EXHIBIT 1.2
REPRESENTATIONS AND INDEMNITY AGREEMENT
___________, 2002
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Dear Sirs:
Allstate Life Insurance Company, an Illinois stock life insurance company
(the "COMPANY"), in connection with the Allstate Life Global Funding Medium-Term
Note Program (the "PROGRAM") and in consideration of the Distribution Agreement
entered into, as of even date herewith, by and among Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and each other institution named on SCHEDULE 1
thereto (the "DISTRIBUTION AGREEMENT"), confirms its agreement with Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and each other institution named on
SCHEDULE 1 thereto (each, an "AGENT") with respect to the issue and sale by the
Trust of notes due nine months or more from the date of issuance (the "NOTES").
The Trust will use the proceeds from the sale of the Notes to purchase one or
more funding agreements (each a "FUNDING AGREEMENT") from the Company. The Notes
will be secured by the Funding Agreement(s) which will be assigned by the Trust
with respect to each series of Notes to the Indenture Trustee on behalf of the
holders of the Notes of each applicable series pursuant to the Indenture. In
connection with the sale of Notes, the Trust will prepare a Pricing Supplement
(the "PRICING SUPPLEMENT") including or incorporating by reference a description
of the terms of the Notes, the terms of the offering and a description of the
series of the Trust through which such Notes are being issued.
Capitalized terms used herein and not otherwise defined herein shall have
the meaning ascribed to them in the Distribution Agreement.
The Agents include those institutions named from time to time in SCHEDULE 1
to the Distribution Agreement and pursuant to Section 14 of this Agreement. If
any institution is appointed as an Agent only with respect to a particular
series of Notes of the Trust, such institution shall only be an Agent with
respect to such series of Notes of the Trust.
The Company has registered shares of its common stock with the Securities
and Exchange Commission (the "COMMISSION") pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "1934 ACT") on Form 10 (as
amended, if applicable, the "FORM 10") under the 1934 Act . The Company has
filed with the Commission a registration statement on Form S-3 (No.
333-________) (as amended, if applicable, the "S-3 REGISTRATION STATEMENT") for
the registration of Funding Agreements by the Company under the Securities Act
of 1933, as amended (the "1933 ACT"), and the Trust has filed with the
Commission a Registration Statement on Form S-1 (No. 333-_____) as amended, if
applicable, (as amended, if applicable, the "S-1 REGISTRATION STATEMENT") for
the registration of Notes by the Trust under the 1933 Act, and the offering
thereof in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 ACT REGULATIONS"). The X-0 Xxxxxxxxxxxx
Xxxxxxxxx, X-0 Registration Statement and Form 10 have been declared effective
by the Commission and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 ACT"), and the Company has filed
such post-effective amendments thereto as may be required prior to the Trust's
acceptance of any offer for the purchase of Notes and each such post-effective
amendment has been declared effective by the Commission. The Form 10, the S-1
Registration Statement and the S-3 Registration Statement are collectively
referred to as the "REGISTERED DOCUMENTS"; and the final prospectus and all
applicable amendments or supplements thereto (including the final prospectus
supplement and Pricing Supplement relating to the offering of Notes), in the
form first furnished to the applicable Agent for use in confirming sales of
Notes, are collectively referred to herein as the "PROSPECTUS"; provided,
however, that all references to the "S-3 Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the 1934 Act, prior to any acceptance by the Trust of
an offer for the purchase of Notes; provided, further, that if the Company or
the Trust file a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "RULE 462(b) REGISTRATION STATEMENT"),
then, after such filing, all references to the "S-1 Registration Statement" and
the "S-3 Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "PRELIMINARY PROSPECTUS" shall be deemed to refer to
any prospectus used before the S-1 Registration Statement and the S-3
Registration Statement became effective and any prospectus furnished by the
Company or Trust after the S-1 Registration Statement and S-3 Registration
Statement became effective and before any acceptance by the Trust of an offer
for the purchase of Notes which omitted information to be included upon pricing
in a form of prospectus filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations. For purposes of this Agreement, all references to the Form
10, S-1 Registration Statement, the S-3 Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement thereto shall be deemed
to include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained", "included" or "stated" (or
other references of like import) in the Form 10, S-3 Registration Statement,
Prospectus or preliminary prospectus shall be deemed to include all such
financial statements and schedules and other information which is incorporated
by reference in the Form 10, S-3 Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Form 10, Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include the filing of any document
under the 1934 Act which is incorporated by reference in the Form 10, the S-3
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Trust of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal is referred to herein as a "SETTLEMENT DATE"), and as of
any
2
time that the Registered Documents or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"REPRESENTATION DATE"), as follows:
(i) DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF THE
COMPANY. The Company is validly existing as a stock life insurance company
in good standing under the laws of the State of Illinois with corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and Form 10 and to enter into
this Agreement and consummate the transactions to be performed by the
Company as contemplated in the Prospectus; the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to comply with any of the foregoing would not result in a
material adverse change in the condition (financial or otherwise) or in the
earnings or business affairs of the Company and its subsidiaries considered
as one enterprise or on the power or ability of the Company to perform its
obligations under the Program Documents to which the Company is a party or
to consummate the transactions to be performed by the Company as
contemplated in the Prospectus (a "COMPANY MATERIAL ADVERSE EFFECT"); all
of the issued and outstanding shares of capital stock of the Company have
been duly authorized and are validly issued, fully paid and non-assessable;
and none of the outstanding shares of capital stock of the Company were
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(ii) DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF
SIGNIFICANT SUBSIDIARIES. Each significant subsidiary (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if
any (each, a "SIGNIFICANT SUBSIDIARY") is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Form 10 and Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to comply with any of the foregoing
would not result in a Company Material Adverse Effect; all of the issued
and outstanding shares of capital stock of each Significant Subsidiary has
been duly authorized and is validly issued, fully paid and non-assessable
and is 100% owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and none of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Significant Subsidiary.
(iii) S-3 REGISTRATION STATEMENT AND PROSPECTUS; FILING STATUS. The
Company meets the requirements for use of Form S-3 under the 1933 Act; the
S-3 Registration Statement (or any Rule 462(b) Registration Statement) has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the S-3 Registration Statement (or any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the
3
knowledge of the Company are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with; the Form 10 has become effective under the 1934 Act and no
stop order suspending the effectiveness of the Form 10 has been issued
under the 1934 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are threatened by the
Commission, and any request on the part of the Commission for additional
information has been complied with; the Indenture has been duly qualified
under the 1939 Act; at the respective times that the S-3 Registration
Statement (including any Rule 462(b) Registration Statement) and any
post-effective amendment thereto (including the filing of the Company's
most recent Annual Report on Form 10-K with the Commission) became
effective and at each Representation Date, the S-3 Registration Statement
(including any Rule 462(b) Registration Statement) and the Form 10 and any
amendments thereto complied and will comply in all material respects with
the applicable requirements of the 1933 Act and the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; each
preliminary prospectus and Prospectus filed as part of the S-3 Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act and the 1933 Act Regulations; each
preliminary prospectus and the Prospectus delivered to an Agent for use in
connection with the offering of Notes are identical in all material
respects to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T; and at the date hereof, at the date of the Prospectus and each
amendment or supplement thereto and at each Representation Date, neither
the Prospectus nor any amendment or supplement thereto included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to (i) statements in or omissions from the S-3
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
applicable Agents concerning such Agents expressly for use in the S-3
Registration Statement or the Prospectus or (ii) the parts of the S-3
Registration Statement which constitute the Statement of Eligibility and
Qualification (Form T-1) of the Indenture Trustee under the 1939 Act.
(iv) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and, when read together with the other information in the
Prospectus, at the date hereof, at the date of the Prospectus and at each
Representation Date, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
4
(v) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Form 10, the S-3 Registration Statement and the Prospectus are independent
public accountants to the extent required by the 1933 Act and the 1933 Act
Regulations.
(vi) COMPANY FINANCIAL STATEMENTS. The consolidated financial
statements of the Company included in the Form 10, S-3 Registration
Statement and the Prospectus, together with the related schedules and
notes, as well as those financial statements, schedules and notes of any
entity included in the Form 10, S-3 Registration Statement and the
Prospectus, present fairly the consolidated financial position of the
Company and its subsidiaries, or such other entity, as the case may be, at
the dates indicated and the consolidated statement of operations,
stockholders' equity and cash flows of the Company and its subsidiaries, or
such other entity, as the case may be, for the periods specified; such
financial statements have been prepared in conformity with GAAP applied on
a consistent basis throughout the periods involved; the supporting
schedules, if any, included in the Form 10, S-3 Registration Statement and
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein; the selected financial data and the summary
financial information included in the Form 10, S-3 Registration Statement
and the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Form 10, S-3 Registration Statement and the
Prospectus; and any pro forma consolidated financial statements of the
Company and its subsidiaries and the related notes thereto included in the
Form 10, S-3 Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(vii) NO MATERIAL CHANGES. Since the respective dates as of which
information is given in the S-3 Registration Statement, Form 10 and the
Prospectus, except as otherwise stated therein, (1) there has been no event
or occurrence that would result in a Company Material Adverse Effect and
(2) there have been no transactions entered into by the Company or any of
its Significant Subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise.
(viii) AUTHORIZATION OF THIS AGREEMENT AND EACH FUNDING AGREEMENT.
This Agreement has been and each Funding Agreement when issued will be duly
authorized, executed and delivered by the Company and will be a valid and
legally binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
5
(ix) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its subsidiaries is in violation of the provisions of its charter or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(collectively, "COMPANY AGREEMENTS AND INSTRUMENTS"), except for such
defaults that would not result in a Company Material Adverse Effect; the
execution, delivery and performance of this Agreement, each Funding
Agreement and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the
transactions contemplated in the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance and
sale of the Notes and the use of the proceeds therefrom as described in the
Prospectus) and the compliance by the Company with its obligations
thereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any of its Significant
Subsidiaries under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Company Agreements and
Instruments, nor will such action result in any violation of the provisions
of the charter, articles or by-laws of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their assets, properties or operations.
(x) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company which is required
to be disclosed in the Form 10, S-3 Registration Statement and the
Prospectus (other than as stated therein), or which may reasonably be
expected to result in a Company Material Adverse Effect, or which may
reasonably be expected to materially and adversely affect the assets,
properties or operations thereof, the performance by the Company of its
obligations under this Agreement and the other Program Documents or the
consummation of the transactions contemplated in the Prospectus; and the
aggregate of all pending legal or governmental proceedings to which the
Company is a party or of which any of its assets, properties or operations
is the subject which are not described in the Form 10, S-3 Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, may not reasonably be expected to result in a
Company Material Adverse Effect.
(xi) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "COMPANY GOVERNMENTAL LICENSES") issued by
the appropriate federal, state, local or
6
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Company Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Company Material Adverse Effect; all of the Company
Governmental Licenses are valid and in full force and effect, except where
the invalidity of such Company Governmental Licenses or the failure of such
Company Governmental Licenses to be in full force and effect would not
result in a Company Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Company Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Company Material Adverse
Effect.
(xii) NO FILINGS, REGULATORY APPROVALS ETC. Other than the filing of
the applicable financing statements, if any, no filing with, or approval,
authorization, consent, license, registration, qualification, order or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the due authorization, execution and
delivery by the Company of this Agreement, or the Program Documents or for
the performance by the Company of the transactions contemplated in this
Agreement, the Program Documents or the Prospectus, except such as have
been previously made, obtained or rendered, as applicable.
(xiii) INVESTMENT COMPANY ACT. The Company is not, and upon the sale
of the Funding Agreements and Notes as contemplated by the Program and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 ACT").
(xiv) ABSENCE OF DEFAULT UNDER EACH FUNDING AGREEMENT. There exists
no event or circumstance which does or may (with the passing of time, the
giving of notice, the making of any determination, or any combination
thereof) be reasonably expected to constitute an event of default under any
outstanding Funding Agreement.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Company and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes by the Trust to one or more Agents as
principal or through an Agent as agent shall be deemed a representation and
warranty by the Company to such Agent(s) as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company with respect to the S-3
Registration Statement, Prospectus and Form 10 will notify the Agents
immediately, and confirm such notice in writing of (i) the effectiveness of any
post-effective amendment to the S-3 Registration
7
Statement or Form 10 or the filing of any amendment or supplement to the
Prospectus (other than any amendment or supplement thereto providing solely for
the determination of the variable terms of the Notes), (ii) the receipt of any
comments from the Commission, (iii) any request by the Commission for any
amendment to the S-3 Registration Statement or Form 10 or any amendment or
supplement to the Prospectus or for additional information, or (iv) the issuance
by the Commission of any stop order suspending the effectiveness of the S-3
Registration Statement or Form 10, or of any order preventing or suspending the
use of any preliminary prospectus or Prospectus, or of the initiation of any
proceedings for that purpose. With respect to the S-3 Registration Statement,
the Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) FILING OR USE OF AMENDMENTS. The Company will give each Agent advance
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Funding Agreements, any amendment
to the S-3 Registration Statement (including any filing under Rule 462(b) of the
1933 Act Regulations) or any amendment or supplement to the prospectus included
in the S-3 Registration Statement at the time it became effective or to the
Prospectus (other than an amendment or supplement thereto providing solely for
the determination of the variable terms of the Notes), whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish to such Agents copies of any
such document a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file any such document to which an Agent or
counsel for the Agents shall object.
(c) DELIVERY OF THE S-3 REGISTRATION STATEMENT. The Company has furnished
to the Agents and to counsel for the Agents, without charge, signed and
conformed copies of the S-3 Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed and conformed copies of all consents and
certificates of experts. The S-3 Registration Statement and each amendment
thereto furnished to an Agent will be identical in all material respects to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF THE PROSPECTUS. Pursuant to the Distribution Agreement,
the Trust will deliver to each Agent, without charge, as many copies of each
preliminary prospectus as such Agent may reasonably request; the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
(e) DELIVERY OF THE FORM 10. The Company has furnished to the Agents and
to counsel for the Agents, without charge, signed and conformed copies of the
Form 10 as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed and conformed
copies of all consents and certificates of experts. The Form 10 and each
amendment thereto furnished to the Agents will be identical in all material
respects to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
8
(f) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in Section 2(j), if at any time during the term of this Agreement any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Agents or counsel for the Company to amend the
S-3 Registration Statement in order that the S-3 Registration Statement will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the opinion of any
such counsel, to amend the S-3 Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, as applicable, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers for the
purchase of Notes in their capacity as agent and to cease sales of any Notes
they may then own as principal, and the Company will promptly prepare and file
with the Commission, subject to Section 2(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the S-3 Registration Statement and Prospectus comply with such requirements, and
the Company will furnish to the Agents, without charge, such number of copies of
such amendment or supplement as the Agents may reasonably request. In addition,
the Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of each offering of Notes.
(g) PERIODIC FINANCIAL INFORMATION. Except as otherwise provided in
Section 2(j), on or prior to the date on which there shall be released to the
general public interim financial statement information related to the Company
with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal year, the
Company shall furnish such information to the Agents, confirmed in writing.
(h) AUDITED FINANCIAL INFORMATION. Except as otherwise provided in Section
2(j), on or prior to the date on which there shall be released to the general
public financial information included in or derived from the audited
consolidated financial statements of the Company for the preceding fiscal year,
the Company shall furnish such information to the Agent, confirmed in writing.
(i) REPORTING REQUIREMENTS. The Company during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(j) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be required
to comply with the provisions of Sections 2(f), 2(g) or 2(h) during any period
from the time (i) the Agents shall have suspended solicitation of offers for the
purchase of Notes in their capacity as agents pursuant to a request from the
Trust and (ii) no Agent shall then hold any Notes purchased from the Trust as
principal, as the case may be, until the time the Trust shall determine that
solicitation of offers for the purchase of Notes should be resumed or an Agent
shall subsequently purchase Notes from the Trust as principal.
9
(k) EARNINGS STATEMENTS. The Company will timely file such reports
pursuant to the 1934 Act and the 1934 Act Regulations, as are necessary in order
to make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(l) USE OF PROCEEDS. The Company will use the net proceeds received by it
from the issuance and sale of the Funding Agreements in the manner specified in
the Prospectus.
(m) AUTHORIZATION TO ACT ON BEHALF OF THE COMPANY. The Company will, from
time to time, without request, deliver to the Agents a certificate as to the
names and signatures of those persons authorized to act on behalf of the Company
in relation to the Program if such information has changed.
(n) RESTRICTIONS ON THE OFFER AND SALE OF FUNDING AGREEMENTS. Unless
otherwise agreed, the Company shall not issue or agree to issue, during the
period commencing on the date of the agreement of an Agent(s) to purchase
Notes as principal or solicit offers for the purchase of Notes as agent and
continuing to and including the Settlement Date with respect to such Notes,
any Funding Agreement or similar agreement for the purpose of supporting the
issuance by a special purpose entity of securities substantially similar to
such Notes to the same potential investors (other than any Funding Agreement
issued or to be issued to the Trust in connection with the Notes to be
offered and/or sold to or through such Agents), in each case without prior
notice to the applicable Agent(s). Notwithstanding the foregoing, the Company
shall be permitted to issue or agree to issue, during the aforementioned time
period, Funding Agreements or similar agreements to Allstate Life Funding,
LLC.
SECTION 3. COVENANTS OF THE AGENTS.
(a) The Agents shall comply with all of their obligations under the
Distribution Agreement.
(b) The Agents shall not agree to any amendment or modification of the
Distribution Agreement without the prior written consent of the Company.
SECTION 4. ADDITIONAL COVENANTS OF THE COMPANY.
The Company further covenants and agrees with each Agent as follows:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Trust of an offer for the purchase of Notes (whether to one or more Agents
as principal or through one or more Agents as agent), and each delivery of Notes
(whether to one or more Agents as principal or through an Agent as agent) shall
be deemed to be an affirmation that the representations and warranties of the
Company contained in any certificate theretofore delivered to such Agent
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to such Agent(s) or to the
purchaser or its agent, as the case may be, of the Notes relating to such
acceptance or sale, as the case may be, as though made at and as of each such
time (it being understood that such representations and warranties shall relate
to the S-3 Registration Statement and Prospectus as amended and supplemented to
each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the S-3
Registration Statement or Prospectus shall be amended or supplemented (other
than by (A) an amendment or
10
supplement providing solely for the determination of the variable terms of
the Notes and (B) an amendment deemed to have occurred as a result of a
periodic filing by the Company or the Trust under the 1934 Act or the 1934
Act Regulations, except any quarterly report of the Company or Trust on Form
10-Q or any annual report of the Company or the Trust on Form 10-K (any such
report, an "SEC PERIODIC REPORT")), (ii) (if required in connection with the
purchase of Notes from the Trust by one or more Agents as principal) the
Trust sells Notes to one or more Agents as principal or (iii) the Trust sells
Notes in a form not previously certified to the Agents by the Trust, the
Company shall furnish or cause to be furnished to the Agents, forthwith a
certificate dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form satisfactory to the Agents to the
effect that the statements contained in the certificate referred to in
Section 5(d) of the Distribution Agreement which were last furnished to the
Agents are true and correct at the time of the filing or effectiveness of
such amendment or supplement, as applicable, or the time of such sale, as the
case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the S-3 Registration Statement and
the Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to
in Section 5(d) of the Distribution Agreement, modified as necessary to
relate to the S-3 Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate (it being understood
that, in the case of clause (ii) above, any such certificate shall also
include a certification that there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise since the date of the agreement by such Agent to purchase Notes
from the Trust as principal); PROVIDED, HOWEVER, that any delivery of
certificates as required by this Section 4(b) due to the filing of an SEC
Periodic Report shall only be required to be delivered prior to the pricing
date for the series of Notes issued immediately after such SEC Periodic
Report.
SECTION 5. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT. The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls such Agent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the S-1 Registration
Statement (or any amendment thereto) or S-3 Registration Statement (or any
amendment thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or
11
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided that
(subject to Section 5(d) hereof) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Agent), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of (i) an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Agents
concerning the Agents expressly for use in the S-1 Registration Statement (or
any amendment thereto) or S-3 Registration Statement (or any amendment thereto)
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), (ii) any use of the Prospectus by the Agents to sell Notes or solicit
offers for the purchase of Notes (x) after such time as the Company shall have
provided written notice pursuant to Section 2(f) hereunder or the Trust shall
have provided written notice pursuant to Section 4(g) under the Distribution
Agreement to the Agents to cease the sale of Notes and solicitation of offers
for the purchase of Notes and (y) before such time as the Trust and the Company
shall have furnished the Agents with copies of such amendment or supplement to
the Prospectus pursuant to Section 2(f) hereunder or Section 4(g) of the
Distribution Agreement or (iii) a claim for indemnity made under the
Distribution Agreement, only to the extent such claim has previously been
satisfied by the Company pursuant to the terms of the Distribution Agreement.
(b) INDEMNIFICATION OF THE COMPANY. Each Agent agrees, severally but not
jointly, to indemnify and hold harmless the Company, its directors, officers and
trustees (if applicable) who signed the S-3 Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 5(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the S-1 Registration Statement
(or any amendment thereto) or the S-3 Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Agent concerning such Agent expressly for use
in the S-1 Registration Statement (or any amendment thereto) or the S-3
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the
12
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 5(a) hereof or Section 8(a) of the Distribution Agreement, counsel to
the indemnified parties shall be selected by the applicable Agent(s) and, in the
case of parties indemnified pursuant to Section 5(b) hereof or Section 8(b) of
the Distribution Agreement, counsel to the indemnified shall be selected by the
Company and the Trust. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties (collectively with any other indemnifying parties in connection with the
Distribution Agreement), whether such indemnity is claimed hereunder or under
the Distribution Agreement, be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
No indemnifying party under this Agreement or the Distribution Agreement,
shall, without the prior written consent of the indemnified parties under this
Agreement and the Distribution Agreement, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 5 or Section 6 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 5(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 6. CONTRIBUTION.
If the indemnification provided for in Section 5 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on one hand, and the applicable
Agent(s), on the other hand, from the offering of the Notes that were the
subject of the claim for indemnification or (ii) if the
13
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on one hand,
and the applicable Agent(s), on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by the applicable Agent(s), as the
case may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on one hand, and the applicable
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company, on one hand, or by the applicable Agent(s), on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the
Agents were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 6. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 6 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
applicable untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Trust by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 6 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Trust.
For purposes of this Section 6, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Agent, and each director,
officer and trustee (if applicable) of the Company, and each person, if any, who
controls the Company within the meaning of Section 15
14
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement,
in certificates submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Agents or any controlling person of the Agents, or by or on behalf of the
Company, and shall survive each delivery of and payment for the Notes.
SECTION 8. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement shall terminate as
follows:
(i) With respect to all Agents, automatically and simultaneously
with the termination of the Distribution Agreement with respect to all
Agent(s) (such termination shall be effective immediately);
(ii) With respect to all Agents, at any time at the option of the
Company, if the Distribution Agreement is amended or supplemented without
the Company's prior written consent (such termination shall be effective
immediately upon exercise of such option);
(iii) With respect to the applicable Agent(s), at any time at the
option of the Company, if any use of the Prospectus by the applicable
Agent(s) to sell Notes or solicit offers for the purchase of Notes occurs
(x) after such time as the Company shall have provided written notice
pursuant to Section 2(f) hereunder or the Trust shall have provided written
notice pursuant to Section 4(g) of the Distribution Agreement to the
applicable Agent(s) to cease the sale of Notes and solicitation of offers
for the purchase of Notes and (y) before such time as the Company shall
have furnished the applicable Agent(s) with copies of such amendment or
supplement to the Prospectus pursuant to Section 2(f) hereunder or Section
4(g) of the Distribution Agreement (such termination shall be effective
immediately upon exercise of such option); or
(iv) With respect to the applicable Agent(s), at any time at the
option of the Company, if the applicable Agent(s) is added or deleted as a
party to this Agreement without the prior written consent of the Company
(such termination shall be effective immediately upon exercise of such
option).
(b) GENERAL. In the event of any such termination, neither party will have
any liability to the other party hereto, except that (i) the applicable Agent(s)
shall be entitled to any commissions earned in accordance with the Distribution
Agreement, (ii) if at the time of termination (a) any applicable Agent shall own
any Notes purchased by it from the Trust as principal or (b) an offer to
purchase any of the Notes has been accepted by the Trust but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 2 and 4 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 2(k) hereof, the
15
indemnity and contribution agreements set forth in Sections 5 and 6 hereof, and
the provisions of Sections 7, 10 and 11 hereof shall remain in effect.
SECTION 9. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Allstate Life Insurance Company
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Assistant Vice President, Institutional Markets
Telecopy No.: (000) 000-0000
If to the Agents:
To each Agent at the address specified in SCHEDULE 1 to the
Distribution Agreement.
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 9.
SECTION 10. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons, officers and directors referred to in Sections 5 and 6
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and said controlling persons, officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Notes shall be deemed to be a successor by
reason merely of such purchase.
SECTION 11. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER
THIS
16
AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF APPROPRIATE
JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK.
SECTION 12. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 13. Counterparts.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
SECTION 14. AMENDMENTS.
This Agreement may be amended or supplemented if, but only if, such
amendment or supplement is in writing and is signed by the Company and the
Agents. In accordance with the Distribution Agreement, the Trust may from time
to time nominate any institution as a new Agent under the Distribution Agreement
either in respect of the Program generally or in relation to a particular series
or tranche of Notes only, and upon such nomination, if not already executed,
such Agent(s) will execute a counterpart of this Agreement.
17
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement by
and between the Agents and the Trust in accordance with its terms.
Very truly yours,
ALLSTATE Life INSURANCE COMPANY
By:
---------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
[OTHER AGENTS]
18
