EXHIBIT 1.1
ALLSTATE LIFE GLOBAL FUNDING
$3,000,000,000
MEDIUM-TERM NOTE PROGRAM
DISTRIBUTION AGREEMENT
___________, 2002
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
[OTHER AGENTS]
Dear Sirs:
Allstate Life Global Funding, a Delaware statutory trust (the "TRUST")
formed pursuant to a Trust Agreement, dated June 24, 2002 (the "TRUST
AGREEMENT"), as amended or modified from time to time, between Wilmington Trust
Company, as Delaware trustee (the "DELAWARE TRUSTEE"), and AMACAR Pacific Corp.,
as trust beneficial owner (the "TRUST BENEFICIAL OWNER"), in connection with the
Allstate Life Global Funding Medium-Term Note Program (the "PROGRAM"),
individually and through each series of the Trust (the Trust with respect to
each series of the Trust, a "SERIES TRUST") formed pursuant to a Series Trust
Supplement (each a "SERIES TRUST SUPPLEMENT") between the Delaware Trustee and
the Trust Beneficial Owner, confirm its agreement with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and each other institution named on SCHEDULE1 hereto
(each, an "AGENT") with respect to the issue and sale by the Trust of notes due
nine months or more from the date of issuance (the "NOTES"). As of the date
hereof, the Trust has authorized the issuance and sale from time to time by the
Trust in series of up to U.S. $3,000,000,000 aggregate initial offering price of
Notes (or its equivalent as determined in Section 4(p)). The Notes are to be
issued pursuant to an Indenture dated [______], as amended or modified from time
to time, between Bank One, National Association, as Indenture Trustee (the
"INDENTURE TRUSTEE") and the Trust (the "INDENTURE"). The Trust will use the
proceeds from the sale of the Notes to purchase one or more funding agreements
(each a "FUNDING AGREEMENT") from Allstate Life Insurance Company, an Illinois
stock life insurance company (the "Company"). The Notes will be secured by the
Funding Agreement(s) which will be assigned by the Trust with respect to each
series of Notes to the Indenture Trustee on behalf of the holders of the Notes
of each applicable series of Notes pursuant to the Indenture. In connection with
the sale of Notes, the Trust will prepare a Pricing Supplement (the "PRICING
SUPPLEMENT") including or incorporating by reference a description of the terms
of the Notes, the terms of the offering and a description of the Series Trust
through which such Notes are being issued.
The Agents include those institutions named from time to time in SCHEDULE 1
hereto and any institution appointed as an Agent pursuant to Section 18 below.
If any institution is appointed as an Agent only with respect to a particular
series of Notes of the Trust, such institution shall only be an Agent with
respect to such series of Notes of the Trust.
This Agreement specifies the terms and conditions on which Notes may be
sold by the Trust (i) to one or more Agents as principal for resale to
investors, (ii) directly to investors through the applicable Agent as an agent
of the Trust in soliciting offers for the purchase of Notes and (iii) to such
other investors in compliance with all applicable securities laws as the Trust
may determine from time to time.
The Company has registered shares of its common stock with the Securities
and Exchange Commission (the "COMMISSION") pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "1934 ACT") on Form 10 (as
amended, if applicable, the "FORM 10") under the 1934 Act. The Company has filed
with the Commission a registration statement on Form S-3 (No. 333-________) and
pre-effective amendment[s] no[s]. ___ thereto (as amended, if applicable, the
"S-3 REGISTRATION STATEMENT") for the registration of Funding Agreements by the
Company under the Securities Act of 1933, as amended (the "1933 ACT"), and the
Trust has filed with the Commission a Registration Statement on Form S-1 (No.
333-_______) and pre-effective amendment[s] no[s]. ___ thereto (as amended, if
applicable, the "S-1 REGISTRATION STATEMENT") for the registration of Notes by
the Trust under the 1933 Act, and the offering thereof in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
ACT REGULATIONS"). The X-0 Xxxxxxxxxxxx Xxxxxxxxx, X-0 Registration Statement
and Form 10 have been declared effective by the Commission and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
ACT"), and the Trust has filed such post-effective amendments thereto as may be
required prior to the Trust's acceptance of any offer for the purchase of Notes
and each such post-effective amendment has been declared effective by the
Commission. The Form 10, the S-1 Registration Statement and the S-3 Registration
Statement are collectively referred to as the "REGISTERED DOCUMENTS"; and the
final prospectus and all applicable amendments or supplements thereto (including
the final prospectus supplement and Pricing Supplement relating to the offering
of Notes), in the form first furnished to the applicable Agent for use in
confirming sales of Notes, are collectively referred to herein as the
"PROSPECTUS"; provided, however, that all references to the "S-3 Registration
Statement", the "Form 10" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the 1934 Act, prior
to any acceptance by the Trust of an offer for the purchase of Notes; provided,
further, that if the Company or the Trust file a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "RULE 462(b)
REGISTRATION STATEMENT"), then, after such filing, all references to the "S-1
Registration Statement" and the "S-3 Registration Statement" shall also be
deemed to include the Rule 462(b) Registration Statement. A "PRELIMINARY
PROSPECTUS" shall be deemed to refer to any prospectus used before the S-1
Registration Statement and S-3 Registration Statement became effective and any
prospectus furnished by the Company or Trust after the S-1 Registration
Statement and S-3 Registration Statement became effective and before any
acceptance by the Trust of an offer for the purchase of Notes which omitted
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations. For purposes of
this Agreement, all references to the S-1 Registration Statement, S-3
Registration Statement, Prospectus or preliminary prospectus or to
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any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained", "included" or "stated" (or
other references of like import) in the Form 10, Prospectus or preliminary
prospectus shall be deemed to include all such financial statements and
schedules and other information which is incorporated by reference in the Form
10, Prospectus or preliminary prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Form 10, Prospectus or
preliminary prospectus shall be deemed to include the filing of any document
under the 1934 Act which is incorporated by reference in the Form 10, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated herein, the
Trust hereby agrees that Notes will be sold to or through the Agents pursuant to
the terms of this Agreement. The Trust agrees that it will not appoint any other
agents to act on its behalf or to assist it, in the placement of the Notes;
provided, however that with respect to transactions in which the sales of Notes
will be targeted to institutional purchasers, the Trust may enter into
arrangements with other agent(s) not a party to this Agreement provided that
such agent(s) enter into an agreement with terms substantially identical to
those contained herein. Subject to the terms and conditions of Section 4(l),
the Trust agrees that it hereby appoints only Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (the "Retail Agent") to act on the Trust's behalf or to
assist the Trust in connection with transactions in which the sale of Notes will
be targeted to retail purchasers.
(b) SALE OF NOTES. The Trust shall not sell or approve the solicitation of
offers for the purchase of Notes in excess of the aggregate initial offering
price of Notes registered pursuant to the S-1 Registration Statement. The Agents
shall have no responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the S-1 Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Trust as principal. However, absent an agreement by and
between the Trust and an Agent for such Agent to act as an agent for the Trust,
such Agent shall be deemed to be acting as principal in connection with any
offering of Notes by the Trust. Accordingly, the Agents, individually or in a
syndicate, may agree from time to time to purchase Notes from the Trust as
principal for resale to investors determined by such Agents. Any purchase of
Notes from the Trust by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon between an Agent and the Trust,
then such Agent, acting solely as an agent for the Trust and not as principal,
will solicit offers for the purchase of Notes. Such Agent will communicate to
the Trust, orally, each offer for the purchase of Notes solicited by it on an
agency basis other than those offers rejected by such Agent. Such Agent shall
have the right, in its discretion reasonably exercised, to reject any offer for
the purchase of Notes, in whole or in part, and any such rejection shall not be
deemed a
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breach of its agreement contained herein. The Trust may accept or reject any
offer for the purchase of Notes, in whole or in part. Such Agent shall make
reasonable efforts to assist the Trust in obtaining performance by each
purchaser whose offer for the purchase of Notes has been solicited by it on an
agency basis and accepted by the Trust. Such Agent shall not have any liability
to the Trust in the event that any such purchase is not consummated for any
reason. If the Trust shall default on its obligation to deliver Notes to a
purchaser whose offer has been solicited by an Agent on an agency basis and
accepted by the Trust, then (i) the Trust shall hold such Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Trust and (ii) the Trust shall be responsible to pay to such Agent any
commission to which such Agent would otherwise be entitled absent such default.
(e) RELIANCE. The Trust and Agents agree that any Notes purchased from the
Trust by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as an agent of the Trust shall be placed by
such Agent, in reliance on the representations, warranties, covenants and
agreements of the Trust contained herein and on the terms and conditions and in
the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Trust represents and warrants to each Agent as of the date hereof,
as of the date of each acceptance by the Trust of an offer for the purchase of
Notes (whether to such Agent as principal or through such Agent as agent), as of
the date of each delivery of Notes (whether to such Agent as principal or
through such Agent as agent) (the date of each such delivery to such Agent as
principal is referred to herein as a "SETTLEMENT DATE"), and as of any time that
the Registered Documents or the Prospectus shall be amended or supplemented
(each of the times referenced above is referred to herein as a "REPRESENTATION
DATE"), as follows:
(i) DUE FORMATION AND GOOD STANDING OF THE TRUST. The Trust is a
statutory trust, duly formed under Delaware law pursuant to the Trust
Agreement and the filing of a certificate of trust with the Delaware
Secretary of State, which is validly existing and in good standing as a
statutory trust under the laws of the State of Delaware. Each Series Trust
which has been formed has been, and each Series Trust which will be formed
will be, created as an additional and separate series of beneficial
interest in the Trust pursuant to Sections 3804 and 3806(b)(2) (or any
successor statutes) of the Delaware Statutory Trust Act.
(ii) REGISTRATION STATEMENT AND PROSPECTUS; FILING STATUS. The Trust
meets the requirements for use of Form S-1 under the 1933 Act; the S-1
Registration Statement (or any Rule 462(b) Registration Statement) has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the S-1 Registration Statement (or any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Trust, are contemplated by the Commission, and any request
on the part of the Commission for additional information has been complied
with; the Indenture has been duly qualified under the 1939 Act; at the
respective times that the S-1 Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendment thereto
became effective and at each Representation Date, the S-1 Registration
Statement
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(including any Rule 462(b) Registration Statement) complied and will comply
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations, the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 ACT REGULATIONS") and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 ACT REGULATIONS") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; each preliminary prospectus and Prospectus filed as part of the
S-1 Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act and the 1933 Act
Regulations; each preliminary prospectus and the Prospectus delivered to an
Agent for use in connection with the offering of Notes are identical in all
material respects to any electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T; and at the date hereof, at the date of the Prospectus and
each amendment or supplement thereto and at each Representation Date,
neither the Prospectus nor any amendment or supplement thereto included or
will include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to (i) statements in or omissions from the
S-1 Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Trust in writing by the
applicable Agents concerning such Agents expressly for use in the S-1
Registration Statement or the Prospectus or (ii) the parts of the S-1
Registration Statement which constitute the Statement of Eligibility and
Qualification (Form T-1) of the Indenture Trustee under the 1939 Act.
(iii) INCORPORATED DOCUMENTS; 1934 ACT FILINGS. The documents
incorporated or deemed to be incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations and, when read together with the other
information in the Prospectus, at the date hereof, at the date of the
Prospectus and at each Representation Date, did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Any reports,
filings or other documents, exhibits or schedules filed by the Trust
pursuant to the 1934 Act comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations.
(iv) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Form 10, the Registration Statement and the Prospectus are independent
public accountants to the extent required by the 1933 Act and the 1933 Act
Regulations.
(v) TRUST FINANCIAL STATEMENTS. The consolidated financial
statements of the Trust, if any, included in any report or filing under the
1934 Act, together with the related schedules and notes present fairly the
consolidated financial position of the Trust at the
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dates indicated to the extent required under the 1934 Act; such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved; the supporting schedules, if any, 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 and the Prospectus present fairly the
information shown therein.
(vi) NO MATERIAL CHANGES. Since the respective dates as of which
information is given in the S-1 Registration Statement and the Prospectus,
except as otherwise stated therein, (1) there has been no event or
occurrence that would result in a material adverse effect on the condition
(financial or otherwise) of the Trust or on the power or ability of the
Trust to perform its obligations under this Agreement, the Indenture, the
Trust Agreement, any Series Trust Supplement, any Funding Agreement, the
Amended and Restated Administrative Services Agreement (the "ADMINISTRATION
AGREEMENT"), dated -, 2002, as amended or modified from time to time,
between the Delaware Trustee, on behalf of the Trust, and AMACAR Pacific
Corp., as administrator (the "ADMINISTRATOR"), or the Notes or to
consummate the transactions to be performed by it as contemplated in the
Prospectus (a "TRUST MATERIAL ADVERSE EFFECT") and (2) there have been no
transactions entered into by the Trust, other than those in the ordinary
course of business, which are material with respect to the Trust.
(vii) AUTHORIZATION OF THIS AGREEMENT, EACH FUNDING AGREEMENT, THE
TRUST AGREEMENT, EACH SERIES TRUST SUPPLEMENT, THE INDENTURE,
ADMINISTRATION AGREEMENT AND NOTES. This Agreement, each relevant Funding
Agreement, the Indenture, the Trust Agreement, each Series Trust Supplement
and the Administration Agreement have been duly authorized, executed and
delivered by the Trust and this Agreement, each relevant Funding Agreement,
the Trust Agreement, each Series Trust Supplement, the Administration
Agreement and the Indenture will each be a valid and legally binding
agreement of the Trust enforceable against the Trust in accordance with its
terms, as applicable, 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), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any Notes
issued under the Indenture that are payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States;
the Notes have been duly authorized by the Trust for offer, sale, issuance
and delivery pursuant to this Agreement and, when issued, authenticated and
delivered in the manner provided for in the Indenture and delivered against
payment of the consideration therefor, will constitute valid and legally
binding obligations of the Trust, enforceable against the Trust in
accordance with their 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); the Notes will be substantially in a form
previously certified to the Agents and contemplated by the
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Indenture; and each holder of Notes will be entitled to the benefits set
forth in the Indenture.
(viii) ABSENCE OF DEFAULTS AND CONFLICTS. The Trust is not in
violation of its certificate of trust or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan or credit agreement, note, lease or
other agreement or instrument to which the Trust is a party or by which it
may be bound or to which any of the property or assets of the Trust is
subject (the "TRUST AGREEMENTS AND INSTRUMENTS"), except for such
violations or defaults that would not result in a Trust Material Adverse
Effect; and the execution, delivery and performance of this Agreement, the
Indenture, the Notes, the Trust Agreement, each Series Trust Supplement,
each Funding Agreement, the Administration Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Trust in connection with the transactions contemplated by the
Prospectus, the consummation of the transactions contemplated in the
Prospectus (including the issuance and sale of the Notes and the use of
proceeds therefrom as described in the Prospectus) (collectively, the
"PROGRAM DOCUMENTS") and the compliance by the Trust with its obligations
hereunder and under the Program Documents, have been duly authorized by all
necessary action and do not and will not, whether with or without the
giving of notice or the 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
Trust under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of any Series Trust
or the Trust pursuant to, any Trust Agreements and Instruments, nor will
such action result in any violation of the Trust's certificate of trust,
the Trust Agreement or any Series Trust Supplement which may reasonably be
expected to result in a Trust Material Adverse Effect and the Trust is not
in default in the performance or observance of 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 Trust or any of its assets, properties or operations,
except for such defaults which would not reasonably be expected to result
in a Trust Material Adverse Effect.
(ix) 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 Trust threatened, against or affecting the Trust which is required to
be disclosed in the S-1 Registration Statement and the Prospectus (other
than as stated therein), or which may reasonably be expected to result in a
Trust Material Adverse Effect, or which may reasonably be expected to
materially and adversely affect the assets, properties or operations
thereof, the performance by the Trust of its obligations under this
Agreement and the other Program Documents or the consummation of the
transactions contemplated in the Prospectus; and the aggregate of all
pending legal or governmental proceedings to which the Trust is a party or
of which any of its assets, properties or operations is the subject which
are not described in the S-1 Registration Statement and the Prospectus,
including ordinary routine litigation incidental
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to the business, may not reasonably be expected to result in a Trust
Material Adverse Effect.
(x) POSSESSION OF LICENSES AND PERMITS. The Trust possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, "GOVERNMENTAL LICENSES") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it; the Trust is in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a Trust
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not result in a Trust Material Adverse Effect; and the
Trust has not received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Trust Material Adverse Effect.
(xi) 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 Trust of the Program Documents or for the performance by
the Trust of the transactions contemplated in the Program Documents, except
such as have been previously made, obtained or rendered, as applicable.
(xii) INVESTMENT COMPANY ACT. The Trust is not, and upon the sale of
the Notes as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 ACT").
(xiii) RATINGS. The Program under which the Notes are issued, as well
as the Notes, are rated [____] by Xxxxx'x Investors Service, Inc. and
[_____] by Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies (Xxxxx'x Investors Service, Inc. and Standard &
Poor's Ratings Services are referred to herein as the "RATINGS AGENCIES"),
or such other rating as to which the Company or the Trust shall have most
recently notified the Agents pursuant to Section 4 hereof.
(xiv) NOTES LISTED ON ANY STOCK EXCHANGE. If specified in a Pricing
Supplement, the Notes described in such Pricing Supplement shall be listed
on the securities exchange designated in the Pricing Supplement.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Trust and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Trust 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.
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SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT; OTHER SALES.
(a) PURCHASES AS PRINCIPAL. Notes purchased from the Trust by the Agents,
individually or in a syndicate, as principal shall be made in accordance with
terms agreed upon between such Agent(s), on one hand, and the Trust, on the
other hand, (which terms, unless otherwise agreed, shall, to the extent
applicable, include those terms specified in EXHIBIT A hereto and shall be
agreed upon orally, with written confirmation prepared by such Agent(s) and
mailed to the Trust). An Agent's commitment to purchase Notes as principal shall
be deemed to have been made on the basis of the representations and warranties
of the Trust herein contained and shall be subject to the terms and conditions
herein set forth. Unless the context otherwise requires, references herein to
"this Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Trust as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in SCHEDULE 2 hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received by them in connection with such purchases to
any broker or dealer.
If the Trust, on one hand, and two or more Agents, on the other hand, enter
into an agreement pursuant to which such Agents agree to purchase Notes from the
Trust as principal and one or more of such Agents shall fail at the Settlement
Date to purchase the Notes which it or they are obligated to purchase (the
"DEFAULTED NOTES"), then the nondefaulting Agents shall have the right, within
24 hours thereafter, to make arrangements for one of them or one or more other
Agents or underwriters to purchase all, but not less than all, of the Defaulted
Notes in such amounts as may be agreed upon and upon the terms herein set forth;
provided, however, that if such arrangements shall not have been completed
within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased by
all of such Agents on the Settlement Date, the nondefaulting Agents shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds
10% of the aggregate principal amount of Notes to be so purchased by all of
such Agents on the Settlement Date, such agreement shall terminate without
liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting
Agent from liability in respect of its default. In the event of any such default
which does not result in a termination of such agreement, either the
nondefaulting Agents, on one hand, or the Trust, on the other hand, shall have
the right to postpone the Settlement Date for a period not exceeding seven days
in order to effect any required changes in the S-1 Registration Statement or the
Prospectus or in any other documents or arrangements.
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Trust, on
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one hand, and an Agent, on the other hand, such Agent, as an agent of the Trust,
will use its reasonable efforts to solicit offers for the purchase of Notes upon
the terms set forth in the Prospectus. Such Agent is authorized to appoint any
sub-agent with respect to solicitations of offers to purchase Notes; provided,
however, that any such appointment of a sub-agent shall be subject to the prior
consent of the Trust and the Company. All Notes sold through such Agent as agent
will be sold at one hundred percent (100%) of their principal amount unless
otherwise agreed upon between the Trust, on one hand, and such Agent, on the
other hand.
The Trust reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Trust, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Trust, such Agent
will suspend solicitation of offers for the purchase of Notes from the Trust
until such time as the Trust has advised such Agent that such solicitation may
be resumed.
The Trust agrees to pay the Agent, as consideration for soliciting offers
to purchase Notes as an agent of the Trust, a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Trust as a result of any such solicitation made by such Agent,
as set forth in SCHEDULE 2 hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes, specified in EXHIBIT A
hereto (as applicable) shall be agreed upon between the Trust, on one hand, and
the applicable Agent(s), on the other hand, and specified in a Pricing
Supplement prepared in connection with each sale of Notes. Except as otherwise
specified in the applicable Pricing Supplement, the Notes will be issued in
denominations of U.S. $1,000 or any larger amount that is an integral multiple
of U.S. $1,000. Administrative procedures with respect to the issuance and sale
of the Notes (the "ADMINISTRATIVE PROCEDURES") shall be agreed upon from time to
time among the Trust, the Agent(s), the Administrator and the Indenture Trustee.
The Agents and Trust agree to perform and the Trust agrees to cause the Company,
the Administrator and the Indenture Trustee to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Administrative Procedures.
(d) OBLIGATIONS SEVERAL. The Trust acknowledges that the obligations of
the Agents under this Agreement are several and not joint.
(e) OTHER SALES. Subject to the terms and conditions of Sections 1(a),
4(k) and 4(l), the Trust reserves the right, to be exercised in its sole
discretion, to sell Notes, in compliance with all applicable securities laws, to
other investors without the assistance of any Agent.
SECTION 4. COVENANTS OF THE TRUST.
The Trust covenants and agrees with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Trust with respect to the S-1
Registration Statement and Prospectus will notify the Agents immediately, and
confirm such notice in writing of (i) the effectiveness of any post-effective
amendment to the S-1 Registration Statement or the filing of any amendment or
supplement to the Prospectus (other than any amendment or
10
supplement thereto providing solely for the determination of the variable terms
of the Notes), (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the S-1 Registration Statement or
any amendment or supplement to the Prospectus or for additional information, or
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the S-1 Registration Statement, or of any order preventing or
suspending the use of any preliminary prospectus or Prospectus, or of the
initiation of any proceedings for that purpose. With respect to the S-1
Registration Statement, the Trust will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OR USE OF AMENDMENTS. The Trust will give each Agent advance
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the S-1
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or any amendment or supplement to the prospectus included in the
S-1 Registration Statement at the time it became effective or to the Prospectus
(other than an amendment or supplement thereto providing solely for the
determination of the variable terms of the Notes), whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish to such Agents copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which an Agent or
counsel for the Agents shall object.
(c) DELIVERY OF THE S-1 REGISTRATION STATEMENT. The Trust has furnished to
the Agents and to counsel for the Agents, without charge, signed and conformed
copies of the S-1 Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed and conformed copies of all consents and
certificates of experts. The S-1 Registration Statement and each amendment
thereto furnished to an Agent will be identical in all material respects to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF THE PROSPECTUS. The Trust will deliver to each Agent,
without charge, as many copies of each preliminary prospectus as such Agent may
reasonably request, and the Trust hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Trust will furnish to each Agent,
without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. 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.
(e) DELIVERY OF THE FORM 10. The Trust has caused the Company to furnish
to the Agents and to counsel for the Agents, without charge, signed and
conformed copies of the Form 10 as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and signed and conformed copies of all consents and certificates of experts. The
Form 10 and each amendment thereto furnished to the Agents will be identical in
all
11
material respects to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(f) PREPARATION OF PRICING SUPPLEMENTS. The Trust will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Trust will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business day
following the date of the Trust's acceptance of the offer for the purchase of
such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 0000 Xxx.
(g) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in Section 4(n), if at any time during the term of this Agreement any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Agents or counsel for the Trust, to amend the
S-1 Registration Statement in order that the S-1 Registration Statement will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the opinion of any
such counsel, to amend the S-1 Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, as applicable, the Trust shall give immediate notice, confirmed
in writing, to the Agents to cease the solicitation of offers for the purchase
of Notes in their capacity as agent and to cease sales of any Notes they may
then own as principal, and the Trust will promptly prepare and file with the
Commission, subject to Section 4(b) hereof, such amendment or supplement as may
be necessary to correct such statement or omission or to make the S-1
Registration Statement and Prospectus comply with such requirements, and the
Trust will furnish to the Agents, without charge, such number of copies of such
amendment or supplement as the Agents may reasonably request. In addition, the
Trust will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
each offering of Notes.
(h) PERIODIC FINANCIAL INFORMATION. Except as otherwise provided in
Section 4(n), on or prior to the date on which there shall be released to the
general public interim financial statement information related to the Company or
the Trust 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
Trust shall, and the Trust agrees to cause the Company to, furnish such
information to the Agents, confirmed in writing, and thereafter promptly shall
cause the Prospectus to be amended or supplemented to include financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations, to the extent required by the 1933 Act or the 1933
Act Regulations.
(i) AUDITED FINANCIAL INFORMATION. Except as otherwise provided in Section
4(n), 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 or
12
Trust for the preceding fiscal year, the Trust shall, and the Trust agrees to
cause the Company to, as applicable, furnish such information to the Agent,
confirmed in writing, and thereafter promptly shall cause the Prospectus to be
amended or supplemented to include such audited consolidated financial
statements and the report or reports, and consent or consents to such inclusion,
of the independent accountants with respect thereto, as well as such other
information and explanations, to the extent required by the 1933 Act or the 1933
Act Regulations.
(j) REPORTING REQUIREMENTS. The Trust, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) RESTRICTIONS ON THE OFFER AND SALE OF SECURITIES TO INSTITUTIONAL
PURCHASERS. Unless otherwise agreed upon between one or more Agents, on one
hand, and the Company and Trust, on the other hand, from the date of the
agreement by such Agent(s) to purchase the related Notes from the Trust to and
including the Settlement Date with respect thereto, the Trust will not, without
the prior written consent of such Agent(s), issue, sell, offer or contract to
sell, grant any option for the sale of, or otherwise dispose of, any
substantially similar debt securities of the Trust to the same potential
institutional investors (other than Notes to be offered and/or sold to or
through such Agent(s)).
(l) RESTRICTIONS ON THE OFFER AND SALE OF SECURITIES TO RETAIL PURCHASERS.
Unless otherwise agreed upon between the Retail Agent, on the one hand, and the
Company and Trust, on the other hand, from the date the retail pricing levels
are posted out to the selling group members through and including the applicable
Settlement Date with respect thereto, the Trust will not, without the prior
written consent of the Retail Agent, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, any substantially
similar debt securities of the Trust to the same potential retail investors
(other than Notes to be offered and/or sold to or through the Retail Agent).
(m) USE OF PROCEEDS. The Trust will use the net proceeds received by it
from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(n) SUSPENSION OF CERTAIN OBLIGATIONS. The Trust shall not be required to
comply with the provisions of Sections 4(g), (h) or (i) during any period from
the time (i) the Agents shall have suspended solicitation of offers for the
purchase of Notes in their capacity as agents pursuant to a request from the
Trust and (ii) no Agent shall then hold any Notes purchased from the Trust as
principal until the time the Trust shall determine that solicitation of offers
for the purchase of Notes should be resumed or an Agent shall subsequently
purchase Notes from the Trust as principal.
(o) LISTING. The Trust shall use reasonable efforts to obtain and maintain
approval for the listing of at least one series of the Notes on a national
securities exchange as defined in Section 18(a)(3)(B) of the 1933 Act until such
time as the Notes of any series are outstanding.
(p) OUTSTANDING AGGREGATE PRINCIPAL AMOUNT OF NOTES. The Trust will
promptly, upon request by an Agent notify such Agent of the aggregate principal
amount of Notes from
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time to time outstanding under the Program in their currency of denomination and
(if so requested) expressed in United States dollars. For the purpose of
determining the aggregate principal amount of Notes outstanding (i) the
principal amount of Notes, denominated in a currency other than United States
dollars shall be converted into United States dollars using the spot rate of
exchange for the purchase of the relevant currency against payment of United
States dollars being quoted by the Paying Agent or Calculation Agent, as
applicable, each as defined in the Indenture on the date on which the relevant
Notes were initially offered, (ii) any Notes which provide for an amount less
than the principal amount thereof to be due and payable upon redemption
following an Event of Default as defined in the Indenture in respect of such
Notes, shall have a principal amount equal to their redemption amount, (iii) any
zero coupon (and any other Notes issued at a discount or premium) shall have a
principal amount equal to their issue amount and (iv) the currency in which any
Notes are payable, if different from the currency of their denomination, shall
be disregarded.
(q) BLUE SKY QUALIFICATIONS. The Company and the Trust shall endeavor to
qualify the Notes 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.
(r) DEPOSITORY TRUST COMPANY. The Trust shall endeavor to assist the
Agents in arranging to cause the Notes to be eligible for settlement through the
facilities of the Depository Trust Company ("DTC").
(s) NOTICE OF AMENDMENT TO INDENTURE, TRUST AGREEMENT OR ANY SERIES TRUST
SUPPLEMENT. The Trust will give the Agents at least three (3) business days'
prior notice in writing of any proposed amendment to the Indenture, Trust
Agreement or any Series Trust Supplement and, except in accordance with the
applicable provisions of the Indenture, Trust Agreement or applicable Series
Trust Supplement, not make or permit to become effective any amendment to the
Indenture, Trust Agreement or such Series Trust Supplement which may adversely
affect the interests of the Agents or any holder of any outstanding Notes
without the consent of the affected party.
(t) AUTHORIZATION TO ACT ON BEHALF OF THE TRUST. The Trust 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 Trust in
relation to the Program if such information has changed.
(u) NOTICE OF MEETING. The Trust will furnish to the Agents, at the same
time as it is dispatched, a copy of notice of any meeting of the holders of
Notes which is called to consider any matter which is material in the context of
the Trust.
SECTION 5. CONDITIONS OF AGENT'S OBLIGATIONS.
The obligations of one or more Agents to purchase Notes from the Trust as
principal, the obligations of an Agent to solicit offers for the purchase of
Notes as an agent of the Trust and the obligations of any purchasers of Notes
sold through an Agent as an agent of the Trust, will be subject to the accuracy
of the representations and warranties on the part of the Trust herein
14
contained, and the accuracy of the representations and warranties on the part of
the Company contained in the Representations and Indemnity Agreement entered
into, as of even date herewith, by and among the Company and the Agents to this
Agreement (the "REPRESENTATIONS AND INDEMNITY AGREEMENT") or contained in any
certificate of an officer or trustee of the Trust or the Company delivered
pursuant to the provisions hereof and thereof, as applicable, to the performance
and observance by the Trust of its covenants and other obligations hereunder or
the performance and observance by the Company of its covenants and other
obligations under the Representations and Indemnity Agreement, and to the
following additional conditions precedent:
(a) EFFECTIVENESS OF THE S-1 REGISTRATION STATEMENT, S-3 REGISTRATION
STATEMENT AND FORM 10. The S-1 Registration Statement (including any Rule 462(b)
Registration Statement), the S-3 Registration Statement (including any Rule
462(b) Registration Statement) and the Form 10 have become effective under the
1933 Act and the 1934 Act, as applicable, and no stop order suspending the
effectiveness of the S-1 Registration Statement or S-3 Registration Statement
shall have been issued under the 1933 Act or the 1934 Act, as applicable, and no
proceedings for that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Agents.
(b) LEGAL OPINIONS. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agent:
(i) OPINION OF THE GENERAL COUNSEL FOR THE COMPANY. The opinion of
Xxxxxxx X. Xxxxxxx, General Counsel for the Company, to the effect set
forth in EXHIBIT B hereto and to such further effect as the Agents may
reasonably request.
(ii) OPINION OF COUNSEL FOR THE AGENTS. The opinion of Sidley Xxxxxx
Xxxxx & Xxxx LLP, counsel for the Agents, with respect to the matters set
forth in EXHIBIT C hereto.
(iii) OPINION OF COUNSEL FOR THE TRUST. The opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel for the Trust, to the effect set forth in EXHIBIT
D hereto and to such further effect as the Agents may reasonably request.
(iv) OPINION OF COUNSEL FOR THE COMPANY. The opinion of LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the Company, to the effect set
forth in EXHIBIT E hereto and to such further effect as the Agents may
reasonably request.
(v) OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN TAX
MATTERS. The opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for
the Company, to the effect set forth in EXHIBIT F hereto and to such
further effect as the Agents may reasonably request.
(vi) OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN INSURANCE
MATTERS. The opinion of Lord, Bissell & Brook, counsel for the Company, to
the effect set forth in EXHIBIT G hereto and to such further effect as the
Agents may reasonably request.
15
(vii) OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN INSURANCE
MATTERS. The opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for
the Company, to the effect set forth in EXHIBIT H hereto and to such
further effect as the Agents may reasonably request.
(c) TRUST OFFICER'S CERTIFICATE. The Trust shall have furnished to the
Agents a certificate of the Trust, signed by the Administrator of the Trust,
dated the date of such certificate, to the effect that the signatory of such
certificate has carefully examined the S-1 Registration Statement, the
Prospectus and amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Trust in this
Agreement are true and correct on and as of the date of such certificate
with the same effect as if made on the date hereof and the Trust has
complied with all agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the date of such certificate;
(ii) no stop order suspending the effectiveness of the S-1
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Trust's knowledge, threatened; and
(iii) since the date of the Prospectus there has occurred no event
required to be set forth in an amendment or supplement to the S-1
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.
(d) 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 S-3 Registration Statement, the Prospectus and amendments
and supplements thereto and this Agreement and that:
(i) no stop order suspending the effectiveness of the S-3
Registration Statement or Form 10 has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(ii) since the date of the Prospectus there has occurred no event
required to be set forth in an amendment or supplement to the S-3
Registration Statement, Prospectus or Form 10, 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.
(e) COMFORT LETTER OF ACCOUNTANTS TO THE COMPANY. On the date hereof, the
Agents shall have received a letter from Deloitte & Touche LLP or its successor,
as accountants to the
16
Company (the "ACCOUNTANTS"), dated as of the date hereof, and in form and
substance satisfactory to the Agent, to the effect set forth in EXHIBIT I
hereto.
(f) ADDITIONAL DOCUMENTS. On the date hereof, counsel to the Agents shall
have been furnished with such documents and opinions as such counsel may require
for the purpose of enabling such counsel to pass upon the issuance and sale of
Notes as herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations and warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company and Trust in connection with the issuance and sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the Agents
and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent(s) by notice to the Trust at any time and any such termination
shall be without liability of any party to any other party except as provided in
Section 10 hereof and except that Sections 8, 9, 11, 14 and 15 hereof shall
survive any such termination and remain in full force and effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT AS AGENT.
Delivery of Notes sold through an Agent as an agent of the Trust shall be
made by the Trust to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, such Agent shall promptly notify the Trust and
deliver such Note to the Trust and, if such Agent has theretofore paid the Trust
for such Note, the Trust will promptly return such funds to such Agent. If such
failure has occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Trust will reimburse such Agent on
an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Trust's account.
SECTION 7. ADDITIONAL COVENANTS OF THE TRUST.
The Trust further covenants and agrees with each Agent as follows:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Trust of an offer for the purchase of Notes (whether to one or more Agents
as principal or through one or more Agents as agent), and each delivery of Notes
(whether to one or more Agents as principal or through an Agent as agent) shall
be deemed to be an affirmation that the representations and warranties of the
Trust 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).
17
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the S-1
Registration Statement, S-3 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 or the Trust under the 1934 Act or the 1934 Act Regulations, except any
quarterly report of the Company or Trust on Form 10-Q or any annual report of
the Company or the Trust on Form 10-K (any such report, an "SEC Periodic
Report")), (ii) (if required in connection with the purchase of Notes from the
Trust by one or more Agents as principal) the Trust sells Notes to one or more
Agents as principal or (iii) the Trust sells Notes in a form not previously
certified to the Agents by the Trust, the Trust shall, and the Trust agrees to
cause the Company to, 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 Sections 5(c)
and 5(d) hereof which were last furnished to the Agents are true and correct at
the time of the filing or effectiveness of such amendment or supplement, as
applicable, or the time of such sale, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
S-1 Registration Statement, the S-3 Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Sections 5(c)
and 5(d) hereof, modified as necessary to relate to the S-1 Registration
Statement, the S-3 Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate (it being understood
that, in the case of clause (ii) above, any such certificate shall also include
a certification that there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise or of
the Trust since the date of the agreement by such Agent to purchase Notes from
the Trust as principal); PROVIDED, HOWEVER, that any delivery of certificates as
required by this Section 7(b) due to the filing of an SEC Periodic Report shall
only be required to be delivered prior to the pricing date for the series
of Notes issued immediately after such SEC Periodic Report.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the S-1
Registration Statement, S-3 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 or the Trust under the 1934 Act or the 1934 Act Regulations, except any
SEC Periodic Report), (ii) (if required in connection with the purchase of Notes
from the Trust by one or more Agents as principal) the Trust sells Notes to one
or more Agents as principal or (iii) the Trust sells Notes in a form not
previously certified to the Agents by the Trust, the Trust agrees to cause the
Company to furnish or cause to be furnished forthwith to the Agents and to
counsel to the Agents the written opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., counsel to the Company, or other counsel satisfactory to the Agent,
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 and substance satisfactory to the Agent, of the same tenor
as the opinion referred to in Section 5(b)(iv) hereof, but modified, as
necessary, to relate to the S-1 Registration Statement, S-3 Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion or, in lieu of such opinion,
18
counsel last furnishing such opinion to the Agents shall furnish such Agents
with a letter substantially to the effect that the Agents may rely on such last
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the S-1 Registration Statement, S-3 Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance); PROVIDED, HOWEVER, that any delivery of opinions
as required by this Section 7(c) due to the filing of an SEC Periodic Report
shall only be required to be delivered prior to the pricing date for the series
of Notes issued immediately after such SEC Periodic Report. As of each -, the
Trust agrees to furnish or cause to be furnished forthwith to the Agents the
written opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel to the Agents, or
such other counsel reasonably satisfactory to the Agents, dated as of the date
of the filing of such Form 10-K with the Commission, of the same tenor as the
opinion referred to in Section 5(b)(ii) hereof, but modified, as necessary, to
relate to the S-1 Registration Statement, S-3 Registration Statement and
Prospectus as amended and supplemented to the time of delivery of such opinion.
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the S-1
Registration Statement, S-3 Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information (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 or the Trust under the 1934 Act or
the 1934 Act Regulations, except any SEC Periodic Report) or (ii) (if required
in connection with the purchase of Notes from the Trust by one or more Agents as
principal) the Trust sells Notes to one or more Agents as principal, the Trust
agrees to cause the Company to cause the Accountants forthwith to furnish to the
Agents a letter, 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, of the same
tenor as the letter referred to in Section 5(e) hereof but modified to relate to
the S-1 Registration Statement, S-3 Registration Statement and Prospectus as
amended and supplemented to the date of such letter; PROVIDED, HOWEVER, that any
delivery of any letter as required by this Section 7(d) due to the filing of an
SEC Periodic Report shall only be required to be delivered prior to the pricing
date for the series of Notes issued immediately after such SEC Periodic Report.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT. The Trust agrees to indemnify and hold
harmless each Agent and each person, if any, who controls such Agent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the S-1 Registration
Statement (or any amendment thereto) or S-3 Registration Statement (or any
amendment thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of
19
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
8(d) hereof) any such settlement is effected with the written consent of
the Trust; 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 Trust by the Agents
concerning the Agents expressly for use in the S-1 Registration Statement (or
any amendment thereto) or S-3 Registration Statement (or any amendment thereto)
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), (ii) any use of the Prospectus by the Agents to sell Notes or solicit
offers for the purchase of Notes (x) after such time as the Trust shall have
provided written notice pursuant to Section 4(g) hereunder or the Company shall
have provided written notice pursuant to Section 2(f) of the Representations and
Indemnity Agreement, to the Agents to cease the sale of Notes and solicitation
of offers for the purchase of Notes and (y) before such time as the Trust and
the Company shall have furnished the Agents with copies of such amendment or
supplement to the Prospectus pursuant to Section 4(g) hereunder or Section 2(f)
of the Representations and Indemnity Agreement or (iii) a claim for indemnity
made under the Representations and Indemnity Agreement, only to the extent such
claim has previously been satisfied by the Company pursuant to the terms of the
Representations and Indemnity Agreement.
(b) INDEMNIFICATION OF THE TRUST. Each Agent agrees, severally but not
jointly, to indemnify and hold harmless the Trust, its administrator, directors,
officers and trustees (if applicable) who signed the S-1 Registration Statement
and each person, if any, who controls the Trust 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 8(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the S-1
Registration Statement (or any amendment thereto) or S-3 Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Trust by such Agent concerning such Agent
expressly for use in the S-1 Registration Statement (or any amendment
20
thereto) or S-3 Registration Statement Amendment (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the 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 8(a) hereof or
Section 5(a) of the Representations and Indemnity Agreement, counsel to the
indemnified parties shall be selected by the applicable Agent(s) and, in the
case of parties indemnified pursuant to Section 8(b) hereof or Section 5(b) of
the Representations and Indemnity Agreement, counsel to the indemnified shall be
selected by the Trust and the Company. 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 Representations and Indemnity Agreement), whether such
indemnity is claimed hereunder or under the Representations and Indemnity
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 Representations and
Indemnity Agreement shall, without the prior written consent of the indemnified
parties under this Agreement and the Representations and Indemnity 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 8 or Section
9 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(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 9. CONTRIBUTION.
21
If the indemnification provided for in Section 8 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 Trust, 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 Trust, 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 Trust, 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 Trust 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 Trust, 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
Trust, 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 9 were determined by pro rata allocation (even if the
Agents were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 9. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 9 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 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Trust by two or more Agents as principal, the respective
obligations of such
22
Agents to contribute pursuant to this Section 9 are several, and not joint, in
proportion to the aggregate principal amount of Notes that each such Agent has
agreed to purchase from the Trust.
For purposes of this Section 9, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Agent, and each director,
officer and trustee (if applicable) of the Trust, and each person, if any, who
controls the Trust 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 Trust.
SECTION 10. PAYMENT OF EXPENSES.
The Trust will pay all expenses incident to the performance of the
obligations of the Company and Trust under this Agreement, including:
(a) The preparation, filing, printing and delivery of the S-1 Registration
Statement and S-3 Registration Statement as originally filed and all amendments
thereto and any preliminary prospectus, the Prospectus and any amendments or
supplements thereto;
(b) The preparation, printing and delivery of the Program Documents;
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes;
(d) The fees and disbursements of the Company's and Trust's accountants,
counsel and other advisors or agents (including any calculation agent or
exchange rate agent) and of the Delaware Trustee, Administrator and Indenture
Trustee and their counsel;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the maintenance of the Program and, unless otherwise
agreed, incurred from time to time in connection with the transactions
contemplated hereby;
(f) The fees charged by the nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of Notes
on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and disbursements
of counsel to the Agents in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD"); and
(i) Any reasonable advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company and Trust.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
23
All representations, warranties and agreements contained in this Agreement,
in certificates of the officers of the Administrator or Delaware Trustee of the
Trust submitted pursuant hereto or thereto 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 or the Trust, and shall survive each delivery of and payment for the
Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any agreement
by one or more Agents to purchase Notes from the Trust as principal) may be
terminated for any reason, at any time by (i) the Trust as to all the Agents or
one or more but less than all the Agents, or (ii) an Agent as to itself, upon
the giving of thirty (30) days' prior written notice of such termination to the
other parties hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Trust as principal, immediately upon notice to the Trust, at any
time on or prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, any 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, or of the Trust, whether or not arising in the ordinary course of
business, or (ii) there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development or
event involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to
make it, in the judgment of such Agent(s), impracticable or inadvisable to
market such Notes or enforce contracts for the sale of such Notes, (iii) trading
in any securities of the The Allstate Corporation, a publicly owned holding
company incorporated under the laws of the State of Delaware (the
"CORPORATION"), Allstate Insurance Company, a stock property-liability insurance
company incorporated under the laws of the State of Illinois ("AIC"), the
Company, or Trust has been suspended or materially limited by the Commission or
a national securities exchange, or if trading generally on the New York Stock
Exchange or the American Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by either of
said exchanges or by such system or by order of the Commission, the NASD or any
other governmental authority, or a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, (iv) a banking moratorium has been declared by either Federal or New
York authorities or by the relevant authorities in the country or countries of
origin of any foreign or composite currency in which such Notes are denominated
or payable, (v) the rating assigned by any nationally recognized statistical
rating organization to the Program or any other debt securities (including the
Notes) of the Trust or the financial strength of the Company as of the date of
such agreement shall have been lowered or withdrawn since that date or if any
such rating organization shall have publicly announced that it has under
surveillance or review its rating, with possible negative implications, of the
Program or any such debt securities (including the Notes) of the Trust or the
financial strength of the Company or (vi) there shall have come to the attention
of such Agent(s) any facts
24
that would cause such Agent(s) to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of such Notes, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances existing
at the time of such delivery, not misleading.
(c) GENERAL. In the event of any such termination, neither party will have
any liability to the other party hereto, except that (i) the Agent(s) shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Trust as principal or (b) an offer to
purchase any of the Notes has been accepted by the Trust but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the provisions of Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, and the provisions of Sections
11, 14 and 15 hereof shall remain in effect.
SECTION 13. 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 Trust:
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
With a copy to the Company at the address set forth below.
If to the Agents:
To each Agent at the address specified in SCHEDULE 1.
With a copy to the Company at the address set forth below.
Address of the Company:
Allstate Life Insurance Company
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Assistant Vice President, Institutional Markets
Telecopy No.: ______________
25
or at such other address as such party or the Company may designate from time to
time by notice duly given in accordance with the terms of this Section 13.
SECTION 14. 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 8 and 9
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 15. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE TRUST 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 16. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 17. 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 18. AMENDMENTS.
This Agreement may be amended or supplemented if, but only if, such
amendment or supplement is in writing and is signed by the Trust, and the
Agents. The Trust may from time to time nominate any institution as a new Agent
hereunder either in respect of the Program generally or in relation to a
particular series or tranche of Notes only; in which event, upon confirmation by
such institution of an initial purchaser accession letter (the "AGENT ACCESSION
LETTER") in the terms or substantially in the form of EXHIBIT J, such
institution shall become a party hereto, subject as provided below, with all the
authority, rights, powers, duties and obligations of an Agent as if originally
named as an Agent hereunder; provided further that, in
26
the case of an institution which has become an Agent in relation to a particular
tranche of Notes, following the issue of the relevant Notes in respect of the
relevant tranche, the relevant new Agent shall have no further authority rights,
powers, duties or obligations except such as may have accrued or been incurred
prior to, or in connection with, the issue of such tranche of Notes. Any Agent
that executes a counterpart to this Agreement shall simultaneously execute a
counterpart to the Representations and Indemnity Agreement.
SECTION 19. SERIES TRUST.
The Trust constitutes a trust, organized in series, pursuant to Sections
3804 and 3806(b)(2) of the Delaware Statutory Trust Act; as such, separate and
distinct records shall be maintained and the assets of the Trust with respect to
each Series Trust shall be held and accounted for separately from the other
assets of the Trust and other Series Trusts; the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to each
Series Trust shall be enforceable against the assets of such Series Trust only,
and not against the assets of the Trust generally or the assets of any other
Series Trust.
SECTION 20. STABILIZATION.
The Agent(s) may, to the extent permitted by applicable laws, over-allot
and effect transactions in any over-the-counter market or otherwise in
connection with the distribution of the Notes with a view to supporting the
market price of Notes at levels higher than those that might otherwise prevail
in the open market. Such transactions, if commenced, may be discontinued at any
time. In such circumstances, as between the Trust, on one hand, and one or more
Agents, on the other hand, such Agent(s) shall act as principal, and any loss
resulting from stabilization shall be borne, and any profit arising therefrom
and any sum received by such Agent(s) shall be beneficially retained by such
Agent(s), as the case may be, for such Agents' own account.
27
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement by
and between the Agents and the Trust in accordance with its terms.
Very truly yours,
ALLSTATE LIFE GLOBAL FUNDING
By:
------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
[OTHER AGENTS]
28
INDEX OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A - Pricing Terms
Exhibit B - Form of Opinion of General Counsel to the Company
Exhibit C - Form of Opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel to the
Agents
Exhibit D - Form of Opinion of Xxxxxxxx Xxxxxx & Finger, counsel to the Trust
Exhibit E - Form of Opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. counsel to
the Company
Exhibit F - Form of Opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. counsel to
the Company
Exhibit G - Form of Opinion of Lord, Bissell & Brook, counsel to the Company
Exhibit H - Form of Opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. counsel to
the Company
Exhibit I - Form of Comfort Letter of Deloitte & Touche, LLP, accountants to the
Company
Exhibit J - Form of Agent Accession Letter
SCHEDULES
Schedule 1 - List of Agents
Schedule 2 - Commission/Discount Schedule
- i -
