EXHIBIT 10.7
===============================================================================
FORM OF AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
between
ALLSTATE LIFE GLOBAL FUNDING
and
AMACAR PACIFIC CORP.
Dated as of -, 2006
==============================================================================
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions.................................................................2
ARTICLE 2
CONTINUATION OF APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.1. Appointment.................................................................6
SECTION 2.2. Administrative Services.....................................................6
SECTION 2.3. Continuation of the Base Administrative Services Agreement.................10
ARTICLE 3
ACTIVITIES OF GLOBAL FUNDING; EMPLOYEES; OFFICES.
SECTION 3.1. Activities of Global Funding...............................................10
SECTION 3.2. Employees..................................................................10
SECTION 3.3. Offices....................................................................10
ARTICLE 4
COMPENSATION; INDEMNITIES
SECTION 4.1. Compensation...............................................................11
SECTION 4.2. Indemnities................................................................11
ARTICLE 5
TERM
SECTION 5.1. Term ....................................................................11
ARTICLE 6
OBLIGATION TO SUPPLY INFORMATION
SECTION 6.1. Obligation to Supply Information...........................................11
SECTION 6.2. Reliance on Information....................................................12
ARTICLE 7
LIABILITY OF ADMINISTRATOR; STANDARD OF CARE
SECTION 7.1. Liability of Administrator.................................................12
i
SECTION 7.2. No Implied Obligations.....................................................12
SECTION 7.3. Standard of Care...........................................................12
ARTICLE 8
LIMITED RECOURSE
SECTION 8.1. Limited Recourse to Global Funding.........................................13
SECTION 8.2. No Recourse to Trustees and Agents.........................................13
ARTICLE 9
TAX MATTERS
SECTION 9.1. Income Tax Treatment.......................................................13
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Amendments.................................................................14
SECTION 10.2. No Joint Venture...........................................................14
SECTION 10.3. Assignment.................................................................14
SECTION 10.4. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial...............14
SECTION 10.5. Counterparts...............................................................15
SECTION 10.6. Limitation of Delaware Trustee Liability...................................15
SECTION 10.7. No Petition................................................................16
SECTION 10.8. Severability...............................................................16
SECTION 10.9. Entire Agreement...........................................................16
SECTION 10.10. Administrator to Provide Access to Books and Records.......................16
SECTION 10.11. No Waiver..................................................................17
SECTION 10.12. Remedies Cumulative........................................................17
SECTION 10.13. Notices....................................................................17
ii
This AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT (this "Amended
and Restated Administrative Services Agreement") dated as of -, 2006,
between Allstate Life Global Funding, a statutory trust organized under the laws
of the State of Delaware ("Global Funding") and AMACAR Pacific Corp., a Delaware
Corporation, as administrator (in such capacity, including its successors, the
"Administrator"),
W I T N E S S E T H:
WHEREAS, Global Funding and the Administrator entered into that certain
Administrative Services Agreement, dated as of June 27, 2002, as amended and
restated by the Amended and Restated Administrative Services Agreement dated as
of April 27, 2004, and as further amended and restated by the Amended and
Restated Administrative Services Agreement dated as of August 16, 2005 (as so
amended and restated, the "Base Administrative Services Agreement"), and the
parties hereto desire to amend and restate the Base Administrative Services
Agreement in its entirety;
WHEREAS, since April 27, 2004, Global Funding has been facilitating, and
desires to continue to facilitate, a program (the "Program") for the issuance,
from time to time, of Secured Medium Term Notes and Allstate Life(R)
CoreNotes(R) (collectively, the "Notes"), as more fully described in the
Registration Statement (as defined herein);
WHEREAS, each outstanding series of Notes under the Program has been, and
each series of Notes to be issued under the Program will be, issued by a newly
created Delaware statutory trust beneficially owned by Global Funding (each, a
"Trust"), as more fully described in the Registration Statement;
WHEREAS, the Administrator has in the past provided, and Global Funding
desires that the Administrator continue to provide, advice and assistance to
Global Funding and perform various services for Global Funding generally and
with respect to the Program; and
WHEREAS, Global Funding desires to continue to avail itself of the
experience, advice and assistance of the Administrator and to have the
Administrator continue to perform various financial, statistical, accounting and
other services for Global Funding, and the Administrator is willing to furnish
such services on the terms and conditions herein set forth;
NOW THEREFORE, in consideration of the premises and covenants set forth in
this Amended and Restated Administrative Services Agreement, the parties agree
as follows:
1
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. The following terms have the meanings set forth
below:
"Administrator" has the meaning ascribed in the first paragraph of this
Amended and Restated Administrative Services Agreement.
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agents" has the meaning set forth in the Distribution Agreement.
"Allstate Life" means Allstate Life Insurance Company, a stock life
insurance company organized and licensed under the laws of the State of
Illinois, and any successor.
"Amended and Restated Administrative Services Agreement" means this
instrument, as originally executed, and as the same may be amended,
supplemented, modified, restated or replaced from time to time.
"Amended and Restated Name Licensing Agreement" means that certain Amended
and Restated Name Licensing Agreement dated as of -, 2006, between Allstate
Insurance Company and Global Funding, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
"Amended and Restated Trust Agreement" means that certain Amended and
Restated Trust Agreement of Global Funding, dated as of -, 2006, as the
same may be amended, supplemented, modified, restated or replaced from time to
time.
"Amended and Restated Support Agreement" means that certain Amended and
Restated Support Agreement dated as of -, 2006, between Allstate Life and
Global Funding, as the same may be amended, supplemented, modified, restated or
replaced from time to time.
"Base Administrative Services Agreement" has the meaning ascribed in the
first recital.
"Calculation Agent", with respect to any Trust, has the meaning ascribed in
the applicable Indenture.
2
"Closing Instrument" means, with respect to any Trust, the Closing
Instrument of the Trust, pursuant to which certain documents are executed in
connection with the issuance of the Notes by the Trust.
"Commission" has the meaning ascribed in Section 2.2(c).
"Coordination Agreement" means, with respect to any Trust, that certain
Coordination Agreement included in Part F of the Series Instrument, among the
Trust and the other parties specified therein, as the same may be amended,
supplemented, modified, restated or replaced from time to time.
"Delaware Trustee" means Wilmington Trust Company, a Delaware banking
corporation, in its capacity as the Delaware trustee of Global Funding, and its
successors in such capacity.
"Distribution Agreement" means that certain Distribution Agreement dated
-, 2006, by and among Global Funding and the Agents named therein, as the
same may be amended, supplemented, modified, restated or replaced from time to
time.
"Exchange Rate Agent", with respect to any Trust, has the meaning ascribed
in the applicable Indenture.
"Funding Note" means each funding note issued, or to be issued from time to
time, by Global Funding in connection with the Program.
"Funding Note Calculation Agent", in respect of any Funding Note, has the
meaning ascribed in the applicable Funding Note Indenture.
"Funding Note Exchange Rate Agent", with respect to any Funding Note, has
the meaning ascribed in the applicable Funding Note Indenture.
"Funding Note Indenture" means, with respect to any Funding Note sold by
Global Funding to a Trust, that certain Funding Note Indenture included in Part
H of the Series Instrument for the Trust, among Global Funding and the parties
specified therein, as the same may be amended, supplemented, modified, restated,
or replaced from time to time.
"Funding Note Indenture Trustee", with respect to any Funding Note, has the
meaning ascribed in the applicable Funding Note Indenture.
"Funding Note Paying Agent", with respect to any Funding Note, has the
meaning ascribed in the applicable Funding Note Indenture.
"Funding Note Registrar", with respect to any Funding Note, has the meaning
3
ascribed in the applicable Funding Note Indenture.
"Global Funding" has the meaning ascribed in the first paragraph.
"Indenture" means, with respect to any Trust, that certain Indenture
included in Part G of the Series Instrument, among the Trust and the other
parties specified therein, as the same may be amended, supplemented, modified,
restated or replaced from time to time.
"Indenture Trustee", with respect to the Notes of any Trust, has the
meaning ascribed in the applicable Indenture.
"Loss and Expense" has the meaning ascribed in Section 4.2.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Name Licensing Agreement" means, with respect to any Trust, that certain
Name Licensing Agreement included in Part D of the Series Instrument for the
Trust, as the same may be amended, supplemented, modified, restated or replaced
from time to time.
"Notes" has the meaning ascribed in the second recital.
"Paying Agent", with respect to the Notes of any Trust, has the meaning set
forth in the applicable Indenture.
"Person" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, business trust or other organization, whether or not
a legal entity, and any government or any agency or political subdivision
thereof.
"Program" has the meaning ascribed in the second recital.
"Program Documents" means the Amended and Restated Trust Agreement, this
Amended and Restated Administrative Services Agreement, the Amended and Restated
Support Agreement, the Amended and Restated Name Licensing Agreement, the
Distribution Agreement, each Terms Agreement, each Funding Note, each Funding
Note Indenture, each Series Instrument and each Closing Instrument (including
all documents and instruments included therein), and any other documents or
instruments entered into by, or with respect to, or on behalf of, Global
Funding.
"Rating Agency" means each of Moody's, S&P and any other rating agency
which provides a rating of any Notes.
"Registrar", with respect to the Notes of any Trust, has the meaning set
forth in the applicable Indenture.
4
"Registration Statement" means the Registration Statement relating to the
Program (File No. 333-129157), filed with the Commission by Allstate Life and
Global Funding on October 20, 2005, as amended by Amendment No. 1 filed with the
Commission on November 29, 2005, and Amendment No. 2 filed with the Commission
on -, 2006, and as it may further be amended, supplemented, modified,
restated or replaced from time to time.
"Responsible Officer" means, with respect to any Funding Note Indenture
Trustee, any Indenture Trustee or the Delaware Trustee, any vice president,
assistant vice president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer, or any other officer of such Funding
Note Indenture Trustee, such Indenture Trustee or the Delaware Trustee, as the
case may be, customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject,
and also, with respect to such Funding Note Indenture Trustee and such Indenture
Trustee, having direct responsibility for the administration of the applicable
Funding Note Indenture or the applicable Indenture, as the case may be.
"Securities Laws" has the meaning ascribed in Section 2.2(c).
"Series Instrument" means, with respect to any Trust, the Series Instrument
of the Trust, pursuant to which the Administrative Services Agreement, the
Coordination Agreement, the Name Licensing Agreement, the Support Agreement, the
Terms Agreement, the Trust Agreement, the Indenture and the Funding Note
Indenture are entered into, and certain other documents are executed, in
connection with the issuance of the Notes by the Trust.
"Service Provider" has the meaning set forth in the Amended and Restated
Support Agreement.
"Standard Indenture Terms" means those certain Standard Indenture Terms
relating to the Program in the form filed as Exhibit 4.4 to the Registration
Statement.
"Support Agreement" means, with respect to any Trust, that certain Support
and Expenses Agreement included in Part C of the Series Instrument for the
Trust, as the same may be amended, supplemented, modified, restated or replaced
from time to time.
"Support Obligations" has the meaning ascribed in the Amended and Restated
Support Agreement.
"S&P" means Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, Inc.
5
"Terms Agreement" means, with respect to any Trust, that certain Terms
Agreement related to the offering of the Notes of such Trust, included in Part E
of the Series Instrument for the Trust, by and among Global Funding, the Trust
and each Agent named therein, which will incorporate by reference the terms of
the Distribution Agreement.
"Trust" has the meaning ascribed in the third recital.
"Trust Agreement" means, with respect to any Trust, that certain Trust
Agreement, included in Part A of the Series Instrument for the Trust, pursuant
to which the Trust is created.
SECTION 1.2. Other Definitional Provisions. For all purposes of this
Amended and Restated Administrative Services Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article shall have the meanings ascribed to
them in this Article and shall include the plural as well as the
singular;
(b) the words "include", "includes" and "including" shall be construed to
be followed by the words "without limitation";
(c) Article and Section headings are for the convenience of the reader and
shall not be considered in interpreting this Amended and Restated
Administrative Services Agreement or the intent of the parties to this
Amended and Restated Administrative Services Agreement; and
(d) capitalized terms not otherwise defined in this Amended and Restated
Administrative Services Agreement will have the respective meanings
set forth in the Standard Indenture Terms.
ARTICLE 2
CONTINUATION OF APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.1. Appointment. Pursuant to Section 3806(b)(7) of the Delaware
Statutory Trust Act, the Administrator has previously been appointed, and will
continue to be appointed, hereunder as an agent of Global Funding with full
power and authority to carry out, and the Administrator has carried out, and
agrees to continue to carry out, all of the duties and responsibilities (a) of
Global Funding under the Program Documents and any other document to which
Global Funding is a party from time to time and (b) of the Administrator under
this Amended and Restated Administrative Services Agreement.
SECTION 2.2. Administrative Services. Without limiting the generality of
Section 2.1, Global Funding authorizes and empowers the Administrator, as its
agent, to
6
continue to perform, and the Administrator agrees to continue to
perform, the following services:
(a) subject to the timely receipt of all necessary information, providing,
or causing to be provided, all clerical, and bookkeeping services
necessary and appropriate for the administration of Global Funding,
including, without limitation, the following services as well as those
other services specified in the following subsections:
(i) maintenance of all books and records of Global Funding relating
to the fees, costs and expenses of Global Funding which books and
records shall be maintained separately from those of the
Administrator;
(ii) maintenance of records of cash payments and disbursements of
Global Funding in accordance with generally accepted accounting
principles, and preparation for audit of such periodic financial
statements as may be necessary or appropriate;
(iii) upon request, preparation for execution by Global Funding,
through a Responsible Officer, of amendments to and waivers under
the Program Documents and any other documents or instruments
deliverable by Global Funding thereunder or in connection
therewith;
(iv) holding, maintaining, and preserving executed copies of the
Program Documents and other documents or instruments executed by
Global Funding thereunder or in connection therewith, which shall
be maintained separately from those of the Administrator;
(v) upon receipt of notice, taking such action as may be reasonably
necessary to enforce the performance by the other parties to
agreements to which Global Funding is a party, and enforce the
obligations of those parties to Global Funding under such
agreements;
(vi) upon request, preparing for execution by a Responsible Officer
such notices, consents, instructions and other communications
that Global Funding may from time to time be required or
permitted to give under the Program Documents or any other
document executed by Global Funding;
(vii) obtaining services of outside counsel, accountants and other
Service Providers on behalf of Global Funding;
7
(viii) preparing for execution by a Responsible Officer any
instruction for payment of any amounts due and owing by Global
Funding under theProgram Documents to which Global Funding is a
party or any other document to which Global Funding is a party;
provided that the foregoing shall not obligate the Administrator
to advance any of its own monies for such purpose, it being
understood that such amounts shall be payable only to the extent
assets held in Global Funding are available therefor and at such
times and in such amounts as shall be permitted by the Program
Documents;
(ix) preparing for execution by a Responsible Officer any instruction
for payment of any amounts due and owing by Global Funding to any
Indenture Trustee, any Funding Note Indenture Trustee, any
Exchange Rate Agent, any Funding Note Exchange Rate Agent, any
Paying Agent, any Funding Note Paying Agent, any Registrar, any
Funding Note Registrar, any Calculation Agent, any Funding Note
Calculation Agent, any other Service Providers and any other
Person on request for all expenses, disbursements and advances to
the extent not paid pursuant to the Amended and Restated Support
Agreement; provided that the foregoing shall not obligate the
Administrator to advance any of its own monies for such purpose,
it being understood that such amounts shall be payable only to
the extent assets held in Global Funding are available therefor
and at such times and in such amounts as shall be permitted by
the Program Documents; and
(x) taking such other actions as may be incidental or reasonably
necessary (A) to the accomplishment of the actions of the
Administrator authorized in this subsection (a) or (B) upon
receipt of notice from a Responsible Officer directing
specifically the Administrator to do so, to the accomplishment of
the duties and responsibilities, and compliance with the
obligations, of Global Funding, under the Program Documents and
under any other document to which Global Funding is or may be a
party to the extent not otherwise performed by an Indenture
Trustee, a Funding Note Indenture Trustee, an Exchange Rate
Agent, a Funding Note Exchange Rate Agent, a Paying Agent, a
Funding Note Paying Agent, a Registrar, a Funding Note Registrar,
a Calculation Agent, a Funding Note Calculation Agent or the
Delaware Trustee; provided that no such duties or
responsibilities shall materially enlarge the duties and
responsibilities of the Administrator which are set forth
specifically in this Amended and Restated Administrative Services
Agreement;
8
(b) performing the administrative services to ensure compliance with all
of the obligations, representations, covenants and agreements ofGlobal
Funding set forth in the Program Documents and any other document to
which Global Funding is a party;
(c) subject to the timely receipt of all necessary information or notices
from the Delaware Trustee, and based on the advice of counsel, on
behalf of Global Funding: (i) the preparation and filing with the
Securities and Exchange Commission (the "Commission") and, if
necessary, executing, in each case solely on behalf of Global Funding
or any Trust and not in the Administrator's individual capacity such
documents, forms, certifications or filings as may be required by the
Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, the Trust Indenture Act of 1939, as amended, or
other securities laws (collectively, the "Securities Laws"), in
accordance with the requirements of the applicable Securities Laws and
regulations pursuant to such Securities Laws in connection with the
Program; (ii) the preparation and filing of any documents or forms
required to be filed by any rules or regulations of any securities
exchange, including without limitation, the New York Stock Exchange,
or market quotation dealer system or the National Association of
Securities Dealers, Inc. in connection with the listing of any Funding
Note and/or Notes thereon; and (iii) the preparation, filing and
execution, solely on behalf of Global Funding or any Trust and not in
the Administrator's individual capacity, such filings, applications,
reports, surety bonds, irrevocable consents, appointments of attorney
for service of process and other papers and documents as may be
necessary or desirable under the securities or "Blue Sky" laws of any
relevant jurisdictions; and
(d) undertaking such other administrative services as may be reasonably
requested by Global Funding or the Delaware Trustee, including causing
the preparation by Global Funding of any prospectus, prospectus
supplement, pricing supplement, registration statement, amendments,
including any exhibits and schedules thereto relating to the Program,
any reports or other filings or documents, or supplement thereto or
complying with the securities or "Blue Sky" laws of any relevant
jurisdictions in connection with the performance by Global Funding of
its obligations under the Program Documents or any other document to
which Global Funding is a party or other documents executed thereunder
or in connection therewith.
Any of the above services (other than those described in Sections 2.2(b),
2.2(c) and 2.2(d)) may, if the Administrator or Global Funding deems it
necessary or desirable, be subcontracted by the Administrator; provided that
notice is given to Global Funding (with a copy to Allstate Life) of such
subcontract and, notwithstanding such
9
subcontract, the Administrator shall remain responsible for performance of the
services set forth above unless such services are subcontracted to accountants
or legal counsel selected with due care by the Administrator and reasonably
satisfactory to Global Funding and Allstate Life and in which case the
Administrator shall not remain responsible for the performance of such services
and the Administrator shall not, in any event, be responsible for the costs,
fees or expenses in connection therewith.
SECTION 2.3. Continuation of the Base Administrative Services Agreement.
The parties hereto agree that, upon the execution of this Amended and Restated
Administrative Services Agreement:
(a) the Base Administrative Services Agreement shall continue in full
force and effect as amended and restated by this Amended and Restated
Administrative Services Agreement; and
(b) the rights and obligations of the parties hereto shall be as provided
in this Amended and Restated Administrative Services Agreement.
ARTICLE 3
ACTIVITIES OF GLOBAL FUNDING; EMPLOYEES; OFFICES.
SECTION 3.1. Activities of Global Funding. The Administrator agrees to
continue to carry out and perform the administrative activities of Global
Funding set forth in Article 2 in the name and on behalf of Global Funding as
its agent.
SECTION 3.2. Employees. All services to be furnished by the Administrator
under this Amended and Restated Administrative Services Agreement may be
furnished by an officer or employee of the Administrator, an officer or employee
of any Affiliate of the Administrator, or, subject to Article 2, any other
person or agent designated or retained by it; provided that the Administrator
shall remain ultimately responsible for the provision of such services by an
officer or employee of the Administrator or any of its Affiliates or any other
person or agent designated or retained by it, unless selected with due care and
reasonably satisfactory to Global Funding and Allstate Life in accordance with
the last paragraph of Article 2. No director, officer or employee of the
Administrator or any Affiliate of the Administrator shall receive from Global
Funding a salary or other compensation.
SECTION 3.3. Offices. The Administrator agrees to provide its own office
space, together with appropriate materials and any necessary support personnel,
for the day to day activities of Global Funding set forth in Article 2 to be
carried out and performed by the Administrator, all for the compensation
specified in Article 4. Unless otherwise agreed in writing, all services to be
furnished by the Administrator under this Amended and Restated Administrative
Services Agreement shall be performed from the Administrator's office in North
Carolina.
10
ARTICLE 4
COMPENSATION; INDEMNITIES
SECTION 4.1. Compensation. For services provided under this Amended and
Restated Administrative Services Agreement by the Administrator, Global Funding
agrees to pay the Administrator the fees as set forth in a separate fee letter
executed by Global Funding and the Administrator.
SECTION 4.2. Indemnities. To the fullest extent permitted under applicable
law and subject to limitations imposed by public policy, Global Funding agrees
to indemnify the Administrator, and hold the Administrator harmless, from and
against any and all losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, out-of-pocket costs and expenses
(including, without limitation, interest and reasonable attorneys fees, but
excluding costs and expenses attributable solely to administrative overhead)
arising out of, in connection with, or resulting from the exercise of the
Administrator's rights and/or the performance of the Administrator's duties, by
the Administrator or its agents and employees, under this Amended and Restated
Administrative Services Agreement (collectively, "Loss and Expense"); provided,
however, Global Funding shall not be liable to indemnify the Administrator, or
hold the Administrator harmless, from and against any and all Loss and Expense
resulting from or attributable to the negligence, bad faith or willful
misconduct of the Administrator.
ARTICLE 5
TERM
SECTION 5.1. Term. The Administrator may terminate this Amended and
Restated Administrative Services Agreement upon at least 30 days' written notice
to Global Funding and Allstate Life and Global Funding may terminate this
Amended and Restated Administrative Services Agreement upon at least 30 days'
notice to the Administrator (copies of any notice of termination shall also be
sent to Allstate Life, the Delaware Trustee, each Funding Note Indenture Trustee
and each Indenture Trustee). Such termination will not become effective until:
(i) Global Funding appoints a successor Administrator; (ii) the successor
Administrator accepts such appointment; (iii) the Administrator has obtained the
prior written confirmation of any Rating Agency that such action will not result
in a reduction or withdrawal of its then current ratings, if any, of the Program
and/or any Notes, as applicable; and (iv) Global Funding has paid all accrued
and unpaid amounts owed to the Administrator under this Amended and Restated
Administrative Services Agreement.
ARTICLE 6
OBLIGATION TO SUPPLY INFORMATION
SECTION 6.1. Obligation to Supply Information. The Delaware Trustee shall
forward to the Administrator such information (which is in the possession of
11
Global Funding) in connection with the Program, the Program Documents and this
Amended and Restated Administrative Services Agreement as the Administrator may
from time to time reasonably request in connection with the performance of its
obligations under this Amended and Restated Administrative Services Agreement.
The Administrator will: (a) hold and safely maintain all records, files, Program
Documents and other material of Global Funding, and (b) permit Global Funding,
the Delaware Trustee, and each of their respective officers, directors, agents
and consultants on reasonable notice at any time and from time to time during
normal business hours to inspect, audit, check and make abstracts from the
accounts, records, correspondence, documents and other materials of Global
Funding, or relating to the provision of services and facilities under this
Amended and Restated Administrative Services Agreement.
SECTION 6.2. Reliance on Information. Global Funding recognizes that the
accuracy and completeness of the records maintained and the information supplied
by the Administrator under this Amended and Restated Administrative Services
Agreement is dependent upon the accuracy and completeness of the information
obtained by the Administrator from the parties to the Program Documents and
other sources and the Administrator shall not be responsible for any inaccurate
or incomplete information so obtained or for any inaccurate or incomplete
records maintained by the Administrator under this Amended and Restated
Administrative Services Agreement that may result therefrom. The Administrator
shall have no duty to investigate the accuracy or completeness of any
information provided to it and shall be entitled to fully rely on all such
information provided to it.
ARTICLE 7
LIABILITY OF ADMINISTRATOR; STANDARD OF CARE
SECTION 7.1. Liability of Administrator. The Administrator assumes no
liability for anything other than the services rendered by it pursuant to
Articles 2, 3, 6 and 9, and neither the Administrator nor any of its directors,
officers, employees or Affiliates shall be responsible for any action of Global
Funding, the Delaware Trustee or the officers or employees thereof taken outside
the scope of Articles 2, 3, 6 and 9 and without direction from the
Administrator. Without limiting the generality of the foregoing, it is agreed
that the Administrator assumes no liability with respect to any of Global
Funding's obligations under the Program Documents.
SECTION 7.2. No Implied Obligations. Unless otherwise agreed in writing,
the Administrator shall not perform, endeavor to perform or agree to perform any
act on behalf of Global Funding not specifically required or permitted under the
Program Documents.
SECTION 7.3. Standard of Care. The Administrator shall perform its duties
under this Amended and Restated Administrative Services Agreement diligently, in
conformity with Global Funding's obligations under the Program Documents and
12
applicable laws and regulations and in accordance with the same standard of care
exercised by a prudent person in connection with the performance of the same or
similar duties and, in no event with less care than the Administrator exercises
or would exercise in connection with the same or similar obligations if those
obligations were the direct obligations of the Administrator.
ARTICLE 8
LIMITED RECOURSE
SECTION 8.1. Limited Recourse to Global Funding. Notwithstanding anything
to the contrary contained in this Amended and Restated Administrative Services
Agreement, all obligations of Global Funding under this Amended and Restated
Administrative Services Agreement shall be payable: (i) to the extent any such
obligation constitutes a Support Obligation, by Allstate Life pursuant to and in
accordance with the terms of the Amended and Restated Support Agreement; and
(ii) to the extent any such obligation does not constitute a Support Obligation,
by Global Funding, only to the extent of funds available therefor under and in
accordance with the terms of each applicable Funding Note Indenture and, to the
extent such funds are not available or are insufficient for the payment thereof,
such unavailability or insufficiency of funds shall not constitute a claim
against Global Funding to the extent of such unavailability or insufficiency.
This Section 8.1 shall survive the termination of this Amended and Restated
Administrative Services Agreement.
SECTION 8.2. No Recourse to Trustees and Agents. The obligations of Global
Funding under this Amended and Restated Administrative Services Agreement are
solely the obligations of Global Funding and no recourse shall be had with
respect to this Amended and Restated Administrative Services Agreement or any of
the obligations of Global Funding under this Amended and Restated Administrative
Services Agreement or for the payment of any fee or other amount payable under
this Amended and Restated Administrative Services Agreement or for any claim
based on, arising out of or relating to any provision of this Amended and
Restated Administrative Services Agreement against any trustee, employee,
settlor, Affiliate, agent or servant of Global Funding. This Section 8.2 shall
survive the termination of this Amended and Restated Administrative Services
Agreement.
ARTICLE 9
TAX MATTERS
SECTION 9.1. Income Tax Treatment. The Administrator agrees that for all
United States Federal, state and local income and franchise tax purposes: (a)
the Notes are intended to be treated as indebtedness of Allstate Life; and (b)
it is intended that Global Funding and each Trust will be ignored and will not
be treated as an association or a publicly traded partnership taxable as a
corporation. The Administrator agrees to not take any action inconsistent with
the treatment described in clauses (a) and (b) of the immediately preceding
sentence unless otherwise required by law.
13
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Amendments. No waiver, alteration, modification, amendment or
supplement of the terms of this Amended and Restated Administrative Services
Agreement shall be effective unless: (a) accomplished by written instrument
signed by the parties to this Amended and Restated Administrative Services
Agreement; and (b) for so long as any Notes remain outstanding, each of Xxxxx'x
and S&P has confirmed in writing that such action will not result in reduction
or withdrawal of its then current ratings, if any, of the Program and/or any
Notes, as applicable. Global Funding shall provide each of Xxxxx'x and S&P with
a copy of each such waiver, alteration, modification, amendment or supplement.
Notwithstanding anything in this Section 10.1 to the contrary, no waiver,
alteration, modification, amendment or supplement to the terms of this Amended
and Restated Administrative Services Agreement shall be effective without the
prior written consent of Allstate Life.
SECTION 10.2. No Joint Venture. Nothing contained in this Amended and
Restated Administrative Services Agreement shall constitute Global Funding and
the Administrator as members of any partnership, joint venture, association,
syndicate or unincorporated business.
SECTION 10.3. Assignment. Except as set forth in this Section 10.3, and
subject to the rights of the Administrator to subcontract its services under
this Amended and Restated Administrative Services Agreement pursuant to Article
2, this Amended and Restated Administrative Services Agreement may not be
assigned by either party without: (i) the prior written consent of the other
party and Allstate Life; and (ii) the prior written confirmation of each of
Xxxxx'x and S&P that such action will not result in a reduction or withdrawal of
its then current ratings, if any, of the Program or any Notes, as applicable.
Subject to the foregoing, this Amended and Restated Administrative Services
Agreement shall be binding upon and inure to the benefit of the parties to this
Amended and Restated Administrative Services Agreement and their respective
successors and assigns. Any party's transfer or assignment of this Amended and
Restated Administrative Services Agreement in violation of this Section 10.3
shall be void as to the other party.
SECTION 10.4. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) Pursuant to Section 5-1401 of the General Obligations Law of the State
of New York, this Amended and Restated Administrative Services
Agreement shall be governed by and construed in accordance with the
laws of the State of New York. Each party to this Amended and Restated
Administrative Services Agreement submits to the nonexclusive
jurisdiction of the United States District Court for the Southern
District of New York and of any New York State Court sitting in New
14
York City for purposes of all legal proceedings arising out of or
relating to this Amended and Restated Administrative Services
Agreement or the transactions contemplated by this Amended and
Restated Administrative Services Agreement. Each party to this Amended
and Restated Administrative Services Agreement irrevocably waives, to
the fullest extent permitted by law, any objection which it may have
to the laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. Each party to this Amended
and Restated Administrative Services Agreement consents to process
being served in any suit, action or proceeding with respect to this
Amended and Restated Administrative Services Agreement, or any
document delivered pursuant to this Amended and Restated
Administrative Services Agreement by the mailing of a copy thereof by
registered or certified mail, postage prepaid, return receipt
requested, to its respective address specified at the time for notices
under this Amended and Restated Administrative Services Agreement or
to any other address of which it shall have given written notice to
the other party. The foregoing shall not limit the ability of any
party to this Amended and Restated Administrative Services Agreement
to bring suit in the courts of any other jurisdiction.
(b) Each of the parties irrevocably waives any and all right to a trial by
jury with respect to any legal proceeding arising out of or relating
to this Amended and Restated Administrative Services Agreement or any
transaction contemplated hereby. Each of the parties to this Amended
and Restated Administrative Services Agreement acknowledges that such
waiver is made with full understanding and knowledge of the nature of
the rights and benefits waived.
SECTION 10.5. Counterparts. This Amended and Restated Administrative
Services Agreement and any amendments, supplements, modifications, restatements
and replacements of this Amended and Restated Administrative Services Agreement,
or waivers or consents to this Amended and Restated Administrative Services
Agreement, may be executed in any number of counterparts, and by different
parties to this Amended and Restated Administrative Services Agreement in
separate counterparts, each of which, when so executed and delivered, shall be
deemed to be an original and all of which counterparts, when taken together,
shall constitute one and the same instrument. This Amended and Restated
Administrative Services Agreement shall become effective upon the execution of a
counterpart by each of the parties.
SECTION 10.6. Limitation of Delaware Trustee Liability. Notwithstanding any
provision of this Amended and Restated Administrative Services Agreement to the
contrary, it is expressly understood and agreed by the parties that: (a) this
Amended and Restated Administrative Services Agreement is executed and delivered
by the Delaware Trustee, not individually or personally, but solely as trustee,
15
as applicable, in the exercise of the powers and authority conferred and vested
in it, pursuant to the Amended and Restated Trust Agreement; (b) each of the
representations, undertakings and agreements in this Amended and Restated
Administrative Services Agreement made on the part of Global Funding is made and
intended not as personal representations, undertakings and agreements by the
Delaware Trustee but is made and intended for the purpose of binding only Global
Funding; (c) nothing contained in this Amended and Restated Administrative
Services Agreement shall be construed as creating any liability on the Delaware
Trustee, individually or personally, to perform any covenant either expressed or
implied contained in this Amended and Restated Administrative Services
Agreement, all such liability, if any, being expressly waived by the parties to
this Amended and Restated Administrative Services Agreement and by any person
claiming by, through or under the parties to this Amended and Restated
Administrative Services Agreement; and (d) under no circumstances shall the
Delaware Trustee be personally liable for the payment of any indebtedness or
expenses of Global Funding or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by Global
Funding under this Amended and Restated Administrative Services Agreement or any
other related documents.
SECTION 10.7. No Petition. The Administrator covenants and agrees that it
will not institute against, or join with any other Person in instituting
against, Global Funding any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law. This Section 10.7 shall survive termination of this
Amended and Restated Administrative Services Agreement.
SECTION 10.8. Severability. If any provision in this Amended and Restated
Administrative Services Agreement shall be invalid, illegal or unenforceable,
such provisions shall be deemed severable from the remaining provisions of this
Amended and Restated Administrative Services Agreement and shall in no way
affect the validity or enforceability of such other provisions of this Amended
and Restated Administrative Services Agreement.
SECTION 10.9. Entire Agreement. This Amended and Restated Administrative
Services Agreement constitutes the entire agreement between the parties with
respect to matters covered by this Amended and Restated Administrative Services
Agreement and supersedes all prior agreements and understandings with respect to
such matters between the parties whether written or oral.
SECTION 10.10. Administrator to Provide Access to Books and Records. The
Administrator shall provide each Funding Note Indenture Trustee and each
Indenture Trustee with access to the books and records of Global Funding,
without charge, but only: (a) upon the reasonable request of such Funding Note
Indenture Trustee or Indenture Trustee (for which purpose one Business Day shall
be deemed reasonable); (b) during normal business hours; (c) subject to the
Administrator's normal security and confidentiality procedures; and (d) at
offices designated by the Administrator.
16
SECTION 10.11. No Waiver. No failure on the part of the parties to this
Amended and Restated Administrative Services Agreement to exercise, and no delay
in exercising, and no course of dealing with respect to, any right, power or
privilege under this Amended and Restated Administrative Services Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof or the exercise of any other right, power or privilege operate as such a
waiver.
SECTION 10.12. Remedies Cumulative. No right, power or remedy of the
parties under this Amended and Restated Administrative Services Agreement shall
be exclusive of any other right, power or remedy, but shall be cumulative and in
addition to any other right, power or remedy thereunder or existing by law or in
equity.
SECTION 10.13. Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon either party to
this Amended and Restated Administrative Services Agreement shall be in writing
(including by facsimile transmission) and shall be personally delivered or sent
by guaranteed overnight delivery or by facsimile transmission (to be followed by
personal or guaranteed overnight delivery) and shall be deemed to be given for
purposes of this Amended and Restated Administrative Services Agreement on the
day that such writing is received by the intended recipient thereof in
accordance with the provisions of this Section 10.13. Unless otherwise specified
in a notice sent or delivered in accordance with the foregoing provisions of
this Section 10.13, notices, demands, instructions and other communications in
writing shall be given to or made upon the respective parties thereto at their
respective addresses (or their respective telecopy numbers) indicated below:
If to Global Funding:
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
If to the Administrator:
AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
or at such address as shall be designated by any party in a written notice to
the other party.
17
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Administrative Services Agreement to be duly executed as of the day and
year first above written.
ALLSTATE LIFE GLOBAL FUNDING
By: WILMINGTON TRUST COMPANY, not in
its individual capacity,
but solely as Delaware Trustee
By:
---------------------------------------
Name:
Title:
AMACAR PACIFIC CORP.,
in its individual capacity
By:
---------------------------------------
Name:
Title:
18
