EXHIBIT 10.3
================================================================================
ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
ALLSTATE LIFE GLOBAL FUNDING
AND
AMACAR PACIFIC CORP.
DATED AS OF JUNE 27, 2002
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS; OTHER DEFINITIONAL PROVISIONS
SECTION 1.1. DEFINITIONS..................................................................1
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS................................................5
ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.1. APPOINTMENT..................................................................5
SECTION 2.2. ADMINISTRATIVE SERVICES......................................................5
SECTION 2.3. SUBCONTRACTING OF CERTAIN SERVICES...........................................8
ARTICLE 3
BUSINESS OF THE ISSUER; EMPLOYEES AND SUBCONTRACTORS; OFFICES
SECTION 3.1. BUSINESS OF THE ISSUER.......................................................8
SECTION 3.2. EMPLOYEES AND SUBCONTRACTORS.................................................8
ARTICLE 4
COMPENSATION; INDEMNITIES
SECTION 4.1. COMPENSATION.................................................................9
SECTION 4.2. INDEMNITIES..................................................................9
ARTICLE 5
TERM
SECTION 5.1. TERM........................................................................10
ARTICLE 6
OBLIGATION TO SUPPLY INFORMATION
SECTION 6.1. OBLIGATION TO SUPPLY INFORMATION............................................10
ARTICLE 7
THE ADMINISTRATOR'S LIABILITY; STANDARD OF CARE
SECTION 7.1. ADMINISTRATOR'S LIABILITY...................................................11
SECTION 7.2. STANDARD OF CARE............................................................11
i
ARTICLE 8
LIMITED RECOURSE TO ISSUER
SECTION 8.1. LIMITED RECOURSE TO ISSUER..................................................11
ARTICLE 9
NO RECOURSE
SECTION 9.1. NO RECOURSE.................................................................12
ARTICLE 10
RELIANCE ON INFORMATION OBTAINED FROM THIRD PARTIES
SECTION 10.1. RELIANCE ON INFORMATION OBTAINED FROM THIRD PARTIES.........................12
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. NOTICES.....................................................................12
SECTION 11.2. AMENDMENT...................................................................13
SECTION 11.3. NO JOINT VENTURE............................................................13
SECTION 11.4. ASSIGNMENT..................................................................13
SECTION 11.5. GOVERNING LAW...............................................................13
SECTION 11.6. CONSENT TO JURISDICTION.....................................................14
SECTION 11.7. WAIVER OF JURY TRIAL........................................................14
SECTION 11.8. EXECUTION IN COUNTERPARTS...................................................14
SECTION 11.9. LIMITATION OF DELAWARE TRUSTEE LIABILITY....................................14
SECTION 11.10. NO PETITION.................................................................15
SECTION 11.11. SEVERABILITY................................................................15
SECTION 11.12. ENTIRE AGREEMENT............................................................15
SECTION 11.13. ADMINISTRATOR TO PROVIDE INDENTURE TRUSTEE ACCESS TO BOOKS AND RECORDS......15
SECTION 11.14. NO WAIVER...................................................................15
SECTION 11.15. REMEDIES CUMULATIVE.........................................................15
Exhibit A Administration Fees
ii
THIS
ADMINISTRATIVE SERVICES AGREEMENT (this "
ADMINISTRATIVE SERVICES
AGREEMENT") dated as of June 27, 2002 between
Allstate Life Global Funding, a
statutory business trust organized in series under the laws of the State of
Delaware and acting hereunder with respect to each series of the statutory
business trust (the "ISSUER"), and AMACAR Pacific Corp., as administrator (in
such capacity, the "ADMINISTRATOR").
WHEREAS, the Issuer desires to establish a program (the "PROGRAM") for
the issue from time to time of senior secured notes to be issued in one or more
series (the "NOTES"), each to be secured by the related collateral;
WHEREAS, in connection with the issue of the Notes under the Program,
the Issuer desires to enter into the Indenture with the Indenture Trustee;
WHEREAS, the Issuer and the Administrator intend to amend and restate
this
Administrative Services Agreement on or after the date that the Indenture
is signed;
WHEREAS, the Issuer has requested that the Administrator provide
advice and assistance to the Issuer generally and with respect to each series of
the Issuer and perform various services for the Issuer generally and with
respect to each series of the Issuer; and
WHEREAS, the Issuer desires to avail itself of the experience, advice
and assistance of the Administrator and to have the Administrator perform
various financial, statistical, accounting and other services for the Issuer,
and the Administrator is willing to furnish such services on the terms and
conditions herein set forth.
NOW THEREFORE, in consideration of the premises and covenants set
forth in this
Administrative Services Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS; OTHER DEFINITIONAL PROVISIONS
SECTION 1.1 DEFINITIONS. The following terms, as used herein,
have the following meanings:
"ADMINISTRATION FEE" has the meaning ascribed in Section 4.1.
"
ADMINISTRATIVE SERVICES AGREEMENT" means this instrument as
originally executed or as the same may be amended, modified, restated,
supplemented and/or replaced from time to time.
"ADMINISTRATOR" has the meaning ascribed in the first paragraph of
this
Administrative Services Agreement.
"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
A-1
"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" means any of the agents appointed by the Issuer to sell the
Notes.
"ASSIGNED DOCUMENTS" means, with respect to any series of Notes, each
Funding Agreement from time to time issued by the Funding Agreement Provider and
securing such series of Notes, whether owned at the time of issuance of such
series of Notes or thereafter acquired by the Issuer and such other agreements,
instruments or other documents (if any), as may be specified or contemplated in
a Note Certificate or Supplemental Indenture relating to such series of Notes.
"BOOK-ENTRY NOTE" means a Note issued in book-entry form.
"CERTIFICATED NOTE" means a Note issued in certificated form.
"CLEARING CORPORATION" means, with respect to any series of Notes, any
of DTC, Euroclear, Clearstream, Luxembourg or any other clearing system
specified in the applicable pricing supplement and their respective successors
and "CLEARING CORPORATIONS" means all of the foregoing.
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking S.A., formerly
known as Cedelbank S.A., and its successors.
"COMMISSION" has the meaning ascribed in Section 2.2(d).
"DELAWARE TRUSTEE" means Wilmington Trust Company, not in its
individual capacity but solely as trustee, and its successors.
"DEPOSITARY" shall mean, with respect to the Notes of any series
represented by one or more Global Securities, the Clearing Corporation or its
agent or nominee designated as Depositary by the Indenture Trustee until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "DEPOSITARY" as used with respect to the Notes of any such
series shall mean the Depositary with respect to the Notes of that series.
"DISTRIBUTION AGREEMENT" means the distribution agreement to be
entered into by and among the Agents and the Issuer, as such agreement may be
amended, modified, restated, supplemented and/or replaced from time to time.
"DTC" means The Depository Trust Company and its successors.
"EUROCLEAR" means Euroclear Bank S.A./N.V., and its successors, as
operator of the Euroclear System.
2
"FUNDING AGREEMENT" means each funding agreement between the Funding
Agreement Provider and Issuer issued from time to time by the Funding Agreement
Provider up to the principal amount or amounts as may from time to time be
authorized by the Funding Agreement Provider and subsequently assigned by the
Issuer to the Indenture Trustee, as any of the same shall be amended from time
to time.
"FUNDING AGREEMENT PROVIDER" means Allstate Life Insurance Company, a
life insurance company organized under the laws of the State of Illinois.
"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 of any series, 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 of any
series.
"INDENTURE" means the indenture to be entered into between the Issuer
and Bank One, National Association before any Notes are issued, as the same may
be amended, modified, restated, supplemented and/or replaced from time to time.
"INDENTURE TRUSTEE" means Bank One, National Association and its
successors.
"ISSUER" has the meaning ascribed in the first paragraph of this
Administrative Services Agreement.
"LICENSE AGREEMENT" means the license agreement to be entered into
between Allstate Insurance Company and the Issuer, as the same may be amended,
modified, restated, supplemented and/or replaced from time to time.
"LOSS AND EXPENSE" has the meaning ascribed in Section 4.2.
"NOTE CERTIFICATE" means each Global Security and each Certificated
Note.
"PAYING AGENT" means the Indenture Trustee.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, business trust or other organization, whether or not
a legal entity, and any government or any agency or political subdivision
thereof.
"PROGRAM DOCUMENTS" means each Note Certificate, the Indenture, the
Trust Agreement, this
Administrative Services Agreement, the Distribution
Agreement, the
3
Support and Expenses Agreement, each Supplemental Indenture, the License
Agreement and each Funding Agreement.
"RATING AGENCY" means any "nationally recognized statistical rating
organization" (as such term is defined in Rule 436(g)(2) of the Securities Act).
"REASONABLE CAUSE" means (i) the failure or inability of the
Administrator to perform any obligations it may have hereunder for any reason or
(ii) the existence of facts or circumstances which, in the exclusive opinion of
the Delaware Trustee, make it unlikely that the Administrator will be able to
perform any such obligations, including, but not limited to, the Administrator
being adjudged bankrupt or insolvent, the appointment of a receiver for the
Administrator or for its property, or the taking charge or control by any public
officer of the Administrator or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation.
"REGISTRAR" means, initially, the Indenture Trustee.
"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 Issuer, 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 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 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.
"SUPPLEMENTAL INDENTURE" means the indenture that the Issuer and
Indenture Trustee may from time to time enter into pursuant to the Indenture.
"SUPPORT AND EXPENSES AGREEMENT" means that certain support and
expenses agreement dated as of June 27, 2002 by and between the Funding
Agreement Provider and the Issuer, as the same may be amended from time to time.
"TRUST AGREEMENT" means that certain Trust Agreement dated as of June
24, 2002 establishing the Issuer, as such agreement may be amended, modified,
restated, supplemented and/or replaced from time to time.
4
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS. For all purposes of
this
Administrative Services Agreement except as otherwise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Article 1 shall have the meanings
ascribed to them in this Article 1 and shall include the plural
as well as the singular;
(b) the words "include", "includes" and "including" shall be
construed to be followed by the words "without limitation";
(c) Article and Section headings are for the convenience of the
reader and shall not be considered in interpreting this
Administrative Services Agreement or the intent of the parties
hereto;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Administrative Services Agreement as
a whole and not to any particular Article, Section or other
subdivision; and
(e) references herein to Articles, Sections and Exhibits shall,
unless otherwise specified, refer respectively to Articles,
Sections and Exhibits hereof.
ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.1 APPOINTMENT. Pursuant to Section 3806(b)(7) of the
Delaware Business Trust Act, the Administrator is hereby appointed, as an agent
of the Issuer generally and with respect to each series of the Issuer with full
power and authority, and agrees to carry out all of the duties and
responsibilities (a) of the Issuer generally and with respect to each series of
the Issuer under the Program Documents and Assigned Documents and any other
document to which the Issuer generally or with respect to any series of the
Issuer is a party and (b) of the Administrator hereunder as contemplated by and
pursuant to this Administrative Services Agreement.
SECTION 2.2 ADMINISTRATIVE SERVICES. Without limiting the
generality of Section 2.1, the Issuer hereby expressly authorizes and empowers
the Administrator, as its agent, to perform, and the Administrator hereby
expressly agrees to perform, the following services:
(a) subject to the timely receipt of all necessary information,
requests, notices or direction, as the case may be, providing, or
causing to be provided, all clerical, bookkeeping and other
services necessary and appropriate for the administration of the
Issuer including, without limitation, the following services:
5
(i) maintenance of all books and records of the Issuer and
each series of the Issuer relating to the fees, costs and
expenses of the Issuer and each series of the Issuer,
which books and records shall be maintained separately
for each series of the Issuer and from those of the
Administrator;
(ii) maintenance of records of cash payments and disbursements
(excluding principal and interest on any Funding
Agreement) of the Issuer and each series of the Issuer in
accordance with generally accepted accounting principles
as determined in consultation with the accountants for
the Issuer, and preparation for audit of such periodic
financial statements as may be necessary or appropriate;
(iii) upon request, preparation for execution by a Responsible
Officer of the Issuer of amendments to, and waivers
under, the Program Documents, the Assigned Documents and
any other documents or instruments deliverable by the
Issuer thereunder or in connection therewith;
(iv) holding, maintaining, and preserving executed copies of
the Program Documents, the Assigned Documents and other
documents or instruments executed by the Issuer
thereunder or in connection therewith, which shall be
maintained separately from those of the Administrator;
(v) upon receipt of notice, taking such action as may be
reasonably necessary to enforce the performance by the
other parties to agreements to which the Issuer is a
party and enforcing the obligations of those parties to
the Issuer under such agreements;
(vi) upon request, preparing for execution by a Responsible
Officer of the Issuer of such notices, consents,
instructions and other communications that the Issuer may
from time to time be required or permitted to give under
the Program Documents, the Assigned Documents and any
other document to which the Issuer generally or with
respect to any series of the Issuer is a party;
(vii) obtaining services of outside counsel, accountants and/or
other service providers on behalf of the Issuer;
(viii) preparing for execution by a Responsible Officer, demands
and Issuer's certificates relating to payment of any
amounts due and owing by the Issuer under the Program
Documents, the
6
Assigned Documents and any other document to which the
Issuer is a party provided that the foregoing shall not
obligate the Administrator to advance any of its own
monies for such purpose; it being understood that such
amounts shall only be payable to the extent assets of the
Issuer are available therefor and at such times and in
such amounts as shall be permitted by the Program
Documents or the Assigned Documents;
(ix) preparing for execution by a Responsible Officer, demands
and Issuer's certificates relating to payment of any
amounts due and owing by the Issuer to the Indenture
Trustee, the Paying Agent, the Registrar and other agents
of the Issuer on request for all expenses, disbursements
and advances; PROVIDED, that the foregoing shall not
obligate the Administrator to advance any of its own
monies for such purpose; it being understood that such
amounts shall only be payable to the extent assets of the
Issuer are available therefor and at such times and in
such amounts as shall be permitted by the Program
Documents or the Assigned Documents; and
(x) taking such other administrative actions as may be
incidental or reasonably necessary to the accomplishment
of the actions of the Administrator authorized in this
Section 2.2(a) or, upon receipt of notice directing the
Administrator to do so, to the accomplishment of the
duties and responsibilities of the Issuer under the
Program Documents, the Assigned Documents and any other
document to which the Issuer is a party to the extent not
otherwise the responsibility of the Indenture Trustee,
the Delaware Trustee, a Paying Agent or the Registrar;
(b) upon the issuance of a series of Notes, directing the Indenture
Trustee to pay the expenses of the Issuer relating to such series
of Notes;
(c) performing the administrative services to ensure compliance with
all of the obligations, representations, covenants and agreements
of the Issuer set forth in the Trust Agreement;
(d) subject to the timely receipt of all necessary information,
requests, notices or direction, as the case may be, filing with
the Securities and Exchange Commission (the "COMMISSION") and
executing, in each case on behalf of the Issuer, (a) a
registration statement on Form S-3 or other appropriate form,
including the prospectus and the exhibits included therein, any
pre-effective or post-effective amendments thereto and any
registration statements filed subsequent thereto under rules
promulgated under the Securities Act of 1933, as amended (the
"1933 ACT"), relating to the registration of the Notes and any
other
7
securities under the 1933 Act, (b) any preliminary prospectus or
prospectus or supplement thereto relating to any Notes required
to be filed pursuant to the 1933 Act, and (c) registration
statements and such other documents, forms or filings as may be
required by the 1933 Act, the Securities Exchange Act of 1934, as
amended, or the Trust Indenture Act of 1939, as amended, or other
securities laws in each case relating to any Notes; (ii) filing
and executing on behalf of the Issuer such filings, applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
may be necessary or desirable to register, or establish the
exemption from registration of, any Notes under the securities or
"Blue Sky" laws of any relevant jurisdictions; and (iii)
executing and delivering letters or documents to, or instruments
for filing with, a depository relating to any Notes; and
(e) undertaking such other administrative services as may be
reasonably requested by the Issuer or the Delaware Trustee,
including obtaining and maintaining the listing of the Notes on
any stock exchange and causing the preparation by the Issuer of
any prospectus, pricing supplement, private placement memoranda,
offering circular or supplement thereto, in connection with the
performance by the Issuer of its obligations under the Program
Documents, the Assigned Documents or any other document to which
the Issuer is a party or other documents executed thereunder or
in connection therewith.
SECTION 2.3. SUBCONTRACTING OF CERTAIN SERVICES. Notwithstanding
the foregoing and the provisions of Article 3, the Administrator shall have the
right to enter into one or more contracts with one or more other Persons to
perform the services set forth in Section 2.2(a)(i)-(ii), Section
2.2(a)(viii)-(ix) and in Section 2.2(b) of this Administrative Services
Agreement, in each case subject to the prior written approval of the Funding
Agreement Provider, such approval not to be unreasonably withheld or delayed.
Whether or not any such contract is entered into and unless the Administrator
agrees otherwise, the Administrator shall not be liable for any costs, fees or
expenses related to the provision of the services set forth in Section
2.2(a)(i)-(ii), Section 2.2(a)(viii)-(ix) and in Section 2.2(b) of this
Administrative Services Agreement.
ARTICLE 3
BUSINESS OF THE ISSUER; EMPLOYEES AND SUBCONTRACTORS; OFFICES
SECTION 3.1. BUSINESS OF THE ISSUER. The Administrator agrees to
carry out and perform the day to day business activities (as set forth in
Section 2.2 hereof) of the Issuer in the name and on behalf of the Issuer as its
agent.
SECTION 3.2. EMPLOYEES AND SUBCONTRACTORS.
8
(a) Except as otherwise provided in Section 2.3 of this
Administrative Services Agreement, all services to be furnished
by the Administrator under this Administrative Services Agreement
may be (i) furnished by an officer or employee of the
Administrator, an officer or employee of any Affiliate of the
Administrator, or any other Person or agent designated by it or
(ii) subcontracted by the Administrator; PROVIDED, that prior
written notice is given to the Delaware Trustee of such
subcontract; PROVIDED, FURTHER, that the Administrator shall
remain ultimately responsible for the provision of such services
unless such services are subcontracted to accountants, legal
counsel or other service providers selected with due care by the
Administrator, in which case the Administrator, in the absence of
gross negligence or bad faith by the Administrator, shall not be
responsible for their actions or failure to act.
(b) Except as set forth in Article 4, no director, officer, employee
or Affiliate of the Administrator shall receive from the Issuer a
salary or other compensation.
(c) The Administrator agrees to provide office space, together with
appropriate materials and any necessary support personnel, for
the day to day business activities of the Issuer.
ARTICLE 4
COMPENSATION; INDEMNITIES
SECTION 4.1. COMPENSATION. The Issuer agrees to pay the
Administrator the fees set forth in Exhibit A hereto (the "ADMINISTRATION FEE").
SECTION 4.2. INDEMNITIES. To the fullest extent permitted under
applicable law and subject to limitations imposed by public policy, the Issuer
agrees to indemnify the Administrator, and hold the Administrator harmless, from
and against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, out-of-pocket costs and
expenses (including, without limitation, interest and reasonable attorneys fees,
but excluding costs and expenses attributable solely to administrative overhead)
arising out of, in connection with, or resulting from the exercise of the
Administrator's rights and/or the performance of the Administrator's duties, by
the Administrator or its agents and employees, hereunder (collectively, "LOSS
AND EXPENSE"); provided, however, that, except as set forth in the last proviso
of this Section 4.2, the Issuer shall not be liable to indemnify the
Administrator, or hold the Administrator harmless, from and against any and all
Loss and Expense resulting from or attributable to the gross negligence (or
ordinary negligence in the handling or disbursement of funds), bad faith or
willful misconduct of the Administrator; provided, further, that with respect
only to Losses and Expenses incurred by the Administrator in connection with the
performance of the services contemplated in Section 2.2(d) of this
Administrative Services Agreement, the Issuer shall not be liable to indemnify
the Administrator, or hold the Administrator harmless,
9
from and against any and all Loss and Expense resulting from or attributable to
the bad faith or willful misconduct of the Administrator.
ARTICLE 5
TERM
SECTION 5.1. TERM.
(a) The Administrator may terminate this Administrative Services
Agreement upon at least 30 days' prior written notice to the
Issuer and the Issuer may terminate this Administrative Services
Agreement for Reasonable Cause upon at least 30 days' prior
written notice to the Administrator (copies of any notice of
termination shall also be sent to the Indenture Trustee). Such
termination will not become effective until (a) the Issuer
appoints a successor Administrator, (b) the successor
Administrator accepts such appointment, (c) the Administrator has
obtained the prior written confirmation of any Rating Agency then
rating the Program or any series of the Notes that such action
will not result in a reduction or withdrawal of its then current
ratings, if any, of the Program and/or any series of the Notes as
applicable and (d) the Issuer has paid all accrued and unpaid
amounts owed to the Administrator under this Administrative
Services Agreement.
(b) Notwithstanding the provisions of Section 5.1(a) and
notwithstanding compliance with any of the conditions associated
with the termination provisions set forth in Section 5.1(a), the
Administrator shall have the right to terminate this
Administrative Services Agreement if the Administrator has not
approved the Program Documents (not including each Note
Certificate, each Supplemental Indenture and each Funding
Agreement) on or before September 30, 2002 or if the Funding
Agreement Provider has not provided the approval contemplated in
Section 2.3 on or before September 30, 2002. In the event of the
termination of this Administrative Services Agreement pursuant to
this Section 5.1(b), the Administrator shall be entitled to
receive from the Issuer any accrued and outstanding fees or
reimbursements due to the Administrator for its performance of
services pursuant to this Administrative Services Agreement prior
to such termination.
ARTICLE 6
OBLIGATION TO SUPPLY INFORMATION
SECTION 6.1. OBLIGATION TO SUPPLY INFORMATION. The Issuer hereby
authorizes the Delaware Trustee to forward to the Administrator any information
which is in the possession of the Issuer in connection with the Program
Documents, the Assigned
10
Documents and this Administrative Services Agreement as the Administrator may
from time to time reasonably request in connection with the performance of its
obligations hereunder. The Administrator will (a) hold and safely maintain all
records, files, Program Documents, Assigned Documents and other material of the
Issuer and (b) permit the Issuer, the Delaware Trustee, and each of their
respective officers, directors, agents and consultants on reasonable notice, at
any time, and from time to time during normal business hours, to inspect, audit,
check and make abstracts from the accounts, records, correspondence, documents
and other materials of the Issuer, or relating to the provision of services and
facilities under this Administrative Services Agreement.
ARTICLE 7
THE ADMINISTRATOR'S LIABILITY; STANDARD OF CARE
SECTION 7.1. ADMINISTRATOR'S LIABILITY. The Administrator assumes
no liability for anything other than the services rendered and the facilities
provided by it pursuant to Articles 2 and 3 hereof and neither the Administrator
nor any of its directors, officers, employees or Affiliates shall be responsible
for any action of the Issuer, the Delaware Trustee, the Funding Agreement
Provider or the officers or employees thereof taken outside the scope of
Articles 2 and 3 hereof and without direction from the Administrator. Without
limiting the generality of the foregoing, it is agreed that the Administrator
assumes no liability with respect to any of the Issuer's obligations under the
Program Documents.
SECTION 7.2. STANDARD OF CARE. The Administrator shall not be
required to perform, endeavor to perform or agree to perform any act on behalf
of the Issuer not specifically required or permitted under the Program Documents
or the Assigned Documents. The Administrator shall perform its duties hereunder
diligently, in conformity with the Issuer's obligations under the Program
Documents and the Assigned Documents, and applicable laws and regulations and in
accordance with the same standard of care exercised by a prudent person in
connection with the performance of the same or similar duties, and in no event
with less care than the Administrator exercises or would exercise in connection
with the same or similar obligations if those obligations were the direct
obligations of the Administrator.
ARTICLE 8
LIMITED RECOURSE TO ISSUER
SECTION 8.1. LIMITED RECOURSE TO ISSUER. Notwithstanding anything
to the contrary contained herein, all obligations of the Issuer hereunder shall
be payable by the Issuer only on a payment date of the Notes and only to the
extent of funds available therefor under the Indenture and, to the extent such
funds are not available or are insufficient for the payment thereof, shall not
constitute a claim against the Issuer to the extent of such unavailability or
insufficiency until such time as the Issuer has assets sufficient to pay such
prior deficiency. This Article 8 shall survive the termination of this
Administrative Services Agreement.
11
ARTICLE 9
NO RECOURSE
SECTION 9.1. NO RECOURSE. The obligations of the Issuer hereunder
are solely the obligations of the Issuer and no recourse shall be had with
respect to this Administrative Services Agreement or any of the obligations of
the Issuer hereunder or for the payment of any fee or other amount payable
hereunder or for any claim based on, arising out of or relating to any provision
of this Administrative Services Agreement against any trustee, employee,
settlor, Affiliate, agent or servant of the Issuer. The provisions of this
Article 9 shall survive the termination of this Administrative Services
Agreement.
ARTICLE 10
RELIANCE ON INFORMATION OBTAINED FROM THIRD PARTIES
SECTION 10.1. RELIANCE ON INFORMATION OBTAINED FROM THIRD PARTIES.
The Issuer recognizes that the accuracy and completeness of the records
maintained and the information supplied by the Administrator hereunder is
dependent upon the accuracy and completeness of the information obtained by the
Administrator from the parties to the Program Documents, the Assigned Documents
and other sources and, subject to Articles 4 and 7 hereof but without any duty
to conduct any independent investigation, the Administrator shall not be
responsible for any inaccurate or incomplete records maintained by the
Administrator hereunder that may result therefrom. The Administrator shall have
no duty to investigate the accuracy or completeness of any information provided
to it and shall be entitled to fully rely on all such information provided to
it.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. NOTICES. All notices, demands, instructions and other
communications required or permitted to be given hereunder shall be in writing
(including by facsimile transmission) and shall be personally delivered or sent
by guaranteed overnight delivery or by facsimile transmission (confirmed by
personal or guaranteed overnight delivery) and shall be deemed to be given for
purposes of this Administrative Services Agreement on the day that such writing
is received by the intended recipient thereof in accordance with the provisions
of this Section 11.1.
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this Section 11.1, all notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties hereto at their respective addresses (or their respective
facsimile numbers) indicated below:
12
The Issuer:
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
The Administrator:
AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
SECTION 11.2. AMENDMENT. No amendment, modification, restatement,
supplement or replacement hereof, or waiver or consent hereunder, shall be
effective unless (a) accomplished by written instrument signed by both parties
hereto and (b) the prior written confirmation of each Rating Agency then rating
the Program or any series of the Notes that such action will not result in
reduction or withdrawal of its then current ratings, if any, of the Program
and/or any series of the Notes as applicable. The Issuer shall provide each
Rating Agency then rating the Program or any series of the Notes with a copy of
each such amendment, modification, restatement, supplement or replacement
hereof, or waiver or consent hereunder.
SECTION 11.3. NO JOINT VENTURE. Nothing contained in this
Administrative Services Agreement shall constitute the Issuer and the
Administrator as members of any partnership, joint venture, association,
syndicate or unincorporated business.
SECTION 11.4. ASSIGNMENT. Except as set forth in this Section 11.4,
and subject to the rights of the Administrator to subcontract pursuant to
Section 3.2 hereof, this Administrative Services Agreement may not be assigned
by either party without (a) the prior written consent of the other party and (b)
the prior written confirmation of each Rating Agency then rating the Program or
any series of the Notes that such action will not result in a reduction or
withdrawal of its then current ratings, if any, of the Program and/or any series
of the Notes, as applicable. Subject to the foregoing, this Administrative
Services Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns. Any party's
transfer or assignment in violation of this Section 11.4 shall be void as to the
other party.
SECTION 11.5. GOVERNING LAW. This Administrative Services Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without regard to its choice of law principles.
13
SECTION 11.6. CONSENT TO JURISDICTION. Each party to this
Administrative Services Agreement submits to the nonexclusive jurisdiction of
the United States Federal court located in the City of
New York, Borough of
Manhattan for purposes of all legal proceedings arising out of or relating to
this Administrative Services Agreement or the transactions contemplated hereby.
Each party to this Administrative Services Agreement irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. Each party to this Administrative Services Agreement
consents to process being served in any suit, action or proceeding with respect
to this agreement, or any document delivered pursuant hereto by the mailing of a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested, to its respective address specified at the time for notices under
this Administrative Services Agreement or to any other address of which it shall
have given written notice to the other party. The foregoing shall not limit the
ability of any party hereto to bring suit in the courts of any other
jurisdiction.
SECTION 11.7. WAIVER OF JURY TRIAL. Each of the parties to this
Administrative Services Agreement irrevocably waives any and all right to a
trial by jury with respect to any legal proceeding arising out of or relating to
this Administrative Services Agreement or any claims or transactions in
connection herewith. Each of the parties hereto hereby acknowledge that such
waiver is made with full understanding and knowledge of the nature of the rights
and benefits waived hereby.
SECTION 11.8. EXECUTION IN COUNTERPARTS. This Administrative
Services Agreement and any amendments, modifications, restatements, supplements
and/or replacements hereof, or waivers or consents hereto, may be executed in
any number of counterparts, and by different parties hereto in separate
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, when taken together, shall
constitute one and the same instrument. This Administrative Services Agreement
shall become effective upon the execution of a counterpart by each of the
parties hereto.
SECTION 11.9. LIMITATION OF DELAWARE TRUSTEE LIABILITY.
Notwithstanding any provision hereof to the contrary, it is expressly understood
and agreed by the parties that (a) this Administrative Services Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Delaware Trustee, in the exercise of the powers and
authority conferred and vested in it pursuant to the Trust Agreement, (b) each
of the representations, undertakings and agreements herein made on the part of
the Issuer is made and intended not as personal representations, undertakings
and agreements by Wilmington Trust Company, but is made and intended for the
purpose of binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressed or implied herein, all such
liability, if any, being expressly waived by the parties hereto and by any
person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of
14
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Administrative Services Agreement or any other related
documents.
SECTION 11.10. NO PETITION. Notwithstanding any prior termination of
this Administrative Services Agreement, the Administrator as such shall not
acquiesce, petition or otherwise, directly or indirectly, invoke or cause the
Issuer to invoke the process of any governmental authority for the purpose of
commencing or sustaining a case against the Issuer under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property or ordering the winding up or
liquidation of the affairs of the Issuer for one year and one day after the last
obligation of any series of the Issuer has been paid.
SECTION 11.11. SEVERABILITY. In case one or more of the provisions
contained in, or obligation under, this Administrative Services Agreement shall
be or shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction shall
not in any way be affected or impaired thereby to the fullest extent permitted
under applicable law.
SECTION 11.12. ENTIRE AGREEMENT. This Administrative Services
Agreement constitutes the entire agreement between the parties hereto relating
to the subject matter hereof and supersedes all previous agreements between the
parties, whether written or oral.
SECTION 11.13. ADMINISTRATOR TO PROVIDE INDENTURE TRUSTEE ACCESS TO
BOOKS AND RECORDS. The Administrator shall provide the Indenture Trustee with
access to the books and records of the Issuer without charge, but only (a) upon
the reasonable request of the Indenture Trustee (for which purpose one business
day shall be deemed reasonable during the occurrence and continuation of a
default or an event of default as specified in the Indenture), (b) during normal
business hours, (c) subject to the Administrator's normal security and
confidentiality procedures and (d) at offices designated by the Administrator.
SECTION 11.14. NO WAIVER. No failure on the part of the parties
hereto to exercise, and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof or the exercise of any
other right, power or privilege operate as such a waiver.
SECTION 11.15. REMEDIES CUMULATIVE. No right, power or remedy of the
parties hereunder shall be exclusive of any other right, power or remedy, but
shall be cumulative and in addition to any other right, power or remedy
thereunder or now or hereafter existing by law or in equity.
15
IN WITNESS WHEREOF, the parties hereto have caused this Administrative
Services Agreement to be executed as of the day and year first above written.
ALLSTATE LIFE GLOBAL FUNDING, acting
hereunder with respect to each series
By: Wilmington Trust Company, not in
its individual capacity,
but solely as Delaware Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
AMACAR PACIFIC CORP.,
in its individual capacity
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
16
