b)......................................................................................................4.4(a)
ss.318(a) ....................................................................................................13.8
(c) .......................................................................................................13.8
This reconciliation table shall not be deemed to be part of the
Indenture for any purpose.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that certain provisions of Sections 310 to and
including 317 are a part of and govern every qualified indenture, whether or not
physically contained in the Indenture.
This document constitutes the Standard Indenture Terms, which
will be incorporated by reference in, and form a part of, the Indenture (as
defined below), by and among the Trust (as defined below) and the Indenture
Trustee (as defined below).
These Standard Indenture Terms shall be of no force and effect
unless and until incorporated by reference into, and then only to the extent not
modified by, such Indenture.
The following Standard Indenture Terms shall govern the Notes
subject to contrary terms and provisions expressly adopted in the Indenture, any
Supplemental Indenture or the Notes, which contrary terms shall be controlling.
ARTICLE 1.........
DEFINITIONS
SECTION 1.1.......Certain Terms Defined. The following terms shall have the
meanings specified in this Section for all purposes of the Indenture and the
Notes, unless otherwise expressly provided. All other terms used in the
Indenture which are defined in the Trust Indenture Act or which are by reference
therein defined in the Securities Act shall have the meanings (except as
otherwise expressly provided in the Indenture or unless the context otherwise
clearly requires) assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the Indenture as originally executed.
"Additional Amounts" means any additional amounts which may be required
by the Notes, under circumstances specified in a Note Certificate or
Supplemental Indenture, to be paid by the Trust in respect of certain taxes,
assessments or other governmental charges imposed on Holders specified therein
and which are owing to such Holders.
"Administrative Services Agreement" means that certain administrative
services agreement included in Part B of the Series Instrument, by and between
the Trust and the Administrator, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Administrator" means AMACAR Pacific Corp., a Delaware corporation, in
its capacity as the sole administrator of the Trust, and its permitted
successors and assigns.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agents" has the meaning set forth in the Distribution Agreement.
"Amended and Restated Administrative Services Agreement" means that
certain Amended and Restated Administrative Services Agreement dated as of April
27, 2004, between AMACAR Pacific Corp. and Global Funding, as the same may be
amended, restated, modified, supplemented or replaced from time to time.
"Annual Redemption Percentage Reduction" has the meaning specified in
the Note Certificate(s).
"Book-Entry Note" means a Note, the registered ownership of which is
represented by a Global Security.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
provided, however, that, with respect to Foreign Currency Notes, the day must
also not be a day on which commercial banks are authorized or required by law,
regulation or executive order to close in the Principal Financial Center of the
country issuing the Specified Currency (or, if the Specified Currency is Euro,
the day must also be a day on which the Target System is open).
"Calculation Agent" means the Indenture Trustee in its capacity as
calculation agent or any other Person specified as calculation agent with
respect to any Notes in the Note Certificate(s).
"Certificated Note" means a Note represented by a Definitive Security.
"Clearing Corporation" means DTC, or any other clearing system
specified in the Note Certificate(s) and their respective successors and
"Clearing Corporations" means all of the foregoing.
"Closing Instrument" means the closing instrument of the Trust,
pursuant to which 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 United States Internal Revenue Code of 1986, as
amended, including any successor statutes and any applicable rules, regulations,
notices or orders promulgated thereunder.
"Collateral" means, with respect to the Notes, the right, title and
interest of the Trust in and to (i) each Funding Agreement held in the Trust,
(ii) all Proceeds in respect of each such Funding Agreement and (iii) all books
and records (including without limitation, computer programs, printouts and
other computer materials and files) of the Trust pertaining to the Funding
Agreement(s).
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of the Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Coordination Agreement" means that certain Coordination Agreement
included in Part F of the Series Instrument, among the Funding Agreement
Provider, 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 office of the Indenture Trustee at
which the Indenture shall, at any particular time, be administered, which office
is, at the date as of the Indenture located at 201 North Central Avenue,
Phoenix, AZ 85004, except that for the purposes of Section 4.2 it shall be 4 New
York Plaza, 1st Floor, New York, New York 10004, or such other location as may
be specified in or pursuant to the Note Certificate(s).
"Debt" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (iv) all contingent
and non-contingent obligations of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit or similar
instrument, (v) all Debt secured by a Lien on any asset of such Person, whether
or not such Debt is otherwise an obligation of such Person, and (vi) all
Guarantees by such Person of Debt of another Person (each such Guarantee to
constitute Debt in an amount equal to the amount of such other Person's Debt
Guaranteed thereby).
"Defaulted Interest" has the meaning specified in Section 2.8(b).
"Definitive Security" means any Note Certificate which is not a Global
Security.
"Delaware Trustee" means Wilmington Trust Company, a Delaware banking
corporation not in its individual capacity but solely as trustee and its
successors.
"Depositary" shall mean, if the Notes are represented by one or more
Global Securities, the Clearing Corporation or its agent or nominee designated
as Depositary by the Trust pursuant to Section 2.10 until a successor Depositary
shall have become such pursuant to the applicable provisions of the Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary under the Indenture. The Depositary must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation. Unless otherwise specified in the Note Certificate(s), the
"Depositary" shall initially be DTC.
"Distribution Agreement" means that certain Distribution Agreement
dated as of 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.
"Entitlement Holder" means any Person in whose name Notes are credited
to a securities account maintained in the name of such Person on the books and
records of a Clearing Corporation or other Securities Intermediary.
"Euro" means the currency introduced at the start of the third stage of
the European economic and monetary union pursuant to the treaty establishing the
European Community, as amended by the Treaty on European Union.
"Event of Default" means any event or condition specified as such in
Section 5.1 which shall have continued for the period of time, if any, therein
designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Event" has the meaning set forth in Section 2.10(b).
"Exchange Rate Agent" means the Indenture Trustee in its capacity as
exchange rate agent or any other person specified as exchange rate agent with
respect to any Notes in the Note Certificate(s).
"Foreign Currency Note" means a Note the Specified Currency of which is
other than U.S. Dollars.
"Funding Agreement" means each funding agreement issued by the Funding
Agreement Provider to Global Funding, which is immediately 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 Provider" means Allstate Life Insurance Company, a
stock life insurance company organized under the laws of the State of Illinois.
"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, as the same may be amended,
restated, modified, supplemented or replaced from time to time.
"Funding Note Indenture Trustee" means the party specified 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 and its successors.
"Global Security" means a single Note Certificate deposited with the
Depositary and registered in the name of a Clearing Corporation or its agent or
nominee representing the entire issue of Book-Entry Notes, or if the rules of
the applicable Clearing Corporation or the applicable securities laws or
regulations of any jurisdiction limit the maximum principal amount of Note
Certificates, each of the minimum number of Note Certificates so deposited and
registered that are required to comply with such laws, regulations and rules
while representing in the aggregate the entire issue of Book-Entry Notes.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by virtue of an
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise), (ii)
to reimburse a bank for amounts drawn under a letter of credit for the purpose
of paying such Debt or (iii) entered into for the purpose of assuring in any
other manner the holder of such Debt of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in part); provided that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" means, with respect to any Note, the Person in whose name such
Note is registered in the Note Register.
"Holder Representative" has the meaning set forth in Section 5.8(a).
"incorporated provision" has the meaning set forth in Section 13.8.
"Indenture" means that certain Indenture included in Part A of the
Closing Instrument, and which incorporates by reference these Standard Indenture
Terms, 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 specified as such in the preamble
to the Indenture and, subject to the applicable provisions of the Indenture, its
successors.
"Initial Redemption Date" means, with respect to any Note or portion
thereof to be redeemed pursuant to Section 3.1(b), the date on or after which
such Note or portion thereof may be redeemed as determined by or pursuant to the
Indenture or a Note Certificate of Supplemental Indenture.
"Initial Redemption Percentage" has the meaning specified in the Note
Certificate(s).
"Interest Payment Date" has the meaning specified in Section 2.8(a).
"Interest Reset Date" has the meaning specified in the Note
Certificate(s).
"LIBOR" has the meaning ascribed in the Note Certificate(s).
"LIBOR Currency" means the currency specified in the Note
Certificate(s) as to which LIBOR shall be calculated or, if no currency is
specified in the applicable Note Certificate, United States dollars.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, the Trust
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Market Exchange Rate" for a Specified Currency other than United
States dollars means the noon dollar buying rate in The City of New York for
cable transfers for the Specified Currency as certified for customs purposes
(or, if not so certified, as otherwise determined) by the Federal Reserve Bank
of New York.
"Maturity Date" means, with respect to the principal (or any
installment of principal) of the Notes, the Stated Maturity Date or any date
prior to the Stated Maturity Date on which the principal (or such installment of
principal) of the Notes becomes due and payable whether, as applicable, by the
declaration of acceleration of maturity, notice of redemption at the option of
the Trust, notice of the Holder's option to elect repayment or otherwise.
"Name Licensing Agreement" means that certain Name Licensing Agreement
included in Part D of the Series Instrument, between Allstate Insurance Company
and the Trust, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"Nonrecourse Parties" has the meaning set forth in Section 13.1.
"Note" means each medium term note issued by the Trust and
authenticated by the Indenture Trustee under the Indenture, each in an
authorized denomination and represented, individually or collectively, by one or
more Note Certificates.
"Note Certificate" means a security certificate representing one or
more Notes.
"Note Register" has the meaning set forth in Section 2.6(a).
"Obligations" means the obligations of the Trust secured under the
Notes and the Indenture, including (a) all principal of, any premium and
interest payable (including, without limitation, any interest which accrues
after the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Trust, whether or not allowed or
allowable as a claim in any such proceeding) on, and any Additional Amounts with
respect to, the Notes or pursuant to the Indenture, (b) all other amounts
payable by the Trust under the Indenture or under the Notes including all costs
and expenses (including attorneys' fees) incurred by the Indenture Trustee or
any Holder thereof in realizing on the Collateral to satisfy such obligations
and (c) any renewals or extensions of the foregoing.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Trust or the Indenture
Trustee or who may be other counsel satisfactory to the Indenture Trustee. Each
such opinion shall include the statements provided for in Section 13.5 hereof,
if and to the extent required hereby.
"Outstanding" shall, subject to the provisions of Section 8.5, mean, as
of any particular time, all Notes represented by Note Certificates executed by
the Trust and authenticated and delivered by the Indenture Trustee under the
Indenture, except (a) any Note represented by a Note Certificate theretofore
cancelled by the Indenture Trustee or delivered to the Indenture Trustee for
cancellation; (b) any Note as to which funds for the full payment or redemption
of which in the necessary amount shall have been deposited in trust with the
Indenture Trustee or with any Paying Agent; provided that if such Note is to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in or pursuant to the Indenture, or provision
satisfactory to the Indenture Trustee shall have been made for giving such
notice; and (c) any Note represented by a Note Certificate in substitution for
which one or more other Note Certificates shall have been authenticated and
delivered pursuant to the terms of Section 2.5 or which shall have been paid
(unless proof satisfactory to the Indenture Trustee is presented that any of
such Note is held by a Person in whose hands such Note is a legal, valid and
binding obligation of the Trust).
"Owner" shall, with respect to each Funding Agreement, have the meaning
specified in such Funding Agreement.
"Paying Agent" means the Indenture Trustee in its capacity as paying
agent and its successors, and any other Person specified as paying agent with
respect to any Notes in the Note Certificate(s).
"Person" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, trust or other organization, whether or not a legal
entity, and any government or any agency or political subdivision thereof.
"Pricing Supplement" means the pricing supplement included as Annex A
to the Series Instrument.
"Principal Amount" with respect to a Funding Agreement, has the meaning
ascribed in such Funding Agreement.
"Principal Financial Center" means, as applicable (i) the capital city
of the country issuing the Specified Currency; or (ii) the capital city of the
country to which the LIBOR Currency relates; provided, however, that with
respect to United States dollars, Australian dollars, Canadian dollars,
Portuguese escudos, South African rands and Swiss francs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, London (solely
in the case of the LIBOR Currency), Johannesburg and Zurich, respectively.
"Proceeds" means all of the proceeds of, and all other profits,
products, rents, principal payments, interest payments or other receipts, in
whatever form, arising from the collection, sale, lease, exchange, assignment,
licensing or other disposition or maturity of, or other realization upon, a
Funding Agreement, including without limitation all claims of the Trust against
third parties for loss of, damage to or destruction of, or for proceeds payable
under, such Funding Agreement, in each case whether now existing or hereafter
arising.
"Redemption Date" means, with respect to any Note to be redeemed,
pursuant to Section 3.1(b) or Section 3.1(c), the date of redemption of such
Note specified in the relevant notice of redemption provided to the Indenture
Trustee pursuant to Section 3.1(d).
"Redemption Price" means, with respect to the Notes, an amount equal to
the Initial Redemption Percentage specified in the Note Certificate(s) (as
adjusted by the Annual Redemption Percentage Reduction, if applicable)
multiplied by the unpaid principal amount thereof to be redeemed.
"Registrar" has the meaning specified in Section 2.6(a).
"Regular Interest Record Date" has the meaning set forth in Section
2.8(a).
"Repayment Date" means, with respect to any Note or portion thereof to
be repaid pursuant to Section 3.2, the date for the repayment of such Note or
portion thereof as determined by or pursuant to the Indenture or a Note
Certificate or Supplemental Indenture.
"Repayment Price" means, with respect to any Note or portion thereof to
be repaid pursuant to Section 3.2, the price for repayment of such Note or
portion thereof as determined by, or pursuant to, the Indenture or an applicable
Note Certificate or Supplemental Indenture.
"Responsible Officer" when used with respect to any Person means the
chairman of the board of directors or any vice chairman of the board of
directors or the president or any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "vice
president") of such Person. With respect to the Trust, Responsible Officer means
any Responsible Officer (as defined in the preceding sentence) plus any
assistant secretary and any financial services officer of the Delaware Trustee,
and with respect to the Indenture Trustee, Responsible Officer means any
Responsible Officer (as defined in the first sentence of this definition) plus
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the cashier, the secretary, the
treasurer, any trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other authorized officer of the Indenture Trustee customarily
performing functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means any Person, including any Clearing
Corporation, bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"Security Interest" has the meaning set forth in Section 14.1(a).
"Series Instrument" means the series instrument of the Trust, pursuant
to which the Administrative Services Agreement, the Coordination Agreement, the
Name Licensing Agreement, the Support Agreement, the Terms Agreement and the
Trust Agreement are entered into, and certain other documents are executed, in
connection with the issuance of the Notes by the Trust.
"Special Interest Record Date" has the meaning set forth in Section
2.8(b).
"Specified Currency" has the meaning specified in Section 2.4.
"Stated Maturity Date," means with respect to any Note, any installment
of principal thereof, or interest thereon, any premium thereon or any Additional
Amounts with respect thereto, the date established by or pursuant to the
Indenture or Note Certificate or Supplemental Indenture as the date on which the
principal of such Note or such installment of principal or interest or such
premium is, or such Additional Amounts are, due and payable.
"Supplemental Indenture" has the meaning specified in Section 9.1(a).
"Support Agreement" means that certain Support and Expenses Agreement
included in Part C of the Series Instrument, by and between the Funding
Agreement Provider and the Trust, as the same may be amended, restated,
modified, supplemented or replaced from time to time.
"TARGET System" means the Trans-European Automated Real Time Gross
Settlement Express Transfer (TARGET) System.
"Tax Event" has the meaning specified in Section 3.1(c).
"Terms Agreement" means that certain Terms Agreement included in Part E
of the Series Instrument, by and among Global Funding, the Trust and each Agent
named therein, which will incorporate by reference the terms of the Distribution
Agreement.
"Trust" means the Allstate Life Global Funding Trust specified in the
Closing Instrument, together with its permitted successors and assigns.
"Trust Agreement" means that certain Trust Agreement included in Part A
of the Series Instrument, among the Delaware Trustee, the Administrator and the
Trust Beneficial Owner.
"Trust Beneficial Owner" means Global Funding, in its capacity as the
sole beneficial owner of the Trust, and its successors.
"Trust Certificate" means a certificate signed by the Administrator on
behalf of the Trust and delivered to the Indenture Trustee. Each such
certificate shall include the statements provided for in Section 13.5.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
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.
"United States", except as otherwise provided in or pursuant to the
Indenture or any Note Certificate, means the United States of America (including
the states thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"United States Dollars", "U.S. dollars" or "$" means lawful currency of
the United States.
SECTION 1.2 Interpretation. For all purposes of the Indenture except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article shall have the meanings ascribed to them
in this Article and shall include the plural as well as the singular;
(b) all accounting terms used and not expressly defined shall have the meanings
given to them in accordance with United States generally accepted
accounting principles, and the term "generally accepted accounting
principles" shall mean such accounting principles which are generally
accepted at the date or time of any computation or at the date of the
Indenture;
(c) references to Exhibits, Articles, Sections, paragraphs, subparagraphs and
clauses shall be construed as references to the Exhibits, Articles,
Sections, paragraphs, subparagraphs and clauses of the Indenture;
(d) the words "include", "includes" and "including" shall be construed to be
followed by the words "without limitation"; and
(e) Article and Section headings are for the convenience of the reader and
shall not be considered in interpreting the Indenture or the intent of the
parties.
ARTICLE 2
THE NOTES
SECTION 2.1 Amount Unlimited. The aggregate principal amount of Notes that may
be authenticated and delivered under the Indenture is unlimited.
SECTION 2.2 Status of Notes. The Notes constitute direct, unconditional,
unsubordinated and secured non-recourse obligations of the Trust and rank
equally among themselves.
SECTION 2.3 Forms Generally.
(a) The Note Certificates, shall be in, or substantially in, the form set forth
in Exhibit A-1, Exhibit A-2, Exhibit A-3 and Exhibit A-4 attached hereto,
as applicable, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Indenture or as may in the Trust's judgment be necessary, appropriate or
convenient to permit the Notes to be issued and sold, or to comply, or
facilitate compliance, with applicable laws, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange on which the Notes may be listed, or as may,
consistently herewith, be determined by the Responsible Officer of the
Trust executing such Note Certificates, with the approval of the Indenture
Trustee, as evidenced by his or her execution thereof.
(b) Note Certificates may be printed, lithographed, engraved, typewritten,
photocopied or otherwise produced in any manner as the Responsible Officer
of the Trust executing such Notes may determine.
(c) The terms and provisions contained in the Note Certificates and in any
Supplemental Indenture shall constitute, and are expressly made, a part of
the Indenture and, to the extent applicable, the Trust and the Indenture
Trustee, by their execution and delivery of the Indenture, expressly agree
to such terms and provisions and to be bound thereby.
SECTION 2.4 Currency; Denominations.
(a) Unless otherwise specified in the Note Certificates or in any Supplemental
Indenture, Notes will be denominated in, and payments of principal of,
premium and interest on, and Additional Amounts in respect to, the Notes
will be made in, U.S. dollars. The currency in which the Notes are
denominated (or, if such currency is no longer legal tender for the payment
of public and private debts in the country issuing such currency or, in the
case of Euro, in the member states of the European Union that have adopted
the single currency in accordance with the Treaty establishing the European
Community, as amended by the Treaty on European Union, such currency which
is then such legal tender) is in the Indenture referred to as the
"Specified Currency".
(b) The Trust appoints the Indenture Trustee as Exchange Rate Agent with
respect to the Notes and the Indenture Trustee accepts such appointment.
(c) If the Specified Currency for Foreign Currency Notes is not available for
any required payment of principal, premium, if any, and/or interest, if
any, due to the imposition of exchange controls or other circumstances
beyond the control of the Trust, the Trust will be entitled to satisfy the
obligations to the registered holders of such Foreign Currency Notes by
making payments in United States dollars on the basis of the Market
Exchange Rate, computed by the Exchange Rate Agent as described above, on
the second business day prior to the particular payment or, if the Market
Exchange Rate is not then available, on the basis of the most recently
available market exchange rate.
(d) Unless otherwise specified in the Note Certificates or in a Supplemental
Indenture, Notes shall be issued in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof or equivalent denominations
in other currencies.
(e) The Trust may (if so specified in a Note Certificate or Supplemental
Indenture) without the consent of the Holder of any Note, redenominate all,
but not less than all, of the Notes on or after the date on which the
member state of the European Union in whose national currency the Notes are
denominated has become a participant member in the third stage of the
European economic and monetary union as more fully set out in a Note
Certificate or Supplemental Indenture.
(f) Unless otherwise specified in a Note Certificate or Supplemental Indenture,
the Trust shall not sell Foreign Currency Notes in, or to residents of, the
country issuing the Specified Currency.
SECTION 2.5 Execution, Authentication, Delivery and Date.
(a) Each Note Certificate shall be executed on behalf of the Trust by any
Responsible Officer of the Delaware Trustee. The signature of any
Responsible Officer of the Delaware Trustee may be manual, in facsimile
form, imprinted or otherwise reproduced and may, but need not, be attested.
(b) Each Note Certificate bearing the signature of a Person who was at any time
a Responsible Officer of the Delaware Trustee shall bind the Trust,
notwithstanding that such Person has ceased to hold such office prior to
the authentication and delivery of such Note Certificate or did not hold
such office at the date of such Note Certificate.
(c) At any time, and from time to time, after the execution and delivery of the
Indenture, the Trust may deliver Note Certificates executed by or on behalf
of the Trust to the Indenture Trustee for authentication, and the Indenture
Trustee shall thereupon authenticate and deliver such Note Certificates as
provided in the Indenture and not otherwise.
(d) The Indenture Trustee shall have the right to decline to authenticate and
deliver any Note Certificates under this Section if the Indenture Trustee
has obtained an Opinion of Counsel reasonably acceptable to the Trust, to
the effect that the issuance of the Notes will adversely affect the
Indenture Trustee's own rights, duties or immunities under the Indenture.
(e) The Note Certificates shall be dated the date of their authentication.
(f) No Note shall be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose, unless there appears on the Note Certificate
representing such Note a certificate of authentication substantially in the
form attached as Exhibit B executed by the Indenture Trustee by manual
signature of one of its authorized signatories. Such certificate upon any
Note Certificate shall be conclusive evidence, and the only evidence, that
such Note Certificate has been duly authenticated and delivered under the
Indenture.
SECTION 2.6 Registration, Transfer and Exchange.
(a) The Indenture Trustee will serve initially as registrar (in such capacity,
and together with any successor registrar, the "Registrar") for the Notes.
In such capacity, the Indenture Trustee will cause to be kept at the
Corporate Trust Office of the Indenture Trustee a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Indenture Trustee will provide for the registration of the
Notes and of transfers of the Notes. The Note Register shall be in written
form in the English language or in any other form capable of being
converted into such form within a reasonable time.
(b) Subject to Section 2.10, upon surrender of a Note Certificate for
registration of transfer of any Note represented thereby, together with the
form of transfer endorsed thereon duly completed and executed, at the
designated office of the Registrar or of any applicable transfer agent,
each as provided in a Note Certificate or Supplemental Indenture, the
Delaware Trustee, on behalf of the Trust shall execute, and the Indenture
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Note Certificates of any
authorized denomination representing an aggregate principal amount of Notes
equal to the aggregate principal amount of the Notes represented by such
Note Certificate surrendered for registration of transfer.
(c) Subject to Section 2.10, at the option of the applicable Holder, any Note
Certificate may be exchanged for one or more new Note Certificates, and any
two or more Note Certificates may be consolidated into and exchanged for a
single Note Certificate or fewer than the number of Note Certificates duly
presented for exchange, in each case representing one or more Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Notes represented by the Note Certificate or Note Certificates duly
presented for exchange. Each Note Certificate to be exchanged shall be
surrendered at the designated office of the Registrar or of any applicable
transfer agent, each as provided in a Note Certificate or Supplemental
Indenture. Whenever any Note Certificate is so surrendered for exchange,
the Delaware Trustee, on behalf of the Trust shall execute, and the
Indenture Trustee shall authenticate and deliver, the Note Certificate or
Note Certificates which the applicable Holder is entitled to receive,
bearing numbers, letters or other designating marks not contemporaneously
outstanding.
(d) Each Note Certificate executed, authenticated and delivered upon any
transfer or exchange shall be a valid obligation of the Trust, evidencing
the same debt, and entitled to the same benefits under the Indenture, as
the Note Certificates surrendered in connection with any such transfer or
exchange. Upon surrender, transfer or exchange of a Note Certificate
pursuant to this Section 2.6, each new Note Certificate will, within three
Business Days of the receipt of the applicable form of transfer or the
applicable surrender, as the case may be, be delivered to the designated
office of the Registrar or of any applicable transfer agent, each as
provided in a Note Certificate or Supplemental Indenture, or mailed at the
risk of the Person entitled to such Note Certificate to such address as may
be specified in the form of transfer or in written instructions of the
applicable Holder upon surrender for exchange.
(e) Every Note Certificate presented or surrendered in connection with any
transfer or exchange shall (if so required by the Trust or the Indenture
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Trust and the Indenture Trustee duly
executed by, the applicable Holder or his attorney duly authorized in
writing.
(f) No service charge shall be made in connection with any transfer of Notes or
exchange of Note Certificates, but the Trust or the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer of Notes or
exchange of Note Certificates.
(g) Except as otherwise provided in or pursuant to the Indenture, the Trust and
the Indenture Trustee shall not be required to (i) upon presentation or
surrender of a Note Certificate in connection with any transfer or exchange
during a period beginning at the opening of business 15 days before the day
of the selection for redemption of Notes under Section 3.1 and ending at
the close of business on the day of such selection, exchange any Note
Certificate representing any Note selected for redemption, register the
transfer of any such Note, or portion thereof, except in the case of any
Note to be redeemed in part, with respect to the portion of such Note not
to be redeemed, or (ii) exchange any Note Certificate representing any Note
the Holder or Holders of which shall have exercised the option pursuant to
Section 3.2 to require the Trust to repay any such Note prior to its Stated
Maturity Date or register the transfer of any such Note except, in the case
of any Note to be repaid in part, with respect to the portion of such Note
not to be repaid.
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Note Certificates.
(a) If (i) any mutilated Note Certificate is surrendered to the Indenture
Trustee or the Trust, or the Indenture Trustee and the Trust receive
evidence to their satisfaction of the destruction, loss or theft of any
Note Certificate, and (ii) there is delivered to the Trust and the
Indenture Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Trust or
the Indenture Trustee that such Note Certificate has been acquired by a
protected purchaser, the Trust shall execute and upon its request the
Indenture Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Note Certificate, a
new Note Certificate representing Notes of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
(b) If any Note represented by any such mutilated or apparently destroyed, lost
or stolen Note Certificate has become or is about to become due and
payable, the Trust in its discretion may, instead of issuing a new Note
Certificate, pay such amounts in respect of the Notes represented by such
Note Certificate.
(c) Upon the execution, authentication and delivery of any new Note Certificate
under this Section, the Indenture Trustee or the Trust may require the
Holder to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Indenture Trustee) connected
therewith.
(d) The Notes represented by every Note Certificate executed, authenticated and
delivered pursuant to this Section in lieu of any apparently destroyed,
lost or stolen Note Certificate shall constitute an original additional
contractual obligation of the Trust, whether or not any obligation with
respect to the Notes represented by the apparently destroyed, lost or
stolen Note Certificate shall be at any time enforceable by any Person, and
shall be entitled to all of the benefits of the Indenture equally and
proportionately with any and all other Notes duly issued under the
Indenture.
(e) The provisions of this Section are exclusive with respect to the
replacement of any mutilated or apparently destroyed, lost or stolen Note
Certificate or the payment of the Notes represented thereby and shall
preclude all other rights and remedies with respect to the replacement of
any mutilated or apparently destroyed, lost or stolen Note Certificate or
the payment of the Notes represented thereby.
SECTION 2.8 Interest Record Dates.
(a) Interest on and Additional Amounts with respect to any Note which is
payable, on any interest payment date specified in the Note Certificates or
in any Supplemental Indenture (each such date, an "Interest Payment Date")
shall be paid to the Holder of such Note at the close of business on the
date specified as the regular interest record date in the Note Certificates
or Supplemental Indenture (the "Regular Interest Record Date") or, if no
such date is specified, the date that is 15 calendar days preceding such
Interest Payment Date.
(b) Unless otherwise provided in the Note Certificates or in any Supplemental
Indenture, any interest on, and any Additional Amounts with respect to, any
Note which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date specified in the Note Certificates or
Supplemental Indenture (the "Defaulted Interest") shall forthwith cease to
be payable to the Holder of such Note on the relevant Regular Interest
Record Date by virtue of having been such Holder, and such Defaulted
Interest shall be paid by the Trust to the Holder of such Note at the close
of business on a special record date (the "Special Interest Record Date")
established by the Trust by notice to each applicable Holder and the
Indenture Trustee in accordance with Section 13.4, which Special Interest
Record Date shall be not more than 15 nor less than 10 days prior to the
date of the proposed payment of Defaulted Interest and not less than 10
days after the receipt by the Indenture Trustee of the notice of the
proposed payment of Defaulted Interest.
SECTION 2.9 Cancellation. Each Note Certificate surrendered for exchange or in
connection with any payment, redemption, transfer of any Note represented
thereby shall be delivered to the Indenture Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Trust may at any time deliver
to the Indenture Trustee for cancellation any Note Certificate previously
authenticated and delivered under the Indenture which the Trust may have
acquired in any manner whatsoever, and each Note Certificate so delivered shall
be promptly cancelled by the Indenture Trustee. No Note Certificates shall be
authenticated in lieu of or in exchange for any Note Certificate cancelled as
provided in this Section, except as expressly permitted by the Indenture. The
Indenture Trustee shall destroy all cancelled Note Certificates held by it and
deliver a certificate of destruction to the Trust. If the Trust shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until each
Note Certificate representing such Notes is delivered to the Indenture Trustee
for cancellation.
SECTION 2.10 Global Securities.
(a) Unless (i) permitted by applicable law and (ii) an Exchange Event shall
have occurred and be continuing with respect to a series of Book-Entry
Notes represented by one or more Global Securities, no Book-Entry Note
represented by any such Global Security shall be exchangeable for
Certificated Notes.
(b) For purposes of the Indenture, the term "Exchange Event" means any of the
following:
(i) the Depositary with which any Global Security is deposited shall have
notified the Trust that it is unwilling or unable to continue as the
Depositary for any Global Security or the Trust becomes aware that the
Depository has ceased to be a clearing agency registered under the Exchange
Act and, in any such case, the Trust fails to appoint a successor to the
Depositary within 60 calendar days;
(ii) the Trust, in its sole discretion, determines that the Notes should no
longer be represented solely by one or more Global Securities; or
(iii)an Event of Default shall have occurred and be continuing with respect to
the Notes.
(c) If any Exchange Event shall have occurred and be continuing, then:
(i) with respect to each Global Security deposited with, and registered in the
name of, the applicable Depositary or its nominee, the Delaware Trustee, on
behalf of the Trust shall promptly, and in any event not later than 10
Business Days after the occurrence of such Exchange Event, cause to be
executed, authenticated and delivered to the applicable Depositary or its
nominee, against surrender by the applicable Depositary or its nominee of
such Global Security, which shall thereupon be cancelled by the Indenture
Trustee, a Definitive Security or a Definitive Securities each representing
such number of Notes as may be specified by the applicable Depositary in an
aggregate principal amount equal to the (Outstanding principal amount of
Notes that shall have been represented by such Global Security and shall
register the Certificated Notes in such names and in such authorized
denominations as may be specified by the Depositary for the Global
Security; and
(ii) if any Certificated Note is issued in exchange for any portion of or all
Book-Entry Notes represented by a Global Security after the close of
business at the office or agency for such Note where such exchange occurs
on (A) any Regular Interest Record Date for such Notes and before the
opening of business at such office or agency on the next Interest Payment
Date, or (B) any Special Interest Record Date for such Notes and before the
opening of business at such office or agency on the related proposed date
for payment of interest, any Additional Amounts or Defaulted Interest, as
the case may be, interest, Additional Amounts or Defaulted Interest, as the
case may be, shall not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Notes, but shall
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest and any Additional
Amounts or Defaulted Interest, as applicable, in respect of such portion of
or all Book-Entry Notes, as the case may be, represented by such Global
Security shall be payable in accordance with the provisions of the
Indenture.
(d) The Certificated Notes issued in exchange for any Book-Entry Notes
represented by a Global Security shall be of like tenor and of an equal
aggregate principal amount, in authorized denominations. Such Certificated
Notes shall be registered in the name or names of such person or persons as
the applicable Depository shall instruct the Registrar.
SECTION 2.11 Withholding Tax. All amounts due in respect of the Notes will be
made without withholding or deduction for or on account of any present or future
taxes, duties, levies, assessments or other governmental charges of whatever
nature imposed or levied by or on behalf of any governmental authority in the
United States having the power to tax payments on the notes unless the
withholding or deduction is required by law. Unless otherwise specified in the
Note Certificate(s), the Trust will not pay any Additional Amounts to Holders of
Notes in the event that any withholding or deduction is so required by law,
regulation or official interpretation thereof, and the imposition of a
requirement to make any such withholding or deduction will not give rise to any
independent right or obligation to redeem or repay the Notes and shall not
constitute an Event of Default.
SECTION 2.12 Tax Treatment. The parties agree, and each Holder and beneficial
owner of Notes by purchasing the Notes agrees, for all United States Federal,
state and local income and franchise tax purposes (i) to treat the Notes as
indebtedness of the Funding Agreement Provider, (ii) Global Funding and the
Trust will be ignored and will not be treated as an association or a publicly
traded partnership taxable as a corporation and (iii) to not take any action
inconsistent with the treatment described in (i) and (ii) unless otherwise
required by law.
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS
SECTION 3.1 Redemption of Notes.
(a) Redemption of Notes by the Trust as permitted or required by the Indenture
and the Note Certificate(s) will be made in accordance with the terms of
the Notes and (except as otherwise provided in the Indenture or pursuant to
the Indenture) this Section.
(b) If any Initial Redemption Date is specified in the Note Certificate(s), the
Trust may redeem Notes prior to the Stated Maturity Date at its option, on,
or on any Business Day after, the Initial Redemption Date in whole or from
time to time in part in increments of $1,000 or any other integral multiple
of an authorized denomination of the Notes at the applicable Redemption
Price together with any unpaid interest accrued thereon, any Additional
Amounts and other amounts payable with respect thereto, as of the
Redemption Date.
(c) If (i) the Trust is required at any time to pay Additional Amounts or if
the Trust is obligated to withhold or deduct any United States taxes with
respect to any payment under the Notes, as set forth in the Note
Certificate(s), or if there is a material probability that the Trust will
become obligated to withhold or deduct any such United States taxes or
otherwise pay Additional Amounts (in the opinion of independent legal
counsel selected by the Funding Agreement Provider), in each case pursuant
to any change in or amendment to any United States tax laws (or any
regulations or rulings thereunder) or any change in position of the
Internal Revenue Service regarding the application or interpretation
thereof (including, but not limited to, the Funding Agreement Provider's or
the Trust's receipt of a written adjustment from the Internal Revenue
Service in connection with an audit) (a "Tax Event"), and (ii) the Funding
Agreement Provider, pursuant to the terms of the relevant Funding
Agreement, has delivered to the Owner notice that the Funding Agreement
Provider intends to terminate the relevant Funding Agreement pursuant to
the terms of such Funding Agreement, then the Trust will redeem the Notes
on the Redemption Date at the Redemption Price together with any unpaid
interest accrued thereon, any Additional Amounts and other amounts payable
with respect thereto, as of the Redemption Date.
(d) Unless a shorter notice shall be satisfactory to the Indenture Trustee, the
Trust shall provide to the Indenture Trustee a notice of redemption of any
Notes (i) in case of any redemption at the election of the Trust, not more
than 60 days nor less than 35 days prior to the Redemption Date and (ii) in
case of any mandatory redemption pursuant to Section 3.1(c), at least 75
days prior to the Redemption Date. In case of any redemption at the
election of the Trust of less than all of the Notes such notice shall
specify the aggregate principal amount of the Notes to be redeemed.
(e) If less than all of the Notes are to be redeemed at the option of the
Trust, the particular Notes to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Indenture Trustee from the
Outstanding Notes not previously called for redemption, by such method as
the Indenture Trustee shall deem fair and appropriate, acting in accordance
with its obligations under the Indenture, and which may provide for the
selection for redemption of portions of the principal amount of Notes;
provided, however, that no such partial redemption shall reduce the portion
of the principal amount of a Note not redeemed to less than the minimum
denomination for a Note established in or pursuant to the Indenture;
provided further, that if at the time of redemption such Notes are
registered as Global Securities, the Depositary shall determine, in
accordance with its procedures, the principal amount of such Notes to be
redeemed by each of the Depositary's participants. The Indenture Trustee
shall promptly notify the Trust and the Registrar (if other than itself) in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, of the aggregate principal amount thereof
to be redeemed. For all purposes of the Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes
shall relate, in the case of any Notes redeemed or to be redeemed only in
part, to the portion of the principal of such Notes which has been or is to
be redeemed.
(f) Unless otherwise specified in the Indenture or the Note Certificate(s) the
Trust shall give a notice of redemption to each Holder of the Notes to be
redeemed at the Trust's option (i) in case of any redemption at the
election of the Trust, not more than 60 nor less than 30 days prior to the
Redemption Date and (ii) in case of any mandatory redemption pursuant to
Section 3.1(c), not more than 75 days nor less than 30 days prior to the
Redemption Date; provided, that in the case of any notice of redemption
given pursuant to clause (ii) no such notice of redemption may be given
earlier than 90 days prior to the earliest day on which the Trust would
become obligated to pay the applicable Additional Amounts were a payment in
respect of Notes then due. Failure to give such notice to the Holder of any
Note designated for redemption in whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings
for the redemption of any other Note or any portion thereof.
Any notice that is mailed to the Holder of any Notes in the manner
provided for in Section 13.4 shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price or, if not then ascertainable, the manner of
calculation thereof,
(iii)in case of any redemption at the election of the Trust, if less than all
Outstanding Notes are to be redeemed, the identification (and, in the case
of partial redemption, the principal amount) of the particular Note or
Notes to be redeemed,
(iv) in case any Note is to be redeemed in part only at the election of the
Trust, the notice which relates to such Note shall state that on and after
the Redemption Date, upon surrender of the Note Certificate representing
such Note, the Holder of such Note will receive, without charge, a new Note
Certificate representing an authorized denomination of the principal amount
of such Note remaining unredeemed,
(v) that, on the Redemption Date, the Redemption Price shall become due and
payable upon each such Note or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after the
Redemption Date,
(vi) the place or places where each Note Certificate representing such Note or
Notes is to be surrendered for payment of the Redemption Price together
with any unpaid interest accrued thereon through the Redemption Date and
any Additional Amounts payable with respect thereto,
(vii)if applicable, in case of any redemption at the election of the Trust,
that the redemption is for a sinking fund, and
(viii) the CUSIP number or any other numbers used to identify such Notes.
(g) On or prior to any Redemption Date, the Trust shall deposit, with respect
to any Notes called for redemption pursuant to this Section, with the
Paying Agent an amount of money in the Specified Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date, unless otherwise specified in the Note
Certificate(s)) any unpaid interest accrued through the Redemption Date on,
and any Additional Amounts payable with respect to, all such Notes or
portions thereof which are to be redeemed on the Redemption Date.
(h) On the Redemption Date, the Notes to be redeemed shall, become due and
payable at the Redemption Price together with any unpaid interest accrued
through the Redemption Date on, and any Additional Amounts payable with
respect to, such Notes, and from and after such date (unless the Trust
shall default in the payment of the Redemption Price and any unpaid
interest accrued on such Notes through the Redemption Date) such Notes
shall cease to bear interest. Upon surrender of any Note Certificate for
redemption of any Note or Notes represented thereby in accordance with the
applicable notice of redemption, such Note shall be paid by the Trust at
the Redemption Price, together with any unpaid interest accrued thereon
through the Redemption Date and any Additional Amounts payable with respect
thereto.
(i) If any Note called for redemption shall not be so paid upon surrender of
the applicable Note Certificate for redemption, the principal and any
premium, until paid, shall bear interest from the Redemption Date at the
rate specified in the Note Certificate(s).
Upon surrender of any Note Certificate for partial redemption of any
Note or Notes represented thereby in accordance with this Section, the Trust
shall execute and the Indenture Trustee shall authenticate and deliver one or
more new Note Certificates of any authorized denomination representing an
aggregate principal amount of Notes equal to the unredeemed portion of the
applicable Note or Notes.
SECTION 3.2 Repayment at the Option of the Holder.
(a) If so specified in the Note Certificate(s), the Holder or Holders of the
Notes may require the Trust to repay the Notes prior to the Stated Maturity
Date in whole or from time to time in part in increments of $1,000 or any
other integral multiple of an authorized denomination specified in the Note
Certificate(s) (provided that any remaining principal amount thereof shall
be at least $1,000 or other minimum authorized denomination applicable
thereto).
(b) Notes which are repayable at the option of the Holder or Holders thereof
before the Stated Maturity Date shall be repaid in accordance with the
terms of the Notes.
(c) The repayment of any principal amount of Notes pursuant to any option of
the applicable Holder or Holders to require repayment of any Notes before
the Stated Maturity Date shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Notes unless and until
the Trust, at its option, shall deliver or surrender each Note Certificate
representing such Notes to the Indenture Trustee with a directive that such
Note Certificates be cancelled.
(d) Notwithstanding anything to the contrary contained in this Section, in
connection with any repayment of Notes, the Trust may arrange for the
purchase of any Notes by an agreement with one or more investment bankers
or other purchasers to purchase such Notes by paying the Holder or Holders
of such Notes on or before the close of business on the Repayment Date an
amount not less than the Repayment Price payable by the Trust on repayment
of such Notes, and the obligation of the Trust to pay the Repayment Price
of such Notes shall be satisfied and discharged to the extent such payment
is so paid by such purchasers.
(e) Any exercise of the repayment option will be irrevocable.
SECTION 3.3 Repurchase of Notes.
(a) The Trust may purchase some or all Notes in the open market or
otherwise at any time, and from time to time, with the prior written consent of
the Funding Agreement Provider as to both the making of such purchase and the
purchase price to be paid for such Notes.
(b) If the Funding Agreement Provider, in its sole discretion,
consents to such purchase of Notes by the Trust, the parties to the Indenture
agree to take such actions as may be necessary or desirable to effect the
prepayment of such portion, or the entirety, of the current Principal Amount,
under each applicable Funding Agreement as may be necessary to provide for the
payment of the purchase price for such Notes. Upon such payment, the Principal
Amount under each Funding Agreement shall be reduced (i) if Notes bear interest
at fixed or floating rates, by an amount equal to the aggregate principal amount
of Notes so purchased (or the portion thereof applicable to such Funding
Agreement) and (ii) if Notes do not bear interest at fixed or floating rates, by
an amount to be agreed between the Trust and the Funding Agreement Provider to
reflect such prepayment under the Funding Agreement(s).
(c) The parties acknowledge and agree that (i) notwithstanding
anything to the contrary in the Indenture, any repurchase of Notes in compliance
with this Section 3.3 shall not violate any provision of the Indenture or the
Trust Agreement and (ii) no Opinion of Counsel, Trust Certificate or any other
document or instrument shall be required to be provided in connection with any
repurchase of Notes pursuant to this Section 3.3.
(d) If applicable, the Trust will comply with the requirements of
Section 14(e) of the Exchange Act, and the rules promulgated thereunder, and any
other applicable securities laws or regulations in connection with any
repurchase pursuant to this Section 3.3.
SECTION 3.4 Sinking Funds.
Unless otherwise provided in the Note Certificate(s), the Notes will
not be subject to, or entitled to the benefit of, any sinking fund.
ARTICLE 4
PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS
SECTION 4.1 Payment of Principal and Interest.
(a) The Trust will duly and punctually pay or cause to be paid the principal
of, any premium and interest on, and any Additional Amounts with respect
to, each of the Notes, in accordance with the terms of the Notes and the
Indenture.
(b) Unless otherwise specified in the Note Certificate(s), upon the receipt of
the funds necessary therefor, the applicable Paying Agent shall duly and
punctually make payments, payable on the Maturity Date, of principal in
respect of, any premium and interest on, and any Additional Amounts payable
with respect to, any Certificated Notes in immediately available funds
against presentation and surrender of the applicable Definitive Security
(and in the case of any repayment of a Note pursuant to Section 3.2, upon
submission of a duly completed election form at an office or agency of such
Paying Agent maintained for such purpose pursuant to Section 4.2). The
applicable Paying Agent (unless such Paying Agent is the Indenture Trustee)
shall promptly forward each Definitive Security surrendered to it in
connection with any payment pursuant to this Section for cancellation in
accordance with Section 2.9. Unless otherwise specified in the Note
Certificate(s), upon the receipt of the funds necessary therefor, the
applicable Paying Agent shall duly and punctually make payments of
principal of, any premium and interest on, and any Additional Amounts in
respect of, Certificated Notes payable on any date other than the Maturity
Date by check mailed to the Holder (or to the first named of joint Holders)
of such Certificated Note at the close of business on the Regular Interest
Record Date or Special Interest Record Date, as the case may be, at its
address appearing in the applicable Note Register. Notwithstanding the
foregoing, the applicable Paying Agent shall make payments of principal,
any interest, any premium, and any Additional Amounts on any date other
than the Maturity Date to each Holder entitled thereto (or to the first
named of joint Holders) at the close of business on the applicable Regular
Interest Record Date or Special Interest Record Date, as the case may be,
of $10,000,000 (or, if the Specified Currency is other than United States
dollars, the equivalent thereof in the particular Specified Currency) or
more in aggregate principal amount of Certificated Notes by wire transfer
of immediately available funds if the applicable Holder has delivered
appropriate wire transfer instructions in writing to the applicable Paying
Agent not less than 15 days prior to the date on which the applicable
payment of principal, interest, premium or Additional Amounts is scheduled
to be made. Any wire transfer instructions received by the applicable
Paying Agent shall remain in effect until revoked by the applicable Holder.
(c) Unless otherwise specified in the Note Certificate(s), upon receipt of the
funds necessary therefor, on the Maturity Date the applicable Paying Agent
shall (in the absence of any other arrangements between the applicable
Paying Agent and the applicable Holder) duly and punctually make payments,
payable on the Maturity Date, of principal in respect of, any premium and
interest payable on, and any Additional Amounts with respect to, any
Book-Entry Notes to the account of the Depositary or its nominee at the
close of business on the applicable Maturity Date. The applicable Paying
Agent (unless such Paying Agent is the Indenture Trustee) shall promptly
forward to the Indenture Trustee each Global Security surrendered to it in
connection with any payment pursuant to this section for cancellation in
accordance with Section 2.9. Unless otherwise specified in the Note
Certificate(s), upon the receipt of the funds necessary therefor in
accordance with Section 4.4(b), the applicable Paying Agent shall duly and
punctually make payments of principal of, any premium and interest on, and
any Additional Amounts in respect of, any Book-Entry Notes payable on any
date other than the Maturity Date to the Holder of such Book-Entry Notes by
11:00 a.m. (New York City time) on the applicable Regular Interest Record
Date or Special Interest Record Date, as the case may be, to the account of
the Depositary or its nominee.
(d) Unless otherwise specified in the Note Certificate(s), the Trust shall be
obligated to make, or cause to be made, payments of principal of, any
premium and interest on, and any Additional Amounts with respect to, a
Foreign Currency Note in the Specified Currency. Any amounts so payable by
the Trust in the Specified Currency will be converted by the Exchange Rate
Agent into United States dollars for payment to the Holder or Holders
thereof unless otherwise specified in the Note Certificate(s) or a Holder
elects to receive such amounts in the Specified Currency as provided below.
(e) Any United States dollar amount to be received by the Holder or Holders of
Foreign Currency Notes will be based on the highest bid quotation in The
City of New York received by the Exchange Rate Agent at approximately 11:00
a.m. (New York City time) on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one
of whom may be the Exchange Rate Agent) selected by the Exchange Rate Agent
and approved by the Trust for the purchase by the quoting dealer of the
Specified Currency for United States dollars for settlement on that payment
date in the aggregate amount of the Specified Currency payable to all
Holder or Holders of Foreign Currency Notes scheduled to receive United
States dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the
relevant Holder or Holders of Foreign Currency Notes by deductions from any
payments. If three bid quotations are not available, payments will be made
in the Specified Currency.
(f) Holders of Foreign Currency Notes may elect to receive all or a specified
portion of any payment of principal and/or any interest, premium and
Additional Amounts in the Specified Currency by submitting a written
request to the Indenture Trustee at its Corporate Trust Office in The City
of New York on or prior to the applicable Regular Interest Record Date or
Special Interest Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be. Such written request may be mailed or
hand delivered or sent by cable, telex or other form of facsimile
transmission. Such election will remain in effect until revoked by written
notice delivered to the Indenture Trustee on or prior to the applicable
Regular Interest Record Date or Special Interest Record Date or at least 15
calendar days prior to the Maturity Date, as the case may be.
(g) Unless otherwise specified in the Note Certificate(s), an Entitlement
Holder with respect to a Foreign Currency Note represented by a Global
Security which elects to receive payments of principal, and/or any
interest, premium and Additional Amounts in the Specified Currency must
notify, or cause the notification of the applicable Depositary of its
election on or prior to the applicable Regular Interest Record Date or
Special Interest Record Date, or at least 15 calendar days prior to the
Maturity Date, as the case may be, and the Depositary will notify the
Indenture Trustee of that election on or prior to the third Business Day
after the applicable Regular Interest Record Date or Special Interest
Record Date, or at least 12 calendar days prior to the Maturity Date, as
the case may be. If complete instructions are received by the Depositary
and by the Indenture Trustee, on or prior to such dates, then the
applicable beneficial owner will receive payments in the Specified
Currency.
(h) If the Specified Currency for Foreign Currency Notes is not available for
any required payment of principal and/or any interest, premium and
Additional Amounts due to the imposition of exchange controls or other
circumstances beyond the Trust's control, the Trust will be entitled to
satisfy its obligations with respect to such Foreign Currency Notes by
making payments in United States dollars on the basis of the Market
Exchange Rate, computed by the Exchange Rate Agent as described above, on
the second Business Day prior to the particular payment or, if the Market
Exchange Rate is not then available, on the basis of the most recently
available Market Exchange Rate.
(i) All determinations made by the Exchange Rate Agent shall be at its sole
discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on the Holder or Holders of Foreign Currency Notes
and any applicable Entitlement Holders.
SECTION 4.2 Offices for Payments, etc. So long as any of the Notes remain
Outstanding, the Trust will maintain in New York and in any other city that may
be required by any stock exchange on which the Notes may be listed, and in any
city specified in the Note Certificate(s) the following: (i) an office or agency
where the Notes may be presented for payment, (ii) an office or agency where the
Notes may be presented for registration of transfer and for exchange as provided
in the Indenture and (iii) an office or agency where notices and demands to or
upon the Trust in respect of the Notes or of the Indenture may be served. The
Trust will give to the Indenture Trustee written notice of the location of any
such office or agency and of any change of location thereof. The Trust initially
designates the Corporate Trust Office of the Indenture Trustee as the office or
agency for each such purpose. In case the Trust shall fail to maintain any such
office or agency or shall fail to give such notice of the location or of any
change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office.
SECTION 4.3 Appointment to Fill a Vacancy in Office of Indenture Trustee. The
Trust, whenever necessary to avoid or fill a vacancy in the office of Indenture
Trustee, will appoint, in the manner provided in Section 6.8, a trustee, so that
there shall at all times be a trustee under the Indenture.
SECTION 4.4 Paying Agents.
(a) The Trust appoints the Indenture Trustee as Paying Agent with respect to
the Notes and the Indenture Trustee accepts such appointment. The Indenture
Trustee, in its capacity as Paying Agent, agrees, and, whenever the Trust
shall appoint a Paying Agent other than the Indenture Trustee with respect
to the Notes, the Trust will cause such Paying Agent to execute and deliver
to the Trust and the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Trust and the Indenture Trustee, subject to the
provisions of this Section, that it will:
(i) hold all sums received by it as such agent for the payment of the principal
of, any premium or interest on, or any Additional Amounts with respect to,
the Notes (whether such sums have been paid to it by the Funding Agreement
Provider, the Trust or by any other obligor on the Notes) in trust for the
benefit of each Holder of the Notes and will (and will cause each of its
agents and Affiliates to) deposit all cash amounts received by it (or such
agents or Affiliates, as applicable) that are derived from the Collateral
for the benefit of the Holders of Notes in a segregated non-interest
bearing account maintained or controlled by the Indenture Trustee,
consistent with the rating of the Outstanding Notes;
(ii) give the Indenture Trustee notice of any failure by the Trust (or by any
other obligor on the Notes) to make any payment of the principal of, any
premium and interest on, or any Additional Amounts with respect to, the
Notes when the same shall be due and payable;
(iii)pay any such sums so held in trust by it to the Indenture Trustee upon the
Indenture Trustee's written request at any time during the continuance of
the failure referred to in clause (ii) above;
(iv) in the absence of the failure referred in clause (ii) above, pay any such
sums so held in trust by it in accordance with the Indenture and the terms
of the Notes; and
(v) comply with all agreements of Paying Agents in, and perform all functions
and obligations imposed on Paying Agents by or pursuant to, the Indenture
and a Note Certificate or Supplemental Indenture.
(b) The Trust will, at or prior to 9:30 a.m. (New York City time) on each due
date of the principal of, any premium and interest on, or any Additional
Amounts with respect to, the Notes, deposit or cause to be deposited with
the applicable Paying Agent a sum sufficient to pay such principal, any
interest or premium, and any Additional Amounts, and (unless such Paying
Agent is the Indenture Trustee) the Trust will promptly notify the
Indenture Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the Trust may at
any time, for the purpose of obtaining a satisfaction and discharge of the
Notes under the Indenture, pay or cause to be paid to the Indenture Trustee
all sums held in trust by the Trust or any Paying Agent under the
Indenture, as required by this Section, such sums to be held by the
Indenture Trustee upon the terms contained in the Indenture; provided,
however, in order to obtain such satisfaction or discharge of the Notes,
that such sums paid to the Indenture Trustee must be at least equal to the
amounts due and owing on the Notes, including outstanding principal,
premium, accrued but unpaid interest and Additional Amounts.
(d) Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section are subject to the
provisions of Sections 11.3 and 11.4.
(e) The applicable Paying Agent shall (i) collect all forms from Holders of
Notes (or from such other Persons as are relevant) that are required to
exempt payments under the Notes and/or the related Funding Agreement(s)
from United States Federal income tax withholding, (ii) withhold and pay
over to the Internal Revenue Service or other taxing authority with respect
to payments under the Notes any amount of taxes required to be withheld by
any United States Federal, state or local statute, rule or regulation and
(iii) forward copies of such forms to the Trust and the Funding Agreement
Provider.
(f) Each Paying Agent shall forward to the Trust at least monthly a bank
statement in its possession with respect to the performance of its
functions and obligations with respect to any Notes.
(g) The Trust shall pay the compensation of each Paying Agent at such rates as
shall be agreed upon in writing by the Trust and the relevant Paying Agent
from time to time and shall reimburse each Paying Agent for reasonable
expenses properly incurred by such Paying Agent in connection with the
performance of its duties upon receipt of such invoices as the Trust shall
reasonably require.
(h) Subject as provided below, each Paying Agent may at any time resign as
Paying Agent by giving not less than 60 days' written notice to the Trust
and the Indenture Trustee (unless the Indenture Trustee is such Paying
Agent) of such intention on it part, specifying the date on which its
resignation shall become effective. Except as provided below, the Trust may
remove a Paying Agent by giving not less than 20 days' written notice
specifying such removal and the date when it shall become effective. Any
such resignation or removal shall take effect upon:
(i) the appointment by the Trust of a successor Paying Agent; and
(ii) the acceptance of such appointment by such successor Paying Agent, provided
that with respect to any Paying Agent who timely receives any amount with
respect to any Notes and fails duly to pay any such amounts when due and
payable in accordance with the terms of the Indenture and such Notes, any
such removal will take effect immediately upon such appointment of, and
acceptance thereof by, a successor Paying Agent approved by the Indenture
Trustee (unless the Indenture Trustee is such Paying Agent), in which event
notice of such appointment shall be given to each Holder of the Notes as
soon as practicable thereafter. The Trust agrees with each Paying Agent
that if, by the day falling 10 days before the expiration of any notice
given pursuant to this Section 4.4(i), the Trust has not appointed a
replacement Paying Agent, then the Paying Agent shall be entitled, on
behalf of the Trust, to appoint in its place a reputable financial
institution of good standing reasonably acceptable to the Trust and the
Indenture Trustee (unless the Indenture Trustee is such Paying Agent);
provided, however, that notwithstanding the foregoing, the resignation or
removal of the relevant Paying Agent shall not be effective unless, upon
the expiration of the notice given pursuant to this Section 4.5(i), the
successor Paying Agent shall have accepted its appointment. Upon its
resignation or removal becoming effective, the retiring Paying Agent shall
be entitled to the payment of its compensation and reimbursement of all
expenses incurred by such retiring Paying Agent pursuant to Section 4.4(h)
up to the effective date of such resignation or removal.
(i) If at any time a Paying Agent shall resign or be removed, or shall become
incapable of acting with respect to the Notes, or shall be adjudged as
bankrupt or insolvent, or a receiver or liquidator of such Paying Agent or
of its property shall be appointed, or any public officer shall take charge
or control of such Paying Agent or its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then a successor Paying
Agent shall be appointed by the Trust by an instrument in writing filed
with the successor Paying Agent. Upon any such appointment of, and the
acceptance of such appointment by, a successor Paying Agent and (except in
cases of removal for failure to timely pay any amounts as required by or
pursuant to the Indenture or a Note Certificate or Supplemental Indenture)
the giving of notice to each Holder of the Notes, the retiring Paying Agent
shall cease to be Paying Agent under the Indenture.
(j) Any successor Paying Agent appointed under the Indenture shall execute and
deliver to its predecessor, the Trust and the Indenture Trustee (unless the
Indenture Trustee is such Paying Agent) a reasonably acceptable instrument
accepting such appointment under the Indenture, and thereupon such
successor Paying Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities,
duties and obligations of such predecessor with like effect as if
originally named as a Paying Agent under the Indenture, and such
predecessor, upon payment of any amounts due pursuant to Section 4.4(h) and
unpaid, shall thereupon become obliged to transfer and deliver, and such
successor Paying Agent shall be entitled to receive, copies of any relevant
records maintained by such predecessor Paying Agent.
(k) Any corporation into which a Paying Agent may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which such Paying Agent shall be a
party, or any corporation succeeding to all or substantially all of the
paying agency business of such Paying Agent shall be a successor Paying
Agent under the Indenture without the execution or filing of any paper or
any further act on the part of any of the parties, anything in the
Indenture to the contrary notwithstanding. At least 30 days' prior notice
of any such merger, conversion or consolidation shall be given to the Trust
and the Indenture Trustee (unless the Indenture Trustee is such Paying
Agent).
SECTION 4.5 Calculation Agent.
(a) The Trust appoints the Indenture Trustee as Calculation Agent, and the
Indenture Trustee accepts such appointment.
(b) The relevant Calculation Agent shall perform all functions and obligations
imposed on such Calculation Agent by or pursuant to the Indenture, and a
Note Certificate or Supplemental Indenture.
(c) Each Calculation Agent, excluding the Indenture Trustee, shall forward to
the Trust at least monthly a report providing details with respect to the
performance of its functions and obligations with respect to the Notes
which shall include dates and amounts of forthcoming payments with respect
to the Notes.
(d) The relevant Calculation Agent shall, upon the request of any relevant
Holder of the Notes, provide the interest rate then in effect and, if
determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date with respect
to the Notes.
(e) All determinations of interest by the Calculation Agent shall, in the
absence of manifest errors, be conclusive for all purposes and binding on
the Holders of the Notes.
(f) The Trust shall pay the compensation of each Calculation Agent at such
rates as shall be agreed upon in writing by the Trust and the relevant
Calculation Agent from time to time and shall reimburse each Calculation
Agent for reasonable expenses properly incurred by such Calculation Agent
in connection with the performance of its duties upon receipt of such
invoices as the Trust shall reasonably require. The Trust also agrees to
indemnify each Calculation Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of its duties under the Indenture, including the costs and expenses of
defending itself against or investigating any claim of liability in
connection with the exercise or performance of any of its powers or duties
under the Indenture.
(g) Subject as provided below, each Calculation Agent may at any time resign as
Calculation Agent by giving not less than 60 days' written notice to the
Trust and the Indenture Trustee (unless the Indenture Trustee is such
Calculation Agent) of such intention on its part, specifying the date on
which its resignation shall become effective. Except as provided below, the
Trust may remove a Calculation Agent by giving not less than 20 days'
written notice specifying such removal and the date when it shall become
effective. Any such resignation or removal shall take effect upon:
(i) the appointment by the Trust of a successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor Calculation Agent,
provided that with respect to any Calculation Agent who fails duly to
establish the interest rate or amount for any Interest Reset Period, any
such removal will take effect immediately upon such appointment of, and
acceptance thereof by, a successor Calculation Agent approved by the
Indenture Trustee (unless the Indenture Trustee is such Calculation Agent),
in which event notice of such appointment shall be given to each Holder of
the Notes as soon as practicable thereafter. The Trust agrees with each
Calculation Agent that if, by the day falling 10 days before the expiration
of any notice given pursuant to this Section 4.5(g), the Trust has not
appointed a replacement Calculation Agent, then the Calculation Agent shall
be entitled, on behalf of the Trust, to appoint in its place a reputable
financial institution of good standing reasonably acceptable to the Trust
and the Indenture Trustee (unless the Indenture Trustee is such Calculation
Agent); provided, however, that notwithstanding the foregoing, the
resignation or removal of the relevant Calculation Agent shall not be
effective unless, upon the expiration of the notice given pursuant to this
Section 4.5(g), the successor Calculation Agent shall have accepted its
appointment. Upon its resignation or removal becoming effective, the
retiring Calculation Agent shall be entitled to the payment of its
compensation and reimbursement of all expenses incurred by such retiring
Calculation Agent pursuant to Section 4.5(f) up to the effective date of
such resignation or removal.
(h) If at any time a Calculation Agent shall resign or be removed, or shall
become incapable of acting with respect to the Notes, or shall be adjudged
as bankrupt or insolvent, or a receiver or liquidator of such Calculation
Agent or of its property shall be appointed, or any public officer shall
take charge or control of such Calculation Agent or its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then a
successor Calculation Agent shall be appointed by the Trust by an
instrument in writing filed with the successor Calculation Agent. Upon any
such appointment of, and the acceptance of such appointment by, a successor
Calculation Agent and (except in cases of removal for failure to establish
the amount of interest) the giving of notice to each Holder of the Notes,
the retiring Calculation Agent shall cease to be Calculation Agent under
the Indenture.
(i) Any successor Calculation Agent appointed under the Indenture shall execute
and deliver to its predecessor, the Trust and the Indenture Trustee (unless
the Indenture Trustee is such Calculation Agent) a reasonably acceptable
instrument, accepting such appointment under the Indenture, and thereupon
such successor Calculation Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with like
effect as if originally named as a Calculation Agent under the Indenture,
and such predecessor, upon payment of any amounts due pursuant to Section
4.5(f) and unpaid, shall thereupon become obliged to transfer and deliver,
and such successor Calculation Agent shall be entitled to receive, copies
of any relevant records maintained by such predecessor Calculation Agent.
(j) Any corporation into which a Calculation Agent may be merged or converted
or with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which such Calculation Agent shall
be a party, or a corporation succeeding to all or substantially all of the
paying agency business of such Calculation Agent shall be a successor
Calculation Agent under the Indenture without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything in the Indenture to the contrary notwithstanding. At least 30
days' prior notice of any such merger, conversion or consolidation shall be
given to the Trust and the Indenture Trustee (unless the Indenture Trustee
is such Calculation Agent).
SECTION 4.6 Certificate to Indenture Trustee. The Trust will furnish to the
Indenture Trustee on or before each anniversary of this Indenture in each year a
brief certificate (which need not comply with Section 13.5) as to its knowledge
of the Trust's compliance with all conditions and covenants under the Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under the Indenture).
SECTION 4.7 Negative Covenants. So long as any Notes are Outstanding, the Trust
will not, except as otherwise expressly permitted under the Indenture or under
the Trust Agreement:
(i) sell, transfer, exchange, assign, lease, convey or otherwise dispose of any
of its assets (whenever acquired), including, without limitation, any
portion of the Collateral securing its Obligations under the Notes and the
Indenture;
(ii) engage in any business or activity other than in connection with, or
relating to the execution and delivery of, and the performance of its
obligations under, the Trust Agreement, the Indenture, the Administrative
Services Agreement, the Distribution Agreement, the Support and Expenses
Agreement, the Terms Agreement and each Funding Agreement; the issuance and
sale of any Notes pursuant to the Indenture; and the transactions
contemplated by, and the activities necessary or incidental to, any of the
foregoing;
(iii)incur, directly or indirectly, any Debt except for the Notes or as
otherwise contemplated under the Indenture or under 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 (whenever acquired), 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 thereunder 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 (A) the investment of any funds of the Trust in
the Funding Note and (B) the investment of any funds of the Trust held by
the Indenture Trustee, a Paying Agent, the Delaware Trustee or the
Administrator as provided in the Indenture or the Trust 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 and
Expenses 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) enter into any transaction of merger or consolidation, or liquidate or
dissolve itself (or, to the fullest extent permissible 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 the Funding Agreement Provider 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(s) and the Indenture 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 and the Administrator
or any other persons necessary to conduct its business and enter into
transactions contemplated under the Indenture, the Trust Agreement, the
Administrative Services Agreement, the Distribution Agreement, the Support
and Expenses Agreement, the Terms Agreement, the Funding Note or any
Funding Agreement;
(xiv)have an interest in any bank account other than the accounts contemplated
under the Indenture, the Trust Agreement, the Terms Agreement, the
Distribution Agreement or any Funding Agreement and those accounts
expressly permitted by the Indenture Trustee; provided that any such
further accounts 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 the Funding Agreement Provider
or any Agent to be a trustee of the Trust; or
(xvi)commingle any of its assets with any assets of any of the Trust's
Affiliates, or guarantee any obligation of any of the Trust's Affiliates.
SECTION 4.8 Additional Amounts.
If the Note Certificate(s) provide for the payment of
Additional Amounts, the Trust agrees to pay to the Holder of any such Note
Additional Amounts as provided in the Note Certificate(s). Whenever in the
Indenture there is mentioned, in any context, the payment of the principal of,
or interest or premium on, or in respect of, any Note or the net proceeds
received on the sale or exchange of any Note, such reference shall be deemed to
include reference to the payment of Additional Amounts provided by the terms
established by the Indenture or pursuant to the Indenture to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms, and express reference to the payment of
Additional Amounts in any provision of the Indenture shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
reference is not made.
If the Note Certificate(s) provide for the payment of
Additional Amounts, the Note Certificate will provide that the Trust will pay,
or cause to be paid, Additional Amounts to a Holder of Notes to compensate for
any withholding or deduction for or on account of any present or future taxes,
duties, levies, assessments or governmental charges of whatever nature imposed
or levied on payments on the Notes by or on behalf of any governmental authority
in the United States having the power to tax, so that the net amount received by
the Holder of the Notes, after giving effect to such withholding or deduction,
whether or not currently payable, will equal the amount that would have been
received under the Notes were no such deduction or withholding required;
provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which
would not have been imposed but for a Holder or beneficial owner of one or
more of the Notes, (i) having any present or former connection with the
United States, including, without limitation, being or having been a
citizen or resident thereof, or having been present, having been
incorporated in, having engaged in a trade or business or having (or having
had) a permanent establishment or principal office therein, (ii) being a
controlled foreign corporation within the meaning of Section 957(a) of the
Code related within the meaning of Section 864(d)(4) of the Code, to the
Funding Agreement Provider, (iii) being a bank for United States Federal
income tax purposes whose receipt of interest on the Note is described in
Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive
owner of 10 percent or more of the total combined voting power of all
classes of stock of the Funding Agreement Provider entitled to vote within
the meaning of Section 871(h)(3) of the Code and Treasury Regulations
promulgated thereunder or (v) being subject to backup withholding as of the
date of the purchase by the Holder of the Notes;
(b) any tax, duty, levy, assessment or other governmental charge which would
not have been imposed but for the presentation of the Note (where
presentation is required) for payment on a date more than 30 days after the
date on which such payment becomes due and payable or the date on which
payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is
imposed or withheld solely by reason of the failure of the beneficial owner
or a Holder of Notes to comply with certification, identification or
information reporting requirements concerning the nationality, residence,
identity or connection with the United States of the beneficial owner or a
Holder of Notes, if compliance is required by statute, by regulation of the
United States Treasury Department, judicial or administrative
interpretation, other law or by an applicable income tax treaty to which
the United States is a party as a condition to exemption from such tax,
duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or
similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is
payable otherwise than by withholding from payments in respect of the
Notes;
(f) any tax, duty, levy, assessment or other governmental charge imposed by
reason of payments on the Notes being treated as contingent interest
described in Section 871(h)(4) of the Code for United States Federal income
tax purposes provided that such treatment was described in the Pricing
Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not
have been imposed but for an election by the Holder of the Note, the effect
of which is to make payment in respect of the Notes subject to United
States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
ARTICLE 5
REMEDIES OF THE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default.
(a) "Event of Default" with respect to the Notes wherever used in the
Indenture, means each of the following events which shall have occurred and
be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(i) default in the payment when due and payable of the principal of, or any
premium on, any Note;
(ii) default in the payment, when due and payable, of any interest on, or any
Additional Amounts with respect to, any Note and continuance of such
default for a period of five Business Days;
(iii)any "Event of Default", as such term is defined in any Funding Agreement
securing the Notes, by the Funding Agreement Provider under such Funding
Agreement or any Event of Default (as defined in the applicable funding
note) under the applicable funding note;
(iv) the Trust shall fail to observe or perform any covenant contained in the
Notes or in the Indenture for a period of 30 days after the date on which
written notice specifying such failure, stating that such notice is a
"Notice of Default" under the Indenture and demanding that the Trust remedy
the same, shall have been given by registered or certified mail, return
receipt requested, to the Trust by the Indenture Trustee, or to the Trust
and the Indenture Trustee by the Holder or Holders of at least 25% in
aggregate principal amount of the Notes Outstanding; or
(v) the Indenture for any reason shall cease to be in full force and effect or
shall be declared null and void, or the Indenture Trustee shall fail to
have or maintain a validly created and first priority perfected security
interest (or the equivalent thereof) in the Collateral; or any Person shall
successfully claim, as finally determined by a court of competent
jurisdiction that any Lien for the benefit of the Holders of the Notes and
any other Person for whose benefit the Indenture Trustee is or will be
holding the Collateral, that the Collateral is void or is junior to any
other Lien or that the enforcement thereof is materially limited because of
any preference, fraudulent transfer, conveyance or similar law;
(vi) an involuntary case or other proceeding shall be commenced against the
Trust seeking liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency, reorganization or other
similar law or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against the Trust under the Federal bankruptcy laws as now
or hereafter in effect;
(vii)the Trust shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency, reorganization or other similar law
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or
shall take any action to authorize any of the foregoing; or
(viii) any other Event of Default provided in any Supplemental Indenture or in a
Note Certificate.
(b) If one or more Events of Default shall have occurred and be continuing with
respect to the Notes, then, and in every such event, unless the principal
of all of the Notes shall have already become due and payable, either the
Indenture Trustee or the Holder or Holders of not less than 25% in
aggregate principal amount of the Notes Outstanding under the Indenture by
notice in writing to the Trust (and to the Indenture Trustee if given by
such Holder or Holders), may declare the entire principal and premium (if
any) of all the Notes, any interest accrued thereon, and any Additional
Amounts due and owing and any other amounts payable with respect thereto,
to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable; provided that, if any Event of
Default specified in Section 5.1(a)(vi) or 5.1(a)(vii) occurs with respect
to the Trust, or if any Event of Default specified in Section 5.1(a)(iii)
that would cause any Funding Agreement securing the Notes to become
immediately due and payable occurs with respect to the Funding Agreement
Provider, then without any notice to the Trust or any other act by the
Indenture Trustee or any Holder of any Notes, the entire principal and
premium (if any) of all the Notes, any interest accrued thereon, and any
Additional Amounts due and owing, and any other amounts payable with
respect thereto, shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Trust.
(c) Notwithstanding Section 5.1(b), if at any time after the principal and
premium of the Notes, any interest accrued thereon, and any Additional
Amounts due and owing and any other amounts payable with respect thereto
shall have been so declared due and payable and before any judgment or
decree for the payment of the funds due shall have been obtained or entered
as provided in the Indenture, the Trust shall pay or shall deposit with the
Indenture Trustee a sum sufficient to pay all due and payable interest on,
and any Additional Amounts due and owing and any other amounts payable with
respect to, the Notes and the principal and premium (if any) of any and all
Notes which shall have become due and payable otherwise than by
acceleration pursuant to Section 5.1(b) above (with interest on such
principal and, to the extent that payment of such interest is enforceable
under applicable law, on any overdue interest and any other amounts
payable, at the same rate as the rate of interest specified in each Note
Certificate to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith, and if any and all
Events of Default under the Indenture, other than the non-payment of the
principal of and premium (if any) on the Notes which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as
provided in the Indenture, then and in every such case the Holder
Representative (as defined in Section 5.8(a) hereof), by written notice to
the Trust and to the Indenture Trustee, may waive all defaults and rescind
and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
SECTION 5.2 Collection of Indebtedness by Indenture Trustee; Indenture Trustee
May Prove Debt.
(a) Subject to Section 5.1(c), if any Event of Default contained in Section
5.1(a)(i) or (ii) shall have occurred and be continuing, the Trust will,
upon demand by the Indenture Trustee, pay to the Indenture Trustee for the
benefit of each Holder of the Notes the whole amount that then shall have
become due and payable of the principal of, any premium and interest on,
and any Additional Amounts due and owing and any other amounts payable with
respect to, the Notes (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue interest and any other amounts
payable at the same rate as the rate of interest specified in the Notes);
and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable
compensation to the Indenture Trustee and each predecessor Indenture
Trustee, their respective agents, attorneys and counsel, and any expenses
and liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as a result of its negligence
or bad faith.
(b) Until such demand is made by the Indenture Trustee, the Trust may pay the
principal of, any premium and interest on, and any Additional Amounts due
and owing and any other amounts payable with respect to, the Notes to the
Holders, whether or not the Notes be overdue.
(c) If the Trust shall fail to pay such amounts upon such demand, the Indenture
Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce
any such judgment or final decree against the Trust or other obligor upon
the Notes and collect in the manner provided by law out of the property of
the Trust or other obligor upon the Notes, wherever the funds adjudged or
decreed to be payable are situated. If there shall be pending proceedings
relative to the Trust or any other obligor upon the Notes under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or if a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Trust or its
property or such other obligor, or in case of any other comparable judicial
proceedings relative to the Trust or other obligor upon the Notes, or to
the creditors or property of the Trust or such other obligor, the Indenture
Trustee, irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file such proofs of a claim or claims and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Indenture Trustee (including any claim for reasonable compensation to
the Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as those adjudicated
in a court of competent jurisdiction to be the result of any such Indenture
Trustee's negligence or bad faith) and of the Holders allowed in any
judicial proceedings relative to the Trust or other obligor upon the Notes,
or to the creditors or property of the Trust or such other obligor,
(ii) unless prohibited by applicable law and regulations, to vote on behalf of
the Holders of the Notes in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar functions in comparable
proceedings, and
(iii)to collect and receive any funds or other property payable or deliverable
on any such claims, and to distribute all amounts received with respect to
the claims of each Holder and of the Indenture Trustee on each Holder's
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each Holder to make payments to
the Indenture Trustee, and, in the event that the Indenture Trustee shall
consent to the making of payments directly to any Holder, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as those adjudicated in a
court of competent jurisdiction to be the result of any such Indenture
Trustee's negligence or bad faith.
(d) Nothing contained in the Indenture shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Holder any plan or reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder thereof, or
to authorize the Indenture Trustee to vote in respect of the claim of any
Holder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under the Indenture, or under
any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Indenture Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of each Holder.
(f) In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of the Indenture
to which the Indenture Trustee shall be a party) the Indenture Trustee
shall be held to represent every Holder of the Notes, and it shall not be
necessary to make any Holder of the Notes party to any such proceedings.
SECTION 5.3 Application of Proceeds.
(a) Any funds collected by the Indenture Trustee following an Event of Default
pursuant to this Article or otherwise under the Indenture and any
applicable Supplemental Indenture in respect of the Notes shall be applied
in the following order at the date or dates fixed by the Indenture Trustee
and, in case of the distribution of such funds on account of principal, any
premium and interest and any Additional Amounts, upon presentation of the
Note Certificate or Note Certificates representing the Notes and the
notation thereon of the payment if only partially paid or upon the
surrender thereof if fully paid:
First: To the payment of costs and expenses, including reasonable compensation
to the Indenture Trustee and each predecessor Indenture Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as those adjudicated in a
court of competent jurisdiction to be the result of any such Indenture
Trustee's negligence or bad faith, in an aggregate amount of no more
than $250,000 to the extent not paid pursuant to the Support Agreement;
Second: To the payment of principal, any premium and interest, any Additional
Amounts and any other amounts then due and owing on the Notes, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on the Notes;
Third: To the payment of any other Obligations then due and owing with respect
to the Notes, ratably, without preference or priority of any kind; and
Fourth: To the payment of any remaining balance to the Trust.
(b) Any funds collected by the Indenture Trustee where no Event of Default
exists pursuant to Article 5 or otherwise under the Indenture and any
applicable Supplemental Indenture in respect of the Notes shall be applied
in the following order at the date or dates fixed by the Indenture Trustee
and, in case of the distribution of such funds on account of principal, any
premium and interest, and any Additional Amounts, upon presentation, if
applicable, of the Note Certificate or Note Certificates representing the
Notes and the notation thereon of the payment if only partially paid or
upon the surrender thereof if fully paid:
First: To the payment of principal, any premium and interest, any Additional
Amounts, and any other amounts then due and owing on the Notes,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on the Notes;
Second: To the payment of any other Obligations then due and owing with
respect to the Notes, ratably, without preference or priority of any
kind; and
Third: To the payment of any remaining balance to the Trust.
SECTION 5.4 Suits for Enforcement. If an Event of Default has occurred, has not
been waived and is continuing, the Indenture Trustee may in its discretion
proceed to protect and enforce the rights vested in it by the Indenture by such
appropriate judicial proceedings as the Indenture Trustee shall deem most
effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the exercise of
any power granted in the Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee by the Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. If the
Indenture Trustee shall have proceeded to enforce any right under the Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Indenture Trustee, then and in
every such case the Trust and the Indenture Trustee shall be restored
respectively to their former positions and rights under the Indenture, and all
rights, remedies and powers of the Trust, the Indenture Trustee and each Holder
shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Holders. No Holder of any Note shall have
any right by virtue or by availing of any provision of the Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to the Indenture, or for the appointment
of a trustee, receiver, liquidator, custodian or other similar official or for
any other remedy under the Indenture, unless:
(i) such Holder has previously given written notice to the Indenture Trustee of
a continuing Event of Default;
(ii) the Holder or Holders of Notes representing not less than 25% of the
aggregate principal amount of the Outstanding notes of such series shall
have made written request to the Indenture Trustee to institute proceedings
in respect of such Event of Default in its own name as the Indenture
Trustee;
(iii)such Holder or Holders have offered to the Indenture Trustee indemnity or
security satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceedings; and
(v) no direction inconsistent with such written request shall have been given
to the Indenture Trustee during such 60-day period by the Holder or Holders
of Notes representing at least 66?% of the aggregate principal amount of
the Notes then Outstanding;
it being understood and intended, and being expressly covenanted by each Holder
of a Note with each other Holder of a Note and the Indenture Trustee, that no
Holder or Holders of Notes shall have any right in any manner whatever by virtue
of, or by availing of, any provision of the Indenture to affect, disturb or
prejudice the rights of any other Holder of any Note, or to obtain or seek to
obtain priority over or preference to any other Holder of any Note or to enforce
any right under the Indenture, except in the manner provided herein and for the
equal, ratable and common benefit of all the Holders of the Notes. For the
protection and enforcement of the provisions of this Section, each Holder and
the Indenture Trustee shall be entitled to such relief as can be given either at
law or in equity.
Notwithstanding any other provisions in the Indenture, however, the
right of any Holder of any Note, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any), and interest on, if any, and
Additional Amounts with respect to, if any, such Note, on or after the
respective due dates expressed in such Note, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default.
(a) Except as provided in Section 2.7, no right or remedy in the Indenture
conferred upon or reserved to the Indenture Trustee or to any Holder is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given under the Indenture or existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy under the Indenture, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
(b) No delay or omission of the Indenture Trustee or of any Holder of any Note
to exercise any right or power accruing upon any Event of Default occurring
and continuing as aforesaid shall impair any such right or power or shall
be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by the
Indenture or by law to the Indenture Trustee or to any Holder may be
exercised from time to time, and as often as shall be deemed expedient, by
the Indenture Trustee or by such Holder.
SECTION 5.8 Control by the Holders.
(a) The Holders of a majority in aggregate principal amount of the Notes at the
time Outstanding shall have the right to elect a holder representative (the
"Holder Representative") who shall have binding authority upon all the
Holders and who shall direct the time, method, and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or exercising
any trust or power conferred on the Indenture Trustee by the Indenture,
provided that:
(i) such direction shall not be otherwise than in accordance with law and the
provisions of the Indenture; and
(ii) subject to the provisions of Section 6.1, the Indenture Trustee shall have
the right to decline to follow any such direction if the Indenture Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Indenture Trustee in good
faith by its board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Indenture Trustee
shall determine that the action or proceedings so directed would involve
the Indenture Trustee in personal liability.
(b) Nothing in the Indenture shall impair the right of the Indenture Trustee in
its discretion to take any action deemed proper by the Indenture Trustee
and which is not inconsistent with such direction by the Holders.
SECTION 5.9 Waiver of Past Defaults. Prior to the declaration of the maturity of
the Notes as provided in Section 5.1, the Holder Representative may on behalf of
the Holders of all the Notes waive any past default or Event of Default under
the Indenture and its consequences, except a default:
(i) in the payment of principal of, any premium or interest on, or any
Additional Amounts with respect to, any of the Notes; or
(ii) in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Note.
Upon any such waiver, such default shall cease to exist and be deemed to have
been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose
of the Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
ARTICLE 6
THE INDENTURE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except if an Event of Default has occurred and is continuing (and it has
not been cured or waived), the Indenture Trustee undertakes to perform such
duties and only such duties with respect to such Notes as are specifically
set forth in the Indenture. No implied covenants or obligations shall be
read into the Indenture against the Indenture Trustee.
(b) If an Event of Default has occurred and is continuing (and it has not been
cured or waived), the Indenture Trustee shall exercise such of the rights
and powers with respect to the Notes vested in it by the Indenture, and use
the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own affairs.
(c) No provision of the Indenture shall be construed to relieve the Indenture
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) this subsection (c) shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) in the absence of bad faith on its part, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Indenture Trustee and conforming to the requirements of the Indenture
unless a Responsible Officer of the Indenture Trustee has actual knowledge
that such statements or opinions are false; provided that the Indenture
Trustee must examine such certificates and opinions to determine whether
they conform to the requirements of the Indenture;
(iii)the Indenture Trustee shall not be liable for any error of judgment made
in good faith by any Responsible Officer of the Indenture Trustee, unless
it is proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iv) the Indenture Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holder Representative relating to the time, method and place of
conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred upon the Indenture
Trustee, under the Indenture with respect to the Notes; and
(v) no provision of the Indenture shall require the Indenture Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties under the Indenture, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of the
Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee shall be subject to the
provisions of this Section.
SECTION 6.2 Certain Rights of the Indenture Trustee. Subject to Section 6.1:
(a) the Indenture Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Trust mentioned in the
Indenture shall be sufficiently evidenced by a Trust Certificate (unless
other evidence in respect thereof be specifically prescribed in the
Indenture);
(c) the Indenture Trustee may consult with counsel and any advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be
taken by it under the Indenture in good faith and in reliance on such
advice or Opinion of Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by the Indenture at the request, order or
direction of any Holder Representative pursuant to the provisions of the
Indenture, unless such Holder Representative shall have offered to the
Indenture Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request, order or direction;
(e) whenever in the administration of the Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior
to taking or suffering or omitting any action under the Indenture, such
matter (unless other evidence in respect thereof be specifically prescribed
in the Indenture) may, in the absence of negligence or bad faith on its
part, be deemed to be conclusively proved and established by a Trust
Certificate delivered to the Indenture Trustee;
(f) the Indenture Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by the Indenture;
(g) the Indenture Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holder Representative;
provided that, if the payment within a reasonable time to the Indenture
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Indenture
Trustee, not reasonably assured to the Indenture Trustee by the security
afforded to it by the terms of the Indenture, the Indenture Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such examination
shall be paid by the Trust or, if paid by the Indenture Trustee or any
predecessor trustee, shall be repaid by the Trust upon demand; and
(h) the Indenture Trustee may execute any of the trusts or powers under the
Indenture or perform any duties under the Indenture either directly or by
or through agents or attorneys not regularly in its employ and the
Indenture Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed with due care by it
under the Indenture; provided that the Indenture Trustee shall not permit
any of its agents to take any action with respect to the Collateral without
the express written approval of the Indenture Trustee.
SECTION 6.3 Not Responsible for Recitals, Validity of the Notes or Application
of the Proceeds. The recitals contained in the Indenture and in the Notes,
except the Indenture Trustee's certificates of authentication, shall be taken as
the statements of the Trust, and the Indenture Trustee assumes no responsibility
for the correctness of the same. The Indenture Trustee makes no representation
as to the validity or sufficiency of the Indenture or of the Notes, or of any
Funding Agreement, or of the Collateral. The Indenture Trustee shall not be
accountable for the use or application by the Trust of any of the Notes, the
Funding Agreement or of the proceeds thereof.
SECTION 6.4 May Hold Notes; Collections, etc. The Indenture Trustee or any agent
of the Trust or the Indenture Trustee, in its individual or any other capacity,
may become the owner or pledgee of Notes with the same rights it would have if
it were not the Indenture Trustee or such agent and, subject to Section 6.7 and
Section 311(a) of the Trust Indenture Act, may otherwise deal with the Trust,
the Administrator, the Funding Agreement Provider and any other interested
party, and receive, collect, hold and retain collections from the Trust with the
same rights it would have if it were not the Indenture Trustee or such agent.
SECTION 6.5 Funds Held by Indenture Trustee. Subject to the provisions of
Section 11.4, all funds received by the Indenture Trustee shall, until used or
applied as provided in the Indenture, be held in trust for the purposes for
which they were received. The Indenture Trustee (and each of its agents and
Affiliates) shall deposit all cash amounts received by it (or any such agents or
Affiliates) that are derived from the Collateral for the benefit of the Holders
of Notes in a segregated account maintained or controlled by the Indenture
Trustee, consistent with the rating of the Outstanding Notes. Neither the
Indenture Trustee nor any agent of the Trust or the Indenture Trustee shall be
under any liability for interest on any funds received by it under the
Indenture.
SECTION 6.6 Compensation; Reimbursement; Indemnification.
(a) The Trust covenants and agrees:
(i) to pay to the Indenture Trustee from time to time, and the Indenture
Trustee shall be entitled to, the compensation specified on Annex A to the
Closing Instrument for all services rendered by it under the Indenture
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(ii) to pay or reimburse the Indenture Trustee upon its request for all
expenses, disbursements and advances specified on Annex A to the Closing
Instrument incurred or made by the Indenture Trustee in accordance with any
provision of the Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may arise from its negligence or bad
faith; and
(iii)to indemnify the Indenture Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the Indenture or the trusts under the Indenture and its
duties under the Indenture, including the costs and expenses of defending
itself against or investigating any claim of liability in connection with
the exercise or performance of any of its powers or duties under the
Indenture.
(b) The obligations of the Trust under this Section to compensate and indemnify
the Indenture Trustee and to pay or reimburse the Indenture Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness under the Indenture and shall survive the satisfaction and
discharge of the Indenture and any resignation or removal of the Indenture
Trustee.
SECTION 6.7 Corporate Trustee Required; Eligibility.
(a) There shall at all times be an Indenture Trustee under the Indenture which
shall:
(i) be a national banking association or a banking corporation authorized under
its laws of incorporation and the laws of the jurisdiction in which it
administers the Indenture and any Supplemental Indenture to exercise
corporate trust powers, having an aggregate capital, surplus of at least
$50,000,000; provided that if such banking corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of its
Federal, State or other governmental supervisor, then for the purposes of
this Section, the aggregate capital, surplus and undivided profits of such
banking corporation shall be deemed to be its aggregate capital, surplus
and undivided profits as set forth in its most recent report of condition
so published;
(ii) not be affiliated (as such term is defined in Rule 405 under the Securities
Act) with the Trust or with any Person involved in the organization or
operation of the Trust; and
(iii) not offer or provide credit or credit enhancement to the Trust.
(b) If at any time the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 6.7(a) or the requirements of
Section 310 of the Trust Indenture Act, the Indenture Trustee shall resign
promptly in the manner and with the effect specified in Section 6.8.
SECTION 6.8 Resignation and Removal; Appointment of Successor Trustee.
(a) The Indenture Trustee may at any time resign by giving not less than 90
days' prior written notice of resignation to the Trust and to the Holders
of Notes as provided in the Indenture. Upon receiving such notice of
resignation, the Trust shall promptly cause a successor trustee to be
appointed by written instrument in duplicate, executed by the Trust, one
copy of which instrument shall be delivered to the resigning trustee and
one copy to the successor indenture trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a
successor indenture trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) If at any time:
(i) the Indenture Trustee shall cease to be eligible in accordance with the
provisions of Section 6.7(a) or the requirements of Section 310(a) of the
Trust Indenture Act or any applicable Supplemental Indenture and shall fail
to resign pursuant to Section 6.7(b) or following written request therefor
by the Trust or by any such Holder pursuant to Section 6.8(c);
(ii) the Indenture Trustee shall become incapable of acting with respect to the
Notes, or shall be adjudged as bankrupt or insolvent, or a receiver or
liquidator of the Indenture Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Indenture Trustee
or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation; or
(iii)the Indenture Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to the
Notes after written request therefor by the Trust or any Holder of a Note
who has been a bona fide Holder of a Note for at least six months;
then, in any such case, except during the existence of an Event of Default, the
Trust may remove the Indenture Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Indenture Trustee so removed and one copy to the successor
trustee.
(c) In addition to the right of petition given to the resigning trustee and the
right of removal given to the Trust under Sections 6.8(a) and 6.8(b),
respectively, any Holder who has been a Holder of Notes for at least six
months may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
trustee or the removal of the Indenture Trustee and the appointment of a
successor trustee, as the case may be. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee or remove the Indenture Trustee and appoint a successor trustee, as
the case may be.
(d) The Holder Representative may at any time remove the Indenture Trustee and
appoint a successor trustee by delivering to the Indenture Trustee so
removed, to the successor trustee so appointed and to the Trust the
evidence provided for in Section 8.1 of the action in that regard taken by
a Holder.
(e) Any resignation or removal of the Indenture Trustee and any appointment of
a successor trustee pursuant to any of the provisions of this Section 6.8
shall only become effective upon acceptance of appointment by the successor
trustee as provided in Section 6.9.
SECTION 6.9 Acceptance of Appointment by Successor Trustee.
(a) Every successor trustee appointed as provided in Section 6.8 shall execute,
acknowledge and deliver to the Trust and to its predecessor indenture
trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor indenture trustee shall become
effective and such successor indenture trustee, without any further act,
deed or conveyance, shall become vested with all rights, powers, duties and
obligations of its predecessor under the Indenture, with like effect as if
originally named as indenture trustee under the Indenture; but,
nevertheless, on the written request of the Trust or of the successor
indenture trustee, upon payment of its charges then unpaid, the indenture
trustee ceasing to act shall, subject to Section 11.4, pay over to the
successor indenture trustee all funds at the time held by it under the
Indenture and shall execute and deliver an instrument transferring to such
successor indenture trustee all such rights, powers, duties and
obligations. Upon request of any such successor indenture trustee, the
Trust shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor indenture trustee all
such rights and powers. Subject to the Lien created under the Indenture,
any indenture trustee ceasing to act shall, nevertheless, retain a claim
upon all property or funds held or collected by such indenture trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
(b) Upon acceptance of appointment by a successor Indenture Trustee as provided
in this Section 6.9, the Trust shall notify each Holder of any Note and
each rating agency then rating any Notes at the request of the Trust. If
the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.8. If the Trust fails to
make such notice within 10 days after acceptance of appointment by the
successor Indenture Trustee, the successor Indenture Trustee shall cause
such notice to be mailed at the expense of the Trust.
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of
Indenture Trustee.
(a) Any corporation into which the Indenture Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Indenture Trustee shall be
a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Indenture Trustee, shall be the successor
of the Indenture Trustee under the Indenture, provided that such
corporation shall be eligible under the provisions of Section 6.7, without
the execution or filing of any paper or any further act on the part of any
of the parties to the Indenture, anything in the Indenture to the contrary
notwithstanding.
(b) In case at the time such successor to the Indenture Trustee shall succeed
to the trusts created by the Indenture any of the Note Certificates shall
have been authenticated but not delivered, any such successor to the
Indenture Trustee may adopt the certificate of authentication of any
predecessor Indenture Trustee and deliver such Note Certificates so
authenticated; and, in case at that time any of the Note Certificates shall
not have been authenticated, any successor to the Indenture Trustee may
authenticate such Note Certificates either in the name of any predecessor
under the Indenture or in the name of the successor Indenture Trustee; and
in all such cases such certificate shall have the full force; provided,
that the right to adopt the certificate of authentication of any
predecessor Indenture Trustee or to authenticate Note Certificates in the
name of any predecessor Indenture Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.11 Limitations on Rights of Indenture Trustee as Creditor. The
Indenture Trustee shall comply with Section 311(a) of the Trust Indenture Act.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY INDENTURE TRUSTEE AND TRUST
SECTION 7.1 Trust to Furnish Indenture Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Trust shall furnish or cause to be furnished to the Indenture Trustee:
(a) semi-annually not later than June 30 and December 31 of the year or upon
such other dates as are set forth in or pursuant to a Note Certificate or
Supplemental Indenture, a list, in each case in such form as the Indenture
Trustee may reasonably require, of the names and addresses of Holders as of
the applicable date, and
(b) at such other times as the Indenture Trustee may request in writing, within
30 days after the receipt by the Trust of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that so long as the Indenture Trustee is the Registrar no
such list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communication to Holders.
The Indenture Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act. Every Holder of Notes, by
receiving and holding the same, agrees with the Trust and the Indenture Trustee
that neither the Trust, the Indenture Trustee, any Paying Agent or any Registrar
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Notes in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Indenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 7.3 Reports by Indenture Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May 15
following the issuance of Notes, if required by Section 313(a) of the Trust
Indenture Act, the Indenture Trustee shall transmit, pursuant to Section
313(c) of the Trust Indenture Act, a brief report dated as of May 15 with
respect to any of the events specified in Section 313(a) of the Trust
Indenture Act which may have occurred since the later of the immediately
preceding May 15 and the date of the Indenture.
(b) The Indenture Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the time specified therein.
(c) The Indenture Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(d) Reports pursuant to this Section shall be transmitted in the manner and to
the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
(e) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Indenture Trustee with each stock exchange upon
which the Notes are listed, with the Commission and the Trust. The Trust
will notify the Indenture Trustee whether the Notes are listed on any stock
exchange.
(f) The Trust shall furnish to the Indenture Trustee at least annually, an
Opinion of Counsel, dated as of such date, either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and re-filing of the Indenture, as is
necessary to maintain the Security Interest of the Indenture and reciting
the details of such action or referring to prior Opinions of Counsel in
which such details are given, or stating that, in the opinion of such
counsel, no such action is necessary to maintain the Security Interest.
SECTION 7.4 Reports by Trust.
Pursuant to Section 314(a) of the Trust Indenture Act, the
Trust shall:
(a) file, or cause to be filed, with the Indenture Trustee, within 15 days
after the Trust or Global Funding is required to file the same with the
Commission and to the extent available to the Trust, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Trust or Global Funding
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Trust is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file, or cause to be filed, with the Indenture Trustee and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations; provided that if, pursuant to any
publicly available interpretations of the Commission, the Trust or Global
Funding would not be required to make such filings under Section 314(a) of
the Trust Indenture Act, then the Trust or Global Funding shall not be
required to make such filings;
(b) file, or cause to be filed on its behalf, with the Indenture Trustee and
the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Trust, with the conditions and
covenants of the Indenture as may be required from time to time by such
rules and regulations; and
(c) transmit within 30 days after the filing thereof with the Indenture
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by or on behalf of the Trust pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 7.5 Compliance Certificates and Auditor's Reports. No later than March 1
of each year, the Indenture Trustee shall (i) provide to the Funding Agreement
Provider, the Trust and Global Funding an annual statement of compliance
substantially in the form attached as Exhibit C, which shall be filed as an
exhibit to the applicable Annual Report on Form 10-K of the Trust filed under
the Exchange Act (each, a "Form 10-K") and (ii) provide information necessary to
allow a firm of independent public accountants selected by the Administrator to
furnish to the board of directors of the Funding Agreement Provider annually an
auditor's report pursuant to Section 2.2(a)(x) of the Amended and Restated
Administrative Services Agreement.
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 Evidence of Action Taken by a Holder.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by the Indenture to be given or taken by any Holder
may be embodied in and evidenced (i) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or
proxy appointed in writing, or (ii) by the record of the Holders of Notes
voting in favor thereof at any meeting of Holders duly called and held in
accordance with the provisions of Article 12, or (iii) by a combination of
such instrument or instruments and any such record of such meeting of
Holders. Except as otherwise expressly provided in the Indenture, such
action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee. Proof of execution of any instrument or
of a writing appointing any such agent shall be sufficient for any purpose
of the Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor
of the Indenture Trustee and the Trust, if made in the manner provided in
this Article. The record of any meeting of Holders of Notes shall be proved
in the manner provided in Section 12.6.
(b) Any request, demand, authorization, direction, notice, consent, waiver or
other action of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or
the Trust in reliance thereon, whether or not notation of such action is
made upon such Note.
SECTION 8.2 Proof of Execution of Instruments and of Holding of Notes.
(a) Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Holder or its agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Indenture
Trustee or in such manner as shall be satisfactory to the Indenture
Trustee.
(b) The ownership, principal amount and CUSIP numbers of Notes shall be proved
by the Note Register or by a certificate of the Indenture Trustee.
SECTION 8.3 Voting Record Date. The Trust may set a record date for purposes of
determining the identity of each Holder of a Note entitled to vote or consent to
any action referred to in Section 8.1, which record date may be set at any time
or from time to time by notice to the Indenture Trustee, for any date or dates
(in the case of any adjournment or resolicitation) not more than 60 days nor
less than 5 days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions of the Indenture, only a Holder
of any Note on such record date shall be entitled to so vote or give such
consent or to withdraw such vote or consent.
SECTION 8.4 Persons Deemed to be Owners. The Trust, the Indenture Trustee and
any agent of the Trust or the Indenture Trustee may deem and treat the Holder of
any Note as the absolute owner of such Note (whether or not such Note shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of, any
premium on, and, subject to the provisions of the Indenture, any interest on,
and any Additional Amounts with respect to, such Note and for all other
purposes; and neither the Trust nor the Indenture Trustee nor any agent of the
Trust or the Indenture Trustee shall be affected by any notice to the contrary.
All such payments so made to any such Person, or upon such Person's order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for funds payable upon any such Note.
SECTION 8.5 Notes Owned by Trust Deemed Not Outstanding. In determining whether
the Holders of the requisite aggregate principal amount of Notes have concurred
in any direction, consent or waiver under the Indenture, Notes which are owned
by the Trust or any other obligor on the Notes or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Trust or any other obligor on the Notes shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Indenture Trustee shall
be protected in relying on any such direction, consent or waiver only Notes
which the Indenture Trustee knows are so owned shall be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not
the Trust or any other obligor upon the Notes or any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Trust or any other obligor on the Notes. In case of a dispute
as to such right, the advice of counsel shall be full protection in respect of
any decision made by the Indenture Trustee in accordance with such advice. Upon
request of the Indenture Trustee, the Trust shall furnish to the Indenture
Trustee promptly a Trust Certificate listing and identifying all Notes, if any,
known by the Trust to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Indenture
Trustee shall be entitled to accept such Trust Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Notes not
listed therein are Outstanding for the purpose of any such determination.
SECTION 8.6 Right of Revocation of Action Taken; Binding Effect of Actions by
Holders.
(a) At any time prior to (but not after) the evidencing to the Indenture
Trustee, as provided in Section 8.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Notes
specified in the Indenture in connection with such action, any Holder of a
Note represented by a Note Certificate the serial number of which is shown
by the evidence to be included among the serial numbers of the Note
Certificates representing Notes the Holders of which have consented to such
action may, by filing written notice at the Corporate Trust Office and upon
proof of holding as provided in this Article, revoke such action so far as
concerns such Note.
(b) Any action taken by the Holders of the percentage in aggregate principal
amount of the Notes specified in the Indenture in connection with such
action shall be conclusively binding upon the Trust, the Indenture Trustee
and the Holders of all the Notes affected by such action, of any Notes
issued in exchange for any Notes affected by such action or any Notes
represented by Note Certificates executed, authenticated and delivered in
exchange for any Note Certificate representing any Notes affected by such
action, irrespective of whether or not any notation in regard of any such
action is made on any applicable Note Certificate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
(a) The Trust and the Indenture Trustee may from time to time and at any time
enter into an indenture or indentures supplemental to the Indenture (each,
a "Supplemental Indenture") (which shall conform to the provisions of the
Trust Indenture Act) for one or more of the following purposes without the
consent of any Holder:
(i) for the Trust to convey, transfer, assign, mortgage or pledge to the
Indenture Trustee as security for the Notes any property or assets;
(ii) to add to the covenants of the Trust such further covenants, restrictions,
conditions or provisions as the Trust and the Indenture Trustee shall
consider to be for the protection of each Holder of any Note, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in the Indenture as set forth in the Indenture; provided, that in
respect of any such additional covenant, restriction, condition or
provision such Supplemental Indenture may provide for a particular period
of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Indenture Trustee upon such an Event of Default or may
limit the right of the Holder Representative to waive such an Event of
Default;
(iii)to cure any ambiguity or to correct or supplement any provision contained
in the Indenture or in any Supplemental Indenture or Note Certificate which
may be defective or inconsistent with any other provision contained in the
Indenture or in any Supplemental Indenture or Note Certificate; or to make
such other provisions in regard to matters or questions arising under the
Indenture or under any Supplemental Indenture or Note Certificate as the
Trust may deem necessary or desirable and which shall not adversely affect
the interests of the Holders of the Notes in any material respect; or
(iv) to evidence and provide for the acceptance of appointment under the
Indenture by a successor trustee and to add to or change any of the
provisions of the Indenture as shall be necessary to provide for or
facilitate the administration of the trusts under the Indenture by more
than one trustee.
(b) The Indenture Trustee is authorized to join with the Trust in the execution
of any such Supplemental Indenture, and to make any further appropriate
agreements and stipulations which may be therein contained, but the
Indenture Trustee shall not be obligated to enter into any such
Supplemental Indenture which affects the Indenture Trustee's own rights,
duties or immunities under the Indenture or otherwise.
(c) Any Supplemental Indenture authorized by the provisions of this Section may
be executed without the consent of any Holder of any Note at the time
Outstanding, notwithstanding any of the provisions of Section 9.2.
SECTION 9.2 Supplemental Indentures With Consent of Holders.
(a) With the consent (evidenced as provided in Article 8) of the Holders of not
less than 66?% in aggregate principal amount of the Notes at the time
Outstanding, the Trust and the Indenture Trustee may, from time to time and
at any time, enter into a Supplemental Indenture for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any Supplemental Indenture or Note
Certificate or of modifying in any manner the rights of the Holders of the
Notes; provided, that no such Supplemental Indenture shall:
(i) change the final maturity of any Note, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest or
any other amount payable thereon, or impair or affect the right of any
Holder to institute suit for the payment thereof without the consent of the
Holder of each Note so affected or modify any redemption or repayment
provisions applicable to the Notes;
(ii) permit the creation of any Lien on the Collateral or any part thereof
(other than the Security Interest in favor of the Indenture Trustee on
behalf of the Holders) or terminate the Security Interest as to any part of
the Collateral, except as permitted by the Indenture; or
(iii)modify any of the provisions of this Section 9.2 except to increase the
aforementioned percentage of Notes required to approve any Supplemental
Indenture.
(b) Upon the request of the Trust, and upon the filing with the Indenture
Trustee of evidence of the consent of each Holder and other documents, if
any, required by Section 8.1 the Indenture Trustee shall join with the
Trust in the execution of such Supplemental Indenture unless such
Supplemental Indenture affects the Indenture Trustee's own rights, duties
or immunities under the Indenture or otherwise, in which case the Indenture
Trustee may in its discretion, but shall not be obligated to, enter into
such Supplemental Indenture.
(c) It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed Supplemental Indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
(d) Promptly after the execution by the Trust and the Indenture Trustee of any
Supplemental Indenture pursuant to the provisions of this Section, the
Indenture Trustee shall notify the Holders of each Note, as provided in the
Indenture, setting forth in general terms the substance of such
Supplemental Indenture. Any failure of the Indenture Trustee to provide
such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such Supplemental Indenture.
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental
Indenture. Any Supplemental Indenture executed pursuant to the provisions of
this Article shall comply with the Trust Indenture Act. Upon the execution of
any Supplemental Indenture pursuant to the provisions of the Indenture, the
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under the Indenture of the Indenture Trustee, the Trust and each
Holder of Notes shall thereafter be determined, exercised and enforced under the
Indenture subject in all respects to such modifications and amendments, and all
the terms and conditions of any such Supplemental Indenture shall be and be
deemed to be part of the terms and conditions of the Indenture for any and all
purposes.
SECTION 9.4 Documents to Be Given to Indenture Trustee. The Indenture Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive a Trust
Certificate and an Opinion of Counsel as conclusive evidence that any such
Supplemental Indenture complies with the applicable provisions of the Indenture.
SECTION 9.5 Notation on Note Certificates in Respect of Supplemental Indentures.
Any Note Certificate authenticated and delivered after the execution of any
Supplemental Indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Indenture Trustee as to any matter provided for
by such Supplemental Indenture or as to any action taken at any such meeting. If
the Trust or the Indenture Trustee shall so determine, a new Note Certificate
representing Notes so modified as to conform, in the opinion of the Indenture
Trustee and the Trust, to any modification of the Indenture contained in any
such Supplemental Indenture may be prepared by the Trust, authenticated by the
Indenture Trustee and delivered in exchange for each Note Certificate
representing Notes then Outstanding.
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 Trust May Merge, Consolidate, Sell or Convey Property Under Certain
Circumstances. The Trust may not consolidate with, or merge into, any Person
(whether or not affiliated with the Trust), or sell, lease or convey the
property of the Trust as an entirety or substantially as an entirety, unless:
(a) the entity formed by such consolidation or into which the Trust is merged
or the Person which acquires by conveyance or transfer the properties and
assets of the Trust substantially as an entirety shall be a statutory trust
formed under the laws of the State of Delaware or a corporation or other
entity organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly
assume, by a Supplemental Indenture, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of, any premium and interest on, and
any Additional Amounts with respect to, the Notes and the performance of
every covenant of the Indenture on the part of the Trust to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become an
Event of Default, shall have happened and be continuing;
(c) the Trust has received written confirmation from any rating agency then
rating any Notes at the request of the Trust that such consolidation,
merger, conveyance or transfer shall not cause the rating on the then
Outstanding Notes to be downgraded or withdrawn; and
(d) the Trust has delivered to the Indenture Trustee a Trust Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance
or transfer and such Supplemental Indenture comply with this Article and
that all conditions precedent provided for in the Indenture relating to
such transaction have been complied with.
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 Satisfaction and Discharge of Indenture. If at any time (a) the
Trust shall have paid or caused to be paid all outstanding principal of, any
premium and interest on, and any Additional Amounts and other amounts payable
with respect to, all the Notes Outstanding under the Indenture, as and when the
same shall have become due and payable, or (b) the Trust shall have delivered to
the Indenture Trustee for cancellation all Note Certificates representing Notes
theretofore authenticated (other than any Note Certificate which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.7) or (c) the Trust shall have irrevocably deposited or caused to
be deposited with the Indenture Trustee as trust funds the entire amount in cash
(other than funds repaid by the Indenture Trustee or any Paying Agent to the
Trust in accordance with Section 11.4) sufficient to pay at maturity all amounts
payable at maturity on the Notes represented by each Note Certificate not
theretofore delivered to the Indenture Trustee for cancellation, including any
outstanding principal, interest, premium, Additional Amounts and other amounts
due or to become due to such date of maturity as the case may be, and if, in any
such case, the Trust shall also pay or cause to be paid all other sums payable
under the Indenture by the Trust, then the Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and
exchange, (ii) substitution of apparently mutilated, defaced, destroyed, lost or
stolen Note Certificates, (iii) rights of Holders to receive payments of
principal of, any premium and interest on, and any Additional Amounts and other
amounts payable with respect to, the Notes, (iv) the rights, obligations and
immunities of the Indenture Trustee under the Indenture and (v) the rights of
each Holder as beneficiary of the Indenture with respect to the property so
deposited with the Indenture Trustee payable to all or any of them), and the
Indenture Trustee, on demand of the Trust accompanied by a Trust Certificate and
an Opinion of Counsel and at the cost and expense of the Trust, shall execute
proper instruments acknowledging such satisfaction of and discharging the
Indenture. The Trust agrees to reimburse the Indenture Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with the Indenture or the Notes.
SECTION 11.2 Application by Indenture Trustee of Funds Deposited for Payment of
Notes. Subject to Section 11.4, all funds deposited with the Indenture Trustee
pursuant to Section 11.1 shall be held in trust in accordance with Section 6.5
and applied by it to the payment, either directly or through any Paying Agent
(including the Trust acting as its own paying agent), to each Holder of any Note
for the payment or redemption of which such funds have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for any principal,
interest, premium, Additional Amounts or other amounts.
SECTION 11.3 Repayment of Funds Held by Paying Agent. In connection with the
satisfaction and discharge of the Indenture, all funds then held by any Paying
Agent under the provisions of the Indenture shall, upon demand of the Trust, be
repaid to the Trust or paid to the Indenture Trustee and thereupon such Paying
Agent shall be released from all further liability with respect to such funds.
SECTION 11.4 Return of Funds Held by Indenture Trustee and Paying Agent. Any
funds deposited with or paid to the Indenture Trustee or any Paying Agent for
the payment of the principal of, any interest or premium on, or any Additional
Amounts or any other amounts with respect to, any Note and not applied but
remaining unclaimed for three years after the date upon which such principal,
interest, premium, Additional Amounts or any other amount shall have become due
and payable, shall, upon the written request of the Trust and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Trust by the Indenture Trustee or such Paying
Agent, and the Holder of such Note shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Trust for any payment which such Holder may be
entitled to collect, and all liability of the Indenture Trustee or any Paying
Agent with respect to such funds shall thereupon cease.
ARTICLE 12
MEETINGS OF HOLDERS OF NOTES
SECTION 12.1 Purposes for Which Meetings May Be Called. A meeting of Holders of
Notes may be called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by the Indenture to be made, given or
taken by Holders of Notes.
SECTION 12.2 Call, Notice and Place of Meetings.
(a) Unless otherwise provided in a Note Certificate, the Indenture Trustee may
at any time call a meeting of Holders of Notes for any purpose specified in
Section 12.1, to be held at such time and at such place in the City of New
York or the city in which the Corporate Trust Office is located. Notice of
every meeting of Holders of Notes, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given in the manner provided in Section 13.4, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Trust or the Holder or Holders of at least 10% in
principal amount of the Notes shall have requested the Indenture Trustee to
call a meeting of the Holders of Notes for any purpose specified in Section
12.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Indenture Trustee shall not
have made the first publication or mailing of the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided in the Indenture, then
the Trust or the Holder or Holders of Notes in the amount above specified,
as the case may be, may determine the time and the place in the City of New
York or the city in which the Corporate Trust Office is located for such
meeting and may call such meeting for such purposes by giving notice
thereof as provided in Section 12.2.
SECTION 12.3 Persons Entitled to Vote at Meetings. To be entitled to vote at any
meeting of Holders of Notes, a Person shall be (a) a Holder of one or more Notes
then Outstanding, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Notes then Outstanding by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Notes shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Indenture Trustee and its
counsel and any representatives of the Trust and its counsel.
SECTION 12.4 Quorum; Action.
(a) The Persons entitled to vote a majority in principal amount of the Notes
then Outstanding shall constitute a quorum for a meeting of Holders of
Notes; provided, however, that if any action is to be taken at such meeting
with respect to a consent or waiver which the Indenture expressly provides
may be given by the Holders of not less than 66?% in principal amount of
the Outstanding Notes, then Persons entitled to vote 66?% in principal
amount of the Outstanding Notes shall constitute a quorum. In the absence
of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Notes,
be dissolved. In any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
12.2, except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Notes which shall constitute a quorum.
(b) Except as limited by the proviso to Section 9.2(a), any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding Notes;
provided, however, that, except as limited by the proviso to Section
9.2(a), any resolution with respect to any consent or waiver which the
Indenture expressly provides may be given by the Holders of not less than
66?% in principal amount of the Outstanding Notes may be adopted at a
meeting or an adjourned meeting duly convened and at which a quorum is
present as aforesaid only by the affirmative vote of the Holders of 66?% in
principal amount of the Outstanding Notes; and provided, further, that,
except as limited by the proviso to Section 9.2(a), any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which the Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding Notes may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Notes.
(c) Any resolution passed or decision taken at any meeting of Holders of Notes
duly held in accordance with this Section shall be binding on all the
Holders of Notes, whether or not such Holders were present or represented
at the meeting.
SECTION 12.5 Determination of Voting Rights; Conduct of Adjournment of Meetings.
(a) Notwithstanding any other provisions of the Indenture, the Indenture
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Notes in regard to proof of the holding of Notes
and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the
holding of Notes shall be proved in the manner specified in Section 8.4 and
the appointment of any proxy shall be proved in the manner specified in
Section 8.2. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 8.2 or other proof.
(b) The Indenture Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Trust or by Holders of Notes as provided in Section 12.2(b),
in which case the Trust or the Holders of Notes calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in principal amount of the
Outstanding Notes represented at the meeting.
(c) At any meeting, each Holder of a Note or proxy shall be entitled to one
vote for each $1,000 of principal amount of Notes held or represented by
such Holder or proxy; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Note challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of
a Note or proxy.
(d) Any meeting of Holders of Notes duly called pursuant to Section 12.2 at
which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the Outstanding Notes
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 12.6 Counting Votes and Recording Action of Meetings. The vote upon any
resolution submitted to any meeting of Holders of Notes shall be (a) by written
ballots on which shall be subscribed the signatures of the Holders of Notes or
of their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Notes held or represented by them or (b) by such other
procedures adopted by the Indenture Trustee in its discretion. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record, at least in triplicate,
of the proceedings of each meeting of Holders of Notes shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 12.2 and, if applicable, Section 12.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Trust, and another to
the Indenture Trustee to be preserved by the Indenture Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 No Recourse. Notwithstanding anything to the contrary contained in
the Indenture, or any relevant Note Certificate or Supplemental Indenture, none
of the Funding Agreement Provider, its officers, directors, affiliates,
employees or agents, or any of the Delaware Trustee, the Indenture Trustee or
the Trust Beneficial Owner, or any of their officers, directors, affiliates,
employees or agents (the "Nonrecourse Parties") will be personally liable for
the payment of any principal, interest or any other sums at any time owing under
the terms of the Notes. If any Event of Default shall occur with respect to the
Notes, the right of the Holders of the Notes and the Indenture Trustee on behalf
of such Holders in connection with a claim on the Notes shall be limited solely
to a proceeding against the Collateral. Neither the Holders nor the Indenture
Trustee on behalf of the Holders will have the right to proceed against the
Nonrecourse Parties to enforce the Notes (except that to the extent they
exercise their rights, if any, to seize the relevant Funding Agreement, they may
enforce the relevant Funding Agreement against the Funding Agreement Provider)
or for any deficiency judgment remaining after foreclosure of any property
included in the relevant Collateral.
It is expressly understood and agreed that nothing contained in this
Section shall in any manner or way constitute or be deemed a release of the debt
or other obligations evidenced by the Notes or otherwise affect or impair the
enforceability against the Trust of the liens, assignments, rights and the
Security Interest created by or pursuant to the Indenture, the relevant
Collateral or any other instrument or agreement evidencing, securing or relating
to the indebtedness or the obligations evidenced by the Notes. Nothing in this
Section shall preclude the Holders from foreclosing upon any property included
in the Collateral or any other rights or remedies in law or in equity against
the Trust.
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders. Nothing in the Indenture or in the Notes, expressed or implied, shall
give or be construed to give to any Person, other than the parties to the
Indenture and their successors and the Holders of the Notes, any legal or
equitable right, remedy or claim under the Indenture or under any covenant or
provision contained in the Indenture, all such covenants and provisions being
for the sole benefit of the parties to the Indenture and their successors and of
the Holders of the Notes.
SECTION 13.3 Successors and Assigns of Trust Bound by Indenture. All the
covenants, stipulations, promises and agreements in the Indenture contained by
or in behalf of the Trust shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.4 Notices and Demands on Trust, Indenture Trustee and any Holder.
(a) Except as otherwise provided by this Section, any notice or demand which by
any provision of the Indenture is required or permitted to be given or
served by the Indenture Trustee or by any Holder of any Note to or on the
Trust may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided in the
Indenture) addressed (until another address of the Trust is filed by the
Trust with the Indenture Trustee) to the Delaware Trustee. Any notice,
direction, request or demand by the Trust or any Holder to or upon the
Indenture Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at the Corporate Trust Office.
(b) Where the Indenture provides for notice to any Holder, such notice shall be
sufficiently given (unless otherwise expressly provided in the Indenture)
if in writing and mailed, first-class postage prepaid, to each Holder
entitled thereto, at such Holder's last address as it appears in the Note
Register. In any case where notice to any Holder is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with
respect to any other Holder.
(c) Where the Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by any Holder shall be filed with the Indenture
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
(d) If, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Trust and each
Holder when such notice is required to be given pursuant to any provision
of the Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.
(e) The Trust shall deliver promptly to each rating agency then rating the
Notes at the request of the Trust copies of each of the following:
(i) any repurchase of Notes pursuant to Section 3.3;
(ii) any notice of any default or Event of Default;
(iii) any notice of redemption provided by the Trust pursuant to Section 3.1(d);
(iv) any notice of change in name, identity, organizational structure, chief
executive office, or chief place of business of the Trust provided by the
Trust pursuant to Section 14.4(a);
(v) any Supplemental Indenture;
(vi) any resignation, removal or appointment under this Indenture;
(vii) any amendment to any Funding Agreement; and
(viii) any other information reasonably requested by such rating agency.
Any such notice shall be addressed to:
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 such other address previously furnished in writing to the
Trust by the applicable rating agency.
SECTION 13.5 Trust Certificates and Opinions of Counsel; Statements To Be
Contained Therein.
(a) Except as otherwise expressly provided in the Indenture, upon any
application or demand by the Trust to the Indenture Trustee to take any
action under any of the provisions of the Indenture, the Trust shall
furnish to the Indenture Trustee a Trust Certificate stating that all
conditions precedent, if any, provided for in the Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of the applicable counsel all such conditions
precedent, if any, have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by any provision of the Indenture relating to such
particular application or demand, no additional certificate or opinion need
be furnished.
(b) Each certificate or opinion provided for in the Indenture and delivered to
the Indenture Trustee with respect to compliance with a condition or
covenant provided for in the Indenture shall include:
(i) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii)a statement that, in the opinion of such Person, he has made such
examination or investigation or has received such certificates, opinions,
representations or statements of counsel or accountants pursuant to
paragraphs (c) or (d) of this Section, as are necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
(c) Any certificate, statement or opinion of the Trust may be based upon a
certificate or opinion of or representations by counsel, unless the Trust
knows that the certificate or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters information
with respect to which is in the possession of the Trust, upon the
certificate, statement or opinion of or representations by the Trust,
unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which the certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
(d) Any certificate, statement or opinion of the Trust or of counsel may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of accountants in
the employ of the Trust, unless such officer or counsel, as the case may
be, knows that the certificate or opinion or representations with respect
to the accounting matters upon which the certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous.
(e) Any certificate or opinion of any independent firm of public accountants
filed with the Indenture Trustee shall contain a statement that such firm
is independent.
SECTION 13.6 Governing Law. Pursuant to Section 5-1401 of the General
Obligations Law of the State of New York, the Indenture and the Notes shall
(unless specified otherwise in the Note Certificate) be governed by, and
construed in accordance with, the laws of the State of New York, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the Trust's ownership of and security interest in the
Funding Agreement(s) or remedies under the Indenture in respect thereof may be
governed by the laws of a jurisdiction other than the State of New York. All
judicial proceedings brought against the Trust or the Indenture Trustee arising
out of or relating to the Indenture, any Note or any portion of the Collateral
or other assets of the Trust may be brought in any state or Federal court in the
State of New York, provided that a Note Certificate may specify other
jurisdictions as to which the Trust may consent to the nonexclusive jurisdiction
of its courts with respect to the Notes.
SECTION 13.7 Counterparts. The Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.8 Trust Indenture Act to Control. If and to the extent that any
provision of the Indenture limits, qualifies or conflicts with any duties under
any required provision of the Trust Indenture Act imposed on the Indenture by
Section 318(c) of the Trust Indenture Act (each, an "incorporated provision"),
such incorporated provision shall control.
SECTION 13.9 Judgment Currency. The Trust agrees, to the fullest extent that
it may effectively do so under applicable law, that:
(a) if for the purposes of obtaining judgment in any court it is necessary to
convert the sum due in respect of the Notes in the Specified Currency into
a currency in which a judgment will be rendered (the "Judgment Currency"),
the rate of exchange used (the "Required Rate of Exchange") shall be the
rate at which in accordance with normal banking procedures the Indenture
Trustee could purchase in The City of New York the Specified Currency with
the Judgment Currency on the date on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then, to the extent
permitted by applicable law, the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Indenture Trustee
could purchase in The City of New York the Specified Currency with the
Judgment Currency on the New York Banking Day preceding the day on which
final unappealable judgment is entered;
(b) its obligations under the Indenture to make payments in the Specified
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Specified Currency,
except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Specified Currency
expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose
of recovering in the Specified Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Specified
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under the Indenture; and
(c) it shall indemnify the Holder or Holders of any Note against any loss
incurred as a result of any variation between:
(i) the rate of exchange at which the Specified Currency amount is actually
converted into the Judgment Currency for the purpose of that judgment or
order; and
(ii) the Required Rate of Exchange.
For purposes of this Section, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 Security Interest.
(a) To secure the full and punctual payment of the Obligations in accordance
with the terms of the Indenture and to secure the performance of the
Trust's obligations under the Notes and the Indenture, the Trust pledges
and collaterally assigns to and with the Indenture Trustee for the benefit
of each Holder of each Note and any other Person for whose benefit the
Indenture Trustee is or will be holding the Collateral (the "Secured
Parties"), and grants to the Indenture Trustee for the benefit of each
Secured Party, a security interest in the Collateral and all of the rights
and privileges of the Trust in and to the Collateral (the "Security
Interest"), effective as of the Original Issue Date of the Notes.
(b) It is expressly agreed that anything therein contained to the contrary
notwithstanding, the Trust shall remain liable under each Funding Agreement
to perform all the obligations assumed by it thereunder, all in accordance
with and pursuant to the terms and provisions thereof, and the Indenture
Trustee shall not have any obligations or liabilities by reason of or
arising out of the Indenture, nor shall the Indenture Trustee be required
or obligated in any manner to perform or fulfill any obligations of the
Trust under or pursuant to such Funding Agreement or to make any payment,
to make any inquiry as to the nature or sufficiency of any payment received
by it, or, prior to the occurrence and continuance of an Event of Default,
to present or file any claim, or to take any action to collect or enforce
the payment of any amounts that may have been assigned to it or to which it
may be entitled at any time or times.
(c) The Indenture Trustee acknowledges the grant of the Security Interest upon
the issuance of the Notes, accepts the trusts under the Indenture in
accordance with the provisions of the Indenture and agrees to perform its
duties in accordance with the terms of the Indenture.
SECTION 14.2 Representations and Warranties. The Trust represents and warrants
(which representations and warranties shall be deemed to have been repeated as
of the date of any Note Certificate) as follows:
(a) The Trust owns each Funding Agreement that secures the Obligations and all
of the rest of the Collateral, free and clear of any Liens other than the
Security Interest in the Collateral.
(b) The Trust has not performed any acts which might prevent the Indenture
Trustee from enforcing any of the terms of the Indenture or which would
limit the Indenture Trustee in any such enforcement. Other than financing
statements or other similar or equivalent documents or instruments with
respect to the Security Interest, no financing statement, mortgage,
security agreement or similar or equivalent document or instrument covering
all or any part of the Collateral is on file or of record in any
jurisdiction in which such filing or recording would be effective to
perfect a Lien on such Collateral. No Collateral is in the possession of
any Person (other than the Trust or its agent) asserting any claim thereto
or security interest therein, except that the Indenture Trustee or its
designee may have possession of Collateral as contemplated by the
Indenture.
(c) Each Security Interest constitutes a valid security interest securing the
Obligations. When (i) the financing statements shall have been filed in the
appropriate offices in Illinois, Delaware and New York, (ii) the Indenture
Trustee or its agent shall have taken possession of each applicable Funding
Agreement, (iii) the Trust shall have pledged and collaterally assigned
each applicable Funding Agreement to the Indenture Trustee and given
written notice to the Funding Agreement Provider of each such assignment to
the Indenture Trustee and (iv) the Funding Agreement Provider shall have
given its express written consent to such pledge and collateral assignment
and affirmed in writing that the Funding Agreement Provider has changed its
books and records to reflect such pledge and collateral assignment to the
Indenture Trustee, such Security Interest shall constitute a first priority
perfected security interest in the Collateral, enforceable against the
Trust, the Trust's creditors and any purchaser from the Trust.
SECTION 14.3 Additional Representations and Warranties. The Trust represents
and warrants that:
(a) to the extent the creation of a security interest in any Funding Agreement
is governed by the applicable UCC, the Indenture creates a valid security
interest (as defined in the applicable UCC) in each Funding Agreement in
favor of the Indenture Trustee for the benefit and security of the Secured
Parties, which security interest is prior to all other Liens;
(b) to the extent the UCC applies, each Funding Agreement consists of "general
intangibles," "payment intangibles" and/or "instruments" within the meaning
of the applicable UCC;
(c) subject to the grant of security interest, pledge and collateral assignment
of the Trust's estate, right, title and interest in each Funding Agreement,
the Trust is a party to and is the Person entitled to payment under each
Funding Agreement on the date of the Indenture free and clear of any Lien,
claim or encumbrance of any Person, other then the Lien created under the
Indenture or any Lien otherwise permitted under the Indenture;
(d) to the extent the UCC applies, the Trust has caused or will have caused,
within ten days after the date of the Indenture, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in each Funding Agreement granted to the Indenture
Trustee for the benefit and security of the Secured Parties under the
Indenture;
(e) all original executed copies of each instrument that constitutes or
evidences each Funding Agreement have been delivered to the Indenture
Trustee or a custodian for the Indenture Trustee (the "Custodian");
(f) where all original executed copies of each instrument that constitutes or
evidences each Funding Agreement have been delivered to the Custodian, the
Trust has received a written acknowledgment from the Custodian that the
Custodian is holding the instruments that constitute or evidence each
Funding Agreement solely on behalf of the Indenture Trustee;
(g) other than the security interest granted to the Indenture Trustee for the
benefit and security of the Secured Parties pursuant to the Indenture, the
Trust has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Funding Agreements;
(h) the Trust has not authorized the filing of and is not aware of any
financing statements against the Trust that include a description of
collateral covering the Funding Agreement other than any financing
statement relating to the security interest granted to the Indenture
Trustee for the benefit and security of the Secured Parties under the
Indenture or that has been terminated;
(i) the Trust is not aware of any judgment or tax lien filings against the
Trust; and
(j) none of the instruments that constitute or evidence the Funding Agreements
has any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than the Indenture Trustee for
the benefit and security of the Secured Parties.
The foregoing representations and warranties shall survive the
execution and delivery of the Notes. No party to the Indenture shall waive any
of the foregoing representations and warranties. The Trust shall maintain the
perfection and priority of the security interest in each Funding Agreement.
SECTION 14.4 Further Assurances; Covenants.
(a) The Trust will not change its name, identity or organizational structure in
any manner unless it shall have given the Indenture Trustee at least 30
days' prior notice thereof and shall have complied with Section 14.4(e).
The Trust will not change the location of its chief executive office or
chief place of business unless it shall have given the Indenture Trustee at
least 30 days' prior notice thereof and shall have complied with Section
14.4(e).
(b) The Trust will, from time to time and upon advice of counsel, at the
Trust's expense, prepare, execute, authenticate, deliver, file and record
any statement, assignment, instrument, document, agreement or other paper
and take any other action, (including, without limitation, any filings of
financing or continuation statements) that from time to time may be
necessary or desirable, or that the Indenture Trustee may reasonably
request, in order to create, preserve, perfect, confirm or validate a
Security Interest or to enable the Holders of Notes to obtain the full
benefits of the Indenture, or to enable the Indenture Trustee to exercise
and enforce any of its rights, powers and remedies under the Indenture with
respect to any Collateral. To the extent permitted by applicable law, if
the Trust fails to do so, the Trust authorizes the Indenture Trustee to
execute and file financing statements or continuation statements without
the Trust's signature appearing thereon. The Trust agrees that a carbon,
photographic, photostatic or other reproduction of the Indenture or of a
financing statement is sufficient as a financing statement. The Trust shall
pay the costs of, or incidental to, any recording or filing of any
financing or continuation statements concerning any Collateral.
(c) If any Collateral is at any time in the possession or control of any
warehouseman, bailee or any of the Trust's agents or processors, the Trust
shall notify such warehouseman, bailee, agent or processor of the Security
Interest created by the Indenture and to hold all such Collateral for the
Indenture Trustee's account subject to the Indenture Trustee's
instructions.
(d) The Trust will, promptly upon request, provide to the Indenture Trustee all
information and evidence it may reasonably request concerning the
Collateral to enable the Indenture Trustee to enforce the provisions of the
Indenture.
(e) Not more than six months nor less than 30 days prior to each date on which
the Trust proposes to take any action contemplated by Section 14.4(a), the
Trust shall, at its cost and expense, cause to be delivered to the
Indenture Trustee an Opinion of Counsel, satisfactory to the Indenture
Trustee, to the effect that all financing statements and amendments or
supplements thereto, continuation statements and other documents required
to be recorded or filed in order to perfect and protect the Security
Interest for a period, specified in such Opinion of Counsel, continuing
until a date not earlier than 18 months from the date of such Opinion of
Counsel, against all creditors of and purchasers from the Trust have been
filed in each filing office necessary for such purpose and that all filing
fees and taxes, if any, payable in connection with such filings have been
paid in full.
(f) From time to time upon request by the Indenture Trustee, the Trust shall,
at its cost and expense, cause to be delivered to the Indenture Trustee an
Opinion of Counsel satisfactory to the Indenture Trustee as to such matters
relating to the Security Interest as the Indenture Trustee or the Holder
Representative may reasonably request.
SECTION 14.5 General Authority. The Trust irrevocably appoints the Indenture
Trustee its true and lawful attorney, with full power of substitution, in the
name of the Trust, the Indenture Trustee, the Holders of Notes or otherwise, for
the sole use and benefit of the Secured Parties, but at the Trust's expense, to
the extent permitted by law to exercise, at any time and from time to time while
an Event of Default has occurred and is continuing, all or any of the following
powers with respect to all or any of the Collateral:
(a) to demand, sue for, collect, receive and give acquittance for any and all
monies due or to become due thereon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the same or the
proceeds or avails thereof, as fully and effectually as if the Indenture
Trustee were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
provided that the Indenture Trustee shall give the Trust not less than 10 days'
prior notice of the time and place of any sale or other intended disposition of
any of the Collateral, except any part of the Collateral which threatens to
decline speedily in value or is of a type customarily sold on a recognized
market.
SECTION 14.6 Remedies upon Event of Default. If any Event of Default has
occurred and is continuing, the Indenture Trustee may exercise on behalf of the
Holders of the Notes all rights of a secured party under applicable law and, in
addition, the Indenture Trustee may, without being required to give any notice,
except as provided in the Indenture or as may be required by mandatory
provisions of law, (i) apply all cash, if any, then held by it as all or part of
the Collateral as specified in Section 5.3 and (ii) if there shall be no such
cash or if such cash shall be insufficient to pay all the Obligations in full,
sell the Collateral (including each applicable Funding Agreement) or any part
thereof at public or private sale, for cash, upon credit or for future delivery,
and at such price or prices as the Indenture Trustee may deem satisfactory. Any
Holder may be the purchaser of any or all of the Collateral so sold at any
public sale (or, if the Collateral is of a type customarily sold in a recognized
market or is of a type which is the subject of widely distributed standard price
quotations, at any private sale). The Trust will execute and deliver such
documents and take such other action as the Indenture Trustee deems necessary or
advisable in order that any such sale may be made in compliance with law. Upon
any such sale the Indenture Trustee shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral so sold. Each purchaser at any
such sale shall hold the Collateral so sold to it absolutely and free from any
claim or right of whatsoever kind, including any equity or right of redemption
of the Trust which may be waived, and the Trust, to the extent permitted by law,
specifically waives all rights of redemption, stay or appraisal which it has or
may have under any law. The notice (if any) of such sale shall (A) in the case
of a public sale, state the time and place fixed for such sale, and (B) in the
case of a private sale, state the day after which such sale may be consummated.
Any such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Indenture Trustee may fix in
the notice of such sale. At any such sale the Collateral may be sold in one lot
as an entirety or in separate parcels, as the Indenture Trustee may determine.
The Indenture Trustee shall not be obligated to make any such sale pursuant to
any such notice. The Indenture Trustee may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so adjourned. In the
case of any sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by the Indenture Trustee until
the selling price is paid by the purchaser thereof, but the Indenture Trustee
shall not incur any liability in the case of the failure of such purchaser to
take up and pay for the Collateral so sold and, in the case of any such failure,
such Collateral may again be sold upon like notice. The Indenture Trustee,
instead of exercising the power of sale conferred upon it in the Indenture, may
proceed by a suit or suits at law or in equity to foreclose a Security Interest
and sell any Collateral, or any portion thereof, under a judgment or decree of a
court or courts of competent jurisdiction.
SECTION 14.7 Limitation on Duties of Indenture Trustee with Respect to
Collateral. Beyond the exercise of reasonable care in the custody thereof, the
Indenture Trustee shall have no duty as to any portion of the Collateral in its
possession or control or in the possession or control of any agent or bailee or
as to the preservation of rights against prior parties or any other rights
pertaining thereto. The Indenture Trustee shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
property it holds in its fiduciary capacity generally, and shall not be liable
or responsible for any loss or damage to any of the Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any
warehouseman, carrier, forwarding agency, consignee or other agent or bailee
selected by the Indenture Trustee in good faith.
SECTION 14.8 Concerning the Indenture Trustee. In furtherance and not in
derogation of the rights, privileges and immunities of the Indenture Trustee
specified in the Indenture:
(a) the Indenture Trustee is authorized to take all such action as is provided
to be taken by it as Indenture Trustee under this Article and all other
action reasonably incidental thereto. As to any matters not expressly
provided for in this Article (including, without limitation, the timing and
methods of realization upon any Collateral) the Indenture Trustee shall act
or refrain from acting in accordance with written instructions from the
Holder or Holders of the required percentage of aggregate principal amount
of Notes for any instructions or, in the absence of such instructions, in
accordance with its discretion; and
(b) the Indenture Trustee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Security Interest in any of
the Collateral, whether impaired by operation of law or by reason of any
action or omission to act on its part under the Indenture.
SECTION 14.9 Termination of Security Interest. Upon the repayment in full of all
Obligations, the Security Interest shall terminate and all rights to the
Collateral shall revert to the Trust. Upon such termination of a Security
Interest, and delivery of a certificate by the Trust to such effect, the
Indenture Trustee will, at the expense of the Trust, execute and deliver to the
Trust such documents as the Trust shall reasonably request to evidence the
termination of the Security Interest.
EXHIBIT A-1
Form of Global Security for Secured Medium Term Notes Program
A1-1
EXHIBIT A-2
Form of Definitive Security for Secured Medium Term Notes Program
A2-1
EXHIBIT A-3
Form of Global Security for Allstate LifeSM CoreNotes(R) Program
A3-1
EXHIBIT A-4
Form of Definitive Security for Allstate LifeSM CoreNotes(R) Program
A4-1
EXHIBIT B
STANDARD FUNDING NOTE INDENTURE TERMS
B-1
================================================================================
STANDARD FUNDING NOTE INDENTURE TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING
================================================================================
iv
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms Defined..................................................................1
SECTION 1.2 Interpretation........................................................................10
ARTICLE 2
THE FUNDING NOTE
SECTION 2.1 Principal Amount......................................................................10
SECTION 2.2 Status of Funding Note................................................................10
SECTION 2.3 Form of Funding Note Certificate......................................................10
SECTION 2.4 Currency; Denominations...............................................................11
SECTION 2.5 Execution, Authentication, Delivery and Date..........................................12
SECTION 2.6 Registration, Transfer and Exchange...................................................13
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Funding Note Certificates........................15
SECTION 2.8 Interest Record Dates.................................................................16
SECTION 2.9 Cancellation..........................................................................17
SECTION 2.10 Withholding Tax.......................................................................17
SECTION 2.11 Tax Treatment.........................................................................17
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF FUNDING NOTE; SINKING FUNDS
SECTION 3.1 Redemption of Funding Note............................................................18
SECTION 3.2 Repayment at the Option of the Holder.................................................21
SECTION 3.3 Repurchase of Funding Note............................................................22
SECTION 3.4 Sinking Funds.........................................................................22
ARTICLE 4
PAYMENTS; FUNDING NOTE PAYING AGENTS AND FUNDING NOTE CALCULATION AGENT; COVENANTS
SECTION 4.1 Payment of Principal and Interest.....................................................22
SECTION 4.2 Offices for Payments, etc.............................................................25
SECTION 4.3 Appointment to Fill a Vacancy in Office of Funding Note Indenture Trustee.............25
SECTION 4.4 Funding Note Paying Agents............................................................25
SECTION 4.5 Funding Note Calculation Agent........................................................29
SECTION 4.6 Certificate to Funding Note Indenture Trustee.........................................32
SECTION 4.7 Negative Covenants....................................................................32
SECTION 4.8 Additional Amounts....................................................................35
ARTICLE 5
REMEDIES OF THE FUNDING NOTE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.................37
SECTION 5.2 Collection of Indebtedness by Funding Note Indenture Trustee; Funding Note
Indenture Trustee May Prove Debt......................................................39
SECTION 5.3 Application of Proceeds...............................................................42
SECTION 5.4 Suits for Enforcement.................................................................43
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings...................................43
SECTION 5.6 Limitations on Suits by Holders.......................................................44
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default...............45
SECTION 5.8 Control by the Holders................................................................45
SECTION 5.9 Waiver of Past Defaults...............................................................46
ARTICLE 6
THE FUNDING NOTE INDENTURE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities...................................................46
SECTION 6.2 Certain Rights of the Funding Note Indenture Trustee..................................48
SECTION 6.3 Not Responsible for Recitals, Validity of the Funding Note or Application of
the Proceeds..........................................................................49
SECTION 6.4 May Hold Funding Note; Collections, etc...............................................49
SECTION 6.5 Funds Held by Funding Note Indenture Trustee..........................................49
SECTION 6.6 Compensation; Reimbursement; Indemnification..........................................50
SECTION 6.7 Corporate Trustee Required; Eligibility...............................................51
SECTION 6.8 Resignation and Removal; Appointment of Successor Trustee.............................51
SECTION 6.9 Acceptance of Appointment by Successor Trustee........................................53
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of Funding Note
Indenture Trustee.....................................................................53
SECTION 6.11 Limitations on Rights of Funding Note Indenture Trustee as Creditor...................54
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY FUNDING NOTE INDENTURE TRUSTEE AND TRUST
SECTION 7.1 Global Funding to Furnish Funding Note Indenture Trustee Names and Addresses
of Holders............................................................................54
SECTION 7.2 Preservation of Information; Communication to Holders.................................55
SECTION 7.3 Reports by Funding Note Indenture Trustee.............................................55
SECTION 7.4 Reports by Global Funding.............................................................56
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 Evidence of Action Taken by a Holder..................................................57
SECTION 8.2 Proof of Execution of Instruments and of Holding of Funding Note......................57
SECTION 8.3 Voting Record Date....................................................................58
SECTION 8.4 Persons Deemed to be Owners...........................................................58
SECTION 8.5 Any Portion of Funding Note Owned by Global Funding Deemed Not Outstanding............58
SECTION 8.6 Right of Revocation of Action Taken; Binding Effect of Actions by Holders.............59
ARTICLE 9
SUPPLEMENTAL FUNDING NOTE INDENTURES
SECTION 9.1 Supplemental Funding Note Indentures Without Consent of Holders.......................59
SECTION 9.2 Supplemental Funding Note Indentures With Consent of Holders..........................61
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Funding Note
Indenture.............................................................................62
SECTION 9.4 Documents to Be Given to Funding Note Indenture Trustee...............................62
SECTION 9.5 Notation on Funding Note Certificate in Respect of Supplemental Funding Note
Indentures............................................................................62
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 Global Funding May Merge, Consolidate, Sell or Convey Property Under Certain
Circumstances.........................................................................62
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 Satisfaction and Discharge of Indenture...............................................63
SECTION 11.2 Application by Funding Note Indenture Trustee of Funds Deposited for Payment
of Funding Note.......................................................................64
SECTION 11.3 Repayment of Funds Held by Funding Note Paying Agent..................................64
SECTION 11.4 Return of Funds Held by Funding Note Indenture Trustee and Funding Note
Paying Agent..........................................................................64
ARTICLE 12
MEETINGS OF HOLDERS OF FUNDING NOTE
SECTION 12.1 Purposes for Which Meetings May Be Called.............................................65
SECTION 12.2 Call, Notice and Place of Meetings....................................................65
SECTION 12.3 Persons Entitled to Vote at Meetings..................................................65
SECTION 12.4 Quorum; Action........................................................................66
SECTION 12.5 Determination of Voting Rights; Conduct of Adjournment of Meetings....................67
SECTION 12.6 Counting Votes and Recording Action of Meetings.......................................68
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 No Recourse...........................................................................68
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and Holders...................69
SECTION 13.3 Successors and Assigns of Global Funding Bound by Indenture...........................69
SECTION 13.4 Notices and Demands on Global Funding, Funding Note Indenture Trustee and any
Holder................................................................................69
SECTION 13.5 Trust Certificates and Opinions of Counsel; Statements To Be Contained
Therein...............................................................................71
SECTION 13.6 Governing Law.........................................................................72
SECTION 13.7 Counterparts..........................................................................72
SECTION 13.8 Trust Indenture Act to Control........................................................72
SECTION 13.9 Judgment Currency.....................................................................73
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 Security Interest.....................................................................74
SECTION 14.2 Representations and Warranties........................................................74
SECTION 14.3 Additional Representations and Warranties.............................................75
SECTION 14.4 Further Assurances; Covenants.........................................................77
SECTION 14.5 General Authority.....................................................................78
SECTION 14.6 Remedies upon Event of Default........................................................79
SECTION 14.7 Limitation on Duties of Funding Note Indenture Trustee with Respect to
Funding Note Collateral...............................................................80
SECTION 14.8 Concerning the Funding Note Indenture Trustee.........................................80
SECTION 14.9 Termination of Security Interest......................................................80
EXHIBIT A-1.......Form of Funding Note Related to Secured Medium Term Notes Issued under the
Secured Medium Term Notes Program
EXHIBIT A-2.......Form of Funding Note Related to Secured Medium Term Notes Issued under the
Allstate Life SM CoreNotes(R)Program
EXHIBIT B.........Form of Certificate of Authentication
1
RECONCILIATION TABLE
Trust Indenture Act Section Funding Note Indenture Section
ss.310(a)(1)...................................................................................................6.7
(a)(2)......................................................................................................6.7
(b).........................................................................................................6.8
ss.311(a).....................................................................................................6.11
ss.312(a) .....................................................................................................7.1
(b).........................................................................................................7.2
(c).........................................................................................................7.2
ss.313(a)...................................................................................................7.3(b)
(b)......................................................................................................7.3(c)
(c)......................................................................................................7.3(d)
(d)......................................................................................................7.3(d)
ss.314(a) .....................................................................................................7.4
(b).......................................................................................................7.3(f)
(c)(1) ..................................................................................................13.5(a)
(c)(2) .................................................................................................13.5(a)
(e).....................................................................................................13.5(b)
(f).....................................................................................................13.5(a)
ss.315(c) ..................................................................................................6.1(b)
ss.316(a) (last sentence) .....................................................................................8.5
(a)(1)(A)...................................................................................................5.8
(a)(1)(B)...................................................................................................5.9
(b).........................................................................................................5.6
ss.317(a)(1)................................................................................................5.2(c)
(a)(2) ..................................................................................................5.2(c)
(b)......................................................................................................4.4(a)
ss.318(a) ....................................................................................................13.8
(c) .......................................................................................................13.8
This reconciliation table shall not be deemed to be part of the Funding
Note Indenture for any purpose.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that certain provisions of Sections 310 to and
including 317 are a part of and govern every qualified indenture, whether or not
physically contained in the Funding Note Indenture.
This document constitutes the Standard Funding Note Indenture Terms,
which will be incorporated by reference in the Funding Note Indenture (as
defined below), by and between Global Funding (as defined below) and the
Indenture Trustee (as defined below).
These Standard Funding Note Indenture Terms shall be of no force and
effect unless and until incorporated by reference into, and then only to the
extent not modified by, such Funding Note Indenture.
The following Standard Funding Note Indenture Terms shall govern the
Funding Note subject to contrary terms and provisions expressly adopted in the
Funding Note Indenture, any Supplemental Funding Note Indenture or the Funding
Note, which contrary terms shall be controlling.
ARTICLE 1.........
DEFINITIONS
SECTION 1.1.......Certain Terms Defined. The following terms shall have the
meanings specified in this Section for all purposes of the Funding Note
Indenture and the Funding Note, unless otherwise expressly provided. All other
terms used in the Funding Note Indenture which are defined in the Trust
Indenture Act or which are by reference therein defined in the Securities Act
shall have the meanings (except as otherwise expressly provided in the Funding
Note Indenture or unless the context otherwise clearly requires) assigned to
such terms in the Trust Indenture Act and in the Securities Act as in force at
the date of the Funding Note Indenture as originally executed.
"Additional Amounts" means any additional amounts which may be required
by the Funding Note, under circumstances specified in the Funding Note
Certificate or Supplemental Funding Note Indenture, to be paid by Global Funding
in respect of certain taxes, assessments or other governmental charges imposed
on Holders specified therein and which are owing to such Holders.
"Administrative Services Agreement" means that certain administrative
services agreement included in Part B of the Series Instrument, by and between
the Issuing Trust and the Administrator, as the same may be amended, restated,
modified, supplemented or replaced from time to time.
"Administrator" means AMACAR Pacific Corp., a Delaware corporation, in
its capacity as the sole administrator of the Issuing Trust, and its permitted
successors and assigns.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agents" has the meaning set forth in the Distribution Agreement.
"Amended and Restated Administrative Services Agreement" means that
certain Amended and Restated Administrative Services Agreement dated as of April
27, 2004, between the Global Funding Administrator and Global Funding, as the
same may be amended, restated, modified, supplemented or replaced from time to
time.
"Amended and Restated Support Agreement" means that certain Amended and
Restated Support Agreement dated as of April 27, 2004, between the Funding
Agreement Provider and Global Funding, as the same may be amended, restated,
modified, supplemented or replaced from time to time.
"Amended and Restated Trust Agreement" means that certain Amended and
Restated Trust Agreement dated as of April 27, 2004, pursuant to which Global
Funding is continued, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Annual Redemption Percentage Reduction" has the meaning specified in
the Funding Note Certificate.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
provided, however, that, if the Specified Currency of the Funding Note is other
than U.S. Dollars, the day must also not be a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center of the country issuing the Specified Currency (or, if
the Specified Currency is Euro, the day must also be a day on which the Target
System is open).
"Closing Instrument" means the closing instrument of the Issuing Trust,
pursuant to which the Indenture and the Funding Note Indenture are entered into,
and certain other documents are executed, in connection with the issuance of the
Notes by the Issuing Trust and the issuance of the Funding Note by Global
Funding.
"Code" means the United States Internal Revenue Code of 1986, as
amended, including any successor statutes and any applicable rules, regulations,
notices or orders promulgated thereunder.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of the Funding Note Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Coordination Agreement" means that certain Coordination Agreement
included in Part F of the Series Instrument, among the Funding Agreement
Provider, Global Funding, the Funding Note Indenture Trustee, the Issuing 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 office of the Funding Note Indenture
Trustee at which the Funding Note Indenture shall, at any particular time, be
principally administered, which office is, at the date as of the Funding Note
Indenture located at 201 North Central Avenue, Phoenix, AZ 85004, except that
for the purposes of Section 4.2 it shall be 55 Water Street, 1st Floor,
Jeannette Park Entrance, New York, New York 10041, or such other location as may
be specified in or pursuant to the Funding Note Certificate.
"Debt" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (iv) all contingent
and non-contingent obligations of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit or similar
instrument, (v) all Debt secured by a Lien on any asset of such Person, whether
or not such Debt is otherwise an obligation of such Person, and (vi) all
Guarantees by such Person of Debt of another Person (each such Guarantee to
constitute Debt in an amount equal to the amount of such other Person's Debt
Guaranteed thereby).
"Defaulted Interest" has the meaning specified in Section 2.8(b).
"Delaware Trustee" means Wilmington Trust Company, a Delaware banking
corporation 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.
"Euro" means the currency introduced at the start of the third stage of
the European economic and monetary union pursuant to the treaty establishing the
European Community, as amended by the Treaty on European Union.
"Event of Default" means any event or condition specified as such in
Section 5.1 which shall have continued for the period of time, if any, therein
designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent" means the Funding Note Indenture Trustee in its
capacity as exchange rate agent or any other person specified as exchange rate
agent with respect to the Funding Note in the Funding Note Certificate.
"Funding Agreement" means each funding agreement issued by the Funding
Agreement Provider 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 Provider" means Allstate Life Insurance Company, a
stock life insurance company organized under the laws of the State of Illinois.
"Funding Note" means the note issued by Global Funding and
authenticated by the Funding Note Indenture Trustee under the Funding Note
Indenture in an authorized denomination and represented by the Funding Note
Certificate.
"Funding Note Calculation Agent" means the Funding Note Indenture
Trustee in its capacity as calculation agent or any other Person specified as
calculation agent with respect to the Funding Note in the Funding Note
Certificate.
"Funding Note Collateral" means, with respect to the Funding Note, the
right, title and interest of Global Funding in and to (i) each Funding Agreement
held by Global Funding, (ii) all Proceeds in respect of each such Funding
Agreement and (iii) all books and records (including without limitation,
computer programs, printouts and other computer materials and files) of Global
Funding pertaining to the Funding Agreement(s).
"Funding Note Certificate" means a security certificate representing
the Funding Note.
"Funding Note Indenture" means that certain Funding Note Indenture
included in Part B of the Closing Instrument, as the same may be amended,
restated, modified, supplemented or replaced from time to time.
"Funding Note Indenture Trustee" means the party specified as such in
the preamble to the Funding Note Indenture and, subject to the applicable
provisions of the Funding Note Indenture, its successors.
"Funding Note Paying Agent" means the Funding Note Indenture Trustee in
its capacity as paying agent and its successors, and any other Person specified
as paying agent with respect to the Funding Note in the Funding Note
Certificate.
"Funding Note Register" has the meaning specified in Section 2.6(a).
"Funding Note Registrar" has the meaning specified in Section 2.6(a).
"Global Funding" means Allstate Life Global Funding, a statutory trust
formed under the laws of the State of Delaware and its successors .
"Global Funding Administrator" means AMACAR Pacific Corp., a Delaware
corporation, in its capacity as the sole administrator of Global Funding, and
its permitted successors and assigns.
"Global Funding Trust Beneficial Owner" means AMACAR Pacific Corp., in
its capacity as the sole beneficial owner of Global Funding, and its successors.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by virtue of an
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise), (ii)
to reimburse a bank for amounts drawn under a letter of credit for the purpose
of paying such Debt or (iii) entered into for the purpose of assuring in any
other manner the holder of such Debt of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in part); provided that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" means, with respect to the Funding Note, any Person in whose
name such Funding Note is registered in the Funding Note Register.
"Holder Representative" has the meaning set forth in Section 5.8(a).
"incorporated provision" has the meaning set forth in Section 13.8.
"Indenture" means that certain Indenture included in Part A of the
Closing Instrument, between the Issuing 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 specified as such in the preamble
to the Indenture and, subject to the applicable provisions of the Indenture, its
successors.
"Initial Redemption Date" means, with respect to the Funding Note or
any portion thereof to be redeemed pursuant to Section 3.1(b), the date on or
after which the Funding Note or such portion thereof may be redeemed as
determined by or pursuant to the Funding Note Indenture or the Funding Note
Certificate or Supplemental Funding Note Indenture.
"Initial Redemption Percentage" has the meaning specified in the
Funding Note Certificate.
"Interest Payment Date" has the meaning specified in Section 2.8(a).
"Interest Reset Date" has the meaning specified in the Funding Note
Certificate.
"Issuing Trust" means the Allstate Life Global Funding Trust specified
in the Series Instrument, together with its permitted successors and assigns.
"LIBOR" has the meaning ascribed in the Funding Note Certificate.
"LIBOR Currency" means the currency specified in the Funding Note
Certificate as to which LIBOR shall be calculated or, if no currency is
specified in the applicable Funding Note Certificate, United States dollars.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, Global Funding
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.
"Market Exchange Rate" for a Specified Currency other than United
States dollars means the noon dollar buying rate in The City of New York for
cable transfers for the Specified Currency as certified for customs purposes
(or, if not so certified, as otherwise determined) by the Federal Reserve Bank
of New York.
"Maturity Date" means, with respect to the principal (or any
installment of principal) of the Funding Note, the Stated Maturity Date, the
Trust Notes Maturity Date or any date prior to any such date on which the
principal (or such installment of principal) of the Funding Note becomes due and
payable whether, as applicable, by the declaration of acceleration of maturity,
notice of redemption at the option of Global Funding, notice of the Holder's
option to elect repayment or otherwise.
"Name Licensing Agreement" means that certain Name Licensing Agreement
included in Part D of the Series Instrument, between Allstate Insurance Company
and the Issuing Trust, as the same may be amended, restated, modified,
supplemented or replaced from time to time.
"Non-recourse Parties" has the meaning set forth in Section 13.1.
"Note" means each medium term note issued by the Issuing Trust and
authenticated by the Indenture Trustee under the Indenture, each in an
authorized denomination and represented, individually or collectively, by one or
more Note Certificates.
"Note Certificate" means a security certificate representing one or
more Notes.
"Obligations" means the obligations of Global Funding secured under the
Funding Note and the Funding Note Indenture, including (a) all principal of, any
premium and interest payable (including, without limitation, any interest which
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of Global Funding, whether or
not allowed or allowable as a claim in any such proceeding) on, and any
Additional Amounts with respect to, the Funding Note or pursuant to the Funding
Note Indenture, (b) all other amounts payable by Global Funding under the
Funding Note Indenture or under the Funding Note including all costs and
expenses (including attorneys' fees) incurred by the Funding Note Indenture
Trustee or any Holder thereof in realizing on the Funding Note Collateral to
satisfy such obligations and (c) any renewals or extensions of the foregoing.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to Global Funding or the Funding
Note Indenture Trustee or who may be other counsel satisfactory to the Funding
Note Indenture Trustee. Each such opinion shall include the statements provided
for in Section 13.5 hereof, if and to the extent required hereby.
"Original Issue Date" shall have the meaning set forth in the Funding
Note Certificate.
"Outstanding" shall mean, subject to the provisions of Section 8.5,
with respect to any portion of the Funding Note as of any particular time, any
portion of the Funding Note represented by the Funding Note Certificate executed
by Global Funding and authenticated and delivered by the Funding Note Indenture
Trustee under the Funding Note Indenture, except (a) any portion of the Funding
Note theretofore cancelled by the Funding Note Indenture Trustee or delivered to
the Funding Note Indenture Trustee for cancellation; (b) any portion of the
Funding Note as to which funds for the full payment or redemption of which in
the necessary amount shall have been deposited in trust with the Funding Note
Indenture Trustee or with any Funding Note Paying Agent; provided that if such
portion of Funding Note is to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as provided in or pursuant to the
Funding Note Indenture, or provision satisfactory to the Funding Note Indenture
Trustee shall have been made for giving such notice; and (c) any portion of the
Funding Note represented by the Funding Note Certificate in substitution for
which one or more other Funding Note Certificates shall have been authenticated
and delivered pursuant to the terms of Section 2.5 or which shall have been paid
(unless proof satisfactory to the Funding Note Indenture Trustee is presented
that any such portion of the Funding Note is held by a Person in whose hands
such Funding Note is a legal, valid and binding obligation of Global Funding).
"Owner" shall, with respect to each Funding Agreement, have the meaning
specified in such Funding Agreement.
"Person" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, trust or other organization, whether or not a legal
entity, and any government or any agency or political subdivision thereof.
"Principal Amount" with respect to a Funding Agreement, has the meaning
ascribed in such Funding Agreement.
"Principal Financial Center" means, as applicable (i) the capital city
of the country issuing the Specified Currency; or (ii) the capital city of the
country to which the LIBOR Currency relates; provided, however, that with
respect to United States dollars, Australian dollars, Canadian dollars,
Portuguese escudos, South African rands and Swiss francs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, London (solely
in the case of the LIBOR Currency), Johannesburg and Zurich, respectively.
"Proceeds" means all of the proceeds of, and all other profits,
products, rents, principal payments, interest payments or other receipts, in
whatever form, arising from the collection, sale, lease, exchange, assignment,
licensing or other disposition or maturity of, or other realization upon, a
Funding Agreement, including without limitation all claims of Global Funding
against third parties for loss of, damage to or destruction of, or for proceeds
payable under, such Funding Agreement, in each case whether now existing or
hereafter arising.
"Redemption Date" means, with respect to any portion of the Funding
Note to be redeemed, pursuant to Section 3.1(b) or Section 3.1(c), the date of
redemption of such portion of the Funding Note specified in the relevant notice
of redemption provided to the Funding Note Indenture Trustee pursuant to Section
3.1(d).
"Redemption Price" means, with respect to the Funding Note, an amount
equal to the Initial Redemption Percentage specified in the Funding Note
Certificate (as adjusted by the Annual Redemption Percentage Reduction, if
applicable) multiplied by the unpaid principal amount thereof to be redeemed.
"Regular Interest Record Date" has the meaning set forth in Section
2.8(a).
"Repayment Date" means, with respect to any portion of the Funding Note
to be repaid pursuant to Section 3.2, the date for the repayment of such portion
of the Funding Note as determined by or pursuant to the Funding Note Indenture
or the Funding Note Certificate or a Supplemental Funding Note Indenture.
"Repayment Price" means, with respect to any portion of the Funding
Note to be repaid pursuant to Section 3.2, the price for repayment of such
portion of the Funding Note as determined by, or pursuant to, the Funding Note
Indenture or the Funding Note Certificate or a Supplemental Funding Note
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 Global Funding, 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 or the Funding Note Indenture Trustee,
Responsible Officer means any Responsible Officer (as defined in the first
sentence of this definition) plus the chairman of the trust committee, the
chairman of the executive committee, any vice chairman of the executive
committee, the cashier, the secretary, the treasurer, any trust officer, any
assistant trust officer, any assistant vice president, any assistant cashier,
any assistant secretary, any assistant treasurer, or any other authorized
officer of the Delaware Trustee or the Funding Note Indenture Trustee
customarily performing functions similar to those performed by the Persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" has the meaning set forth in Section 14.1(a).
"Series Instrument" means the series instrument of the Issuing 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 Issuing Trust.
"Special Interest Record Date" has the meaning set forth in Section
2.8(b).
"Specified Currency" has the meaning specified in Section 2.4.
"Stated Maturity Date," means with respect to the Funding Note, any
installment of principal thereof, or interest thereon, any premium thereon or
any Additional Amounts with respect thereto, the date established by or pursuant
to the Funding Note Indenture or the Funding Note Certificate or a Supplemental
Funding Note Indenture as the date on which the principal of the Funding Note or
such installment of principal or interest or such premium is, or such Additional
Amounts are, due and payable.
"Supplemental Funding Note Indenture" has the meaning specified in
Section 9.1(a).
"Support Agreement" means that certain Support and Expenses Agreement
included in Part C of the Series Instrument, by and between the Funding
Agreement Provider and the Issuing Trust, as the same may be amended, restated,
modified, supplemented or replaced from time to time.
"TARGET System" means the Trans-European Automated Real Time Gross
Settlement Express Transfer (TARGET) System.
"Tax Event" has the meaning specified in Section 3.1(c).
"Terms Agreement" means that certain Terms Agreement included in Part E
of the Series Instrument, by and among Global Funding, the Issuing Trust and
each Agent named therein, which will incorporate by reference the terms of the
Distribution Agreement.
"Trust Agreement" means that certain Trust Agreement included in Part A
of the Series Instrument, among the Delaware Trustee, the Administrator and the
Trust Beneficial Owner.
"Trust Beneficial Owner" means Global Funding, in its capacity as the
sole beneficial owner of the Issuing Trust, and its successors.
"Trust Certificate" means a certificate signed by the Global Funding
Administrator on behalf of Global Funding and delivered to the Funding Note
Indenture Trustee. Each such certificate shall include the statements provided
for in Section 13.5.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"Trust Notes Maturity Date" has the meaning specified in the Funding
Note Certificate.
"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
Funding Note Collateral, "UCC" shall mean the applicable jurisdiction whose law
governs such perfection, non-perfection or priority.
"United States", except as otherwise provided in or pursuant to the
Funding Note Indenture or the Funding Note Certificate, means the United States
of America (including the states thereof and the District of Columbia), its
territories and possessions and other areas subject to its jurisdiction.
"United States Dollars", "U.S. dollars" or "$" means lawful currency of
the United States.
SECTION 1.2 Interpretation. For all purposes of the Funding Note Indenture
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article shall have the meanings ascribed to them
in this Article and shall include the plural as well as the singular;
(b) all accounting terms used and not expressly defined shall have the meanings
given to them in accordance with United States generally accepted
accounting principles, and the term "generally accepted accounting
principles" shall mean such accounting principles which are generally
accepted at the date or time of any computation or at the date of the
Funding Note Indenture;
(c) references to Exhibits, Articles, Sections, paragraphs, subparagraphs and
clauses shall be construed as references to the Exhibits, Articles,
Sections, paragraphs, subparagraphs and clauses of the Funding Note
Indenture;
(d) the words "include", "includes" and "including" shall be construed to be
followed by the words "without limitation"; and
(e) Article and Section headings are for the convenience of the reader and
shall not be considered in interpreting the Funding Note Indenture or the
intent of the parties.
ARTICLE 2
THE FUNDING NOTE
SECTION 2.1 Principal Amount. The principal amount of the Funding Note will be
specified in the Funding Note Certificate
SECTION 2.2 Status of Funding Note. The Funding Note constitutes a direct,
unconditional, unsubordinated and secured non-recourse obligation of Global
Funding. The parties hereto agree that the purpose of the Funding Note is to
comply with Section 3(a)(7) of the Investment Company Act of 1940, as amended.
SECTION 2.3 Form of Funding Note Certificate.
(a) The Funding Note Certificate, shall be in, or substantially in, the form
set forth in Exhibit A-1 or Exhibit A-2, attached hereto, as applicable, in
each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by the Funding Note Indenture
or as may in Global Funding's judgment be necessary, appropriate or
convenient to permit the Funding Note to be issued and sold, or to comply,
or facilitate compliance, with applicable laws, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange on which the Funding Note may be listed, or as may,
consistently herewith, be determined by the Responsible Officer of Global
Funding executing the Funding Note Certificate, with the approval of the
Funding Note Indenture Trustee, as evidenced by his or her execution
thereof.
(b) The Funding Note Certificate may be printed, lithographed, engraved,
typewritten, photocopied or otherwise produced in any manner as the
Responsible Officer of Global Funding executing the Funding Note
Certificate may determine.
(c) The terms and provisions contained in the Funding Note Certificate and in
any Supplemental Funding Note Indenture shall constitute, and are expressly
made, a part of the Funding Note Indenture and, to the extent applicable,
Global Funding and the Funding Note Indenture Trustee, by their execution
and delivery of the Funding Note Indenture, expressly agree to such terms
and provisions and to be bound thereby.
SECTION 2.4 Currency; Denominations.
(a) Unless otherwise specified in the Funding Note Certificate or in any
Supplemental Funding Note Indenture, the Funding Note will be denominated
in, and payments of principal of, premium and interest on, and Additional
Amounts in respect to, the Funding Note will be made in, U.S. dollars. The
currency in which the Funding Note is denominated (or, if such currency is
no longer legal tender for the payment of public and private debts in the
country issuing such currency or, in the case of Euro, in the member states
of the European Union that have adopted the single currency in accordance
with the Treaty establishing the European Community, as amended by the
Treaty on European Union, such currency which is then such legal tender) is
in the Funding Note Indenture referred to as the "Specified Currency".
(b) Global Funding appoints the Funding Note Indenture Trustee as Exchange Rate
Agent with respect to the Funding Note and the Funding Note Indenture
Trustee accepts such appointment.
(c) If the Specified Currency of the Funding Note is other than U.S. Dollars
and such Specified Currency is not available for any required payment of
principal, premium, if any, and/or interest, if any, due to the imposition
of exchange controls or other circumstances beyond the control of Global
Funding, Global Funding will be entitled to satisfy the obligations to the
registered holders of the Funding Note by making payments in United States
dollars on the basis of the Market Exchange Rate, computed by the Exchange
Rate Agent as described above, on the second business day prior to the
particular payment or, if the Market Exchange Rate is not then available,
on the basis of the most recently available market exchange rate.
(d) Unless otherwise specified in the Funding Note Certificate or in a
Supplemental Funding Note Indenture, the Funding Note shall be issued in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof or equivalent denominations in other currencies.
(e) Global Funding may (if so specified in the Funding Note Certificate or a
Supplemental Funding Note Indenture) without the consent of the Holder of
the Funding Note, redenominate the Funding Note on or after the date on
which the member state of the European Union in whose national currency the
Funding Note is denominated has become a participant member in the third
stage of the European economic and monetary union as more fully set out in
the Funding Note Certificate or a Supplemental Funding Note Indenture.
(f) Unless otherwise specified in the Funding Note Certificate or a
Supplemental Funding Note Indenture, if the Specified Currency of the
Funding Note is other than U.S. Dollars, Global Funding shall not sell the
Funding Note in, or to residents of, the country issuing the Specified
Currency.
SECTION 2.5 Execution, Authentication, Delivery and Date.
(a) The Funding Note Certificate shall be executed on behalf of Global Funding
by any Responsible Officer of the Delaware Trustee. The signature of any
Responsible Officer of the Delaware Trustee may be manual, in facsimile
form, imprinted or otherwise reproduced and may, but need not, be attested.
(b) The Funding Note Certificate bearing the signature of a Person who was at
any time a Responsible Officer of the Delaware Trustee shall bind Global
Funding, notwithstanding that such Person has ceased to hold such office
prior to the authentication and delivery of the Funding Note Certificate or
did not hold such office at the date of the Funding Note Certificate.
(c) At any time, and from time to time, after the execution and delivery of the
Funding Note Indenture, Global Funding may deliver the Funding Note
Certificate executed by or on behalf of Global Funding to the Funding Note
Indenture Trustee for authentication, and the Funding Note Indenture
Trustee shall thereupon authenticate and deliver the Funding Note
Certificate as provided in the Funding Note Indenture and not otherwise.
(d) The Funding Note Indenture Trustee shall have the right to decline to
authenticate and deliver the Funding Note Certificate under this Section if
the Funding Note Indenture Trustee has obtained an Opinion of Counsel
reasonably acceptable to Global Funding, to the effect that the issuance of
the Funding Note will adversely affect the Funding Note Indenture Trustee's
own rights, duties or immunities under the Funding Note Indenture.
(e) The Funding Note Certificate shall be dated the date of its authentication.
(f) The Funding Note shall not be entitled to any benefit under the Funding
Note Indenture or be valid or obligatory for any purpose, unless there
appears on the Funding Note Certificate representing the Funding Note a
certificate of authentication substantially in the form attached as Exhibit
B executed by the Funding Note Indenture Trustee by manual signature of one
of its authorized signatories. Such certificate upon the Funding Note
Certificate shall be conclusive evidence, and the only evidence, the
Funding Note Certificate has been duly authenticated and delivered under
the Funding Note Indenture.
SECTION 2.6 Registration, Transfer and Exchange.
(a) The Funding Note Indenture Trustee will serve initially as registrar (in
such capacity, and together with any successor registrar, the "Funding Note
Registrar") for the Funding Note. In such capacity, the Funding Note
Indenture Trustee will cause to be kept at the Corporate Trust Office of
the Funding Note Indenture Trustee a register (the "Funding Note Register")
in which, subject to such reasonable regulations as it may prescribe, the
Funding Note Indenture Trustee will provide for the registration of the
Funding Note and of transfers of the Funding Note. The Funding Note
Register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time.
(b) Upon surrender of the Funding Note Certificate for registration of transfer
of the Funding Note or any portion thereof, together with the form of
transfer endorsed thereon duly completed and executed, at the designated
office of the Funding Note Registrar or of any applicable transfer agent,
each as provided in the Funding Note Certificate or a Supplemental Funding
Note Indenture, the Delaware Trustee, on behalf of Global Funding shall
execute, and the Funding Note Indenture Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, a new
Funding Note Certificate of any authorized denomination representing an
aggregate principal amount equal to the aggregate principal amount of the
Funding Note or a portion thereof represented by the Funding Note
Certificate surrendered for registration of transfer.
(c) At the option of the applicable Holder, the Funding Note Certificate may be
exchanged for one or more new Funding Note Certificates, each representing
a portion of the Funding Note in an aggregate principal amount equal to the
principal amount of the Funding Note. The Funding Note Certificate to be
exchanged shall be surrendered at the designated office of the Funding Note
Registrar or of any applicable transfer agent, each as provided in the
Funding Note Certificate or Supplemental Funding Note Indenture. Whenever
the Funding Note Certificate is so surrendered for exchange, the Delaware
Trustee, on behalf of Global Funding shall execute, and the Funding Note
Indenture Trustee shall authenticate and deliver, the Funding Note
Certificate or Funding Note Certificates which the applicable Holder is
entitled to receive, bearing numbers, letters or other designating marks
not contemporaneously outstanding.
(d) Each Funding Note Certificate executed, authenticated and delivered upon
any transfer or exchange shall be a valid obligation of Global Funding,
evidencing the same debt, and entitled to the same benefits under the
Funding Note Indenture, as the Funding Note Certificate surrendered in
connection with any such transfer or exchange. Upon surrender, transfer or
exchange of the Funding Note Certificate pursuant to this Section 2.6, each
new Funding Note Certificate will, within three Business Days of the
receipt of the applicable form of transfer or the applicable surrender, as
the case may be, be delivered to the designated office of the Funding Note
Registrar or of any applicable transfer agent, each as provided in the
Funding Note Certificate or Supplemental Funding Note Indenture, or mailed
at the risk of the Person entitled to such Funding Note Certificate to such
address as may be specified in the form of transfer or in written
instructions of the applicable Holder upon surrender for exchange.
(e) A Funding Note Certificate presented or surrendered in connection with a
transfer or exchange shall (if so required by Global Funding or the Funding
Note Indenture Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to Global Funding and the
Funding Note Indenture Trustee duly executed by, the applicable Holder or
his attorney duly authorized in writing.
(f) No service charge shall be made in connection with any transfer of the
Funding Note or exchange of Funding Note Certificate, but Global Funding or
the Funding Note Indenture Trustee may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection with a transfer of the Funding Note or exchange of the Funding
Note Certificate.
(g) Except as otherwise provided in or pursuant to the Funding Note Indenture,
Global Funding and the Funding Note Indenture Trustee shall not be required
to (i) upon presentation or surrender of a Funding Note Certificate in
connection with any transfer or exchange during a period beginning at the
opening of business 15 days before the day of the selection for redemption
of the Funding Note under Section 3.1 and ending at the close of business
on the day of such selection, exchange a Funding Note Certificate
representing any portion of the Funding Note selected for redemption,
register the transfer of any such portion of the Funding Note, except if
the Funding Note is to be redeemed in part, with respect to the portion of
the Funding Note not to be redeemed, or (ii) exchange a Funding Note
Certificate representing any portion of the Funding Note the Holder or
Holders of which shall have exercised the option pursuant to Section 3.2 to
require Global Funding to repay such portion of the Funding Note prior to
its Stated Maturity Date or register the transfer of such portion of the
Funding Note except, if the Funding Note to be repaid in part, with respect
to the portion of the Funding Note not to be repaid.
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Funding Note Certificates.
(a) If (i) a mutilated Funding Note Certificate is surrendered to the Funding
Note Indenture Trustee or Global Funding, or the Funding Note Indenture
Trustee and Global Funding receive evidence to their satisfaction of the
destruction, loss or theft of the Funding Note Certificate, and (ii) there
is delivered to Global Funding and the Funding Note Indenture Trustee such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to Global Funding or the Funding
Note Indenture Trustee that such Funding Note Certificate has been acquired
by a protected purchaser, Global Funding shall execute and upon its request
the Funding Note Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Funding Note Certificate, a new Funding Note Certificate representing a
portion of the Funding Note of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
(b) If any portion of the Funding Note represented by any such mutilated or
apparently destroyed, lost or stolen Funding Note Certificate has become or
is about to become due and payable, Global Funding in its discretion may,
instead of issuing a new Funding Note Certificate, pay such amounts in
respect of the portion of the Funding Note represented by such Funding Note
Certificate.
(c) Upon the execution, authentication and delivery of the new Funding Note
Certificate under this Section, the Funding Note Indenture Trustee or
Global Funding may require the Holder to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Funding Note
Indenture Trustee) connected therewith.
(d) Any portion of the Funding Note represented by the Funding Note Certificate
executed, authenticated and delivered pursuant to this Section in lieu of
any apparently destroyed, lost or stolen Funding Note Certificate shall
constitute an original additional contractual obligation of Global Funding,
whether or not any obligation with respect to the portion of the Funding
Note represented by the apparently destroyed, lost or stolen Funding Note
Certificate shall be at any time enforceable by any Person, and shall be
entitled to all of the benefits of the Funding Note Indenture equally and
proportionately with any portion of the Funding Note.
(e) The provisions of this Section are exclusive with respect to the
replacement of any mutilated or apparently destroyed, lost or stolen
Funding Note Certificate or the payment of any portion of the Funding Note
represented thereby and shall preclude all other rights and remedies with
respect to the replacement of any mutilated or apparently destroyed, lost
or stolen Funding Note Certificate or the payment of the portion of the
Funding Note represented thereby.
SECTION 2.8 Interest Record Dates.
(a) Interest on and Additional Amounts with respect to the Funding Note which
is payable, on any interest payment date specified in the Funding Note
Certificate or in any Supplemental Funding Note Indenture (each such date,
an "Interest Payment Date") shall be paid to the Holder of the Funding Note
at the close of business on the date specified as the regular interest
record date in the Funding Note Certificate or Supplemental Funding Note
Indenture (the "Regular Interest Record Date") or, if no such date is
specified, the date that is 15 calendar days preceding such Interest
Payment Date.
(b) Unless otherwise provided in the Funding Note Certificate or in any
Supplemental Funding Note Indenture, any interest on, and any Additional
Amounts with respect to, the Funding Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
specified in the Funding Note Certificates or Supplemental Funding Note
Indenture (the "Defaulted Interest") shall forthwith cease to be payable to
the Holder of the Funding Note on the relevant Regular Interest Record Date
by virtue of having been such Holder, and such Defaulted Interest shall be
paid by Global Funding to the Holder of such Funding Note at the close of
business on a special record date (the "Special Interest Record Date")
established by Global Funding by notice to each applicable Holder and the
Funding Note Indenture Trustee in accordance with Section 13.4, which
Special Interest Record Date shall be not more than 15 nor less than 10
days prior to the date of the proposed payment of Defaulted Interest and
not less than 10 days after the receipt by the Funding Note Indenture
Trustee of the notice of the proposed payment of Defaulted Interest.
SECTION 2.9 Cancellation.
(a) The Funding Note Certificate shall be surrendered for cancellation by or on
behalf of the Issuing Trust, and shall be cancelled by the Funding Note
Indenture Trustee immediately upon the absolute assignment by Global
Funding to, or as directed by, the Issuing Trust of each Funding Agreement
in accordance with the terms of the Funding Note and the Coordination
Agreement, and such cancellation shall operate as a redemption of the
Funding Note.
(b) A Funding Note Certificate surrendered for exchange or in connection with
any payment, redemption, transfer of a portion of the Funding Note
represented thereby shall be delivered to the Funding Note Indenture
Trustee and, if not already cancelled, shall be promptly cancelled by it.
Global Funding may at any time deliver to the Funding Note Indenture
Trustee for cancellation a Funding Note Certificate previously
authenticated and delivered under the Funding Note Indenture which Global
Funding may have acquired in any manner whatsoever, and each Funding Note
Certificate so delivered shall be promptly cancelled by the Funding Note
Indenture Trustee. No Funding Note Certificates shall be authenticated in
lieu of or in exchange for the Funding Note Certificate cancelled as
provided in this Section, except as expressly permitted by the Funding Note
Indenture. The Funding Note Indenture Trustee shall destroy each cancelled
Funding Note Certificate held by it and deliver a certificate of
destruction to Global Funding. If Global Funding shall acquire the Funding
Note, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Funding Note unless and until the
Funding Note Certificate representing the Funding Note is delivered to the
Funding Note Indenture Trustee for cancellation.
SECTION 2.10 Withholding Tax. All amounts due in respect of the Funding Note
will be made without withholding or deduction for or on account of any present
or future taxes, duties, levies, assessments or other governmental charges of
whatever nature imposed or levied by or on behalf of any governmental authority
in the United States having the power to tax payments on the Funding Note unless
the withholding or deduction is required by law. Unless otherwise specified in
the Funding Note Certificate, Global Funding will not pay any Additional Amounts
to the Holders of the Funding Note in the event that any withholding or
deduction is so required by law, regulation or official interpretation thereof,
and the imposition of a requirement to make any such withholding or deduction
will not give rise to any independent right or obligation to redeem or repay the
Funding Note and shall not constitute an Event of Default.
SECTION 2.11 Tax Treatment. The parties agree, and each Holder and beneficial
owner of the Funding Note by purchasing the Funding Note or any interest therein
agrees, for all United States Federal, state and local income and franchise tax
purposes (i) to treat the Funding Note and Funding Agreement as disregarded,
(ii) that the surrender of the Funding Note by the Issuing Trust and the
assignment and deposit of the Funding Agreement to the Issuing Trust, in
accordance with the terms of the Coordination Agreement, will be ignored, (iii)
Global Funding and the Issuing Trust will be ignored and will not be treated as
an association or a publicly traded partnership taxable as a corporation and
(iv) to not take any action inconsistent with the treatment described in (i),
(ii) and (iii) unless otherwise required by law.
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF FUNDING NOTE; SINKING FUNDS
SECTION 3.1 Redemption of Funding Note.
(a) Redemption of the Funding Note by Global Funding as permitted or required
by the Funding Note Indenture and the Funding Note Certificate will be made
in accordance with the terms of the Funding Note and (except as otherwise
provided in the Funding Note Indenture or pursuant to the Funding Note
Indenture) this Section.
(b) If any Initial Redemption Date is specified in the Funding Note
Certificate, Global Funding may redeem the Funding Note prior to the Stated
Maturity Date at its option, on, or on any Business Day after, the Initial
Redemption Date in whole or from time to time in part in increments of
$1,000 or any other integral multiple of an authorized denomination of the
Funding Note at the applicable Redemption Price together with any unpaid
interest accrued thereon, any Additional Amounts and other amounts payable
with respect thereto, as of the Redemption Date.
(c) If (i) Global Funding is required at any time to pay Additional Amounts or
if Global Funding is obligated to withhold or deduct any United States
taxes with respect to any payment under the Funding Note, as set forth in
the Funding Note Certificate, or if there is a material probability that
Global Funding will become obligated to withhold or deduct any such United
States taxes or otherwise pay Additional Amounts (in the opinion of
independent legal counsel selected by the Funding Agreement Provider), in
each case pursuant to any change in or amendment to any United States tax
laws (or any regulations or rulings thereunder) or any change in position
of the Internal Revenue Service regarding the application or interpretation
thereof (including, but not limited to, the Funding Agreement Provider's or
Global Funding's receipt of a written adjustment from the Internal Revenue
Service in connection with an audit) (a "Tax Event"), and (ii) the Funding
Agreement Provider, pursuant to the terms of the relevant Funding
Agreement, has delivered to the Owner notice that the Funding Agreement
Provider intends to terminate the relevant Funding Agreement pursuant to
the terms of such Funding Agreement, then Global Funding will redeem the
Funding Note on the Redemption Date at the Redemption Price together with
any unpaid interest accrued thereon, any Additional Amounts and other
amounts payable with respect thereto, as of the Redemption Date.
(d) Unless a shorter notice shall be satisfactory to the Funding Note Indenture
Trustee, Global Funding shall provide to the Funding Note Indenture Trustee
a notice of redemption of the Funding Note (i) in case of any redemption at
the election of Global Funding, not more than 60 days nor less than 35 days
prior to the Redemption Date and (ii) in case of any mandatory redemption
pursuant to Section 3.1(c), at least 75 days prior to the Redemption Date.
(e) Unless otherwise specified in the Funding Note Indenture or the Funding
Note Certificate, Global Funding shall give a notice of redemption to the
Holder of the Funding Note to be redeemed at Global Funding's option (i) in
case of any redemption at the election of Global Funding, not more than 60
nor less than 30 days prior to the Redemption Date and (ii) in case of any
mandatory redemption pursuant to Section 3.1(c), not more than 75 days nor
less than 30 days prior to the Redemption Date; provided, that in the case
of any notice of redemption given pursuant to clause (ii) no such notice of
redemption may be given earlier than 90 days prior to the earliest day on
which Global Funding would become obligated to pay the applicable
Additional Amounts were a payment in respect of the Funding Note then due.
Failure to give such notice to the Holder of any portion of the Funding
Note designated for redemption in whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings
for the redemption of any other portion of the Funding Note.
Any notice that is mailed to a Holder of the Funding Note in the
manner provided for in Section 13.4 shall be conclusively presumed to have been
duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price or, if not then ascertainable, the manner of
calculation thereof,
(iii)in case of any redemption at the election of Global Funding, if any
Outstanding portion of the Funding Note is to be redeemed, the
identification and the principal amount of the portion of the Funding Note
to be redeemed,
(iv) in case the Funding Note is to be redeemed in part only at the election of
Global Funding, the notice which relates to the Funding Note shall state
that on and after the Redemption Date, upon surrender of the Funding Note
Certificate representing such portion of the Funding Note, the Holder of
such portion of the Funding Note will receive, without charge, a new
Funding Note Certificate representing an authorized denomination of the
principal amount of the portion of the Funding Note owned by such Holder
remaining unredeemed,
(v) that, on the Redemption Date, the Redemption Price shall become due and
payable upon each such portion of the Funding Note to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after the
Redemption Date,
(vi) the place or places where the Funding Note Certificate representing such
portion of the Funding Note is to be surrendered for payment of the
Redemption Price together with any unpaid interest accrued thereon through
the Redemption Date and any Additional Amounts payable with respect
thereto,
(vii)if applicable, in case of any redemption at the election of Global
Funding, that the redemption is for a sinking fund, and
(viii) any numbers used to identify any such portion of the Funding Note.
(f) On or prior to any Redemption Date, Global Funding shall deposit, with
respect to any portion of the Funding Note called for redemption pursuant
to this Section, with the Funding Note Paying Agent an amount of money in
the Specified Currency sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified in the Funding Note Certificate) any unpaid interest
accrued through the Redemption Date on, and any Additional Amounts payable
with respect to, each such portion of the Funding Note to be redeemed on
the Redemption Date.
(g) On the Redemption Date, each portion of the Funding Note to be redeemed
shall become due and payable at the Redemption Price together with any
unpaid interest accrued through the Redemption Date on, and any Additional
Amounts payable with respect to, each such portion of the Funding Note, and
from and after such date (unless Global Funding shall default in the
payment of the Redemption Price and any unpaid interest accrued on any such
portion of the Funding Note through the Redemption Date) each such portion
of the Funding Note shall cease to bear interest. Upon surrender of the
Funding Note Certificate for redemption of each portion of the Funding Note
represented thereby in accordance with the applicable notice of redemption,
each such portion of the Funding Note shall be paid by Global Funding at
the Redemption Price, together with any unpaid interest accrued thereon
through the Redemption Date and any Additional Amounts payable with respect
thereto.
(h) If any portion of the Funding Note called for redemption shall not be so
paid upon surrender of the Funding Note Certificate for redemption, the
principal and any premium, until paid, shall bear interest from the
Redemption Date at the rate specified in the Funding Note Certificate.
Upon surrender of the Funding Note Certificate for redemption of any
portion of the Funding Note represented thereby in accordance with this Section,
Global Funding shall execute and the Funding Note Indenture Trustee shall
authenticate and deliver one or more new Funding Note Certificates of any
authorized denomination representing an aggregate principal amount equal to the
unredeemed portion of the Funding Note.
SECTION 3.2 Repayment at the Option of the Holder.
(a) If so specified in the Funding Note Certificate, the Holder or Holders of
the Funding Note may require Global Funding to repay the Funding Note prior
to the Stated Maturity Date in whole or from time to time in part in
increments of $1,000 or any other integral multiple of an authorized
denomination specified in the Funding Note Certificate (provided that any
remaining principal amount thereof shall be at least $1,000 or other
minimum authorized denomination applicable thereto).
(b) If the Funding Note is repayable at the option of the Holder or Holders
thereof before the Stated Maturity Date, it shall be repaid in accordance
with the terms of the Funding Note.
(c) The repayment of any portion of the principal amount of the Funding Note
pursuant to any option of the applicable Holder or Holders to require
repayment of any such portion of the Funding Note before the Stated
Maturity Date shall not operate as a payment, redemption or satisfaction of
the indebtedness represented by such Funding Note unless and until Global
Funding, at its option, shall deliver or surrender each Funding Note
Certificate representing each such portion of the Funding Note to the
Funding Note Indenture Trustee with a directive that each such Funding Note
Certificate be cancelled.
(d) Notwithstanding anything to the contrary contained in this Section, in
connection with any repayment of any portion of the Funding Note, Global
Funding may arrange for the purchase of such portion of the Funding Note by
an agreement with one or more investment bankers or other purchasers to
purchase any such portion of the Funding Note by paying the Holder or
Holders of any such portion of the Funding Note on or before the close of
business on the Repayment Date an amount not less than the Repayment Price
payable by Global Funding on repayment of such portion of the Funding Note,
and the obligation of Global Funding to pay the Repayment Price of such
portion of the Funding Note shall be satisfied and discharged to the extent
such payment is so paid by such purchasers.
(e) Any exercise of the repayment option will be irrevocable.
SECTION 3.3 Repurchase of Funding Note.
(a) Global Funding may purchase the Funding Note or a portion thereof
in the open market or otherwise at any time, and from time to time, with the
prior written consent of the Funding Agreement Provider as to both the making of
such purchase and the purchase price to be paid for such Funding Note.
(b) If the Funding Agreement Provider, in its sole discretion,
consents to such purchase of the Funding Note or a portion thereof by Global
Funding, the parties to the Funding Note Indenture agree to take such actions as
may be necessary or desirable to effect the prepayment of such portion, or the
entirety, of the current Principal Amount, under each applicable Funding
Agreement as may be necessary to provide for the payment of the purchase price
for such Funding Note. Upon such payment, the Principal Amount under each
Funding Agreement shall be reduced (i) if the Funding Note bears interest at a
fixed or floating rate, by an amount equal to the principal amount of the
Funding Note or any portion thereof so purchased (or the portion thereof
applicable to such Funding Agreement) and (ii) if the Funding Note does not bear
interest at a fixed or floating rate, by an amount to be agreed between Global
Funding and the Funding Agreement Provider to reflect such prepayment under the
Funding Agreement(s).
(c) The parties acknowledge and agree that (i) notwithstanding
anything to the contrary in the Funding Note Indenture, any repurchase of the
Funding Note or a portion thereof in compliance with this Section 3.3 shall not
violate any provision of the Funding Note Indenture or the Amended and Restated
Trust Agreement and (ii) no Opinion of Counsel, Trust Certificate or any other
document or instrument shall be required to be provided in connection with any
repurchase of the Funding Note or a portion thereof pursuant to this Section
3.3.
(d) If applicable, Global Funding will comply with the requirements of
Section 14(e) of the Exchange Act, and the rules promulgated thereunder, and any
other applicable securities laws or regulations in connection with any
repurchase pursuant to this Section 3.3.
SECTION 3.4 Sinking Funds.
Unless otherwise provided in the Funding Note Certificate, the Funding
Note will not be subject to, or entitled to the benefit of, any sinking fund.
ARTICLE 4
PAYMENTS; FUNDING NOTE PAYING AGENTS AND FUNDING NOTE CALCULATION
AGENT; COVENANTS
SECTION 4.1 Payment of Principal and Interest.
(a) Global Funding will duly and punctually pay or cause to be paid the
principal of, any premium and interest on, and any Additional Amounts with
respect to, the Funding Note, in accordance with the terms of the Funding
Note and the Funding Note Indenture.
(b) Unless otherwise specified in the Funding Note Certificate, upon the
receipt of the funds necessary therefor, the applicable Funding Note Paying
Agent shall duly and punctually make payments, payable on the Maturity
Date, of principal in respect of, any premium and interest on, and any
Additional Amounts payable with respect to, the Funding Note in immediately
available funds against presentation and surrender of the applicable
Funding Note Certificate (and in the case of any repayment of the Funding
Note pursuant to Section 3.2, upon submission of a duly completed election
form at an office or agency of such Funding Note Paying Agent maintained
for such purpose pursuant to Section 4.2). The applicable Funding Note
Paying Agent (unless such Funding Note Paying Agent is the Funding Note
Indenture Trustee) shall promptly forward the Funding Note Certificate
surrendered to it in connection with any payment pursuant to this Section
for cancellation in accordance with Section 2.9. Unless otherwise specified
in the Funding Note Certificate, upon the receipt of the funds necessary
therefor, the applicable Funding Note Paying Agent shall duly and
punctually make payments of principal of, any premium and interest on, and
any Additional Amounts in respect of, the Funding Note payable on any date
other than the Maturity Date by check mailed to the Holder (or to the first
named of joint Holders) of the Funding Note at the close of business on the
Regular Interest Record Date or Special Interest Record Date, as the case
may be, at its address appearing in the Funding Note Register.
Notwithstanding the foregoing, the applicable Funding Note Paying Agent
shall make payments of principal, any interest, any premium, and any
Additional Amounts on any date other than the Maturity Date to each Holder
entitled thereto (or to the first named of joint Holders) at the close of
business on the applicable Regular Interest Record Date or Special Interest
Record Date, as the case may be, of $10,000,000 (or, if the Specified
Currency is other than United States dollars, the equivalent thereof in the
particular Specified Currency) or more of the principal amount of the
Funding Note by wire transfer of immediately available funds if the
applicable Holder has delivered appropriate wire transfer instructions in
writing to the applicable Funding Note Paying Agent not less than 15 days
prior to the date on which the applicable payment of principal, interest,
premium or Additional Amounts is scheduled to be made. Any wire transfer
instructions received by the applicable Funding Note Paying Agent shall
remain in effect until revoked by the applicable Holder.
(c) Unless otherwise specified in the Funding Note Certificate, if the
Specified Currency of the Funding Note is other than U.S. Dollars, Global
Funding shall be obligated to make, or cause to be made, payments of
principal of, any premium and interest on, and any Additional Amounts with
respect to, the Funding Note in the Specified Currency. Any amounts so
payable by Global Funding in the Specified Currency will be converted by
the Exchange Rate Agent into United States dollars for payment to the
Holder or Holders thereof unless otherwise specified in the Funding Note
Certificate or a Holder elects to receive such amounts in the Specified
Currency as provided below.
(d) If the Specified Currency of the Funding Note is other than U.S. Dollars,
any United States dollar amount to be received by the Holder or Holders of
the Funding Note will be based on the highest bid quotation in The City of
New York received by the Exchange Rate Agent at approximately 11:00 a.m.
(New York City time) on the second Business Day preceding the applicable
payment date from three recognized foreign exchange dealers (one of whom
may be the Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by Global Funding for the purchase by the quoting dealer of the
Specified Currency for United States dollars for settlement on that payment
date in the aggregate amount of the Specified Currency payable to all
Holder or Holders of the Funding Note scheduled to receive United States
dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the relevant Holder
or Holders of a the Funding Note by deductions from any payments. If three
bid quotations are not available, payments will be made in the Specified
Currency.
(e) If the Specified Currency of the Funding Note is other than U.S. Dollars,
Holders of the Funding Note may elect to receive all or a specified portion
of any payment of principal and/or any interest, premium and Additional
Amounts in the Specified Currency by submitting a written request to the
Funding Note Indenture Trustee at its Corporate Trust Office in The City of
New York on or prior to the applicable Regular Interest Record Date or
Special Interest Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be. Such written request may be mailed or
hand delivered or sent by cable, telex or other form of facsimile
transmission. Such election will remain in effect until revoked by written
notice delivered to the Funding Note Indenture Trustee on or prior to the
applicable Regular Interest Record Date or Special Interest Record Date or
at least 15 calendar days prior to the Maturity Date, as the case may be.
(f) If the Specified Currency of the Funding Note is other than U.S. Dollars,
and the Specified Currency for the Funding Note is not available for any
required payment of principal and/or any interest, premium and Additional
Amounts due to the imposition of exchange controls or other circumstances
beyond Global Funding's control, Global Funding will be entitled to satisfy
its obligations with respect to the Funding Note by making payments in
United States dollars on the basis of the Market Exchange Rate, computed by
the Exchange Rate Agent as described above, on the second Business Day
prior to the particular payment or, if the Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange
Rate.
(g) If the Specified Currency of the Funding Note is other than U.S. Dollars,
all determinations made by the Exchange Rate Agent shall be at its sole
discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on the Holder or Holders of the Funding Note.
SECTION 4.2 Offices for Payments, etc. So long as any portion of the Funding
Note remains Outstanding, Global Funding will maintain in New York and in any
other city that may be required by any stock exchange on which the Funding Note
may be listed, and in any city specified in the Funding Note Certificate the
following: (i) an office or agency where the Funding Note may be presented for
payment, (ii) an office or agency where the Funding Note may be presented for
registration of transfer and for exchange as provided in the Funding Note
Indenture and (iii) an office or agency where notices and demands to or upon
Global Funding in respect of the Funding Note or of the Funding Note Indenture
may be served. Global Funding will give to the Funding Note Indenture Trustee
written notice of the location of any such office or agency and of any change of
location thereof. Global Funding initially designates the Corporate Trust Office
of the Funding Note Indenture Trustee as the office or agency for each such
purpose. In case Global Funding shall fail to maintain any such office or agency
or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office.
SECTION 4.3 Appointment to Fill a Vacancy in Office of Funding Note Indenture
Trustee. Global Funding, whenever necessary to avoid or fill a vacancy in the
office of the Funding Note Indenture Trustee, will appoint, in the manner
provided in Section 6.8, a trustee, so that there shall at all times be a
trustee under the Funding Note Indenture.
SECTION 4.4 Funding Note Paying Agents.
(a) Global Funding appoints the Funding Note Indenture Trustee as Funding Note
Paying Agent with respect to the Funding Note and the Funding Note
Indenture Trustee accepts such appointment. The Funding Note Indenture
Trustee, in its capacity as Funding Note Paying Agent, agrees, and,
whenever Global Funding shall appoint a Funding Note Paying Agent other
than the Funding Note Indenture Trustee with respect to the Funding Note,
Global Funding will cause such Funding Note Paying Agent to execute and
deliver to Global Funding and the Funding Note Indenture Trustee an
instrument in which such Funding Note Paying Agent shall agree with Global
Funding and the Funding Note Indenture Trustee, subject to the provisions
of this Section, that it will:
(i) hold all sums received by it as such agent for the payment of the principal
of, any premium or interest on, or any Additional Amounts with respect to,
the Funding Note (whether such sums have been paid to it by the Funding
Agreement Provider, Global Funding or by any other obligor on the Funding
Note) in trust for the benefit of each Holder of the Funding Note and will
(and will cause each of its agents and Affiliates to) deposit all cash
amounts received by it (or such agents or Affiliates, as applicable) that
are derived from the Funding Note Collateral for the benefit of the Holders
of the Funding Note in a segregated non-interest bearing account maintained
or controlled by the Funding Note Indenture Trustee, consistent with the
rating of the Funding Note;
(ii) give the Funding Note Indenture Trustee notice of any failure by Global
Funding (or by any other obligor on the Funding Note) to make any payment
of the principal of, any premium and interest on, or any Additional Amounts
with respect to, the Funding Note when the same shall be due and payable;
(iii)pay any such sums so held in trust by it to the Funding Note Indenture
Trustee upon the Funding Note Indenture Trustee's written request at any
time during the continuance of the failure referred to in clause (ii)
above;
(iv) in the absence of the failure referred in clause (ii) above, pay any such
sums so held in trust by it in accordance with the Funding Note Indenture
and the terms of the Funding Note; and
(v) comply with all agreements of Funding Note Paying Agents in, and perform
all functions and obligations imposed on Funding Note Paying Agents by or
pursuant to, the Funding Note Indenture and the Funding Note Certificate or
Supplemental Funding Note Indenture.
(b) Global Funding will, at or prior to 9:30 a.m. (New York City time) on each
due date of the principal of, any premium and interest on, or any
Additional Amounts with respect to, the Funding Note, deposit or cause to
be deposited with the applicable Funding Note Paying Agent a sum sufficient
to pay such principal, any interest or premium, and any Additional Amounts,
and (unless such Funding Note Paying Agent is the Funding Note Indenture
Trustee) Global Funding will promptly notify the Funding Note Indenture
Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, Global Funding
may at any time, for the purpose of obtaining a satisfaction and discharge
of the Funding Note under the Funding Note Indenture, pay or cause to be
paid to the Funding Note Indenture Trustee all sums held in trust by Global
Funding or any Funding Note Paying Agent under the Funding Note Indenture,
as required by this Section, such sums to be held by the Funding Note
Indenture Trustee upon the terms contained in the Funding Note Indenture;
provided, however, in order to obtain such satisfaction or discharge of the
Funding Note, that such sums paid to the Funding Note Indenture Trustee
must be at least equal to the amounts due and owing on the Funding Note,
including outstanding principal, premium, accrued but unpaid interest and
Additional Amounts.
(d) Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section are subject to the
provisions of Sections 11.3 and 11.4.
(e) The applicable Funding Note Paying Agent shall (i) collect all forms from
each Holder of the Funding Note (or from such other Persons as are
relevant) that are required to exempt payments under the Funding Note
and/or the related Funding Agreement(s) from United States Federal income
tax withholding, (ii) withhold and pay over to the Internal Revenue Service
or other taxing authority with respect to payments under the Funding Note
any amount of taxes required to be withheld by any United States Federal,
state or local statute, rule or regulation and (iii) forward copies of such
forms to Global Funding and the Funding Agreement Provider.
(f) Each Funding Note Paying Agent shall forward to Global Funding at least
monthly a bank statement in its possession with respect to the performance
of its functions and obligations with respect to the Funding Note.
(g) Global Funding shall pay the compensation of each Funding Note Paying Agent
at such rates as shall be agreed upon in writing by Global Funding and the
relevant Funding Note Paying Agent from time to time and shall reimburse
each Funding Note Paying Agent for reasonable expenses properly incurred by
such Funding Note Paying Agent in connection with the performance of its
duties upon receipt of such invoices as Global Funding shall reasonably
require.
(h) Subject as provided below, each Funding Note Paying Agent may at any time
resign as Funding Note Paying Agent by giving not less than 60 days'
written notice to Global Funding and the Funding Note Indenture Trustee
(unless the Funding Note Indenture Trustee is such Funding Note Paying
Agent) of such intention on it part, specifying the date on which its
resignation shall become effective. Except as provided below, Global
Funding may remove a Funding Note Paying Agent by giving not less than 20
days' written notice specifying such removal and the date when it shall
become effective. Any such resignation or removal shall take effect upon:
(i) the appointment by Global Funding of a successor Funding Note Paying Agent;
and
(ii) the acceptance of such appointment by such successor Funding Note Paying
Agent, provided that with respect to any Funding Note Paying Agent who
timely receives any amount with respect to the Funding Note and fails duly
to pay any such amounts when due and payable in accordance with the terms
of the Funding Note Indenture and the Funding Note, any such removal will
take effect immediately upon such appointment of, and acceptance thereof
by, a successor Funding Note Paying Agent approved by the Funding Note
Indenture Trustee (unless the Funding Note Indenture Trustee is such
Funding Note Paying Agent), in which event notice of such appointment shall
be given to each Holder of the Funding Note as soon as practicable
thereafter. Global Funding agrees with each Funding Note Paying Agent that
if, by the day falling 10 days before the expiration of any notice given
pursuant to this Section 4.4(i), Global Funding has not appointed a
replacement Funding Note Paying Agent, then the Funding Note Paying Agent
shall be entitled, on behalf of Global Funding, to appoint in its place a
reputable financial institution of good standing reasonably acceptable to
Global Funding and the Funding Note Indenture Trustee (unless the Funding
Note Indenture Trustee is such Funding Note Paying Agent); provided,
however, that notwithstanding the foregoing, the resignation or removal of
the relevant Funding Note Paying Agent shall not be effective unless, upon
the expiration of the notice given pursuant to this Section 4.5(i), the
successor Funding Note Paying Agent shall have accepted its appointment.
Upon its resignation or removal becoming effective, the retiring Funding
Note Paying Agent shall be entitled to the payment of its compensation and
reimbursement of all expenses incurred by such retiring Funding Note Paying
Agent pursuant to Section 4.4(h) up to the effective date of such
resignation or removal.
(i) If at any time a Funding Note Paying Agent shall resign or be removed, or
shall become incapable of acting with respect to the Funding Note, or shall
be adjudged as bankrupt or insolvent, or a receiver or liquidator of such
Funding Note Paying Agent or of its property shall be appointed, or any
public officer shall take charge or control of such Funding Note Paying
Agent or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then a successor Funding Note Paying Agent
shall be appointed by Global Funding by an instrument in writing filed with
the successor Funding Note Paying Agent. Upon any such appointment of, and
the acceptance of such appointment by, a successor Funding Note Paying
Agent and (except in cases of removal for failure to timely pay any amounts
as required by or pursuant to the Funding Note Indenture or the Funding
Note Certificate or Supplemental Funding Note Indenture) the giving of
notice to each Holder of the Funding Note, the retiring Funding Note Paying
Agent shall cease to be Funding Note Paying Agent under the Funding Note
Indenture.
(j) Any successor Funding Note Paying Agent appointed under the Funding Note
Indenture shall execute and deliver to its predecessor, Global Funding and
the Funding Note Indenture Trustee (unless the Funding Note Indenture
Trustee is such Funding Note Paying Agent) a reasonably acceptable
instrument accepting such appointment under the Funding Note Indenture, and
thereupon such successor Funding Note Paying Agent, without any further
act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as a Funding Note
Paying Agent under the Funding Note Indenture, and such predecessor, upon
payment of any amounts due pursuant to Section 4.4(h) and unpaid, shall
thereupon become obliged to transfer and deliver, and such successor
Funding Note Paying Agent shall be entitled to receive, copies of any
relevant records maintained by such predecessor Funding Note Paying Agent.
(k) Any corporation into which a Funding Note Paying Agent may be merged or
converted or with which it may be consolidated or any corporation resulting
from any merger, conversion or consolidation to which such Funding Note
Paying Agent shall be a party, or any corporation succeeding to all or
substantially all of the paying agency business of such Funding Note Paying
Agent shall be a successor Funding Note Paying Agent under the Funding Note
Indenture without the execution or filing of any paper or any further act
on the part of any of the parties, anything in the Funding Note Indenture
to the contrary notwithstanding. At least 30 days' prior notice of any such
merger, conversion or consolidation shall be given to Global Funding and
the Funding Note Indenture Trustee (unless the Funding Note Indenture
Trustee is such Funding Note Paying Agent).
SECTION 4.5 Funding Note Calculation Agent.
(a) Global Funding appoints the Funding Note Indenture Trustee as Funding Note
Calculation Agent, and the Funding Note Indenture Trustee accepts such
appointment.
(b) The relevant Funding Note Calculation Agent shall perform all functions and
obligations imposed on such Funding Note Calculation Agent by or pursuant
to the Funding Note Indenture, and the Funding Note Certificate or
supplemental Funding Note Indenture.
(c) Each Funding Note Calculation Agent, excluding the Funding Note Indenture
Trustee, shall forward to Global Funding at least monthly a report
providing details with respect to the performance of its functions and
obligations with respect to the Funding Note which shall include dates and
amounts of forthcoming payments with respect to the Funding Note.
(d) The relevant Funding Note Calculation Agent shall, upon the request of any
relevant Holder of the Funding Note, provide the interest rate then in
effect and, if determined, the interest rate that will become effective as
a result of a determination made for the next succeeding Interest Reset
Date with respect to the Funding Note.
(e) All determinations of interest by the Funding Note Calculation Agent shall,
in the absence of manifest errors, be conclusive for all purposes and
binding on the Holders of the Funding Note.
(f) Global Funding shall pay the compensation of each Funding Note Calculation
Agent at such rates as shall be agreed upon in writing by Global Funding
and the relevant Funding Note Calculation Agent from time to time and shall
reimburse each Funding Note Calculation Agent for reasonable expenses
properly incurred by such Funding Note Calculation Agent in connection with
the performance of its duties upon receipt of such invoices as Global
Funding shall reasonably require.
(g) Subject as provided below, each Funding Note Calculation Agent may at any
time resign as Funding Note Calculation Agent by giving not less than 60
days' written notice to Global Funding and the Funding Note Indenture
Trustee (unless the Funding Note Indenture Trustee is such Funding Note
Calculation Agent) of such intention on its part, specifying the date on
which its resignation shall become effective. Except as provided below,
Global Funding may remove a Funding Note Calculation Agent by giving not
less than 20 days' written notice specifying such removal and the date when
it shall become effective. Any such resignation or removal shall take
effect upon:
(i) the appointment by Global Funding of a successor Funding Note Calculation
Agent; and
(ii) the acceptance of such appointment by such successor Funding Note
Calculation Agent, provided that with respect to any Funding Note
Calculation Agent who fails duly to establish the interest rate or amount
for any Interest Reset Period, any such removal will take effect
immediately upon such appointment of, and acceptance thereof by, a
successor Funding Note Calculation Agent approved by the Funding Note
Indenture Trustee (unless the Funding Note Indenture Trustee is such
Funding Note Calculation Agent), in which event notice of such appointment
shall be given to each Holder of the Funding Note as soon as practicable
thereafter. Global Funding agrees with each Funding Note Calculation Agent
that if, by the day falling 10 days before the expiration of any notice
given pursuant to this Section 4.5(g), Global Funding has not appointed a
replacement Funding Note Calculation Agent, then the Funding Note
Calculation Agent shall be entitled, on behalf of Global Funding, to
appoint in its place a reputable financial institution of good standing
reasonably acceptable to Global Funding and the Funding Note Indenture
Trustee (unless the Funding Note Indenture Trustee is such Funding Note
Calculation Agent); provided, however, that notwithstanding the foregoing,
the resignation or removal of the relevant Funding Note Calculation Agent
shall not be effective unless, upon the expiration of the notice given
pursuant to this Section 4.5(g), the successor Funding Note Calculation
Agent shall have accepted its appointment. Upon its resignation or removal
becoming effective, the retiring Funding Note Calculation Agent shall be
entitled to the payment of its compensation and reimbursement of all
expenses incurred by such retiring Funding Note Calculation Agent pursuant
to Section 4.5(f) up to the effective date of such resignation or removal.
(h) If at any time a Funding Note Calculation Agent shall resign or be removed,
or shall become incapable of acting with respect to the Funding Note, or
shall be adjudged as bankrupt or insolvent, or a receiver or liquidator of
such Funding Note Calculation Agent or of its property shall be appointed,
or any public officer shall take charge or control of such Funding Note
Calculation Agent or its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then a successor Funding Note
Calculation Agent shall be appointed by Global Funding by an instrument in
writing filed with the successor Funding Note Calculation Agent. Upon any
such appointment of, and the acceptance of such appointment by, a successor
Funding Note Calculation Agent and (except in cases of removal for failure
to establish the amount of interest) the giving of notice to each Holder of
the Funding Note, the retiring Funding Note Calculation Agent shall cease
to be Funding Note Calculation Agent under the Funding Note Indenture.
(i) Any successor Funding Note Calculation Agent appointed under the Funding
Note Indenture shall execute and deliver to its predecessor, Global Funding
and the Funding Note Indenture Trustee (unless the Funding Note Indenture
Trustee is such Funding Note Calculation Agent) a reasonably acceptable
instrument, accepting such appointment under the Funding Note Indenture,
and thereupon such successor Funding Note Calculation Agent, without any
further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as a Funding Note
Calculation Agent under the Funding Note Indenture, and such predecessor,
upon payment of any amounts due pursuant to Section 4.5(f) and unpaid,
shall thereupon become obliged to transfer and deliver, and such successor
Funding Note Calculation Agent shall be entitled to receive, copies of any
relevant records maintained by such predecessor Funding Note Calculation
Agent.
(j) Any corporation into which a Funding Note Calculation Agent may be merged
or converted or with which it may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which such
Funding Note Calculation Agent shall be a party, or a corporation
succeeding to all or substantially all of the paying agency business of
such Funding Note Calculation Agent shall be a successor Funding Note
Calculation Agent under the Funding Note Indenture without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything in the Funding Note Indenture to the contrary
notwithstanding. At least 30 days' prior notice of any such merger,
conversion or consolidation shall be given to Global Funding and the
Funding Note Indenture Trustee (unless the Funding Note Indenture Trustee
is such Funding Note Calculation Agent).
SECTION 4.6 Certificate to Funding Note Indenture Trustee. Global Funding will
furnish to the Funding Note Indenture Trustee on or before each anniversary of
this Funding Note Indenture in each year a brief certificate (which need not
comply with Section 13.5) as to its knowledge of Global Funding's compliance
with all conditions and covenants under the Funding Note Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Funding Note Indenture).
SECTION 4.7 Negative Covenants. So long as any portion of the Funding Note is
Outstanding, Global Funding will not, except as otherwise expressly permitted
under the Funding Note Indenture or under the Trust Agreement:
(i) sell, transfer, exchange, assign, lease, convey or otherwise dispose of any
of its assets (whenever acquired), including, without limitation, any
portion of the Funding Note Collateral securing its Obligations under the
Funding Note and the Funding Note Indenture;
(ii) engage in any business or activity other than in connection with, or
relating to the execution and delivery of, and the performance of its
obligations under, the Amended and Restated Trust Agreement, the Funding
Note Indenture, the Amended and Restated Administrative Services Agreement,
the Distribution Agreement, the Amended and Restated Support Agreement, the
Series Instrument, the Closing Instrument and each Funding Agreement; the
issuance and sale of the Funding Note pursuant to the Funding Note
Indenture; and the transactions contemplated by, and the activities
necessary or incidental to, any of the foregoing;
(iii)incur, directly or indirectly, any Debt except for the Funding Note or as
otherwise contemplated under the Funding Note Indenture or under the
Amended and Restated Trust Agreement;
(iv) (A) permit the validity or effectiveness of the Funding Note Indenture or
the Security Interest securing the Funding Note 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, except as expressly
permitted thereunder, under the Funding Note Indenture, the Amended and
Restated 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 Funding Note) on any of its properties or
assets (whenever acquired), or any interest therein or the proceeds
thereof, or (D) permit a lien with respect to the Funding Note Collateral
not to constitute a valid first priority perfected security interest in the
Funding Note Collateral;
(v) amend, modify or fail to comply with any material provision of the Amended
and Restated Trust Agreement, except for any amendment or modification of
the Amended and Restated Trust Agreement expressly permitted thereunder or
under the Funding Note 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 (A) the investment of any funds of Global
Funding in the Funding Agreement(s) and (B) the investment of any funds of
Global Funding held by the Funding Note Indenture Trustee, a Funding Note
Paying Agent, the Delaware Trustee or the Global Funding Administrator as
provided in the Funding Note Indenture or the Amended and Restated Trust
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 Funding Note, provided that Global
Funding may declare or pay a distribution or make any distribution or other
payment to the Global Funding Trust Beneficial Owner in compliance with the
Amended and Restated Trust Agreement if Global Funding has paid or made
provision for the payment of all amounts due to be paid on the Funding
Note, and pay all of its debt, liabilities, obligations and expenses, the
payment of which is provided for under the Amended and Restated 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) enter into any transaction of merger or consolidation, or liquidate or
dissolve itself (or, to the fullest extent permissible 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 Global Funding not to be either ignored or
treated as a grantor trust for United States Federal income tax purposes;
(xi) issue the Funding Note unless the Funding Agreement Provider has affirmed
in writing to Global Funding 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 Global Funding to the Funding Note Indenture Trustee in accordance with
the terms of such Funding Agreement(s) and the Funding Note Indenture and
Global Funding has taken such other steps as may be necessary to cause the
Security Interest in or assignment for all collateral purposes of, the
Funding Note Collateral to be perfected for purposes of the UCC or
effective against its creditors and subsequent purchasers of the Funding
Note Collateral pursuant to insurance or other state laws;
(xii)make any deduction or withholding from any payment of principal of or
interest on the Funding Note (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 Funding Note Collateral except to the
extent specified in the Funding Note Indenture or the Funding Note
Certificate or Supplemental Funding Note Indenture;
(xiii) have any employees other than the Delaware Trustee and the Global Funding
Administrator or any other persons necessary to conduct its business and
enter into transactions contemplated under the Funding Note Indenture, the
Amended and Restated Trust Agreement, the Amended and Restated
Administrative Services Agreement, the Distribution Agreement, the Amended
and Restated Support Agreement, the Series Instrument, the Closing
Instrument or any Funding Agreement;
(xiv)have an interest in any bank account other than the accounts required
under the Funding Note Indenture, the Amended and Restated Trust Agreement,
the Distribution Agreement or any Funding Agreement and those accounts
expressly permitted by the Funding Note Indenture Trustee; provided that
any such further accounts or such interest of Global Funding therein shall
be charged or otherwise secured in favor of the Funding Note Indenture
Trustee on terms acceptable to the Funding Note Indenture Trustee;
(xv) permit any Affiliate, employee or officer of the Funding Agreement Provider
or any Agent to be a trustee of Global Funding in respect of the Funding
Note; or
(xvi)commingle any of its assets with any assets of any of Global Funding's
Affiliates, or guarantee any obligation of any of Global Funding's
Affiliates.
SECTION 4.8 Additional Amounts.
If the Funding Note Certificate provides for the payment of
Additional Amounts, Global Funding agrees to pay to the Holder of any such
Funding Note Additional Amounts as provided in the Funding Note Certificate.
Whenever in the Funding Note Indenture there is mentioned, in any context, the
payment of the principal of, or interest or premium on, or in respect of, the
Funding Note or the net proceeds received on the sale or exchange of the Funding
Note, such reference shall be deemed to include reference to the payment of
Additional Amounts provided by the terms established by the Funding Note
Indenture or pursuant to the Funding Note Indenture to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express reference to the payment of Additional
Amounts in any provision of the Funding Note Indenture shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
reference is not made.
If the Funding Note Certificate provides for the payment of
Additional Amounts, the Funding Note Certificate will provide that Global
Funding will pay, or cause to be paid, Additional Amounts to a Holder of the
Funding Note to compensate for any withholding or deduction for or on account of
any present or future taxes, duties, levies, assessments or governmental charges
of whatever nature imposed or levied on payments on the Funding Note by or on
behalf of any governmental authority in the United States having the power to
tax, so that the net amount received by the Holder of the Funding Note, after
giving effect to such withholding or deduction, whether or not currently
payable, will equal the amount that would have been received under the Funding
Note were no such deduction or withholding required; provided that no such
Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which
would not have been imposed but for a Holder or beneficial owner of the
Funding Note, (i) having any present or former connection with the United
States, including, without limitation, being or having been a citizen or
resident thereof, or having been present, having been incorporated in,
having engaged in a trade or business or having (or having had) a permanent
establishment or principal office therein, (ii) being a controlled foreign
corporation within the meaning of Section 957(a) of the Code related within
the meaning of Section 864(d)(4) of the Code, to the Funding Agreement
Provider, (iii) being a bank for United States Federal income tax purposes
whose receipt of interest on the Funding Note is described in Section
881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10
percent or more of the total combined voting power of all classes of stock
of the Funding Agreement Provider entitled to vote within the meaning of
Section 871(h)(3) of the Code and Treasury Regulations promulgated
thereunder or (v) being subject to backup withholding as of the date of the
purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would
not have been imposed but for the presentation of the Funding Note (where
presentation is required) for payment on a date more than 30 days after the
date on which such payment becomes due and payable or the date on which
payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is
imposed or withheld solely by reason of the failure of the beneficial owner
or a Holder of the Funding Note to comply with certification,
identification or information reporting requirements concerning the
nationality, residence, identity or connection with the United States of
the beneficial owner or a Holder of the Funding Note, if compliance is
required by statute, by regulation of the United States Treasury
Department, judicial or administrative interpretation, other law or by an
applicable income tax treaty to which the United States is a party as a
condition to exemption from such tax, duty, levy, assessment or other
governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or
similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is
payable otherwise than by withholding from payments in respect of the
Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by
reason of payments on the Funding Note being treated as contingent interest
described in Section 871(h)(4) of the Code for United States Federal income
tax purposes provided that such treatment was described in the Funding Note
Certificate;
(g) any tax, duty, levy, assessment or other governmental charge that would not
have been imposed but for an election by the Holder of the Funding Note,
the effect of which is to make payment in respect of the Funding Note
subject to United States Federal income tax or withholding tax provisions;
or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
ARTICLE 5
REMEDIES OF THE FUNDING NOTE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF
DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default.
(a) "Event of Default" with respect to the Funding Note wherever used in the
Funding Note Indenture, means each of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental
body):
(i) default in the payment when due and payable of the principal of, or any
premium on, the Funding Note;
(ii) default in the payment, when due and payable, of any interest on, or any
Additional Amounts with respect to, the Funding Note and continuance of
such default for a period of five Business Days;
(iii)any "Event of Default", as such term is defined in any Funding Agreement
securing the Funding Note, by the Funding Agreement Provider under such
Funding Agreement;
(iv) Global Funding shall fail to observe or perform any covenant contained in
the Funding Note or in the Funding Note Indenture for a period of 30 days
after the date on which written notice specifying such failure, stating
that such notice is a "Notice of Default" under the Funding Note Indenture
and demanding that Global Funding remedy the same, shall have been given by
registered or certified mail, return receipt requested, to Global Funding
by the Funding Note Indenture Trustee, or to Global Funding and the Funding
Note Indenture Trustee by the Holder or Holders of at least 25% of the
outstanding principal amount of the Funding Note; or
(v) the Funding Note Indenture for any reason shall cease to be in full force
and effect or shall be declared null and void, or the Funding Note
Indenture Trustee shall fail to have or maintain a validly created and
first priority perfected security interest (or the equivalent thereof) in
the Funding Note Collateral; or any Person shall successfully claim, as
finally determined by a court of competent jurisdiction that any Lien for
the benefit of the Holders of the Funding Note and any other Person for
whose benefit the Funding Note Indenture Trustee is or will be holding the
Funding Note Collateral, that the Funding Note Collateral is void or is
junior to any other Lien or that the enforcement thereof is materially
limited because of any preference, fraudulent transfer, conveyance or
similar law;
(vi) an involuntary case or other proceeding shall be commenced against Global
Funding seeking liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency, reorganization or other
similar law or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against Global Funding under the Federal bankruptcy laws
as now or hereafter in effect;
(vii)Global Funding shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency, reorganization or other similar law
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or
shall take any action to authorize any of the foregoing; or
(viii) any other Event of Default provided in any Supplemental Funding Note
Indenture or in the Funding Note Certificate.
(b) If one or more Events of Default shall have occurred and be continuing with
respect to the Funding Note, then, and in every such event, unless the
principal of the Funding Note shall have already become due and payable,
either the Funding Note Indenture Trustee or the Holder or Holders of not
less than 25% of the outstanding principal amount of the Funding Note by
notice in writing to Global Funding (and to the Funding Note Indenture
Trustee if given by such Holder or Holders), may declare the entire
principal and premium (if any) of the Funding Note, any interest accrued
thereon, and any Additional Amounts due and owing and any other amounts
payable with respect thereto, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable;
provided that, if any Event of Default specified in Section 5.1(a)(vi) or
5.1(a)(vii) occurs with respect to Global Funding, or if any Event of
Default specified in Section 5.1(a)(iii) that would cause any Funding
Agreement securing the Funding Note to become immediately due and payable
occurs with respect to the Funding Agreement Provider, then without any
notice to Global Funding or any other act by the Funding Note Indenture
Trustee or any Holder of the Funding Note, the entire principal and premium
(if any) of the Funding Note, any interest accrued thereon, and any
Additional Amounts due and owing, and any other amounts payable with
respect thereto, shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by Global Funding.
(c) Notwithstanding Section 5.1(b), if at any time after the principal and
premium of the Funding Note, any interest accrued thereon, and any
Additional Amounts due and owing and any other amounts payable with respect
thereto shall have been so declared due and payable and before any judgment
or decree for the payment of the funds due shall have been obtained or
entered as provided in the Funding Note Indenture, Global Funding shall pay
or shall deposit with the Funding Note Indenture Trustee a sum sufficient
to pay all due and payable interest on, and any Additional Amounts due and
owing and any other amounts payable with respect to, the Funding Note and
the principal and premium (if any) of the Funding Note which shall have
become due and payable otherwise than by acceleration pursuant to Section
5.1(b) above (with interest on such principal and, to the extent that
payment of such interest is enforceable under applicable law, on any
overdue interest and any other amounts payable, at the same rate as the
rate of interest specified in the Funding Note Certificate to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Funding Note Indenture Trustee and each
predecessor Funding Note Indenture Trustee, their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Funding Note Indenture Trustee and each
predecessor Funding Note Indenture Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Funding Note
Indenture, other than the non-payment of the principal of and premium (if
any) on the Funding Note which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided in the Funding
Note Indenture, then and in every such case the Holder Representative (as
defined in Section 5.8(a) hereof), by written notice to Global Funding and
to the Funding Note Indenture Trustee, may waive all defaults and rescind
and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
SECTION 5.2 Collection of Indebtedness by Funding Note Indenture Trustee;
Funding Note Indenture Trustee May Prove Debt.
(a) Subject to Section 5.1(c), if any Event of Default contained in Section
5.1(a)(i) or (ii) shall have occurred and be continuing, Global Funding
will, upon demand by the Funding Note Indenture Trustee, pay to the Funding
Note Indenture Trustee for the benefit of each Holder of the Funding Note
the whole amount that then shall have become due and payable of the
principal of, any premium and interest on, and any Additional Amounts due
and owing and any other amounts payable with respect to, the Funding Note
(with interest to the date of such payment upon the overdue principal and,
to the extent that payment of such interest is enforceable under applicable
law, on overdue interest and any other amounts payable at the same rate as
the rate of interest specified in the Funding Note); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Funding
Note Indenture Trustee and each predecessor Funding Note Indenture Trustee,
their respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Funding Note Indenture
Trustee and each predecessor Funding Note Indenture Trustee except as a
result of its negligence or bad faith.
(b) Until such demand is made by the Funding Note Indenture Trustee, Global
Funding may pay the principal of, any premium and interest on, and any
Additional Amounts due and owing and any other amounts payable with respect
to, the Funding Note to the Holders, whether or not the Funding Note be
overdue.
(c) If Global Funding shall fail to pay such amounts upon such demand, the
Funding Note Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against
Global Funding or other obligor upon the Funding Note and collect in the
manner provided by law out of the property of Global Funding or other
obligor upon the Funding Note, wherever the funds adjudged or decreed to be
payable are situated. If there shall be pending proceedings relative to
Global Funding or any other obligor upon the Funding Note under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or if a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of Global Funding or its
property or such other obligor, or in case of any other comparable judicial
proceedings relative to Global Funding or other obligor upon the Funding
Note, or to the creditors or property of Global Funding or such other
obligor, the Funding Note Indenture Trustee, irrespective of whether the
principal of the Funding Note shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Funding Note Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(i) to file such proofs of a claim or claims and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Funding Note Indenture Trustee (including any claim for reasonable
compensation to the Funding Note Indenture Trustee and each predecessor
Funding Note Indenture Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred,
and all advances made, by the Funding Note Indenture Trustee and each
predecessor Funding Note Indenture Trustee, except as those adjudicated in
a court of competent jurisdiction to be the result of any such Funding Note
Indenture Trustee's negligence or bad faith) and of the Holders allowed in
any judicial proceedings relative to Global Funding or other obligor upon
the Funding Note, or to the creditors or property of Global Funding or such
other obligor,
(ii) unless prohibited by applicable law and regulations, to vote on behalf of
the Holders of the Funding Note in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar functions in comparable
proceedings, and
(iii)to collect and receive any funds or other property payable or deliverable
on any such claims, and to distribute all amounts received with respect to
the claims of each Holder and of the Funding Note Indenture Trustee on each
Holder's behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each Holder to make payments
to the Funding Note Indenture Trustee, and, in the event that the Funding
Note Indenture Trustee shall consent to the making of payments directly to
any Holder, to pay to the Funding Note Indenture Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Funding Note
Indenture Trustee, each predecessor Funding Note Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Funding Note Indenture
Trustee and each predecessor Funding Note Indenture Trustee except as those
adjudicated in a court of competent jurisdiction to be the result of any
such Funding Note Indenture Trustee's negligence or bad faith.
(d) Nothing contained in the Funding Note Indenture shall be deemed to
authorize the Funding Note Indenture Trustee to authorize or consent to or
vote for or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the
Funding Note or the rights of any Holder thereof, or to authorize the
Funding Note Indenture Trustee to vote in respect of the claim of any
Holder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under the Funding Note
Indenture, or under the Funding Note, may be enforced by the Funding Note
Indenture Trustee without the possession of the Funding Note or the
production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Funding Note Indenture
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Funding Note Indenture Trustee, each
predecessor Funding Note Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of each Holder.
(f) In any proceedings brought by the Funding Note Indenture Trustee (and also
any proceedings involving the interpretation of any provision of the
Funding Note Indenture to which the Funding Note Indenture Trustee shall be
a party) the Funding Note Indenture Trustee shall be held to represent
every Holder of the Funding Note, and it shall not be necessary to make any
Holder of the Funding Note party to any such proceedings.
SECTION 5.3 Application of Proceeds.
(a) Any funds collected by the Funding Note Indenture Trustee following an
Event of Default pursuant to this Article or otherwise under the Funding
Note Indenture and any applicable Supplemental Funding Note Indenture in
respect of the Funding Note shall be applied in the following order at the
date or dates fixed by the Funding Note Indenture Trustee and, in case of
the distribution of such funds on account of principal, any premium and
interest and any Additional Amounts, upon presentation of the Funding Note
Certificate or Funding Note Certificates representing the Funding Note and
the notation thereon of the payment if only partially paid or upon the
surrender thereof if fully paid:
First: To the payment of costs and expenses, including reasonable compensation
to the Funding Note Indenture Trustee and each predecessor Funding Note
Indenture Trustee and their respective agents and attorneys and of all
expenses and liabilities incurred, and all advances made, by the
Funding Note Indenture Trustee and each predecessor Funding Note
Indenture Trustee except as those adjudicated in a court of competent
jurisdiction to be the result of any such Funding Note Indenture
Trustee's negligence or bad faith, in an aggregate amount of no more
than $250,000 to the extent not paid pursuant to the Amended and
Restated Support Agreement;
Second: To the payment of principal, any premium and interest, any Additional
Amounts and any other amounts then due and owing on the Funding Note,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on the Funding Note;
Third: To the payment of any other Obligations then due and owing with respect
to the Funding Note, ratably, without preference or priority of any
kind; and
Fourth: To the payment of any remaining balance to Global Funding.
(b) Any funds collected by the Funding Note Indenture Trustee where no Event of
Default exists pursuant to Article 5 or otherwise under the Funding Note
Indenture and any applicable Supplemental Funding Note Indenture in respect
of the Funding Note shall be applied in the following order at the date or
dates fixed by the Funding Note Indenture Trustee and, in case of the
distribution of such funds on account of principal, any premium and
interest, and any Additional Amounts, upon presentation, if applicable, of
the Funding Note Certificate or Funding Note Certificates representing the
Funding Note and the notation thereon of the payment if only partially paid
or upon the surrender thereof if fully paid:
First: To the payment of principal, any premium and interest, any Additional
Amounts, and any other amounts then due and owing on the Funding Note,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on the Funding Note;
Second: To the payment of any other Obligations then due and owing with
respect to the Funding Note, ratably, without preference or priority
of any kind; and
Third: To the payment of any remaining balance to Global Funding.
SECTION 5.4 Suits for Enforcement. If an Event of Default has occurred, has not
been waived and is continuing, the Funding Note Indenture Trustee may in its
discretion proceed to protect and enforce the rights vested in it by the Funding
Note Indenture by such appropriate judicial proceedings as the Funding Note
Indenture Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in the Funding
Note Indenture or in aid of the exercise of any power granted in the Funding
Note Indenture or to enforce any other legal or equitable right vested in the
Funding Note Indenture Trustee by the Funding Note Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. If the Funding
Note Indenture Trustee shall have proceeded to enforce any right under the
Funding Note Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Funding
Note Indenture Trustee, then and in every such case Global Funding and the
Funding Note Indenture Trustee shall be restored respectively to their former
positions and rights under the Funding Note Indenture, and all rights, remedies
and powers of Global Funding, the Funding Note Indenture Trustee and each Holder
shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Holders. No Holder of the Funding Note shall
have any right by virtue or by availing of any provision of the Funding Note
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to the Funding Note
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy under the Funding Note
Indenture, unless:
(i) such Holder has previously given written notice to the Funding Note
Indenture Trustee of a continuing Event of Default;
(ii) the Holder or Holders of the Funding Note representing not less than 25% of
the then outstanding principal amount of the Funding Note shall have made
written request to the Funding Note Indenture Trustee to institute
proceedings in respect of such Event of Default in its own name as the
Funding Note Indenture Trustee;
(iii)such Holder or Holders have offered to the Funding Note Indenture Trustee
indemnity or security satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(iv) the Funding Note Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to institute any
such action or proceedings; and
(v) no direction inconsistent with such written request shall have been given
to the Funding Note Indenture Trustee during such 60-day period by the
Holder or Holders of the Funding Note representing at least 66?% of the
then outstanding principal amount of the Funding Note;
it being understood and intended, and being expressly covenanted by each Holder
of the Funding Note with each other Holder of the Funding Note and the Funding
Note Indenture Trustee, that no Holder or Holders of the Funding Note shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of the Funding Note Indenture to affect, disturb or prejudice the rights of any
other Holder of the Funding Note, or to obtain or seek to obtain priority over
or preference to any other Holder of the Funding Note or to enforce any right
under the Funding Note Indenture, except in the manner provided herein and for
the equal, ratable and common benefit of all the Holders of the Funding Note.
For the protection and enforcement of the provisions of this Section, each
Holder and the Funding Note Indenture Trustee shall be entitled to such relief
as can be given either at law or in equity.
Notwithstanding any other provisions in the Funding Note Indenture,
however, the right of any Holder of the Funding Note, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any), and
interest on, if any, and Additional Amounts, if any, with respect to the Funding
Note, on or after the respective due dates expressed in the Funding Note, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default.
(a) Except as provided in Section 2.7, no right or remedy in the Funding Note
Indenture conferred upon or reserved to the Funding Note Indenture Trustee
or to any Holder is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given under the
Funding Note Indenture or existing at law or in equity or otherwise. The
assertion or employment of any right or remedy under the Funding Note
Indenture, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
(b) No delay or omission of the Funding Note Indenture Trustee or of any Holder
of the Funding Note to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of
Default or an acquiescence therein; and, subject to Section 5.6, every
power and remedy given by the Funding Note Indenture or by law to the
Funding Note Indenture Trustee or to any Holder may be exercised from time
to time, and as often as shall be deemed expedient, by the Funding Note
Indenture Trustee or by such Holder.
SECTION 5.8 Control by the Holders.
(a) The Holders of a majority of the then outstanding principal amount of the
Funding Note shall have the right to elect a holder representative (the
"Holder Representative") who shall have binding authority upon all the
Holders and who shall direct the time, method, and place of conducting any
proceeding for any remedy available to the Funding Note Indenture Trustee,
or exercising any trust or power conferred on the Funding Note Indenture
Trustee by the Funding Note Indenture, provided that:
(i) such direction shall not be otherwise than in accordance with law and the
provisions of the Funding Note Indenture; and
(ii) subject to the provisions of Section 6.1, the Funding Note Indenture
Trustee shall have the right to decline to follow any such direction if the
Funding Note Indenture Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if
the Funding Note Indenture Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers of the Funding Note Indenture Trustee shall determine that the
action or proceedings so directed would involve the Funding Note Indenture
Trustee in personal liability.
(b) Nothing in the Funding Note Indenture shall impair the right of the Funding
Note Indenture Trustee in its discretion to take any action deemed proper
by the Funding Note Indenture Trustee and which is not inconsistent with
such direction by the Holders.
SECTION 5.9 Waiver of Past Defaults. Prior to the declaration of the maturity of
the Funding Note as provided in Section 5.1, the Holder Representative may on
behalf of the Holders of the Funding Note waive any past default or Event of
Default under the Funding Note Indenture and its consequences, except a default:
(i) in the payment of principal of, any premium or interest on, or any
Additional Amounts with respect to, the Funding Note; or
(ii) in respect of a covenant or provision of the Funding Note Indenture which
cannot be modified or amended without the consent of the Holder or Holders
of the Funding Note.
Upon any such waiver, such default shall cease to exist and be deemed to have
been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose
of the Funding Note Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
ARTICLE 6
THE FUNDING NOTE INDENTURE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except if an Event of Default has occurred and is continuing (and it has
not been cured or waived), the Funding Note Indenture Trustee undertakes to
perform in a prudent manner such duties and only such duties with respect
to the Funding Note as are specifically set forth in the Funding Note
Indenture. No implied covenants or obligations shall be read into the
Funding Note Indenture against the Funding Note Indenture Trustee.
(b) If an Event of Default has occurred and is continuing (and it has not been
cured or waived), the Funding Note Indenture Trustee shall exercise such of
the rights and powers with respect to the Funding Note vested in it by the
Funding Note Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No provision of the Funding Note Indenture shall be construed to relieve
the Funding Note Indenture Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(i) this subsection (c) shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) in the absence of bad faith on its part, the Funding Note Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Funding Note Indenture Trustee and conforming to
the requirements of the Funding Note Indenture unless a Responsible Officer
of the Funding Note Indenture Trustee has actual knowledge that such
statements or opinions are false; provided that the Funding Note Indenture
Trustee must examine such certificates and opinions to determine whether
they conform to the requirements of the Funding Note Indenture;
(iii)the Funding Note Indenture Trustee shall not be liable for any error of
judgment made in good faith by any Responsible Officer of the Funding Note
Indenture Trustee, unless it is proved that the Funding Note Indenture
Trustee was negligent in ascertaining the pertinent facts;
(iv) the Funding Note Indenture Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holder Representative relating to the time, method and
place of conducting any proceeding for any remedy available to the Funding
Note Indenture Trustee, or exercising any trust or power conferred upon the
Funding Note Indenture Trustee, under the Funding Note Indenture with
respect to the Funding Note; and
(v) no provision of the Funding Note Indenture shall require the Funding Note
Indenture Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties under the
Funding Note Indenture, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of the
Funding Note Indenture relating to the conduct or affecting the liability
of or affording protection to the Funding Note Indenture Trustee shall be
subject to the provisions of this Section.
SECTION 6.2 Certain Rights of the Funding Note Indenture Trustee. Subject to
Section 6.1:
(a) the Funding Note Indenture Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
bond, debenture, note, coupon, security or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of Global Funding mentioned in the
Funding Note Indenture shall be sufficiently evidenced by a Trust
Certificate (unless other evidence in respect thereof be specifically
prescribed in the Funding Note Indenture);
(c) the Funding Note Indenture Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it under the Funding Note Indenture in good faith and in reliance on
such advice or Opinion of Counsel;
(d) the Funding Note Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by the Funding Note Indenture at
the request, order or direction of any Holder Representative pursuant to
the provisions of the Funding Note Indenture, unless such Holder
Representative shall have offered to the Funding Note Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request,
order or direction;
(e) whenever in the administration of the Funding Note Indenture the Funding
Note Indenture Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any
action under the Funding Note Indenture, such matter (unless other evidence
in respect thereof be specifically prescribed in the Funding Note
Indenture) may, in the absence of negligence or bad faith on its part, be
deemed to be conclusively proved and established by a Trust Certificate
delivered to the Funding Note Indenture Trustee;
(f) the Funding Note Indenture Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by the Funding
Note Indenture;
(g) the Funding Note Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do
by the Holder Representative; provided that, if the payment within a
reasonable time to the Funding Note Indenture Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Funding Note Indenture Trustee, not
reasonably assured to the Funding Note Indenture Trustee by the security
afforded to it by the terms of the Funding Note Indenture, the Funding Note
Indenture Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by Global Funding or, if paid by the Funding
Note Indenture Trustee or any predecessor trustee, shall be repaid by
Global Funding upon demand; and
(h) the Funding Note Indenture Trustee may execute any of the trusts or powers
under the Funding Note Indenture or perform any duties under the Funding
Note Indenture either directly or by or through agents or attorneys not
regularly in its employ and the Funding Note Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it under the Funding Note Indenture;
provided that the Funding Note Indenture Trustee shall not permit any of
its agents to take any action with respect to the Collateral without the
express written approval of the Funding Note Indenture Trustee.
SECTION 6.3 Not Responsible for Recitals, Validity of the Funding Note or
Application of the Proceeds. The recitals contained in the Funding Note
Indenture and in the Funding Note, except the Funding Note Indenture Trustee's
certificates of authentication, shall be taken as the statements of Global
Funding, and the Funding Note Indenture Trustee assumes no responsibility for
the correctness of the same. The Funding Note Indenture Trustee makes no
representation as to the validity or sufficiency of the Funding Note Indenture
or of the Funding Note. The Funding Note Indenture Trustee shall not be
accountable for the use or application by Global Funding of the Funding Note or
of the proceeds thereof.
SECTION 6.4 May Hold Funding Note; Collections, etc. The Funding Note Indenture
Trustee or any agent of Global Funding or the Funding Note Indenture Trustee, in
its individual or any other capacity, may become the owner or pledgee of the
Funding Note with the same rights it would have if it were not the Funding Note
Indenture Trustee or such agent and, subject to Section 6.7 and Section 311(a)
of the Trust Indenture Act, may otherwise deal with Global Funding and receive,
collect, hold and retain collections from Global Funding with the same rights it
would have if it were not the Funding Note Indenture Trustee or such agent.
SECTION 6.5 Funds Held by Funding Note Indenture Trustee. Subject to the
provisions of Section 11.4, all funds received by the Funding Note Indenture
Trustee shall, until used or applied as provided in the Funding Note Indenture,
be held in trust for the purposes for which they were received. The Funding Note
Indenture Trustee (and each of its agents and Affiliates) shall deposit all cash
amounts received by it (or any such agents or Affiliates) that are derived from
the Funding Note Collateral for the benefit of the Holders of the Funding Note
in a segregated account maintained or controlled by the Funding Note Indenture
Trustee, consistent with the rating of the Funding Note. Neither the Funding
Note Indenture Trustee nor any agent of Global Funding or the Funding Note
Indenture Trustee shall be under any liability for interest on any funds
received by it under the Funding Note Indenture.
SECTION 6.6 Compensation; Reimbursement; Indemnification.
(a) Global Funding covenants and agrees:
(i) to pay to the Funding Note Indenture Trustee from time to time, and the
Funding Note Indenture Trustee shall be entitled to, reasonable
compensation for all services rendered by it under the Funding Note
Indenture (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) specified
in Annex 8 to the Closing Instrument;
(ii) except as otherwise provided in the Funding Note Indenture, to pay or
reimburse the Funding Note Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Funding Note Indenture Trustee in accordance with any provision of the
Funding Note Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may arise from its negligence or bad
faith; and
(iii)to indemnify the Funding Note Indenture Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the Funding Note Indenture or the
trusts under the Funding Note Indenture and its duties under the Funding
Note Indenture, including the costs and expenses of defending itself
against or investigating any claim of liability in connection with the
exercise or performance of any of its powers or duties under the Funding
Note Indenture.
(b) The obligations of Global Funding under this Section to compensate and
indemnify the Funding Note Indenture Trustee and to pay or reimburse the
Funding Note Indenture Trustee for expenses, disbursements and advances
shall constitute additional indebtedness under the Funding Note Indenture
and shall survive the satisfaction and discharge of the Funding Note
Indenture and any resignation or removal of the Funding Note Indenture
Trustee.
SECTION 6.7 Corporate Trustee Required; Eligibility.
(a) There shall at all times be a Funding Note Indenture Trustee under the
Funding Note Indenture which shall:
(i) be a banking corporation authorized under its laws of incorporation and the
laws of the jurisdiction in which it administers the Funding Note Indenture
and any Supplemental Funding Note Indenture to exercise corporate trust
powers, having an aggregate capital, surplus of at least $50,000,000;
provided that if such banking corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of its Federal,
State or other governmental supervisor, then for the purposes of this
Section, the aggregate capital, surplus and undivided profits of such
banking corporation shall be deemed to be its aggregate capital, surplus
and undivided profits as set forth in its most recent report of condition
so published;
(ii) not be affiliated (as such term is defined in Rule 405 under the Securities
Act) with Global Funding or with any Person involved in the organization or
operation of Global Funding; and
(iii) not offer or provide credit or credit enhancement to Global Funding.
(b) If at any time the Funding Note Indenture Trustee shall cease to be
eligible in accordance with the provisions of Section 6.7(a) or the
requirements of Section 310 of the Trust Indenture Act, the Funding Note
Indenture Trustee shall resign promptly in the manner and with the effect
specified in Section 6.8.
SECTION 6.8 Resignation and Removal; Appointment of Successor Trustee.
(a) The Funding Note Indenture Trustee may at any time resign by giving not
less than 90 days' prior written notice of resignation to Global Funding
and to the Holders of the Funding Note as provided in the Funding Note
Indenture. Upon receiving such notice of resignation, Global Funding shall
promptly cause a successor trustee to be appointed by written instrument in
duplicate, executed by Global Funding, one copy of which instrument shall
be delivered to the resigning trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) If at any time:
(i) the Funding Note Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 6.7(a) or the requirements of Section 310 of
the Trust Indenture Act or any applicable Supplemental Funding Note
Indenture and shall fail to resign pursuant to Section 6.7(b) or following
written request therefor by Global Funding or by any such Holder pursuant
to Section 6.8(c);
(ii) the Funding Note Indenture Trustee shall become incapable of acting with
respect to the Funding Note, or shall be adjudged as bankrupt or insolvent,
or a receiver or liquidator of the Funding Note Indenture Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Funding Note Indenture Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation; or
(iii)the Funding Note Indenture Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust Indenture Act
with respect to the Funding Note after written request therefor by Global
Funding or any Holder of the Funding Note who has been a bona fide Holder
of the Funding Note for at least six months;
then, in any such case, except during the existence of an Event of Default,
Global Funding may remove the Funding Note Indenture Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Funding Note Indenture Trustee so removed
and one copy to the successor trustee.
(c) In addition to the right of petition given to the resigning trustee and the
right of removal given to Global Funding under Sections 6.8(a) and 6.8(b),
respectively, any Holder who has been a Holder of the Funding Note for at
least six months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor trustee or the removal of the Funding Note Indenture Trustee
and the appointment of a successor trustee, as the case may be. Such court
may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee or remove the Funding Note Indenture
Trustee and appoint a successor trustee, as the case may be.
(d) The Holder Representative may at any time remove the Funding Note Indenture
Trustee and appoint a successor trustee by delivering to the Funding Note
Indenture Trustee so removed, to the successor trustee so appointed and to
Global Funding the evidence provided for in Section 8.1 of the action in
that regard taken by a Holder.
(e) Any resignation or removal of the Funding Note Indenture Trustee and any
appointment of a successor trustee pursuant to any of the provisions of
this Section 6.8 shall only become effective upon acceptance of appointment
by the successor trustee as provided in Section 6.9.
SECTION 6.9 Acceptance of Appointment by Successor Trustee.
(a) Every successor trustee appointed as provided in Section 6.8 shall execute,
acknowledge and deliver to Global Funding and to its predecessor trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations of its
predecessor under the Funding Note Indenture, with like effect as if
originally named as trustee under the Funding Note Indenture; but,
nevertheless, on the written request of Global Funding or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to
act shall, subject to Section 11.4, pay over to the successor trustee all
funds at the time held by it under the Funding Note Indenture and shall
execute and deliver an instrument transferring to such successor trustee
all such rights, powers, duties and obligations. Upon request of any such
successor trustee, Global Funding shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Subject to the Lien created
under the Funding Note Indenture, any trustee ceasing to act shall,
nevertheless, retain a claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
(b) Upon acceptance of appointment by a successor Funding Note Indenture
Trustee as provided in this Section 6.9, Global Funding shall notify each
Holder of the Funding Note and each rating agency then rating the Funding
Note at the request of Global Funding. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called
for by the preceding sentence may be combined with the notice called for by
Section 6.8. If Global Funding fails to make such notice within 10 days
after acceptance of appointment by the successor Funding Note Indenture
Trustee, the successor Funding Note Indenture Trustee shall cause such
notice to be mailed at the expense of Global Funding.
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of
Funding Note Indenture Trustee.
(a) Any corporation into which the Funding Note Indenture Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Funding
Note Indenture Trustee shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Funding
Note Indenture Trustee, shall be the successor of the Funding Note
Indenture Trustee under the Funding Note Indenture, provided that such
corporation shall be eligible under the provisions of Section 6.7, without
the execution or filing of any paper or any further act on the part of any
of the parties to the Funding Note Indenture, anything in the Funding Note
Indenture to the contrary notwithstanding.
(b) In case at the time such successor to the Funding Note Indenture Trustee
shall succeed to the trusts created by the Funding Note Indenture the
Funding Note Certificate shall have been authenticated but not delivered,
any such successor to the Funding Note Indenture Trustee may adopt the
certificate of authentication of any predecessor Funding Note Indenture
Trustee and deliver such Funding Note Certificate so authenticated; and, in
case at that time the Funding Note Certificate shall not have been
authenticated, any successor to the Funding Note Indenture Trustee may
authenticate such Funding Note Certificate either in the name of any
predecessor under the Funding Note Indenture or in the name of the
successor Funding Note Indenture Trustee; and in all such cases such
certificate shall have the full force; provided, that the right to adopt
the certificate of authentication of any predecessor Funding Note Indenture
Trustee or to authenticate the Funding Note Certificate in the name of any
predecessor Funding Note Indenture Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.11 Limitations on Rights of Funding Note Indenture Trustee as
Creditor. The Funding Note Indenture Trustee shall comply with Section 311(a) of
the Trust Indenture Act.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY FUNDING NOTE INDENTURE TRUSTEE AND TRUST
SECTION 7.1 Global Funding to Furnish Funding Note Indenture Trustee Names and
Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, Global
Funding shall furnish or cause to be furnished to the Funding Note Indenture
Trustee:
(a) semi-annually not later than June 30 and December 31 of the year or upon
such other dates as are set forth in or pursuant to the Funding Note
Certificate or Supplemental Funding Note Indenture, a list, in each case in
such form as the Funding Note Indenture Trustee may reasonably require, of
the names and addresses of Holders as of the applicable date, and
(b) at such other times as the Funding Note Indenture Trustee may request in
writing, within 30 days after the receipt by Global Funding of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished,
provided, however, that so long as the Funding Note Indenture Trustee is the
Funding Note Registrar no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communication to Holders.
The Funding Note Indenture Trustee shall comply with the obligations
imposed upon it pursuant to Section 312 of the Trust Indenture Act. Every Holder
of the Funding Note, by receiving and holding the same, agrees with Global
Funding and the Funding Note Indenture Trustee that neither Global Funding, the
Funding Note Indenture Trustee, any Funding Note Paying Agent or any Funding
Note Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of the Funding Note in
accordance with Section 312(c) of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Funding Note
Indenture Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
SECTION 7.3 Reports by Funding Note Indenture Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May 15
following the issuance of the Funding Note, if required by Section 313(a)
of the Trust Indenture Act, the Funding Note Indenture Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief
report dated as of May 15 with respect to any of the events specified in
Section 313(a) of the Trust Indenture Act which may have occurred since the
later of the immediately preceding May 15 and the date of the Funding Note
Indenture.
(b) The Funding Note Indenture Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the time specified therein.
(c) The Funding Note Indenture Trustee shall comply with Section 313(b) of the
Trust Indenture Act.
(d) Reports pursuant to this Section shall be transmitted in the manner and to
the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
(e) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Funding Note Indenture Trustee with each stock
exchange upon which the Funding Note is listed, with the Commission and
Global Funding. Global Funding will notify the Funding Note Indenture
Trustee whether the Funding Note is listed on any stock exchange.
(f) Global Funding shall furnish to the Indenture Trustee at least annually, an
Opinion of Counsel, dated as of such date, either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and re-filing of the Funding Note
Indenture, as is necessary to maintain the Security Interest of the Funding
Note Indenture and reciting the details of such action or referring to
prior Opinions of Counsel in which such details are given, or stating that,
in the opinion of such counsel, no such action is necessary to maintain the
Security Interest.
SECTION 7.4 Reports by Global Funding.
Pursuant to Section 314(a) of the Trust Indenture Act, Global Funding shall:
(a) file, or cause to be filed, with the Funding Note Indenture Trustee, within
15 days after Global Funding or the Issuing Trust is required to file the
same with the Commission and to the extent available to Global Funding,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
Global Funding or the Issuing Trust may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if Global Funding is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file, or cause to be
filed, with the Funding Note Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations; provided that if, pursuant to any publicly available
interpretations of the Commission, Global Funding or the Issuing Trust
would not be required to make such filings under Section 314(a) of the
Trust Indenture Act, then Global Funding and the Issuing Trust shall not be
required to make such filings;
(b) file, or cause to be filed on its behalf, with the Funding Note Indenture
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by Global
Funding with the conditions and covenants of the Funding Note Indenture as
may be required from time to time by such rules and regulations; and
(c) transmit within 30 days after the filing thereof with the Funding Note
Indenture Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by or on behalf of Global
Funding pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 Evidence of Action Taken by a Holder.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by the Funding Note Indenture to be given or taken by
any Holder may be embodied in and evidenced (i) by any instrument or any
number of instruments of similar tenor executed by Holders in person or by
agent or proxy appointed in writing, or (ii) by the record of the Holders
of the Funding Note voting in favor thereof at any meeting of Holders duly
called and held in accordance with the provisions of Article 12, or (iii)
by a combination of such instrument or instruments and any such record of
such meeting of Holders. Except as otherwise expressly provided in the
Funding Note Indenture, such action shall become effective when such
instrument or instruments are delivered to the Funding Note Indenture
Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of the Funding Note
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Funding Note Indenture Trustee and Global Funding, if made in the manner
provided in this Article. The record of any meeting of Holders of the
Funding Note shall be proved in the manner provided in Section 12.6.
(b) Any request, demand, authorization, direction, notice, consent, waiver or
other action of a Holder of any portion of the Funding Note shall bind
every future Holder of the same portion of the Funding Note and the Holder
of every Funding Note Certificate issued upon the registration of transfer
of any portion of the Funding Note represented thereby or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Funding Note Indenture Trustee or Global Funding
in reliance thereon, whether or not notation of such action is made upon
such Funding Note Certificate.
SECTION 8.2 Proof of Execution of Instruments and of Holding of Funding Note.
(a) Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Holder or its agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Funding Note
Indenture Trustee or in such manner as shall be satisfactory to the Funding
Note Indenture Trustee.
(b) The ownership, principal amount and CUSIP number of the Funding Note shall
be proved by the Funding Note Register or by a certificate of the Funding
Note Indenture Trustee.
SECTION 8.3 Voting Record Date. Global Funding may set a record date for
purposes of determining the identity of each Holder of the Funding Note entitled
to vote or consent to any action referred to in Section 8.1, which record date
may be set at any time or from time to time by notice to the Funding Note
Indenture Trustee, for any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than 5 days prior to the proposed
date of such vote or consent, and thereafter, notwithstanding any other
provisions of the Funding Note Indenture, only a Holder of the Funding Note on
such record date shall be entitled to so vote or give such consent or to
withdraw such vote or consent.
SECTION 8.4 Persons Deemed to be Owners. Global Funding, the Funding Note
Indenture Trustee and any agent of Global Funding or the Funding Note Indenture
Trustee may deem and treat the Holder of any portion of the Funding Note as the
absolute owner of such portion of the Funding Note (whether or not such portion
of the Funding Note shall be overdue and notwithstanding any notation of
ownership or other writing on the applicable Funding Note Certificate) for the
purpose of receiving payment of or on account of the principal of, any premium
on, and, subject to the provisions of the Funding Note Indenture, any interest
on, and any Additional Amounts with respect to, such portion of the Funding Note
and for all other purposes; and neither Global Funding nor the Funding Note
Indenture Trustee nor any agent of Global Funding or the Funding Note Indenture
Trustee shall be affected by any notice to the contrary. All such payments so
made to any such Person, or upon such Person's order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for funds payable upon any such portion of the Funding Note.
SECTION 8.5 Any Portion of Funding Note Owned by Global Funding Deemed Not
Outstanding. In determining whether the Holders of the requisite principal
amount of the Funding Note have concurred in any direction, consent or waiver
under the Funding Note Indenture, any portion of the Funding Note which is owned
by Global Funding or any other obligor on the Funding Note or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with Global Funding or any other obligor on the Funding Note
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Funding Note Indenture Trustee shall be protected in relying on any such
direction, consent or waiver only a portion of the Funding Note which the
Funding Note Indenture Trustee knows is so owned shall be so disregarded. A
portion of the Funding Note so owned which has been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Funding Note Indenture Trustee the pledgee's right so to act with respect to
such portion of the Funding Note and that the pledgee is not Global Funding or
any other obligor upon the Funding Note or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
Global Funding or any other obligor on the Funding Note. In case of a dispute as
to such right, the advice of counsel shall be full protection in respect of any
decision made by the Funding Note Indenture Trustee in accordance with such
advice. Upon request of the Funding Note Indenture Trustee, Global Funding shall
furnish to the Funding Note Indenture Trustee promptly a Trust Certificate
listing and identifying the portion of the Funding Note, if any, known by Global
Funding to be owned or held by or for the account of any of the above-described
Persons; and, subject to Sections 6.1 and 6.2, the Funding Note Indenture
Trustee shall be entitled to accept such Trust Certificate as conclusive
evidence of the facts therein set forth and of the fact that the portion of the
Funding Note not listed therein is Outstanding for the purpose of any such
determination.
SECTION 8.6 Right of Revocation of Action Taken; Binding Effect of Actions by
Holders.
(a) At any time prior to (but not after) the evidencing to the Funding Note
Indenture Trustee, as provided in Section 8.1, of the taking of any action
by the Holders of the percentage of the principal amount of the Funding
Note specified in the Funding Note Indenture in connection with such
action, any Holder of the Funding Note that has consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof
of holding as provided in this Article, revoke such action so far as
concerns such Holder.
(b) Any action taken by the Holders of the percentage in aggregate principal
amount of the Funding Note specified in the Funding Note Indenture in
connection with such action shall be conclusively binding upon Global
Funding, the Funding Note Indenture Trustee and the Holders of the Funding
Note affected by such action, irrespective of whether or not any notation
in regard of any such action is made on the Funding Note Certificate.
ARTICLE 9
SUPPLEMENTAL FUNDING NOTE INDENTURES
SECTION 9.1 Supplemental Funding Note Indentures Without Consent of Holders.
(a) Global Funding and the Funding Note Indenture Trustee may from time to time
and at any time enter into an indenture or indentures supplemental to the
Funding Note Indenture (each, a "Supplemental Funding Note Indenture")
(which shall conform to the provisions of the Trust Indenture Act) for one
or more of the following purposes without the consent of any Holder:
(i) for Global Funding to convey, transfer, assign, mortgage or pledge to the
Funding Note Indenture Trustee as security for the Funding Note any
property or assets;
(ii) to add to the covenants of Global Funding such further covenants,
restrictions, conditions or provisions as Global Funding and the Funding
Note Indenture Trustee shall consider to be for the protection of each
Holder of the Funding Note, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in the Funding
Note Indenture as set forth in the Funding Note Indenture; provided, that
in respect of any such additional covenant, restriction, condition or
provision such Supplemental Funding Note Indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Funding Note Indenture Trustee upon such an Event
of Default or may limit the right of the Holder Representative to waive
such an Event of Default;
(iii)to cure any ambiguity or to correct or supplement any provision contained
in the Funding Note Indenture or in any Supplemental Funding Note Indenture
or the Funding Note Certificate which may be defective or inconsistent with
any other provision contained in the Funding Note Indenture or in any
Supplemental Funding Note Indenture or the Funding Note Certificate; or to
make such other provisions in regard to matters or questions arising under
the Funding Note Indenture or under any Supplemental Funding Note Indenture
or the Funding Note Certificate as Global Funding may deem necessary or
desirable and which shall not adversely affect the interests of the Holders
of the Funding Note in any material respect; or
(iv) to evidence and provide for the acceptance of appointment under the Funding
Note Indenture by a successor trustee and to add to or change any of the
provisions of the Funding Note Indenture as shall be necessary to provide
for or facilitate the administration of the trusts under the Funding Note
Indenture by more than one trustee.
(b) The Funding Note Indenture Trustee is authorized to join with Global
Funding in the execution of any such Supplemental Funding Note Indenture,
and to make any further appropriate agreements and stipulations which may
be therein contained, but the Funding Note Indenture Trustee shall not be
obligated to enter into any such Supplemental Funding Note Indenture which
affects the Funding Note Indenture Trustee's own rights, duties or
immunities under the Funding Note Indenture or otherwise.
(c) Any Supplemental Funding Note Indenture authorized by the provisions of
this Section may be executed without the consent of any Holder of any
portion of the Funding Note at the time Outstanding, notwithstanding any of
the provisions of Section 9.2.
SECTION 9.2 Supplemental Funding Note Indentures With Consent of Holders.
(a) With the consent (evidenced as provided in Article 8) of the Holders of not
less than 66?% of the principal amount of the Funding Note at the time
Outstanding, Global Funding and the Funding Note Indenture Trustee may,
from time to time and at any time, enter into a Supplemental Funding Note
Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Funding Note Indenture
or of any Supplemental Funding Note Indenture or the Funding Note
Certificate or of modifying in any manner the rights of the Holders of the
Funding Note; provided, that no such Supplemental Funding Note Indenture
shall:
(i) change the final maturity of the Funding Note, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of
interest or any other amount payable thereon, or impair or affect the right
of any Holder to institute suit for the payment thereof without the consent
of the Holder of any portion of the Funding Note so affected or modify any
redemption or repayment provisions applicable to the Funding Note;
(ii) permit the creation of any Lien on the Funding Note Collateral or any part
thereof (other than the Security Interest in favor of the Funding Note
Indenture Trustee on behalf of the Holders) or terminate the Security
Interest as to any part of the Funding Note Collateral, except as permitted
by the Funding Note Indenture; or
(iii)modify any of the provisions of this Section except to increase the
aforementioned percentage of the principal amount of the Funding Note
required to approve any Supplemental Funding Note Indenture.
(b) Upon the request of Global Funding, and upon the filing with the Funding
Note Indenture Trustee of evidence of the consent of each Holder and other
documents, if any, required by Section 8.1, the Funding Note Indenture
Trustee shall join with Global Funding in the execution of such
Supplemental Funding Note Indenture unless such Supplemental Funding Note
Indenture affects the Funding Note Indenture Trustee's own rights, duties
or immunities under the Funding Note Indenture or otherwise, in which case
the Funding Note Indenture Trustee may in its discretion, but shall not be
obligated to, enter into such Supplemental Funding Note Indenture.
(c) It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed Supplemental Funding Note
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
(d) Promptly after the execution by Global Funding and the Funding Note
Indenture Trustee of any Supplemental Funding Note Indenture pursuant to
the provisions of this Section, the Funding Note Indenture Trustee shall
notify the Holders of the Funding Note, as provided in the Funding Note
Indenture, setting forth in general terms the substance of such
Supplemental Funding Note Indenture. Any failure of the Funding Note
Indenture Trustee to provide such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such Supplemental
Funding Note Indenture.
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Funding
Note Indenture. Any Supplemental Funding Note Indenture executed pursuant to the
provisions of this Article shall comply with the Trust Indenture Act. Upon the
execution of any Supplemental Funding Note Indenture pursuant to the provisions
of the Funding Note Indenture, the Funding Note Indenture shall be and be deemed
to be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under the Funding Note
Indenture of the Funding Note Indenture Trustee, Global Funding and each Holder
of the Funding Note shall thereafter be determined, exercised and enforced under
the Funding Note Indenture subject in all respects to such modifications and
amendments, and all the terms and conditions of any such Supplemental Funding
Note Indenture shall be and be deemed to be part of the terms and conditions of
the Funding Note Indenture for any and all purposes.
SECTION 9.4 Documents to Be Given to Funding Note Indenture Trustee. The Funding
Note Indenture Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive a Trust Certificate and an Opinion of Counsel as conclusive evidence
that any such Supplemental Funding Note Indenture complies with the applicable
provisions of the Funding Note Indenture.
SECTION 9.5 Notation on Funding Note Certificate in Respect of Supplemental
Funding Note Indentures. Any Funding Note Certificate authenticated and
delivered after the execution of any Supplemental Funding Note Indenture
pursuant to the provisions of this Article may bear a notation in form approved
by the Funding Note Indenture Trustee as to any matter provided for by such
Supplemental Funding Note Indenture or as to any action taken at any such
meeting. If Global Funding or the Funding Note Indenture Trustee shall so
determine, a new Funding Note Certificate representing the Funding Note or any
portion thereof so modified as to conform, in the opinion of the Funding Note
Indenture Trustee and Global Funding, to any modification of the Funding Note
Indenture contained in any such Supplemental Funding Note Indenture may be
prepared by Global Funding, authenticated by the Funding Note Indenture Trustee
and delivered in exchange for the Funding Note Certificate representing the
Funding Note or such portion thereof.
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 Global Funding May Merge, Consolidate, Sell or Convey Property
Under Certain Circumstances. Global Funding may not consolidate with, or merge
into, any Person (whether or not affiliated with Global Funding), or sell, lease
or convey the property of Global Funding as an entirety or substantially as an
entirety, unless:
(a) the entity formed by such consolidation or into which Global Funding is
merged or the Person which acquires by conveyance or transfer the
properties and assets of Global Funding substantially as an entirety shall
be a statutory trust formed under the laws of the State of Delaware or a
corporation or other entity organized and existing under the laws of the
United States of America or any State or the District of Columbia, and
shall expressly assume, by a Supplemental Funding Note Indenture, executed
and delivered to the Funding Note Indenture Trustee, in form satisfactory
to the Funding Note Indenture Trustee, the due and punctual payment of the
principal of, any premium and interest on, and any Additional Amounts with
respect to, the Funding Note and the performance of every covenant of the
Funding Note Indenture on the part of Global Funding to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become an
Event of Default, shall have happened and be continuing;
(c) Global Funding has received written confirmation from any rating agency
then rating the Funding Note at the request of Global Funding that such
consolidation, merger, conveyance or transfer shall not cause the rating on
the Funding Note to be downgraded or withdrawn; and
(d) Global Funding has delivered to the Funding Note Indenture Trustee a Trust
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer and such Supplemental Funding Note Indenture
comply with this Article and that all conditions precedent provided for in
the Funding Note Indenture relating to such transaction have been complied
with.
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 Satisfaction and Discharge of Indenture. If at any time (a) Global
Funding shall have paid or caused to be paid all outstanding principal of, any
premium and interest on, and any Additional Amounts and other amounts payable
with respect to, the Funding Note, as and when the same shall have become due
and payable, or (b) Global Funding shall have delivered to the Funding Note
Indenture Trustee for cancellation each Funding Note Certificate representing
the Funding Note theretofore authenticated (other than any Funding Note
Certificate which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.7) or (c) Global Funding shall
have irrevocably deposited or caused to be deposited with the Funding Note
Indenture Trustee as trust funds the entire amount in cash (other than funds
repaid by any Funding Note Indenture Trustee or any Funding Note Paying Agent to
Global Funding in accordance with Section 11.4) sufficient to pay at maturity
all amounts payable at maturity on the Funding Note represented by one or more
Funding Note Certificates not theretofore delivered to the Funding Note
Indenture Trustee for cancellation, including any outstanding principal,
interest, premium, Additional Amounts and other amounts due or to become due to
such date of maturity as the case may be, and if, in any such case, Global
Funding shall also pay or cause to be paid all other sums payable under the
Funding Note Indenture by Global Funding, then the Funding Note Indenture shall
cease to be of further effect (except as to (i) rights of registration of
transfer and exchange, (ii) substitution of an apparently mutilated, defaced,
destroyed, lost or stolen Funding Note Certificate, (iii) rights of Holders to
receive payments of principal of, any premium and interest on, and any
Additional Amounts and other amounts payable with respect to, the Funding Note,
(iv) the rights, obligations and immunities of the Funding Note Indenture
Trustee under the Funding Note Indenture and (v) the rights of each Holder as
beneficiary of the Funding Note Indenture with respect to the property so
deposited with the Funding Note Indenture Trustee payable to all or any of
them), and the Funding Note Indenture Trustee, on demand of Global Funding
accompanied by a Trust Certificate and an Opinion of Counsel and at the cost and
expense of Global Funding, shall execute proper instruments acknowledging such
satisfaction of and discharging the Funding Note Indenture. Global Funding
agrees to reimburse the Funding Note Indenture Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Funding Note
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Funding Note Indenture Trustee in connection with the Funding Note
Indenture or the Funding Note.
SECTION 11.2 Application by Funding Note Indenture Trustee of Funds Deposited
for Payment of Funding Note. Subject to Section 11.4, all funds deposited with
the Funding Note Indenture Trustee pursuant to Section 11.1 shall be held in
trust in accordance with Section 6.5 and applied by it to the payment, either
directly or through any Funding Note Paying Agent (including Global Funding
acting as its own paying agent), to each Holder of the Funding Note for the
payment or redemption of which such funds have been deposited with the Funding
Note Indenture Trustee, of all sums due and to become due thereon for any
principal, interest, premium, Additional Amounts or other amounts.
SECTION 11.3 Repayment of Funds Held by Funding Note Paying Agent. In connection
with the satisfaction and discharge of the Funding Note Indenture, all funds
then held by any Funding Note Paying Agent under the provisions of the Funding
Note Indenture shall, upon demand of Global Funding, be repaid to Global Funding
or paid to the Funding Note Indenture Trustee and thereupon such Funding Note
Paying Agent shall be released from all further liability with respect to such
funds.
SECTION 11.4 Return of Funds Held by Funding Note Indenture Trustee and Funding
Note Paying Agent. Any funds deposited with or paid to the Funding Note
Indenture Trustee or any Funding Note Paying Agent for the payment of the
principal of, any interest or premium on, or any Additional Amounts or any other
amounts with respect to, the Funding Note and not applied but remaining
unclaimed for three years after the date upon which such principal, interest,
premium, Additional Amounts or any other amount shall have become due and
payable, shall, upon the written request of Global Funding and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to Global Funding by the Funding Note Indenture Trustee
or such Funding Note Paying Agent, and each Holder of the Funding Note shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to Global Funding for
any payment which such Holder may be entitled to collect, and all liability of
the Funding Note Indenture Trustee or any Funding Note Paying Agent with respect
to such funds shall thereupon cease.
ARTICLE 12
MEETINGS OF HOLDERS OF FUNDING NOTE
SECTION 12.1 Purposes for Which Meetings May Be Called. A meeting of Holders of
the Funding Note may be called at any time and from time to time pursuant to
this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Funding Note
Indenture to be made, given or taken by Holders of the Funding Note.
SECTION 12.2 Call, Notice and Place of Meetings.
(a) Unless otherwise provided in the Funding Note Certificate, the Funding Note
Indenture Trustee may at any time call a meeting of Holders of the Funding
Note for any purpose specified in Section 12.1, to be held at such time and
at such place in the City of New York or the city in which the Corporate
Trust Office is located. Notice of every meeting of Holders of the Funding
Note, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given in
the manner provided in Section 13.4, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time Global Funding or the Holder or Holders of at least 10%
in principal amount of the Funding Note shall have requested the Funding
Note Indenture Trustee to call a meeting of the Holders of the Funding Note
for any purpose specified in Section 12.1, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and
the Funding Note Indenture Trustee shall not have made the first
publication or mailing of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided in the Funding Note Indenture, then Global
Funding or the Holder or Holders of the Funding Note in the amount above
specified, as the case may be, may determine the time and the place in the
City of New York or the city in which the Corporate Trust Office is located
for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in Section 12.2.
SECTION 12.3 Persons Entitled to Vote at Meetings. To be entitled to vote at any
meeting of Holders of the Funding Note, a Person shall be (a) a Holder of any
portion of the Funding Note then Outstanding, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of any portion of the
Funding Note then Outstanding by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of the
Funding Note shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Funding Note Indenture Trustee and its
counsel and any representatives of Global Funding and its counsel.
SECTION 12.4 Quorum; Action.
(a) The Persons entitled to vote a majority in principal amount of the Funding
Note then Outstanding shall constitute a quorum for a meeting of Holders of
the Funding Note; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which the Funding Note
Indenture expressly provides may be given by the Holders of not less than
66?% in outstanding principal amount of the Funding Note, then Persons
entitled to vote 66?% in outstanding principal amount of the Funding Note
shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of the Funding Note, be dissolved. In
any other case the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
12.2, except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the outstanding principal amount of the
Funding Note which shall constitute a quorum.
(b) Except as limited by the proviso to Section 9.2(a), any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in outstanding principal amount of the Funding
Note; provided, however, that, except as limited by the proviso to Section
9.2(a), any resolution with respect to any consent or waiver which the
Funding Note Indenture expressly provides may be given by the Holders of
not less than 66?% in outstanding principal amount of the Funding Note may
be adopted at a meeting or an adjourned meeting duly convened and at which
a quorum is present as aforesaid only by the affirmative vote of the
Holders of 66?% in outstanding principal amount of the Funding Note; and
provided, further, that, except as limited by the proviso to Section
9.2(a), any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which the Funding Note
Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in outstanding
principal amount of the Funding Note may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified
percentage in outstanding principal amount of the Funding Note.
(c) Any resolution passed or decision taken at any meeting of Holders of the
Funding Note duly held in accordance with this Section shall be binding on
all the Holders of Funding Note, whether or not such Holders were present
or represented at the meeting.
SECTION 12.5 Determination of Voting Rights; Conduct of Adjournment of Meetings.
(a) Notwithstanding any other provisions of the Funding Note Indenture, the
Funding Note Indenture Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of the Funding Note in regard
to proof of the holding of the Funding Note and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of the Funding Note shall be
proved in the manner specified in Section 8.4 and the appointment of any
proxy shall be proved in the manner specified in Section 8.2. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 8.2 or other proof.
(b) The Funding Note Indenture Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have
been called by Global Funding or by Holders of the Funding Note as provided
in Section 12.2(b), in which case Global Funding or the Holders of the
Funding Note calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in outstanding principal amount of the Funding Note
represented at the meeting.
(c) At any meeting, each Holder of the Funding Note or proxy shall be entitled
to one vote for each $1,000 of principal amount of the Funding Note held or
represented by such Holder or proxy; provided, however, that no vote shall
be cast or counted at any meeting in respect of any portion of the Funding
Note challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of the Funding Note or proxy.
(d) Any meeting of Holders of the Funding Note duly called pursuant to Section
12.2 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in outstanding principal amount of the
Funding Note represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 12.6 Counting Votes and Recording Action of Meetings. The vote upon any
resolution submitted to any meeting of Holders of the Funding Note shall be (a)
by written ballots on which shall be subscribed the signatures of the Holders of
the Funding Note or of their representatives by proxy and the principal amounts
of the outstanding portion of the Funding Note held or represented by them or
(b) by such other procedures adopted by the Funding Note Indenture Trustee in
its discretion. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
the Funding Note shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 12.2 and, if
applicable, Section 12.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to Global Funding, and another to the Funding Note
Indenture Trustee to be preserved by the Funding Note Indenture Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 No Recourse. Notwithstanding anything to the contrary contained in
the Funding Note Indenture, or the Funding Note Certificate or Supplemental
Funding Note Indenture, none of the Funding Agreement Provider, its officers,
directors, affiliates, employees or agents, or any of the Delaware Trustee, the
Funding Note Indenture Trustee or the Global Funding Trust Beneficial Owner, or
any of their officers, directors, affiliates, employees or agents (the
"Non-recourse Parties") will be personally liable for the payment of any
principal, interest or any other sums at any time owing under the terms of the
Funding Note. If any Event of Default shall occur with respect to the Funding
Note, the right of the Holders of the Funding Note and the Funding Note
Indenture Trustee on behalf of such Holders in connection with a claim on the
Funding Note shall be limited solely to a proceeding against the Funding Note
Collateral. Neither the Holders nor the Funding Note Indenture Trustee on behalf
of the Holders will have the right to proceed against the Non-recourse Parties
to enforce the Funding Note (except that to the extent they exercise their
rights, if any, to seize the relevant Funding Agreement, they may enforce the
relevant Funding Agreement against the Funding Agreement Provider) or for any
deficiency judgment remaining after foreclosure of any property included in the
Funding Note Collateral.
It is expressly understood and agreed that nothing contained in this
Section shall in any manner or way constitute or be deemed a release of the debt
or other obligations evidenced by the Funding Note or otherwise affect or impair
the enforceability against Global Funding of the liens, assignments, rights and
the Security Interest created by or pursuant to the Funding Note Indenture, the
relevant Funding Note Collateral or any other instrument or agreement
evidencing, securing or relating to the indebtedness or the obligations
evidenced by the Funding Note. Nothing in this Section shall preclude the
Holders from foreclosing upon any property included in the Funding Note
Collateral or any other rights or remedies in law or in equity against Global
Funding.
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders. Nothing in the Funding Note Indenture or in the Funding Note, expressed
or implied, shall give or be construed to give to any Person, other than the
parties to the Funding Note Indenture and their successors and the Holders of
the Funding Note, any legal or equitable right, remedy or claim under the
Funding Note Indenture or under any covenant or provision contained in the
Funding Note Indenture, all such covenants and provisions being for the sole
benefit of the parties to the Funding Note Indenture and their successors and of
the Holders of the Funding Note.
SECTION 13.3 Successors and Assigns of Global Funding Bound by Indenture. All
the covenants, stipulations, promises and agreements in the Funding Note
Indenture contained by or in behalf of Global Funding shall bind its successors
and assigns, whether so expressed or not.
SECTION 13.4 Notices and Demands on Global Funding, Funding Note Indenture
Trustee and any Holder.
(a) Except as otherwise provided by this Section, any notice or demand which by
any provision of the Funding Note Indenture is required or permitted to be
given or served by the Funding Note Indenture Trustee or by any Holder of
the Funding Note to or on Global Funding may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise
specifically provided in the Funding Note Indenture) addressed (until
another address of Global Funding is filed by Global Funding with the
Funding Note Indenture Trustee) to the Delaware Trustee. Any notice,
direction, request or demand by Global Funding or any Holder to or upon the
Funding Note Indenture Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the Corporate Trust
Office.
(b) Where the Funding Note Indenture provides for notice to any Holder, such
notice shall be sufficiently given (unless otherwise expressly provided in
the Funding Note Indenture) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at such Holder's last address as
it appears in the Note Register. In any case where notice to any Holder is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to any other Holder.
(c) Where the Funding Note Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by any Holder shall be filed
with the Funding Note Indenture Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such waiver.
(d) If, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to Global Funding and
each Holder when such notice is required to be given pursuant to any
provision of the Funding Note Indenture, then any manner of giving such
notice as shall be satisfactory to the Funding Note Indenture Trustee shall
be deemed to be a sufficient giving of such notice.
(e) Global Funding shall deliver promptly to each rating agency then rating the
Funding Note at the request of Global Funding copies of each of the
following:
(i) any repurchase of the Funding Note pursuant to Section 3.3;
(ii) any notice of any default or Event of Default;
(iii)any notice of redemption provided by Global Funding pursuant to Section
3.1(d);
(iv) any notice of change in name, identity, organizational structure, chief
executive office, or chief place of business of Global Funding provided by
Global Funding pursuant to Section 14.4(a);
(v) any Supplemental Funding Note Indenture;
(vi) any resignation, removal or appointment under the Funding Note Indenture;
(vii) any amendment to any Funding Agreement; and
(viii) any other information reasonably requested by such rating agency.
Any such notice shall be addressed to:
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 such other address previously furnished in writing to
Global Funding by the applicable rating agency.
SECTION 13.5 Trust Certificates and Opinions of Counsel; Statements To Be
Contained Therein.
(a) Except as otherwise expressly provided in the Funding Note Indenture, upon
any application or demand by Global Funding to the Funding Note Indenture
Trustee to take any action under any of the provisions of the Funding Note
Indenture, Global Funding shall furnish to the Funding Note Indenture
Trustee a Trust Certificate stating that all conditions precedent, if any,
provided for in the Funding Note Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the
opinion of the applicable counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically
required by any provision of the Funding Note Indenture relating to such
particular application or demand, no additional certificate or opinion need
be furnished.
(b) Each certificate or opinion provided for in the Funding Note Indenture and
delivered to the Funding Note Indenture Trustee with respect to compliance
with a condition or covenant provided for in the Funding Note Indenture
shall include:
(i) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii)a statement that, in the opinion of such Person, he has made such
examination or investigation or has received such certificates, opinions,
representations or statements of counsel or accountants pursuant to
paragraphs (c) or (d) of this Section, as are necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
(c) Any certificate, statement or opinion of Global Funding may be based upon a
certificate or opinion of or representations by counsel, unless Global
Funding knows that the certificate or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate, statement or
opinion of counsel may be based, insofar as it relates to factual matters
information with respect to which is in the possession of Global Funding,
upon the certificate, statement or opinion of or representations by Global
Funding, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which the
certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are
erroneous.
(d) Any certificate, statement or opinion of Global Funding or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of accountants in
the employ of Global Funding, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which the certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
(e) Any certificate or opinion of any independent firm of public accountants
filed with the Funding Note Indenture Trustee shall contain a statement
that such firm is independent.
SECTION 13.6 Governing Law. Pursuant to Section 5-1401 of the General
Obligations Law of the State of New York, the Funding Note Indenture and the
Funding Note shall (unless specified otherwise in the Funding Note Certificate)
be governed by, and construed in accordance with, the laws of the State of New
York, except as required by mandatory provisions of law and except to the extent
that the validity or perfection of Global Funding's ownership of and security
interest in the Funding Agreement(s) or remedies under the Funding Note
Indenture in respect thereof may be governed by the laws of a jurisdiction other
than the State of New York. All judicial proceedings brought against Global
Funding or the Funding Note Indenture Trustee arising out of or relating to the
Funding Note Indenture, the Funding Note or any portion of the Funding Note
Collateral or other assets of Global Funding may be brought in any state or
Federal court in the State of New York, provided that the Funding Note
Certificate may specify other jurisdictions as to which Global Funding may
consent to the nonexclusive jurisdiction of its courts with respect to the
Funding Note.
SECTION 13.7 Counterparts. The Funding Note Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.8 Trust Indenture Act to Control. If and to the extent that any
provision of the Funding Note Indenture limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed on the
Funding Note Indenture by Section 318(c) of the Trust Indenture Act (each, an
"incorporated provision"), such incorporated provision shall control.
SECTION 13.9 Judgment Currency. Global Funding agrees, to the fullest extent
that it may effectively do so under applicable law, that:
(a) if for the purposes of obtaining judgment in any court it is necessary to
convert the sum due in respect of the Funding Note in the Specified
Currency into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used (the "Required Rate of
Exchange") shall be the rate at which in accordance with normal banking
procedures the Funding Note Indenture Trustee could purchase in The City of
New York the Specified Currency with the Judgment Currency on the date on
which final unappealable judgment is entered, unless such day is not a New
York Banking Day, then, to the extent permitted by applicable law, the rate
of exchange used shall be the rate at which in accordance with normal
banking procedures the Funding Note Indenture Trustee could purchase in The
City of New York the Specified Currency with the Judgment Currency on the
New York Banking Day preceding the day on which final unappealable judgment
is entered;
(b) its obligations under the Funding Note Indenture to make payments in the
Specified Currency (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than the Specified
Currency, except to the extent that such tender or recovery shall result in
the actual receipt, by the payee, of the full amount of the Specified
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose
of recovering in the Specified Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Specified
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under the Funding Note
Indenture; and
(c) it shall indemnify the Holder or Holders of the Funding Note against any
loss incurred as a result of any variation between:
(i) the rate of exchange at which the Specified Currency amount is actually
converted into the Judgment Currency for the purpose of that judgment or
order; and
(ii) the Required Rate of Exchange.
For purposes of this Section, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 Security Interest.
(a) To secure the full and punctual payment of the Obligations in accordance
with the terms of the Funding Note Indenture and to secure the performance
of Global Funding's obligations under the Funding Note and the Funding Note
Indenture, Global Funding pledges and collaterally assigns to and with the
Funding Note Indenture Trustee for the benefit of each Holder of the
Funding Note and any other Person for whose benefit the Funding Note
Indenture Trustee is or will be holding the Funding Note Collateral (the
"Secured Parties"), and grants to the Funding Note Indenture Trustee for
the benefit of each Secured Party, a security interest in the Funding Note
Collateral, and all of the rights and privileges of Global Funding in and
to the Funding Note Collateral (the "Security Interest"), effective as of
the Original Issue Date of the Funding Note.
(b) It is expressly agreed that anything therein contained to the contrary
notwithstanding, Global Funding shall remain liable under each Funding
Agreement to perform all the obligations assumed by it thereunder, all in
accordance with and pursuant to the terms and provisions thereof, and the
Funding Note Indenture Trustee shall not have any obligations or
liabilities by reason of or arising out of the Funding Note Indenture, nor
shall the Funding Note Indenture Trustee be required or obligated in any
manner to perform or fulfill any obligations of Global Funding under or
pursuant to such Funding Agreement or to make any payment, to make any
inquiry as to the nature or sufficiency of any payment received by it, or,
prior to the occurrence and continuance of an Event of Default, to present
or file any claim, or to take any action to collect or enforce the payment
of any amounts that may have been assigned to it or to which it may be
entitled at any time or times.
(c) The Funding Note Indenture Trustee acknowledges the grant of the Security
Interest upon the issuance of the Funding Note, accepts the trusts under
the Funding Note Indenture in accordance with the provisions of the Funding
Note Indenture and agrees to perform its duties in accordance with the
terms of the Funding Note Indenture.
SECTION 14.2 Representations and Warranties. Global Funding represents and
warrants that, as of the date of the Funding Note Indenture and, in each case,
prior to the assignment of each Funding Agreement by Global Funding to the
Issuing Trust as contemplated by the terms of the Funding Note and the
Coordination Agreement:
(a) Global Funding owns each Funding Agreement that secures the Obligations and
all of the rest of the Funding Note Collateral, free and clear of any Liens
other than the Security Interest in the Funding Note Collateral.
(b) Global Funding has not performed any acts which might prevent the Funding
Note Indenture Trustee from enforcing any of the terms of the Funding Note
Indenture or which would limit the Funding Note Indenture Trustee in any
such enforcement. Other than financing statements or other similar or
equivalent documents or instruments with respect to the Security Interest,
no financing statement, mortgage, security agreement or similar or
equivalent document or instrument covering all or any part of the Funding
Note Collateral is on file or of record in any jurisdiction in which such
filing or recording would be effective to perfect a Lien on such Funding
Note Collateral. No Funding Note Collateral is in the possession of any
Person (other than Global Funding or its agent) asserting any claim thereto
or security interest therein, except that the Funding Note Indenture
Trustee or its designee may have possession of the Funding Note Collateral
as contemplated by the Funding Note Indenture.
(c) Prior to its termination in accordance with Section 14.9, the Security
Interest constitutes a valid security interest securing the Obligations.
When (i) the financing statements shall have been filed in the appropriate
offices in Illinois, Delaware and New York, (ii) the Funding Note Indenture
Trustee or its agent shall have taken possession of each applicable Funding
Agreement, (iii) Global Funding shall have pledged and collaterally
assigned each applicable Funding Agreement to the Funding Note Indenture
Trustee and given written notice to the Funding Agreement Provider of each
such assignment to the Funding Note Indenture Trustee and (iv) the Funding
Agreement Provider shall have given its express written consent to such
pledge and collateral assignment and affirmed in writing that the Funding
Agreement Provider has changed its books and records to reflect such pledge
and collateral assignment to the Funding Note Indenture Trustee, the
Security Interest shall constitute a first priority perfected security
interest in the Funding Note Collateral, enforceable against Global
Funding, Global Funding's creditors and any purchaser from Global Funding.
SECTION 14.3 Additional Representations and Warranties. Global Funding
represents and warrants that, as of the date of the Funding Note Indenture and,
in each case, prior to the assignment of each Funding Agreement by Global
Funding to the Issuing Trust as contemplated by the terms of the Funding Note
and the Coordination Agreement:
(a) to the extent the creation of a security interest in any Funding Agreement
is governed by the applicable UCC, the Funding Note Indenture creates a
valid security interest (as defined in the applicable UCC) in each Funding
Agreement in favor of the Funding Note Indenture Trustee for the benefit
and security of the Secured Parties, which security interest is prior to
all other Liens;
(b) to the extent the UCC applies, each Funding Agreement consists of "general
intangibles," "payment intangibles" and/or "instruments" within the meaning
of the applicable UCC;
(c) subject to the grant of security interest, pledge and collateral assignment
of Global Funding's estate, right, title and interest in each Funding
Agreement, Global Funding is a party to and is the Person entitled to
payment under each Funding Agreement on the date of the Funding Note
Indenture free and clear of any Lien, claim or encumbrance of any Person,
other then the Lien created under the Funding Note Indenture or any Lien
otherwise permitted under the Funding Note Indenture;
(d) to the extent the UCC applies, Global Funding has caused or will have
caused, within ten days after the date of the Funding Note Indenture, the
filing of all appropriate financing statements in the proper filing office
in the appropriate jurisdictions under applicable law in order to perfect
the security interest in each Funding Agreement granted to the Funding Note
Indenture Trustee for the benefit and security of the Secured Parties under
the Funding Note Indenture;
(e) all original executed copies of each instrument that constitutes or
evidences each Funding Agreement have been delivered to the Funding Note
Indenture Trustee or a custodian for the Funding Note Indenture Trustee
(the "Custodian");
(f) where all original executed copies of each instrument that constitutes or
evidences each Funding Agreement have been delivered to the Custodian,
Global Funding has received a written acknowledgment from the Custodian
that the Custodian is holding the instruments that constitute or evidence
each Funding Agreement solely on behalf of the Funding Note Indenture
Trustee;
(g) except as expressly permitted under the Funding Note Indenture and other
than the Security Interest granted to the Funding Note Indenture Trustee
for the benefit and security of the Secured Parties pursuant to the Funding
Note Indenture, Global Funding has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Funding Agreements;
(h) Global Funding has not authorized the filing of and is not aware of any
financing statements against Global Funding that include a description of
collateral covering any Funding Agreement other than any financing
statement relating to the Security Interest granted to the Funding Note
Indenture Trustee for the benefit and security of the Secured Parties under
the Funding Note Indenture or that has been terminated;
(i) Global Funding is not aware of any judgment or tax lien filings against
Global Funding; and
(j) none of the instruments that constitute or evidence the Funding Agreements
has any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than the Funding Note Indenture
Trustee for the benefit and security of the Secured Parties.
The foregoing representations and warranties shall survive the
execution and delivery of the Funding Note. No party to the Funding Note
Indenture shall waive any of the foregoing representations and warranties.
Global Funding shall maintain the perfection and priority of the Security
Interest in each Funding Agreement, prior to the termination of the Security
Interest in accordance with Section 14.9.
SECTION 14.4 Further Assurances; Covenants.
(a) Global Funding will not change its name, identity or organizational
structure in any manner unless it shall have given the Funding Note
Indenture Trustee at least 30 days' prior notice thereof and shall have
complied with Section 14.4(e). Global Funding will not change the location
of its chief executive office or chief place of business unless it shall
have given the Funding Note Indenture Trustee at least 30 days' prior
notice thereof and shall have complied with Section 14.4(e).
(b) Global Funding will, from time to time and upon advice of counsel, at
Global Funding's expense, prepare, execute, authenticate, deliver, file and
record any statement, assignment, instrument, document, agreement or other
paper and take any other action, (including, without limitation, any
filings of financing or continuation statements) that from time to time may
be necessary or desirable, or that the Funding Note Indenture Trustee may
reasonably request, in order to create, preserve, perfect, confirm or
validate a Security Interest or to enable the Holders of the Funding Note
to obtain the full benefits of the Funding Note Indenture, or to enable the
Funding Note Indenture Trustee to exercise and enforce any of its rights,
powers and remedies under the Funding Note Indenture with respect to any
Funding Note Collateral. To the extent permitted by applicable law, if
Global Funding fails to do so, Global Funding authorizes the Funding Note
Indenture Trustee to execute and file financing statements or continuation
statements without Global Funding's signature appearing thereon. Global
Funding agrees that a carbon, photographic, photostatic or other
reproduction of the Funding Note Indenture or of a financing statement is
sufficient as a financing statement. Global Funding shall pay the costs of,
or incidental to, any recording or filing of any financing or continuation
statements concerning any Funding Note Collateral.
(c) If any Funding Note Collateral is at any time in the possession or control
of any warehouseman, bailee or any of Global Funding's agents or
processors, Global Funding shall notify such warehouseman, bailee, agent or
processor of the Security Interest created by the Funding Note Indenture
and to hold all such Funding Note Collateral for the Funding Note Indenture
Trustee's account subject to the Funding Note Indenture Trustee's
instructions.
(d) Global Funding will, promptly upon request, provide to the Funding Note
Indenture Trustee all information and evidence it may reasonably request
concerning the Funding Note Collateral to enable the Funding Note Indenture
Trustee to enforce the provisions of the Funding Note Indenture.
(e) Not more than six months nor less than 30 days prior to each date on which
Global Funding proposes to take any action contemplated by Section 14.4(a),
Global Funding shall, at its cost and expense, cause to be delivered to the
Funding Note Indenture Trustee an Opinion of Counsel, satisfactory to the
Funding Note Indenture Trustee, to the effect that all financing statements
and amendments or supplements thereto, continuation statements and other
documents required to be recorded or filed in order to perfect and protect
the Security Interest for a period, specified in such Opinion of Counsel,
continuing until a date not earlier than 18 months from the date of such
Opinion of Counsel, against all creditors of and purchasers from Global
Funding have been filed in each filing office necessary for such purpose
and that all filing fees and taxes, if any, payable in connection with such
filings have been paid in full.
(f) From time to time upon request by the Funding Note Indenture Trustee,
Global Funding shall, at its cost and expense, cause to be delivered to the
Funding Note Indenture Trustee an Opinion of Counsel satisfactory to the
Funding Note Indenture Trustee as to such matters relating to the Security
Interest as the Funding Note Indenture Trustee or the Holder Representative
may reasonably request.
SECTION 14.5 General Authority. Global Funding irrevocably appoints the Funding
Note Indenture Trustee its true and lawful attorney, with full power of
substitution, in the name of Global Funding, the Funding Note Indenture Trustee,
the Holders of the Funding Note or otherwise, for the sole use and benefit of
the Secured Parties, but at Global Funding's expense, to the extent permitted by
law to exercise, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect to
all or any of the Funding Note Collateral:
(a) to demand, sue for, collect, receive and give acquittance for any and all
monies due or to become due thereon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the same or the
proceeds or avails thereof, as fully and effectually as if the Funding Note
Indenture Trustee were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
provided that the Funding Note Indenture Trustee shall give Global Funding not
less than 10 days' prior notice of the time and place of any sale or other
intended disposition of any of the Funding Note Collateral, except any part of
the Funding Note Collateral which threatens to decline speedily in value or is
of a type customarily sold on a recognized market.
SECTION 14.6 Remedies upon Event of Default. If any Event of Default has
occurred and is continuing, the Funding Note Indenture Trustee may exercise on
behalf of the Holders of the Funding Note all rights of a secured party under
applicable law and, in addition, the Funding Note Indenture Trustee may, without
being required to give any notice, except as provided in the Funding Note
Indenture or as may be required by mandatory provisions of law, (i) apply all
cash, if any, then held by it as all or part of the Funding Note Collateral as
specified in Section 5.3 and (ii) if there shall be no such cash or if such cash
shall be insufficient to pay all the Obligations in full, sell the Funding Note
Collateral (including each applicable Funding Agreement) or any part thereof at
public or private sale, for cash, upon credit or for future delivery, and at
such price or prices as the Funding Note Indenture Trustee may deem
satisfactory. Any Holder may be the purchaser of any or all of the Funding Note
Collateral so sold at any public sale (or, if the Funding Note Collateral is of
a type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, at any private sale).
Global Funding will execute and deliver such documents and take such other
action as the Funding Note Indenture Trustee deems necessary or advisable in
order that any such sale may be made in compliance with law. Upon any such sale
the Funding Note Indenture Trustee shall have the right to deliver, assign and
transfer to the purchaser thereof the Funding Note Collateral so sold. Each
purchaser at any such sale shall hold the Funding Note Collateral so sold to it
absolutely and free from any claim or right of whatsoever kind, including any
equity or right of redemption of Global Funding which may be waived, and Global
Funding, to the extent permitted by law, specifically waives all rights of
redemption, stay or appraisal which it has or may have under any law. The notice
(if any) of such sale shall (A) in the case of a public sale, state the time and
place fixed for such sale, and (B) in the case of a private sale, state the day
after which such sale may be consummated. Any such public sale shall be held at
such time or times within ordinary business hours and at such place or places as
the Funding Note Indenture Trustee may fix in the notice of such sale. At any
such sale the Funding Note Collateral may be sold in one lot as an entirety or
in separate parcels, as the Funding Note Indenture Trustee may determine. The
Funding Note Indenture Trustee shall not be obligated to make any such sale
pursuant to any such notice. The Funding Note Indenture Trustee may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the same may
be so adjourned. In the case of any sale of all or any part of the Funding Note
Collateral on credit or for future delivery, the Funding Note Collateral so sold
may be retained by the Funding Note Indenture Trustee until the selling price is
paid by the purchaser thereof, but the Funding Note Indenture Trustee shall not
incur any liability in the case of the failure of such purchaser to take up and
pay for the Funding Note Collateral so sold and, in the case of any such
failure, such Funding Note Collateral may again be sold upon like notice. The
Funding Note Indenture Trustee, instead of exercising the power of sale
conferred upon it in the Funding Note Indenture, may proceed by a suit or suits
at law or in equity to foreclose a Security Interest and sell any Funding Note
Collateral, or any portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction.
SECTION 14.7 Limitation on Duties of Funding Note Indenture Trustee with Respect
to Funding Note Collateral. Beyond the exercise of reasonable care in the
custody thereof, the Funding Note Indenture Trustee shall have no duty as to any
portion of the Funding Note Collateral in its possession or control or in the
possession or control of any agent or bailee or as to the preservation of rights
against prior parties or any other rights pertaining thereto. The Funding Note
Indenture Trustee shall be deemed to have exercised reasonable care in the
custody of the Funding Note Collateral in its possession if the Funding Note
Collateral is accorded treatment substantially equal to that which it accords
its own property, and shall not be liable or responsible for any loss or damage
to any of the Funding Note Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any warehouseman, carrier,
forwarding agency, consignee or other agent or bailee selected by the Funding
Note Indenture Trustee in good faith.
SECTION 14.8 Concerning the Funding Note Indenture Trustee. In furtherance and
not in derogation of the rights, privileges and immunities of the Funding Note
Indenture Trustee specified in the Funding Note Indenture:
(a) the Funding Note Indenture Trustee is authorized to take all such action as
is provided to be taken by it as Funding Note Indenture Trustee under this
Article and all other action reasonably incidental thereto. As to any
matters not expressly provided for in this Article (including, without
limitation, the timing and methods of realization upon any Funding Note
Collateral) the Funding Note Indenture Trustee shall act or refrain from
acting in accordance with written instructions from the Holder or Holders
of the required percentage of the outstanding principal amount of the
Funding Note for any instructions or, in the absence of such instructions,
in accordance with its discretion; and
(b) the Funding Note Indenture Trustee shall not be responsible for the
existence, genuineness or value of any of the Funding Note Collateral or
for the validity, perfection, priority or enforceability of the Security
Interest in any of the Funding Note Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
under the Funding Note Indenture.
SECTION 14.9 Termination of Security Interest. The Security Interest shall
terminate and all rights to the Funding Note Collateral shall revert to Global
Funding (i) upon the repayment in full of all Obligations or (ii) in connection
with the assignment of the Funding Note by Global Funding to the Issuing Trust
in accordance with the terms of the Funding Note and the Coordination Agreement.
Upon such termination of a Security Interest, and delivery of a certificate by
Global Funding to such effect, the Funding Note Indenture Trustee will, at the
expense of Global Funding, execute and deliver to Global Funding such documents
as Global Funding shall reasonably request to evidence the termination of the
Security Interest.
EXHIBIT A-1
FORM OF FUNDING NOTE RELATED TO SECURED MEDIUM TERM NOTES ISSUED UNDER THE
SECURED MEDIUM TERM NOTES PROGRAM
EXHIBIT A-2
FORM OF FUNDING NOTE RELATED TO SECURED MEDIUM TERM NOTES ISSUED UNDER THE
ALLSTATE LIFE SM CORENOTES(R)PROGRAM
EXHIBIT B
FORM OF CERTIFICATE OF AUTHENTICATION
This Funding Note Certificate is one of the Funding Note Certificates
representing the Funding Note described in the within-mentioned Funding
Note Indenture and is being issued in accordance with Section 2.5(f) of
the Funding Note Indenture.
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION, as
Funding Note Indenture
Trustee
By:
Authorized Signatory
Dated:
EXHIBIT C
ALLSTATE LIFE INSURANCE COMPANY
FUNDING AGREEMENT
FA-41074
ALLSTATE LIFE INSURANCE COMPANY, an Illinois insurance company ("Allstate
Life"), agrees to establish a Funding Account as specified in this agreement
(this "Agreement") for Allstate Life Global Funding, (the "Owner", which term
shall include its permissible successors and assignees).
This Agreement is issued pursuant to an application (the "Application") by the
Owner, a copy of which is attached to and made a part of this Agreement.
This Agreement is issued in and is subject to the laws of the State of Illinois.
This Agreement is executed by Allstate Life at its principal offices located at
Northbrook, Illinois on September 22, 2004, to take effect as of such date (the
"Effective Date").
1. Deposit Amounts
Allstate Life agrees to accept, and the Owner agrees to pay or cause to be
paid to Allstate Life, on the Effective Date the amount (the "Deposit
Amount") identified in the Funding Agreement Pricing Annex ("Annex")
attached hereto.
2. Funding Account
Upon receipt of the Deposit Amount, Allstate Life will establish an account
in the name of the Owner on its books and records (the "Funding Account")
and credit such account with an amount equal to the Principal Amount (as
identified in the Annex). Allstate Life is neither a trustee nor a
fiduciary with respect to the Funding Account. All assets credited to the
Funding Account shall be the exclusive property of Allstate Life and
Allstate Life shall have the sole rights to control, manage and administer
such assets. Allstate Life may commingle such assets with its other general
account assets.
Allstate Life shall calculate and credit interest to the Funding Account in
accordance with the terms set forth in the Annex. At the end of any day,
the balance of the Funding Account (the "Funding Account Balance") shall be
equal to the Principal Amount, plus any accrued interest, less any amounts
previously withdrawn pursuant to the terms hereof.
3. Entire Agreement
This Agreement (including the Annex) and the Application constitute the
entire contract between Allstate Life and the Owner with respect to the
subject matter hereof except for additional terms, if any, regarding any
transfers or assignments hereof made in accordance with Section 5.
4. Representations and Warranties
Each party hereto represents and warrants to the other that as of the date
hereof:
(i) it has the power to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) this Agreement has been duly authorized, executed and delivered by the
representing party;
(iii)assuming the due authorization, execution and delivery of this
Agreement by the other party, this Agreement constitutes a legal,
valid and binding obligation of the representing party; and
(iv) this Agreement is enforceable in accordance with the terms hereof,
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.
It is understood and agreed that Allstate Life makes no representation or
warranty as to:
(i) the eligibility of the Owner to enter into or own this Agreement;
(ii) any other matter regarding the Owner or any depositor, trustor, agent
or holder of any interest, instrument or security of the Owner; or
(iii)whether any payment made under this Agreement will be subject to
withholding, deduction or reduction as a result of any tax or similar
law or regulation.
In performing its obligations hereunder, Allstate Life is not acting
as a fiduciary, agent or other representative of the Owner or anyone
else. All representations and warranties made by the Owner and
Allstate Life in this Agreement shall be considered to have been
relied upon by the other and shall survive the execution hereof.
5. Assignment of Agreement
This Agreement may not be transferred or assigned by the Owner without the
express written consent of Allstate Life. Allstate Life shall maintain a
record of the ownership of this Agreement as part of its books and records.
Notwithstanding anything in this Agreement to the contrary, no transfer or
assignment of an interest in this Agreement or any right to receive
payments under this Agreement shall be effective until Allstate Life shall
have affirmed in writing to the new Owner or a financial institution
holding this Agreement on behalf of the new Owner that it has changed its
books and records to reflect such transfer or assignment of an interest in
this Agreement or any right to receive payments hereunder. Allstate Life
covenants, and the Owner agrees, that Allstate Life will effect all
transfers and assignments of this Agreement only through a book entry
system maintained by Allstate Life within the meaning of Treasury
Regulation Section 1.871-14 (c)(1)(i).
6. Tax Treatment
Allstate Life and the Owner agree that this Agreement shall be disregarded
for United States federal income tax purposes. Allstate Life and the Owner
further agree that if this Agreement is not so disregarded, it will and is
intended to be treated as a debt obligation of Allstate Life issued in
registered form within the meaning of Treasury Regulation Section
1.871-14(c)(1)(i).
7. Notice Required
Any notice, directive, certificate or other writing required by the
provisions of this Agreement to be delivered to Allstate Life shall be
delivered in writing by prepaid first class mail or courier or facsimile
transmission to its principal office at Allstate Life Insurance Company,
3100 Sanders Road, Northbrook, Illinois 60062 Attn: M3A. Any notice,
directive, certificate or other writing required under this Agreement to be
delivered to the Owner shall be delivered in writing by prepaid first class
mail or courier or facsimile transmission to the Owner at its principal
place of business. Unless otherwise specified in this Agreement, any notice
is effective when received.
8. Authority to Bind Allstate Life
No agent has authority to change, modify or add to this Agreement or to
waive any of its provisions. No change, modification, addition to, or
waiver of any provision of this Agreement shall be valid as against
Allstate Life unless evidenced by written modification or amendment hereto
signed on behalf of Allstate Life by the President and Secretary of
Allstate Life.
9. Amendment and Modification
This Agreement may be amended or modified with respect to any provision at
any time and from time to time by written agreement between the Owner and
Allstate Life. No such amendment or modification shall require the consent
of any other person.
10. Payments to the Owner
Allstate Life shall withdraw from the Funding Account and pay to or at the
direction of the Owner amounts in accordance with the terms set forth in
the Annex hereto.
All payments made by Allstate Life to the Owner hereunder shall be paid in
cash, in same-day, freely transferable funds on the date of payment to such
account as has been specified for such purpose in writing by the Owner to
Allstate Life.
11. Additional Amounts.
(i) All payments due to be made by Allstate Life to the Owner under the
terms of this Agreement will be made without any withholding or
deduction for or on account of any present or future taxes, duties,
levies, assessments or governmental charges of whatever nature imposed
or levied by or on behalf of any governmental authority in the United
States having the power to tax, unless such withholding or deduction
is required by law.
12. Termination of Agreement
(a) This Agreement shall terminate and cease to be of any further force or
effect at the close of the first day upon which Allstate Life and the
Owner have completed all of the duties and obligations which have
arisen under this Agreement.
(b) Each of the following events shall constitute an "Event of Default"
under this Agreement:
(i) default in the payment when due and payable of any Principal Amount;
or
(ii) default in the payment of any interest accrued with respect to the
Funding Account Balance pursuant to the provisions of this Agreement
when such amounts become due and payable, and continuance of such
default for a period of five Business Days; or
(iii)Allstate Life fails, is unable, or Allstate Life admits in writing
its inability, generally to pay its debts as such debts become due; or
the Board of Directors of Allstate Life adopts any action to approve
or for the purpose of effecting any of the actions referred to in this
paragraph (iii); or
(iv) default in the performance or breach of any one or more of the other
covenants of Allstate Life herein, and continuance of such default or
breach for a period of 45 days after there has been given notice
thereof to Allstate Life; or
(v) a court having jurisdiction in the premises has entered a decree or
order for relief in respect of Allstate Life in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect of the United States of America or any other
applicable jurisdiction which decree or order is not stayed; or any
other similar relief has been granted under any applicable law; or
(vi) an insolvency case has been commenced against Allstate Life under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect in the United States of America or any other
applicable jurisdiction and such case shall not have been dismissed or
stayed, in each case within 45 days, or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, rehabilitator, conservator, sequestrator, trustee,
custodian or other officer having similar powers over Allstate Life,
or over all or a substantial part of its property, has been entered;
or there has occurred the involuntary appointment of an interim
receiver, trustee or other custodian of Allstate Life, for all or a
substantial part of its property; or a court having jurisdiction in
the premises has entered a decree or order declaring the dissolution
of Allstate Life; or a warrant of attachment, execution or similar
process has been issued against any substantial part of the property
of Allstate Life; or
(vii)the Director of the Illinois Department of Insurance or any other
insurance supervisor having jurisdiction over Allstate Life shall have
issued any order under the Illinois Insurance Code or other applicable
insurance law to rehabilitate, liquidate, or conserve the assets of,
or take other similar action with respect to, Allstate Life; or
(viii) Allstate Life commences a voluntary case or other proceeding seeking
liquidation, dissolution, reorganization or other relief with respect
to itself or its debts under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect in the United States of
America (or any state thereof) or any other applicable jurisdiction,
or seeking the appointment of a receiver, liquidator, rehabilitator,
sequestrator, conservator or other similar officer of Allstate Life or
any substantial part of its property, or consents to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or consents
to the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property; or
Allstate Life makes any general assignment for the benefit of
creditors.
If one or more Events of Default shall have occurred and be continuing
(other than an Event of Default specified in any of clause (iii)
through (viii) above), the Owner may, by written notice to Allstate
Life, declare the Funding Account Balance to be due and payable and
such amounts shall become due and payable on the date the written
declaration is given to Allstate Life; provided that if an Event of
Default specified in any of clauses (iii) through (viii) above occurs,
the Funding Account Balance will be automatically and immediately due
and payable without any declaration or other act on the part of the
Owner; provided that, without affecting the obligation of Allstate
Life to repay such amounts, no such repayment shall be made in
preference to other policyholders of Allstate Life.
Allstate Life will forthwith notify the Owner of the occurrence of any
Event of Default.
Upon the payment to the Owner of the Funding Account Balance, this
Agreement shall terminate.
13. Supplemental Agreements
Within six months of the date of issue of this Agreement, Allstate Life may
issue to the initial Owner of this Agreement one or more additional funding
agreements and may provide in any such additional funding agreement that
such additional funding agreement shall constitute part of the same
obligation of Allstate Life as this Agreement (any such additional funding
agreement, a "Supplemental Agreement"), and such Supplemental Agreement
shall be subject to the same terms and conditions as this Agreement
(including those set forth in the Funding Agreement Pricing Annex), except
that the Effective Date, the Deposit Amount, the Principal Amount and the
amount of the first interest payment, if any, may be different with respect
to such Supplemental Agreement; provided that the issuance of such
Supplemental Agreement will satisfy the conditions of Treasury Regulation
Section 1.1275-2(k)(2)(ii) and will constitute a "Qualified Reopening"
under Treasury Regulation Section 1.1275-2(k)(3)(ii) without regard to
subparagraph (A) thereof.
ALLSTATE LIFE GLOBAL FUNDING* ALLSTATE LIFE INSURANCE COMPANY
/s/ Casey J. Sylla
- ------------------------------------------------- ---------------------------------------------------------
Owner Casey J. Sylla
President
*By: Wilmington Trust Company, not in its individual capacity but solely as
Delaware Trustee and, as such, the agreements, representations and warranties
made by the Owner hereunder shall be binding only upon the Owner and Wilmington
Trust Company shall incur no personal liability in connection with any such
agreements, representations or warranties of the Owner.
/s/ Charisse L. Rodgers /s/ Michael J. Velotta
- ------------------------------------------------- ---------------------------------------------------------
Charisse L. Rodgers Signature Michael J. Velotta
Vice President Senior Vice President, General Counsel and Secretary
- -------------------------------------------------
Title
This Agreement is
executed on behalf of
Allstate Life
Insurance Company at
Northbrook, Illinois.
September 22, 2004
- -------------------------------------------------
Date
ALLSTATE LIFE INSURANCE COMPANY
FUNDING AGREEMENT PRICING ANNEX
THE SPECIFICATIONS HEREIN APPLY ONLY TO THIS ANNEX:
Owner of Funding Agreement: Allstate Life Global Funding, its Successors or Assignees
Agreement No.: FA-41074
Effective Date: September 22, 2004
Agreement Period: This Agreement shall be in effect from the Effective Date until the
Maturity Date (as defined below)
The "Maturity Date" of this Agreement
will be the earlier of (i) September
22, 2009 or (ii) such other date on
which this Agreement is terminated in
accordance with Section 12 hereof;
provided that, if such day is not a
Business Day, the Maturity Date shall
be the next succeeding Business Day,
but no additional interest will accrue
in respect of the payment made on that
next succeeding Business Day.
Deposit Amount: $249,400,000
Principal Amount: $250,000,000
Currency: U.S. Dollars
Business Day: Any day, other than a Saturday or
Sunday, that is neither a legal
holiday nor a day on which commercial
banks are authorized or required by
law, regulation or executive order to
close in The City of New York and
London.
Business Day Convention: Unless otherwise specified in this Agreement, Modified Following
Business Day Convention.
"Modified Following Business Day
Convention" means that, if a relevant
payment date is a day that is not a
Business Day, such date shall be
postponed to the first following day
that is a Business Day unless that day
falls in the next calendar month, in
which case that date will be the first
preceding day that is a Business Day.
Interest Rate: LIBOR (defined below) plus the Spread determined on the second
London Banking Day preceding the Effective Date. The Interest Rate
shall be reset by Allstate Life on each Interest Reset Date after
the Effective Date to equal the three-month U.S. Dollar London
Interbank Offered Rate ("LIBOR") increased by 0.15% per annum (the
"Spread").
LIBOR shall be determined by the
Calculation Agent (as defined below)
with reference to the LIBOR Page
(defined below) at 11:00 AM London
time on the date that is two London
Banking Days prior to the date such
rate is to be reset.
If no rate appears on the particular
interest determination date on the
LIBOR Page, LIBOR shall be the rate
calculated by the Calculation Agent of
at least two offered quotations
obtained by the Calculation Agent
after requesting the principal London
offices of each of four major
reference banks in the London
interbank market to provide the
Calculation Agent with its offered
quotation for deposits in U.S. Dollars
for the period of three months,
commencing on the related Interest
Reset Date, to prime banks in the
London interbank market at
approximately 11:00 A.M., London time,
on that interest determination date
and in a principal amount that is
representative for a single
transaction in U.S. Dollars in that
market at that time.
If fewer than two offered quotations
referred to in the immediately
preceding paragraph are provided as
requested, LIBOR shall be the rate
calculated by the Calculation Agent as
the arithmetic mean of the rates
quoted at approximately 11:00 A.M., in
the City of New York, on the
particular interest determination date
by three major banks in the City of
New York selected by the Calculation
Agent for loans in U.S. Dollars to
leading European banks, for the period
of three months and in a principal
amount that is representative for a
single transaction in U.S. Dollars in
that market at that time.
If the banks so selected by the
Calculation Agent are not quoting as
mentioned in the immediately preceding
paragraph, LIBOR shall be, LIBOR in
effect on the particular interest
determination date.
"Calculation Agent" means J.P. Morgan Trust Company, National
Association, and its successors.
"Interest Period" means each
successive period beginning on, and
including an Interest Payment Date to
but excluding the immediately
succeeding Interest Payment Date or
the Maturity Date as the case may be;
provided that the initial Interest
Period will be the period from, and
including, the Effective Date to, but
excluding, the first Interest Payment
Date.
"Interest" shall be earned daily at
the Interest Rate and calculated using
the formula as provided below. The
current balance of the Principal
Amount in the Funding Account Balance
shall earn Interest from the Effective
Date up to, but not including, the
date the Funding Account Balance is
scheduled to be paid to the Owner.
Interest for each Interest Period
shall be calculated as,
(a)*(b)*(c), where:
(a) equals the current balance of the
Principal Amount in the Funding
Account Balance,
(b) equals the Interest Rate, and
(c) equals the actual number of days
in the Interest Period divided by 360
("Actual/360")
"Interest Reset Date" shall be 22nd of
each March, June, September and
December. The first Interest Reset
Date will be December 22, 2004. If any
Interest Reset Date would otherwise be
a day that is not a Business Day, such
Interest Reset Date will be postponed
to the next succeeding Business Day,
except that if such Business Day falls
in the next succeeding calendar month,
such Interest Reset Date will be the
immediately preceding Business Day.
The "LIBOR Page" is LIBOR Moneyline Telerate Page 3750.
"London Banking Day" means a day on
which commercial banks are open for
business (including dealings in the
LIBOR currency) in London.
Due Dates for Payment(s) to Owner:
Each Interest Payment Date and the Maturity Date.
"Interest Payment Date(s)" shall be
the 22nd day of each March, June,
September and December commencing
December 22, 2004, provided that the
final Interest Payment Date will be
the Maturity Date. If any Interest
Payment Date other than the Maturity
Date would otherwise be a day that is
not a Business Day, such Interest
Payment Date will be postponed to the
next succeeding Business Day, except
that if such Business Day falls in the
next succeeding calendar month, such
Interest Payment Date will be the
immediately preceding Business Day. If
the Maturity Date falls on a day that
is not a Business Day, the required
payment will be made on the next
succeeding Business Day, and no
additional interest will accrue in
respect of such payment made on that
next succeeding Business Day.
Additional Terms and Conditions
Relating to Periodic Payments under the
Funding Agreement:
Not Applicable
Early Termination Rights: Not Applicable
Partial Pre-Payment Rights: Not Applicable
ALLSTATE LIFE INSURANCE COMPANY
APPLICATION
Application is hereby made to Allstate Life Insurance Company by
Allstate Life Global Funding for a Funding Agreement containing the
terms set forth in the Annex attached to this Application.
This Application is executed in duplicate, one counterpart being
retained by applicant and the other returned to Allstate Life Insurance
Company.
It is agreed that this Application supersedes any previous application
for a Funding Agreement on substantially similar terms as contained in
the Annex attached to this Application.
Dated this 22nd day of September, 2004.
Allstate Life Global Funding*
(Full Name of Applicant)
*By: Wilmington Trust Company, not in its individual capacity but solely as
Delaware Trustee and, as such, the agreements, representations and warranties
made by the Owner hereunder shall be binding only upon the Owner and Wilmington
Trust Company shall incur no personal liability in connection with any such
agreements, representations or warranties of the Owner.
By: /s/ Charisse L. Rodgers
-----------------------
C-1
ANNEX A
INDENTURE TRUSTEE SERVICE
FEE SCHEDULE
As specified in a separate fee agreement.
A-A-1
ANNEX B
FUNDING NOTE INDENTURE TRUSTEE SERVICE
FEE SCHEDULE
As specified in a separate fee agreement.
B-B-1