Exhibit 1.1
ALLSTATE LIFE GLOBAL FUNDING
$4,000,000,000
SECURED MEDIUM TERM NOTE PROGRAM
DISTRIBUTION AGREEMENT
-, 2004
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Barclays Capital Inc.
Citigroup Global Markets Inc.
Credit Suisse First Boston LLC
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
Wachovia Securities L.L.C.
Ladies and Gentlemen:
Allstate Life Global Funding, a Delaware statutory trust ("GLOBAL
FUNDING"), formed pursuant to a Trust Agreement, dated June 24, 2002, as
amended, restated or modified from time to time (the "GLOBAL FUNDING TRUST
AGREEMENT"), between Wilmington Trust Company, as Delaware trustee (the "GLOBAL
FUNDING DELAWARE TRUSTEE"), and AMACAR Pacific Corp., as trust beneficial owner,
in connection with the Allstate Life Global Funding Secured Medium Term Note
Program (the "INSTITUTIONAL PROGRAM") and the Allstate Life(SM) CoreNotes(SM)
Program (the "RETAIL PROGRAM" and, together with the Institutional Program, the
"PROGRAMS"), confirms 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, from time to time by separate and
distinct Delaware statutory trusts formed and beneficially owned by Global
Funding (each, an "ISSUING TRUST" and, collectively, the "ISSUING Trusts"), of
notes due between nine months and thirty years from the date of issuance (the
"NOTES"). As of the date hereof, the Issuing Trusts are authorized to issue
collectively up to U.S. $4,000,000,000 aggregate initial offering price of Notes
(or its equivalent as determined in Section 4(o)).
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Allstate Life(SM) is a service xxxx of Allstate Life Insurance Company.
CoreNotes(R) is a registered service xxxx of Xxxxxxx Xxxxx & Co.
From time to time, upon the formation of a new Issuing Trust, in
connection with the offer and sale of Notes by such Issuing Trust, upon
execution and delivery by such Issuing Trust and the applicable Agent or Agents
of the terms agreement (the "TERMS AGREEMENT") set forth in Section - of the
series instrument to be executed by Global Funding, such Issuing Trust and the
applicable Agent or Agents, among others (the "SERIES INSTRUMENT"), such Issuing
Trust shall become a party hereto in relation to its Notes (the time of such
execution and delivery referred to herein as such Issuing Trust's "TRUST
EFFECTIVE TIME"), with all the authority, rights, powers, duties and obligations
of an Issuing Trust as if originally named as an Issuing Trust hereunder. Any
agreement, covenant, acknowledgment, representation or warranty made by an
Issuing Trust hereunder shall be deemed to have been made by each Issuing Trust
at its Trust Effective Time, unless another time or times are specified herein,
in which case such specified time or times shall instead apply.
The Notes of each Issuing Trust will be issued pursuant to an
indenture, as amended or modified from time to time, which will adopt and
incorporate the standard indenture terms (each, an "INDENTURE" and,
collectively, the "INDENTURES") between the relevant Issuing Trust and X.X.
Xxxxxx Trust Company, National Association, as indenture trustee (the "INDENTURE
TRUSTEE"). Each Issuing Trust shall issue only one series of Notes.
Each Issuing Trust will immediately use the proceeds from the sale of
its Notes to purchase a funding note (each a "FUNDING NOTE") from Global
Funding. Each Funding Note will be issued pursuant to a funding note indenture,
as amended or modified from time to time, which will adopt and incorporate the
standard funding note indenture terms (each, a "FUNDING NOTE INDENTURE") between
Global Funding and X.X. Xxxxxx Trust Company, National Association, as the
funding note indenture trustee (the "FUNDING NOTE INDENTURE TRUSTEE"). Global
Funding will immediately use the net proceeds received from the sale of the
Funding Note to purchase one or more funding agreements (the "FUNDING
AGREEMENT(S)") issued by Allstate Life Insurance Company, an Illinois stock life
insurance company (the "COMPANY"). Global Funding will immediately assign
absolutely to, and deposit into the relevant Issuing Trust, the relevant Funding
Agreement(s) and the relevant Funding Note will be surrendered. The Notes of the
Issuing Trust will be secured by the relevant Funding Agreement(s). The Issuing
Trust will immediately collaterally assign, and grant a first priority perfected
security interest in, the Funding Agreement(s) to the Indenture Trustee for the
benefit of the holders of the Notes of the Issuing Trust pursuant to the terms
of the Indenture. In connection with the sale of its Notes, the Issuing Trust
will prepare a Pricing Supplement (the "PRICING SUPPLEMENT") including or
incorporating by reference a description of the terms of the Notes and the terms
of the offering.
The Agents include those institutions named from time to time in
SCHEDULE 1 hereto and any institution appointed as an Agent pursuant to Section
19 below. If any institution is appointed as an Agent only with respect to the
Notes of a particular Issuing Trust, such institution shall only be an Agent
with respect to Notes of such Issuing Trust.
This Agreement specifies the terms and conditions on which Notes may
be sold by an Issuing 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 such Issuing Trust in soliciting offers for
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the purchase of Notes and (iii) to such other investors in compliance with all
applicable securities laws as such Issuing 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
under the 1934 Act. The Company and Global Funding have filed with the
Commission a registration statement on Form S-3 (No. 333--) and pre-effective
amendment no.- thereto as amended, if applicable (the "REGISTRATION STATEMENT")
under the Securities Act of 1933, as amended (the "1933 ACT"), for the
registration of the Funding Agreement(s), the Funding Notes, and the Notes, 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 Registration
Statement has been declared effective by the Commission, and the form of
Indenture and the form of Funding Note Indenture have been duly qualified under
the Trust Indenture Act of 1939, as amended (the "1939 ACT"), and the Company
and Global Funding have filed such post-effective amendments thereto as may be
required prior to the acceptance by Global Funding and any Issuing Trust of any
offer for the purchase of Notes and each such post-effective amendment has been
declared effective by the Commission. 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 "Registration Statement" and the "Prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the 1934 Act, prior to any acceptance by Global Funding and any Issuing Trust of
an offer for the purchase of Notes; provided, further, that if the Company or
Global Funding file a registration statement with the Commission pursuant to
Rule 462(b) of the 1933 Act Regulations (the "RULE 462(b) REGISTRATION
STATEMENT"), then, after such filing, all references to the "Registration
Statement" shall also be deemed to include the Rule 462(b) Registration
Statement. A "PRELIMINARY PROSPECTUS" shall be deemed to refer to any prospectus
used before the Registration Statement became effective and any prospectus
furnished by the Company or Global Funding after the Registration Statement
became effective and before any acceptance by Global Funding and an Issuing
Trust of an offer for the purchase of its 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 Registration Statement, Prospectus or preliminary prospectus
or to any amendment or supplement thereto shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "disclosed", "contained", "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
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SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated herein,
Global Funding and the relevant Issuing Trust hereby agree that the Notes of
such Issuing Trust will be sold to or through the Agents pursuant to the terms
of this Agreement. Global Funding and the relevant Issuing Trust agree that they
will not appoint any other agents to act on an Issuing Trust's behalf or to
assist an Issuing Trust, 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 under the Institutional Program, Global Funding and an
Issuing 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. Global Funding and each
Issuing Trust agree that they hereby appoint only Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (the "PURCHASING AGENT") to act on an Issuing Trust's
behalf or to assist an Issuing Trust in connection with transactions in which
the sale of Notes will be targeted to retail purchasers under the Retail
Program. For purposes of this Agreement, all references to any Agent shall be
deemed to include the Purchasing Agent.
(b) SALE OF NOTES. Each Issuing 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 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 Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation
to purchase Notes from any Issuing Trust as principal. However, absent an
agreement by and between Global Funding and the relevant Issuing Trust, on the
one hand, and an Agent, on the other hand, for such Agent to act as an agent for
the relevant Issuing Trust, such Agent shall be deemed to be acting as principal
in connection with any offering of Notes by such Issuing Trust. Accordingly, the
Agents, individually or in a syndicate, may agree from time to time to purchase
Notes from an Issuing Trust as principal for resale to investors determined by
such Agents. Any purchase of Notes from an Issuing 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, on the
one hand, and Global Funding and an Issuing Trust, on the other hand, then such
Agent, acting solely as an agent for such Issuing Trust and not as principal,
will solicit offers for the purchase of Notes. Such Agent will communicate to
such Issuing 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 breach of its agreement contained herein. Such Issuing
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 such Issuing 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 such Issuing Trust.
Such Agent shall not have any liability to such Issuing Trust in the event that
any such purchase is not consummated for any reason. If such Issuing 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 such Issuing
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Trust, then (i) such Issuing Trust shall hold such Agent harmless against any
loss, claim or damage arising from or as a result of such default by such
Issuing Trust and (ii) the Issuing Trust shall be responsible to pay to such
Agent any commission to which such Agent would otherwise be entitled absent such
default.
(e) RELIANCE. Each Issuing Trust and Global Funding, on the one hand,
and the Agents, on the other hand, agree that any Notes purchased from an
Issuing 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 such Issuing Trust
shall be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of Global Funding and such Issuing Trust contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF GLOBAL FUNDING. Global Funding
represents and warrants to each Agent as of the date hereof, as of the date of
each acceptance by an Issuing 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 is referred to herein as a
"SETTLEMENT DATE"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (each of the times referenced above
is referred to herein as a "GLOBAL FUNDING REPRESENTATION DATE"), as follows:
(i) DUE FORMATION AND GOOD STANDING OF GLOBAL FUNDING. Global
Funding is a statutory trust, duly formed under Delaware law pursuant
to the Global Funding 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.
(ii) REGISTRATION STATEMENT AND PROSPECTUS; FILING STATUS.
Global Funding meets the requirements for use of Form S-3 under the
1933 Act; the Registration Statement (and any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the 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 Global Funding, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with; the form of Indenture
has been duly qualified under the 1939 Act; the form of Funding Note
Indenture has been duly qualified under the 1939 Act; at the
respective times that the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendment
thereto became effective and at each Global Funding Representation
Date, the Registration Statement (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
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to be stated therein or necessary to make the statements therein not
misleading; each preliminary prospectus and Prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
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 Global Funding
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
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to Global Funding in writing by
the applicable Agents concerning such Agents expressly for use in the
Registration Statement or the Prospectus or (ii) the parts of the
Registration Statement which constitute the Statement of Eligibility
and Qualification (Form T-1) of the Indenture Trustee and the Funding
Note 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 Global Funding
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 Global Funding and
each Issuing 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 Registration Statement and the Prospectus are independent public
accountants to the extent required by the 1933 Act and the 1933 Act
Regulations.
(v) GLOBAL FUNDING FINANCIAL STATEMENTS. The consolidated
financial statements of Global Funding, 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 Global
Funding at the 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
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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 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 Global Funding or on the
power or ability of Global Funding to perform its obligations under
this Agreement, the Global Funding Trust Agreement, any Funding Note
or the Administrative Services Agreement (the "GLOBAL FUNDING
ADMINISTRATION AGREEMENT"), dated June 24, 2002, as amended, restated
or modified from time to time, between the Global Funding Delaware
Trustee, on behalf of Global Funding, and AMACAR Pacific Corp., as
administrator (the "GLOBAL FUNDING ADMINISTRATOR"), or to consummate
the transactions to be performed by it as contemplated in the
Prospectus (a "GLOBAL FUNDING MATERIAL ADVERSE EFFECT") and (2) there
have been no transactions entered into by Global Funding, other than
those in the ordinary course of business, which are material with
respect to Global Funding.
(vii) AUTHORIZATION OF THIS AGREEMENT, EACH FUNDING AGREEMENT,
GLOBAL FUNDING TRUST AGREEMENT, GLOBAL FUNDING ADMINISTRATION
AGREEMENT, THE FUNDING NOTE INDENTURE AND THE FUNDING NOTES. This
Agreement, the Global Funding Trust Agreement and Global Funding
Administration Agreement have been, and each Funding Note Indenture,
Funding Note and relevant Funding Agreement will be, duly authorized,
executed and delivered by Global Funding and this Agreement, each
relevant Funding Agreement, the Global Funding Trust Agreement, the
Global Funding Administration Agreement, the Funding Note Indenture
and the Funding Notes will each be a valid and legally binding
agreement of Global Funding enforceable against Global Funding 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 Funding Note
that is 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 holder of the Funding Notes will be entitled to the
benefits of the Funding Note Indenture.
(viii) ABSENCE OF DEFAULTS AND CONFLICTS. Global Funding 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 Global Funding is a party or by which it may be bound or to
which any of the property or assets of Global Funding is subject (the
"GLOBAL FUNDING AGREEMENTS AND INSTRUMENTS"), except for such
violations or defaults that would not result in a Global Funding
Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the Global Funding Trust Agreement, the Funding
Agreement(s), Global Funding Administration
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Agreement and each Funding Note and any other agreement or instrument
entered into or issued or to be entered into or issued by Global
Funding 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 by an Issuing
Trust and the use of proceeds therefrom as described in the
Prospectus) (collectively, the "GLOBAL FUNDING PROGRAM DOCUMENTS") and
the compliance by Global Funding with its obligations hereunder and
under Global Funding 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 Global Funding under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets,
properties or operations of any Issuing Trust or Global Funding
pursuant to, any Global Funding Agreements and Instruments, nor will
such action result in any violation of Global Funding's certificate of
trust, the Global Funding Trust Agreement or Global Funding
Administration Agreement which may reasonably be expected to result in
a Global Funding Material Adverse Effect and Global Funding 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 Global Funding or any of its assets,
properties or operations, except for such defaults which would not
reasonably be expected to result in a Global Funding 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 Global Funding threatened, against or affecting
Global Funding which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
may reasonably be expected to result in a Global Funding Material
Adverse Effect, or which may reasonably be expected to materially and
adversely affect the assets, properties or operations thereof, the
performance by Global Funding of its obligations under this Agreement
and the other Global Funding Program Documents or the consummation of
the transactions contemplated in the Prospectus; and the aggregate of
all pending legal or governmental proceedings to which Global Funding
is a party or of which any of its assets, properties or operations is
the subject which are not described in the Registration Statement and
the Prospectus, including ordinary routine litigation incidental to
the business, may not reasonably be expected to result in a Global
Funding Material Adverse Effect.
(x) POSSESSION OF LICENSES AND PERMITS. Global Funding
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; Global
Funding 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 Global Funding Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental
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Licenses or the failure of such Governmental Licenses to be in full
force and effect would not result in a Global Funding Material Adverse
Effect; and Global Funding 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 Global
Funding Material Adverse Effect.
(xi) NO FILINGS, REGULATORY APPROVALS ETC. 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 Global Funding of Global
Funding Program Documents or for the performance by Global Funding of
the transactions contemplated in Global Funding Program Documents,
except such as have been previously made, obtained or rendered, as
applicable.
(xii) INVESTMENT COMPANY ACT. Neither Global Funding nor any
Issuing Trust is, and upon any sale of Funding Notes and 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 Programs are (A) expected to be rated [____]
by Xxxxx'x Investors Service, Inc. ("MOODY'S") and (B) rated [_____]
by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("STANDARD & POOR'S") (Moody's and Standard & Poor's
are referred to herein as the "RATINGS AGENCIES"), or, in each case,
such other rating as to which Global Funding shall have most recently
notified the Agents pursuant to Section 4(u) 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) REPRESENTATIONS AND WARRANTIES OF THE RELEVANT ISSUING TRUST.
Each Issuing Trust represents and warrants, only as to itself, to each
applicable Agent as of the such Issuing Trust's Trust Effective Time, as of the
date of each acceptance by such Issuing Trust of an offer for the purchase of
its Notes (whether to each such Agent as principal or through each such Agent as
agent) and as of the date of each delivery of its Notes (whether to each such
Agent as principal or through each such Agent as agent) (the date of each such
delivery is referred to herein as a "SETTLEMENT DATE") (each of the times
referenced above is referred to herein as an "ISSUING TRUST REPRESENTATION
DATE"), as follows:
(i) DUE FORMATION AND GOOD STANDING OF THE ISSUING TRUST. Such
Issuing Trust is a statutory trust, duly formed under Delaware law
pursuant to the trust agreement between Wilmington Trust Company, as
Delaware trustee (the "RELEVANT ISSUING TRUST TRUSTEE") and Global
Funding (the "ISSUING 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.
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(ii) NO MATERIAL CHANGES. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus or the Trust Effective Time, whichever is later, 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 such Issuing Trust or on the power or
ability of such Issuing Trust to perform its obligations under this
Agreement, the Issuing Trust Agreement, its Notes, any Funding
Agreement, the Indenture or the Issuing Trust Administrative Services
Agreement (the "ISSUING TRUST ADMINISTRATION AGREEMENT"), as amended
or modified from time to time, between the Relevant Issuing Trust
Trustee, on behalf of such Issuing Trust, and AMACAR Pacific Corp., as
administrator (the "ISSUING TRUST ADMINISTRATOR"), or to consummate
the transactions to be performed by it as contemplated in the
Prospectus (an "ISSUING TRUST MATERIAL ADVERSE EFFECT") and (2) there
have been no transactions entered into by such Issuing Trust, other
than those in the ordinary course of business, which are material with
respect to such Issuing Trust.
(iii) AUTHORIZATION OF THIS AGREEMENT, THE ISSUING TRUST
AGREEMENT, THE ISSUING TRUST ADMINISTRATION AGREEMENT, THE INDENTURE
AND THE NOTES. This Agreement, the Issuing Trust Agreement, the
Issuing Trust Administration Agreement and the relevant Indenture have
been or will be, duly authorized, executed and delivered by such
Issuing Trust and each is or will be a valid and legally binding
agreement of the Issuing Trust enforceable against the Issuing 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 such Issuing 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 such Issuing
Trust, enforceable against such Issuing 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
Indenture; and each holder of Notes will be entitled to the benefits
set forth in the Indenture.
(iv) ABSENCE OF DEFAULTS AND CONFLICTS. Such Issuing 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 such Issuing Trust is a party or by which it may be bound or to
which any of the property or assets of
10
such Issuing Trust is subject (the "ISSUING TRUST AGREEMENTS AND
INSTRUMENTS"), except for such violations or defaults that would not
result in an Issuing Trust Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Issuing Trust
Agreement, the Issuing Trust Administration Agreement, its Notes and
the Indenture and any other agreement or instrument entered into or
issued or to be entered into or issued by such Issuing 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 by an Issuing Trust and
the use of proceeds therefrom as described in the Prospectus)
(collectively, the "ISSUING TRUST PROGRAM DOCUMENTS") and the
compliance by such Issuing Trust with its obligations hereunder and
under the Issuing Trust 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 such Issuing Trust under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of any Issuing Trust or such Issuing
Trust pursuant to, any Issuing Trust Agreements and Instruments, nor
will such action result in any violation of such Issuing Trust's
certificate of trust, the Issuing Trust Agreement or the Issuing Trust
Administration Agreement which may reasonably be expected to result in
an Issuing Trust Material Adverse Effect and such Issuing 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 such Issuing Trust or any of its assets,
properties or operations, except for such defaults which would not
reasonably be expected to result in an Issuing Trust Material Adverse
Effect.
(v) 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 such Issuing Trust threatened, against or affecting
such Issuing Trust which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated
therein), or which may reasonably be expected to result in an Issuing
Trust Material Adverse Effect, or which may reasonably be expected to
materially and adversely affect the assets, properties or operations
thereof, the performance by such Issuing Trust of its obligations
under this Agreement and the other Issuing Trust Program Documents or
the consummation of the transactions contemplated in the Prospectus;
and the aggregate of all pending legal or governmental proceedings to
which such Issuing Trust is a party or of which any of its assets,
properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, may not reasonably be expected
to result in an Issuing Trust Material Adverse Effect.
(vi) POSSESSION OF LICENSES AND PERMITS. Such Issuing Trust
possesses such Governmental Licenses issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it; such Issuing
Trust is in compliance with the terms and conditions of all such
Governmental
11
Licenses, except where the failure so to comply would not, singly or
in the aggregate, result in an Issuing 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 an Issuing Trust Material Adverse Effect;
and such Issuing 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 an Issuing
Trust Material Adverse Effect.
(vii) 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 such Issuing Trust of the
Issuing Trust Program Documents or for the performance by such Issuing
Trust of the transactions contemplated in the Issuing Trust Program
Documents, except such as have been previously made, obtained or
rendered, as applicable.
(viii) INVESTMENT COMPANY ACT. Such Issuing Trust is not, and
upon any sale of Notes by such Issuing Trust 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 1940 Act.
(ix) NOTES LISTED ON ANY STOCK EXCHANGE. If specified in a
Pricing Supplement, such Issuing Trust's Notes described in such
Pricing Supplement shall be listed on the securities exchange
designated in the Pricing Supplement.
(c) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer
of the Global Funding Delaware Trustee, on behalf of Global Funding or any
officer of the Delaware Issuing Trustee, on behalf of the applicable Issuing
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
Global Funding or Issuing Trust (as applicable) to such Agent(s) as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT; OTHER SALES.
(a) PURCHASES AS PRINCIPAL. Notes purchased from an Issuing 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 Global
Funding and such Issuing Trust, on the other hand, specified in the Terms
Agreement. 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 Global
Funding and Issuing 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 Terms Agreement Each
purchase of Notes by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as the
Purchasing Agent, unless otherwise agreed,
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shall be at a discount from the principal amount of each such Note equivalent to
the applicable commission set forth in SCHEDULE 2 hereto. Any other 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
3 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 Global Funding and an Issuing Trust, on one hand, and two or more
Agents, on the other hand, enter into a Terms Agreement pursuant to which such
Agents agree to purchase Notes from such Issuing 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 Global Funding and such Issuing 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
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 an Issuing Trust, on one hand, and an Agent, on the other
hand, such Agent, as an agent of the such Issuing Trust, will use its reasonable
efforts to solicit offers for the purchase of such Issuing Trust's Notes upon
the terms set forth in the Prospectus. Unless the context otherwise requires,
references herein to "this Agreement" shall include the applicable Terms
Agreement. 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 Company
and such Issuing Trust. 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 relevant Issuing Trust, on one hand, and such Agent, on the
other hand.
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An Issuing 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 such Issuing Trust, commencing at any time for any period of time or
permanently. As soon as practicable after receipt of instructions from such
Issuing Trust, such Agent will suspend solicitation of offers for the purchase
of Notes from such Issuing Trust until such time as such Issuing Trust has
advised such Agent that such solicitation may be resumed.
Each Issuing Trust agrees to pay Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, for acting as the Purchasing Agent, as consideration for
soliciting offers to purchase its Notes as an agent of such Issuing Trust, a
commission, in the form of a discount, equal to the applicable percentage of the
principal amount of each Note sold by such Issuing Trust as a result of any such
solicitation made by the Purchasing Agent, as set forth in SCHEDULE 2 hereto.
Each Issuing Trust agrees to pay the Agent, as consideration for
soliciting offers to purchase Notes as an agent of such Issuing Trust, a
commission, in the form of a discount, equal to the applicable percentage of the
principal amount of each Note sold by such Issuing Trust as a result of any such
solicitation made by such Agent, as set forth in SCHEDULE 3 hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes shall be agreed upon between
Global Funding and the relevant Issuing 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
Global Funding, the relevant Issuing Trust, the Agent(s), the relevant Issuing
Trust Administrator and the Indenture Trustee. The Agents, Global Funding and
each Issuing Trust agree to perform and Global Funding agrees to cause the
Company, and the Issuing Trust agrees to cause the Issuing Trust 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. Global Funding and each Issuing Trust
acknowledge 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(j) and 4(k), Global Funding and each Issuing Trust reserves the right,
to be exercised in their sole discretion, to sell Notes of such Issuing Trust,
in compliance with all applicable securities laws, to other investors without
the assistance of any Agent.
SECTION 4. COVENANTS OF GLOBAL FUNDING.
Global Funding covenants and agrees with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. Global Funding with respect to the
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 Registration Statement or the
14
filing of any amendment or supplement to the Prospectus (other than any
amendment or supplement thereto providing solely for the determination of the
variable terms of the Notes), (ii) the receipt of any comments from the
Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the 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 or (v) the failure of the
Notes of any Issuing Trust to be qualified for offer and sale under the
securities or blue sky laws of such jurisdiction as the Agents may request
pursuant to Section 4(p). With respect to the Registration Statement, Global
Funding will make every reasonable effort to prevent the issuance of any stop
order (or any similar order under blue sky laws) and, if any stop order (or any
similar order under blue sky laws) is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) FILING OR USE OF AMENDMENTS. Global Funding 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 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 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 REGISTRATION STATEMENT. Global Funding has
furnished to the Agents and to counsel for the Agents, without charge, signed
and conformed copies of the 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 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. Global Funding will deliver to each
Agent, without charge, as many copies of each preliminary prospectus as such
Agent may reasonably request, and Global Funding hereby consents to the use of
such copies for purposes permitted by the 1933 Act. Global Funding 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) PREPARATION OF PRICING SUPPLEMENTS. Global Funding 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. Global
15
Funding 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 relevant Issuing
Trust's acceptance of the offer for the purchase of such Notes and will file
such Pricing Supplement pursuant to Rule 424(b) under the 1933 Act.
(f) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in Section 4(m), 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 Global Funding, to amend
the Registration Statement in order that the Registration Statement will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or 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 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, Global Funding 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 Global Funding 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 Registration Statement and Prospectus comply with such requirements, and
Global Funding will furnish to the Agents, without charge, such number of copies
of such amendment or supplement as the Agents may reasonably request. In
addition, Global Funding will comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of each offering of Notes.
(g) PERIODIC FINANCIAL INFORMATION. Except as otherwise provided in
Section 4(m), 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
Global Funding with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, Global Funding shall, and Global Funding 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.
(h) AUDITED FINANCIAL INFORMATION. Except as otherwise provided in
Section 4(m), 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 Global Funding for the
preceding fiscal year, Global Funding shall, and Global Funding 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
16
other information and explanations, to the extent required by the 1933 Act or
the 1933 Act Regulations.
(i) REPORTING REQUIREMENTS. Global Funding, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file, or cause to be filed, all documents required to be filed by it and
each Issuing Trust with the Commission pursuant to the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(j) 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 Global Funding, on the other hand, from the date of
the agreement by such Agent(s) to purchase Notes from an Issuing Trust to and
including the Settlement Date with respect thereto, Global Funding will not, and
will cause all Issuing Trusts not to, 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 each
such Issuing Trust to the same potential institutional investors (other than
Notes to be offered and/or sold to or through such Agent(s)).
(k) RESTRICTIONS ON THE OFFER AND SALE OF SECURITIES TO RETAIL
PURCHASERS. Unless otherwise agreed upon between the Purchasing Agent, on the
one hand, and the Company and Global Funding, 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, Global
Funding will not, and will cause all Issuing Trust not to, without the prior
written consent of the Purchasing 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 each such Issuing Trust to the same potential retail
investors (other than Notes to be offered and/or sold to or through the
Purchasing Agent).
(l) USE OF PROCEEDS. Global Funding shall cause each Issuing Trust to
use the net proceeds received by it from the issuance and sale of the Notes in
the manner specified in the Prospectus.
(m) SUSPENSION OF CERTAIN OBLIGATIONS. Global Funding shall not be
required to comply with the provisions of Sections 4(f), (g) or (h) during any
period commencing 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 Global Funding or any Issuing Trust and (ii) no Agent shall then
hold any Notes purchased from any Issuing Trust as principal, and ending at the
time Global Funding and/or applicable Issuing Trusts shall determine that
solicitation of offers for the purchase of Notes should be resumed or an Agent
shall subsequently purchase Notes from an Issuing Trust as principal.
(n) LISTING. Global Funding shall use reasonable efforts to obtain
and maintain approval for the listing of at least one series of Notes of an
Issuing Trust on a national securities exchange as defined in Section
18(a)(3)(B) of the 1933 Act as long as Notes of any Issuing Trust are
outstanding.
17
(o) OUTSTANDING AGGREGATE PRINCIPAL AMOUNT OF NOTES. Global Funding
will promptly, upon request by an Agent notify such Agent of the aggregate
principal amount of Notes from time to time outstanding under the Programs 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.
(p) BLUE SKY QUALIFICATIONS. Global Funding shall endeavor, and shall
cause the applicable Issuing Trust, 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.
(q) DEPOSITORY TRUST COMPANY. Global Funding 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").
(r) NOTICE OF AMENDMENT TO GLOBAL FUNDING TRUST AGREEMENT. Global
Funding will give the Agents at least three (3) business days' prior notice in
writing of any proposed amendment to the Global Funding Trust Agreement and,
except in accordance with the applicable provisions of the Global Funding Trust
Agreement, not make or permit to become effective any amendment to Global
Funding Trust Agreement which may adversely affect the interests of the Agents
or any holder of any outstanding Notes without the consent of the affected
party.
(s) AUTHORIZATION TO ACT ON BEHALF OF GLOBAL FUNDING. Global Funding
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
Global Funding in relation to the Programs if such information has changed.
(t) NOTICE OF MEETING. Global Funding 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 Global Funding.
(u) NOTICES REGARDING RATINGS. Global Funding will notify the Agents
immediately, and confirm such notice in writing, of any change in the rating
assigned by Xxxxx'x or Standard & Poor's to the Program or the Notes issued
pursuant to the Registration Statement as applicable.
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SECTION 5. COVENANTS OF THE ISSUING TRUSTS.
Each Issuing Trust, only with respect to itself, covenants and agrees
with each Agent as follows:
(a) USE OF PROCEEDS. Such Issuing Trust shall use the net proceeds
received by it from the issuance and sale of the Notes in the manner specified
in the Prospectus.
(b) BLUE SKY QUALIFICATIONS. Such Issuing 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.
(c) DEPOSITORY TRUST COMPANY. Such Issuing 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").
(d) NOTICE OF AMENDMENT TO INDENTURE AND ISSUING TRUST AGREEMENT.
Such Issuing Trust will give the Agents at least three (3) business days' prior
notice in writing of any proposed amendment to the relevant Indenture and
relevant Issuing Trust Agreement and, except in accordance with the applicable
provisions of the relevant Indenture and relevant Issuing Trust Agreement, not
make or permit to become effective any amendment to such Indenture or such
Issuing Trust Agreement which may adversely affect the interests of the Agents
or any holder of any outstanding Notes without the consent of the affected
party.
(e) AUTHORIZATION TO ACT ON BEHALF OF THE ISSUING TRUST. Such Issuing
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 such Issuing Trust in relation to the Programs if such information has
changed.
(f) NOTICE OF MEETING. Such Issuing 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 such Issuing Trust.
SECTION 6. CONDITIONS OF AGENT'S OBLIGATIONS.
The obligations of one or more Agents to purchase Notes from an
Issuing Trust as principal, the obligations of an Agent to solicit offers for
the purchase of Notes as an agent of an Issuing Trust and the obligations of any
purchasers of Notes sold through an Agent as an agent of an Issuing Trust, will
be subject to the accuracy of the representations and warranties on the part of
Global Funding and such Issuing Trust herein 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, as amended, restated or modified from
time to time (the "REPRESENTATIONS AND INDEMNITY AGREEMENT") or contained in any
certificate of an officer or trustee of Global Funding, Issuing Trust or the
Company delivered pursuant to the provisions hereof and thereof, as applicable,
to the performance and observance by Global Funding and such Issuing Trust of
its covenants and other obligations hereunder or the performance and observance
by the
19
Company of its covenants and other obligations under the Representations
and Indemnity Agreement, and to the following additional conditions precedent:
(a) EFFECTIVENESS OF THE REGISTRATION STATEMENT. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and the 1934 Act, as applicable, and no stop order
suspending the effectiveness of the 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, MEMORANDA AND NEGATIVE ASSURANCE LETTERS. On the
date hereof, the Agents shall have received the following legal opinions,
memoranda and negative assurance letters dated as of the date hereof and in form
and substance satisfactory to the Agent:
(i) OPINION OF INTERNAL COUNSEL FOR THE COMPANY. The opinion
of internal Counsel for the Company, to the effect set forth in
EXHIBIT A hereto and to such further effect as the Agents may
reasonably request;
(ii) NEGATIVE ASSURANCE LETTER OF COUNSEL FOR THE COMPANY. The
negative assurance letter of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. or
other legal counsel selected by the Company and reasonably
satisfactory to the Agents ("Company Counsel") to the effect set forth
in EXHIBIT B hereto and to such further effect as the Agents may
reasonably request;
(iii) OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN
INSOLVENCY, FUNDING AGREEMENT AUTHORITY AND FUNDING AGREEMENT
ENFORCEABILITY MATTERS. The opinion of Lord, Bissell & Brook or other
legal counsel selected by the Company and reasonably satisfactory to
the Agents to the effect set forth in EXHIBIT C hereto and to such
further effect as the Agents may reasonably request;
(iv) OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN
ILLINOIS SECURITY INTEREST MATTERS. The opinion of Lord, Bissell &
Brook, counsel for the Company, to the effect set forth in EXHIBIT D
hereto and to such further effect as the Agents may reasonably
request;
(v) OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN
FEDERAL SECURITIES AND NEW YORK MATTERS. The opinion of Company
Counsel to the effect set forth in EXHIBIT E hereto and to such
further effect as the Agents may reasonably request;
(vi) OPINION OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN TAX
MATTERS. The opinion of Company Counsel to the effect set forth in
EXHIBIT F hereto and to such further effect as the Agents may
reasonably request;
(vii) MEMORANDUM OF COUNSEL FOR THE COMPANY CONCERNING CERTAIN
INSURANCE MATTERS. The memorandum of Company Counsel to the effect set
forth in EXHIBIT G hereto and to such further effect as the Agents may
reasonably request;
20
(viii) NEGATIVE ASSURANCE LETTER OF COUNSEL FOR THE AGENTS. The
negative assurance letter of Sidley Xxxxxx Xxxxx & Xxxx LLP or other
legal counsel selected by the Agents and reasonably satisfactory to
Global Funding and the Company, with respect to the matters set forth
in EXHIBIT H hereto;
(ix) OPINION OF COUNSEL FOR THE GLOBAL FUNDING DELAWARE TRUSTEE
AND THE RELEVANT ISSUING TRUST TRUSTEE. The opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel for the Global Funding Delaware Trustee, to
the effect set forth in EXHIBIT I hereto and to such further effect as
the Agents may reasonably request;
(x) OPINION OF COUNSEL FOR GLOBAL FUNDING ADMINISTRATOR AND
ISSUING TRUST ADMINISTRATOR. The opinion of counsel for Global Funding
Administrator, to the effect set forth in EXHIBIT J hereto and to such
further effect as the Agents may reasonably request;
(xi) OPINION OF COUNSEL FOR THE INDENTURE TRUSTEE. The opinion
of counsel for the Indenture Trustee to the effect set forth in
EXHIBIT K hereto and to such further effect as the Agents may
reasonably request;
(xii) OPINION OF COUNSEL FOR GLOBAL FUNDING AND RELEVANT ISSUING
TRUST CONCERNING CERTAIN DELAWARE SECURITY INTEREST MATTERS. The
opinion of Xxxxxxxx, Xxxxxx & Finger or other legal counsel selected
by the Global Funding Delaware Trustee and reasonably satisfactory to
the Agents, to the effect set forth in EXHIBIT L hereto and to such
further effect as the Agents may reasonably request;
(xiii) OPINION OF COUNSEL FOR GLOBAL FUNDING. The opinion of
Xxxxxxxx, Xxxxxx & Finger or other legal counsel selected by the
Global Funding Delaware Trustee and reasonably satisfactory to the
Agents, to the effect set forth in EXHIBIT M hereto and to such
further effect as the Agents may reasonably request; and
(xiv) OPINION OF COUNSEL FOR THE RELEVANT ISSUING TRUST. The
opinion of Xxxxxxxx, Xxxxxx & Finger or other legal counsel selected
by the Global Funding Delaware Trustee and reasonably satisfactory to
the Agents, to the effect set forth in EXHIBIT N hereto and to such
further effect as the Agents may reasonably request.
Unless otherwise agreed among the relevant Issuing Trust and the Agents, each of
the opinions set forth in Section 6(b) above will be delivered as of each March
-, commencing March -, 2005, modified as necessary to relate to such time of
delivery.
(c) GLOBAL FUNDING CERTIFICATE. Global Funding shall have furnished
to the Agents a certificate of Global Funding, signed by Global Funding
Administrator of Global Funding, dated the date of such certificate, to the
effect that:
(i) the representations and warranties of Global Funding and,
if applicable, the relevant Issuing 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 Global Funding and, if
applicable, relevant Issuing Trust have complied with all agreements
and satisfied
21
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
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to Global Funding'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
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 Registration Statement, the Prospectus
and amendments and supplements thereto and this Agreement and that:
(i) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened;
(ii) since the date of the Prospectus there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statement or Prospectus, and there has been no document
required to be filed under the 1933 Act, the 1933 Act Regulations, the
1934 Act or the 1934 Act Regulations which, upon filing, would be
deemed to be incorporated by reference in the Prospectus which has not
been so filed; and
(iii) nothing has come to the attention of the Company that
would cause it to believe that the priority status of the Funding
Agreements under Section 5/205 of the Illinois Insurance Code has been
adversely modified since the date of the last delivery of the opinion
issued by Lord, Bissell & Brook, substantially in the form of EXHIBIT
C attached hereto.
(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 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 O 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 Global Funding in connection with the issuance and sale
of the Notes
22
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 6 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 Global Funding or relevant Issuing Trust
at any time and any such termination shall be without liability of any party to
any other party except as provided in Section 11 hereof and except that Sections
9, 10, 12, 15 and 16 hereof shall survive any such termination and remain in
full force and effect.
SECTION 7. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT AS AGENT.
Delivery of Notes sold through an Agent as an agent of an Issuing
Trust shall be made by the Issuing 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 such Issuing Trust and deliver such Note to such Issuing Trust and, if
such Agent has theretofore paid such Issuing Trust for such Note, such Issuing
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, such Issuing 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 such Issuing Trust's account.
SECTION 8. ADDITIONAL COVENANTS OF GLOBAL FUNDING AND ISSUING TRUST.
Global Funding and each Issuing Trust (only with respect to itself)
further covenants and agrees with each Agent as follows:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by an Issuing Trust of an offer for the purchase of Notes (whether to one or
more Agents as principal or through one or more Agents as agent), and each
delivery of 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 Global Funding and such Issuing 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).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. At (i) each time that the
Registration Statement or Prospectus shall be amended or supplemented (other
than by (A) an amendment or supplement providing solely for the determination of
the variable terms of the Notes and (B) an amendment deemed to have occurred as
a result of a periodic filing by the Company, Global Funding or any Issuing
Trust under the 1934 Act or the 1934 Act Regulations, except any quarterly
report of the Company on Form 10-Q or any annual report of the Company on Form
23
10-K (any such report, an "SEC PERIODIC REPORT")), (ii) each Settlement Date,
Global Funding shall, and 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 6(c) and 6(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 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 6(c) and 6(d) hereof,
modified as necessary to relate to the 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 Global Funding or any Issuing Trust since the date of the
agreement by such Agent to purchase Notes from such Issuing Trust as principal);
PROVIDED, HOWEVER, that any delivery of certificates as required by this Section
8(b) due to the filing of an SEC Periodic Report shall only be required to be
delivered prior to the pricing date for such Issuing Trust's Notes issued
immediately after such SEC Periodic Report.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. As agreed to from time to
time by the Agents and Global Funding, Global Funding shall furnish or cause to
be furnished to the Agents legal opinions of internal counsel for the Company,
counsel for the Company, counsel for the Global Funding Delaware Trustee and the
Relevant Issuing Trust Trustee, counsel for Global Funding and the relevant
Issuing Trust, counsel for the Indenture Trustee and counsel for Global Funding
Administrator and the Issuing Trust Administrator, as applicable, dated the date
agreed to by the Agents and Global Funding, in form and substance reasonably
satisfactory to the Agents, of substantially the same tenor as the legal
opinions referred to in Section 6(b)(i), Section 6(b)(iii), Section 6(b)(iv),
Section 6(b)(v), Section 6(b)(vi), Section 6(b)(viii), Section 6(b)(ix), Section
6(b)(x), Section 6(b)(xi), Section 6(b)(xii), Section 6(b)(xiii) and Section
6(b)(xiv) hereof, as applicable, modified as necessary to relate to any report
filed by the Company under Section 13 or Section 15(d) of the 1934 Act, to the
time of delivery of such legal opinions or, in lieu of such legal opinions,
counsel last furnishing such legal opinions to the Agents shall furnish such
Agents with a letter substantially to the effect that the Agents may rely on
such last legal opinions to the same extent as though it was dated the date of
such letter authorizing reliance (except that statements in such last legal
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(d) SUBSEQUENT DELIVERY OF NEGATIVE ASSURANCE LETTER OF COUNSEL FOR
THE COMPANY. Each time that (i) the Registration Statement or Prospectus shall
be amended or supplemented (other than by (A) an amendment or supplement
providing solely for the determination of the variable terms of the Notes and
(B) an amendment deemed to have occurred as a result of a periodic filing by the
Company, Global Funding or any Issuing Trust under the 1934 Act or the 1934 Act
Regulations, except any SEC Periodic Report), (ii) (if required in connection
with the purchase of Notes from an Issuing Trust
24
by one or more Agents as principal) an Issuing Trust sells Notes to one or more
Agents as principal or (iii) an Issuing Trust sells Notes in a form not
previously certified to the Agents by such Issuing Trust, Global Funding agrees
to cause the Company to furnish or cause to be furnished forthwith to the Agents
and to counsel to the Agents, a negative assurance letter of counsel for the
Company 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 negative assurance letter referred to in Section
6(b)(ii) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such negative assurance letter or, in lieu of such negative assurance letter,
counsel last furnishing such negative assurance letter to the Agents shall
furnish such Agents with a letter substantially to the effect that the Agents
may rely on such last negative assurance letter to the same extent as though it
was dated the date of such letter authorizing reliance (except that statements
in such last negative assurance letter shall be deemed to relate to the
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 a negative assurance letter as required by this Section 8(d) due
to the filing of an SEC Periodic Report shall only be required to be delivered
prior to the pricing date for an Issuing Trust's Notes to be issued immediately
after such SEC Periodic Report. As of each -, Global Funding agrees to furnish
or cause to be furnished forthwith to the Agents the negative assurance letter
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 6(b)(viii) hereof, but modified, as necessary, to relate to the
Registration Statement and Prospectus as amended and supplemented to the time of
delivery of such negative assurance letter.
(e) DELIVERY OF LEGAL OPINIONS OR RELIANCE LETTERS UPON ISSUANCE OF
NOTES. Unless otherwise agreed to among the Company, Global Funding and the
applicable Agent(s), Global Funding shall furnish or cause to be furnished to
the applicable Agent(s) in connection with each issuance of Notes by an Issuing
Trust (i) an opinion of internal counsel for the Company (or a reliance letter
authorizing reliance by such Agent(s) on an opinion of like tenor) as to the
validity and enforceability of the Funding Agreement(s) being issued in
connection therewith and (ii) an opinion of counsel for the Company (or a
reliance letter authorizing reliance by such Agent(s) on an opinion of like
tenor) as to the validity and enforceability of the Funding Notes of Global
Funding and of the Notes of the relevant Issuing Trust, in each case, dated the
date of such issuance, and in form and substance reasonably satisfactory to the
Agents.
(f) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment deemed to
have occurred as a result of a periodic filing by the Company, Global Funding or
any Issuing Trust under the 1934 Act or the 1934 Act Regulations, except any SEC
Periodic Report) or (ii) (if required in connection with the purchase of Notes
from an Issuing Trust by one or more Agents as principal) an Issuing Trust sells
Notes to one or more Agents as principal, such 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 6(e) hereof but modified to relate to the Registration
Statement and
25
Prospectus as amended and supplemented to the date of such letter; PROVIDED,
HOWEVER, that any delivery of any letter as required by this Section 8(f) due to
the filing of an SEC Periodic Report shall only be required to be delivered
prior to the pricing date for an Issuing Trust's Notes issued immediately after
such SEC Periodic Report.
SECTION 9. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT. Global Funding and the relevant
Issuing Trust (only as to itself in connection with the issuance of its Notes
and without respect to any other Issuing Trust) agree to indemnify and hold
harmless each Agent, its directors and officers and each person, if any, who
controls such Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 9(d) hereof) any such
settlement is effected with the written consent of Global Funding and
the relevant Issuing 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 Global Funding by the Agents
concerning the Agents expressly for use in the 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
Global Funding shall have provided written notice pursuant to Section 4(f)
hereunder or the Company
26
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 Global Funding and the Company shall have furnished the Agents with
copies of such amendment or supplement to the Prospectus pursuant to Section
4(f) 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 GLOBAL FUNDING AND ISSUING TRUSTS. Each Agent
agrees, severally but not jointly, to indemnify and hold harmless Global Funding
and each Issuing Trust, their administrator, directors, officers and trustees
(if applicable) who signed the Registration Statement and each person, if any,
who controls Global Funding and any Issuing 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 9(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or 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 Global Funding by such Agent concerning such Agent expressly for
use in the Registration Statement (or any amendment thereto) or 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 9(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 9(b) hereof or Section 5(b)
of the Representations and Indemnity Agreement, counsel to the indemnified shall
be selected by Global Funding, the relevant Issuing 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
27
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 9 or Section 10 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 9(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 10. CONTRIBUTION.
If the indemnification provided for in Section 9 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 Global Funding and the relevant
Issuing 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 Global
Funding and the relevant Issuing 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 Global Funding and the relevant
Issuing 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 relevant Issuing 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 Global Funding and the relevant Issuing 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
28
to state a material fact relates to information supplied by Global Funding and
the relevant Issuing 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 10 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 10. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 10 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 10, (i) no Agent shall
be required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from an Issuing Trust by two or more Agents as principal, the
respective obligations of such Agents to contribute pursuant to this Section 10
are several, and not joint, in proportion to the aggregate principal amount of
Notes that each such Agent has agreed to purchase from such Issuing Trust.
For purposes of this Section 10, each director, officer and person, if
any, who controls an Agent within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Agent, and each director, officer and trustee (if applicable) of Global Funding
and relevant Issuing Trust, and each person, if any, who controls Global Funding
and the relevant Issuing 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
Global Funding and relevant Issuing Trust.
SECTION 11. PAYMENT OF EXPENSES.
Global Funding will pay all expenses incident to the performance of
the obligations of the Company, Global Funding and the relevant Issuing Trust
under this Agreement, including:
(a) The preparation, filing, printing and delivery of the
Registration Statement as originally filed and all amendments thereto and any
preliminary prospectus, the Prospectus and any amendments or supplements
thereto;
29
(b) The preparation, printing and delivery of Global Funding Program
Documents and the Issuing Trust 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, Global Funding's and
each Issuing Trust's accountants, counsel and other advisors or agents
(including any calculation agent or exchange rate agent) and of the Global
Funding Delaware Trustee, Relevant Issuing Trust Trustee, Global Funding
Administrator, Issuing Trust Administrator, Indenture Trustee and Funding Note
Indenture Trustee and their counsel;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the maintenance of the Programs 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 Programs 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, Global Funding and the
Issuing Trust.
SECTION 12. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement, in certificates of the officers of Global Funding Administrator, the
Issuing Trust Administrator, the Global Funding Delaware Trustee and the
Relevant Issuing Trust Trustee 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, Global Funding or the Issuing Trust, and shall survive
each delivery of and payment for the Notes.
SECTION 13. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from an Issuing Trust as
principal) may be terminated for any reason, at any time by (i) Global Funding
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.
30
(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 an Issuing Trust as principal, immediately upon notice to such
Issuing 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 Global Funding or such Issuing 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, Global Funding or such Issuing 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 or (v) the
rating assigned by any nationally recognized statistical rating organization to
the Programs or any other debt securities (including the Notes) of any Issuing
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 Programs or any
such debt securities (including the Notes) of any Issuing Trust or the financial
strength of the Company.
(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 an Issuing Trust as principal or (b) an offer to
purchase any of the Notes has been accepted by an Issuing Trust but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 4, 5 and 8 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the provisions of Section 11 hereof, the indemnity and contribution
agreements set forth in Sections 9 and 10 hereof, and the provisions of Sections
12, 15 and 16 hereof shall remain in effect.
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SECTION 14. 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 Global Funding or any Issuing 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.: (000) 000-0000
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 15. 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 9 and 10
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.
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SECTION 16. GOVERNING LAW; FORUM.
PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK, THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE 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 17. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 18. 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 19. AMENDMENTS.
(a) This Agreement may be amended or supplemented if, but only if,
such amendment or supplement is in writing and is signed by Global Funding and
the Agents. Global Funding and any Issuing Trust may from time to time nominate
any institution as a new Agent hereunder either in respect of the Programs
generally or in relation to a particular Issuing Trust's 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 P, 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
the case of an institution which has become an Agent in relation to a particular
Issuing Trust's Notes, following the issue of the relevant Notes, 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 Issuing Trust's Notes. Any Agent that executes a
counterpart to this Agreement shall simultaneously execute a counterpart to the
Representations and Indemnity Agreement.
(b) The parties hereto acknowledge and agree that a copy of each
amendment to this Agreement effected pursuant to this Section 18 shall be
provided promptly by Global Funding to the following Ratings Agencies at the
following addresses:
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets
33
Facsimile: (000) 000-0000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx'x Investors Service Life Insurance Group
Facsimile: (000) 000-0000
or such other addresses previously furnished in writing to Global Funding by any
Rating Agency in the future; PROVIDED, HOWEVER, that any failure by the Trust to
deliver copies of any amendment required to be delivered pursuant to this
Section 19 shall not constitute a breach of or an event of default under this
Agreement. The term "Rating Agency", for purposes of this Section 19, means any
of Standard & Poor's, Moody's or any other "nationally recognized statistical
rating organization" (as such term is defined in Rule 436(g)(2) of the 1933
Act).
SECTION 20. SEPARATE NATURE OF EACH ISSUING TRUST.
The Agents agree and acknowledge that, as a separate and distinct
special purpose statutory trusts, the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular Issuing Trust, including such Issuing Trust's obligations under this
Agreement and the applicable Terms Agreement, will be enforceable only against
such Issuing Trust and not against any other Issuing Trust.
SECTION 21. 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 an Issuing 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.
SECTION 22. LIABILITY OF DELAWARE TRUSTEE. It is expressly understood and agreed
by the parties that (a) this document is executed and delivered by Wilmington
Trust Company, not individually or personally, but solely as Delaware Trustee,
in the exercise of the powers and authority conferred and vested in it, pursuant
to the Global Funding Trust Agreement and the relevant Issuing Trust Agreements,
(b) each of the representations, undertakings and agreements herein made on the
part of Global Funding and any Issuing Trust is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose for binding only Global Funding
and the relevant Issuing Trust, as applicable, (c) nothing herein contained
shall be construed as creating any liability on Wilmington Trust Company,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any person claiming by, through or under the parties
hereto, and (d) under
34
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of Global Funding or any Issuing Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by Global Funding or any Issuing Trust
under this Agreement or any other related documents.
***SIGNATURE PAGES FOLLOW***
35
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to Global Funding a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement by and between the Agents and Global Funding in accordance with its
terms.
Very truly yours,
ALLSTATE LIFE GLOBAL FUNDING
By Wilmington Trust Company, not in its
individual capacity but solely as Delaware
Trustee
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
--------------------------------
Authorized Signatory
X.X. XXXXXXX & SONS, INC.
By:
--------------------------------
Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By:
--------------------------------
Authorized Signatory
*SIGNATURE PAGE TO DISTRIBUTION AGREEMENT, PART 1 OF 3*
BANC ONE CAPITAL MARKETS, INC.
By:
--------------------------------
Authorized Signatory
BARCLAYS CAPITAL INC.
By:
--------------------------------
Authorized Signatory
CITIGROUP GLOBAL MARKETS INC.
By:
--------------------------------
Authorized Signatory
CREDIT SUISSE FIRST BOSTON LLC
By:
--------------------------------
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:
--------------------------------
Authorized Signatory
XXXXXXX, XXXXX & CO.
By:
--------------------------------
Authorized Signatory
*SIGNATURE PAGE TO DISTRIBUTION AGREEMENT, PART 2 OF 3*
X.X. XXXXXX SECURITIES INC.
By:
--------------------------------
Authorized Signatory
XXXXXX BROTHERS INC.
By:
--------------------------------
Authorized Signatory
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------------
Authorized Signatory
UBS SECURITIES LLC
By:
--------------------------------
Authorized Signatory
By:
--------------------------------
Authorized Signatory
WACHOVIA SECURITIES L.L.C.
By:
--------------------------------
Authorized Signatory
*SIGNATURE PAGE TO DISTRIBUTION AGREEMENT, PART 3 OF 3*
INDEX OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A - Opinion of Internal Counsel for the Company
Exhibit B - Negative Assurance Letter of Counsel for the Company
Exhibit C - Opinion of Counsel for the Company Concerning Certain Insolvency,
Funding Agreement Authority and Funding Agreement Enforceability Matters
Exhibit D - Opinion of Counsel for the Company Concerning Certain Illinois
Security Interest Matters
Exhibit E - Opinion of Counsel for the Company Concerning Certain Federal
Securities and New York Matters
Exhibit F - Opinion of Counsel for the Company Concerning Certain Tax Matters
Exhibit G- Memorandum of Counsel for the Company Concerning Certain Insurance
Matters
Exhibit H - Negative Assurance Letter of Counsel for the Agents
Exhibit I - Opinion of Counsel for the Global Funding Delaware Trustee and the
Relevant Issuing Trust Trustee
Exhibit J - Opinion of Counsel for Global Funding Administrator and the Issuing
Trust Administrator
Exhibit K - Opinion of Counsel for the Indenture Trustee
Exhibit L - Opinion of Counsel for Global Funding and the relevant Issuing Trust
Concerning Certain Delaware Security Interest Matters
Exhibit M - Opinion of Counsel for Global Funding
Exhibit N - Opinion of Counsel for the relevant Issuing Trust
Exhibit O - Form of Comfort Letter of Deloitte & Touche LLP, Accountants to the
Company
Exhibit P - Form of Agent Accession Letter
SCHEDULES
Schedule 1 - List of Agents
Schedule 2 - Commission/Discount Schedule for Retail Sales
Schedule 3 - Commission/Discount Schedule for Institutional Sales
i
