EXHIBIT 4.6
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STANDARD FUNDING NOTE INDENTURE TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING
SECURED MEDIUM-TERM NOTES
and
ALLSTATE LIFE(R) CORENOTES(R)
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Allstate Life(R) is a registered service ▇▇▇▇ of Allstate Insurance Company.
CoreNotes(R) is a registered service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms Defined.......................................................1
SECTION 1.2 Interpretation.............................................................11
ARTICLE 2
THE FUNDING NOTE
SECTION 2.1 Amount Unlimited...........................................................12
SECTION 2.2 Status of Funding Note.....................................................12
SECTION 2.3 Forms Generally............................................................12
SECTION 2.4 Currency; Denominations....................................................13
SECTION 2.5 Execution, Authentication, Delivery and Date...............................14
SECTION 2.6 Registration, Transfer and Exchange........................................15
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Funding Note Certificates.............16
SECTION 2.8 Interest Record Dates......................................................18
SECTION 2.9 Cancellation...............................................................18
SECTION 2.10 Withholding Tax............................................................19
SECTION 2.11 Tax Treatment..............................................................19
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF FUNDING NOTE; SINKING FUNDS
SECTION 3.1 Redemption of Funding Note.................................................20
SECTION 3.2 Repayment at the Option of the Holder......................................23
SECTION 3.3 Repurchase of Funding Note.................................................24
SECTION 3.4 Sinking Funds..............................................................25
ARTICLE 4
PAYMENTS; FUNDING NOTE PAYING AGENTS AND FUNDING NOTE CALCULATION AGENT; COVENANTS
SECTION 4.1 Payment of Principal and Interest..........................................26
SECTION 4.2 Collection Account.........................................................28
SECTION 4.3 Offices for Payments, Etc..................................................29
SECTION 4.4 Appointment to Fill a Vacancy in Office of Funding Note Indenture
Trustee....................................................................29
SECTION 4.5 Funding Note Paying Agents.................................................30
SECTION 4.6 Funding Note Calculation Agent.............................................34
SECTION 4.7 Certificate to Funding Note Indenture Trustee..............................37
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SECTION 4.8 Negative Covenants.........................................................37
SECTION 4.9 Non-Petition...............................................................37
SECTION 4.10 Additional Amounts.........................................................38
ARTICLE 5
REMEDIES OF THE FUNDING NOTE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default..........................................................40
SECTION 5.2 Collection of Indebtedness by Funding Note Indenture
Trustee; Funding Note Indenture Trustee May Prove
Debt.......................................................................43
SECTION 5.3 Application of Proceeds....................................................46
SECTION 5.4 Suits for Enforcement......................................................48
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings........................48
SECTION 5.6 Limitations on Suits by Holders............................................48
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default......................................................49
SECTION 5.8 Control by the Holders.....................................................50
SECTION 5.9 Waiver of Past Defaults....................................................51
ARTICLE 6
THE FUNDING NOTE INDENTURE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities........................................51
SECTION 6.2 Certain Rights of the Funding Note Indenture Trustee.......................53
SECTION 6.3 Not Responsible for Recitals, Validity of the Funding Note or
Application of the Proceeds................................................54
SECTION 6.4 May Hold Funding Note; Collections, Etc....................................55
SECTION 6.5 Funds Held by Funding Note Indenture Trustee...............................55
SECTION 6.6 Compensation; Reimbursement; Indemnification...............................55
SECTION 6.7 Corporate Trustee Required; Eligibility....................................56
SECTION 6.8 Resignation and Removal; Appointment of Successor Trustee..................57
SECTION 6.9 Acceptance of Appointment by Successor Funding Note Trustee................59
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of
Funding Note Indenture Trustee.............................................60
SECTION 6.11 Limitations on Rights of Funding Note Indenture Trustee as Creditor........60
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ARTICLE 7
HOLDERS' LISTS AND REPORTS BY FUNDING NOTE INDENTURE TRUSTEE AND GLOBAL FUNDING
SECTION 7.1 Global Funding to Furnish Funding Note Indenture Trustee Names and
Addresses of Holders.......................................................61
SECTION 7.2 Preservation of Information; Communication to Holders......................61
SECTION 7.3 Reports by Funding Note Indenture Trustee..................................61
SECTION 7.4 Reports by Global Funding..................................................62
SECTION 7.5 Reports on Assessment of Compliance with Servicing Criteria and
Compliance Statements; Attestation Reports of Registered Public
Accounting Firm............................................................63
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 Evidence of Action Taken by a Holder.......................................64
SECTION 8.2 Proof of Execution of Instruments and of Holding of Funding Note...........65
SECTION 8.3 Voting Record Date.........................................................65
SECTION 8.4 Persons Deemed to be Owners................................................65
SECTION 8.5 Right of Revocation of Action Taken; Binding Effect of Actions by
Holders....................................................................65
ARTICLE 9
SUPPLEMENTAL FUNDING NOTE INDENTURES
SECTION 9.1 Supplemental Funding Note Indentures Without Consent of Holders............66
SECTION 9.2 Supplemental Funding Note Indentures with Consent of Holders...............68
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Funding
Note Indentures............................................................69
SECTION 9.4 Documents to Be Given to Funding Note Indenture Trustee....................69
SECTION 9.5 Notation on Funding Note Certificate in Respect of Supplemental
Funding Note Indentures....................................................69
SECTION 9.6 Amendment to Funding Agreement(s)..........................................70
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 Global Funding May Merge, Consolidate, Sell or Convey Property
Under Certain Circumstances................................................71
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ARTICLE 11
SATISFACTION AND DISCHARGE OF FUNDING NOTE INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 Satisfaction and Discharge of Funding Note Indenture.......................72
SECTION 11.2 Application by Funding Note Indenture Trustee of Funds Deposited
for Payment of Funding Note................................................73
SECTION 11.3 Repayment of Funds Held by Funding Note Paying Agent.......................73
SECTION 11.4 Return of Funds Held by Funding Note Indenture Trustee and Funding
Note Paying Agent..........................................................73
ARTICLE 12
MEETINGS OF HOLDERS OF FUNDING NOTE
SECTION 12.1 Purposes for Which Meetings May Be Called..................................74
SECTION 12.2 Call, Notice and Place of Meetings.........................................74
SECTION 12.3 Persons Entitled to Vote at Meetings.......................................75
SECTION 12.4 Quorum; Action.............................................................75
SECTION 12.5 Determination of Voting Rights; Conduct of Adjournment of Meetings.........76
SECTION 12.6 Counting Votes and Recording Action of Meetings............................77
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 No Recourse................................................................78
SECTION 13.2 Provisions of Funding Note Indenture for the Sole Benefit of
Parties and Holders........................................................78
SECTION 13.3 Successors and Assigns of Global Funding Bound by Indenture................79
SECTION 13.4 Notices and Demands on Global Funding, Funding Note Indenture
Trustee and any Holder.....................................................79
SECTION 13.5 Trust Certificates and Opinions of Counsel; Statements to be
Contained Therein..........................................................81
SECTION 13.6 Governing Law..............................................................82
SECTION 13.7 Counterparts...............................................................83
SECTION 13.8 Trust Indenture Act to Control.............................................83
SECTION 13.9 Judgment Currency..........................................................83
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 Security Interest..........................................................83
SECTION 14.2 Representations and Warranties.............................................84
SECTION 14.3 Additional Representations and Warranties..................................85
SECTION 14.4 Further Assurances; Covenants..............................................87
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SECTION 14.5 General Authority..........................................................88
SECTION 14.6 Remedies Upon Event of Default.............................................89
SECTION 14.7 Limitation on Duties of Funding Note Indenture Trustee with Respect
to Collateral..............................................................90
SECTION 14.8 Concerning the Funding Note Indenture Trustee..............................90
SECTION 14.9 Termination of Security Interest...........................................91
EXHIBIT A-1 Form of Funding Note Certificate Related to Secured Medium Term Notes A-1-1
Issued Under the Secured Medium Term Notes Program
EXHIBIT A-2 Form of Funding Note Certificate Related to Secured Medium Term Notes A-2-1
Issued Under The Allstate Life(R) CoreNotes(R) Program
EXHIBIT B Form of Certificate of Authentication B-1
EXHIBIT C Form of Funding Note Indenture Trustee Report Pursuant to Section 7.3(f) C-1
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This document constitutes the Standard Funding Note Indenture Terms, which
will be incorporated by reference in the Funding Note Indenture (as defined
below), by and among Global Funding (as defined below) and the Funding Note
Indenture Trustee, Funding Note Calculation Agent, Funding Note Exchange Rate
Agent, Funding Note Paying Agent and Funding Note Registrar (as defined below).
These Standard Funding Note Indenture Terms shall be of no force and effect
unless and until incorporated by reference into, and then only to the extent not
modified by, such Funding Note Indenture.
The following Standard Funding Note Indenture Terms shall govern the
Funding Note subject to contrary terms and provisions expressly adopted in the
Funding Note Indenture, any Supplemental Funding Note Indenture or the Funding
Note, which contrary terms shall be controlling.
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms shall have the
meanings specified in this Section for all purposes of the Funding Note
Indenture and the Funding Note, unless otherwise expressly provided. All other
terms used in the Funding Note Indenture which are defined in the Trust
Indenture Act or which are by reference therein defined in the Securities Act
shall have the meanings (except as otherwise expressly provided in the Funding
Note Indenture or unless the context otherwise clearly requires) assigned to
such terms in the Trust Indenture Act and in the Securities Act as in force at
the date of the Funding Note Indenture as originally executed.
"Additional Amounts" means any additional amounts which may be required by
the Funding Note, under circumstances specified in the Funding Note Certificate
or Supplemental Funding Note Indenture, to be paid by Global Funding in respect
of certain taxes, assessments or other governmental charges imposed on Holders
specified therein and which are owing to such Holders.
"Administrative Services Agreement" means that certain administrative
services agreement included in Part B of the Series Instrument, by and between
the Trust and the Administrator, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
"Administrator" means AMACAR Pacific Corp., a Delaware corporation, in its
capacity as the sole administrator of the Trust, or another entity specified in
the Funding Note Indenture as the Administrator, and, in each case, its
permitted successors and assigns.
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"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 ascribed in the Distribution Agreement.
"Amended and Restated Administrative Services Agreement" means that certain
Amended and Restated Administrative Services Agreement dated as of -, 2006,
between the Global Funding Administrator and Global Funding, 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 and Expenses Agreement dated as of -, 2006, between the Funding
Agreement Provider 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.
"Annual Redemption Percentage Reduction" has the meaning ascribed in the
Funding Note Certificate or the Funding Note Indenture.
"Annual Report" has the meaning ascribed in Section 7.5.
"Business Day" means (except as otherwise provided in the Pricing
Supplement) any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which commercial banks are authorized or required by law,
regulation or executive order to close in The City of New York; provided,
however, that, if the Specified Currency of the Funding Note is other than U.S.
Dollars, the day must also not be a day on which commercial banks are authorized
or required by law, regulation or executive order to close in the Principal
Financial Center of the country issuing the Specified Currency (or, if the
Specified Currency is Euro, the day must also be a day on which the Target
System is open).
"Closing Instrument" means the closing instrument of the Trust, pursuant to
which certain documents are executed, in connection with the issuance of the
Notes by the Trust and the issuance of the Funding Note by Global Funding.
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"Code" means the United States Internal Revenue Code of 1986, as amended,
including any successor statutes and any applicable rules, regulations, notices
or orders promulgated thereunder.
"Collateral" means, with respect to the Funding Note, the right, title and
interest of Global Funding in and to (i) each Funding Agreement issued to Global
Funding, (ii) all Proceeds in respect of each such Funding Agreement and (iii)
all books and records (including without limitation, computer programs,
printouts and other computer materials and files) of Global Funding pertaining
to the Funding Agreement(s).
"Collection Account" has the meaning ascribed in Section 4.2.
"Commission" means the Securities and Exchange Commission or any successor
body.
"Compliance Report" has the meaning ascribed in Section 7.5.
"Coordination Agreement" means 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.
"Corporate Trust Office" means the office of the Funding Note Indenture
Trustee at which the Funding Note Indenture shall, at any particular time, be
principally administered, which office is, at the date as of which the Funding
Note Indenture is executed, located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, except that for the purposes of Section 4.3 it shall be ▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location as may be
specified in or pursuant to the Funding Note Certificate or the Funding Note
Indenture.
"Debt" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (iv) all contingent
and non-contingent obligations of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit or similar
instrument, (v) all Debt secured by a Lien on any asset of such Person, whether
or not such Debt is otherwise an obligation of such Person, and (vi) all
Guarantees by such Person of Debt of another Person (each such Guarantee to
constitute Debt in an amount equal to the amount of such other Person's Debt
Guaranteed thereby).
"Defaulted Interest" has the meaning ascribed in Section 2.8(b).
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"Delaware Trustee" means Wilmington Trust Company, a Delaware banking
corporation, or another entity specified in the Funding Note Indenture as the
Delaware Trustee, in each case not in its individual capacity but solely as
trustee and its successors.
"Distribution Agreement" means that certain Distribution Agreement dated as
of -, 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.
"Euro" means the currency introduced at the start of the third stage of the
European economic and monetary union pursuant to the treaty establishing the
European Community, as amended by the Treaty on European Union.
"Event of Default" means any event or condition specified as such in
Section 5.1 which shall have continued for the period of time, if any, therein
designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funding Agreement" means each funding agreement issued by the Funding
Agreement Provider to Global Funding, which is immediately pledged and
collaterally assigned to the Funding Note Indenture Trustee by Global Funding,
and immediately thereafter assigned absolutely to, and deposited into, the Trust
by Global Funding, as the same may be amended, supplemented, modified, restated
or replaced from time to time in accordance with the terms thereof.
"Funding Agreement Provider" means Allstate Life Insurance Company, a stock
life insurance company organized under the laws of the State of Illinois, and
its successors.
"Funding Note" means the funding note issued by Global Funding and
authenticated by the Funding Note Indenture Trustee under the Funding Note
Indenture, in an authorized denomination and represented by the Funding Note
Certificate.
"Funding Note Calculation Agent" means the Funding Note Indenture Trustee
in its capacity as calculation agent with respect to the Funding Note or any
other Person specified as calculation agent with respect to the Funding Note in
the Funding Note Certificate or the Funding Note Indenture, and, in each case,
its successors in such capacity.
"Funding Note Certificate" means a security certificate representing the
Funding Note.
"Funding Note Exchange Rate Agent" means the Funding Note Indenture Trustee
in its capacity as exchange rate agent with respect to the Funding Note or any
other Person specified as exchange rate agent with respect to the Funding Note
in the
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Funding Note Certificate or the Funding Note Indenture, and, in each
case, its successors in such capacity.
"Funding Note Indenture" means that certain Funding Note Indenture included
in Part H of the Series Instrument, among Global Funding and the other parties
specified therein, as the same may be amended, supplemented, modified, restated
or replaced from time to time.
"Funding Note Indenture Trustee" means ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association, or another entity specified as the Funding Note Indenture Trustee
in the Funding Note Indenture, and, in each case, its successors.
"Funding Note Paying Agent" means the Funding Note Indenture Trustee in its
capacity as paying agent with respect to the Funding Note and/or any other
Person specified as paying agent with respect to the Funding Note in the Funding
Note Certificate or the Funding Note Indenture, and, in each case, its
successors in such capacity.
"Funding Note Register" has the meaning ascribed in Section 2.6(a).
"Funding Note Registrar" has the meaning ascribed in Section 2.6(a).
"Global Funding" means Allstate Life Global Funding, a statutory trust
formed under the laws of the State of Delaware.
"Global Funding Administrator" means AMACAR Pacific Corp., a Delaware
corporation, in its capacity as the sole administrator of Global Funding, and
its permitted successors and assigns.
"Global Funding Trust Beneficial Owner" means AMACAR Pacific Corp., in its
capacity as the sole beneficial owner of Global Funding, and its successors.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by virtue of an agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise), (ii) to reimburse a
bank for amounts drawn under a letter of credit for the purpose of paying such
Debt or (iii) entered into for the purpose of assuring in any other manner the
holder of such Debt of the payment thereof or to protect such holder against
loss in respect thereof (in whole or in part); provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
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The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" means each Person in whose name the Funding Note is registered in
the Funding Note Register.
"Holder Representative" has the meaning ascribed in Section 5.8(a).
"Immediate Redemption Price" has the meaning ascribed in Section 3.1(i).
"Indenture" means 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" means ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association,
or another entity specified as the Indenture Trustee in the Indenture, and, in
each case, its successors.
"Initial Redemption Date" means, with respect to the Funding Note or
portion thereof to be redeemed pursuant to Section 3.1(b), the date on or after
which such Funding Note or portion thereof may be redeemed as determined by or
pursuant to the Funding Note Indenture or the Funding Note Certificate or
Supplemental Funding Note Indenture.
"Initial Redemption Percentage" has the meaning specified in the Funding
Note Certificate.
"Interest Payment Date" has the meaning ascribed in Section 2.8(a).
"Interest Reset Date" has the meaning ascribed in the Funding Note
Certificate.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Judgment Currency" has the meaning ascribed in Section 13.9.
"LIBOR", has the meaning ascribed in the Funding Note Certificate.
"LIBOR Currency" means the currency specified in the Funding Note
Certificate as to which LIBOR shall be calculated or, if no currency is
specified in the applicable Funding Note Certificate, United States dollars.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, Global Funding
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a
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vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Market Exchange Rate" for a Specified Currency other than United States
dollars means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes (or, if
not so certified, as otherwise determined) by the Federal Reserve Bank of New
York.
"Maturity Date" means, with respect to the principal (or any installment of
principal) of the Funding Note, any date prior to the Stated Maturity Date on
which the principal (or such installment of principal) of the Funding Note
becomes due and payable whether, as applicable, by the declaration of
acceleration of maturity, notice of redemption at the option of Global Funding,
notice of the Holder's option to elect repayment or otherwise.
"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, supplemented, modified, restated or
replaced from time to time.
"Nonrecourse Parties" has the meaning ascribed in Section 13.1.
"Notes" has the meaning ascribed in the Indenture.
"Note Certificate" means a security certificate representing one or more
Notes.
"Obligations" means the obligations of Global Funding secured under the
Funding Note and the Funding Note Indenture, including (a) all principal of, any
premium and interest payable (including, without limitation, any interest which
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of Global Funding, whether or
not allowed or allowable as a claim in any such proceeding) on, and any
Additional Amounts with respect to, the Funding Note or pursuant to the Funding
Note Indenture, (b) all other amounts payable by Global Funding under the
Funding Note Indenture or under the Funding Note including all costs and
expenses (including attorneys' fees) incurred by the Funding Note Indenture
Trustee or any Holder thereof in realizing on the Collateral to satisfy such
obligations and (c) any renewals or extensions of the foregoing.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to Global Funding or the Funding Note
Indenture Trustee or who may be other counsel satisfactory to the Funding Note
Indenture Trustee. Each such opinion shall include the statements provided for
in Section 13.5 hereof, if and to the extent required hereby.
"Original Issue Date" shall have the meaning set forth in the Pricing
Supplement.
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"Owner" shall, with respect to each Funding Agreement, have the meaning
ascribed in such Funding Agreement.
"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, trust or other organization, whether or not a legal
entity, and any government or any agency or political subdivision thereof.
"Pricing Supplement" means the pricing supplement included as Annex A to
the Series Instrument.
"Principal Amount" with respect to a Funding Agreement, has the meaning
ascribed in such Funding Agreement.
"Principal Financial Center" means, as applicable (i) the capital city of
the country issuing the Specified Currency; or (ii) the capital city of the
country to which the LIBOR Currency relates; provided, however, that with
respect to United States dollars, Australian dollars, Canadian dollars, Euros,
South African rands and Swiss francs, the "Principal Financial Center" shall be
The City of New York, Sydney, Toronto, London (solely in the case of the LIBOR
Currency), Johannesburg and Zurich, respectively.
"Proceeds" means all of the proceeds of, and all other profits, products,
rents, principal payments, interest payments or other receipts, in whatever
form, arising from the collection, sale, lease, exchange, assignment, licensing
or other disposition or maturity of, or other realization upon, a Funding
Agreement, including without limitation all claims of Global Funding against
third parties for loss of, damage to or destruction of, or for proceeds payable
under, such Funding Agreement, in each case whether now existing or hereafter
arising.
"Program" means the program for issuance, from time to time, of Secured
Medium Term Notes and Allstate Life(R) CoreNotes(R) through Allstate Life Global
Funding Trusts, as described in the Registration Statement.
"Program Funding Notes" means all funding notes issued, from time to time,
by Global Funding in connection with the Program.
"Redemption Date" means, with respect to the Funding Note to be redeemed,
pursuant to Section 3.1(b) or Section 3.1(c), the date of redemption of the
Funding Note, or such portion thereof, specified in the relevant notice of
redemption provided to the Funding Note Indenture Trustee pursuant to Section
3.1(d).
"Redemption Price" means an amount equal to the Initial Redemption
Percentage specified in the Funding Note Certificate (as adjusted by the Annual
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Redemption Percentage Reduction, if applicable) multiplied by the unpaid
principal amount of the Funding Note to be redeemed.
"Registration Statement" means the Registration Statement relating to the
Program (File No. 333-129157), filed with the Commission by the Funding
Agreement Provider 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.
"Regular Interest Record Date" has the meaning ascirbed in Section 2.8(a).
"Regulation AB" has the meaning ascribed in Section 7.5.
"Repayment Date" means, with respect to a Funding Note or any portion
thereof to be repaid pursuant to Section 3.2, the date for the repayment of such
Funding Note or such portion thereof as determined by, or pursuant to, the
Funding Note Indenture or the Funding Note Certificate or Supplemental Funding
Note Indenture.
"Repayment Price" means, with respect to the Funding Note or any portion
thereof to be repaid pursuant to Section 3.2, the price for repayment of such
Funding Note or such portion thereof as determined by, or pursuant to, the
Funding Note Indenture or the Funding Note Certificate or Supplemental Funding
Note Indenture.
"Responsible Officer" when used with respect to any Person means the
chairman of the board of directors or any vice chairman of the board of
directors or the president or any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "vice
president") of such Person. With respect to Global Funding, Responsible Officer
means any Responsible Officer (as defined in the preceding sentence) plus any
assistant secretary and any financial services officer of the Delaware Trustee,
and with respect to the Delaware Trustee or the Funding Note Indenture Trustee,
Responsible Officer means any Responsible Officer (as defined in the first
sentence of this definition) plus the chairman of the trust committee, the
chairman of the executive committee, any vice chairman of the executive
committee, the cashier, the secretary, the treasurer, any trust officer, any
assistant trust officer, any assistant vice president, any assistant cashier,
any assistant secretary, any assistant treasurer, or any other authorized
officer of the Delaware Trustee or Funding Note Indenture Trustee customarily
performing functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
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"Security Interest" has the meaning ascribed in Section 14.1(a).
"Series Instrument" means the series instrument of the Trust, pursuant to
which the Administrative Services Agreement, the Coordination Agreement, the
Funding Note Indenture, the Indenture, 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.
"Special Interest Record Date" has the meaning ascribed in Section 2.8(b).
"Specified Currency" has the meaning ascribed in Section 2.4.
"Standard Trust Terms" means those Standard Trust Terms, dated as of -,
2006, which will be incorporated by reference in the Trust Agreement.
"Stated Maturity Date," means with respect to the Funding Note, any
installment of principal thereof, or interest thereon, any premium thereon or
any Additional Amounts with respect thereto, the date established by or pursuant
to the Funding Note Indenture or Funding Note Certificate or Supplemental
Funding Note Indenture as the date on which the principal of such Funding Note
or such installment of principal or interest or such premium is, or such
Additional Amounts are, due and payable.
"Supplemental Funding Note Indenture" has the meaning ascribed in Section
9.1(a).
"Support Agreement" means that certain Support and Expenses Agreement
included in Part C of the Series Instrument, by and between the Funding
Agreement Provider and the Trust, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
"TARGET System" means the Trans-European Automated Real Time Gross
Settlement Express Transfer (TARGET) System.
"Tax Event" has the meaning ascribed in Section 3.1(c).
"Terms Agreement" means that certain Terms Agreement 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.
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"Trust Agreement" means that certain Trust Agreement included in Part A of
the Series Instrument, among the Delaware Trustee, the Administrator and the
Trust Beneficial Owner.
"Trust Beneficial Owner" means Global Funding, in its capacity as the sole
beneficial owner of the Trust, and its successors.
"Trust Certificate" means a certificate signed by the Global Funding
Administrator on behalf of Global Funding and delivered to the Funding Note
Indenture Trustee. Each such certificate shall include the statements provided
for in Section 13.5.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
"UCC" means the Uniform Commercial Code, as from time to time in effect in
the State of New York; provided that, with respect to the perfection, effect of
perfection or non-perfection, or priority of any security interest in the
Collateral, "UCC" shall mean the applicable jurisdiction whose law governs such
perfection, non-perfection or priority.
"United States", except as otherwise provided in or pursuant to the Funding
Note Indenture or the Funding Note Certificate, means the United States of
America (including the states thereof and the District of Columbia), its
territories and possessions and other areas subject to its jurisdiction.
"United States Dollars", "U.S. Dollars" or "$" means lawful currency of the
United States.
SECTION 1.2 Interpretation. For all purposes of the Funding Note Indenture
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) all accounting terms used and not expressly defined shall have
the meanings given to them in accordance with United States
generally accepted accounting principles, and the term "generally
accepted accounting principles" shall mean such accounting
principles which are generally accepted at the date or time of
any computation or at the date of the Funding Note Indenture;
(c) references to Exhibits, Articles, Sections, paragraphs,
subparagraphs and clauses shall be construed as references to the
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Exhibits, Articles, Sections, paragraphs, subparagraphs and
clauses of the Funding Note Indenture;
(d) the words "include", "includes" and "including" shall be
construed to be followed by the words "without limitation"; and
(e) Article and Section headings are for the convenience of the
reader and shall not be considered in interpreting the Funding
Note Indenture or the intent of the parties.
ARTICLE 2
THE FUNDING NOTE
SECTION 2.1 Amount Unlimited. The principal amount of the Funding Note that
may be authenticated and delivered under the Funding Note Indenture shall be the
principal amount of the Funding Note set forth in the Pricing Supplement.
SECTION 2.2 Status of Funding Note. The Funding Note constitutes a direct,
unconditional, unsubordinated and secured non-recourse obligation of Global
Funding.
SECTION 2.3 Forms Generally.
(a) The Funding Note Certificate, shall be in, or substantially in,
the form set forth in Exhibit A-1 or Exhibit A-2, as applicable,
with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by the Funding Note
Indenture or as may in Global Funding's judgment be necessary,
appropriate or convenient to permit the Funding Note to be issued
and sold, or to comply, or facilitate compliance, with applicable
laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities
exchange on which the Funding Note may be listed, or as may,
consistently herewith, be determined by the Responsible Officer
of Global Funding executing such Funding Note Certificate, with
the approval of the Funding Note Indenture Trustee, as evidenced
by his or her execution thereof.
(b) The Funding Note Certificate may be printed, lithographed,
engraved, typewritten, photocopied or otherwise produced in any
manner as the Responsible Officer of Global Funding executing
such Funding Note Certificate may determine.
(c) The terms and provisions contained in the Funding Note
Certificate and in any Supplemental Funding Note Indenture shall
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constitute, and are expressly made, a part of the Funding Note
Indenture and, to the extent applicable, Global Funding and the
Funding Note Indenture Trustee, by their execution and delivery
of the Funding Note Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.4 Currency; Denominations.
(a) Unless otherwise specified in the Funding Note Certificate or in
any Supplemental Funding Note Indenture, the Funding Note will be
denominated in, and payments of principal of, premium and
interest on, and Additional Amounts in respect to, the Funding
Note will be made in, U.S. dollars. The currency in which the
Funding Note is denominated (or, if such currency is no longer
legal tender for the payment of public and private debts in the
country issuing such currency or, in the case of Euro, in the
member states of the European Union that have adopted the single
currency in accordance with the Treaty establishing the European
Community, as amended by the Treaty on European Union, such
currency which is then such legal tender) is in the Funding Note
Indenture referred to as the "Specified Currency".
(b) Unless otherwise provided in or pursuant to the Funding Note
Indenture, Global Funding appoints the Funding Note Indenture
Trustee as Funding Note Exchange Rate Agent with respect to the
Funding Note and the Funding Note Indenture Trustee accepts such
appointment.
(c) Unless otherwise specified in a Funding Note Certificate or in a
Supplemental Funding Note Indenture, the Funding Note shall be
issued in a minimum denomination of $1,000 and integral multiples
of $1,000 in excess thereof or equivalent denominations in other
currencies.
(d) Global Funding may (if so specified in a Funding Note Certificate
or Supplemental Funding Note Indenture) without the consent of
the Holder of the Funding Note, redenominate the Funding Note on
or after the date on which the member state of the European Union
in whose national currency the Funding Note is denominated has
become a participant member in the third stage of the European
economic and monetary union as more fully set out in the Funding
Note Certificate or Supplemental Funding Note Indenture.
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(e) Unless otherwise specified in the Funding Note Certificate or
Supplemental Funding Note Indenture, if the Specified Currency of
the Funding Note is other than U.S. Dollars, Global Funding shall
not sell a Funding Note in, or to residents of, the country
issuing such Specified Currency.
SECTION 2.5 Execution, Authentication, Delivery and Date.
(a) The Funding Note Certificate shall be executed on behalf of
Global Funding by any Responsible Officer of the Delaware
Trustee. The signature of any Responsible Officer of the Delaware
Trustee may be manual, in facsimile form, imprinted or otherwise
reproduced and may, but need not, be attested.
(b) The Funding Note Certificate bearing the signature of a Person
who was at any time a Responsible Officer of the Delaware Trustee
shall bind Global Funding, notwithstanding that such Person has
ceased to hold such office prior to the authentication and
delivery of such Funding Note Certificate or did not hold such
office at the date of such Funding Note Certificate.
(c) At any time, and from time to time, after the execution and
delivery of the Funding Note Indenture, Global Funding may
deliver the Funding Note Certificate executed by or on behalf of
Global Funding to the Funding Note Indenture Trustee for
authentication, and the Funding Note Indenture Trustee shall
thereupon authenticate and deliver such Funding Note Certificate
as provided in the Funding Note Indenture and not otherwise.
(d) The Funding Note Indenture Trustee shall have the right to
decline to authenticate and deliver the Funding Note Certificate
under this Section if the Funding Note Indenture Trustee has
obtained an Opinion of Counsel reasonably acceptable to Global
Funding, to the effect that the issuance of the Funding Note will
adversely affect the Funding Note Indenture Trustee's own rights,
duties or immunities under the Funding Note Indenture.
(e) The Funding Note Certificate shall be dated the date of its
authentication.
(f) The Funding Note shall not be entitled to any benefit under the
Funding Note Indenture or be valid or obligatory for any purpose,
unless there appears on the Funding Note Certificate representing
the Funding Note a certificate of authentication substantially in
the form attached as Exhibit B executed by the Funding Note
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Indenture Trustee by manual signature of one of its authorized
signatories. Such certificate upon the Funding Note Certificate
shall be conclusive evidence, and the only evidence, that such
Funding Note Certificate has been duly authenticated and
delivered under the Funding Note Indenture.
SECTION 2.6 Registration, Transfer and Exchange.
(a) The Funding Note Indenture Trustee will serve initially as
registrar (in such capacity, and together with any successor
registrar, the "Funding Note Registrar") for the Funding Note. In
such capacity, the Funding Note Indenture Trustee will cause to
be kept at the Corporate Trust Office of the Funding Note
Indenture Trustee a register (the "Funding Note Register") in
which, subject to such reasonable regulations as it may
prescribe, the Funding Note Indenture Trustee will provide for
the registration of the Funding Note and of transfers of the
Funding Note. The Funding Note Register shall be in written form
in the English language or in any other form capable of being
converted into such form within a reasonable time.
(b) Upon surrender of the Funding Note Certificate for registration
of transfer of the Funding Note represented thereby, together
with the form of transfer endorsed thereon duly completed and
executed, at the designated office of the Funding Note Registrar
or of any applicable transfer agent, each as provided in the
Funding Note Certificate or Supplemental Funding Note Indenture,
the Delaware Trustee, on behalf of Global Funding shall execute,
and the Funding Note Indenture Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
a new Funding Note Certificate representing the Funding Note.
(c) The Funding Note Certificate executed, authenticated and
delivered upon any transfer or exchange shall be a valid
obligation of Global Funding, evidencing the same debt, and
entitled to the same benefits under the Funding Note Indenture,
as the Funding Note Certificate surrendered in connection with
any such transfer or exchange. Upon surrender or transfer of the
Funding Note Certificate pursuant to this Section 2.6, each new
Funding Note Certificate will, within three Business Days of the
receipt of the applicable form of transfer or the applicable
surrender, as the case may be, be delivered to the designated
office of the Funding Note Registrar or of any applicable
transfer agent, each as provided in the Funding Note Certificate
or
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Supplemental Funding Note Indenture, or mailed at the risk of the
Person entitled to such Funding Note Certificate to such address
as may be specified in the form of transfer.
(d) The Funding Note Certificate presented or surrendered in
connection with a transfer shall (if so required by Global
Funding or the Funding Note Indenture Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to Global Funding and the Funding Note Indenture
Trustee duly executed by, the applicable Holder or his attorney
duly authorized in writing.
(e) No service charge shall be made in connection with any transfer
of the Funding Note or the Funding Note Certificate, but Global
Funding or the Funding Note Indenture Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with a transfer of the Funding
Note or exchange of the Funding Note Certificate.
(f) Except as otherwise provided in or pursuant to the Funding Note
Indenture, Global Funding and the Funding Note Indenture Trustee
shall not be required to (i) upon presentation or surrender of
the Funding Note Certificate in connection with any transfer
during a period beginning at the opening of business 15 days
before the day of the selection for redemption of the Funding
Note or any portion thereof under Section 3.1 and ending at the
close of business on the day of such selection, register the
transfer of the Funding Note, or portion thereof, except if the
Funding Note is to be redeemed in part, with respect to the
portion of the Funding Note not to be redeemed, or (ii) exchange
the Funding Note Certificate representing the Funding Note the
Holder or Holders of which Funding Note shall have exercised the
option pursuant to Section 3.2 to require Global Funding to repay
the Funding Note prior to its Stated Maturity Date or register
the transfer of the Funding Note except, if the Funding Note is
to be repaid in part, with respect to the portion of the Funding
Note not to be repaid.
(g) No exchanges of the Funding Note shall be permitted other than
exchanges of the Funding Note pursuant to Sections 2.7, 3.1, 3.2
or 9.5.
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Funding Note Certificates.
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(a) If (i) the Funding Note Certificate is mutilated and is
surrendered to the Funding Note Indenture Trustee or Global
Funding, or the Funding Note Indenture Trustee and Global Funding
receive evidence to their satisfaction of the destruction, loss
or theft of the Funding Note Certificate, and (ii) there is
delivered to Global Funding and the Funding Note Indenture
Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to
Global Funding or the Funding Note Indenture Trustee that the
Funding Note Certificate has been acquired by a protected
purchaser, Global Funding shall execute and upon its request the
Funding Note Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of the mutilated, destroyed, lost or
stolen Funding Note Certificate, a new Funding Note Certificate
representing the Funding Note.
(b) If the Funding Note has become or is about to become due and
payable, Global Funding in its discretion may, instead of issuing
a new Funding Note Certificate, pay such amounts in respect of
the Funding Note.
(c) Upon the execution, authentication and delivery of the new
Funding Note Certificate under this Section, the Funding Note
Indenture Trustee or Global Funding may require the Holder to pay
a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Funding Note Indenture
Trustee) connected therewith.
(d) The Funding Note represented by the Funding Note Certificate
executed, authenticated and delivered pursuant to this Section in
lieu of the apparently destroyed, lost or stolen Funding Note
Certificate shall constitute an original additional contractual
obligation of Global Funding, whether or not any obligation with
respect to the Funding Note represented by the apparently
destroyed, lost or stolen Funding Note Certificate shall be at
any time enforceable by any Person, and shall be entitled to all
of the benefits of the Funding Note Indenture equally and
proportionately with the Funding Note duly issued under the
Funding Note Indenture.
(e) The provisions of this Section are exclusive with respect to the
replacement of the mutilated or apparently destroyed, lost or
stolen Funding Note Certificate or the payment of the Funding
Note represented thereby and shall preclude all other rights and
remedies with respect to the replacement of the mutilated or
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apparently destroyed, lost or stolen Funding Note Certificate or
the payment of the Funding Note represented thereby.
SECTION 2.8 Interest Record Dates.
(a) Interest on and Additional Amounts with respect to the Funding
Note which is payable, on any interest payment date specified in
the Funding Note Certificate or in any Supplemental Funding Note
Indenture (each such date, an "Interest Payment Date") shall be
paid to the Holder of the Funding Note at the close of business
on the date specified as the regular interest record date in the
Funding Note Certificate or Supplemental Funding Note Indenture
(the "Regular Interest Record Date") or, if no such date is
specified, the date that is 15 calendar days preceding such
Interest Payment Date.
(b) Unless otherwise provided in the Funding Note Certificate or in
any Supplemental Funding Note Indenture, any interest on, and any
Additional Amounts with respect to, the Funding Note which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date specified in the Funding Note Certificate
or Supplemental Funding Note Indenture (the "Defaulted Interest")
shall forthwith cease to be payable to the Holder of the Funding
Note on the relevant Regular Interest Record Date by virtue of
having been such Holder, and such Defaulted Interest shall be
paid by Global Funding to the Holder of the Funding Note at the
close of business on a special record date (the "Special Interest
Record Date") established by Global Funding by notice to each
applicable Holder and the Funding Note Indenture Trustee in
accordance with Section 13.4, which Special Interest Record Date
shall be not more than 15 nor less than 10 days prior to the date
of the proposed payment of Defaulted Interest and not less than
10 days after the receipt by the Funding Note Indenture Trustee
of the notice of the proposed payment of Defaulted Interest.
SECTION 2.9 Cancellation.
(a) The Funding Note shall be cancelled immediately upon the transfer
by Global Funding to, or as directed by, the Trust of each
Funding Agreement, and such cancellation shall operate as a
redemption and satisfaction of the Funding Note.
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(b) In case the Funding Note Certificate shall be surrendered for
exchange or in connection with any payment, redemption or
transfer of the Funding Note represented thereby, the Funding
Note Certificate shall be delivered to the Funding Note Indenture
Trustee and, if not already cancelled, shall be promptly
cancelled by it. Global Funding may at any time deliver to the
Funding Note Indenture Trustee for cancellation the Funding Note
Certificate previously authenticated and delivered under the
Funding Note Indenture which Global Funding may have acquired in
any manner whatsoever, and the Funding Note Certificate so
delivered shall be promptly cancelled by the Funding Note
Indenture Trustee. No Funding Note Certificates shall be
authenticated in lieu of or in exchange for the Funding Note
Certificate cancelled as provided in this Section, except as
expressly permitted by the Funding Note Indenture. The Funding
Note Indenture Trustee shall destroy the cancelled Funding Note
Certificate held by it and deliver a certificate of destruction
to Global Funding. If Global Funding shall acquire the Funding
Note, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by the Funding Note
unless and until the Funding Note Certificate representing the
Funding Note is delivered to the Funding Note Indenture Trustee
for cancellation.
SECTION 2.10 Withholding Tax. All amounts due in respect of the Funding
Note will be made without withholding or deduction for or on account of any
present or future taxes, duties, levies, assessments or other governmental
charges of whatever nature imposed or levied by or on behalf of any governmental
authority in the United States having the power to tax payments on the Funding
Note unless the withholding or deduction is required by law. Unless otherwise
specified in the Funding Note Certificate, Global Funding will not pay any
Additional Amounts to the Holders of the Funding Note in the event that any
withholding or deduction is so required by law, regulation or official
interpretation thereof, and the imposition of a requirement to make any such
withholding or deduction will not give rise to any independent right or
obligation to redeem or repay the Funding Note and shall not constitute an Event
of Default.
SECTION 2.11 Tax Treatment. The parties agree, and each Holder and
beneficial owner of the Funding Note by purchasing the Funding Note agrees, for
all United States Federal, state and local income and franchise tax purposes (i)
to treat the Funding Note as indebtedness of the Funding Agreement Provider,
(ii) 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 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 3
REDEMPTION, REPAYMENT AND REPURCHASE OF FUNDING NOTE; SINKING FUNDS
SECTION 3.1 Redemption of Funding Note.
(a) Redemption of the Funding Note by Global Funding as permitted or
required by the Funding Note Indenture and the Funding Note
Certificate will be made in accordance with the terms of the
Funding Note and (except as otherwise provided in the Funding
Note Indenture or pursuant to the Funding Note Indenture) this
Section.
(b) If any Initial Redemption Date is specified in the Funding Note
Certificate, Global Funding may redeem the Funding Note prior to
the Stated Maturity Date at its option, on, or on any Business
Day after, the Initial Redemption Date in whole or from time to
time in part in increments of $1,000 or any other integral
multiple of an authorized denomination of the Funding Note at the
applicable Redemption Price together with any unpaid interest
accrued thereon, any Additional Amounts and other amounts payable
with respect thereto, as of the Redemption Date.
(c) If (i) Global Funding is required at any time to pay Additional
Amounts or if Global Funding is obligated to withhold or deduct
any United States taxes with respect to any payment under the
Funding Note, as set forth in the Funding Note Certificate, or if
there is a material probability that Global Funding will become
obligated to withhold or deduct any such United States taxes or
otherwise pay Additional Amounts (in the opinion of independent
legal counsel selected by the Funding Agreement Provider), in
each case pursuant to any change in or amendment to any United
States tax laws (or any regulations or rulings thereunder) or any
change in position of the Internal Revenue Service regarding the
application or interpretation thereof (including, but not limited
to, the Funding Agreement Provider's or Global Funding's receipt
of a written adjustment from the Internal Revenue Service in
connection with an audit) (a "Tax Event"), and (ii) the Funding
Agreement Provider, pursuant to the terms of the relevant Funding
Agreement, has delivered to the Owner notice that the Funding
Agreement Provider intends to terminate the relevant Funding
Agreement pursuant to the terms of such Funding Agreement, then
Global Funding will redeem the Funding Note on the Redemption
Date at the Redemption Price together with any unpaid interest
accrued thereon, any Additional Amounts and
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other amounts payable with respect thereto, as of the Redemption
Date.
(d) Unless a shorter notice shall be satisfactory to the Funding Note
Indenture Trustee, Global Funding shall provide to the Funding
Note Indenture Trustee a notice of redemption of the Funding Note
(i) in case of any redemption at the election of Global Funding,
not more than 60 days nor less than 35 days prior to the
Redemption Date and (ii) in case of any mandatory redemption
pursuant to Section 3.1(c), at least 75 days prior to the
Redemption Date.
(e) Unless otherwise specified in the Funding Note Indenture or the
Funding Note Certificate, Global Funding shall give a notice of
redemption to the Holder of the Funding Note or any portion
thereof to be redeemed at Global Funding's option (i) in case of
any redemption at the election of Global Funding, not more than
60 days nor less than 30 days prior to the Redemption Date and
(ii) in case of any mandatory redemption pursuant to Section
3.1(c), not more than 75 days nor less than 30 days prior to the
Redemption Date; provided, that in the case of any notice of
redemption given pursuant to clause (ii) no such notice of
redemption may be given earlier than 90 days prior to the
earliest day on which Global Funding would become obligated to
pay the applicable Additional Amounts were a payment in respect
of the Funding Note then due. Failure to give such notice to the
Holder of any portion of the Funding Note designated for
redemption, or any defect in the notice to any such Holder, shall
not affect the validity of the proceedings for the redemption of
any other portion of the Funding Note.
Any notice that is mailed to the Holder of the Funding Note in the manner
provided for in Section 13.4 shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price or, if not then ascertainable, the
manner of calculation thereof,
(iii) the principal amount of the Funding Note to be redeemed,
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(iv) in case the Funding Note is to be redeemed in part only at
the election of Global Funding, the notice shall state that
on and after the Redemption Date, upon surrender of the
Funding Note Certificate representing the Funding Note, a
new Funding Note Certificate representing an authorized
denomination of the principal amount of the Funding Note
remaining unredeemed will be delivered by Global Funding,
(v) that, on the Redemption Date, the Redemption Price shall
become due and payable upon the Funding Note or portion
thereof to be redeemed, and, if applicable, that interest
thereon shall cease to accrue on and after the Redemption
Date,
(vi) the place or places where the Funding Note Certificate
representing the Funding Note is to be surrendered for
payment of the Redemption Price together with any unpaid
interest accrued thereon through the Redemption Date and any
Additional Amounts payable with respect thereto,
(vii) if applicable, in case of any redemption at the election of
Global Funding, that the redemption is for a sinking fund,
and
(viii) the CUSIP number or any other numbers used to identify the
Funding Note.
(f) On or prior to any Redemption Date, Global Funding shall deposit,
with respect to the Funding Note or any portion thereof called
for redemption pursuant to this Section, with the Funding Note
Paying Agent an amount of money in the Specified Currency
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date, unless
otherwise specified in the Funding Note Certificate) any unpaid
interest accrued through the Redemption Date on, and any
Additional Amounts payable with respect to, the Funding Note or
such portion thereof which is to be redeemed on the Redemption
Date.
(g) On the Redemption Date, the Funding Note or any portion thereof
to be redeemed shall, become due and payable at the Redemption
Price together with any unpaid interest accrued through the
Redemption Date on, and any Additional Amounts
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payable with respect to, the Funding Note or such portion
thereof, and from and after such date (unless Global Funding
shall default in the payment of the Redemption Price and any
unpaid interest accrued on the Funding Note or such portion
thereof through the Redemption Date) the Funding Note or such
portion thereof shall cease to bear interest. Upon surrender of
the Funding Note Certificate for redemption of the Funding Note
or any portion thereof represented thereby in accordance with the
applicable notice of redemption, the Funding Note or such portion
thereof shall be paid by Global Funding at the Redemption Price,
together with any unpaid interest accrued thereon through the
Redemption Date and any Additional Amounts payable with respect
thereto.
(h) If the Funding Note or any portion thereof called for redemption
shall not be so paid upon surrender of the Funding Note
Certificate for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate
specified in the Funding Note Certificate.
(i) Notwithstanding anything herein to contrary, Global Funding may
redeem the Funding Note on the Original Issue Date without notice
at a price equal to the principal amount of the Funding Note (the
"Immediate Redemption Price"). Global Funding may pay the
Redemption Price or the Immediate Redemption Price in cash or
Funding Agreement(s).
Upon surrender of the Funding Note Certificate for partial redemption of
the Funding Note in accordance with this Section, Global Funding shall execute
and the Funding Note Indenture Trustee shall authenticate and deliver one or
more new Funding Note Certificates of any authorized denomination representing
an aggregate principal amount equal to the unredeemed portion of the Funding
Note.
SECTION 3.2 Repayment at the Option of the Holder.
(a) If so specified in the Funding Note Certificate, the Holder or
Holders of the Funding Note may require Global Funding to repay
the Funding Note prior to the Stated Maturity Date in whole or
from time to time in part in increments of $1,000 or any other
integral multiple of an authorized denomination specified in the
Funding Note Certificate (provided that any remaining principal
amount thereof shall be at least $1,000 or other minimum
authorized denomination applicable thereto).
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(b) If the Funding Note is repayable at the option of the Holder or
Holders thereof before the Stated Maturity Date, the Funding Note
shall be repaid in accordance with its terms.
(c) The repayment of any principal amount of the Funding Note
pursuant to any option of the Holder or Holders to require
repayment of the Funding Note before the Stated Maturity Date
shall not operate as a payment, redemption or satisfaction of the
indebtedness represented by the Funding Note unless and until
Global Funding, at its option, shall deliver or surrender the
Funding Note Certificate representing the Funding Note to the
Funding Note Indenture Trustee with a directive that the Funding
Note Certificate be cancelled.
(d) Notwithstanding anything to the contrary contained in this
Section, in connection with any repayment of the Funding Note,
Global Funding may arrange for the purchase of the Funding Note
by an agreement with one or more investment bankers or other
purchasers to purchase the Funding Note by paying the Holder or
Holders of the Funding Note on or before the close of business on
the Repayment Date an amount not less than the Repayment Price
payable by Global Funding on repayment of the Funding Note, and
the obligation of Global Funding to pay the Repayment Price of
the Funding Note shall be satisfied and discharged to the extent
such payment is so paid by such purchasers.
(e) Any exercise of the repayment option will be irrevocable.
Upon surrender of the Funding Note Certificate for partial repayment of the
Funding Note in accordance with this Section, Global Funding shall execute and
the Funding Note Indenture Trustee shall authenticate and deliver one or more
new Funding Note Certificates of any authorized denomination representing an
aggregate principal amount equal to the outstanding portion of the Funding Note.
SECTION 3.3 Repurchase of Funding Note.
(a) Global Funding may purchase the Funding Note or any portion
thereof in the open market or otherwise at any time, and from
time to time, with the prior written consent of the Funding
Agreement Provider as to both the making of such purchase and the
purchase price to be paid for such Funding Note or such portion
thereof.
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(b) If the Funding Agreement Provider, in its sole discretion,
consents to such purchase of the Funding Note or any portion
thereof by Global Funding, the parties to the Funding Note
Indenture agree to take such actions as may be necessary or
desirable to effect the prepayment of such portion, or the
entirety, of the current Principal Amount, under each applicable
Funding Agreement as may be necessary to provide for the payment
of the purchase price for the Funding Note or such portion
thereof. Upon such payment, the Principal Amount under each
Funding Agreement shall be reduced (i) if the Funding Note bears
interest at fixed or floating rates, by an amount equal to the
principal amount of the Funding Note or such portion thereof so
purchased (or the portion thereof applicable to such Funding
Agreement) and (ii) if the Funding Note does not bear interest at
fixed or floating rates, by an amount to be agreed between Global
Funding and the Funding Agreement Provider to reflect such
prepayment under the Funding Agreement(s).
(c) The parties acknowledge and agree that (i) notwithstanding
anything to the contrary in the Funding Note Indenture, any
repurchase of the Funding Note or any portion thereof in
compliance with this Section 3.3 shall not violate any provision
of the Funding Note Indenture or the Amended and Restated Trust
Agreement and (ii) no Opinion of Counsel, Trust Certificate or
any other document or instrument shall be required to be provided
in connection with any repurchase of the Funding Note or any
portion thereof pursuant to this Section 3.3.
(d) If applicable, Global Funding will comply with the requirements
of Section 14(e) of the Exchange Act, and the rules promulgated
thereunder, and any other applicable securities laws or
regulations in connection with any repurchase pursuant to this
Section 3.3.
SECTION 3.4 Sinking Funds. Unless otherwise provided in the Funding Note
Certificate, the Funding Note will not be subject to, or entitled to the benefit
of, any sinking fund.
25
ARTICLE 4
PAYMENTS; FUNDING NOTE PAYING AGENTS AND FUNDING NOTE CALCULATION AGENT;
COVENANTS
SECTION 4.1 Payment of Principal and Interest.
(a) Global Funding will duly and punctually pay or cause to be paid
the principal of, any premium and interest on, and any Additional
Amounts with respect to, the Funding Note, in accordance with the
terms of the Funding Note and the Funding Note Indenture.
(b) Unless otherwise specified in the Funding Note Certificate, upon
the receipt of the funds necessary therefor, the applicable
Funding Note Paying Agent shall duly and punctually make
payments, payable on the Maturity Date, of principal in respect
of, any premium and interest on, and any Additional Amounts
payable with respect to, the Funding Note in immediately
available funds against presentation and surrender of the Funding
Note Certificate (and in the case of any repayment of the Funding
Note or any portion thereof pursuant to Section 3.2, upon
submission of a duly completed election form at an office or
agency of such Funding Note Paying Agent maintained for such
purpose pursuant to Section 4.3). The applicable Funding Note
Paying Agent (unless such Funding Note Paying Agent is the
Funding Note Indenture Trustee) shall promptly forward the
Funding Note Certificate surrendered to it in connection with any
payment pursuant to this Section for cancellation in accordance
with Section 2.9. Unless otherwise specified in the Funding Note
Certificate, upon the receipt of the funds necessary therefor,
the applicable Funding Note Paying Agent shall duly and
punctually make payments of principal of, any premium and
interest on, and any Additional Amounts in respect of, the
Funding Note payable on any date other than the Maturity Date by
check mailed to the Holder (or to the first named of joint
Holders) of the Funding Note at the close of business on the
Regular Interest Record Date or Special Interest Record Date, as
the case may be, at its address appearing in the Funding Note
Register. Notwithstanding the foregoing, the applicable Funding
Note Paying Agent shall make payments of principal, any interest,
any premium, and any Additional Amounts on any date other than
the Maturity Date to each Holder entitled thereto (or to the
first named of joint Holders) at the close of business on the
applicable Regular Interest Record Date or Special Interest
Record Date, as the case may be, of $10,000,000 (or, if the
Specified Currency is other than United States dollars, the
equivalent thereof in the particular
26
Specified Currency) or more in principal amount of the Funding
Note by wire transfer of immediately available funds if the
applicable Holder has delivered appropriate wire transfer
instructions in writing to the applicable Funding Note Paying
Agent not less than 15 days prior to the date on which the
applicable payment of principal, interest, premium or Additional
Amounts is scheduled to be made. Any wire transfer instructions
received by the applicable Funding Note Paying Agent shall remain
in effect until revoked by the applicable Holder.
(c) Unless otherwise specified in the Funding Note Certificate, if
the Specified Currency of the Funding Note is other than U.S.
Dollars, Global Funding shall be obligated to make, or cause to
be made, payments of principal of, any premium and interest on,
and any Additional Amounts with respect to, the Funding Note in
such Specified Currency. Any amounts so payable by Global Funding
in such Specified Currency will be converted by the Funding Note
Exchange Rate Agent into United States dollars for payment to the
Holder or Holders thereof unless otherwise specified in the
Funding Note Certificate or a Holder elects to receive such
amounts in such Specified Currency as provided below.
(d) Unless otherwise specified in the Funding Note Certificate, if
the Specified Currency of the Funding Note is other than U.S.
dollars, any United States dollar amount to be received by the
Holder or Holders of the Funding Note will be based on the
highest bid quotation in The City of New York received by the
Funding Note Exchange Rate Agent at approximately 11:00 a.m. (New
York City time) on the second Business Day preceding the
applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Funding Note Exchange Rate Agent)
selected by the Funding Note Exchange Rate Agent and approved by
Global Funding for the purchase by the quoting dealer of the
Specified Currency for United States dollars for settlement on
that payment date in the aggregate amount of such Specified
Currency payable to the Holder or Holders of the Funding Note
scheduled to receive United States dollar payments and at which
the applicable dealer commits to execute a contract. All currency
exchange costs will be borne by the relevant Holder or Holders of
the Funding Note by deductions from any payments. If three bid
quotations are not available, payments will be made in the
Specified Currency.
27
(e) If the Specified Currency of the Funding Note is other than U.S.
Dollars, Holders of the Funding Note may elect to receive all or
a specified portion of any payment of principal and/or any
interest, premium and Additional Amounts in the Specified
Currency by submitting a written request therefor to the Funding
Note Indenture Trustee at its Corporate Trust Office in The City
of New York on or prior to the applicable Regular Interest Record
Date or Special Interest Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written
request may be mailed or hand delivered or sent by cable, telex
or other form of facsimile transmission. Such election will
remain in effect until revoked by written notice delivered to the
Funding Note Indenture Trustee on or prior to the applicable
Regular Interest Record Date or Special Interest Record Date or
at least 15 calendar days prior to the Maturity Date, as the case
may be.
(f) Notwithstanding anything to the contrary in this Funding Note
Indenture, if the Specified Currency for the Funding Note is
other than U.S. Dollars and the Specified Currency is not
available for any required payment of principal and/or any
interest, premium and Additional Amounts due to the imposition of
exchange controls or other circumstances beyond Global Funding's
control, Global Funding will be entitled to satisfy its
obligations with respect to the Funding Note by making, or
causing to be made, payments in United States dollars based on
the Market Exchange Rate, computed by the Funding Note Exchange
Rate Agent, on the second Business Day prior to the particular
payment date or, if the Market Exchange Rate is not then
available, on the basis of the most recently available Market
Exchange Rate.
(g) All determinations made by the Funding Note Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and binding on the
Holder or Holders of the Funding Note.
SECTION 4.2 Collection Account. Global Funding shall, on or prior to the
Original Issue Date, establish a non-interest bearing account with the Funding
Note Indenture Trustee or such other depository institution that is rated at
least AA by Standard & Poor's Ratings Services, a division of the ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or Aa2 by ▇▇▇▇▇'▇ Investors Services, Inc., or has an equivalent
rating from another nationally recognized statistical rating organization as may
be designated by Global Funding (the "Collection Account"), into which account
shall be deposited payments received under the applicable Funding Agreement(s)
and which account shall be segregated from other accounts held by the Funding
Note Indenture Trustee or such other depositary institution.
28
SECTION 4.3 Offices for Payments, Etc.
(a) So long as the Funding Note remains outstanding, Global Funding
will maintain in New York and in any other city that may be
required by any stock exchange on which the Funding Note may be
listed, and in any city specified in the Funding Note Certificate
the following: (i) an office or agency where the Funding Note may
be presented for payment, (ii) an office or agency where the
Funding Note may be presented for registration of transfer and
for exchange as provided in the Funding Note Indenture and (iii)
an office or agency where notices and demands to or upon Global
Funding in respect of the Funding Note or of the Funding Note
Indenture may be served. Global Funding will give to the Funding
Note Indenture Trustee written notice of the location of any such
office or agency and of any change of location thereof. Global
Funding initially designates the Corporate Trust Office of the
Funding Note Indenture Trustee as the office or agency for each
such purpose. In case Global Funding shall fail to maintain any
such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the
Corporate Trust Office.
(b) Global Funding hereby agrees to issue a standing order to the
Funding Note Indenture Trustee, pursuant to which the Funding
Note Indenture Trustee, directly or through any Funding Note
Paying Agent, shall distribute all amounts due and unpaid under
Section 3.1(b) of the Amended and Restated Trust Agreement. For
so long as (i) Global Funding has not rescinded the standing
order (notice of such rescission to be promptly given by Global
Funding to the Funding Note Indenture Trustee) and (ii) the
Funding Note Indenture Trustee, either directly or through any
Funding Note Paying Agent is able to, and does, comply with the
standing order, Global Funding will not be required to establish
a Payment Account (as defined in the Amended and Restated Trust
Agreement) in accordance with Section 3.1 of the Amended and
Restated Trust Agreement.
SECTION 4.4 Appointment to Fill a Vacancy in Office of Funding Note
Indenture Trustee. Global Funding, whenever necessary to avoid or fill a vacancy
in the office of the Funding Note Indenture Trustee, will appoint, in the manner
provided in Section 6.8, a trustee, so that there shall at all times be a
trustee under the Funding Note Indenture.
29
SECTION 4.5 Funding Note Paying Agents.
(a) Unless otherwise provided in or pursuant to the Funding Note
Indenture, Global Funding appoints the Funding Note Indenture Trustee
as Funding Note Paying Agent with respect to the Funding Note and the
Funding Note Indenture Trustee accepts such appointment. The Funding
Note Indenture Trustee, in its capacity as Funding Note Paying Agent,
agrees, and, whenever Global Funding shall appoint a Funding Note
Paying Agent other than the Funding Note Indenture Trustee with
respect to the Funding Note, Global Funding will cause such Funding
Note Paying Agent to execute and deliver to Global Funding and the
Funding Note Indenture Trustee an instrument in which such Funding
Note Paying Agent shall agree with Global Funding and the Funding Note
Indenture Trustee, subject to the provisions of this Section, that it
will:
(i) hold all sums received by it as such agent for the payment of the
principal of, any premium or interest on, or any Additional
Amounts with respect to, the Funding Note (whether such sums have
been paid to it by the Funding Agreement Provider, Global Funding
or by any other obligor on the Funding Note) in trust for the
benefit of each Holder of the Funding Note;
(ii) give the Funding Note Indenture Trustee notice of any failure by
Global Funding (or by any other obligor on the Funding Note) to
make any payment of the principal of, any premium and interest
on, or any Additional Amounts with respect to, the Funding Note
when the same shall be due and payable;
(iii) pay any such sums so held in trust by it to the Funding Note
Indenture Trustee upon the Funding Note Indenture Trustee's
written request at any time during the continuance of the failure
referred to in clause (ii) above;
(iv) in the absence of the failure referred in clause (ii) above, pay
any such sums so held in trust by it in accordance with the
Funding Note Indenture and the terms of the Funding Note; and
(v) comply with all agreements of Funding Note Paying Agents in, and
perform all functions and obligations imposed on Funding Note
Paying Agents by or pursuant
30
to, the Funding Note Indenture and the Funding Note Certificate
or Supplemental Funding Note Indenture.
(b) At or prior to 9:30 a.m. (New York City time) on each due date of the
principal of, any premium and interest on, or any Additional Amounts
with respect to, the Funding Note, Global Funding will deposit or
cause to be deposited with the applicable Funding Note Paying Agent a
sum sufficient to pay such principal, any interest or premium, and any
Additional Amounts, and (unless such Funding Note Paying Agent is the
Funding Note Indenture Trustee) Global Funding will promptly notify
the Funding Note Indenture Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, Global
Funding may at any time, for purpose of obtaining satisfaction and
discharge of the Funding Note under the Funding Note Indenture, pay or
cause to be paid to the Funding Note Indenture Trustee all sums held
in trust by Global Funding or any Funding Note Paying Agent under the
Funding Note Indenture, as required by this Section, such sums to be
held by the Funding Note Indenture Trustee upon the terms contained in
the Funding Note Indenture.
(d) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section are
subject to the provisions of Sections 11.3 and 11.4.
(e) The applicable Funding Note Paying Agent shall (i) collect all forms
from Holders of the Funding Note (or from such other Persons as are
relevant) that are required to exempt payments under the Funding Note
and/or the related Funding Agreement(s) from United States Federal
income tax withholding, (ii) withhold and pay over to the Internal
Revenue Service or other taxing authority with respect to payments
under the Funding Note any amount of taxes required to be withheld by
any United States Federal, state or local statute, rule or regulation
and (iii) forward copies of such forms to Global Funding and the
Funding Agreement Provider.
(f) Each Funding Note Paying Agent shall forward to Global Funding at
least monthly a bank statement in its possession with respect to the
performance of its functions and obligations with respect to the
Funding Note.
31
(g) Global Funding shall pay the compensation of each Funding Note Paying
Agent at such rates as shall be agreed upon in writing by Global
Funding and the relevant Funding Note Paying Agent from time to time
and shall reimburse each Funding Note Paying Agent for reasonable
expenses properly incurred by such Funding Note Paying Agent in
connection with the performance of its duties upon receipt of such
invoices as Global Funding shall reasonably require.
(h) Subject as provided below, each Funding Note Paying Agent may at any
time resign as Funding Note Paying Agent by giving not less than 60
days' written notice to Global Funding and the Funding Note Indenture
Trustee (unless the Funding Note Indenture Trustee is such Funding
Note Paying Agent) of such intention on its part, specifying the date
on which its resignation shall become effective. Except as provided
below, Global Funding may remove a Funding Note Paying Agent by giving
not less than 20 days' written notice specifying such removal and the
date when it shall become effective. Any such resignation or removal
shall take effect upon:
(i) the appointment by Global Funding of a successor Funding Note
Paying Agent; and
(ii) the acceptance of such appointment by such successor Funding Note
Paying Agent,
provided that with respect to any Funding Note Paying Agent who timely
receives any amount with respect to the Funding Note and fails duly to
pay any such amounts when due and payable in accordance with the terms
of the Funding Note Indenture and the Funding Note, any such removal
will take effect immediately upon such appointment of, and acceptance
thereof by, a successor Funding Note Paying Agent approved by the
Funding Note Indenture Trustee (unless the Funding Note Indenture
Trustee is such Funding Note Paying Agent), in which event notice of
such appointment shall be given to each Holder of the Funding Note as
soon as practicable thereafter. Global Funding agrees with each
Funding Note Paying Agent that if, by the day falling 10 days before
the expiration of any notice given pursuant to this Section 4.5(h),
Global Funding has not appointed a replacement Funding Note Paying
Agent, then the Funding Note Paying Agent shall be entitled, on behalf
of Global Funding, to appoint in its place a reputable financial
institution of good standing reasonably acceptable to Global Funding
and the Funding Note
32
Indenture Trustee (unless the Funding Note Indenture Trustee is such
Funding Note Paying Agent); provided, however, that notwithstanding
the foregoing, the resignation or removal of the relevant Funding Note
Paying Agent shall not be effective unless, upon the expiration of the
notice given pursuant to this Section 4.5(h), the successor Funding
Note Paying Agent shall have accepted its appointment. Upon its
resignation or removal becoming effective, the retiring Funding Note
Paying Agent shall be entitled to the payment of its compensation and
reimbursement of all expenses incurred by such retiring Funding Note
Paying Agent pursuant to Section 4.4(g) up to the effective date of
such resignation or removal.
(i) If at any time a Funding Note Paying Agent shall resign or be removed,
or shall become incapable of acting with respect to the Funding Note,
or shall be adjudged as bankrupt or insolvent, or a receiver or
liquidator of such Funding Note Paying Agent or of its property shall
be appointed, or any public officer shall take charge or control of
such Funding Note Paying Agent or its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then a
successor Funding Note Paying Agent shall be appointed by Global
Funding by an instrument in writing filed with the successor Funding
Note Paying Agent. Upon any such appointment of, and the acceptance of
such appointment by, a successor Funding Note Paying Agent and (except
in cases of removal for failure to timely pay any amounts as required
by or pursuant to the Funding Note Indenture or the Funding Note
Certificate or Supplemental Funding Note Indenture) the giving of
notice to each Holder of the Funding Note, the retiring Funding Note
Paying Agent shall cease to be Funding Note Paying Agent under the
Funding Note Indenture.
(j) Any successor Funding Note Paying Agent appointed under the Funding
Note Indenture shall execute and deliver to its predecessor, Global
Funding and the Funding Note Indenture Trustee (unless the Funding
Note Indenture Trustee is such Funding Note Paying Agent) a reasonably
acceptable instrument accepting such appointment under the Funding
Note Indenture, and thereupon such successor Funding Note Paying
Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities,
duties and obligations of such predecessor with like effect as if
originally named as a Funding Note Paying Agent under the Funding Note
Indenture, and such predecessor, upon payment of any amounts due
pursuant to Section 4.5(g) and unpaid, shall
33
thereupon become obliged to transfer and deliver, and such successor
Funding Note Paying Agent shall be entitled to receive, copies of any
relevant records maintained by such predecessor Funding Note Paying
Agent.
(k) Any entity into which a Funding Note Paying Agent may be merged or
converted or with which it may be consolidated or any entity resulting
from any merger, conversion or consolidation to which such Funding
Note Paying Agent shall be a party, or any entity succeeding to all or
substantially all of the paying agency business of such Funding Note
Paying Agent shall be a successor Funding Note Paying Agent under the
Funding Note Indenture without the execution or filing of any paper or
any further act on the part of any of the parties, anything in the
Funding Note Indenture to the contrary notwithstanding. At least 30
days' prior notice of any such merger, conversion or consolidation
shall be given to Global Funding and the Funding Note Indenture
Trustee (unless the Funding Note Indenture Trustee is such Funding
Note Paying Agent).
SECTION 4.6 Funding Note Calculation Agent.
(a) Unless otherwise provided in or pursuant to the Funding Note
Indenture, Global Funding appoints the Funding Note Indenture Trustee
as Funding Note Calculation Agent, and the Funding Note Indenture
Trustee accepts such appointment.
(b) The relevant Funding Note Calculation Agent shall perform all
functions and obligations imposed on such Funding Note Calculation
Agent by or pursuant to the Funding Note Indenture, and the Funding
Note Certificate or supplemental Funding Note Indenture.
(c) Each Funding Note Calculation Agent, excluding the Funding Note
Indenture Trustee, shall forward to Global Funding at least monthly a
report providing details with respect to the performance of its
functions and obligations with respect to the Funding Note which shall
include dates and amounts of forthcoming payments with respect to the
Funding Note.
(d) The relevant Funding Note Calculation Agent shall, upon the request of
any relevant Holder of the Funding Note, provide the interest rate
then in effect and, if determined, the interest rate that will become
effective as a result of a determination made for the
34
next succeeding Interest Reset Date with respect to the Funding Note.
(e) All determinations of interest by the Funding Note Calculation Agent
shall, in the absence of manifest errors, be conclusive for all
purposes and binding on the Holders of the Funding Note.
(f) Global Funding shall pay the compensation of each Funding Note
Calculation Agent at such rates as shall be agreed upon in writing by
Global Funding and the relevant Funding Note Calculation Agent from
time to time and shall reimburse each Funding Note Calculation Agent
for reasonable expenses properly incurred by such Funding Note
Calculation Agent in connection with the performance of its duties
upon receipt of such invoices as Global Funding shall reasonably
require.
(g) Subject as provided below, each Funding Note Calculation Agent may at
any time resign as Funding Note Calculation Agent by giving not less
than 60 days' written notice to Global Funding and the Funding Note
Indenture Trustee (unless the Funding Note Indenture Trustee is such
Funding Note Calculation Agent) of such intention on its part,
specifying the date on which its resignation shall become effective.
Except as provided below, Global Funding may remove a Funding Note
Calculation Agent by giving not less than 20 days' written notice
specifying such removal and the date when it shall become effective.
Any such resignation or removal shall take effect upon:
(i) the appointment by Global Funding of a successor Funding Note
Calculation Agent; and
(ii) the acceptance of such appointment by such successor Funding Note
Calculation Agent,
provided that with respect to any Funding Note Calculation Agent who
fails duly to establish the interest rate or amount for any Interest
Reset Period, any such removal will take effect immediately upon such
appointment of, and acceptance thereof by, a successor Funding Note
Calculation Agent approved by the Funding Note Indenture Trustee
(unless the Funding Note Indenture Trustee is such Funding Note
Calculation Agent), in which event notice of such appointment shall be
given to each Holder of the Funding Note as soon as practicable
thereafter. Global Funding agrees with each Funding Note Calculation
Agent that if, by the day falling 10 days before the expiration of
35
any notice given pursuant to this Section 4.6(g), Global Funding has
not appointed a replacement Funding Note Calculation Agent, then the
Funding Note Calculation Agent shall be entitled, on behalf of Global
Funding, to appoint in its place a reputable financial institution of
good standing reasonably acceptable to Global Funding and the Funding
Note Indenture Trustee (unless the Funding Note Indenture Trustee is
such Funding Note Calculation Agent); provided, however, that
notwithstanding the foregoing, the resignation or removal of the
relevant Funding Note Calculation Agent shall not be effective unless,
upon the expiration of the notice given pursuant to this Section
4.6(g), the successor Funding Note Calculation Agent shall have
accepted its appointment. Upon its resignation or removal becoming
effective, the retiring Funding Note Calculation Agent shall be
entitled to the payment of its compensation and reimbursement of all
expenses incurred by such retiring Funding Note Calculation Agent
pursuant to Section 4.6(f) up to the effective date of such
resignation or removal.
(h) If at any time a Funding Note Calculation Agent shall resign or be
removed, or shall become incapable of acting with respect to the
Funding Note, or shall be adjudged as bankrupt or insolvent, or a
receiver or liquidator of such Funding Note Calculation Agent or of
its property shall be appointed, or any public officer shall take
charge or control of such Funding Note Calculation Agent or its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then a successor Funding Note Calculation Agent shall be
appointed by Global Funding by an instrument in writing filed with the
successor Funding Note Calculation Agent. Upon any such appointment
of, and the acceptance of such appointment by, a successor Funding
Note Calculation Agent and (except in cases of removal for failure to
establish the amount of interest) the giving of notice to each Holder
of the Funding Note, the retiring Funding Note Calculation Agent shall
cease to be Funding Note Calculation Agent under the Funding Note
Indenture.
(i) Any successor Funding Note Calculation Agent appointed under the
Funding Note Indenture shall execute and deliver to its predecessor,
Global Funding and the Funding Note Indenture Trustee (unless the
Funding Note Indenture Trustee is such Funding Note Calculation Agent)
a reasonably acceptable instrument, accepting such appointment under
the Funding Note Indenture, and thereupon such successor Funding Note
Calculation Agent, without any further act, deed or conveyance,
36
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as a Funding Note Calculation Agent
under the Funding Note Indenture, and such predecessor, upon payment
of any amounts due pursuant to Section 4.6(f) and unpaid, shall
thereupon become obliged to transfer and deliver, and such successor
Funding Note Calculation Agent shall be entitled to receive, copies of
any relevant records maintained by such predecessor Funding Note
Calculation Agent.
(j) Any entity into which a Funding Note Calculation Agent may be merged
or converted or with which it may be consolidated or any entity
resulting from any merger, conversion or consolidation to which such
Funding Note Calculation Agent shall be a party, or an entity
succeeding to all or substantially all of the paying agency business
of such Funding Note Calculation Agent shall be a successor Funding
Note Calculation Agent under the Funding Note Indenture without the
execution or filing of any paper or any further act on the part of any
of the parties hereto, anything in the Funding Note Indenture to the
contrary notwithstanding. At least 30 days' prior notice of any such
merger, conversion or consolidation shall be given to Global Funding
and the Funding Note Indenture Trustee (unless the Funding Note
Indenture Trustee is such Funding Note Calculation Agent).
SECTION 4.7 Certificate to Funding Note Indenture Trustee. Global Funding
will furnish to the Funding Note Indenture Trustee on or before May 15 of each
year commencing with the first May 15 following the issuance of the Funding Note
a brief certificate (which need not comply with Section 13.5) as to its
knowledge of Global Funding's compliance with all conditions and covenants under
the Funding Note Indenture (which will be determined without regard to any
period of grace or requirement of notice provided under the Funding Note
Indenture).
SECTION 4.8 Negative Covenants. So long as the Funding Note is outstanding,
Global Funding will comply with all of its covenants set forth in Section 6.1(b)
of the Amended and Restated Trust Agreement.
SECTION 4.9 Non-Petition.
Each of the Funding Note Indenture Trustee, each other party hereto and
each Holder covenants and agrees that, for a period of one year plus one day
after payment in full of all amounts payable under or in respect of the Funding
Note Indenture and the Funding Note, it will not institute against, or join 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.
37
The immediately preceding sentence shall survive any termination of the Funding
Note Indenture.
Notwithstanding the foregoing, each of the Funding Note Indenture Trustee
and each other party hereto covenants and agrees that it will not institute
against, or join 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, as a
result of the failure to pay fees or expenses pursuant to Section 6.6 to any
party entitled thereto.
Moreover, each of the Funding Note Indenture Trustee and each other party
hereto covenants and agrees that it will not cause an Event of Default as a
result of Global Funding's failure to pay any fees or expenses to any party
entitled thereto under the Funding Note Indenture.
SECTION 4.10 Additional Amounts.
If the Funding Note Certificate provide for the payment of Additional
Amounts, Global Funding agrees to pay to the Holder of the Funding Note
Additional Amounts as provided in the Funding Note Certificate. Whenever in the
Funding Note Indenture there is mentioned, in any context, the payment of the
principal of, or interest or premium on, or in respect of, the Funding Note or
the net proceeds received on the sale or exchange of the Funding Note, such
reference shall be deemed to include reference to the payment of Additional
Amounts provided by the terms established by the Funding Note Indenture or
pursuant to the Funding Note Indenture to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms, and express reference to the payment of Additional Amounts in any
provision of the Funding Note Indenture shall not be construed as excluding
Additional Amounts in those provisions hereof where such express reference is
not made.
If the Funding Note Certificate provides for the payment of Additional
Amounts, the Funding Note Certificate will provide that Global Funding will pay,
or cause to be paid, Additional Amounts to a Holder of the Funding Note to
compensate for any withholding or deduction for or on account of any present or
future taxes, duties, levies, assessments or governmental charges of whatever
nature imposed or levied on payments on the Funding Note by or on behalf of any
governmental authority in the United States having the power to tax, so that the
net amount received by the Holder of the Funding Note, after giving effect to
such withholding or deduction, whether or not currently payable, will equal the
amount that would have been received under the Funding Note were no such
deduction or withholding required; provided that no such Additional Amounts
shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed
which would not have been imposed but for a Holder or
38
beneficial owner of the Funding Note, (i) having any present or former
connection with the United States, including, without limitation,
being or having been a citizen or resident thereof, or having been
present, having been incorporated in, having engaged in a trade or
business or having (or having had) a permanent establishment or
principal office therein, (ii) being a controlled foreign corporation
within the meaning of Section 957(a) of the Code related within the
meaning of Section 864(d)(4) of the Code, to the Funding Agreement
Provider, (iii) being a bank for United States Federal income tax
purposes whose receipt of interest on the Funding Note is described in
Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive
owner of 10 percent or more of the total combined voting power of all
classes of stock of the Funding Agreement Provider entitled to vote
within the meaning of Section 871(h)(3) of the Code and Treasury
Regulations promulgated thereunder or (v) being subject to backup
withholding as of the date of the purchase by the Holder of the
Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the presentation of any Funding
Note (where presentation is required) for payment on a date more than
30 days after the date on which such payment becomes due and payable
or the date on which payment is duly provided for, whichever occurs
later;
(c) any tax, duty, levy, assessment or other governmental charge which is
imposed or withheld solely by reason of the failure of the beneficial
owner or a Holder of the Funding Note to comply with certification,
identification or information reporting requirements concerning the
nationality, residence, identity or connection with the United States
of the beneficial owner or a Holder of the Funding Note, if compliance
is required by statute, by regulation of the United States Treasury
Department, judicial or administrative interpretation, other law or by
an applicable income tax treaty to which the United States is a party
as a condition to exemption from such tax, duty, levy, assessment or
other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or
similar tax, duty, levy, assessment, or similar governmental charge;
39
(e) any tax, duty, levy, assessment or other governmental charge that is
payable otherwise than by withholding from payments in respect of the
Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed
by reason of payments on the Funding Note being treated as contingent
interest described in Section 871(h)(4) of the Code for United States
Federal income tax purposes provided that such treatment was described
in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that
would not have been imposed but for an election by the Holder of the
Funding Note, the effect of which is to make payment in respect of the
Funding Note subject to United States Federal income tax or
withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
ARTICLE 5
REMEDIES OF THE FUNDING NOTE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF
DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default.
(a) "Event of Default" with respect to the Funding Note wherever used in
the Funding Note Indenture, means each of the following events which
shall have occurred and be continuing (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment when due and payable of the principal of,
or any premium on, the Funding Note;
(ii) default in the payment, when due and payable, of any interest on,
or any Additional Amounts with respect to, the Funding Note and
continuance of such default for a period of five Business Days;
(iii) any "Event of Default", as such term is defined in any Funding
Agreement securing the Funding Note, by the Funding Agreement
Provider under such Funding Agreement;
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(iv) Global Funding shall fail to observe or perform any covenant
contained in the Funding Note or in the Funding Note Indenture
for a period of 30 days after the date on which written notice
specifying such failure, stating that such notice is a "Notice of
Default" under the Funding Note Indenture and demanding that
Global Funding remedy the same, will have been given by
registered or certified mail, return receipt requested, to Global
Funding by the Funding Note Indenture Trustee, or to Global
Funding and the Funding Note Indenture Trustee by the Holder or
Holders of at least 25% of the outstanding principal amount of
the Funding Note; or
(v) the Funding Note Indenture for any reason shall cease to be in
full force and effect or shall be declared null and void, or the
Funding Note Indenture Trustee shall fail to have or maintain a
validly created and first priority perfected security interest
(or the equivalent thereof) in the Collateral; or any Person
shall successfully claim, as finally determined by a court of
competent jurisdiction that any Lien for the benefit of the
Holders of the Funding Note and any other Person for whose
benefit the Funding Note Indenture Trustee is or will be holding
the Collateral, that the Collateral is void or is junior to any
other Lien or that the enforcement thereof is materially limited
because of any preference, fraudulent transfer, conveyance or
similar law;
(vi) an involuntary case or other proceeding shall be commenced
against Global Funding seeking liquidation, reorganization or
other relief with respect to it or its debts under any
bankruptcy, insolvency, reorganization or other similar law or
seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or
an order for relief shall be entered against Global Funding under
the Federal bankruptcy laws as now or hereafter in effect;
(vii) Global Funding commences a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency,
reorganization or other similar
41
law or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or consents to any such relief
or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced
against it, or makes a general assignment for the benefit of
creditors, or fails generally to pay its debts as they become
due, or takes any action to authorize any of the foregoing; and
(viii) any other Event of Default provided in any Supplemental Funding
Note Indenture or in the Funding Note Certificate.
(b) If one or more Events of Default shall have occurred and be continuing
with respect to the Funding Note, then, and in every such event,
unless the principal of the Funding Note shall have already become due
and payable, either the Funding Note Indenture Trustee or the Holder
or Holders of not less than 25% of the outstanding principal amount of
the Funding Note under the Funding Note Indenture by notice in writing
to Global Funding (and to the Funding Note Indenture Trustee if given
by such Holder or Holders), may declare the entire principal and
premium (if any) of the Funding Note, any interest accrued thereon,
and any Additional Amounts due and owing and any other amounts payable
with respect thereto, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and payable;
provided that, if any Event of Default specified in Section 5.1(a)(vi)
or 5.1(a)(vii) occurs with respect to Global Funding, or if any Event
of Default specified in Section 5.1(a)(iii) that would cause any
Funding Agreement securing the Funding Note to become immediately due
and payable occurs with respect to the Funding Agreement Provider,
then without any notice to Global Funding or any other act by the
Funding Note Indenture Trustee or any Holder of the Funding Note, the
entire principal and premium (if any) of the Funding Note, any
interest accrued thereon, and any Additional Amounts due and owing,
and any other amounts payable with respect thereto, shall become
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by Global
Funding.
(c) Notwithstanding Section 5.1(b), if at any time after the principal and
premium of the Funding Note, any interest accrued thereon, and any
Additional Amounts due and owing and any other
42
amounts payable with respect thereto shall have been so declared due
and payable and before any judgment or decree for the payment of the
funds due shall have been obtained or entered as provided in the
Funding Note Indenture, Global Funding shall pay or shall deposit with
the Funding Note Indenture Trustee a sum sufficient to pay all due and
payable interest on, and any Additional Amounts due and owing and any
other amounts payable with respect to, the Funding Note and the
principal and premium (if any) of the Funding Note which shall have
become due and payable otherwise than by acceleration pursuant to
Section 5.1(b) above (with interest on such principal and, to the
extent that payment of such interest is enforceable under applicable
law, on any overdue interest and any other amounts payable, at the
same rate as the rate of interest specified in the Funding Note
Certificate to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Funding
Note Indenture Trustee and each predecessor Funding Note Indenture
Trustee, their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Funding Note Indenture Trustee and each predecessor Funding Note
Indenture Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Funding Note Indenture,
other than the non-payment of the principal of and premium (if any) on
the Funding Note which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided in the
Funding Note Indenture, then and in every such case the Holder
Representative (as defined in Section 5.8(a) hereof), by written
notice to Global Funding and to the Funding Note Indenture Trustee,
may waive all defaults and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any
right consequent thereon.
SECTION 5.2 Collection of Indebtedness by Funding Note Indenture Trustee;
Funding Note Indenture Trustee May Prove Debt.
(a) Subject to Section 5.1(c), if any Event of Default contained in
Section 5.1(a)(i) or (ii) shall have occurred and be continuing,
Global Funding will, upon demand by the Funding Note Indenture
Trustee, pay to the Funding Note Indenture Trustee for the benefit of
each Holder of the Funding Note the whole amount that then shall have
become due and payable of the principal of, any premium and interest
on, and any Additional Amounts due
43
and owing and any other amounts payable with respect to, the Funding
Note (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue interest and any other
amounts payable at the same rate as the rate of interest specified in
the Funding Note); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Funding Note Indenture
Trustee and each predecessor Funding Note Indenture Trustee, their
respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Funding Note
Indenture Trustee and each predecessor Funding Note Indenture Trustee
except as a result of its negligence or bad faith.
(b) Until such demand is made by the Funding Note Indenture Trustee,
Global Funding may pay the principal of, any premium and interest on,
and any Additional Amounts due and owing and any other amounts payable
with respect to, the Funding Note to the Holders, whether or not the
Funding Note be overdue.
(c) If Global Funding shall fail to pay such amounts upon such demand, the
Funding Note Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action
or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final
decree against Global Funding or other obligor upon the Funding Note
and collect in the manner provided by law out of the property of
Global Funding or other obligor upon the Funding Note, wherever the
funds adjudged or decreed to be payable are situated. If there shall
be pending proceedings relative to Global Funding or any other obligor
upon the Funding Note under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other
similar law, or if a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of Global Funding or its
property or such other obligor, or in case of any other comparable
judicial proceedings relative to Global Funding or other obligor upon
the Funding Note, or to the creditors or property of Global Funding or
such other obligor, the Funding Note Indenture Trustee, irrespective
of whether the principal of the Funding Note shall then be due and
payable as therein expressed or by
44
declaration or otherwise and irrespective of whether the Funding Note
Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(i) to file such proofs of a claim or claims and to file such other
papers or documents as may be necessary or advisable in order to
have the claims of the Funding Note Indenture Trustee (including
any claim for reasonable compensation to the Funding Note
Indenture Trustee and each predecessor Funding Note Indenture
Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Funding Note Indenture Trustee and each
predecessor Funding Note Indenture Trustee, except as those
adjudicated in a court of competent jurisdiction to be the result
of any such Funding Note Indenture Trustee's negligence or bad
faith) and of the Holders allowed in any judicial proceedings
relative to Global Funding or other obligor upon the Funding
Note, or to the creditors or property of Global Funding or such
other obligor,
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Funding Note in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or
Person performing similar functions in comparable proceedings,
and
(iii) to collect and receive any funds or other property payable or
deliverable on any such claims, and to distribute all amounts
received with respect to the claims of each Holder and of the
Funding Note Indenture Trustee on each Holder's behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each Holder to make payments to
the Funding Note Indenture Trustee, and, in the event that the
Funding Note Indenture Trustee shall consent to the making of
payments directly to any Holder, to pay to the Funding Note
Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Funding Note Indenture Trustee,
each predecessor Funding Note Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses
and
45
liabilities incurred, and all advances made, by the Funding Note
Indenture Trustee and each predecessor Funding Note Indenture
Trustee except as those adjudicated in a court of competent
jurisdiction to be the result of any such Funding Note Indenture
Trustee's negligence or bad faith.
(d) Nothing contained in the Funding Note Indenture shall be deemed to
authorize the Funding Note Indenture Trustee to authorize or consent
to or vote for or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the
Funding Note or the rights of any Holder thereof, or to authorize the
Funding Note Indenture Trustee to vote in respect of the claim of any
Holder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under the Funding Note
Indenture, or under the Funding Note, may be enforced by the Funding
Note Indenture Trustee without the possession of the Funding Note or
the production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Funding
Note Indenture Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the Funding Note
Indenture Trustee, each predecessor Funding Note Indenture Trustee and
their respective agents and attorneys, shall be for the ratable
benefit of each Holder.
(f) In any proceedings brought by the Funding Note Indenture Trustee (and
also any proceedings involving the interpretation of any provision of
the Funding Note Indenture to which the Funding Note Indenture Trustee
shall be a party) the Funding Note Indenture Trustee shall be held to
represent every Holder of the Funding Note, and it shall not be
necessary to make any Holder of the Funding Note party to any such
proceedings.
SECTION 5.3 Application of Proceeds.
(a) Any funds collected by the Funding Note Indenture Trustee following an
Event of Default pursuant to this Article or otherwise under the
Funding Note Indenture and any applicable Supplemental Funding Note
Indenture in respect of the Funding Note shall be held in trust in the
Collection Account and be applied in the following order at the date
or dates fixed by the
46
Funding Note Indenture Trustee and, in case of the distribution of
such funds on account of principal, any premium and interest and any
Additional Amounts, upon presentation of the Funding Note Certificate
representing the Funding Note and the notation thereon of the payment
if only partially paid or upon the surrender thereof if fully paid:
First: To the payment of costs and expenses, including reasonable
compensation to the Funding Note Indenture Trustee and each predecessor
Funding Note Indenture Trustee and their respective agents and attorneys
and of all expenses and liabilities incurred, and all advances made, by the
Funding Note Indenture Trustee and each predecessor Funding Note Indenture
Trustee except those adjudicated in a court of competent jurisdiction to be
the result of any such Funding Note Indenture Trustee's negligence or bad
faith, in an aggregate amount of no more than $250,000 for all Program
Funding Notes, the extent not paid pursuant to the Amended and Restated
Support Agreement;
Second: To the payment of principal, any premium and interest, any
Additional Amounts and any other amounts then due and owing on the Funding
Note;
Third: To the payment of any other Obligations then due and owing with
respect to the Funding Note; and
To the payment of any remaining balance to Global Funding for Fourth:
distribution by the Delaware Trustee in accordance with the provisions of
the Amended and Restated Trust Agreement.
(b) All funds deposited with the Funding Note Indenture Trustee pursuant
to the Funding Note Indenture, except when an Event of Default has
occurred and is continuing, shall be held in trust in the Collection
Account and applied by it, in accordance with the provisions of the
Funding Note and the Funding Note Indenture, to the payment through
any Funding Note Paying Agent, to the Persons entitled thereto, of the
principal, premium, if any, interest and Additional Amounts, if any,
for whose payment such money has been deposited with or received by
the Funding Note Trustee. If no Event of Default with respect to he
Funding Note has occurred and is continuing, the following priority of
payments shall apply:
First: To the payment of principal, any premium and interest, any
Additional Amounts, and any other amounts then due and owing on the Funding
Note;
47
Second: To the payment of any other Obligations then due and owing
with respect to the Funding Note; and
Third: To the payment of any remaining balance to Global Funding for
distribution by the Delaware Trustee in accordance with the provisions of
the Amended and Restated Trust Agreement.
The Funding Note Indenture Trustee may make distributions under the Funding
Note Indenture in cash or in kind or, on a ratable basis, in any combination
thereof.
SECTION 5.4 Suits for Enforcement. If an Event of Default has occurred, has
not been waived and is continuing, the Funding Note Indenture Trustee may in its
discretion proceed to protect and enforce the rights vested in it by the Funding
Note Indenture by such appropriate judicial proceedings as the Funding Note
Indenture Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in the Funding
Note Indenture or in aid of the exercise of any power granted in the Funding
Note Indenture or to enforce any other legal or equitable right vested in the
Funding Note Indenture Trustee by the Funding Note Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. If the
Funding Note Indenture Trustee shall have proceeded to enforce any right under
the Funding Note Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Funding
Note Indenture Trustee, then and in every such case Global Funding and the
Funding Note Indenture Trustee shall be restored respectively to their former
positions and rights under the Funding Note Indenture, and all rights, remedies
and powers of Global Funding, the Funding Note Indenture Trustee and each Holder
shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Holders. No Holder of the Funding Note
shall have any right by virtue or by availing of any provision of the Funding
Note Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to the Funding Note
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy under the Funding Note
Indenture, unless:
(i) such Holder has previously given written notice to the Funding
Note Indenture Trustee of a continuing Event of Default;
(ii) the Holder or Holders of the Funding Note representing not less
than 25% of the outstanding principal amount of the Funding Note
shall have made written request to the
48
Funding Note Indenture Trustee to institute proceedings in
respect of such Event of Default in its own name as the Funding
Note Indenture Trustee;
(iii) such Holder or Holders have offered to the Funding Note
Indenture Trustee indemnity or security satisfactory to it
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Funding Note Indenture Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall have failed
to institute any such action or proceedings; and
(v) no direction inconsistent with such written request shall have
been given to the Funding Note Indenture Trustee during such
60-day period by the Holder or Holders of the Funding Note
representing at least 66 2/3% of the outstanding principal amount
of the Funding Note;
it being understood and intended, and being expressly covenanted by each Holder
of the Funding Note with each other Holder of the Funding Note and the Funding
Note Indenture Trustee, that no Holder or Holders of the Funding Note shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of the Funding Note Indenture to affect, disturb or prejudice the rights of any
other Holder of the Funding Note, or to obtain or seek to obtain priority over
or preference to any other Holder of the Funding Note or to enforce any right
under the Funding Note Indenture, except in the manner provided herein and for
the equal, ratable and common benefit of all the Holders of the Funding Note.
For the protection and enforcement of the provisions of this Section, each
Holder and the Funding Note Indenture Trustee shall be entitled to such relief
as can be given either at law or in equity.
Notwithstanding any other provisions in the Funding Note Indenture,
however, the right of any Holder of the Funding Note, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any), and
interest on, if any, and Additional Amounts, if any, with respect to the Funding
Note, on or after the respective due dates expressed in the Funding Note, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default.
(a) Except as provided in Section 2.7, no right or remedy in the Funding
Note Indenture conferred upon or reserved to the
49
Funding Note Indenture Trustee or to any Holder is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given under the Funding Note Indenture
or existing at law or in equity or otherwise. The assertion or
employment of any right or remedy under the Funding Note Indenture, or
otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
(b) No delay or omission of the Funding Note Indenture Trustee or of any
Holder of the Funding Note to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of
any such Event of Default or an acquiescence therein; and, subject to
Section 5.6, every power and remedy given by the Funding Note
Indenture or by law to the Funding Note Indenture Trustee or to any
Holder may be exercised from time to time, and as often as shall be
deemed expedient, by the Funding Note Indenture Trustee or by such
Holder.
SECTION 5.8 Control by the Holders.
(a) The Holders of a majority in principal amount of the Funding Note at
the time outstanding shall have the right to elect a holder
representative (the "Holder Representative") who shall have binding
authority upon all the Holders and shall replace any Holder
Representative then acting in such capacity, and who shall direct the
time, method, and place of conducting any proceeding for any remedy
available to the Funding Note Indenture Trustee, or exercising any
trust or power conferred on the Funding Note Indenture Trustee by the
Funding Note Indenture, provided that:
(i) such direction shall not be otherwise than in accordance with law
and the provisions of the Funding Note Indenture; and
(ii) subject to the provisions of Section 6.1, the Funding Note
Indenture Trustee shall have the right to decline to follow any
such direction if the Funding Note Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Funding Note
Indenture Trustee in good faith by its board of directors, the
executive committee, or a trust
50
committee of directors or Responsible Officers of the Funding
Note Indenture Trustee shall determine that the action or
proceedings so directed would involve the Funding Note Indenture
Trustee in personal liability.
(b) Nothing in the Funding Note Indenture shall impair the right of the
Funding Note Indenture Trustee in its discretion to take any action
deemed proper by the Funding Note Indenture Trustee and which is not
inconsistent with such direction by the Holders.
SECTION 5.9 Waiver of Past Defaults. Prior to the declaration of the
maturity of the Funding Note as provided in Section 5.1, the Holder
Representative may on behalf of the Holders of the Funding Note waive any past
default or Event of Default under the Funding Note Indenture and its
consequences, except a default:
(i) in the payment of principal of, any premium or interest on, or
any Additional Amounts with respect to, the Funding Note; or
(ii) in respect of a covenant or provision of the Funding Note
Indenture which cannot be modified or amended without the consent
of the Holder of the Funding Note.
Upon any such waiver, such default shall cease to exist and be deemed to have
been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose
of the Funding Note Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
ARTICLE 6
THE FUNDING NOTE INDENTURE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except if an Event of Default has occurred and is continuing (and it
has not been cured or waived), the Funding Note Indenture Trustee
undertakes to perform in a prudent manner such duties and only such
duties with respect to the Funding Note as are specifically set forth
in the Funding Note Indenture. No implied covenants or obligations
shall be read into the Funding Note Indenture against the Funding Note
Indenture Trustee.
(b) If an Event of Default has occurred and is continuing (and it has not
been cured or waived), the Funding Note Indenture Trustee shall
exercise such of the rights and powers with respect to the Funding
Note vested in it by the Funding Note Indenture, and use
51
the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of the Funding Note Indenture shall be construed to
relieve the Funding Note Indenture Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection (c) shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) in the absence of bad faith on its part, the Funding Note
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Funding Note
Indenture Trustee and conforming to the requirements of the
Funding Note Indenture unless a Responsible Officer of the
Funding Note Indenture Trustee has actual knowledge that such
statements or opinions are false; provided that the Funding Note
Indenture Trustee must examine such certificates and opinions to
determine whether they conform to the requirements of the Funding
Note Indenture;
(iii) the Funding Note Indenture Trustee shall not be liable for any
error of judgment made in good faith by any Responsible Officer
of the Funding Note Indenture Trustee, unless it is proved that
the Funding Note Indenture Trustee was negligent in ascertaining
the pertinent facts;
(iv) the Funding Note Indenture Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holder
Representative relating to the time, method and place of
conducting any proceeding for any remedy available to the Funding
Note Indenture Trustee, or exercising any trust or power
conferred upon the Funding Note Indenture Trustee, under the
Funding Note Indenture with respect to the Funding Note; and
(v) no provision of the Funding Note Indenture shall require the
Funding Note Indenture Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
52
performance of any of its duties under the Funding Note
Indenture, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of the
Funding Note Indenture relating to the conduct or affecting the
liability of or affording protection to the Funding Note Indenture
Trustee shall be subject to the provisions of this Section.
SECTION 6.2 Certain Rights of the Funding Note Indenture Trustee.
Subject to Section 6.1:
(a) the Funding Note Indenture Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of Global Funding mentioned in
the Funding Note Indenture shall be sufficiently evidenced by a Trust
Certificate (unless other evidence in respect thereof be specifically
prescribed in the Funding Note Indenture);
(c) the Funding Note Indenture Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to
be taken by it under the Funding Note Indenture in good faith and in
reliance on such advice or Opinion of Counsel;
(d) the Funding Note Indenture Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by the Funding Note
Indenture at the request, order or direction of any Holder
Representative pursuant to the provisions of the Funding Note
Indenture, unless such Holder Representative shall have offered to the
Funding Note Indenture Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request, order or direction;
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(e) whenever in the administration of the Funding Note Indenture the
Funding Note Indenture Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting any action under the Funding Note Indenture, such matter
(unless other evidence in respect thereof be specifically prescribed
in the Funding Note Indenture) may, in the absence of negligence or
bad faith on its part, be deemed to be conclusively proved and
established by a Trust Certificate delivered to the Funding Note
Indenture Trustee;
(f) the Funding Note Indenture Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by the Funding Note Indenture;
(g) the Funding Note Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to
do by the Holder Representative; provided that, if the payment within
a reasonable time to the Funding Note Indenture Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Funding Note Indenture
Trustee, not reasonably assured to the Funding Note Indenture Trustee
by the security afforded to it by the terms of the Funding Note
Indenture, the Funding Note Indenture Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be
paid by Global Funding or, if paid by the Funding Note Indenture
Trustee or any predecessor trustee, shall be repaid by Global Funding
upon demand; and
(h) the Funding Note Indenture Trustee may execute any of the trusts or
powers under the Funding Note Indenture or perform any duties under
the Funding Note Indenture either directly or by or through agents or
attorneys not regularly in its employ and the Funding Note Indenture
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
under the Funding Note Indenture.
SECTION 6.3 Not Responsible for Recitals, Validity of the Funding Note or
Application of the Proceeds. The recitals contained in the Funding Note
Indenture
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and in the Funding Note, except the Funding Note Indenture Trustee's
certificates of authentication, shall be taken as the statements of Global
Funding, and the Funding Note Indenture Trustee assumes no responsibility for
the correctness of the same. The Funding Note Indenture Trustee makes no
representation as to the validity or sufficiency of the Funding Note Indenture
or of the Funding Note. The Funding Note Indenture Trustee shall not be
accountable for the use or application by the Funding Agreement Provider of the
proceeds of the Funding Agreement(s).
SECTION 6.4 May Hold Funding Note; Collections, Etc. The Funding Note
Indenture Trustee or any agent of Global Funding or the Funding Note Indenture
Trustee, in its individual or any other capacity, may become the owner or
pledgee of the Funding Note with the same rights it would have if it were not
the Funding Note Indenture Trustee or such agent and, subject to Section 6.7,
Section 311(a) of the Trust Indenture Act, and Rule 3a-7 of the Investment
Company Act, may otherwise deal with Global Funding and receive, collect, hold
and retain collections from Global Funding with the same rights it would have if
it were not the Funding Note Indenture Trustee or such agent.
SECTION 6.5 Funds Held by Funding Note Indenture Trustee. Subject to the
provisions of Section 11.4, all funds received by the Funding Note Indenture
Trustee shall, until used or applied as provided in the Funding Note Indenture,
be held in trust for the purposes for which they were received. The Funding Note
Indenture Trustee (and each of its agents and Affiliates) shall deposit all cash
amounts received by it (or any such agents or Affiliates) that are derived from
the Collateral for the benefit of the Holders of the Funding Note in the
Collection Account. Neither the Funding Note Indenture Trustee nor any agent of
Global Funding or the Funding Note Indenture Trustee shall be under any
liability for interest on any funds received by it under the Funding Note
Indenture.
SECTION 6.6 Compensation; Reimbursement; Indemnification.
(a) Global Funding covenants and agrees:
(i) to pay to the Funding Note Indenture Trustee from time to time,
and the Funding Note Indenture Trustee shall be entitled to,
reasonable compensation for all services rendered by it under the
Funding Note Indenture (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) except as otherwise provided in the Funding Note Indenture, to
pay or reimburse the Funding Note Indenture Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made
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by the Funding Note Indenture Trustee in accordance with any
provision of the Funding Note Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may
arise from its negligence or bad faith; and
(iii) to indemnify the Funding Note Indenture Trustee for, and to hold
it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the Funding
Note Indenture or the trusts under the Funding Note Indenture and
its duties under the Funding Note Indenture, including the costs
and expenses of defending itself against or investigating any
claim of liability in connection with the exercise or performance
of any of its powers or duties under the Funding Note Indenture.
(b) The obligations of Global Funding under this Section to compensate and
indemnify the Funding Note Indenture Trustee and to pay or reimburse
the Funding Note Indenture Trustee for expenses, disbursements and
advances shall constitute additional indebtedness under the Funding
Note Indenture and shall survive the satisfaction and discharge of the
Funding Note Indenture and any resignation or removal of the Funding
Note Indenture Trustee.
SECTION 6.7 Corporate Trustee Required; Eligibility.
(a) There shall at all times be a Funding Note Indenture Trustee under the
Funding Note Indenture which shall:
(i) be a banking corporation or national association authorized under
its laws of incorporation or formation and the laws of the
jurisdiction in which it administers the Funding Note Indenture
and any Supplemental Funding Note Indenture to exercise corporate
trust powers, having an aggregate capital, surplus of at least
$50,000,000; provided that if such banking corporation or
national association publishes reports of condition at least
annually, pursuant to law or to the requirements of its Federal,
State or other governmental supervisor, then for the purposes of
this Section, the aggregate capital, surplus and undivided
profits of such banking corporation or
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national association shall be deemed to be its aggregate capital,
surplus and undivided profits as set forth in its most recent
report of condition so published;
(ii) not be affiliated (as such term is defined in Rule 405 under the
Securities Act) with Global Funding or with any Person involved
in the organization or operation of Global Funding; and
(iii) not offer or provide credit or credit enhancement to Global
Funding.
(b) If at any time the Funding Note Indenture Trustee shall cease to be
eligible in accordance with the provisions of Section 6.7(a) or the
requirements of Section 310 of the Trust Indenture Act, the Funding
Note Indenture Trustee shall resign immediately in the manner and with
the effect specified in Section 6.8.
SECTION 6.8 Resignation and Removal; Appointment of Successor Trustee.
(a) The Funding Note Indenture Trustee may at any time resign by giving
not less than 90 days' prior written notice of resignation to Global
Funding and to the Holders of the Funding Note as provided in the
Funding Note Indenture. Upon receiving such notice of resignation,
Global Funding shall promptly cause a successor trustee with respect
to the applicable series to be appointed by written instrument in
duplicate, executed by Global Funding, one copy of which instrument
shall be delivered to the resigning trustee and one copy to the
successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a successor trustee.
(b) If at any time:
(i) the Funding Note Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 6.7(a) or the
requirements of Section 310 of the Trust Indenture Act or any
applicable Supplemental Funding Note Indenture and shall fail to
resign pursuant to Section
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6.7(b) or following written request therefor by Global Funding or
by any such Holder pursuant to Section 6.8(c);
(ii) the Funding Note Indenture Trustee shall become incapable of
acting with respect to the Funding Note, or shall be adjudged as
bankrupt or insolvent, or a receiver or liquidator of the Funding
Note Indenture Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Funding
Note Indenture Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation; or
(iii) the Funding Note Indenture Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to the Funding Note after written
request therefor by Global Funding or any Holder of the Funding
Note who has been a bona fide Holder of the Funding Note for at
least six months;
then, in any such case, except during the existence of an Event of
Default, Global Funding may remove the Funding Note Indenture Trustee
and appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Funding Note
Indenture Trustee so removed and one copy to the successor trustee.
(c) In addition to the right of petition given to the resigning trustee
and the right of removal given to Global Funding under Sections 6.8(a)
and 6.8(b), respectively, any Holder who has been a Holder of the
Funding Note for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor trustee or the removal
of the Funding Note Indenture Trustee and the appointment of a
successor trustee, as the case may be. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee or remove the Funding Note Indenture Trustee and
appoint a successor trustee, as the case may be.
(d) The Holder Representative may at any time remove the Funding Note
Indenture Trustee and appoint a successor trustee by delivering to the
Funding Note Indenture Trustee so removed, to the successor trustee so
appointed and to Global Funding the evidence provided for in Section
8.1 of the action in that regard taken by a Holder.
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(e) Any resignation or removal of the Funding Note Indenture Trustee and
any appointment of a successor trustee pursuant to any of the
provisions of this Section 6.8 shall only become effective upon
acceptance of appointment by the successor trustee as provided in
Section 6.9.
SECTION 6.9 Acceptance of Appointment by Successor Funding Note Trustee.
(a) Every successor trustee appointed as provided in Section 6.8 shall
execute, acknowledge and deliver to Global Funding and to its
predecessor trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all rights, powers,
duties and obligations of its predecessor under the Funding Note
Indenture, with like effect as if originally named as trustee under
the Funding Note Indenture; but, nevertheless, on the written request
of Global Funding or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to
Section 11.4, pay over to the successor trustee all funds at the time
held by it under the Funding Note Indenture and shall execute and
deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such
successor trustee, Global Funding shall execute any and all
instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
Subject to the Lien created under the Funding Note Indenture, any
trustee ceasing to act shall, nevertheless, retain a claim upon all
property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
(b) Upon acceptance of appointment by a successor Funding Note Indenture
Trustee as provided in this Section 6.9, Global Funding shall notify
each Holder of the Funding Note and each rating agency then rating the
Funding Note at the request of Global Funding. If the acceptance of
appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined
with the notice called for by Section 6.8. If Global Funding fails to
make such notice within 10 days after acceptance of appointment by the
successor Funding Note Indenture Trustee, the successor Funding Note
Indenture Trustee shall cause such notice to be mailed at the expense
of Global Funding.
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SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of
Funding Note Indenture Trustee.
(a) Any corporation or entity into which the Funding Note Indenture
Trustee may be merged or converted or with which it may be
consolidated, or any corporation or entity resulting from any merger,
conversion or consolidation to which the Funding Note Indenture
Trustee shall be a party, or any corporation or entity succeeding to
all or substantially all of the corporate trust business of the
Funding Note Indenture Trustee, shall be the successor of the Funding
Note Indenture Trustee under the Funding Note Indenture, provided that
such corporation or entity shall be eligible under the provisions of
Section 6.7, without the execution or filing of any paper or any
further act on the part of any of the parties to the Funding Note
Indenture, anything in the Funding Note Indenture to the contrary
notwithstanding.
(b) In case at the time such successor to the Funding Note Indenture
Trustee shall succeed to the trusts created by the Funding Note
Indenture the Funding Note shall have been authenticated but not
delivered, any such successor to the Funding Note Indenture Trustee
may adopt the certificate of authentication of any predecessor Funding
Note Indenture Trustee and deliver such Funding Note so authenticated;
and, in case at that time the Funding Note shall not have been
authenticated, any successor to the Funding Note Indenture Trustee may
authenticate such Funding Note either in the name of any predecessor
under the Funding Note Indenture or in the name of the successor
Funding Note Indenture Trustee; and in all such cases such certificate
shall have the full force; provided, that the right to adopt the
certificate of authentication of any predecessor Funding Note
Indenture Trustee or to authenticate the Funding Note in the name of
any predecessor Funding Note Indenture Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.11 Limitations on Rights of Funding Note Indenture Trustee as
Creditor. The Funding Note Indenture Trustee shall comply with Section 311(a) of
the Trust Indenture Act.
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ARTICLE 7
HOLDERS' LISTS AND REPORTS BY FUNDING NOTE INDENTURE TRUSTEE AND GLOBAL
FUNDING
SECTION 7.1 Global Funding to Furnish Funding Note Indenture Trustee Names
and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, Global
Funding shall furnish or cause to be furnished to the Funding Note Indenture
Trustee:
(a) semi-annually not later than June 30 and December 31 of the year or
upon such other dates as are set forth in or pursuant to the Funding
Note Certificate or Supplemental Funding Note Indenture, a list, in
each case in such form as the Funding Note Indenture Trustee may
reasonably require, of the names and addresses of Holders as of the
applicable date, and
(b) at such other times as the Funding Note Indenture Trustee may request
in writing, within 30 days after the receipt by Global Funding of any
such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished,
provided, however, that so long as the Funding Note Indenture Trustee is the
Funding Note Registrar no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communication to Holders.
The Funding Note Indenture Trustee shall comply with the obligations
imposed upon it pursuant to Section 312 of the Trust Indenture Act. Every Holder
of the Funding Note, by receiving and holding the same, agrees with Global
Funding and the Funding Note Indenture Trustee that neither Global Funding, the
Funding Note Indenture Trustee, any Funding Note Paying Agent or any Funding
Note Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of the Funding Note in
accordance with Section 312(c) of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Funding Note
Indenture Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
SECTION 7.3 Reports by Funding Note Indenture Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May
15 following the issuance of the Funding Note, if required by Section
313(a) of the Trust Indenture Act, the Funding Note Indenture Trustee
shall transmit, pursuant to
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Section 313(c) of the Trust Indenture Act, a brief report dated as of
May 15 with respect to any of the events specified in Section 313(a)
of the Trust Indenture Act which may have occurred since the later of
the immediately preceding May 15 and the date of the Funding Note
Indenture.
(b) The Funding Note Indenture Trustee shall transmit the reports required
by Section 313(a) of the Trust Indenture Act at the time specified
therein.
(c) The Funding Note Indenture Trustee shall comply with Section 313(b) of
the Trust Indenture Act.
(d) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
(e) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Funding Note Indenture Trustee with each
stock exchange upon which the Funding Note is listed, with the
Commission and Global Funding. Global Funding will notify the Funding
Note Indenture Trustee whether the Funding Note is listed on any stock
exchange.
(f) Within ten days following any distribution made or scheduled to be
made on the Funding Note, including any Interest Payment Date or the
Maturity Date, and only to the extent Global Funding is required to
file reports under the Exchange Act on its own behalf, the Funding
Note Indenture Trustee will deliver to the Funding Agreement Provider
and each Holder a report substantially in the form attached as Exhibit
C.
SECTION 7.4 Reports by Global Funding.
Pursuant to Section 314(a) of the Trust Indenture Act, Global Funding
shall:
(a) file, or cause to be filed, with the Funding Note Indenture Trustee,
within 15 days after Global Funding is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which Global Funding may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or,
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if Global Funding is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file, or
cause to be filed, with the Funding Note Indenture Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed form
time to time in such rules and regulations; provided that if, pursuant
to any publicly available interpretations of the Commission, Global
Funding would not be required to make such filings under Section
314(a) of the Trust Indenture Act, then Global Funding shall not be
required to make such filings;
(b) file, or cause to be filed on its behalf, with the Funding Note
Indenture Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by Global Funding, with the conditions and covenants of the
Funding Note Indenture as may be required from time to time by such
rules and regulations; and
(c) transmit within 30 days after the filing thereof with the Funding Note
Indenture Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by or on behalf of Global
Funding pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 7.5 Reports on Assessment of Compliance with Servicing Criteria and
Compliance Statements; Attestation Reports of Registered Public Accounting Firm.
To the extent Global Funding is required to file reports under the Exchange Act
on its behalf, in connection with the filing of any Annual Report on Form 10-K
of Global Funding filed under the Exchange Act (each, an "Annual Report"), each
of the Funding Note Indenture Trustee and each Funding Note Paying Agent (unless
the Funding Note Indenture Trustee is the only Funding Note Paying Agent) shall
(a) provide to the Funding Agreement Provider and Global Funding (i) a report
required pursuant to Item 1122(a) of Regulation AB (17 CFR 229.1100 -
1123)("Regulation AB") on an assessment of compliance with the servicing
criteria set forth in Item 1122(d) of Regulation AB (each a "Compliance Report")
and (ii) a statement of compliance required pursuant to Item 1123 of Regulation
AB, each of which shall be dated the date of, and shall be filed as an exhibit
to, the applicable Annual Report; and (b) cause, at the expense of the Funding
Agreement Provider, a
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registered public accounting firm to provide to the Funding Agreement Provider
and Global Funding an attestation report on the applicable Compliance Report as
required pursuant to Item 1122(b) of Regulation AB, which shall be dated the
date of, and shall be filed as an exhibit to, the applicable Annual Report.
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 Evidence of Action Taken by a Holder.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by the Funding Note Indenture to be given or
taken by any Holder may be embodied in and evidenced (i) by any
instrument or any number of instruments of similar tenor executed by
Holders in person or by agent or proxy appointed in writing, or (ii)
by the record of the Holders of the Funding Note voting in favor
thereof at any meeting of Holders duly called and held in accordance
with the provisions of Article 12, or (iii) by a combination of such
instrument or instruments and any such record of such meeting of
Holders. Except as otherwise expressly provided in the Funding Note
Indenture, such action shall become effective when such instrument or
instruments are delivered to the Funding Note Indenture Trustee. Proof
of execution of any instrument or of a writing appointing any such
agent shall be sufficient for any purpose of the Funding Note
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Funding Note Indenture Trustee and Global Funding, if made in the
manner provided in this Article. The record of any meeting of Holders
of the Funding Note shall be proved in the manner provided in Section
12.6.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other action of a Holder of the Funding Note shall bind every
future Holder of the same Funding Note and the Holder of every Funding
Note issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Funding Note Indenture Trustee or Global
Funding in reliance thereon, whether or not notation of such action is
made upon the Funding Note.
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SECTION 8.2 Proof of Execution of Instruments and of Holding of Funding
Note.
(a) Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Holder or its agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Funding
Note Indenture Trustee or in such manner as shall be satisfactory to
the Funding Note Indenture Trustee.
(b) The ownership, principal amount and CUSIP number of the Funding Note
shall be proved by the Funding Note Register or by a certificate of
the Funding Note Indenture Trustee.
SECTION 8.3 Voting Record Date. Global Funding may set a record date for
purposes of determining the identity of each Holder of the Funding Note entitled
to vote or consent to any action referred to in Section 8.1, which record date
may be set at any time or from time to time by notice to the Funding Note
Indenture Trustee, for any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than 5 days prior to the proposed
date of such vote or consent, and thereafter, notwithstanding any other
provisions of the Funding Note Indenture, only a Holder of the Funding Note on
such record date shall be entitled to so vote or give such consent or to
withdraw such vote or consent.
SECTION 8.4 Persons Deemed to be Owners. Global Funding, the Funding Note
Indenture Trustee and any agent of Global Funding or the Funding Note Indenture
Trustee may deem and treat the Holder of the Funding Note as the absolute owner
of the Funding Note (whether or not the Funding Note shall be overdue and
notwithstanding any notation of ownership or other writing on the Funding Note
Certificate) for the purpose of receiving payment of or on account of the
principal of, any premium on, and, subject to the provisions of the Funding Note
Indenture, any interest on, and any Additional Amounts with respect to, the
Funding Note and for all other purposes; and neither Global Funding nor the
Funding Note Indenture Trustee nor any agent of Global Funding or the Funding
Note Indenture Trustee shall be affected by any notice to the contrary. All such
payments so made to any such Person, or upon such Person's order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for funds payable upon the Funding Note.
SECTION 8.5 Right of Revocation of Action Taken; Binding Effect of Actions
by Holders.
(a) At any time prior to (but not after) the evidencing to the Funding
Note Indenture Trustee, as provided in Section 8.1, of the taking of
any action by the Holders of the percentage of the principal amount of
the Funding Note specified in the Funding Note Indenture in connection
with such action, any Holder of the
65
Funding Note may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Holder's interest in the Funding
Note.
(b) Any action taken by the Holders of the percentage of the principal
amount of the Funding Note specified in the Funding Note Indenture in
connection with such action shall be conclusively binding upon Global
Funding, the Funding Note Indenture Trustee and all present and future
Holders of the Funding Note, of the Funding Note issued in exchange
for the Funding Note or the Funding Note represented by the Funding
Note Certificate executed, authenticated and delivered in exchange for
the Funding Note Certificate representing the Funding Note,
irrespective of whether or not any notation in regard of any such
action is made on the applicable Funding Note Certificate.
ARTICLE 9
SUPPLEMENTAL FUNDING NOTE INDENTURES
SECTION 9.1 Supplemental Funding Note Indentures Without Consent of
Holders.
(a) Global Funding and the Funding Note Indenture Trustee may from time to
time and at any time enter into an indenture or indentures
supplemental to the Funding Note Indenture (each, a "Supplemental
Funding Note Indenture") (which shall conform to the provisions of the
Trust Indenture Act) for one or more of the following purposes without
the consent of any Holder:
(i) for Global Funding to convey, transfer, assign, mortgage or
pledge to the Funding Note Indenture Trustee as security for the
Funding Note any property or assets;
(ii) to add to the covenants of Global Funding such further covenants,
restrictions, conditions or provisions as Global Funding and the
Funding Note Indenture Trustee shall consider to be for the
protection of each Holder of the Funding Note, and to make the
occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all
or any of the several remedies provided in the Funding Note
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Indenture as set forth in the Funding Note Indenture; provided,
that in respect of any such additional covenant, restriction,
condition or provision such Supplemental Funding Note Indenture
may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to
the Funding Note Indenture Trustee upon such an Event of Default
or may limit the right of the Holder Representative to waive such
an Event of Default;
(iii) to cure any ambiguity or to correct or supplement any provision
contained in the Funding Note Indenture or in any Supplemental
Funding Note Indenture or the Funding Note Certificate which may
be defective or inconsistent with any other provision contained
in the Funding Note Indenture or in any Supplemental Funding Note
Indenture or the Funding Note Certificate; or to make such other
provisions in regard to matters or questions arising under the
Funding Note Indenture or under any Supplemental Funding Note
Indenture or the Funding Note Certificate which shall not
adversely affect the interests of the Holders of the Funding Note
in any material respect; or
(iv) to evidence and provide for the acceptance of appointment under
the Funding Note Indenture by a successor trustee and to add to
or change any of the provisions of the Funding Note Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts under the Funding Note Indenture by
more than one trustee.
(b) The Funding Note Indenture Trustee is authorized to join with Global
Funding in the execution of any such Supplemental Funding Note
Indenture, and to make any further appropriate agreements and
stipulations which may be therein contained, but the Funding Note
Indenture Trustee shall not be obligated to enter into any such
Supplemental Funding Note Indenture which affects the Funding Note
Indenture Trustee's own rights, duties or immunities under the Funding
Note Indenture or otherwise.
(c) Any Supplemental Funding Note Indenture authorized by the provisions
of this Section may be executed without the consent of
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any Holder of the Funding Note at the time outstanding,
notwithstanding any of the provisions of Section 9.2.
SECTION 9.2 Supplemental Funding Note Indentures with Consent of Holders.
(a) With the consent (evidenced as provided in Article 8) of the Holders
of not less than 66 2/3% of the outstanding principal amount of the
Funding Note, Global Funding and the Funding Note Indenture Trustee
may, from time to time and at any time, enter into a Supplemental
Funding Note Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the
Funding Note Indenture or of any Supplemental Funding Note Indenture
or Funding Note Certificate or of modifying in any manner the rights
of the Holders of the Funding Note; provided, that no such
Supplemental Funding Note Indenture shall, without the consent of the
Holder of the Funding Note:
(i) change the final maturity of the Funding Note, or reduce the
principal amount thereof, or reduce the rate or extend the time
of payment of interest or any other amount payable thereon, or
impair or affect the right of any Holder to institute suit for
the payment thereof or modify any redemption or repayment
provisions applicable to the Funding Note;
(ii) permit the creation of any Lien on the Collateral or any part
thereof (other than the Security Interest) or terminate the
Security Interest as to any part of the Collateral, except as
permitted by the Funding Note Indenture; or
(iii) modify any of the provisions of this Section 9.2 except to
increase the aforementioned percentage of the Funding Note
required to approve any Supplemental Funding Note Indenture.
(b) Upon the request of Global Funding, and upon the filing with the
Funding Note Indenture Trustee of evidence of the consent of each
Holder and other documents, if any, required by Section 8.1 the
Funding Note Indenture Trustee shall join with Global Funding in the
execution of such Supplemental Funding Note Indenture unless such
Supplemental Funding Note Indenture affects the Funding Note Indenture
Trustee's own rights, duties or immunities under the Funding Note
Indenture or otherwise, in
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which case the Funding Note Indenture Trustee may in its discretion,
but shall not be obligated to, enter into such Supplemental Funding
Note Indenture.
(c) It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed Supplemental
Funding Note Indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(d) Promptly after the execution by Global Funding and the Funding Note
Indenture Trustee of any Supplemental Funding Note Indenture pursuant
to the provisions of this Section, the Funding Note Indenture Trustee
shall notify the Holders of the Funding Note, as provided in the
Funding Note Indenture, setting forth in general terms the substance
of such Supplemental Funding Note Indenture. Any failure of the
Funding Note Indenture Trustee to provide such notice, or any defect
therein, shall not, however, in any way impair or affect the validity
of any such Supplemental Funding Note Indenture.
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental
Funding Note Indentures. Any Supplemental Funding Note Indenture executed
pursuant to the provisions of this Article shall comply with the Trust Indenture
Act. Upon the execution of any Supplemental Funding Note Indenture pursuant to
the provisions of the Funding Note Indenture, the Funding Note Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under the Funding Note Indenture of the Funding Note Indenture Trustee, Global
Funding, each agent of Global Funding and each Holder of the Funding Note shall
thereafter be determined, exercised and enforced under the Funding Note
Indenture subject in all respects to such modifications and amendments, and all
the terms and conditions of any such Supplemental Funding Note Indenture shall
be and be deemed to be part of the terms and conditions of the Funding Note
Indenture for any and all purposes.
SECTION 9.4 Documents to Be Given to Funding Note Indenture Trustee. The
Funding Note Indenture Trustee, subject to the provisions of Sections 6.1 and
6.2, may receive a Trust Certificate and an Opinion of Counsel as conclusive
evidence that any such Supplemental Funding Note Indenture complies with the
applicable provisions of the Funding Note Indenture.
SECTION 9.5 Notation on Funding Note Certificate in Respect of Supplemental
Funding Note Indentures. The Funding Note Certificate may bear a notation in
form approved by the Funding Note Indenture Trustee as to any matter provided
for by any Supplemental Funding Note Indenture or as to any action taken at any
such meeting. If Global Funding or the Funding Note Indenture Trustee shall so
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determine, a new Funding Note Certificate representing the Funding Note so
modified as to conform, in the opinion of the Funding Note Indenture Trustee and
Global Funding, to any modification of the Funding Note Indenture contained in
any such Supplemental Funding Note Indenture may be prepared by Global Funding,
authenticated by the Funding Note Indenture Trustee and delivered in exchange
for the Funding Note Certificate then representing the Funding Note.
SECTION 9.6 Amendment to Funding Agreement(s).
(a) Global Funding and the Funding Note Indenture Trustee may from time to
time and at any time enter into or consent to one or more amendments
to any Funding Agreement for one or more of the following purposes
without the consent of any Holder: to cure any ambiguity or to correct
or supplement any provision contained in such Funding Agreement which
may be defective or inconsistent with any other provision contained in
such Funding Agreement, or with any provision of the Funding Note
Indenture, the Funding Note, the Notes, the Distribution Agreement,
the Trust Agreement, the Administrative Services Agreement, the
Coordination Agreement, the Name Licensing Agreement, the Support
Agreement, the Terms Agreement or the Pricing Supplement, or to make
such other provisions in regard to matters or questions arising under
such Funding Agreement or the Funding Note Indenture which shall not
adversely affect the interests of the Holders of the Funding Note in
any material respect.
(b) With the consent (evidenced as provided in Article 8) of the Holders
of not less than 66 2/3% of the outstanding principal amount of the
Funding Note, Global Funding and the Funding Note Indenture Trustee
may, from time to time and at any time, enter into or consent to one
or more amendments to any Funding Agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of such Funding Agreement; provided, that no such amendment
shall change the Maturity Date (as defined in such Funding Agreement)
of such Funding Agreement, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest or any other
amount payable thereon, or impair or affect the right of the Funding
Note Indenture Trustee or Global Funding to institute suit for the
payment thereof or modify any redemption or repayment provisions
applicable to such Funding Agreement without the consent of the Holder
of any Funding Note affected thereby.
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(c) The Funding Note Indenture Trustee may receive and conclusively rely
upon an Opinion of Counsel stating whether or not the Funding Note
would be affected by any amendment of a Funding Agreement and any such
Opinion of Counsel shall be conclusive upon all the Holders of the
Funding Note.
(d) Notwithstanding any other provision, Global Funding and the Funding
Note Indenture Trustee will not enter into or consent to any amendment
to any Funding Agreement with the Funding Agreement Provider or permit
any Funding Agreement to be amended or modified if such amendment or
modification would cause Global Funding not to be ignored or treated
as a "grantor trust" for United States federal income tax purposes (as
evidenced by an Opinion of Counsel). Furthermore, Global Funding and
the Funding Note Indenture Trustee will not enter into or consent to
any agreement or take any action which would cause Global Funding to
become required to be registered as an "investment company", or come
under the "control" of an "investment company," as such terms are
defined in the Investment Company Act.
(e) The Funding Note Indenture Trustee, subject to the provisions of
Sections 6.1 and 6.2, may receive an Opinion of Counsel as conclusive
evidence that any such amendment to a Funding Agreement complies with
the requirements of Section 9.6(a) or (b), as applicable, and any such
Opinion of Counsel shall be conclusive on the Holders of the Funding
Note.
(f) It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment to a
Funding Agreement, but it shall be sufficient if such consent shall
approve the substance thereof.
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 Global Funding May Merge, Consolidate, Sell or Convey Property
Under Certain Circumstances. Global Funding may not consolidate with, or merge
into, any entity (whether or not affiliated with Global Funding), or sell, lease
or convey the property of Global Funding as an entirety or substantially as an
entirety, unless:
(a) the entity formed by such consolidation or into which Global Funding
is merged or the entity which acquires by conveyance or transfer the
properties and assets of Global Funding substantially
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as an entirety shall be a statutory trust formed under the laws of the
State of Delaware or a corporation or other entity organized and
existing under the laws of the United States of America or any State
or the District of Columbia, and shall expressly assume, by a
Supplemental Funding Note Indenture, executed and delivered to the
Funding Note Indenture Trustee, in form satisfactory to the Funding
Note Indenture Trustee, the due and punctual payment of the principal
of, any premium and interest on, and any Additional Amounts with
respect to, the Funding Note and the performance of every covenant of
the Funding Note Indenture on the part of Global Funding to be
performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be
continuing;
(c) Global Funding has received written confirmation from any rating
agency then rating the Funding Note at the request of Global Funding
that such consolidation, merger, conveyance or transfer shall not
cause the rating on the then outstanding Funding Note to be downgraded
or withdrawn; and
(d) Global Funding has delivered to the Funding Note Indenture Trustee a
Trust Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such Supplemental
Funding Note Indenture comply with this Article and that all
conditions precedent provided for in the Funding Note Indenture
relating to such transaction have been complied with.
ARTICLE 11
SATISFACTION AND DISCHARGE OF FUNDING NOTE INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 Satisfaction and Discharge of Funding Note Indenture. If at
any time (a) Global Funding shall have paid or caused to be paid all outstanding
principal of, any premium and interest on, and any Additional Amounts and other
amounts payable with respect to, the Funding Note, as and when the same shall
have become due and payable, or (b) Global Funding shall have delivered to the
Funding Note Indenture Trustee for cancellation the Funding Note Certificate
representing the Funding Note theretofore authenticated (other than the Funding
Note Certificate which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.7) or (c) Global Funding
shall have irrevocably deposited or caused to be deposited with the Funding Note
Indenture Trustee as trust funds the entire
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amount in cash (other than funds repaid by the Funding Note Indenture Trustee or
any Funding Note Paying Agent to Global Funding in accordance with Section 11.4)
sufficient to pay at maturity all amounts payable at maturity on the Funding
Note, including any outstanding principal, interest, premium, Additional Amounts
and other amounts due or to become due to such date of maturity as the case may
be, and if, in any such case, Global Funding shall also pay or cause to be paid
all other sums payable under the Funding Note Indenture by Global Funding, then
the Funding Note Indenture shall cease to be of further effect (except as to (i)
rights of registration of transfer and exchange, (ii) substitution of an
apparently mutilated, defaced, destroyed, lost or stolen Funding Note
Certificate, (iii) rights of Holders to receive payments of principal of, any
premium and interest on, and any Additional Amounts and other amounts payable
with respect to, the Funding Note, (iv) the rights, obligations and immunities
of the Funding Note Indenture Trustee under the Funding Note Indenture and (v)
the rights of each Holder as beneficiary of the Funding Note Indenture with
respect to the property so deposited with the Funding Note Indenture Trustee
payable to all or any of them), and the Funding Note Indenture Trustee, on
demand of Global Funding accompanied by a Trust Certificate and an Opinion of
Counsel and at the cost and expense of Global Funding, shall execute proper
instruments acknowledging such satisfaction of and discharging the Funding Note
Indenture. Global Funding agrees to reimburse the Funding Note Indenture Trustee
for any costs or expenses thereafter reasonably and properly incurred and to
compensate the Funding Note Indenture Trustee for any services thereafter
reasonably and properly rendered by the Funding Note Indenture Trustee in
connection with the Funding Note Indenture or the Funding Note.
SECTION 11.2 Application by Funding Note Indenture Trustee of Funds
Deposited for Payment of Funding Note. Subject to Section 11.4, all funds
deposited with the Funding Note Indenture Trustee pursuant to Section 11.1 shall
be held in trust in the Collection Account in accordance with Section 6.5 and
applied by it to the payment, either directly, in its capacity as the Funding
Note Paying Agent, or through any other Funding Note Paying Agent, to each
Holder of the Funding Note for the payment or redemption of which such funds
have been deposited with the Funding Note Indenture Trustee, of all sums due and
to become due thereon for any principal, interest, premium, Additional Amounts
or other amounts.
SECTION 11.3 Repayment of Funds Held by Funding Note Paying Agent. In
connection with the satisfaction and discharge of the Funding Note Indenture,
all funds then held by any Funding Note Paying Agent under the provisions of the
Funding Note Indenture shall, upon demand of Global Funding, be repaid to Global
Funding or paid to the Funding Note Indenture Trustee and thereupon such Funding
Note Paying Agent shall be released from all further liability with respect to
such funds.
SECTION 11.4 Return of Funds Held by Funding Note Indenture Trustee and
Funding Note Paying Agent. Any funds deposited with or paid to the Funding Note
Indenture Trustee or any Funding Note Paying Agent for the payment of the
principal of, any interest or premium on, or any Additional Amounts or any other
amounts with
73
respect to, the Funding Note and not applied but remaining unclaimed for three
years after the date upon which such principal, interest, premium, Additional
Amounts or any other amount shall have become due and payable, shall, upon the
written request of Global Funding and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to Global Funding by the Funding Note Indenture Trustee or such Funding
Note Paying Agent, and each Holder of the Funding Note shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to Global Funding for any payment which such
Holder may be entitled to collect, and all liability of the Funding Note
Indenture Trustee or any Funding Note Paying Agent with respect to such funds
shall thereupon cease.
ARTICLE 12
MEETINGS OF HOLDERS OF FUNDING NOTE
SECTION 12.1 Purposes for Which Meetings May Be Called. A meeting of
Holders of the Funding Note may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
the Funding Note Indenture to be made, given or taken by Holders of the Funding
Note.
SECTION 12.2 Call, Notice and Place of Meetings.
(a) Unless otherwise provided in the Funding Note Certificate, the Funding
Note Indenture Trustee may at any time call a meeting of Holders of
the Funding Note for any purpose specified in Section 12.1, to be held
at such time and at such place in the City of New York or the city in
which the Corporate Trust Office is located. Notice of every meeting
of Holders of the Funding Note, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken
at such meeting, shall be given in the manner provided in Section
13.4, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time Global Funding or the Holder or Holders of at
least 10% of the principal amount of the Funding Note shall have
requested the Funding Note Indenture Trustee to call a meeting of the
Holders of the Funding Note for any purpose specified in Section 12.1,
by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Funding Note Indenture
Trustee shall not have made the first publication or mailing of the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided in the Funding Note Indenture,
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then Global Funding or the Holder or Holders of the Funding Note in
the amount above specified, as the case may be, may determine the time
and the place in the City of New York or the city in which the
Corporate Trust Office is located for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
Section 12.2.
SECTION 12.3 Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of the Funding Note, a Person shall be (a) a Holder of
the Funding Note, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of the Funding Note by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of the Funding Note shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Funding Note Indenture
Trustee and its counsel and any representatives of Global Funding and its
counsel.
SECTION 12.4 Quorum; Action.
(a) The Persons entitled to vote a majority in principal amount of the
Funding Note then outstanding shall constitute a quorum for a meeting
of Holders of the Funding Note; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver
which the Funding Note Indenture expressly provides may be given by
the Holders of not less than 66 2/3% of the outstanding principal
amount of the Funding Note, then Persons entitled to vote 66 2/3% of
the outstanding principal amount of the Funding Note shall constitute
a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the
request of Holders of the Funding Note, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 12.2, except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the principal
amount of the outstanding Funding Note which shall constitute a
quorum.
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(b) Except as limited by the proviso to Section 9.2(a), any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority of the outstanding principal amount
of the Funding Note; provided, however, that, except as limited by the
proviso to Section 9.2(a), any resolution with respect to any consent
or waiver which the Funding Note Indenture expressly provides may be
given by the Holders of not less than 66 2/3% of the outstanding
principal amount of the Funding Note may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as
aforesaid only by the affirmative vote of the Holders of 66 2/3% of
the outstanding principal amount of the Funding Note; and provided,
further, that, except as limited by the proviso to Section 9.2(a), any
resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which the Funding
Note Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, of
the outstanding principal amount of the Funding Note may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage of the outstanding principal amount of
the Funding Note.
(c) Any resolution passed or decision taken at any meeting of Holders of
the Funding Note duly held in accordance with this Section shall be
binding on all the Holders of Funding Note, whether or not such
Holders were present or represented at the meeting.
SECTION 12.5 Determination of Voting Rights; Conduct of Adjournment of
Meetings.
(a) Notwithstanding any other provisions of the Funding Note Indenture,
the Funding Note Indenture Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of the
Funding Note in regard to proof of the holding of the Funding Note and
of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of the Funding Note shall be proved in
the manner
76
specified in Section 8.4 and the appointment of any proxy shall be
proved in the manner specified in Section 8.2. Such regulations may
provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in
Section 8.2 or other proof.
(b) The Funding Note Indenture Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall
have been called by Global Funding or by Holders of the Funding Note
as provided in Section 12.2(b), in which case Global Funding or the
Holders of the Funding Note calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority of the outstanding
principal amount of the Funding Note represented at the meeting.
(c) At any meeting, each Holder of the Funding Note or proxy shall be
entitled to one vote for each $1,000 of principal amount of the
Funding Note held or represented by such Holder or proxy. The chairman
of the meeting shall have no right to vote, except as a Holder of the
Funding Note or proxy.
(d) Any meeting of Holders of the Funding Note duly called pursuant to
Section 12.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority of the outstanding
principal amount of the Funding Note represented at the meeting; and
the meeting may be held as so adjourned without further notice.
SECTION 12.6 Counting Votes and Recording Action of Meetings. The vote upon
any resolution submitted to any meeting of Holders of the Funding Note shall be
(a) by written ballots on which shall be subscribed the signatures of the
Holders of the Funding Note or of their representatives by proxy and the
principal amounts and serial numbers of the outstanding Funding Note held or
represented by them or (b) by such other procedures adopted by the Funding Note
Indenture Trustee in its discretion. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at
the meeting. A record, at least in triplicate, of the proceedings of each
meeting of Holders of the Funding Note shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 12.2
and, if applicable,
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Section 12.4. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to Global Funding, and another to the Funding Note Indenture Trustee
to be preserved by the Funding Note Indenture Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 No Recourse. Notwithstanding anything to the contrary
contained in the Funding Note Indenture, or the Funding Note Certificate or
Supplemental Funding Note Indenture, none of the Funding Agreement Provider, its
officers, directors, affiliates, employees or agents, or any of the Delaware
Trustee, the Funding Note Indenture Trustee or the Global Funding Trust
Beneficial Owner, or any of their officers, directors, affiliates, employees or
agents (the "Nonrecourse Parties") will be personally liable for the payment of
any principal, interest or any other sums at any time owing under the terms of
the Funding Note. If any Event of Default shall occur with respect to the
Funding Note, the right of the Holders of the Funding Note and the Funding Note
Indenture Trustee on behalf of such Holders in connection with a claim on the
Funding Note shall be limited solely to a proceeding against the Collateral.
Neither the Holders nor the Funding Note Indenture Trustee on behalf of the
Holders will have the right to proceed against the Nonrecourse Parties to
enforce the Funding Note (except that to the extent they exercise their rights,
if any, to seize the relevant Funding Agreement(s), they may enforce the
relevant Funding Agreement(s) against the Funding Agreement Provider) or for any
deficiency judgment remaining after foreclosure of any property included in the
relevant Collateral.
It is expressly understood and agreed that nothing contained in this
Section shall in any manner or way constitute or be deemed a release of the debt
or other obligations evidenced by the Funding Note or otherwise affect or impair
the enforceability against Global Funding of the liens, assignments, rights and
the Security Interest created by or pursuant to the Funding Note Indenture, the
relevant Collateral or any other instrument or agreement evidencing, securing or
relating to the indebtedness or the obligations evidenced by the Funding Note.
Nothing in this Section shall preclude the Holders from foreclosing upon any
property included in the Collateral or any other rights or remedies in law or in
equity against Global Funding.
SECTION 13.2 Provisions of Funding Note Indenture for the Sole Benefit of
Parties and Holders. Nothing in the Funding Note Indenture or in the Funding
Note, expressed or implied, shall give or be construed to give to any Person,
other than the parties to the Funding Note Indenture and their successors and
the Holders of the Funding Note, any legal or equitable right, remedy or claim
under the Funding Note Indenture or under any covenant or provision contained in
the Funding Note Indenture,
78
all such covenants and provisions being for the sole benefit of the parties to
the Funding Note Indenture and their successors and of the Holders of the
Funding Note.
SECTION 13.3 Successors and Assigns of Global Funding Bound by Indenture.
All the covenants, stipulations, promises and agreements in the Funding Note
Indenture contained by or in behalf of Global Funding shall bind its successors
and assigns, whether so expressed or not.
SECTION 13.4 Notices and Demands on Global Funding, Funding Note Indenture
Trustee and any Holder.
(a) Except as otherwise provided by this Section, any notice or demand
which by any provision of the Funding Note Indenture is required or
permitted to be given or served by the Funding Note Indenture Trustee
or by any Holder of the Funding Note to or on Global Funding may be
given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided in the Funding Note
Indenture) addressed (until another address of Global Funding is filed
by Global Funding with the Funding Note Indenture Trustee) to the
Delaware Trustee. Any notice, direction, request or demand by Global
Funding or any Holder to or upon the Funding Note Indenture Trustee
shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office.
(b) Where the Funding Note Indenture provides for notice to any Holder,
such notice shall be sufficiently given (unless otherwise expressly
provided in the Funding Note Indenture) if in writing and mailed,
first-class postage prepaid, to each Holder entitled thereto, at such
Holder's last address as it appears in the Note Register. In any case
where notice to any Holder is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to any other Holder.
(c) Where the Funding Note Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by any Holder
shall be filed with the Funding Note Indenture Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
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(d) If, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to Global Funding
and each Holder when such notice is required to be given pursuant to
any provision of the Funding Note Indenture, then any manner of giving
such notice as shall be satisfactory to the Funding Note Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
(e) Global Funding shall deliver promptly to each rating agency then
rating the Funding Note copies of each of the following:
(i) any repurchase of the Funding Note or any portion thereof
pursuant to Section 3.3;
(ii) any notice of any default or Event of Default;
(iii) any notice of redemption provided by Global Funding pursuant to
Section 3.1(d);
(iv) any notice of change in name, identity, organizational structure,
chief executive office, or chief place of business of Global
Funding provided by Global Funding pursuant to Section 14.4(a);
(v) any Supplemental Funding Note Indenture;
(vi) any resignation, removal or appointment under the Funding Note
Indenture;
(vii) any amendment to any Funding Agreement; and
(viii) any other information reasonably requested by such rating
agency.
Any such notice shall be addressed to:
Standard & Poor's Ratings Services,
a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Capital Markets
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
80
▇▇▇▇▇'▇ Investors Service Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Life Insurance Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address previously furnished in writing to Global Funding
by the applicable rating agency.
SECTION 13.5 Trust Certificates and Opinions of Counsel; Statements to be
Contained Therein.
(a) Except as otherwise expressly provided in the Funding Note Indenture,
upon any application or demand by Global Funding to the Funding Note
Indenture Trustee to take any action under any of the provisions of
the Funding Note Indenture, Global Funding shall furnish to the
Funding Note Indenture Trustee a Trust Certificate stating that all
conditions precedent, if any, provided for in the Funding Note
Indenture relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of the applicable
counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any
provision of the Funding Note Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or opinion provided for in the Funding Note Indenture
and delivered to the Funding Note Indenture Trustee with respect to
compliance with a condition or covenant provided for in the Funding
Note Indenture shall include:
(i) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(iii) a statement that, in the opinion of such Person, he has made
such examination or investigation or has received such
certificates, opinions, representations or statements of counsel
or accountants pursuant to paragraphs (c) or
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(d) of this Section, as are necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
(c) Any certificate, statement or opinion of Global Funding may be based
upon a certificate or opinion of or representations by counsel, unless
Global Funding knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the
same are erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters information
with respect to which is in the possession of Global Funding, upon the
certificate, statement or opinion of or representations by Global
Funding, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which the
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the
same are erroneous.
(d) Any certificate, statement or opinion of Global Funding or of counsel
may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm
of accountants in the employ of Global Funding, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which the
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the
same are erroneous.
(e) Any certificate or opinion of any independent firm of public
accountants filed with the Funding Note Indenture Trustee shall
contain a statement that such firm is independent.
SECTION 13.6 Governing Law. Pursuant to Section 5-1401 of the General
Obligations Law of the State of New York, the Funding Note Indenture and the
Funding Note shall (unless specified otherwise in the Funding Note Certificate)
be governed by, and construed in accordance with, the laws of the State of New
York, except as required by mandatory provisions of law and except to the extent
that the validity or perfection
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of Global Funding's ownership of and security interest in the Funding
Agreement(s) or remedies under the Funding Note Indenture in respect thereof may
be governed by the laws of a jurisdiction other than the State of New York. All
judicial proceedings brought against Global Funding or the Funding Note
Indenture Trustee arising out of or relating to the Funding Note Indenture, the
Funding Note or any portion of the Collateral or other assets of Global Funding
may be brought in any state or Federal court in the State of New York, provided
that the Funding Note Certificate may specify other jurisdictions as to which
Global Funding may consent to the nonexclusive jurisdiction of its courts with
respect to the Funding Note.
SECTION 13.7 Counterparts. The Funding Note Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.8 Trust Indenture Act to Control. If and to the extent that any
provision of the Funding Note Indenture limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed on the
Funding Note Indenture by Section 318(c) of the Trust Indenture Act, such
provision of the Trust Indenture Act shall control.
SECTION 13.9 Judgment Currency. Global Funding will indemnify the Holder of
the Funding Note against any judgment or order being given or made for any
amount due under such Funding Note and that judgment or order requiring payment
in a currency (the "Judgment Currency") other than the Specified Currency, and
as a result of any variation between:
(a) the rate of exchange at which the Specified Currency amount is
converted into the Judgment Currency for the purpose of that judgment
or order; and
(b) the rate of exchange at which the Holder, on the date of payment of
that judgment or order, is able to purchase the Specified Currency
with the amount of the Judgment Currency actually received.
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 Security Interest.
(a) To secure the full and punctual payment of the Obligations in
accordance with the terms of the Funding Note Indenture and to secure
the performance of Global Funding's obligations under the Funding Note
and the Funding Note Indenture, Global Funding pledges and
collaterally assigns to and with the Funding Note
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Indenture Trustee for the benefit of each Holder of the Funding Note
and any other Person for whose benefit the Funding Note Indenture
Trustee is or will be holding the Collateral (the "Secured Parties"),
and grants to the Funding Note Indenture Trustee for the benefit of
each Secured Party, a security interest in the Collateral, and all of
the rights and privileges of Global Funding in and to the Collateral
(the "Security Interest"), effective as of the Original Issue Date of
the Funding Note.
(b) It is expressly agreed that anything therein contained to the contrary
notwithstanding, Global Funding shall remain liable under each Funding
Agreement to perform all the obligations assumed by it thereunder, all
in accordance with and pursuant to the terms and provisions thereof,
and the Funding Note Indenture Trustee shall not have any obligations
or liabilities by reason of or arising out of the Funding Note
Indenture, nor shall the Funding Note Indenture Trustee be required or
obligated in any manner to perform or fulfill any obligations of
Global Funding under or pursuant to such Funding Agreement or to make
any payment, to make any inquiry as to the nature or sufficiency of
any payment received by it, or, prior to the occurrence and
continuance of an Event of Default, to present or file any claim, or
to take any action to collect or enforce the payment of any amounts
that may have been assigned to it or to which it may be entitled at
any time or times.
(c) The Funding Note Indenture Trustee acknowledges the grant of the
Security Interest upon the issuance of the Funding Note, accepts the
trusts under the Funding Note Indenture in accordance with the
provisions of the Funding Note Indenture and agrees to perform its
duties in the Funding Note Indenture to the end that the interests of
each Secured Party may be adequately and effectively protected.
SECTION 14.2 Representations and Warranties. Global Funding represents and
warrants as of the date of the Funding Note Indenture as follows:
(a) Global Funding owns each Funding Agreement that secures the
Obligations and all of the rest of the Collateral, free and clear of
any Liens other than the Security Interest in the Collateral.
(b) Global Funding has not performed any acts which might prevent the
Funding Note Indenture Trustee from enforcing any of the terms of the
Funding Note Indenture or which would limit the Funding Note Indenture
Trustee in any such enforcement. Other
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than financing statements or other similar or equivalent documents or
instruments with respect to the Security Interest, no financing
statement, mortgage, security agreement or similar or equivalent
document or instrument covering all or any part of the Collateral is
on file or of record in any jurisdiction in which such filing or
recording would be effective to perfect a Lien on such Collateral. No
Collateral is in the possession of any Person (other than Global
Funding or its agent) asserting any claim thereto or security interest
therein, except that the Funding Note Indenture Trustee or its
designee may have possession of Collateral as contemplated by the
Funding Note Indenture.
(c) Each Security Interest constitutes a valid security interest securing
the Obligations. When (i) the financing statements shall have been
filed in the appropriate offices in Illinois, Delaware and New York,
(ii) the Funding Note Indenture Trustee or its agent shall have taken
possession of each applicable Funding Agreement, (iii) Global Funding
shall have pledged and collaterally assigned each applicable Funding
Agreement to the Funding Note Indenture Trustee and given written
notice to the Funding Agreement Provider of each such assignment to
the Funding Note Indenture Trustee and (iv) the Funding Agreement
Provider shall have given its express written consent to such pledge
and collateral assignment and affirmed in writing that the Funding
Agreement Provider has changed its books and records to reflect such
pledge and collateral assignment to the Funding Note Indenture
Trustee, such Security Interest shall constitute a first priority
perfected security interest in the Collateral, enforceable against
Global Funding, Global Funding's creditors and any purchaser from
Global Funding.
SECTION 14.3 Additional Representations and Warranties. Global Funding
represents and warrants as of the date of the Funding Note Indenture that:
(a) to the extent the creation of a security interest in any Funding
Agreement is governed by the applicable UCC, the Funding Note
Indenture creates a valid security interest (as defined in the
applicable UCC) in each Funding Agreement in favor of the Funding Note
Indenture Trustee for the benefit and security of the Secured Parties,
which security interest is prior to all other Liens;
(b) to the extent the UCC applies, each Funding Agreement consists of
"general intangibles," "payment intangibles" and/or "instruments"
within the meaning of the applicable UCC;
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(c) subject to the grant of security interest, pledge and collateral
assignment of Global Funding's estate, right, title and interest in
each Funding Agreement, Global Funding is a party to and is the Person
entitled to payment under each Funding Agreement on the date of the
Funding Note Indenture free and clear of any Lien, claim or
encumbrance of any Person, other then the Lien created under the
Funding Note Indenture or any Lien otherwise permitted under the
Funding Note Indenture;
(d) to the extent the UCC applies, Global Funding has caused or will have
caused, within ten days after the date of the Funding Note Indenture,
the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in each Funding Agreement
granted to the Funding Note Indenture Trustee for the benefit and
security of the Secured Parties under the Funding Note Indenture;
(e) all original executed copies of each instrument that constitutes or
evidences each Funding Agreement have been delivered to the Funding
Note Indenture Trustee or a custodian for the Funding Note Indenture
Trustee (the "Custodian");
(f) where all original executed copies of each instrument that constitutes
or evidences each Funding Agreement have been delivered to the
Custodian, Global Funding has received a written acknowledgment from
the Custodian that, for so long as the Security Interest has not been
terminated pursuant to Section 14.9, the Custodian is holding the
instruments that constitute or evidence each Funding Agreement solely
on behalf of the Funding Note Indenture Trustee;
(g) other than the security interest granted to the Funding Note Indenture
Trustee for the benefit and security of the Secured Parties pursuant
to the Funding Note Indenture, Global Funding has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Funding Agreements;
(h) Global Funding has not authorized the filing of and is not aware of
any financing statements against Global Funding that include a
description of collateral covering the Funding Agreement other than
any financing statement relating to the security interest granted to
the Funding Note Indenture Trustee for the benefit and security of the
Secured Parties under the Funding Note Indenture or that has been
terminated;
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(i) Global Funding is not aware of any judgment or tax lien filings
against Global Funding; and
(j) none of the instruments that constitute or evidence any Funding
Agreement has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Funding Note Indenture Trustee for the benefit and security of the
Secured Parties.
The foregoing representations and warranties shall survive the execution
and delivery of the Funding Note. No party to the Funding Note Indenture shall
waive any of the foregoing representations and warranties. Subject to Section
14.9, Global Funding shall maintain the perfection and priority of the security
interest in each Funding Agreement.
SECTION 14.4 Further Assurances; Covenants.
(a) Global Funding will not change its name, identity or organizational
structure in any manner unless it shall have given the Funding Note
Indenture Trustee at least 30 days' prior notice thereof. Global
Funding will not change the location of its chief executive office or
chief place of business unless it shall have given the Funding Note
Indenture Trustee at least 30 days' prior notice thereof.
(b) Global Funding will, from time to time and upon advice of counsel, at
Global Funding's expense, execute, deliver, file and record any
statement, assignment, instrument, document, agreement or other paper
and take any other action, (including, without limitation, any filings
of financing or continuation statements) that from time to time may be
necessary or desirable, or that the Funding Note Indenture Trustee may
reasonably request, in order to create, preserve, perfect, confirm or
validate the Security Interest or to enable the Holders of the Funding
Note to obtain the full benefits of the Funding Note Indenture, or to
enable the Funding Note Indenture Trustee to exercise and enforce any
of its rights, powers and remedies under the Funding Note Indenture
with respect to any Collateral. To the extent permitted by applicable
law, Global Funding authorizes the Funding Note Indenture Trustee to
execute and file financing statements or continuation statements
without Global Funding's signature appearing thereon. Global Funding
agrees that a carbon, photographic, photostatic or other reproduction
of the Funding Note Indenture or of a financing statement is
sufficient as a financing statement. Global Funding shall pay the
costs of,
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or incidental to, any recording or filing of any financing or
continuation statements concerning any Collateral.
(c) If any Collateral is at any time in the possession or control of any
warehouseman, bailee or any of Global Funding's agents or processors,
Global Funding shall notify such warehouseman, bailee, agent or
processor of the Security Interest created by the Funding Note
Indenture and to hold all such Collateral for the Funding Note
Indenture Trustee's account subject to the Funding Note Indenture
Trustee's instructions.
(d) Global Funding will, promptly upon request, provide to the Funding
Note Indenture Trustee all information and evidence it may reasonably
request concerning the Collateral to enable the Funding Note Indenture
Trustee to enforce the provisions of the Funding Note Indenture.
(e) Not more than six months nor less than 30 days prior to each date on
which Global Funding proposes to take any action contemplated by
Section 14.4(a), Global Funding shall, at its cost and expense, cause
to be delivered to the Funding Note Indenture Trustee an Opinion of
Counsel, satisfactory to the Funding Note Indenture Trustee, to the
effect that all financing statements and amendments or supplements
thereto, continuation statements and other documents required to be
recorded or filed in order to perfect and protect the Security
Interest for a period, specified in such Opinion of Counsel,
continuing until a date not earlier than 18 months from the date of
such Opinion of Counsel, against all creditors of and purchasers from
Global Funding have been filed in each filing office necessary for
such purpose and that all filing fees and taxes, if any, payable in
connection with such filings have been paid in full.
(f) From time to time upon request by the Funding Note Indenture Trustee,
Global Funding shall, at its cost and expense, cause to be delivered
to the Funding Note Indenture Trustee an Opinion of Counsel
satisfactory to the Funding Note Indenture Trustee as to such matters
relating to the Security Interest as the Funding Note Indenture
Trustee or the Holder Representative may reasonably request.
SECTION 14.5 General Authority. Global Funding irrevocably appoints the
Funding Note Indenture Trustee its true and lawful attorney, with full power of
substitution, in the name of Global Funding, the Funding Note Indenture Trustee,
the Holders of the Funding Note or otherwise, for the sole use and benefit of
the Secured
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Parties, but at Global Funding's expense, to the extent permitted by law to
exercise, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect to
all or any of the Collateral:
(a) to demand, ▇▇▇ for, collect, receive and give acquittance for any and
all monies due or to become due thereon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the same or the
proceeds or avails thereof, as fully and effectually as if the Funding
Note Indenture Trustee were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
provided that the Funding Note Indenture Trustee shall give Global Funding not
less than 10 days' prior notice of the time and place of any sale or other
intended disposition of any of the Collateral, except any part of the Collateral
which threatens to decline speedily in value or is of a type customarily sold on
a recognized market.
SECTION 14.6 Remedies Upon Event of Default. If any Event of Default has
occurred and is continuing, the Funding Note Indenture Trustee may exercise on
behalf of the Secured Parties all rights of a secured party under applicable law
and, in addition, the Funding Note Indenture Trustee may, without being required
to give any notice, except as provided in the Funding Note Indenture or as may
be required by mandatory provisions of law, (i) apply all cash, if any, then
held by it as all or part of the Collateral as specified in Section 5.3 and (ii)
if there shall be no such cash or if such cash shall be insufficient to pay all
the Obligations in full, sell the Collateral (including each applicable Funding
Agreement) or any part thereof at public or private sale, for cash, upon credit
or for future delivery, and at such price or prices as the Funding Note
Indenture Trustee may deem satisfactory. Any Holder may be the purchaser of any
or all of the Collateral so sold at any public sale (or, if the Collateral is of
a type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, at any private sale).
Global Funding will execute and deliver such documents and take such other
action as the Funding Note Indenture Trustee deems necessary or advisable in
order that any such sale may be made in compliance with law. Upon any such sale
the Funding Note Indenture Trustee shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral so sold. Each purchaser at any
such sale shall hold the Collateral so sold to it absolutely and free from any
claim or right of whatsoever kind, including any equity or right of redemption
of Global Funding which may be waived, and Global Funding, to the extent
89
permitted by law, specifically waives all rights of redemption, stay or
appraisal which it has or may have under any law. The notice (if any) of such
sale shall (A) in the case of a public sale, state the time and place fixed for
such sale, and (B) in the case of a private sale, state the day after which such
sale may be consummated. Any such public sale shall be held at such time or
times within ordinary business hours and at such place or places as the Funding
Note Indenture Trustee may fix in the notice of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as the
Funding Note Indenture Trustee may determine. The Funding Note Indenture Trustee
shall not be obligated to make any such sale pursuant to any such notice. The
Funding Note Indenture Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be made
at any time or place to which the same may be so adjourned. In the case of any
sale of all or any part of the Collateral on credit or for future delivery, the
Collateral so sold may be retained by the Funding Note Indenture Trustee until
the selling price is paid by the purchaser thereof, but the Funding Note
Indenture Trustee shall not incur any liability in the case of the failure of
such purchaser to take up and pay for the Collateral so sold and, in the case of
any such failure, such Collateral may again be sold upon like notice. The
Funding Note Indenture Trustee, instead of exercising the power of sale
conferred upon it in the Funding Note Indenture, may proceed by a suit or suits
at law or in equity to foreclose a Security Interest and sell any Collateral, or
any portion thereof, under a judgment or decree of a court or courts of
competent jurisdiction.
SECTION 14.7 Limitation on Duties of Funding Note Indenture Trustee with
Respect to Collateral. Beyond the exercise of reasonable care in the custody
thereof, the Funding Note Indenture Trustee shall have no duty as to any portion
of the Collateral in its possession or control or in the possession or control
of any agent or bailee or as to the preservation of rights against prior parties
or any other rights pertaining thereto. The Funding Note Indenture Trustee shall
be deemed to have exercised reasonable care in the custody of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which it accords its own property, and shall not be liable or responsible
for any loss or damage to any of the Collateral, or for any diminution in the
value thereof, by reason of the act or omission of any warehouseman, carrier,
forwarding agency, consignee or other agent or bailee selected by the Funding
Note Indenture Trustee in good faith.
SECTION 14.8 Concerning the Funding Note Indenture Trustee. In furtherance
and not in derogation of the rights, privileges and immunities of the Funding
Note Indenture Trustee specified in the Funding Note Indenture:
(a) the Funding Note Indenture Trustee is authorized to take all such
action as is provided to be taken by it as Funding Note Indenture
Trustee under this Article and all other action reasonably incidental
thereto. As to any matters not expressly provided for in this Article
(including, without limitation, the timing and
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methods of realization upon any Collateral) the Funding Note Indenture
Trustee shall act or refrain from acting in accordance with written
instructions from the Holder or Holders of the required percentage of
the principal amount of the Funding Note for any instructions or, in
the absence of such instructions, in accordance with its discretion;
and
(b) the Funding Note Indenture Trustee shall not be responsible for the
existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Security
Interest in any of the Collateral, whether impaired by operation of
law or by reason of any action or omission to act on its part under
the Funding Note Indenture.
SECTION 14.9 Termination of Security Interest. The Security Interest shall
terminate and all rights to the Collateral shall revert to Global Funding upon:
(i) the repayment in full of all Obligations; or (ii) concurrently with the
payment of the Immediate Redemption Price pursuant to Section 3.1(i). Upon such
termination of the Security Interest, and delivery of a certificate by Global
Funding to such effect, the Funding Note Indenture Trustee will, at the expense
of Global Funding, execute and deliver to Global Funding such documents as
Global Funding shall reasonably request to evidence the termination of the
Security Interest.
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EXHIBIT A-1
FORM OF FUNDING NOTE CERTIFICATE RELATED TO SECURED MEDIUM TERM NOTES
ISSUED UNDER THE
SECURED MEDIUM TERM NOTES PROGRAM
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF FUNDING NOTE CERTIFICATE RELATED TO SECURED MEDIUM TERM NOTES
ISSUED UNDER THE
ALLSTATE LIFE(R) CORENOTES(R) PROGRAM
A-2-1
EXHIBIT B
FORM OF CERTIFICATE OF AUTHENTICATION
This Funding Note Certificate is the Funding Note Certificate
representing the Funding Note described in the within-mentioned Funding Note
Indenture.
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY,
NATIONAL ASSOCIATION, as Funding
Note Indenture Trustee
By:
--------------------------------
Authorized Signatory
Dated:
B-1
EXHIBIT C
FORM OF FUNDING NOTE INDENTURE TRUSTEE REPORT PURSUANT TO SECTION 7.3(f)
Allstate Life Global Funding
Funding Note Indenture Trustee Report for Payment Date -:
1. the amount received by the Funding Note Indenture Trustee as of the last
Payment Date in respect of the principal, interest and premium, if any, on
Funding Agreements issued by Allstate Life Insurance Company ("Allstate
Life"),
2. the amount of payment on such Payment Date to holders allocable to
principal and premium, if any, and interest on the Funding Notes of
Allstate Life Global Funding and the amount of unpaid interest accrued on
such Funding Notes as of such Payment Date.
3. the aggregate original stated principal amount of the Funding Agreements,
the current interest rate thereon at the close of business on such Payment
Date, and
4. the aggregate principal balance of the Funding Notes at the close of
business on such Payment Date.
FUNDING NOTE NO. / FUNDING AGREEMENT NO(S). / CUSIP / ISSUE DATE / MATURITY
/ TYPE / RATE / INTEREST DUE / UNPAID INTEREST ACCRUED / * PRINCIPAL DUE
/ ORIGINAL OUTSTANDING / CURRENT OUTSTANDING(1)
5. the amounts of compensation received by the Funding Note Indenture Trustee
during the period relating to such Payment Date.
Paid by Global Funding: -
Paid by Allstate Life: -
* Principal Due includes any applicable premium.
--------
(1) To be in chart format on actual report. These items are column titles.
C-1