Exhibit 1.3
REPRESENTATIONS AND INDEMNITY AGREEMENT
[ ], 2006
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Banc of America Securities LLC
Barclays Capital Inc.
Bear, Xxxxxxx & Co. Inc.
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
Xxxxxxx, Sachs & Co.
Greenwich Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
Wachovia Capital Markets, LLC
Ladies and Gentlemen:
Allstate Life Insurance Company, an Illinois stock life insurance company
(the "Company"), in connection with the Allstate Life Global Funding Secured
Medium Term Notes Program (the "Institutional Program") and the Allstate Life(R)
CoreNotes(R) Program (the "Retail Program" and, together with the Institutional
Program, the "Programs"), and in consideration of the Distribution Agreement
dated [ ], 2006, as amended, restated or modified from time to time (the
"Distribution Agreement"), by and among Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and each other institution named on Schedule 1 thereto (each, an
"Agent" and, collectively the "Agents") on the one hand, and Allstate Life
Global Funding, a Delaware statutory trust ("Global Funding") and any Delaware
statutory trust formed, and beneficially owned, by Global Funding (each, an
"Issuing Trust" and, collectively, the "Issuing Trusts") that becomes a party to
the Distribution Agreement pursuant to the terms thereof and the applicable
terms agreement (each, a "Terms Agreement") set forth in Part E of the series
instrument to be executed by each Issuing Trust, Global Funding and the
applicable Agent or Agents, among others, confirms its agreement with the Agents
with respect to the issue and sale, from time to time by the Issuing Trusts, of
notes due between nine months and thirty years from the date of issuance (the
"Notes").
The Notes of each Issuing Trust will be issued pursuant to an indenture, as
amended or modified from time to time, which will adopt and incorporate the
standard indenture terms (each, an "Indenture" and, collectively, the
"Indentures") between the relevant Issuing Trust and X.X. Xxxxxx Trust Company,
National Association, as indenture trustee (the "Indenture Trustee"). Each
Issuing Trust shall issue only one series of Notes. As of the date of this
Agreement, the
------------------------
Allstate Life(R) is a registered service xxxx of Allstate Insurance Company.
CoreNotes(R) is a registered service xxxx of Xxxxxxx Xxxxx & Co.
Issuing Trusts are authorized to issue collectively up to U.S. $5,000,000,000
aggregate initial offering price of Notes (or its equivalent as determined in
Section 4(s) of the Distribution Agreement).
Each Issuing Trust will use the proceeds from the sale of its Notes
immediately to purchase a funding note (each a "Funding Note") issued by Global
Funding. Each Funding Note will be issued pursuant to a funding note indenture,
as amended or modified from time to time, which will adopt and incorporate the
standard funding note indenture terms (each, a "Funding Note Indenture") between
Global Funding and X.X. Xxxxxx Trust Company, National Association, as the
funding note indenture trustee (the "Funding Note Indenture Trustee"). Global
Funding will immediately use the net proceeds received from the sale of the
applicable Funding Note to purchase a funding agreement (each a "Funding
Agreement") issued by the Company. Global Funding will immediately assign
absolutely to, and deposit into the relevant Issuing Trust, the relevant Funding
Agreement(s) and the relevant Funding Note will be surrendered. In connection
with the sale of its Notes, the Issuing Trust will prepare a Pricing Supplement
(the "Pricing Supplement") including or incorporating by reference a description
of the terms of the Notes and the terms of the offering.
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 the Notes of a
particular Issuing Trust, such institution shall only be an Agent with respect
to the Notes of such Issuing 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 under
the 1934 Act. Pursuant to Rule 429 of the rules and regulations of the
Commission under the Securities Act of 1933. as amended (the "1933 Act
Regulations"), the Company and Global Funding have filed with the Commission (i)
a registration statement on Form S-3 (No. 333-129157) and pre-effective
amendment No. 1 thereto under the Securities Act of 1933, as amended (the "1933
Act") for the registration of the Funding Agreements, the Funding Notes, and the
Notes, and the offering thereof in accordance with Rule 415 of the 1933 Act
Regulations, (ii) the related prospectus dated [ ], 2006 covering the Notes
offered under the Programs (the "Base Prospectus"); (iii) the prospectus
supplement to the Base Prospectus, dated [ ], 2006, covering the Notes offered
under the Institutional Program (the "Institutional Prospectus Supplement" and
together with the Base Prospectus, the "Institutional Base Prospectus"); and
(iv) the prospectus supplement to the Base Prospectus, dated [ ], 2006, covering
the Notes offered under the Retail Program (the "Retail Prospectus Supplement"
and, together with the Base Prospectus, the "Retail Base Prospectus"). Such
registration statement (as so amended , if applicable) is also the first
post-effective amendment to registration statement on Form S-3 (No. 333-125937)
filed by the Company and Global Funding. The registration statement on Form S-3
(No. 333-129157) (as so amended, if applicable) has been declared effective by
the Commission, and the form of Indenture and the form of Funding Note Indenture
have been duly qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"), and the Company and Global
2
Funding have filed such post-effective amendments thereto as may be required
prior to the acceptance by Global Funding and any Issuing Trust of any offer for
the purchase of Notes and each such post-effective amendment has been declared
effective by the Commission. Such registration statement on Form S-3 (No.
333-129157), at any relevant time, including the amendments thereto to such
time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act at such time and the documents otherwise deemed to be a part thereof or
included therein by the 1933 Act Regulations is referred to herein as the
"Registration Statement". If the Company or Global Funding file a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to the "Registration Statement" shall also be deemed to include
the Rule 462(b) Registration Statement. With respect to the offering of a series
of Notes under the Institutional Program, the Institutional Base Prospectus, and
with respect to the offering of a series of Notes under the Retail Program, the
Retail Base Prospectus, in each case including the Pricing Supplement relating
to the offering of such series of Notes, in the form first filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations (or in the form
first made available to the applicable Agent(s) by the Company and the
applicable Issuing Trust to meet requests of purchasers pursuant to Rule 173
under the 1933 Act Regulations), are referred to herein as the "Prospectus." The
term "preliminary prospectus" means any preliminary form of the Prospectus. For
all purposes of this Agreement, the term "free writing prospectus" has the
meaning set forth in Rule 405 under the 1933 Act Regulations and the term "Time
of Sale Prospectus" means (i) with respect to the offer and sale of any series
of Notes under the Institutional Program, the Institutional Base Prospectus and
(ii) with respect to the offer and sale of any series of Notes under the Retail
Program, the Retail Base Prospectus, in each case as amended or supplemented
from time to time, together with any other preliminary prospectus relating to
the offer and sale of such series of Notes, any Pricing Supplement relating to
the offer and sale of such series of Notes filed with the Commission prior to
the Applicable Time and each free writing prospectus (including any final term
sheet relating to such series of Notes) attached as, or identified in, Exhibit A
to the applicable Terms Agreement and any other information identified in
Exhibit A to the applicable Terms Agreement. All references to the "Registration
Statement", the "Institutional Base Prospectus", the "Retail Base Prospectus",
any "preliminary prospectus", the "Time of Sale Prospectus" and the "Prospectus"
shall also be deemed to include all amendments and supplements thereto and all
documents incorporated by reference therein. All references to the Registration
Statement, Time of Sale Prospectus, Prospectus, any preliminary prospectus or
free writing 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 Registration Statement, Time of Sale
Prospectus, Prospectus, any preliminary prospectus or free writing prospectus
shall be deemed to include all such financial statements and schedules and other
information which is incorporated by reference in or otherwise deemed by the
1933 Act Regulations to be a part of or included in the Registration Statement,
Time of Sale Prospectus, any preliminary prospectus or free writing prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Time of Sale Prospectus,
Institutional Base Prospectus, Retail Base Prospectus, Prospectus, any
3
preliminary prospectus or free writing prospectus shall be deemed to include all
documents subsequently filed with the Commission pursuant to the 1934 Act which
is incorporated by reference in or otherwise deemed by the 1933 Act Regulations
to be part of or included in the Registration Statement, Institutional Base
Prospectus, Retail Base Prospectus, Prospectus, any preliminary prospectus or
free writing 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, to the applicable Agent(s) as of the Applicable Time (as defined in the
applicable Terms Agreement, for the relevant Issuing Trust, the "Applicable
Time"), to the applicable Agent(s) as of the date of each delivery of Notes
(whether to such Agent as principal or through such Agent as agent) (the date of
each such delivery is referred to herein as a "Settlement Date"), to each Agent
as of any time the Time of Sale Prospectus shall be amended or supplemented, and
to each Agent as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented (each of the times referenced above is referred
to herein as a "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 Time of Sale Prospectus and to enter into
this Agreement and consummate the transactions to be performed by the
Company as contemplated in the Time of Sale 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 (as defined
in the applicable Indenture or form of Indenture, as the case may be) to
which the Company is a party or to consummate the transactions to be
performed by the Company as contemplated in the Time of Sale 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 0000 Xxx) of
the Company, 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 Time of Sale
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
4
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) Registration Statement Preliminary Prospectuses, Time of Sale
Prospectus, and Prospectus; Filing Status. Each of the Company and Global
Funding meet the requirements for use of Form S-3 under the 1933 Act; the
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of 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 of
Indenture has been duly qualified under the 1939 Act; the form of Funding
Note Indenture has been duly qualified under the 1939 Act; at the
respective times that each part of the Registration Statement became
effective and at each Representation Date, the Registration Statement 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
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act Regulations,
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
Base Prospectus and each amendment or supplement thereto and at each
Representation Date, neither the Base 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. The Time of Sale Prospectus
does not, and at the Applicable Time and at the applicable Settlement Date,
the Time of Sale Prospectus, as then amended or supplemented, if
applicable, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to (i) statements in or omissions from the
Registration Statement, the Base Prospectus, the Time of Sale Prospectus or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the applicable Agents concerning
5
such Agents expressly for use in the Registration Statement, the Base
Prospectus, the Time of Sale Prospectus or the Prospectus, or (ii) the
parts of the Registration Statement which constitute the Statement of
Eligibility and Qualification (Form T-1) of the Indenture Trustee under the
1939 Act.
(iv) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Time of Sale Prospectus or the Base
Prospectus, as amended or supplemented, 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 Time of Sale
Prospectus or the Base Prospectus, at the date hereof, at the date of the
Time of Sale Prospectus or the Base 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.
(v) Free Writing Prospectuses. At the time of initial filing of the
Registration Statement, at the earliest time thereafter that an offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of any Notes and at each the Company
Representation Date, the Company was not and is not an "ineligible issuer,"
as defined in Rule 405 of the 1933 Act Regulations. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d)
under the 1933 Act Regulations has been, or will be, filed with the
Commission in accordance with the requirements of the 1933 Act and the 1933
Act Regulations. Each free writing prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the 1933 Act
Regulations or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of
the applicable 1933 Act Regulations. With respect to the offering of any
series of Notes, except for the free writing prospectuses attached as, or
identified in, Exhibit A to the applicable Terms Agreement, the Company has
not prepared, used or referred to, and will not, without the prior consent
of the applicable Agents, prepare, use or refer to, any free writing
prospectus or any other marketing materials other than the preliminary
prospectus relating to or to be used in connection with any offer or sale
of the Notes. No free writing prospectus used in connection with the
offering of a series of Notes will conflict with either the Registration
Statement or the Base Prospectus.
(vi) Independent Registered Public Accounting Firm. The accounting
firm which certified the financial statements and any supporting schedules
thereto included in the Registration Statement and the Base Prospectus, as
amended or supplemented, is an independent registered public accounting
firm to the extent required by the 1933 Act and the 1933 Act Regulations.
(vii) Company Financial Statements. The consolidated financial
statements of the Company included in the Registration Statement, the Time
of Sale Prospectus and the Base Prospectus together with the related
schedules and notes, as well as those financial statements, schedules and
notes of any entity included in the Registration Statement, the Time of
Sale Prospectus and the Base Prospectus present fairly the consolidated
6
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 Registration
Statement, the Time of Sale Prospectus and the Base 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 Registration Statement, the Time of Sale Prospectus and the
Base 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 Registration Statement, the Time of Sale
Prospectus and the Base Prospectus; and any pro forma consolidated
financial statements of the Company and its subsidiaries and the related
notes thereto included in the Registration Statement, the Time of Sale
Prospectus and the Base 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.
(viii) No Material Changes. Since the respective dates as of which
information is given in the Registration Statement and the Time of Sale
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.
(ix) 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).
(x) 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
7
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 Time of Sale
Prospectus, the consummation of the transactions contemplated in the Time
of Sale Prospectus (including the issuance and sale of the Notes and the
use of the proceeds therefrom as described in the Time of Sale 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.
(xi) 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 Registration Statement and the Base Prospectus
(other than as stated therein), or which may reasonably expected to result
in a Company Material Adverse Effect; 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 Registration Statement and the Base Prospectus, as
amended or supplemented, including ordinary routine litigation incidental
to the business, may not reasonably be expected to result in a Company
Material Adverse Effect.
(xii) 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 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.
Except as set forth in the Time of Sale Prospectus, 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
8
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Company Material Adverse Effect.
(xiii) 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, each Funding Agreement or the
Program Documents or for the performance by the Company of the transactions
contemplated in this Agreement, each Funding Agreement, the Program
Documents or the Prospectus, except such as have been previously made,
obtained or rendered, as applicable.
(xiv) Investment Company Act. None of the Company, Global Funding and
the relevant Issuing Trust is, and upon the sale of the Funding Agreements,
the Funding Notes and Notes as contemplated by the Programs and the
application of the net proceeds therefrom as described in the Time of Sale
Prospectus, will be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xv) 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.
(xvi) Funding Agreement Listed on any Stock Exchange. If specified in
a Pricing Supplement, the Funding Agreement described in such Pricing
Supplement shall be listed on the securities exchange designated in such
Pricing Supplement.
(xvii) Relationship between the Company and the Agents. The Company
acknowledges and agrees that (i) the purchase and sale of the Notes
pursuant to the Distribution Agreement, including the determination of the
offering price of the Notes and any related discounts and commissions, is
an arm's-length commercial transaction between Global Funding, on the one
hand, and the Agents, on the other hand, (ii) in connection with the
offerings contemplated by the Distribution Agreement and the process
leading to such transactions each Agent is and has been acting solely as a
principal and is neither the agent of Global Funding and the Company nor
their fiduciary, respectively, or its stockholders, creditors, employees or
any other party, (iii) no Agent has assumed or will assume an advisory or
fiduciary responsibility in favor of Global Funding or the Company with
respect to the offerings contemplated hereby or the process leading thereto
(irrespective of whether such Agent has advised or is currently advising
Global Funding or the Company on other matters) and no Agent has any
obligation to Global Funding or the Company with respect to the offerings
contemplated hereby except the obligations expressly set forth in this
Agreement, (iv) the Agents and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from
those of Global Funding or the Company, and (v) the Agents have not
provided any legal, accounting, regulatory or tax advice with respect to
the offerings contemplated
9
hereby and Global Funding and the Company have consulted their own legal,
accounting, regulatory and tax advisors to the extent they deemed
appropriate.
(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 an Issuing 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 will notify the Agents
immediately, and confirm such notice in writing of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
amendment or supplement to the Time of Sale Prospectus or 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 with respect to the Registration Statement, any preliminary
prospectus and the Prospectus, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Base Prospectus, (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the 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, or (v) the
failure of the Funding Agreements to be qualified for sale under the securities
or blue sky laws of such jurisdiction as the Agents may request pursuant to
Section 2(r). With respect to the Registration Statement, any preliminary
prospectus and the Prospectus, the Company will make every reasonable effort to
prevent the issuance of any stop order (or any similar order under blue sky
laws) and, if any stop order (or any similar order under blue sky laws) is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing or Use of Amendments. 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 Registration Statement (including any filing under Rule 462(b) of the
1933 Act Regulations) or any amendment or supplement to any preliminary
prospectus 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, and will provide
immediate notice to each relevant Agent of any intention to prepare an amendment
or supplement to the Time of Sale Prospectus and, if applicable to file such
amendment or supplement pursuant to the 1933 Act, and will furnish to such
Agents copies of any such document a reasonable amount of time prior to such
proposed filing or the use of such materials, as the case may be, and will not
file or use any such document to which an Agent or counsel for the Agents shall
object.
(c) Revisions of Registration Statement. 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
10
the reasonable opinion of counsel for the Agents or counsel for the Company, to
amend the Registration Statement in order that the Registration Statement will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or if it shall be necessary, in the reasonable opinion of either
such counsel, to amend the Registration Statement in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company shall give
immediate notice, confirmed in writing, to the Agents to cease the solicitation
of offers for the purchase of Notes and to cease sales of any Notes they may
then own, and the Company will promptly prepare and file with the Commission,
subject to Section 2(b) hereof, such amendment as may be necessary to correct
such statement or omission or to make the Registration Statement comply with
such requirements, and the Company will furnish to the Agents, without charge,
such number of copies of such amendment as the Agents may reasonably request.
(d) Use of Free Writing Prospectuses. The Company will not take any action
that would result in an Agent being required to file with the Commission
pursuant to Rule 433(d) of the 1933 Act Regulations a free writing prospectus
prepared by or on behalf of an Agent that such Agent otherwise would not have
been required to file thereunder.
(e) Revisions of Time of Sale Prospectuses. If the Time of Sale Prospectus
is being used to solicit offers to buy any Notes of a series at a time when the
Prospectus is not yet available to prospective purchasers and any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the applicable Agent(s) or counsel for the
Company, to amend or supplement the Time of Sale Prospectus in writing in order
that the Time of Sale 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 Time of Sale Prospectus is conveyed to a prospective purchaser, or
if, in the reasonable opinion of either such counsel, it is necessary to amend
or supplement the Time of Sale Prospectus to comply with the 1933 Act or 1933
Act Regulations, the Company shall give notice, confirmed in writing, to each of
the applicable Agents and the Company will promptly prepare and, if applicable,
file with the Commission such amendment or supplement as may be necessary to
correct such statement or omission or to make the Time of Sale Prospectus comply
with such requirements, and the Company will furnish to each of the applicable
Agents, without charge, such number of copies of such amendment or supplement,
as the relevant Agents may reasonably require.
(f) Delivery of the Registration Statement. The Company will furnish to the
Agents and to counsel for the Agents, without charge, signed and conformed
copies of the Registration Statement and conformed copies of all consents and
certificates of experts. The Registration Statement 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.
(g) Delivery of the Preliminary Prospectus and Time of Sale Prospectus.
Pursuant to the Distribution Agreement, Global Funding will deliver to each
applicable Agent, without charge, as many copies of each preliminary prospectus
as such Agent may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. Pursuant to the
Distribution Agreement, Global Funding will furnish to each applicable
11
Agent, without charge, such number of copies of the applicable Time of Sale
Prospectus as such Agent may reasonably request, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. Each such
document furnished to the applicable Agents will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(h) Delivery of Free Writing Prospectuses. The Company will deliver to each
applicable Agent and, without charge, as many copies of each free writing
prospectus, prepared by or on behalf of, used by, or referred to by the Company,
as such Agent may reasonably request. To the extent applicable, each such
document furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(i) Delivery of the Prospectus. Pursuant to the Distribution Agreement,
Global Funding will deliver to each applicable Agent, without charge, as many
copies of the relevant Prospectus (as amended or supplemented) as such Agent may
reasonably request; the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. It is hereby acknowledged that Global
Funding intends to rely on the provisions of Rule 172 of the 1933 Act
Regulations with respect to the delivery of the Prospectus. The Prospectus and
any amendments or supplements thereto furnished to such Agent will be identical
in all material respects to any electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(j) Periodic Financial Information. 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.
(k) Audited Financial Information. 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
Agents, confirmed in writing.
(l) Reporting Requirements. The Company, during the period when the Time of
Sale Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file, and will cause to be filed, 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.
(m) 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 Xxxxxxx 00(x) xx xxx 0000 Xxx.
(x) 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 Time of Sale Prospectus.
12
(o) 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 Programs if such information has changed.
(p) Restrictions on the Offer and Sale of Funding Agreements. Except in
connection with the Retail Program and as 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 relevant Issuing 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.
(q) Blue Sky Qualifications. The Company shall endeavor to qualify the
Funding Agreements for offer and sale under the securities or blue sky laws of
such jurisdictions as the Agents shall reasonably request and to maintain such
qualifications for as long as such Agents shall reasonably request.
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
Global Funding and an Issuing Trust of an offer for the purchase of Notes
(whether to one or more Agents as principal or through one or more Agents as
agent), and each delivery of its 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 Registration Statement and
Prospectus as amended and supplemented to each such time).
13
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or Prospectus shall be amended or supplemented (other
than by (A) an amendment or supplement providing solely for the determination of
the variable terms of the Notes and (B) an amendment deemed to have occurred as
a result of a periodic filing by the Company, Global Funding or any Issuing
Trust under the 1934 Act or the 1934 Act Regulations, except any quarterly
report of the Company on Form 10-Q or any annual report of the Company on Form
10-K (any such report, an "SEC Periodic Report")), and (ii) (if required in
connection with the purchase of Notes from an Issuing Trust by one or more
Agents as principal) an Issuing Trust sells Notes to one or more Agents as
principal or (iii) an Issuing Trust sells Notes in a form not previously
certified to the Agents by such Issuing Trust, 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 7(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 Registration Statement 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 7(d) of
the Distribution Agreement, modified as necessary to relate to the Registration
Statement 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 relevant Issuing 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 Notes issued immediately after such SEC
Periodic Report.
(c) Company Officer's Certificate. The Company shall have furnished to the
Agents a certificate of the Company, signed by either the Chairman of the Board,
Chief Executive Officer, President, Chief Operating Officer, Chief Financial
Officer, Secretary, General Counsel or Treasurer of the Company, dated the date
of such certificate, to the effect that the signatory of such certificate has
carefully examined the Registration Statement, the Prospectus and amendments and
supplements thereto and this Agreement and that:
(i) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened;
(ii) since the date of the Prospectus there has occurred no event
required to be set forth in an amendment or supplement to the Registration
Statement or Prospectus, and there has been no document required to be
filed under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations which, upon filing, would be deemed to be incorporated
by reference in the Prospectus which has not been so filed; and
14
(iii) nothing has come to the attention of the Company that would
cause it to believe that the priority status of the Funding Agreements
under Section 5/205 of the Illinois Insurance Code has been adversely
modified since the date of the last delivery of the opinion issued by Lord,
Bissell & Brook LLP, substantially in the form of Exhibit C attached to the
Distribution Agreement.
SECTION 5. Indemnification.
(a) Indemnification of the Agent. With respect to any series of Notes, the
Company agrees to indemnify and hold harmless each applicable Agent, its
directors and officers and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto) or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Time of Sale Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
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 applicable
Agents concerning such Agents expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus, the applicable Time of
Sale 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
15
Global Funding shall have provided written notice pursuant to Section 4(f) 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
Company shall have advised such Agent as the case may be, that such solicitation
may be resumed 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. With respect to any series of Notes,
each Agent agrees, severally but not jointly, to indemnify and hold harmless the
Company, its directors, officers and trustees (if applicable) who signed the
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 Registration Statement (or any amendment thereto) or any preliminary
prospectus, the applicable Time of Sale 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 Registration Statement (or any amendment thereto) or
such preliminary prospectus, the applicable Time of Sale Prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 5(a) hereof or
Section 10(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 10(b) of the Distribution
Agreement, counsel to the indemnified shall be selected by the Company and
Global Funding. 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
16
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 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
17
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 an Issuing 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 such Issuing Trust.
For purposes of this Section 6, each director, officer and person, if any,
who controls an Agent within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Agent, and each director, officer and trustee (if applicable) of the Company,
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 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);
18
(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 Global Funding shall have provided
written notice pursuant to Section 4(f) 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 relevant
Issuing Trust shall have advised such Agent as the case may be, that such
solicitation may be resumed; 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 an Issuing Trust as principal or (b) an offer to
purchase any of the Notes has been accepted by an Issuing Trust but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 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(j) hereof, the 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.
19
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.
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK, THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR
ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY
OF NEW YORK.
SECTION 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, Global Funding may from
time to time nominate any institution as a new Agent under the Distribution
Agreement either in respect of the Programs generally or in relation only to the
Notes of a particular Issuing Trust, and upon such nomination, if not already
executed, such Agent(s) will execute a counterpart of this Agreement.
20
SECTION 15. Separate Nature of Each Issuing Trust.
The Agents agree and acknowledge that, as a separate and distinct special
purpose statutory trusts, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a particular
Issuing Trust, including such Issuing Trust's obligations under this Agreement
and the applicable Terms Agreement, will be enforceable only against such
Issuing Trust and not against any other Issuing Trust.
SECTION 16. Covenants of the Agents. Each Agent covenants with the Company:
(a) Delivery of Free Writing Prospectuses and Other Marketing Materials.
Except as otherwise provided in the applicable Terms Agreement, such Agent will,
prior to its first use, furnish the Company with a copy of each proposed free
writing prospectus that is required to be filed pursuant to Rule 433(d) under
the 1933 Act Regulations or is or will be part of the Time of Sale Prospectus
and any other marketing materials (other than (x) any free writing prospectus
that is not required to be filed or will not be part of the Time of Sale
Prospectus or (y) any marketing material that complies with Rule 134 of the 1933
Act Regulations) relating to or to be used in connection with any offer or sale
of the Notes, in each case prepared by or on behalf of such Agents and will not
use any such free writing prospectus or other marketing materials to which the
Company reasonably objects.
(b) Use of Free Writing Prospectuses and Other Marketing Materials. Such
Agent may use a free writing prospectus or any other marketing materials
prepared by or on behalf of such Agent only if such free writing prospectus or
such marketing materials complies in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
(c) Distribution of Free Writing Prospectuses and Other Marketing
Materials. Such Agent will not distribute any free writing prospectus or any
other marketing materials (other than any marketing material that complies with
Rule 134 of the 1933 Act Regulations) used or referred to by such Agent in a
manner reasonably designed to lead to its broad unrestricted dissemination;
provided that this covenant shall not apply to any free writing prospectus or
such marketing materials forming part of the Time of Sale Prospectus or any free
writing prospectus or such marketing materials prepared or approved by the
Company for broad unrestricted dissemination.
*** SIGNATURE PAGES FOLLOW ***
21
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 Company 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
X.X. XXXXXXX & SONS, INC.
By:
-----------------------------------------------------
Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By:
-----------------------------------------------------
Authorized Signatory
Signature Page to Representations and Indemnity Agreement, Part 1 of 4*
BARCLAYS CAPITAL INC.
By:
--------------------------------------------
Authorized Signatory
BEAR, XXXXXXX & CO. INC.
By:
--------------------------------------------
Authorized Signatory
CITIGROUP GLOBAL MARKETS INC.
By:
--------------------------------------------
Authorized Signatory
CREDIT SUISSE SECURITIES (USA) LLC
By:
--------------------------------------------
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:
--------------------------------------------
Authorized Signatory
By:
--------------------------------------------
Authorized Signatory
----------------------------------------------
XXXXXXX, SACHS & CO.
Signature Page to Representations and Indemnity Agreement, Part 2 of 4*
GREENWICH CAPITAL MARKETS, INC.
By:
--------------------------------------------
Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By:
--------------------------------------------
Authorized Signatory
XXXXXX BROTHERS INC.
By:
--------------------------------------------
Authorized Signatory
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------------------------
Authorized Signatory
UBS SECURITIES LLC
By:
--------------------------------------------
Authorized Signatory
By:
--------------------------------------------
Authorized Signatory
Signature Page to Representations and Indemnity Agreement, Part 3 of 4*
WACHOVIA CAPITAL MARKETS, LLC
By:
--------------------------------------------
Authorized Signatory
Signature Page to Representations and Indemnity Agreement, Part 4 of 4*
