EXHIBIT 10.9
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AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
ALLSTATE LIFE GLOBAL FUNDING
AND
AMACAR PACIFIC CORP.
DATED AS OF -, 2004
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS; OTHER DEFINITIONAL PROVISIONS
SECTION 1.1. DEFINITIONS............................................................................2
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS..........................................................5
ARTICLE 2 APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.1. APPOINTMENT............................................................................5
SECTION 2.2. ADMINISTRATIVE SERVICES................................................................5
ARTICLE 3 ACTIVITIES OF GLOBAL FUNDING; EMPLOYEES; OFFICES
SECTION 3.1. ACTIVITIES OF GLOBAL FUNDING...........................................................8
SECTION 3.2. EMPLOYEES..............................................................................8
SECTION 3.3. OFFICES................................................................................9
ARTICLE 4 COMPENSATION; INDEMNITIES
SECTION 4.1. COMPENSATION...........................................................................9
SECTION 4.2. INDEMNITIES............................................................................9
ARTICLE 5 TERM
SECTION 5.1. TERM...................................................................................9
ARTICLE 6 OBLIGATION TO SUPPLY INFORMATION
SECTION 6.1. OBLIGATION TO SUPPLY INFORMATION......................................................10
SECTION 6.2. RELIANCE ON INFORMATION...............................................................10
ARTICLE 7 LIABILITY OF ADMINISTRATOR; STANDARD OF CARE
SECTION 7.1. LIABILITY OF ADMINISTRATOR............................................................10
SECTION 7.2. NO IMPLIED OBLIGATIONS................................................................10
SECTION 7.3. STANDARD OF CARE......................................................................10
ARTICLE 8 LIMITED RECOURSE
SECTION 8.1. LIMITED RECOURSE TO GLOBAL FUNDING....................................................11
SECTION 8.2. NO RECOURSE TO TRUSTEES AND AGENTS....................................................11
ARTICLE 9 TAX MATTERS
SECTION 9.1. INCOME TAX TREATMENT..................................................................11
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ARTICLE 10 MISCELLANEOUS
SECTION 10.1. AMENDMENTS............................................................................12
SECTION 10.2. NO JOINT VENTURE......................................................................12
SECTION 10.3. ASSIGNMENT............................................................................12
SECTION 10.4. GOVERNING LAW, CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..........................12
SECTION 10.5. COUNTERPARTS..........................................................................13
SECTION 10.6. LIMITATION OF DELAWARE TRUSTEE LIABILITY..............................................13
SECTION 10.7. NO PETITION...........................................................................14
SECTION 10.8. SEVERABILITY..........................................................................14
SECTION 10.9. ENTIRE AGREEMENT......................................................................14
SECTION 10.10. ADMINISTRATOR TO PROVIDE ACCESS TO BOOKS AND RECORDS..................................14
SECTION 10.11. NO WAIVER.............................................................................14
SECTION 10.12. REMEDIES CUMULATIVE...................................................................15
SECTION 10.13. NOTICES...............................................................................15
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THIS AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT (this "AMENDED
AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT") dated as of -, is entered into
between Allstate Life Global Funding, a statutory trust organized under the laws
of the State of Delaware ("GLOBAL FUNDING") and AMACAR Pacific Corp., as
administrator (in such capacity, the "ADMINISTRATOR").
WHEREAS, Global Funding and the Administrator entered into that certain
Administrative Services Agreement, dated as of June 27, 2002 (the "Base
Administrative Services Agreement"), and the parties hereto desire to amend and
restate the Base
Administrative Services Agreement in its entirety;
WHEREAS, Global Funding desires to facilitate a program (the "PROGRAM") for
the issuance, from time to time, of secured medium term notes (the "NOTES");
WHEREAS, the Notes will be issued by newly created Delaware statutory
trusts that are beneficially owned by Global Funding (each, a "TRUST");
WHEREAS, each Trust will purchase a funding note issued by Global Funding
(each, a "FUNDING NOTE") with the proceeds from the sale of the Notes;
WHEREAS, Global Funding will sell a Funding Note to each Trust and use the
proceeds therefrom to purchase one or more Funding Agreement(s) (the "FUNDING
AGREEMENT(S)") from Allstate Life;
WHEREAS, Allstate Life will sell the Funding Agreement(s) to Global Funding
in consideration for the proceeds Global Funding receives from the sale of such
Funding Note;
WHEREAS, Global Funding will immediately assign absolutely and deposit the
Funding Agreement(s) to each Trust and such Funding Note will be surrendered;
WHEREAS, each Trust will issue the Notes and collaterally assign the
Funding Agreement(s) to the Indenture Trustee to secure payment of the Notes;
WHEREAS, Global Funding has requested that the Administrator provide advice
and assistance to Global Funding generally and perform various services for
Global Funding generally; and
WHEREAS, Global Funding desires to avail itself of the experience, advice
and assistance of the Administrator and to have the Administrator 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:
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ARTICLE 1
DEFINITIONS; OTHER DEFINITIONAL PROVISIONS
SECTION 1.1. DEFINITIONS.
"ADMINISTRATION FEE" has the meaning ascribed in Section 4.1.
"ADMINISTRATOR" means AMACAR Pacific Corp., a Delaware corporation, in its
capacity as the sole administrator of Global Funding pursuant to this Amended
and Restated
Administrative Services Agreement, and its successors.
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities 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 TRUST AGREEMENT" means that certain Amended and
Restated Trust Agreement dated as of - , 2004 pursuant to which Global Funding
is created, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"AMENDED AND RESTATED SUPPORT AGREEMENT" means that certain Amended and
Restated Support Agreement dated as of - , 2004, between Allstate Life and
Global Funding, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"CLOSING INSTRUMENT" means the closing instrument of the Trust, pursuant to
which the Indenture is entered into, and certain other documents are executed,
in connection with the issuance of the Notes by the Trust.
"COLLATERAL" means, with respect to the Notes, the right, title and
interest of each Trust in and to (a) the Funding Agreement(s) held by such
Trust, (b) all proceeds of such Funding Agreement(s), (c) all books and records
pertaining to the Funding Agreement(s), and (d) all rights of such Trust
pertaining to the foregoing.
"COMMISSION" has the meaning ascribed in Section 2.2(c).
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"COORDINATION AGREEMENT" means that certain Coordination Agreement included
in Part F of the Series Instrument, among
Allstate Life Insurance Company, the
Trust and the Indenture Trustee, as the same may be amended, modified or
supplemented from time to time.
"DELAWARE TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation, in its capacity as the sole Delaware trustee of Global Funding and
its successors.
"DISTRIBUTION AGREEMENT" means that certain Distribution Agreement dated as
of -, 2004, by and among Global Funding and the Agents named therein, as the
same may be amended, modified or supplemented from time to time.
"GLOBAL FUNDING" means Allstate Life Global Funding, a statutory trust
formed under the laws of the State of Delaware.
"INDENTURE" means that certain Indenture included in Part A of the Closing
Instrument, between the Trust and the Indenture Trustee, as the same may be
amended, modified or supplemented from time to time.
"INDENTURE TRUSTEE" means X.X. Xxxxxx Trust Company, National Association,
and its successors.
"LOSS AND EXPENSE" has the meaning ascribed in Section 4.2.
"MOODY'S" means Xxxxx'x Investors Services, Inc.
"NAME LICENSING AGREEMENT" means that certain Name Licensing Agreement
included in Part D of the Series Instrument, between Allstate Insurance Company
and the Trust, as the same may be amended, modified or supplemented from time to
time.
"PAYING AGENT" has the meaning set forth in the Standard Indenture Terms.
"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" means the program for the issuance, from time to time, of secured
medium term notes of the Allstate Life Global Funding Trusts.
"PROGRAM DOCUMENTS" means the Series Instrument, the Amended and Restated
Trust Agreement, this Amended and Restated
Administrative Services Agreement,
the Amended and Restated Support Agreement, the Name Licensing Agreement, the
Distribution Agreement, the Terms Agreement, the Funding Note and any other
documents or instruments entered into by, or with respect to, or on behalf of,
Global Funding.
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"RATING AGENCY" means each of Xxxxx'x Investors Services, Inc., Standard &
Poor's Ratings Services, a Division of The XxXxxx-Xxxx Companies, Inc., and any
other rating agency which provides a rating of the Notes.
"REGISTRAR" has the meaning set forth in the Standard Indenture Terms.
"RESPONSIBLE OFFICER" means, with respect to the 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 the 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 the Indenture Trustee, having direct responsibility
for the administration of the Indenture.
"SERIES INSTRUMENT" means the closing instrument of the Trust, pursuant to
which the
Administrative Services Agreement, the Coordination Agreement, the
Name Licensing Agreement, the Support Agreement, the Terms Agreement and the
Trust Agreement are entered into, and certain other documents are executed, in
connection with the issuance of the Notes by the Trust.
"S&P" means Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, Inc.
"SERVICE PROVIDER" has the meaning set forth in the Amended and Restated
Support Agreement.
"STANDARD INDENTURE TERMS" means the Standard Indenture Terms, dated as of
-, 2004 relating to Global Funding's Program for the issuance of Notes.
"SUPPORT AGREEMENT" means the Support and Expenses Agreement with respect
to the Trust named in the Series Instrument, included in Part C of the Series
Instrument, as the same may be amended, modified or supplemented from time to
time.
"TERMS AGREEMENT" means that certain Terms Agreement related to the
offering of the Notes, included in Part E of the Series Instrument, by and among
Global Funding, the Trust and each Agent named therein, which will incorporate
by reference the terms of the Distribution Agreement.
"TRUST" means the Allstate Life Global Funding Trust specified in the
Series Instrument, together with its permitted successors and assigns.
"TRUST AGREEMENT" means that certain Trust Agreement, included in Part A of
the Series Instrument, pursuant to which the Trust is created.
"TRUST ORDER" has the meaning set forth in the Standard Indenture Terms.
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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; PROVIDED, that all capitalized terms used in and not
otherwise defined in this Amended and Restated Administrative Services
Agreement will have the meanings set forth in the Standard Indenture
Terms;
(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
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION 2.1. APPOINTMENT. Pursuant to Section 3806(b)(7) of the Delaware
Statutory Trust Act, the Administrator is hereby appointed, as an agent of
Global Funding with full power and authority, and agrees 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 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 perform, and the Administrator agrees 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;
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(ii) maintenance of records of cash payments and disbursements
(excluding principal and interest on any Funding Agreement(s)
or Funding Note) 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;
(viii) preparing for execution by a Responsible Officer any Trust
Order for payment of any amounts due and owing by Global
Funding under the Program 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 the Indenture Trustee, the Paying Agent, the
Registrar and other Service Providers on request for all
expenses, disbursements and
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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;
(x) causing a firm of independent public accountants that is a
member of the American Institute of Certified Public
Accountants to furnish to the board of directors of Allstate
Life an attestation report concerning compliance with
established minimum servicing standards; and
(xi) 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 the
Indenture Trustee, a Paying Agent, the Transfer Agent, the
Registrar 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;
(b) performing the administrative services to ensure compliance with all
of the obligations, representations, covenants and agreements of
Global Funding set forth in the Program Documents;
(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
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; (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 the Notes thereon; and (iii) preparing, filing and executing solely
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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, 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 of such subcontract and, notwithstanding such
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 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.
ARTICLE 3
ACTIVITIES OF GLOBAL FUNDING; EMPLOYEES; OFFICES.
SECTION 3.1. ACTIVITIES OF GLOBAL FUNDING. The Administrator agrees 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 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.
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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. 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.
ARTICLE 4
COMPENSATION; INDEMNITIES
SECTION 4.1. COMPENSATION. Global Funding agrees to pay the Administrator
the fees set forth in this Amended and Restated Administrative Services
Agreement (the "ADMINISTRATION FEE").
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 the Indenture Trustee). Such termination will not become effective until
(a) Global Funding appoints a successor Administrator, (b) the successor
Administrator accepts such appointment, (c) 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 the Notes, as applicable and (d) Global Funding has paid all accrued and
unpaid amounts owed to the Administrator under this Amended and Restated
Administrative Services Agreement.
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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
Global Funding) in connection with 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. 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
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conformity with Global Funding's obligations under the Program Documents and
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 by Global Funding (subject to
the lien created by the Indenture on the Collateral held by Global Funding) only
on a payment date of the Funding Note and only to the extent of funds available
therefor under the Indenture and, to the extent such funds are not available or
are insufficient for the payment thereof, shall not constitute a claim against
Global Funding to the extent of such unavailability or insufficiency until such
time as the Collateral held in Global Funding has produced proceeds sufficient
to pay such prior deficiency. 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 (i) to
treat the Notes as indebtedness of Allstate Life, (ii) Global Funding and the
Trust will be ignored and will not be treated as an association or a publicly
traded partnership taxable as a corporation and (iii) to not take any action
inconsistent with the treatment described in (i) and (ii) unless otherwise
required by law.
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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
York City for purposes of all legal proceeding arising out of or
relating to this Amended and Restated Administrative Services
Agreement or the transactions contemplated by this Amended and
Restated Administrative Services
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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 parties. 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. 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, modifications, restatements, supplements
and/or 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,
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
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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. To the extent permitted by applicable law, 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 applicable 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 the Indenture Trustee with access to the books and
records of Global Funding, without charge, but only (a) upon the reasonable
request of the Indenture Trustee (for which purpose one Business Day shall be
deemed reasonable during the occurrence and continuation of a Default or an
Event of Default), (b) during normal business hours, (c) subject to the
Administrator's normal security and confidentiality procedures and (d) at
offices designated by the Administrator.
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.
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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. Unless otherwise specified in a
notice sent or delivered in accordance with the foregoing provisions of this
Section, 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
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Administrative Services Agreement to be 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: Xxxxxxx X. Xxxxxxx
Title: President
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