Exhibit 10.1
ALLSTATE LIFE INSURANCE COMPANY
FUNDING AGREEMENT
[FA: 00000]
ALLSTATE LIFE INSURANCE COMPANY, an Illinois insurance company ("Allstate
Life"), agrees to establish a Funding Account as specified in this
agreement (this "Agreement") for [ ], (the "Owner", which term shall
include its permissible successors and assignees).
This Agreement is issued pursuant to an application (the "Application")
by the Owner, a copy of which is attached to and made a part of this
Agreement.
This Agreement is issued in and is subject to the laws of the State of
Illinois.
This Agreement is executed by Allstate Life at its principal offices
located at Northbrook, Illinois on [signing date], to take effect as of
such date (the "Effective Date").
1. Deposit Amounts
Allstate Life agrees to accept, and the Owner agrees to pay or cause to
be paid to Allstate Life, [on] [within [ ] days of] the Effective Date
the amount (the "Deposit Amount") identified in the Funding Agreement
Pricing Annex ("Annex") attached hereto.
2. Funding Account
Upon receipt of the Deposit Amount, Allstate Life will establish an
account in the name of the Owner on its books and records (the "Funding
Account") and credit such account with an amount equal to the Principal
Amount (as identified in the Annex). Allstate Life is neither a trustee
nor a fiduciary with respect to the Funding Account. All assets credited
to the Funding Account shall be the exclusive property of Allstate Life
and Allstate Life shall have the sole rights to control, manage and
administer such assets. Allstate Life may commingle such assets with its
other general account assets.
Allstate Life shall calculate and credit interest to the Funding Account
in accordance with the terms set forth in the Annex. At the end of any
day, the balance of the Funding Account (the "Funding Account Balance")
shall be equal to the Principal Amount, plus any accrued interest, less
any amounts previously withdrawn pursuant to the terms hereof.
3. Entire Agreement
This Agreement (including the Annex) and the Application constitute the
entire contract between Allstate Life and the Owner with respect to the
subject matter hereof
[FA:0205N01] [Internal Identification Number]
except for additional terms, if any, regarding any transfers or
assignments hereof made in accordance with Section 5.
4. Representations and Warranties
Each party hereto represents and warrants to the other that as of the
date hereof:
(i) it has the power to enter into this Agreement and to consummate
the transactions contemplated hereby;
(ii) this Agreement has been duly authorized, executed and delivered by
the representing party;
(iii) assuming the due authorization, execution and delivery of this
Agreement by the other party, this Agreement constitutes a legal,
valid and binding obligation of the representing party; and
(iv) this Agreement is enforceable in accordance with the terms hereof,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights and subject as to enforceability to
general principles of equity, regardless of whether enforcement is
sought in a proceeding in equity or at law.
It is understood and agreed that Allstate Life makes no representation or
warranty as to:
(i) the eligibility of the Owner to enter into or own this Agreement;
(v) any other matter regarding the Owner or any depositor, trustor,
agent or holder of any interest, instrument or security of the
Owner; or
(vi) whether any payment made under this Agreement will be subject to
withholding, deduction or reduction as a result of any tax or
similar law or regulation.
In performing its obligations hereunder, Allstate Life is not acting as a
fiduciary, agent or other representative of the Owner or anyone else. All
representations and warranties made by the Owner and Allstate Life in
this Agreement shall be considered to have been relied upon by the other
and shall survive the execution hereof.
5. Assignment of Agreement
This Agreement may not be transferred or assigned by the Owner without
the express written consent of Allstate Life. Allstate Life shall
maintain a record of the ownership of this Agreement as part of its books
and records. Notwithstanding anything in this Agreement to the contrary,
no transfer or assignment of an interest in this Agreement or any right
to receive payments under this Agreement shall be effective until
Allstate Life shall have affirmed in writing to the new Owner or a
financial institution holding this Agreement on behalf of the new Owner
that it has changed its books and records
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to reflect such transfer or assignment of an interest in this Agreement
or any right to receive payments hereunder. Allstate Life covenants, and
the Owner agrees, that Allstate Life will effect all transfers and
assignments of this Agreement only through a book entry system maintained
by Allstate Life within the meaning of Treasury Regulation Section
1.871-14 (c)(1)(i).
6. Tax Treatment
Allstate Life and the Owner agree that this Agreement shall be
disregarded for United States federal income tax purposes. Allstate Life
and the Owner further agree that if this Agreement is not so disregarded,
it will and is intended to be treated as a debt obligation of Allstate
Life issued in registered form within the meaning of Treasury Regulation
Section 1.871-14(c)(1)(i).
7. Notice Required
Any notice, directive, certificate or other writing required by the
provisions of this Agreement to be delivered to Allstate Life shall be
delivered in writing by prepaid first class mail or courier or facsimile
transmission to its principal office at Allstate Life Insurance Company,
0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 [Attn: M3A]. Any notice,
directive, certificate or other writing required under this Agreement to
be delivered to the Owner shall be delivered in writing by prepaid first
class mail or courier or facsimile transmission to the Owner at its
principal place of business. Unless otherwise specified in this
Agreement, any notice is effective when received.
8. Authority to Bind Allstate Life
No agent has authority to change, modify or add to this Agreement or to
waive any of its provisions. No change, modification, addition to, or
waiver of any provision of this Agreement shall be valid as against
Allstate Life unless evidenced by written modification or amendment
hereto signed on behalf of Allstate Life by the President and Secretary
of Allstate Life.
9. Amendment and Modification
This Agreement may be amended or modified with respect to any provision
at any time and from time to time by written agreement between the Owner
and Allstate Life. No such amendment or modification shall require the
consent of any other person.
10. Payments to the Owner
Allstate Life shall withdraw from the Funding Account and pay to or at
the direction of the Owner amounts in accordance with the terms set forth
in the Annex hereto.
All payments made by Allstate Life to the Owner hereunder shall be paid
in cash, in same-day, freely transferable funds on the date of payment to
such account as has been specified for such purpose in writing by the
Owner to Allstate Life.
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11. Additional Amounts.
All payments due to be made by Allstate Life to the Owner under the terms
of this Agreement will be made without any withholding or deduction for
or on account of any present or future taxes, duties, levies, assessments
or governmental charges of whatever nature imposed or levied by or on
behalf of any governmental authority in the United States having the
power to tax, unless such withholding or deduction is required by law.
[Subject to Section 12, if any such withholding or deduction is required
or if any such withholding or deduction is required under any
indebtedness issued by the Owner that is secured by this Agreement, then
Allstate Life will pay such additional amount ("Additional Amount") so
that the net amount realized by the Owner or the holder or beneficial
owner, as applicable, of such indebtedness ("Noteholder") (net of any
such withholding or deduction under this Agreement or any such
indebtedness) will equal the amount that would have been paid under this
Agreement or any such indebtedness had no such deduction or withholding
been required.
Notwithstanding anything herein to the contrary, Allstate Life shall not
be required to make any payment of any Additional Amount in accordance
with the first paragraph of this Section 11 for or on account of
(i) any tax, duty, levy, assessment or other governmental charge
imposed which would not have been imposed but for the existence of
(i) any present or former connection between the Owner or the
Noteholder and the United States, including, without limitation,
being or having been a citizen or resident thereof, or having been
present, having been incorporated in, having engaged in a trade or
business or having (or having had) a permanent establishment or
principal office therein, (ii) the Owner's or such Noteholder's
status as a controlled foreign corporation for United States
federal income tax purposes within the meaning of Section 957(a)
of the Internal Revenue Code of 1986, as amended (the "Code")
related within the meaning of Section 864(d)(4) of the Code, to
Allstate Life, (iii) the Owner or such Noteholder being a bank for
United States federal income tax purposes whose receipt of
interest under this Agreement is described in Section 881(c)(3)(A)
of the Code, (iv) the Owner or such Noteholder actually or
constructively owning 10 percent or more of the total combined
voting power of all classes of stock of Allstate Life entitled to
vote within the meaning of Section 871(h)(3) of the Code and
Treasury Regulations promulgated thereunder or (v) the Owner or
such Noteholder being subject to income tax withholding or backup
withholding as of the date of purchase by the Owner or such
Noteholder;
(ii) any tax, duty, levy, assessment or other governmental charge
imposed which would not have been imposed but for the presentation
of this Agreement or any such indebtedness referred to above
(where presentation is required) for payment on a date more than
30 days after the date on which such payment becomes due and
payable or the date on which payment is duly provided for,
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whichever occurs later;
(iii) any tax, duty, levy, assessment or other governmental charge which
is imposed or withheld solely by reason of the failure of the
Owner or a Noteholder to comply with certification, identification
or information reporting requirements concerning the nationality,
residence, identity or connection with the United States of the
Owner or a Noteholder, if compliance is required by statute, by
regulation, judicial or administrative interpretation, or by an
applicable income tax treaty to which the United States is a party
as a condition to exemption from such tax, duty, levy, assessment
or other governmental charge;
(iv) any inheritance, gift, estate, personal property, sales or
transfer tax;
(v) any tax that is payable otherwise than by withholding from
payments with respect to this Agreement or any such indebtedness
referred to above;
(vi) any tax, duty, levy, assessment or other governmental charge
imposed by reason of payments on this Agreement being treated as
contingent interest described in Section 871(h)(4) of the Code for
United States federal income tax purposes, but only to the extent
such treatment was disclosed in writing to the Owner or a
Noteholder, as the case may be, at the time the Owner or such
Noteholder became the Owner or a Noteholder, as the case may be;
(vii) any tax, duty, levy, assessment or other governmental charge that
would not have been imposed but for an election by the Owner or a
Noteholder, the effect of which is to make payment in respect of
this Funding Agreement subject to Untied States federal income
tax; or
(viii) any combination of items (i), (ii), (iii), (iv), (v), (vi) or
(vii) above.]
12. Termination of Agreement
(a) This Agreement shall terminate and cease to be of any further
force or effect at the close of the first day upon which Allstate
Life and the Owner have completed all of the duties and
obligations which have arisen under this Agreement.
(b) [If Allstate Life is obligated to withhold or deduct any taxes
with respect to any payment under this Agreement or pay any
Additional Amount, as described in Section 11, or with respect to
any related contract between Allstate Life and the Owner, or if
there is a material probability that Allstate Life will become
obligated to withhold or deduct any such taxes or pay any
Additional Amount (in the opinion of independent counsel selected
by Allstate Life), in each case pursuant to any change in or
amendment to any United States tax laws (or any regulations or
rulings thereunder) or any change in position of the Internal
Revenue Service regarding the application or
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interpretation thereof (including, but not limited to, Allstate
Life's receipt of a written adjustment from the Internal Revenue
Service in connection with an audit); then Allstate Life may
terminate this Agreement by giving not less than 30 and no more
than 75 days prior written notice to the Owner and by paying to
the Owner on the date specified in such notice the Funding Account
Balance and all Additional Amounts as may be required to be paid
with respect thereto pursuant to Section 11, provided that no such
notice of termination may be given earlier than 90 days prior to
the earliest day when Allstate Life would become obligated to pay
any Additional Amount, as may be required pursuant to Section 11,
if a payment in respect of this Agreement would otherwise be due
on such date.]
(c) Each of the following events shall constitute an "Event of
Default" under this Agreement:
(i) default in the payment when due and payable of any
Principal Amount; or
(ii) default in the payment of any interest accrued with respect
to the Funding Account Balance pursuant to the provisions
of this Agreement when such amounts become due and payable,
and continuance of such default for a period of five
Business Days; or
(iii) Allstate Life fails, is unable, or Allstate Life admits in
writing its inability, generally to pay its debts as such
debts become due; or the Board of Directors of Allstate
Life adopts any action to approve or for the purpose of
effecting any of the actions referred to in this paragraph
(iii); or
(iv) default in the performance or breach of any one or more of
the other covenants of Allstate Life herein, and
continuance of such default or breach for a period of 45
days after there has been given notice thereof to Allstate
Life; or
(v) a court having jurisdiction in the premises has entered a
decree or order for relief in respect of Allstate Life in
an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect
of the United States of America or any other applicable
jurisdiction which decree or order is not stayed; or any
other similar relief has been granted under any applicable
law; or
(vi) an insolvency case has been commenced against Allstate Life
under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect in the United States
of America or any other applicable jurisdiction and such
case shall not have been dismissed or
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stayed, in each case within 45 days, or a decree or order
of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, rehabilitator,
conservator, sequestrator, trustee, custodian or other
officer having similar powers over Allstate Life, or over
all or a substantial part of its property, has been
entered; or there has occurred the involuntary appointment
of an interim receiver, trustee or other custodian of
Allstate Life, for all or a substantial part of its
property; or a court having jurisdiction in the premises
has entered a decree or order declaring the dissolution of
Allstate Life; or a warrant of attachment, execution or
similar process has been issued against any substantial
part of the property of Allstate Life; or
(vii) the Director of the Illinois Department of Insurance or any
other insurance supervisor having jurisdiction over
Allstate Life shall have issued any order under the
Illinois Insurance Code or other applicable insurance law
to rehabilitate, liquidate, or conserve the assets of, or
take other similar action with respect to, Allstate Life;
or
(viii) Allstate Life commences a voluntary case or other
proceeding seeking liquidation, dissolution, reorganization
or other relief with respect to itself or its debts under
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect in the United States of America
(or any state thereof) or any other applicable
jurisdiction, or seeking the appointment of a receiver,
liquidator, rehabilitator, sequestrator, conservator or
other similar officer of Allstate Life or any substantial
part of its property, or consents to the entry of an order
for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any such
law, or consents to the appointment of or taking possession
by a receiver, trustee or other custodian for all or a
substantial part of its property; or Allstate Life makes
any general assignment for the benefit of creditors.
If one or more Events of Default shall have occurred and be
continuing (other than an Event of Default specified in any of
clause (iii) through (viii) above), the Owner may, by written
notice to Allstate Life, declare the Funding Account Balance to be
due and payable and such amounts shall become due and payable on
the date the written declaration is given to Allstate Life;
provided that if an Event of Default specified in any of clauses
(iii) through (viii) above occurs, the Funding Account Balance
will be automatically and immediately due and payable without any
declaration or other act on the part of the Owner; provided that,
without affecting the obligation of Allstate Life to repay such
amounts, no such repayment shall be made in preference to other
policyholders of Allstate Life.
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Allstate Life will forthwith notify the Owner of the occurrence of
any Event of Default.
Upon the payment to the Owner of the Funding Account Balance [and
all Additional Amounts required to be paid with respect thereto
pursuant to Section 11], this Agreement shall terminate.
[(d) If Allstate Life exercises its rights, at its sole option, to
terminate the Funding Agreement and accelerate the payment of the
Funding Account Balance in accordance with the Early Termination
Rights provisions set forth in the Annex, this Agreement shall
terminate upon the payment to the Owner of the Funding Account
Balance [and all Additional Amounts required to be paid with
respect thereto pursuant to Section 11].]
13. Supplemental Agreements [Insert if the Agreement is the Original
Agreement (as defined below) to be issued]
Within six months of the date of issue of this Agreement, Allstate Life
may issue to the initial Owner of this Agreement one or more additional
funding agreements and may provide in any such additional funding
agreement that such additional funding agreement shall constitute part of
the same obligation of Allstate Life as this Agreement (any such
additional funding agreement, a "Supplemental Agreement"), and such
Supplemental Agreement shall be subject to the same terms and conditions
as this Agreement (including those set forth in the Funding Agreement
Pricing Annex), except that the Effective Date, the Deposit Amount, the
Principal Amount and the amount of the first interest payment, if any,
may be different with respect to such Supplemental Agreement; provided
that the issuance of such Supplemental Agreement will satisfy the
conditions of Treasury Regulation Section 1.1275-2(k)(2)(ii) and will
constitute a "Qualified Reopening" under Treasury Regulation
Section 1.1275-2(k)(3)(ii) without regard to subparagraph (A) thereof.
[insert if the Agreement is a Supplemental Agreement.] This Agreement has
been issued as a supplement to Funding Agreement No. [___] issued by
Allstate Life on [_______] (the "Original Agreement") and shall
constitute part of the same obligation of Allstate Life as the Original
Agreement.]
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[OWNER] ALLSTATE LIFE INSURANCE COMPANY
/s/ Xxxxxx X. Xxxxxx
-------------------------------- ----------------------------------------
Owner [Xxxxxx X. Xxxxxx
President]
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------- ----------------------------------------
Signature [Xxxxxxx X. Xxxxxxx
Secretary]
--------------------------------
Title
This Agreement is executed on behalf of
Allstate Life Insurance Company at
Northbrook, Illinois.
--------------------------------
Date
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ALLSTATE LIFE INSURANCE COMPANY
FUNDING AGREEMENT PRICING ANNEX
THE SPECIFICATIONS HEREIN APPLY ONLY TO THIS ANNEX:
Owner of Funding Agreement: [ ], its Successors or Assignees
Agreement No.: FA-[xxxx]
Effective Date: [ ]
Agreement Period: [ ] to [ ] (Maturity Date)]
Deposit Amount: [actual amount deposited with Allstate Life]
Principal Amount: [full amount to be repaid by Allstate Life at
maturity]
Currency: [ ]
Business Day [definition of Business Day]
Business Day Convention: [specification of date for payment of interest
or principal when due date is not a Business
Day]
Interest Rate: [interest rate applied to the Principal
Amount]
Due Dates for Payment(s) to Owner: [ ]
[Additional Terms and Conditions Relating
to Periodic Payments under the Funding
Agreement ]
[Early Termination Rights:] [rights of Allstate Life to terminate the
Funding Agreement, at its sole option, prior
to the Maturity Date, in which case Allstate
Life shall pay the Funding Account Balance
to the Owner and the Funding Agreement
shall terminate]
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[Partial Pre-Payment Rights:] [rights of the Owner require partial pre-
payment of the Funding Account Balance
prior to the Maturity Date in the event of the
death of a Noteholder, such pre-payment
rights to not exceed $[ ] during any one
calendar year]
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ALLSTATE LIFE INSURANCE COMPANY
APPLICATION
Application is hereby made to Allstate Life Insurance Company by [ ] for a
Funding Agreement containing the terms set forth in the Annex attached to
this Application.
This Application is executed in duplicate, one counterpart being retained
by applicant and the other returned to Allstate Life Insurance Company.
It is agreed that this Application supersedes any previous application for
a Funding Agreement on substantially similar terms as contained in the
Annex attached to this Application.
Dated this ____ day of _________, 20_________, at______________________________.
___________________________________________________________
(Full Name of Applicant)
By:____________________________________
Its:___________________________________
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