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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 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. Subject to the terms and
conditions of Sections 4(j) and 5(b), 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 (or 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 AND
THE FUNDING NOTES. This Agreement, the relevant Funding Agreement(s),
Global Funding Trust Agreement and Global Funding Administration Agreement
have been, and each Funding Note will be, duly authorized, executed and
delivered by Global Funding and this Agreement, each relevant Funding
Agreement, the Global Funding Trust Agreement, Global Funding
Administration Agreement 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.
(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 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
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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 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
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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 under which the Notes are issued, as
well as the Notes, are ------- rated [____] by Xxxxx'x Investors Service,
Inc. and [_____] by Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. (Xxxxx'x Investors Service, Inc. and Standard &
Poor's Ratings Services are referred to herein as the "RATINGS AGENCIES"),
or such other rating as to which Global Funding shall have most recently
notified the Agents pursuant to Section 4 hereof.
(xiv) NOTES LISTED ON ANY STOCK EXCHANGE. If specified in a Pricing
Supplement, the Notes described in such Pricing Supplement shall be listed
on the securities exchange designated in the Pricing Supplement.
(b) 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),
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.
(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,
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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 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
10
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 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; such Issuing Trust is
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate,
11
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 Investment
Company Act of 1940, as amended (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,
12
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, or (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. With respect to the
Registration Statement, Global Funding will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) FILING OR USE OF AMENDMENTS. 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 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
15
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 other information and
explanations, to the extent required by the 1933 Act or the 1933 Act
Regulations.
16
(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.
(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
17
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.
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
18
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 and 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 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
19
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;
(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
20
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;
(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;
PROVIDED, HOWEVER, that 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 -, 2004, 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 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
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(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 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
22
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
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
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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. In the event of an Agent
request, Global Funding shall furnish or cause to be furnished to the Agents
promptly upon such Agent request 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 in connection with such Agent request, 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 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
24
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 (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) 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 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.
25
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 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
26
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 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
27
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 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.
28
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;
(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;
29
(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.
(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
30
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.
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
31
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.
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
32
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
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
33
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 Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., Xxxxx'x Investors Service, Inc. 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.
***SIGNATURE PAGES FOLLOW***
34
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:
-----------------------
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
