EXHIBIT 4.2
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AMENDED AND RESTATED TRUST AGREEMENT
WITH RESPECT TO
ALLSTATE LIFE GLOBAL FUNDING
DATED AS OF -, 2004
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS...................................................................................1
SECTION 1.1 DEFINITIONS..............................................................................1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS............................................................5
ARTICLE 2 CREATION OF TRUST.............................................................................6
SECTION 2.1 NAME; AMENDMENT AND RESTATEMENT OF BASE TRUST AGREEMENT..................................6
SECTION 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS..............................6
SECTION 2.3 STATUTORY TRUST..........................................................................6
SECTION 2.4 TRUST BENEFICIAL OWNER...................................................................6
SECTION 2.5 PURPOSES OF THE TRUST....................................................................6
SECTION 2.6 ALLOCATION OF TRUST EXPENSES.............................................................7
SECTION 2.7 LIABILITY................................................................................7
SECTION 2.8 SITUS OF TRUST...........................................................................7
ARTICLE 3 PAYMENT ACCOUNT...............................................................................7
ARTICLE 4 FUNDING NOTE..................................................................................8
SECTION 4.1 ISSUANCE OF FUNDING NOTE.................................................................8
SECTION 4.2 ACQUISITION OF FUNDING AGREEMENT(S) AND CANCELLATION OF INDEBTEDNESS
REPRESENTED BY FUNDING NOTE..............................................................8
ARTICLE 5 REPRESENTATIONS AND WARRANTIES BY THE DELAWARE TRUSTEE........................................8
ARTICLE 6 DELAWARE TRUSTEE..............................................................................9
SECTION 6.1 GENERAL AUTHORITY........................................................................9
SECTION 6.2 GENERAL DUTIES..........................................................................13
SECTION 6.3 SPECIFIC DUTIES.........................................................................13
SECTION 6.4 ACCEPTANCE OF TRUST AND DUTIES; LIMITATION ON LIABILITY.................................14
SECTION 6.5 RELIANCE; ADVICE OF COUNSEL.............................................................17
SECTION 6.6 DELEGATION OF AUTHORITIES AND DUTIES....................................................18
ARTICLE 7 TERMINATION..................................................................................18
SECTION 7.1 TERMINATION OF AGREEMENT................................................................18
ARTICLE 8 SUCCESSOR AND ADDITIONAL DELAWARE TRUSTEES...................................................19
SECTION 8.1 ELIGIBILITY REQUIREMENTS FOR THE DELAWARE TRUSTEE.......................................19
SECTION 8.2 RESIGNATION OR REMOVAL OF THE DELAWARE TRUSTEE..........................................19
SECTION 8.3 SUCCESSOR DELAWARE TRUSTEE..............................................................20
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SECTION 8.4 MERGER OR CONSOLIDATION OF
DELAWARE TRUSTEE.............................................21
ARTICLE 9 MISCELLANEOUS PROVISIONS.....................................................................21
SECTION 9.1 LIMITATION ON RIGHTS OF OTHERS..........................................................21
SECTION 9.2 AMENDMENTS..............................................................................21
SECTION 9.3 NOTICES.................................................................................23
SECTION 9.4 NO RECOURSE.............................................................................23
SECTION 9.5 LIMITED RECOURSE........................................................................24
SECTION 9.6 NO PETITION.............................................................................24
SECTION 9.7 GOVERNING LAW...........................................................................24
SECTION 9.8 SEVERABILITY............................................................................24
SECTION 9.9 THIRD PARTY BENEFICIARIES...............................................................24
SECTION 9.10 COUNTERPARTS............................................................................24
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THIS AMENDED AND RESTATED
TRUST AGREEMENT (this "AMENDED AND RESTATED
TRUST
AGREEMENT") dated and effective as of -, 2004, is entered into among the
undersigned
Delaware Trustee (as defined below), the Administrator (as defined
below) and the Trust Beneficial Owner (as defined below):
WHEREAS, the
Delaware Trustee and the Trust Beneficial Owner have entered
into that certain
Trust Agreement, dated as of June 24, 2002 (the "BASE
TRUST
AGREEMENT"), and the parties hereto desire to amend and restate the Base
Trust
Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the covenants set
forth in this Amended and Restated
Trust Agreement, the parties agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms have the meanings set forth
below:
"ADMINISTRATOR" means AMACAR Pacific Corp., a Delaware corporation in its
capacity as the sole administrator of the Trust, and its successors and assigns.
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENTS" has the meaning set forth in the Distribution Agreement.
"ALLSTATE LIFE" means
Allstate Life Insurance Company, a stock insurance
company organized and licensed under the laws of the State of Illinois, and any
successor.
"AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT" means that certain
Amended and Restated Administrative Services Agreement dated as of - , 2004,
between the Administrator and the Trust, as the same may be amended, restated,
modified, supplemented or replaced from time to time.
"AMENDED AND RESTATED CERTIFICATE OF TRUST" means the Amended and Restated
Certificate of Trust of the Trust as filed with the Secretary of State.
"AMENDED AND RESTATED SUPPORT AGREEMENT" means that certain Amended and
Restated Support and Expenses Agreement dated as of - , 2004, between Allstate
Life and the Trust, as the same may be amended, restated, modified, supplemented
or replaced from time to time.
"BUSINESS DAY" means 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.
"CLOSING INSTRUMENT" means the closing instrument of the Trust, pursuant to
which the Indenture is entered into, and certain other documents are executed,
in connection with the issuance of the Notes by the Trust.
"CODE" means the Internal Revenue Code of 1986, as amended, including any
successor or amendatory statutes and any applicable rules, regulations, notices
or orders promulgated thereunder.
"COMMISSION" means the Securities and Exchange Commission or any successor
body.
"CORPORATE TRUST OFFICE" means the principal office of the Delaware Trustee
located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000.
"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).
"DELAWARE STATUTORY TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as amended from time to time.
"DELAWARE TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation, in its capacity as the sole Delaware trustee of the Trust, and its
successors. If there shall be at any time more than one Delaware Trustee under
this Amended and Restated
Trust Agreement, "DELAWARE TRUSTEE" shall mean each
such Delaware Trustee.
"DISTRIBUTION AGREEMENT" means that certain Distribution Agreement dated as
of -, 2004, by and among the Trust and the Agents named therein, as the same may
be amended, restated, modified, supplemented or replaced from time to time.
"FUNDING AGREEMENT(S)" means the funding agreement(s) issued by Allstate
Life to the Trust, which are sold to, and deposited into, each Issuing Trust by
the Trust, and immediately pledged and collaterally assigned by such Issuing
Trust to the Indenture Trustee, as the same may be amended, restated, modified,
supplemented or replaced from time to time in accordance with the terms thereof.
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"FUNDING AGREEMENT EVENT OF DEFAULT" means an "Event of Default" as defined
in the Funding Agreement(s).
"FUNDING NOTE" means each funding note issued by the Trust and sold to an
Issuing Trust in connection with the Trust's Program.
"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.
"HOLDER" means, with respect to any Funding Note, the relevant Issuing
Trust.
"INDENTURE" means an Indenture included in Part A of the relevant Closing
Instrument, between the Issuing Trust and the Indenture Trustee, as the same may
be amended, modified or supplemented from time to time.
"INDENTURE TRUSTEE" means the party named as such in the preamble to each
Indenture, and, subject to the applicable provisions of such Indenture, its
successors.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended, as it may be amended or supplemented from time to time, and any
successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
"ISSUING TRUST" means each Allstate Life Global Funding Trust, together
with its permitted successors and assigns, that issues medium term notes under
the Program.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including without limitation any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the UCC or comparable law of any jurisdiction).
"MOODY'S" means Xxxxx'x Investors Services, Inc.
"NOTE" means each medium term note issued by the Issuing Trusts in
connection with the Program.
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"PAYMENT ACCOUNT" means the segregated non-interest-bearing corporate trust
account for the Trust maintained by the Delaware Trustee in its trust department
in which all amounts paid to the Delaware Trustee will be held and from which
the Delaware Trustee shall make any payments pursuant to Section 3.1(b) and
Article 7 of this Amended and Restated
Trust Agreement, to the extent such
amounts are paid to the Delaware Trustee and deposited in the Payment Account.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, business trust, statutory trust or other
organization, whether or not a legal entity, and governments and agencies and
political subdivisions thereof.
"PROGRAM" means the Trust's program for the issuance, from time to time, of
secured medium term notes through the Issuing Trusts.
"PROGRAM DOCUMENTS" means documents contained in each Series Instrument,
this Amended and Restated Trust Agreement, the Amended and Restated
Administrative Services Agreement, the Amended and Restated Support Agreement,
the Name Licensing Agreement, the Distribution Agreement, the Funding Note and
any other documents or instruments entered into by, or with respect to, or on
behalf of, the Trust.
"RATING AGENCY" means each of Xxxxx'x Investors Services, Inc., Standard &
Poor's Ratings Services, a Division of The XxXxxx-Xxxx Companies, Inc., and any
other rating agency which provides a rating of the Notes.
"RESPONSIBLE OFFICER" means any vice president, assistant vice president,
any assistant secretary, any assistant treasurer, any trust officer or assistant
trust officer, or any other officer of the Delaware Trustee, as the case may be,
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"SECRETARY OF STATE" means the Secretary of State of the State of Delaware.
"SECURITIES ACT" means the Securities Act of 1933, as it may be amended or
supplemented from time to time, and any successor statute thereto, and the
rules, regulations and published interpretations of the Commission promulgated
thereunder from time to time.
"SERIES INSTRUMENT" means the series instrument of each Issuing Trust,
pursuant to which certain documents are executed in connection with the issuance
of Notes by the relevant Issuing Trust.
"STANDARD AND POOR'S" means Standard & Poor's Ratings Services, a Division
of The XxXxxx-Xxxx Companies, Inc.
"TRUST" means Allstate Life Global Funding, a statutory trust organized
under the laws of the State of Delaware.
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"TRUST BENEFICIAL OWNER" means AMACAR Pacific Corp., in its capacity as the
sole beneficial owner of the Trust, and its successors.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as it may be
amended or supplemented from time to time, 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.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS. For all purposes of this Amended
and Restated Trust Agreement except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article shall have the meanings ascribed to
them in this Article and shall include the plural as well as the
singular;
(b) all accounting terms not otherwise defined in this Amended and
Restated Trust Agreement have the meanings assigned to them in
accordance with generally accepted accounting principles in the United
States and, except as otherwise expressly provided in this Amended and
Restated Trust Agreement, the term "generally accepted accounting
principles" with respect to any computation required or permitted
under this Amended and Restated Trust Agreement shall mean such
accounting principles as are generally accepted at the date of such
computation in the United States;
(c) the words "include", "includes" and "including" shall be construed to
be followed by the words "without limitation"; and
(d) Article and Section headings are for the convenience of the reader and
shall not be considered in interpreting this Amended and Restated
Trust Agreement or the intent of the parties to this Amended and
Restated Trust Agreement.
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ARTICLE 2
CREATION OF TRUST
SECTION 2.1 NAME; AMENDMENT AND RESTATEMENT OF BASE TRUST AGREEMENT. The
Trust shall be known as "Allstate Life Global Funding." The Trust's activities
may be conducted under the name of the Trust by the Delaware Trustee or by the
Administrator on behalf of the Trust. This Amended and Restated Trust Agreement
amends and restates the Base Trust Agreement in its entirety.
SECTION 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The principal office of the Trust shall be in care of the Delaware Trustee at
the Corporate Trust Office, or such other address in the State of Delaware as
the Delaware Trustee may designate by written notice to the Trust Beneficial
Owner, the Administrator and the Rating Agencies. The Trust shall also maintain
an office in care of the Administrator at:
c/o AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
SECTION 2.3 STATUTORY TRUST. It is the intention of the parties that the
Trust constitute a statutory trust organized under the Delaware Statutory Trust
Act and that this Amended and Restated Trust Agreement constitute the governing
instrument of the Trust. The Delaware Trustee shall file an Amended and Restated
Certificate of Trust with the Secretary of State.
SECTION 2.4 TRUST BENEFICIAL OWNER. Concurrently with the execution of this
Amended and Restated Agreement, the Trust Beneficial Owner will make a cash
contribution to the Trust in the amount of $1,000 in exchange for its beneficial
interest in the Trust. The beneficial interest of the Trust Beneficial Owner in
the Trust will not be represented by any certificate or other instrument. The
Trust Beneficial Owner shall be the beneficial owner of the Trust and shall have
an undivided beneficial ownership interest in the property related to the Trust.
To the fullest extent permitted by law, any attempted transfer of the Trust
Beneficial Owner's interest in the Trust shall be void.
SECTION 2.5 PURPOSES OF THE TRUST. The exclusive purposes and functions of
the Trust are, and the Trust shall have the power and authority, to:
(a) beneficially own each Issuing Trust;
(b) issue a Funding Note to each Issuing Trust in connection with the
Program;
(c) use the net proceeds from the sale of each Funding Note to acquire
Funding Agreement(s) from Allstate Life;
(d) assign absolutely the Funding Agreement(s) to, and deposit such
Funding Agreement(s) into, the relevant Issuing;
(e) file with the Commission and execute (a) a registration statement on
Form S-3 or other appropriate form, including the prospectus,
prospectus supplements and the
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exhibits thereto, any pre-effective or post-effective amendments
thereto and any registration statements filed subsequent thereto under
rules promulgated under the Securities Act, relating to the
registration of the Notes and the Funding Notes under the Securities
Act, (b) any preliminary prospectus or prospectus or supplement
thereto relating to any Notes and the Funding Notes required to be
filed pursuant to the Securities Act, and (c) registration statements
and such other documents, forms or filings as may be required by the
Securities Act, the Securities Exchange Act of 1934, as amended, or
the Trust Indenture Act of 1939, as amended, or other securities laws
in each case relating to any Notes and the Funding Notes;
(f) file and execute such filings, applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process
and other papers and documents as may be necessary or desirable to
register, or establish the exemption from registration of, the Notes
or the Funding Notes under the securities or "Blue Sky" laws of any
relevant jurisdictions; and
(g) engage in other activities and enter into other agreements, in each
case that are necessary, suitable or convenient to accomplish the
foregoing or are incidental to or connected with those activities,
including the execution, delivery and performance of the Series
Instrument, the Closing Instrument and the Program Documents to
which it is a signatory.
SECTION 2.6 ALLOCATION OF TRUST EXPENSES. Any costs and expenses of the
Trust shall be paid by Allstate Life pursuant to the Amended and Restated
Support Agreement to the extent provided therein.
SECTION 2.7 LIABILITY. None of the Delaware Trustee, the Administrator, the
Trust Beneficial Owner or any Holder shall have any personal liability for any
liability or obligation of the Trust.
SECTION 2.8 SITUS OF TRUST. The Trust shall be located in the State of
Delaware. The Trust shall have the right to change its domicile from Delaware to
any other jurisdiction. All bank accounts maintained by the Delaware Trustee on
behalf of the Trust shall be located in the State of Delaware. The Trust shall
not have any employees in any state other than in the State of Delaware.
ARTICLE 3
PAYMENT ACCOUNT
(a) The Delaware Trustee shall establish the Payment Account. The Delaware
Trustee and any agent of the Delaware Trustee shall have exclusive
control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Amended and Restated Trust
Agreement. All funds and other property deposited or held from time to
time in the Payment Account shall be held by the Delaware Trustee in
the Payment Account for the exclusive benefit of the Trust Beneficial
Owner, and for distribution by the Delaware Trustee as provided in
this
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Amended and Restated Trust Agreement, including (and subject to) any
priority of payments provided for in this Amended and Restated Trust
Agreement.
(b) All funds and other property deposited into the Payment Account shall
be distributed by the Trust as follows:
FIRST, for the payment of all amounts then due and unpaid upon any Funding
Note and any other amounts due and payable; and
SECOND, any remaining funds and other property deposited into the Payment
Account shall be distributed to the Trust Beneficial Owner.
(c) The Delaware Trustee shall deposit in the Payment Account, promptly
upon receipt, any assets received. Amounts held in the Payment Account
shall not be invested by the Delaware Trustee pending the distribution
of such amounts to cover any obligations of the Trust on the Funding
Notes.
ARTICLE 4
FUNDING NOTE
SECTION 4.1 ISSUANCE OF FUNDING NOTE. The Trust shall, issue and deliver or
cause to be issued and delivered Funding Notes from time to time in connection
with the Program.
SECTION 4.2 ACQUISITION OF FUNDING AGREEMENT(S) AND CANCELLATION OF
INDEBTEDNESS REPRESENTED BY FUNDING NOTE. In connection with the issuance and
sale of each Funding Note: (i) the Trust will use the proceeds received from the
offering of such Funding Note to purchase Funding Agreement(s); and (ii) the
Trust will immediately assign absolutely to, and deposit into, the relevant
Issuing Trust the Funding Agreement(s), and the Funding Note will be
surrendered.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES BY THE DELAWARE TRUSTEE
The Delaware Trustee represents and warrants for the benefit of each Holder
and the Trust Beneficial Owner as follows:
(a) it is a banking corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and it is a
"bank" within the meaning of Section 581 of the Code;
(b) it is a "United States person" within the meaning of Section
7701(a)(30) of the Code;
(c) it has full corporate or other power, authority and legal right to
execute, deliver and perform its obligations under this Amended and
Restated Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Amended and Restated Trust Agreement;
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(d) this Amended and Restated Trust Agreement has been duly authorized,
executed and delivered by it and constitutes the valid and legally
binding agreement of it enforceable against it in accordance with its
terms;
(e) neither the execution or delivery by it of this Amended and Restated
Trust Agreement, nor the performance by it of its obligations under
this Amended and Restated Trust Agreement, will (i) violate its
organizational documents, (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under,
or result in the creation or imposition of any Lien on any properties
or assets held in the Trust pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other contract,
agreement, judgment, order or instrument to which it is a party or by
which it is bound, or (iii) violate any law, governmental rule or
regulation of the State of Delaware or the United States governing the
banking, trust or general powers of it or any order, judgment or
decree applicable to it;
(f) the authorization, execution or delivery by it of this Amended and
Restated Trust Agreement and the consummation of any of the
transactions by it contemplated by this Amended and Restated Trust
Agreement do not require the consent or approval of, the giving of
notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency (other than the
filing of the Certificate of Trust with the Secretary of State); and
(g) there are no proceedings pending or, to the best of its knowledge,
threatened against or affecting it in any court or before any
governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of
it to enter into or perform its obligations under this Amended and
Restated Trust Agreement.
ARTICLE 6
DELAWARE TRUSTEE
SECTION 6.1 GENERAL AUTHORITY.
(a) The Delaware Trustee is authorized and empowered, among other things,
to (i) execute and deliver on behalf of the Trust the Program
Documents and each certificate or other document attached as an
exhibit to, or contemplated by, the Program Documents and any
amendment or other agreement to any of the Program Documents, (ii)
take all actions required of the Trust pursuant to the Program
Documents including, but not limited to (A) paying, or causing to be
paid, on behalf of the Trust any amounts due and owing by the Trust
under the Program Documents or any other documents or instruments to
which the Trust is a party, (B) providing certificates required under
the Program Documents or other documents or instruments to which the
Trust is a party and (C) preparing for execution or executing
amendments to and waivers under the Program Documents or any other
documents or instruments deliverable by the Trust thereunder or in
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connection therewith or with this Amended and Restated Trust
Agreement, (iii) cause the Trust to perform under the Program
Documents and (iv) engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or any other of the purposes of the Trust or are
incidental thereto or connected therewith including, from time to
time, taking such action on behalf of the Trust as is permitted by the
Program Documents. In addition to any other duties under this Amended
and Restated Trust Agreement, the Delaware Trustee shall be the
trustee of the Trust for the purpose of fulfilling the requirements of
Section 3807 of the Delaware Statutory Trust Act. Subject to the
limitations set forth in Section 6.1(b), the Delaware Trustee shall
have the power and authority to act on behalf of the Trust, with
respect to the following matters:
(i) to execute and deliver on behalf of the Trust the Funding
Notes and the Amended and Restated Certificate of Trust in
accordance with this Amended and Restated Trust Agreement;
(ii) to cause the Trust to perform this Amended and Restated Trust
Agreement and to enter into, and to execute, deliver and
perform, the Funding Notes, the relevant documents contained
in each Series Instrument, the Distribution Agreement, the
Name Licensing Agreement, the Amended and Restated Support
Agreement, the Amended and Restated Administrative Services
Agreement and such other certificates, other documents or
agreements as may be necessary, contemplated by or desirable
in connection with the purposes and function of the Trust or
any of the above-referenced documents;
(iii) to receive custody of Funding Agreements and to exercise all
of the rights, powers and privileges of an owner or
policyholder of the Funding Agreements;
(iv) to cause the Trust to immediately assign absolutely to, and
deposit into, the Issuing Trust the relevant Funding
Agreement(s);
(v) to establish the Payment Account;
(vi) to send any notices regarding any Funding Note to Allstate
Life, the Rating Agencies, the Trust Beneficial Owner and the
applicable Agents under the relevant Terms Agreement in
accordance with the terms of the relevant Funding Note and
this Amended and Restated Trust Agreement;
(vii) after the occurrence of a Funding Agreement Event of Default
actually known to a Responsible Officer, to take any action as
it may from time to time determine (based solely upon the
advice of counsel) is necessary or advisable to give effect to
the terms of this Amended and Restated Trust Agreement
(without consideration of the effect of any such action on any
particular Holder) and, within five Business Days after the
occurrence of a
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Funding Agreement Event of Default actually known to a
Responsible Officer, to give notice thereof to the
Administrator and the Trust Beneficial Owner;
(viii) to the extent permitted by this Amended and Restated Trust
Agreement, to participate in the winding up of the affairs of
and liquidation of the Trust and assist with the preparation,
execution and filing of a certificate of cancellation with the
Secretary of State;
(ix) to take any action and to execute any documents on behalf of
the Trust, incidental to the foregoing as the Delaware Trustee
may from time to time determine (based on the advice of
counsel) is necessary or advisable to give effect to the terms
of this Amended and Restated Trust Agreement;
(x) to execute and file documents with the Secretary of State; and
(xi) to accept service of process on behalf of the Trust in the
State of Delaware.
It is expressly understood and agreed that the Delaware Trustee shall be
entitled to engage outside counsel, independent accountants and other experts
appointed with due care to assist the Delaware Trustee in connection with the
performance of its duties and powers set forth in this Section 6.1(a),
including, without limitation, certificates, reports, opinions, notices or
any other documents. The Delaware Trustee shall be entitled to rely
conclusively on the advice of such counsel, accountants and other experts in
the performance of all its duties under this Amended and Restated Trust
Agreement and shall have no liability for any documents prepared by such
counsel, accountants or experts or any action or inaction taken pursuant to
the advice of such counsel, accountants or experts. Any expenses of such
counsel, accountants and experts shall be paid by the Trust.
(b) So long as this Amended and Restated Trust Agreement remains in
effect, the Trust (and the Delaware Trustee and the Administrator
acting on behalf of the Trust) shall not undertake any business,
activity or transaction except as expressly provided for or
contemplated by this Amended and Restated Trust Agreement. In
particular, the Trust shall not:
(i) sell, transfer, exchange, assign, lease, convey or otherwise
dispose of any assets held in the Trust, except for Funding
Agreements (as of the date of this Amended and Restated Trust
Agreement or thereafter acquired);
(ii) engage in any business or activity other than in connection
with, or relating to, (A) the performance of this Amended and
Restated Trust Agreement and the execution, delivery and
performance of any documents, including the Program Documents
(other than this Amended and Restated Trust Agreement as set
forth above), relating to the Funding Notes and the
transactions contemplated thereby and (B) any activities,
including entering into agreements that are necessary,
suitable or
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convenient to accomplish the purposes of the Trust specified
in Section 2.5;
(iii) incur, directly or indirectly, any Debt except for the Funding
Note;
(iv) create, incur, assume or permit any Lien or other encumbrance
on any of its properties or assets owned or thereafter
acquired, or any interest therein or the proceeds thereof;
(v) amend, modify or fail to comply with any material provision of
this Amended and Restated Trust Agreement, except for any
amendment or modification of this Amended and Restated Trust
Agreement expressly permitted under this Amended and Restated
Trust Agreement;
(vi) own any subsidiary, except for the Issuing Trusts, or lend or
advance any funds to, or make any investment in, any Person,
except in connection with the Funding Agreements, the Funding
Notes, the Amended and Restated Support Agreement and any
Funding Agreement;
(vii) directly or indirectly declare or make any distribution or
other payment to, or redeem or otherwise acquire or retire for
value the interests of, the Trust Beneficial Owner if any
amount under the Funding Notes or the Notes is due and unpaid,
or directly or indirectly redeem or otherwise acquire or
retire for value any Debt other than any Funding Note if any
Funding Note remains outstanding;
(viii) become required to register as an "investment company" under
and as such term is defined in the Investment Company Act of
1940, as amended;
(ix) enter into any transaction of merger or consolidation or
liquidate or dissolve itself (or, to the fullest extent
permitted by law, suffer any liquidation or dissolution), or
acquire by purchase or otherwise all or substantially all the
business or assets of, or any stock or other evidence of
beneficial ownership of, any Person, except for the Issuing
Trusts;
(x) take any action that would cause the Trust not to be either
ignored or treated as a grantor trust for United States
Federal income tax purposes;
(xi) have any employees other than the Delaware Trustee, the
Administrator or any other persons necessary to conduct its
business and enter into transactions contemplated under the
Program Documents;
(xii) have an interest in any bank account other than those accounts
required under the Program Documents;
(xiii) permit any Affiliate, employee or officer of Allstate Life or
any agent of Allstate Life or Agent to be a trustee of the
Trust;
12
(xiv) issue any Funding Note unless (A) the Trust has purchased or
will simultaneously purchase the relevant Funding Agreement(s)
from Allstate Life and (B) the Trust will immediately
thereafter assign absolutely the relevant Funding Agreement(s)
to the relevant Issuing Trust, and the relevant Funding Note
will be surrendered; or
(xv) commingle any of its assets with assets of any of the Trust's
Affiliates, or guarantee any obligation of any of the Trust's
Affiliates.
(c) Notwithstanding any other provision of this Amended and Restated Trust
Agreement, the Delaware Trustee and the Administrator, acting on
behalf of the Trust, shall not take any action that would cause the
Trust not to be either ignored or treated as a "grantor trust" for
United States Federal income tax purposes.
(d) The Delaware Trustee shall, based on the advice of counsel, defend
against all claims and demands of all Persons at any time claiming any
Lien on any of the assets of the Trust adverse to the interest of the
Trust or any Holder.
(e) The Delaware Trustee is authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not (i)
become required to register as an "investment company" under the
Investment Company Act or (ii) fail to be either ignored or treated as
a grantor trust for United States Federal income tax purposes. In
connection with the preceding sentence, the Delaware Trustee shall
have no duty to determine whether any action it takes complies with
the preceding sentence and shall be entitled to rely conclusively on
an opinion of counsel with respect to any such matters.
SECTION 6.2 GENERAL DUTIES. It shall be the duty of the Delaware Trustee to
discharge, or cause to be discharged, all of its responsibilities pursuant to
the terms of this Amended and Restated Trust Agreement, or any other documents
or instruments to which it is a party, and to administer the Trust, in
accordance with the provisions of this Amended and Restated Trust Agreement and
the other Program Documents and any other documents or instruments to which the
Trust is a party. Notwithstanding the foregoing, the Delaware Trustee shall be
deemed to have discharged its duties and responsibilities under this Amended and
Restated Trust Agreement and any other documents or instruments to which the
Trust is a party to the extent (a) such duties and responsibilities shall have
been performed by the Administrator and (b) the Administrator is required or
permitted under this Amended and Restated Trust Agreement, under the
Administrative Services Agreement or under any other documents or instruments to
which the Trust is a party, to perform such act or discharge such duty of the
Delaware Trustee or the Trust; PROVIDED, HOWEVEr, that the Delaware Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its required obligations under this Amended and Restated Trust
Agreement or thereunder but only to the extent such obligations are not also
required to be carried out by the Delaware Trustee.
SECTION 6.3 SPECIFIC DUTIES. The Delaware Trustee will manage the business
and affairs of the Trust in accordance with the terms of the Delaware Statutory
Trust Act; PROVIDED, HOWEVER, that the Delaware Trustee undertakes to perform
only such duties as are specifically set
13
forth in this Amended and Restated Trust Agreement and as it may be directed
from time to time by the Administrator or the Trust Beneficial Owner in
accordance with the terms of this Amended and Restated Trust Agreement.
SECTION 6.4 ACCEPTANCE OF TRUST AND DUTIES; LIMITATION ON LIABILITY. The
Delaware Trustee agrees to perform its duties under this Amended and Restated
Trust Agreement with respect to the Trust, but only upon the terms of this
Amended and Restated Trust Agreement. No implied covenants or obligations
shall be read into this Amended and Restated Trust Agreement. The Delaware
Trustee shall not be liable under this Amended and Restated Trust Agreement
under any circumstances except for (i) its own willful misconduct, bad faith
or gross negligence, (ii) its failure to use ordinary care to disburse funds,
or (iii) the inaccuracy of any representation or warranty contained in this
Amended and Restated Trust Agreement expressly made by the Delaware Trustee.
In particular (but without limitation), subject to the exceptions set forth
in the preceding sentence:
(a) the Delaware Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless such error of
judgment constitutes gross negligence;
(b) the Delaware 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 written instructions of the Administrator or the Trust Beneficial
Owner or pursuant to the advice of counsel, accountants or other
experts selected by it in good faith, so long as such action or
omission is consistent with the terms of this Amended and Restated
Trust Agreement;
(c) no provision of this Amended and Restated Trust Agreement shall
require the Delaware Trustee to expend or risk personal funds or
otherwise incur any financial liability in the performance of any of
its rights or powers under this Amended and Restated Trust Agreement
if the Delaware Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Delaware Trustee be liable for
indebtedness or other obligations evidenced by or arising under this
Amended and Restated Trust Agreement, any Funding Agreement or any
related document, including the principal of and interest on the
Funding Note;
(e) the Delaware Trustee shall not be responsible for, or in respect of,
the validity or sufficiency of this Amended and Restated Trust
Agreement or any related document or for the due execution of this
Amended and Restated Trust Agreement or thereof by any party (except
by the Delaware Trustee itself), other than, the signature and
countersignature of the Delaware Trustee on any of the Program
Documents and the execution of any certificate;
(f) the Delaware Trustee shall (i) not be liable for any action, inaction,
default or misconduct of the Administrator under the Funding Note or
any related
14
documents or otherwise, and (ii) not have any obligation or liability
to perform the obligations of the Trust under this Amended and
Restated Trust Agreement or any related document or under any Federal,
state, foreign or local tax or securities law, in each case, that are
required to be performed by other Persons, including the Administrator
under the Amended and Restated Administrative Services Agreement;
(g) the Delaware Trustee shall not be liable for any action, inaction,
default or misconduct of Allstate Life, and the Delaware Trustee shall
not have any obligation or liability to perform the obligations of
Allstate Life under the Funding Agreements or any related documents;
(h) the Delaware Trustee shall not be under any obligation to exercise any
of the rights or powers vested in it by this Amended and Restated
Trust Agreement, or to institute, conduct or defend any litigation
under this Amended and Restated Trust Agreement or otherwise or in
relation to this Amended and Restated Trust Agreement or any related
document, at the request, order or direction of any Person unless such
Person has offered to the Delaware Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Delaware Trustee. The right of the Delaware
Trustee to perform any discretionary act enumerated in this Amended
and Restated Trust Agreement or in any related document shall not be
construed as a duty, and the Delaware Trustee shall not be answerable
in connection therewith other than for its gross negligence or willful
misconduct in the performance of any such act;
(i) except as expressly provided in this Amended and Restated Trust
Agreement, in accepting the trusts created by this Amended and
Restated Trust Agreement, the Delaware Trustee acts solely as trustee
under this Amended and Restated Trust Agreement and not in its
individual capacity, and all Persons having any claim against the
Delaware Trustee by reason of the transactions contemplated by this
Amended and Restated Trust Agreement shall look only to the Trust's
property for payment or satisfaction thereof;
(j) the Delaware Trustee shall in no event assume or incur any liability,
duty or obligation to the Administrator, the Trust Beneficial Owner or
any other Person other than as expressly provided for in this Amended
and Restated Trust Agreement;
(k) the Delaware 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, direction, consent,
order, bond, debenture, note or other paper or document;
(l) every provision of this Amended and Restated Trust Agreement relating
to the Delaware Trustee shall be subject to the provisions of this
Article 6;
15
(m) except in accordance with the written instructions furnished by the
Trust Beneficial Owner or as provided in this Amended and Restated
Trust Agreement, the Delaware Trustee shall have no duty (i) to see to
any recording or filing of any document, (ii) to confirm or verify any
financial statements of the Administrator or the Trust Beneficial
Owner, (iii) to inspect the Administrator's or the Trust Beneficial
Owner's books and records at any time or (iv) to see to the payment or
discharge of any tax, assessment or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or
levied against any part of the Trust, except to the extent the
Delaware Trustee has received funds, on behalf of the Trust, pursuant
to the Amended and Restated Support Agreement from Allstate Life in
satisfaction of any such tax, assessment or other governmental charge
or any lien or encumbrance of any kind and in accordance with payment
or transfer instructions provided by Allstate Life;
(n) the Delaware Trustee shall have no duty or obligation to manage,
control, use, sell, dispose of or otherwise deal with the Trust or to
otherwise take or refrain from taking any action under this Amended
and Restated Trust Agreement, except as expressly required by the
terms of this Amended and Restated Trust Agreement, or as expressly
provided in written instructions from the Administrator, and in no
event shall the Delaware Trustee have any implied duties or
obligations under this Amended and Restated Trust Agreement; the
Delaware Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any
liens on any part of the property of the Trust which result from
claims against the Delaware Trustee personally that are not related to
the ownership or the administration of the property of the Trust or
the transactions contemplated by the Program Documents;
(o) the Delaware Trustee shall not be required to take any action under
this Amended and Restated Trust Agreement unless the Delaware Trustee
shall have been indemnified by the Trust, in manner and form
satisfactory to the Delaware Trustee, against any liability, cost or
expenses (including counsel fees and disbursements) which may be
incurred in connection therewith, and, in addition, the Trust shall
pay the reasonable compensation of the Delaware Trustee for the
services performed; PROVIDED, THAT the Delaware Trustee shall not be
indemnified by any Person for the Delaware Trustee's willful
misconduct, bad faith or gross negligence, its failure to use
ordinary care to disburse funds or the inaccuracy of its own
representations or warranties, made in its individual capacity,
contained in this Amended and Restated Trust Agreement;
(p) the Delaware Trustee shall not be required to take any action under
this Amended and Restated Trust Agreement if the Delaware Trustee
shall reasonably determine or shall have been advised by counsel that
such action is contrary to the terms of this Amended and Restated
Trust Agreement or is otherwise contrary to law;
(q) the Delaware Trustee may fully rely upon and shall have no liability
in connection with calculations or instructions forwarded to the
Delaware Trustee by the Administrator, nor shall the Delaware Trustee
have any obligation to furnish
16
information to any Person if it has not received such information as
it may need from the Administrator or any other Person;
(r) the Delaware Trustee shall not be liable with respect to any act or
omission in good faith in accordance with the advice or direction of
the Administrator. Whenever the Delaware Trustee is unable to decide
between alternative courses of action permitted or required by the
terms of this Amended and Restated Trust Agreement, or is unsure as to
the application, intent, interpretation or meaning of any provision of
this Amended and Restated Trust Agreement, the Delaware Trustee may
give notice (in such form as shall be appropriate under the
circumstances) to the Administrator requesting instructions as to the
course of action to be adopted, and, to the extent the Delaware
Trustee acts in good faith in accordance with any such instruction
received, the Delaware Trustee shall not be liable on account of such
action to any Person. If the Delaware Trustee shall not have received
appropriate instructions within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances), it may, but shall
be under no duty to, take or refrain from taking such action which is
consistent, in its view, with this Amended and Restated Trust
Agreement and as it shall deem to be in the best interest of the Trust
Beneficial Owner, and the Delaware Trustee shall have no liability to
any Person for such action or inaction;
(s) in no event whatsoever shall the Delaware Trustee be personally liable
for any representation, warranty, covenant, agreement, indebtedness or
other obligation of the Trust;
(t) the Delaware Trustee shall incur no liability if, by reason of any
provision of any present or future law or regulation thereunder, or by
any force majeure event, including but not limited to natural
disaster, war or other circumstances beyond its control, the Delaware
Trustee shall be prevented or forbidden from doing or performing any
act or thing which the terms of this Amended and Restated Trust
Agreement provide shall or may be done or performed; and
(u) notwithstanding anything contained herein to the contrary, the
Delaware Trustee shall not be required to execute, deliver or
certify on behalf of the Trust any filings, certificates,
affidavits or other instruments required under the Xxxxxxxx-Xxxxx
Act of 2002.
SECTION 6.5 RELIANCE; ADVICE OF COUNSEL.
(a) The Delaware Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper
reasonably believed by it in good faith to be genuine and signed by
the proper party or parties. The Delaware Trustee may accept a
certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the manner of
ascertainment of which is not specifically prescribed in this Amended
and Restated Trust Agreement, the Delaware Trustee may for all
purposes of this Amended and Restated Trust Agreement rely on a
certificate, signed by the president or any vice president or by the
treasurer or any assistant treasurer or the secretary or any assistant
17
secretary of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Delaware Trustee
for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the Trust, the Delaware Trustee
(i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them; PROVIDED THAT, the Delaware
Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been
selected by the Delaware Trustee in good faith and with reasonable
care, and (ii) may consult with counsel, accountants and other skilled
persons to be selected in good faith and with reasonable care and
employed by it, and it shall not be liable for anything done, suffered
or omitted to be done in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other
skilled persons.
SECTION 6.6 DELEGATION OF AUTHORITIES AND DUTIES. The Delaware Trustee
delegates to the Administrator all duties required to be performed by the
Administrator pursuant to the terms of this Amended and Restated Trust Agreement
and the Administrative Services Agreement. The Delaware Trustee undertakes no
responsibility for the performance, or non-performance, of any duties delegated
to the Administrator under this Amended and Restated Trust Agreement or the
Amended and Restated Administrative Services Agreement, as applicable.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION OF AGREEMENT. This Amended and Restated Trust
Agreement and the Trust created by this Amended and Restated Trust Agreement
shall dissolve, wind-up and terminate in accordance with Section 3808 of the
Delaware Statutory Trust Act upon the latest to occur of:
(a) the payment to the Holders of any outstanding Funding Notes, to the
holders of all series of Notes and to the Trust Beneficial Owner of
all amounts required to be paid pursuant to the Funding Notes, the
Notes, any Indenture, this Amended and Restated Trust Agreement and
the Program Documents;
(b) the payment of, or reasonable provision for payment of, all expenses
and other liabilities owed by the Trust; and
(c) the performance of all administrative actions by the Delaware Trustee
and the Administrator necessary to accomplish the purposes of the
Trust, including the performance of any tax reporting obligations with
respect to the Trust.
Any insolvency event, liquidation, dissolution, death or incapacity with
respect to the Trust Beneficial Owner, the Delaware Trustee, the Administrator
or any of the other Agents or any Holder shall neither (i) operate to terminate
this Amended and Restated Trust Agreement, the Trust, (ii) entitle any of their
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust, (iii) otherwise affect the rights, obligations and liabilities of the
Holders or the parties hereto or any other document or any instrument entered
into by the Trust, nor (iv) dissolve the Trust.
18
The Trust shall dissolve only as provided in this Section 7.1, and
otherwise no Person, including the Administrator and the Trust Beneficial Owner,
shall be entitled to revoke or dissolve the Trust. The Administrator shall act
as the liquidator of the Trust and shall be responsible for directing the
Delaware Trustee to take all required actions in connection with winding up the
Trust. The Delaware Trustee shall have no liability for following such direction
to the extent it acts in good faith.
Upon the last event to occur as described above, the Delaware Trustee shall
cause the Amended and Restated Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Delaware Statutory Trust Act, at which time
the Trust and this Amended and Restated Trust Agreement shall terminate.
ARTICLE 8
SUCCESSOR AND ADDITIONAL DELAWARE TRUSTEES
SECTION 8.1 ELIGIBILITY REQUIREMENTS FOR THE DELAWARE TRUSTEE. The Delaware
Trustee shall at all times (a) be a Person satisfying the provisions of Section
3807(a) of the Delaware Statutory Trust Act, (b) be authorized to exercise
corporate trust powers, (c) have a combined capital and surplus of at least
$50,000,000 and be subject to supervision or examination by Federal or State
authorities, (d) have (or have a parent which has) a rating of at least Baa3 by
Moody's or BBB- by Standard & Poor's, (e) be a "bank" within the meaning of
Section 581 of the Code and (f) be a "United States person" within the meaning
of Section 7701(a)(30) of the Code. In addition, the Delaware Trustee shall be
an entity with its Corporate Trust Office in the State of Delaware. If the
Delaware Trustee shall publish reports of condition at least annually, pursuant
to applicable law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 8.1, the combined
capital and surplus of the Delaware Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Delaware Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.1, the Delaware Trustee shall
resign immediately in the manner and with the effect specified in Section 8.2.
SECTION 8.2 RESIGNATION OR REMOVAL OF THE DELAWARE TRUSTEE. The Delaware
Trustee may resign as Delaware Trustee, or the Administrator, acting on behalf
of the Trust, may, in its sole discretion, remove the Delaware Trustee, in each
case with thirty (30) days' prior notice to the Delaware Trustee, the Indenture
Trustee and each Rating Agency then rating the Program or the Notes. Upon any
resignation or removal of the Delaware Trustee, the Administrator, acting on
behalf of the Trust, shall appoint a successor Delaware Trustee whereupon such
successor Delaware Trustee shall succeed to the rights, powers and duties of the
Delaware Trustee, and the term "Delaware Trustee" shall thereupon mean such
successor Delaware Trustee effective upon such appointment and approval, and the
predecessor Delaware Trustee's powers and duties as Delaware Trustee shall be
terminated, without any other or further act or deed on the part of such
predecessor Delaware Trustee or any of the parties to this Amended and Restated
Trust Agreement or any holders of the obligations owing hereunder; PROVIDED,
that if at any time the Delaware Trustee shall cease to be eligible in
accordance with Section 8.1 and shall have not resigned, or if at any time the
Delaware Trustee, shall become incapable of acting or shall be adjudged bankrupt
or insolvent, or a receiver for the Delaware Trustee or for its property shall
be
19
appointed, or any public officer shall take charge or control of the Delaware
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Delaware
Trustee. On and after the effective date of any resignation or removal of the
Delaware Trustee hereunder, the provisions of this Article 8 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Delaware Trustee under this Amended and Restated Trust Agreement. Any such
resignation or removal shall become effective following the appointment of a
successor Delaware Trustee in accordance with the provisions of this Section
8.2.
If no successor Delaware Trustee shall be appointed and shall have accepted
such appointment within thirty (30) days after the aforesaid notice of
resignation or removal, the Trust (or the Administrator, acting on its behalf)
or the resigning Delaware Trustee may apply to any court of competent
jurisdiction to appoint a successor Delaware Trustee to act until such time, if
any, as a successor Delaware Trustee shall have been appointed as provided in
this Section 8.2. Any successor so appointed by such court shall immediately and
without further act be superseded by any successor Delaware Trustee appointed
pursuant to this Section 8.2.
Any resignation or removal of the Delaware Trustee and appointment of a
successor Delaware Trustee pursuant to any of the provisions of this Section 8.2
shall not become effective until all fees and expenses, including any indemnity
payments, due to the outgoing Delaware Trustee have been paid and until
acceptance of appointment by the successor Delaware Trustee pursuant to Section
8.3.
If at any time the Delaware Trustee shall resign or be removed or otherwise
become incapable of acting, or if at any time a vacancy shall occur in the
office of the Delaware Trustee for any other cause, a successor Delaware Trustee
shall be appointed as set forth in this Section 8.2. The powers, duties,
authority and title of the predecessor Delaware Trustee shall be terminated and
canceled without any formality (except as may be required by applicable law)
other than appointment and designation of a successor Delaware Trustee in
writing duly acknowledged and delivered to the predecessor Delaware Trustee and
the Trust.
SECTION 8.3 SUCCESSOR DELAWARE TRUSTEE. Each successor Delaware Trustee
appointed pursuant to Section 8.2 shall execute, acknowledge and deliver to the
Administrator, the Trust Beneficial Owner and the predecessor Delaware Trustee
an instrument accepting such appointment under this Amended and Restated Trust
Agreement, and thereupon the resignation or removal of the predecessor Delaware
Trustee shall become effective, the resigning Delaware Trustee shall be released
of all duties and trusts under this Amended and Restated Trust Agreement and
such successor Delaware Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties, and obligations
of its predecessor under this Amended and Restated Trust Agreement, with like
effect as if originally named as Delaware Trustee. The predecessor Delaware
Trustee shall deliver to the successor Delaware Trustee all documents and
statements and funds held by it under this Amended and Restated Trust Agreement;
and the Administrator and the predecessor Delaware Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Delaware Trustee
all such rights, powers, duties and obligations.
20
Any successor Delaware Trustee appointed under this Amended and Restated
Trust Agreement shall promptly file an amendment to the Amended and Restated
Certificate of Trust with the Secretary of State identifying the name and
principal place of business of such successor Delaware Trustee in the State of
Delaware.
No successor Delaware Trustee shall accept appointment as provided in this
Section 8.3 unless at the time of such acceptance such successor Delaware
Trustee shall be eligible pursuant to Section 8.1.
Upon acceptance of appointment by a successor Delaware Trustee pursuant to
this Section 8.3, the Administrator shall mail notice of such appointment to the
Indenture Trustee and each Rating Agency then rating the Program or the Notes.
If the Administrator shall fail to mail such notice within ten (10) days after
acceptance of appointment by the successor Delaware Trustee, the successor
Delaware Trustee shall cause such notice to be mailed in the manner aforesaid.
SECTION 8.4 MERGER OR CONSOLIDATION OF DELAWARE TRUSTEE. Any Person into
which the Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Delaware Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Delaware Trustee, shall, without the execution or filing of any instrument or
any further act on the part of any of the parties to this Amended and Restated
Trust Agreement, anything in this Amended and Restated Trust Agreement to the
contrary notwithstanding, be the successor of the Delaware Trustee under this
Amended and Restated Trust Agreement; PROVIDED, such Person shall be eligible
pursuant to Section 8.1.
ARTICLE 9
MISCELLANEOUS PROVISIONS
SECTION 9.1 LIMITATION ON RIGHTS OF OTHERS.
The death, bankruptcy, termination, dissolution or incapacity of any Person
having an interest, beneficial or otherwise, in the Trust shall not operate to
terminate this Amended and Restated Trust Agreement, nor to annul, dissolve or
terminate the Trust, nor to entitle the legal successors, representatives or
heirs of any such Person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the arrangements
contemplated by this Amended and Restated Trust Agreement, nor otherwise affect
the rights, obligations and liabilities of the parties to this Amended and
Restated Trust Agreement or any of them.
SECTION 9.2 AMENDMENTS.
(a) This Amended and Restated Trust Agreement may be amended from time to
time by the Delaware Trustee and the Administrator by a written
instrument executed by the Delaware Trustee and the Administrator, in
any way that is not inconsistent with the intent of this Amended and
Restated Trust Agreement, including, without limitation to: (i) cure
any ambiguity, (ii) correct, supplement or modify any provision of
this Amended and Restated Trust Agreement that is inconsistent with
21
another provision of this Amended and Restated Trust Agreement or
(iii) modify, eliminate or add to any provisions of this Amended and
Restated Trust Agreement to the extent necessary to ensure that the
Trust will, at all times, for United States Federal income tax
purposes will be either ignored or treated as a grantor trust or to
ensure that the Trust will not be required to register as an
investment company under the Investment Company Act and no such
amendment shall require the consent of any other Person, except to the
extent specified in Sections 9.2(c) and 9.2(d).
(b) So long as any Funding Note remains outstanding, except as provided in
Sections 9.2(c) and 9.2(d), any amendment to this Amended and Restated
Trust Agreement that would adversely affect, in any material respect,
the terms of any Funding Note, other then any amendment of the type
contemplated by clause (iii) of Section 9.2(a), shall require the
prior consent of the Holders of a majority of the outstanding
principal amount of the Funding Note.
(c) So long as any Funding Note remains outstanding, this Amended and
Restated Trust Agreement may not be amended to (i) change the amount
or timing of any payment of any Funding Note or (ii) impair the right
of any Holder to institute suit for the enforcement of any right for
principal and interest or other distribution without the consent of
each affected Holder.
(d) The Delaware Trustee shall not be required to enter into any amendment
to this Amended and Restated Trust Agreement which adversely affects
its own rights, duties or immunities under this Amended and Restated
Trust Agreement.
(e) Prior to the execution of any amendment to this Amended and Restated
Trust Agreement, the Delaware Trustee shall be entitled to an opinion
of counsel as to whether such amendment is permitted by the terms of
this Amended and Restated Trust Agreement and whether all conditions
precedent to such amendment have been met, in each case under the laws
of the State of Delaware.
(f) Promptly after the execution of any such amendment or consent, the
Administrator shall furnish a copy of such amendment or consent
(including those obtained or effected by this Amended and Restated
Trust Agreement) to the Trust Beneficial Owner, the Agents and the
Rating Agencies;
(g) Contemporaneously with, or promptly after, the execution of any
amendment to this Amended and Restated Trust Agreement requiring
amendment to the Amended and Restated Certificate of Trust, the
Delaware Trustee shall cause the filing of such amendment to the
Amended and Restated Certificate of Trust with the Secretary of State.
(h) Notwithstanding any other provision of this Amended and Restated Trust
Agreement, no amendment to this Amended and Restated Trust Agreement
may be made (i) if such amendment would cause (A) the Trust not to be
either ignored or treated as a "grantor trust" for United States
Federal income tax purposes or
22
(B) the Notes to be treated as other than indebtedness of Allstate
Life and (ii) no amendment to this Amended and Restated Trust
Agreement may be made without the prior consent of Allstate Life.
SECTION 9.3 NOTICES. All demands, notices, instructions and other
communications shall be in writing (including telecopied or telegraphic
communications) and shall be personally delivered, mailed or transmitted by
telecopy or telegraph, respectively, addressed as set forth below (or, in the
case of any other relevant party, addressed as set forth in a separate notice
delivered to all relevant parties):
If to Delaware Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
If to the Trust Beneficial Owner or the Administrator:
AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxxx Helpern Syracuse & Hirschtritt LLP
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: -
or at such other address as shall be designated by any such party in a written
notice to the other parties. Notwithstanding the foregoing, any notice required
or permitted to be mailed to the Trust Beneficial Owner shall be given by first
class mail, postage prepaid, at AMACAR Pacific Corp., 0000 Xxxxxxxx Xxxx., Xxxxx
000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, and any notices mailed within the time
prescribed in this Amended and Restated Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Trust Beneficial Owner
received such notice. Any notice required or permitted to be mailed to any
Holder of a Funding Note shall be given as specified in the relevant Series
Instrument.
SECTION 9.4 NO RECOURSE. The Trust Beneficial Owner acknowledges that its
beneficial interest in the Trust, relating to any Funding Agreement does not
represent an obligation of Allstate Life, the Delaware Trustee, the
Administrator or any Affiliate of any of the
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foregoing and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Amended and
Restated Trust Agreement.
SECTION 9.5 LIMITED RECOURSE. Notwithstanding anything to the contrary
contained in this Amended and Restated Trust Agreement, the obligations of the
Trust under this Amended and Restated Trust Agreement and all Program Documents
and other documents or instruments entered into by the Trust, are solely the
obligations of the Trust and shall be payable solely to the extent of funds
received by and available to the Trust under the Amended and Restated Support
Agreement. No recourse shall be had for the payment of any amount owing in
respect of any obligation of, or claim against, the Trust arising out of or
based upon this Amended and Restated Trust Agreement, the Funding Note or any
other Program Document against any holder of a beneficial interest, employee,
agent, officer or Affiliate of the Trust and, except as specifically provided in
this Amended and Restated Trust Agreement and in the other Program Documents, no
recourse shall be had for the payment of any amount owing in respect of any
obligation of, or claim against, the Trust arising out of or based upon this
Amended and Restated Trust Agreement, the Funding Notes or any other Program
Documents against the Delaware Trustee, the Administrator, Allstate Life, or any
of their respective holders of beneficial interests, employees, agents,
officers, directors, incorporators or Affiliates.
SECTION 9.6 NO PETITION. To the extent permitted by applicable law, each of
the Delaware Trustee and the Administrator covenants and agrees, and the Trust
Beneficial Owner by its acceptance of a beneficial interest in the Trust will be
deemed to have covenanted and agreed, that it will not institute against, or
join with any other Person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any applicable bankruptcy or similar law. This Section 9.6
shall survive termination of this Amended and Restated Trust Agreement.
SECTION 9.7 GOVERNING LAW. This Amended and Restated Trust Agreement shall
be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to its choice of law principles.
SECTION 9.8 SEVERABILITY. If any provision in this Amended and Restated
Trust Agreement shall be invalid, illegal or unenforceable, such provisions
shall be deemed severable from the remaining provisions of this Amended and
Restated Trust Agreement and shall in no way affect the validity or
enforceability of such other provisions of this Amended and Restated Trust
Agreement.
SECTION 9.9 THIRD PARTY BENEFICIARIES. This Amended and Restated Trust
Agreement shall inure to the benefit of and be binding upon the parties to this
Amended and Restated Trust Agreement and their respective successors and
permitted assigns. Except as otherwise provided in this Amended and Restated
Trust Agreement, no other Person shall have any right or obligation under this
Amended and Restated Trust Agreement.
SECTION 9.10 COUNTERPARTS. This Amended and Restated Trust Agreement and
any amendments, modifications, restatements, supplements and/or replacements of
this Amended and Restated Trust Agreement, or waivers or consents to this
Amended and Restated Trust Agreement, may be executed in any number of
counterparts, and by different parties to this
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Amended and Restated Trust Agreement in separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, when taken together, shall constitute one and the same
instrument. This Amended and Restated Trust Agreement shall become effective
upon the execution of a counterpart to each of the parties to this Amended and
Restated Trust Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY,
in its individual capacity
By:
--------------------------------
Name:
Title:
AMACAR Pacific Corp.,
as Administrator
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
AMACAR Pacific Corp.,
as Trust Beneficial Owner
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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