EXHIBIT 10.5
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AMENDED AND RESTATED
SUPPORT AND EXPENSES AGREEMENT
BETWEEN
ALLSTATE LIFE INSURANCE COMPANY
AND
ALLSTATE LIFE GLOBAL FUNDING
DATED AS OF -, 2004
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This AMENDED AND RESTATED SUPPORT AND EXPENSES AGREEMENT, dated as of -,
2004 (this "AMENDED AND RESTATED SUPPORT AGREEMENT"), is entered into between
Allstate Life Insurance Company, an Illinois stock life insurance company
("ALLSTATE LIFE") and Allstate Life Global Funding, a statutory trust organized
under the laws of the State of Delaware ("GLOBAL FUNDING").
WHEREAS, Allstate Life and Global Funding entered into that certain Support
and Expenses Agreement, dated as of June 27, 2002 (the "Base Support
Agreement"), and the parties hereto desire to amend and restate the Base Support
and Expenses Agreement in its entirety;
WHEREAS, Global Funding desires to facilitate a program (the "PROGRAM") for
the issuance, from time to time, of secured medium term notes (the "NOTES");
WHEREAS, the Notes will be issued by newly created Delaware statutory
trusts (each, a "TRUST").
WHEREAS, each Trust will purchase a funding note issued by Global Funding
(each, a "FUNDING NOTE") with the proceeds from the sale of the Notes;
WHEREAS, Global Funding will sell a Funding Note to each Trust and use the
proceeds therefrom to purchase one or more Funding Agreement(s) (the "FUNDING
AGREEMENT(S)") from Allstate Life;
WHEREAS, Allstate Life will sell the Funding Agreement(s) to Global Funding
in consideration for the proceeds Global Funding receives from the sale of such
Funding Note;
WHEREAS, Global Funding will immediately assign absolutely and deposit such
Funding Agreement(s) to the relevant Trust, and the relevant Funding Note will
be surrendered; and
WHEREAS, each Trust will issue the Notes and collaterally assign the
Funding Agreement(s) to the Indenture Trustee to secure payment of the Notes.
NOW THEREFORE, in consideration of the premises and covenants set forth in
this Amended and Restated Support and Expenses Agreement, the parties agree as
follows:
ARTICLE 1
DEFINITIONS; OTHER DEFINITIONAL PROVISIONS
SECTION 1.1 DEFINITIONS. The following terms, as used in this Amended
and Restated Support Agreement, have the following meanings:
"ADDITIONAL AMOUNTS" has the meaning set forth in the Standard Indenture
Terms.
"ADMINISTRATOR" means AMACAR Pacific Corp. and its successors.
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by",
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENTS" has the meaning set forth in the Distribution Agreement.
"BUSINESS DAY" means a day (other than a Saturday, Sunday or legal holiday)
on which commercial banks in the City of New York, the Borough of Manhattan and
Xxxx County, State of Illinois, are open for business.
"DELAWARE TRUSTEE" means Wilmington Trust Company, not in its individual
capacity but solely as trustee, and its successors.
"DISTRIBUTION AGREEMENT" means that certain Distribution Agreement dated as
of -, 2004, by and among Global Funding and the Agents named therein, as the
same may be amended, restated, modified, supplemented or replaced from time to
time.
"EXCLUDED AMOUNTS" means (i) any obligation of Global Funding or any Trust
to make any payment in accordance with the terms of the Funding Note or the
Notes, (ii) any obligation or expense of Global Funding or any Trust to the
extent that such obligation or expense has actually been paid utilizing funds
from payments under the Funding Agreement(s) or the Funding Note, as applicable,
(iii) any cost, loss, damage, claim, action, suit, expense, disbursement, tax,
penalty and liability of any kind or nature whatsoever resulting from or
relating to any insurance regulatory or other governmental authority asserting
that: (a) the Funding Note or the Notes are, or are deemed to be, (1)
participations in the Funding Agreement(s) or (2) contracts of insurance, or (b)
the offer, purchase, sale or transfer of the Funding Notes or the Notes, or the
pledge and collateral assignment of, or the grant of a security interest in, the
Funding Agreement(s), (1) constitute the conduct of the business of insurance or
reinsurance in any jurisdiction or (2) require Global Funding, any Trust or any
Holder to be licensed as an insurer, insurance agent or broker in any
jurisdiction, (iv) any cost, loss, damage, claim, action, suit, expense,
disbursement, tax, penalty and liability of any kind imposed on a Service
Provider resulting from the bad faith, misconduct or negligence of such Service
Provider, (v) any income taxes or overhead expenses of any Service Provider,
(vi) any withholding taxes imposed with respect to payments made under any
Funding Agreement(s), the Funding Note or the Notes, or (viii) any Additional
Amounts paid to any Holder.
With respect to any Support Obligation owed to the Delaware Trustee and the
Administrator, clause (iii) of the definition of "Excluded Amounts" shall not
apply.
"GLOBAL FUNDING" means Allstate Life Global Funding, a statutory trust
formed under the laws of the State of Delaware.
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"HOLDER" means any holder of the Notes.
"INDENTURE TRUSTEE" means X.X. Xxxxxx Trust Company, National Association
and its successors.
"NOTICE OF OBLIGATION" means the instrument evidencing a Support Obligation
of Global Funding in, or substantially in, the form attached as Exhibit A.
"SERVICE PROVIDER" means each of the Delaware Trustee, the Indenture
Trustee, the Administrator and any other agent or provider of services to Global
Funding (other than the Agents).
"STANDARD INDENTURE TERMS" means the Standard Indenture Terms relating to
Global Funding's Program for the issuance of Notes.
"SUPPORT OBLIGATIONS" means any and all (i) reasonable costs and expenses
reasonably incurred (including the reasonable fees and expenses of any Service
Provider), relating to the offering, sale and issuance of the Funding Notes and
the Notes and (ii) costs, expenses and taxes of Global Funding; in each case
except the Excluded Amounts.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS. For all purposes of this
Amended and Restated Support Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article shall have the meanings
ascribed to them in this Article and shall include the plural as
well as the singular;
(b) the words "include", "includes" and "including" shall be
construed to be followed by the words "without limitation";
(c) Article and Section headings are for the convenience of the
reader and shall not be considered in interpreting this Amended
and Restated Support Agreement or the intent of the parties to
this Amended and Restated Support Agreement; and
(d) capitalized terms not otherwise defined in this Amended and
Restated Support Agreement will have the respective meanings set
forth in the Standard Indenture Terms.
ARTICLE 2
REPRESENTATIONS
SECTION 2.1 GENERAL. Each party to this Amended and Restated Support
Agreement represents and warrants to the other that as of the date of this
Amended and Restated Support Agreement:
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(a) it has the power to enter into this Amended and Restated Support
Agreement and to consummate the transactions contemplated by this
Amended and Restated Support Agreement;
(b) it has duly authorized, executed and delivered this Amended and
Restated Support Agreement;
(c) assuming the due authorization, execution and delivery of this
Amended and Restated Support Agreement by the other party, this
Amended and Restated Support Agreement constitutes a legal, valid
and binding obligation of the representing party;
(d) this Amended and Restated Support Agreement is enforceable
against the representing party in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights, and subject as to enforceability to
general principles of equity, regardless of whether enforcement
is sought in a proceeding in equity or at law;
(e) its execution and delivery of this Amended and Restated Support
Agreement, consummation by it of the transactions contemplated by
this Amended and Restated Support Agreement and the performance
of its obligations under this Amended and Restated Support
Agreement do not and will not constitute or result in a default,
breach or violation of the terms or provisions of its
organizational documents or any material indenture, contract,
agreement, instrument, mortgage, judgment, injunction or order
applicable to which it is a party or by which any of its
properties may be bound; and
(f) no filing with or authorization, order, consent, permit or
approval of any federal or state governmental authority or agency
or political subdivision thereof is required for the execution,
delivery and performance of this Amended and Restated Support
Agreement that has not been already obtained or acquired.
ARTICLE 3
SUPPORT OBLIGATIONS
SECTION 3.1 PAYMENT OF SUPPORT OBLIGATIONS.
(a) Allstate Life irrevocably and unconditionally agrees to (i)
indemnify Global Funding against, and pay, all Support
Obligations and (ii) without duplication, indemnify each
Service Provider against, and pay, all Support Obligations due
and payable by Global Funding to such Service Provider, in
each case within two Business Days of receipt of the applicable
Notice of Obligation, subject only to the terms and conditions
of this Amended and Restated Support Agreement.
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(b) Allstate Life agrees to pay any amount due under this Amended and
Restated Support Agreement in the currency in which the related
Support Obligation originated.
(c) Allstate Life and Global Funding agree that all payments due
under this Section 3.1 in respect of any Support Obligation shall
be effected, and any responsibility of Allstate Life to pay such
Support Obligation pursuant to the indemnity provided to Global
Funding in this Amended and Restated Support Agreement shall be
discharged, by the payment by Allstate Life, at the order of
Global Funding, to the account of the person to whom such Support
Obligation is owed, as specified in the applicable Notice of
Obligation.
SECTION 3.2 AMENDED OR ADDITIONAL ARRANGEMENTS. Global Funding will not,
without the prior written approval of Allstate Life (a) enter into or amend,
modify, restate, and/or supplement any compensation or indemnification
arrangements with respect to the Program or (b) waive any of its rights under
any compensation or indemnification provisions under the Program.
SECTION 3.3 WAIVER OF NOTICE. Allstate Life waives notice of any fact or
circumstance that could give rise to the payment of any Support Obligation under
Section 3.1 and, except as otherwise provided in this Amended and Restated
Support Agreement, Allstate Life also waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 3.4 NO IMPAIRMENT. The obligations, covenants, agreements and
duties of Allstate Life under this Amended and Restated Support Agreement will
in no way be affected or impaired by reason of the happening from time to time
of any of:
(a) the extension of time for the payment of all or any portion of
any Support Obligation or for the performance of any other
obligation arising under, out of, or in connection with, any
Support Obligation;
(b) any failure, omission, delay or lack of diligence on the part of
Global Funding to enforce, assert or exercise any right,
privilege, power or remedy conferred on Global Funding with
respect to any Support Obligation or any action on the part of
Global Funding granting indulgence or extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar
proceedings affecting, Global Funding or any of the assets of
Global Funding;
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(d) the existence of any claim, set-off or other rights that Allstate
Life may have at any time against Global Funding; PROVIDED, that
nothing in this Amended and Restated Support Agreement shall
prevent the assertion of any such claim by separate suit or
compulsory counterclaim; or
(e) any other act or omission to act or delay of any kind by Global
Funding or any other Person or any other circumstance whatsoever
which might, but for the provisions of this Section 3.4(e),
constitute a legal or equitable discharge of or defense to
Allstate Life's obligations under this Amended and Restated
Support Agreement.
SECTION 3.5 ENFORCEMENT. Notwithstanding any rights granted to Allstate
Life under Section 3.7, Allstate Life waives any right or remedy to require that
any action be brought against any Person prior to the assertion of a claim under
this Amended and Restated Support Agreement.
SECTION 3.6 SUBROGATION. Upon, and subject to, the payment by Allstate
Life of any Support Obligation:
(a) Allstate Life shall be subrogated to all of the rights, interests
and remedies, if any, of Global Funding in respect of such
Support Obligation; and
(b) Global Funding will (i) from time to time execute all such
instruments and other agreements and take all such other actions
as may be necessary or desirable, or that Allstate Life may
request, to protect any interest of Allstate Life with respect to
any Support Obligation or to enable Allstate Life to exercise or
enforce any right, interest or remedy it may have with respect to
any such Support Obligation and (ii) release to Allstate Life any
amount received relating to any Support Obligation, or any
portion of any Support Obligation, immediately after any such
amount relating to such Support Obligation, or any portion of any
such Support Obligation, is received by Global Funding.
SECTION 3.7 ACTIONS; NOTIFICATION.
(a) Global Funding shall give prompt written notice to Allstate Life
of any litigation, or any investigation or proceeding by any
governmental agency or body or other Person, whether commenced or
threatened, against Global Funding that may give rise to any
Support Obligation (each, a "PROCEEDING"), but Global Funding's
failure to so notify Allstate Life shall not relieve Allstate
Life from any liability which it may have otherwise under this
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Amended and Restated Support Agreement unless the failure to so
notify had an adverse impact on Allstate Life.
(b) Allstate Life may, in its sole discretion, elect to assume the
defense of Global Funding in any Proceeding that could give rise
to any Support Obligation, and if it so elects, Allstate Life
shall select counsel reasonably acceptable to Global Funding to
represent Global Funding in such Proceeding and pay the fees and
expenses of such counsel. In any Proceeding, Global Funding shall
have the right to retain its own counsel, but the fees and
disbursements of such counsel shall not constitute a Support
Obligation unless (i) Allstate Life and Global Funding shall have
mutually agreed to the retention of such counsel or (ii) the
named parties to any such Proceeding (including any impleaded
parties) include both Allstate Life and Global Funding, and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. In no event shall Allstate Life be liable for fees
and expenses of more than one counsel (in addition to any local
counsel) for Global Funding 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.
SECTION 3.8 SETTLEMENT WITHOUT CONSENT. Global Funding may not settle
any Proceeding without the consent of Allstate Life.
SECTION 3.9 THIRD PARTY BENEFICIARIES. Allstate Life understands and
agrees that each Service Provider (including such parties in their respective
individual capacity) shall be a third party beneficiary of the indemnity
provided under this Amended and Restated Support Agreement, subject to the
limitations on such indemnity provided in this Amended and Restated Support
Agreement. No other Person shall have any legal or equitable right, remedy or
claim under or in respect of this Amended and Restated Support Agreement or any
covenants, conditions or provisions contained in this Amended and Restated
Support Agreement.
ARTICLE 4
GENERAL PROVISIONS
SECTION 4.1 BINDING EFFECT. All obligations, covenants, agreements and
duties contained in this Amended and Restated Support Agreement shall bind the
permitted successors and assigns, and receivers, trustees and representatives of
each of Allstate Life and Global Funding.
SECTION 4.2 AMENDMENTS; ASSIGNMENTS.
(a) This Amended and Restated Support Agreement will not be amended,
modified, restated, supplemented or replaced in any
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manner, except with the unanimous written consent of Global
Funding, Allstate Life, the Administrator, the Delaware Trustee
and the Indenture Trustee.
(b) Neither this Amended and Restated Support Agreement nor any
title, right or interest in this Amended and Restated Support
Agreement may be sold, transferred, assigned, hypothecated or
alienated in any manner whatsoever, except with the express
written consent of Global Funding and Allstate Life.
SECTION 4.3 TERM OF SUPPORT AGREEMENT. This Amended and Restated Support
Agreement shall terminate and be of no further force and effect upon the date on
which the Amended and Restated Trust Agreement terminates. Unless and until this
Amended and Restated Support Agreement is terminated as specified in this
Section 4.3, this Amended and Restated Support Agreement will be continuing,
irrevocable, unconditional and absolute.
SECTION 4.4 NOTICES. All demands, notices, instructions or other
communications required or permitted to be given under this Amended and Restated
Support Agreement shall be given in writing by delivering the same against
receipt by facsimile transmission (confirmed by registered or certified mail,
postage prepaid, return receipt requested), or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of a confirmation, if
sent by facsimile):
If to Global Funding, to:
c/o AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Allstate Life, to:
Allstate Life Insurance Company
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Assistant Vice President, Institutional Markets
Facsimile: (000) 000-0000
or such other address previously furnished in writing to the other
party.
SECTION 4.5 GOVERNING LAW. Pursuant to Section 5-1401 of the General
Obligations Law of the State of New York, this Amended and Restated Support
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.
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SECTION 4.6 CONSENT TO JURISDICTION. Each party to this Amended and
Restated Support Agreement submits for itself and in connection with its
properties, generally and unconditionally, to the nonexclusive jurisdiction of
the United States Federal court located in the City of New York, the Borough of
Manhattan for purposes of any legal proceeding arising out of or relating to
this Amended and Restated Support Agreement or the transactions contemplated by
this Amended and Restated Support Agreement. Each party to this Amended and
Restated Support Agreement irrevocably waives, to the fullest extent permitted
by law, any objection which it may have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Each party to
this Amended and Restated Support Agreement consents to process being served in
any suit, action or proceeding with respect to this Amended and Restated Support
Agreement, or any document delivered pursuant to this Amended and Restated
Support Agreement by the mailing of a copy thereof by registered or certified
mail, postage prepaid, return receipt requested, to its respective address
specified at the time for notices under this Amended and Restated Support
Agreement or to any other address of which it shall have given written notice to
the other party. The foregoing shall not limit the ability of any party to this
Amended and Restated Support Agreement to bring suit in the courts of any other
jurisdiction.
SECTION 4.7 WAIVER OF JURY TRIAL. Each of the parties to this Amended
and Restated Support Agreement irrevocably and expressly waives any and all
right to a trial by jury with respect to any legal proceeding arising out of or
relating to this Amended and Restated Support Agreement or any claims or
transactions in connection with this Amended and Restated Support Agreement.
Each of the parties to this Amended and Restated Support Agreement acknowledges
that such waiver is made with full understanding and knowledge of the nature of
the rights and benefits waived.
SECTION 4.8 COUNTERPARTS. This Amended and Restated Support Agreement
and any amendments, modifications, restatements, supplements or replacements of
this Amended and Restated Support Agreement, or waivers or consents to this
Amended and Restated Support Agreement, may be executed in any number of
counterparts, and by parties to this Amended and Restated Support Agreement in
separate counterparts, each of which, when so executed and delivered, shall be
deemed to be an original and all of which counterparts, when taken together
shall constitute one and the same instrument. This Amended and Restated Support
Agreement shall become effective upon the execution of a counterpart by each of
the parties to this Amended and Restated Support Agreement.
SECTION 4.9 SEVERABILITY. In the event any provision or obligation of
this Amended and Restated Support Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby to
the fullest extent permitted under applicable law.
SECTION 4.10 ENTIRE AGREEMENT. This Amended and Restated Support
Agreement constitutes the entire agreement between the parties relating to its
subject
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matter, and supersedes all previous agreements between the parties, whether
written or oral.
SECTION 4.11 NO WAIVER. No failure on the part of the parties to this
Amended and Restated Support Agreement to exercise, and no delay in exercising,
and no course of dealing with respect to, any right, power or privilege under
this Amended and Restated Support Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise thereof or the exercise of any other
right, power or privilege operate as such a waiver.
SECTION 4.12 REMEDIES CUMULATIVE. No right, power or remedy of the
parties under this Amended and Restated Support Agreement shall be exclusive of
any other right, power or remedy, but shall be cumulative and in addition to any
other right, power or remedy thereunder or existing by law or in equity.
SECTION 4.13 LIMITATION OF DELAWARE TRUSTEE LIABILITY. Notwithstanding
any provision of this Amended and Restated Support Agreement to the contrary, it
is expressly understood and agreed by the parties that (a) this Amended and
Restated Support Agreement 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
Amended and Restated Trust Agreement, (b) each of the representations,
undertakings and agreements in this Amended and Restated Support Agreement made
on the part of Global Funding is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company, but is
made and intended for the purpose of binding only Global Funding, (c) nothing
contained in this Amended and Restated Support Agreement shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied in this Amended and Restated
Support Agreement, all such liability, if any, being expressly waived by the
parties to this Amended and Restated Support Agreement and by any person
claiming by, through or under the parties to this Amended and Restated Support
Agreement and (d) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of Global
Funding or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Global Funding under
this Amended and Restated Support Agreement or any other related documents.
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Support Agreement to be executed by duly authorized representatives as of the
day and year first above written.
ALLSTATE LIFE INSURANCE COMPANY
By:
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
ALLSTATE LIFE GLOBAL FUNDING,
By: WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely as
Delaware Trustee
By:
--------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
EXHIBIT A
NOTICE OF OBLIGATION
Date: -
BY [HAND OR OVERNIGHT] DELIVERY AND/OR FACSIMILE
Allstate Life Insurance Company
Office of the General Counsel
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: -
Facsimile: -
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Support and
Expenses Agreement dated as of - (the "AMENDED AND RESTATED SUPPORT
AGREEMENT") entered into between Allstate Life Insurance Company, an Illinois
stock life insurance company ("ALLSTATE LIFE") and Allstate Life Global Funding,
a statutory trust organized under the laws of the State of Delaware ("GLOBAL
FUNDING"). Capitalized terms used in this notice (this "NOTICE OF OBLIGATION")
and not otherwise defined have the respective meanings ascribed in this Amended
and Restated Support Agreement.
Global Funding hereby represents to Allstate Life that:
(a) on -, Global Funding incurred a Support Obligation in an amount
of $ -;
(b) the Support Obligation resulted from -; and
(c) all documents and instruments evidencing the Support Obligation
are attached to this Notice of Obligation.
Global Funding hereby requests Allstate Life to pay the Support
Obligation in accordance with this Amended and Restated Support Agreement to the
following account:
[Name of Bank:
Account No.:
Reference No.:]
A-1
IN WITNESS WHEREOF, Global Funding has executed and delivered this
Notice of Obligation as of the date first written above.
ALLSTATE LIFE GLOBAL FUNDING
By: Wilmington Trust Company, not in its individual capacity, but solely as
Delaware Trustee
By:
----------------------------------
Name:
Title:
A-2
