EXHIBIT 4.1
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FORM OF AMENDED AND RESTATED TRUST AGREEMENT
of
ALLSTATE LIFE GLOBAL FUNDING
among
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
AMACAR PACIFIC CORP.,
as Administrator,
and
AMACAR PACIFIC CORP.,
as Trust Beneficial Owner
Dated -, 2006
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS.....................................................................................1
SECTION 1.1 Definitions..............................................................................1
SECTION 1.2 Other Definitional Provisions............................................................7
ARTICLE 2 CONTINUATION OF GLOBAL FUNDING..................................................................7
SECTION 2.1 Name; Amendment and Restatement of the Base Trust Agreement..............................7
SECTION 2.2 Office of the Delaware Trustee; Principal Place of Business..............................8
SECTION 2.3 Statutory Trust..........................................................................8
SECTION 2.4 Trust Beneficial Owner...................................................................8
SECTION 2.5 Purposes of Global Funding...............................................................8
SECTION 2.6 Allocation of Trust Expenses.............................................................9
SECTION 2.7 Liability................................................................................9
SECTION 2.8 Income Tax Treatment.....................................................................9
SECTION 2.9 Situs of Global Funding.................................................................10
ARTICLE 3 PAYMENT ACCOUNTS...............................................................................10
SECTION 3.1 Payment Accounts........................................................................10
ARTICLE 4 FUNDING NOTES..................................................................................11
SECTION 4.1 Issuance of Funding Notes...............................................................11
SECTION 4.2 Acquisition of Funding Agreement(s); Redemption and Satisfaction
of Funding Notes........................................................................11
ARTICLE 5 REPRESENTATIONS AND WARRANTIES BY THE DELAWARE TRUSTEE.........................................12
ARTICLE 6 DELAWARE TRUSTEE...............................................................................13
SECTION 6.1 General Authority.......................................................................13
SECTION 6.2 General Duties..........................................................................19
SECTION 6.3 Specific Duties.........................................................................19
SECTION 6.4 Acceptance of Trust and Duties; Limitation on Liability.................................19
SECTION 6.5 Reliance; Advice of Counsel.............................................................23
SECTION 6.6 Delegation of Authorities and Duties....................................................24
ARTICLE 7 TERMINATION OF AGREEMENT; DISSOLUTION OF GLOBAL FUNDING........................................24
SECTION 7.1 Termination of Agreement................................................................24
ARTICLE 8 SUCCESSOR AND ADDITIONAL DELAWARE TRUSTEES.....................................................26
SECTION 8.1 Eligibility Requirements for the Delaware Trustee.......................................26
SECTION 8.2 Resignation or Removal of the Delaware Trustee..........................................26
SECTION 8.3 Successor Delaware Trustee..............................................................27
SECTION 8.4 Merger or Consolidation of Delaware Trustee.............................................28
ARTICLE 9 MISCELLANEOUS PROVISIONS.......................................................................28
SECTION 9.1 Limitation on Rights of Others..........................................................28
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SECTION 9.2 Amendments..............................................................................28
SECTION 9.3 Notices.................................................................................30
SECTION 9.4 No Recourse.............................................................................31
SECTION 9.5 Limited Recourse........................................................................31
SECTION 9.6 No Petition.............................................................................31
SECTION 9.7 Governing Law...........................................................................32
SECTION 9.8 Severability............................................................................32
SECTION 9.9 Third Party Beneficiaries...............................................................32
SECTION 9.10 Counterparts............................................................................32
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This Amended and Restated Trust Agreement (this "Amended and Restated Trust
Agreement") dated and effective as of -, 2006, 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, as amended and
restated by the Amended and Restated Trust Agreement dated as of April 27, 2004,
and as further amended and restated by the Amended and Restated Trust Agreement
dated as of August 16, 2005 (as so amended and restated, the "Base Trust
Agreement"), and the parties hereto desire to amend and restate the Base Trust
Agreement in its entirety;
WHEREAS, since August 27, 2004, Global Funding has been facilitating, and
the parties desire that Global Funding continue to facilitate, a program (the
"Program") for the issuance, from time to time, of Secured Medium Term Notes and
Allstate Life(R) CoreNotes(R) (collectively, the "Notes"), as more fully
described in the Registration Statement; and
WHEREAS, the Notes outstanding under the Program have been, and any Notes
to be issued under the Program will be, issued by a newly created Delaware
statutory trust (each, a "Trust");
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 Global Funding, 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.
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"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 -, 2006,
between the Administrator and Global Funding, as the same may be amended,
supplemented, modified, restated or replaced from time to time.
"Amended and Restated Certificate of Trust" means the Amended and Restated
Certificate of Trust of Global Funding as filed with the Secretary of State on
-, 2006.
"Amended and Restated Name Licensing Agreement" means that certain Amended
and Restated Name Licensing Agreement dated as of -, 2006, between Allstate
Insurance Company and Global Funding, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
"Amended and Restated Support Agreement" means that certain Amended and
Restated Support and Expenses Agreement dated as of -, 2006, between Allstate
Life and Global Funding, as the same may be amended, supplemented, modified,
restated or replaced from time to time.
"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, with respect to any Trust, the Closing
Instrument of the Trust, pursuant to which certain documents are executed in
connection with the issuance of the Notes by the Trust.
"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.
"Collateral", with respect to any Funding Note, has the meaning ascribed in
the applicable Funding Note Indenture.
"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.
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"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 -, 2006, by and among the Trust and the Agents named therein, as the same may
be amended, supplemented, modified, restated or replaced from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, 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.
"Funding Agreement" means, with respect to any Trust, each funding
agreement issued by Allstate Life to Global Funding, which is immediately
pledged and collaterally assigned by Global Funding to the Funding Note
Indenture Trustee and immediately thereafter assigned absolutely to, and
deposited into, the relevant 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 Event of Default" means, with respect to any Funding
Agreement, an "Event of Default" as defined in the Funding Agreement.
"Funding Note", with respect to any Trust, has the meaning ascribed in the
applicable Funding Note Indenture.
"Funding Note Certificate", with respect to any Funding Note, has the
meaning ascribed in the applicable Funding Note Indenture.
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"Funding Note Indenture" means, with respect to any Funding Note sold by
Global Funding to a Trust, the Funding Note Indenture included in Part H of the
applicable 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", with respect to any Trust, has the
meaning ascribed in the applicable Funding Note Indenture.
"Global Funding" means Allstate Life Global Funding, a statutory trust
organized under the laws of the State of Delaware.
"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", with respect to any Funding Note, has the meaning ascribed in the
applicable Funding Note Indenture.
"Indenture" means, with respect to any Trust, the Indenture included in
Part G of the applicable Series Instrument, among the Trust and the other
parties specified therein, as the same may be amended, supplemented, modified,
restated or replaced from time to time.
"Indenture Trustee", with respect to any Trust, has the meaning ascribed in
the applicable Indenture.
"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.
"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
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(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 Service, Inc.
"Notes" has the meaning ascribed in the second recital.
"Payment Account" means, with respect to any Funding Note, the segregated
non-interest-bearing corporate trust account for Global Funding maintained by
the Delaware Trustee or by another financial institution designated by the
Delaware Trustee, which shall be controlled by the Delaware Trustee; provided
that the rating of the entity maintaining such account shall be at least equal
to the rating of the applicable Funding Note by Moody's and Standard & Poor's,
in which all amounts paid to the Delaware Trustee in respect of such Funding
Note or any Collateral related thereto 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 applicable 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" has the meaning ascribed in the second recital.
"Program Documents" means each Series Instrument and each Closing
Instrument (including documents contained in each Series Instrument and each
Closing Instrument), this Amended and Restated Trust Agreement, the Amended and
Restated Administrative Services Agreement, the Amended and Restated Support
Agreement, the Amended and Restated Name Licensing Agreement, the Distribution
Agreement, each Funding Note and any other documents or instruments entered into
by, or with respect to, or on behalf of, Global Funding or any Trust in
connection with the Program.
"Rating Agency" means each of Moody's, Standard & Poor's and any other
rating agency which provides a rating of any Notes or the Program.
"Registration Statement" means the Registration Statement relating to the
Program (File No. 333-129157), filed with the Commission by Allstate Life and
Global Funding on October 20, 2005, as amended by Amendment No. 1 filed with the
Commission on November 29, 2005, and Amendment No. 2 filed with the Commission
on -, 2006, and as it may further be amended, supplemented, modified, restated
or
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replaced from time to time.
"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 amended, and any
successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
"Security Interest", with respect to any Funding Note, has the meaning
ascribed in the applicable Funding Note Indenture.
"Series Instrument" means, with respect to any Trust, the Series Instrument
of the Trust, pursuant to which the Funding Note Indenture, the Indenture and
certain other agreements are entered into, and certain other documents are
executed, in connection with the issuance of the Notes by the Trust.
"Standard and Poor's" means Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc.
"Standing Order" has the meaning ascribed in Section 3.1(d).
"Supplemental Funding Note Indenture", with respect to any Funding Note,
has the meaning ascribed in the applicable Funding Note Indenture.
"Terms Agreement" means, with respect to any Trust, the Terms Agreement
included in Part E of the applicable Series Instrument.
"Trust" has the meaning ascribed in the third recital.
"Trust Beneficial Owner" means AMACAR Pacific Corp., in its capacity as the
sole beneficial owner of Global Funding, and its successors.
"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.
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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.
ARTICLE 2
CONTINUATION OF GLOBAL FUNDING
SECTION 2.1 Name; Amendment and Restatement of the Base Trust Agreement.
(a) The name of the trust continued hereby is "Allstate Life Global
Funding." Global Funding's activities may be conducted under the name of
Global Funding by the Delaware Trustee or by the Administrator on behalf of
Global Funding.
(b) The parties hereto agree that, upon the execution of this Amended
and Restated Trust Agreement:
(i) the Base Trust Agreement shall continue in full force and
effect as amended and restated by this Amended and Restated Trust
Agreement;
(ii) the rights and obligations of the parties hereto shall be as
provided in this Amended and Restated Trust Agreement, and, except as
otherwise expressly provided in this Amended and Restated Trust
Agreement, in the Delaware Statutory Trust Act; and
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(iii) except as otherwise provided in Article 7, Global Funding
will continue without dissolution.
SECTION 2.2 Office of the Delaware Trustee; Principal Place of Business.
The principal office of Global Funding 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. Global Funding 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
or at such other address as the Administrator may designate by written notice to
the Trust Beneficial Owner, the Indenture Trustee, the Delaware Trustee and the
Rating Agencies.
SECTION 2.3 Statutory Trust. It is the intention of the parties that Global
Funding constitute a statutory trust organized under the Delaware Statutory
Trust Act and that this Amended and Restated Trust Agreement constitute the
governing instrument of Global Funding. The Delaware Trustee shall file an
Amended and Restated Certificate of Trust with the Secretary of State.
SECTION 2.4 Trust Beneficial Owner. The Trust Beneficial Owner previously
made a cash contribution to Global Funding in the amount of $1,000 in exchange
for its beneficial interest in Global Funding. The beneficial interest of the
Trust Beneficial Owner in Global Funding is not and will not be represented by
any certificate or other instrument. The Trust Beneficial Owner is and shall
continue to be the beneficial owner of Global Funding and has and shall have an
undivided beneficial ownership interest in the property related to Global
Funding. To the fullest extent permitted by law, any attempted transfer of the
Trust Beneficial Owner's interest in Global Funding shall be void.
SECTION 2.5 Purposes of Global Funding. The exclusive purposes and
functions of Global Funding are, and Global Funding shall have the power and
authority, to:
(a) beneficially own each Trust;
(b) issue a Funding Note to each Trust in connection with the Program;
(c) use the net proceeds from the sale of each Funding Note to acquire
one or more Funding Agreements from Allstate Life;
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(d) grant a security interest in, pledge and collaterally assign each
Funding Agreement to the Funding Note Indenture Trustee and immediately
thereafter assign absolutely each Funding Agreement to, and deposit each
such Funding Agreement into, the relevant Trust;
(e) file with the Commission and execute:
(i) one or more registration statements on Form S-3 or other
appropriate form, including one or more prospectuses, prospectus
supplements and the 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 any Notes and/or any Funding
Notes under the Securities Act;
(ii) any preliminary prospectus or prospectus or supplement
thereto relating to any Notes and/or any Funding Notes required to be
filed pursuant to the Securities Act; and
(iii) registration statements and such other documents, forms or
filings as may be required by the Securities Act, the Exchange Act or
the Trust Indenture Act, or other securities laws in each case
relating to any Notes and/or any 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, any Notes and/or
any 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 each Series
Instrument, each Closing Instrument and each Program Document to which it
is a signatory.
SECTION 2.6 Allocation of Trust Expenses. Any costs and expenses of Global
Funding 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 Global Funding.
SECTION 2.8 Income Tax Treatment. The parties agree, and each Holder and
beneficial owner any Funding Note by purchasing such Funding Note agrees, for
all
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United States Federal, state and local income and franchise tax purposes (i)
to treat such Funding Note as indebtedness of Allstate Life, (ii) that Global
Funding and the Trust will be ignored and will not be treated as an association
or a publicly traded partnership taxable as a corporation and (iii) to not take
any action inconsistent with the treatment described in (i) and (ii) unless
otherwise required by law.
SECTION 2.9 Situs of Global Funding. Global Funding shall be located in the
State of Delaware. Global Funding 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 Global Funding shall be located in the State of
Delaware. Global Funding shall not have any employees in any state other than in
the State of Delaware.
ARTICLE 3
PAYMENT ACCOUNTS
SECTION 3.1 Payment Accounts.
(a) Prior to the issue date of each Funding Note, the Delaware Trustee
shall establish the related Payment Account. The Delaware Trustee and any
agent of the Delaware Trustee shall have exclusive control and sole right
of withdrawal with respect to each Payment Account for the purpose of
making deposits in and withdrawals from such Payment Account in accordance
with this Amended and Restated Trust Agreement. Subject to each Funding
Note Indenture, all funds or other property received by the Delaware
Trustee on behalf of Global Funding in respect of any Collateral for the
applicable Funding Note will be deposited in the related Payment Account.
All funds and other property deposited or held from time to time in a
Payment Account shall be held by the Delaware Trustee in such Payment
Account for the exclusive benefit of the Trust Beneficial Owner, subject to
the security interest in the applicable Collateral in favor of the
applicable Funding Note Indenture Trustee on behalf of the Holder of the
applicable Funding Note and any other Person for whose benefit such Funding
Note Indenture Trustee is or will be holding such Collateral, and for
distribution by the Delaware Trustee as provided in this 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 a Payment Account
shall be distributed by Global Funding as follows:
FIRST, to the applicable Funding Note Indenture Trustee for the
payment of all amounts then due and unpaid upon the applicable Funding
Note and any other amounts due and payable in accordance with the
applicable Funding Note Indenture; and
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SECOND, upon the final surrender of the applicable Funding Note
and payment of any amounts payable in respect thereof, any remaining
funds and other property deposited into such Payment Account shall be
distributed to the Delaware Trustee for distribution pursuant to
Section 7.1.
(c) The Delaware Trustee shall deposit in the applicable Payment
Account, promptly upon receipt, any payments received in respect of any
related Collateral. Amounts held in any Payment Account shall not be
invested by the Delaware Trustee.
(d) Notwithstanding anything in this Amended and Restated Trust
Agreement to the contrary, the Delaware Trustee, on behalf of Global
Funding, shall execute a standing order (each, a "Standing Order") to each
Funding Note Indenture Trustee pursuant to which such Funding Note
Indenture Trustee, either directly or through an applicable Funding Note
Paying Agent, shall distribute all applicable amounts due and unpaid under
Section 3.1(b); provided, however, that all payments to be made pursuant to
Section 7.1 shall be made by the Delaware Trustee on behalf of Global
Funding. For so long as (i) the Delaware Trustee, on behalf of Global
Funding, has not rescinded the applicable Standing Order and (ii) the
applicable Funding Note Indenture Trustee, either directly or through an
applicable Funding Note Paying Agent, is able to, and does, comply with
such Standing Order, the Delaware Trustee will not be required to establish
a separate Payment Account in accordance with Section 3.1 in respect of the
applicable Funding Note; provided, however, that the Delaware Trustee shall
establish a separate payment account to facilitate payments to be made
pursuant to Section 7.1.
ARTICLE 4
FUNDING NOTES
SECTION 4.1 Issuance of Funding Notes. Global Funding 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); Redemption and
Satisfaction of Funding Notes. In connection with the issuance and sale of each
Funding Note, Global Funding will use the proceeds received from the offering of
such Funding Note to purchase one or more Funding Agreements. Global Funding
will immediately pledge and collaterally assign each such Funding Agreement to
the Funding Note Indenture Trustee and immediately thereafter assign absolutely
to, and deposit into, the relevant Trust the Funding Agreement(s), and the
Funding Note will be surrendered. The Funding Note shall be cancelled by Global
Funding immediately upon such surrender, and such cancellation shall operate as
a redemption and satisfaction of the Funding Note.
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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;
(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
Global Funding 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
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agency (other than the filing of the Amended and Restated 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 Global Funding or
would question the right, power and authority of the Delaware Trustee 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 Global Funding 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 Global Funding pursuant to the Program Documents including, but not
limited to (A) paying, or causing to be paid, on behalf of Global Funding
any amounts due and owing by Global Funding under the Program Documents or
any other documents or instruments to which Global Funding is a party, (B)
providing certificates required under the Program Documents or other
documents or instruments to which Global Funding 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
Global Funding thereunder or in connection therewith or with this Amended
and Restated Trust Agreement; (iii) cause Global Funding 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 of the other purposes of Global Funding or
are incidental thereto or connected therewith including, from time to time,
taking such action on behalf of Global Funding 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
Global Funding 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 Global Funding, with respect to the following
matters:
(i) to execute and deliver on behalf of Global Funding the
Funding Notes and the Amended and Restated Certificate of Trust in
accordance with this Amended and Restated Trust Agreement;
13
(ii) to cause Global Funding to perform this Amended and Restated
Trust Agreement and to enter into, and to execute, deliver and
perform, the Funding Notes, each Series Instrument and each Closing
Instrument (including all relevant documents contained in each Series
Instrument and each Closing Instrument), the Distribution Agreement,
the Amended and Restated Name Licensing Agreement, the Amended and
Restated Support Agreement, the Amended and Restated Administrative
Services Agreement, each other Program Document and such other
certificates, other documents or agreements as may be necessary,
contemplated by or desirable in connection with the purposes and
function of Global Funding or any of the above-referenced documents;
(iii) to receive custody of any Funding Agreement and to exercise
on behalf of Global Funding all of the rights, powers and privileges
of an owner or policyholder of each such Funding Agreement in
accordance with the terms of such Funding Agreement and any related
documents;
(iv) to cause Global Funding to immediately pledge and
collaterally assign each Funding Agreement to the Funding Note
Indenture Trustee and to immediately thereafter assign absolutely to,
and deposit into, the relevant Trust the relevant Funding
Agreement(s);
(v) to establish each Payment Account and a separate payment
account to facilitate payments to the Trust Beneficial Owner;
(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) to take all actions necessary or appropriate to enable
Global Funding to comply with Section 2.8 regarding income tax
treatment;
(viii) 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 Funding Agreement Event of
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Default actually known to a Responsible Officer, to give notice
thereof to the Administrator and the Trust Beneficial Owner;
(ix) to the extent permitted by this Amended and Restated Trust
Agreement, to participate in the winding up of the affairs of and
liquidation of Global Funding and assist with the preparation,
execution and filing of a certificate of cancellation with the
Secretary of State;
(x) to take any action and to execute any documents on behalf of
Global Funding 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;
(xi) to execute and file documents with the Secretary of State;
and
(xii) to accept service of process on behalf of Global Funding 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 Global Funding.
(b) So long as this Amended and Restated Trust Agreement remains in
effect, Global Funding (and the Delaware Trustee and the Administrator
acting on behalf of Global Funding) shall not undertake any business,
activity or transaction except as expressly provided for or contemplated by
this Amended and Restated Trust Agreement or by any Funding Note Indenture.
In particular, Global Funding shall not, except as otherwise contemplated
by this Amended and Restated Trust Agreement or by any Funding Note
Indenture:
(i) sell, transfer, exchange, assign, lease, convey or otherwise
dispose of any assets held in Global Funding, except for any Funding
15
Agreements (as of the date of this Amended and Restated Trust
Agreement or hereafter 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 convenient to accomplish the purposes of Global Funding
specified in Section 2.5;
(iii) incur, directly or indirectly, any Debt except for each
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, except for
the lien created pursuant to each Funding Note Indenture;
(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 Trusts, or lend or
advance any funds to, or make any investment in, any Person, except in
connection with any Funding Notes, the Amended and Restated
Administrative Services Agreement, 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;
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(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 Trusts;
(x) take any action that would cause Global Funding 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 or permitted 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 Global
Funding;
(xiv) issue any Funding Note unless (A) Global Funding has
purchased or will simultaneously purchase the relevant Funding
Agreement(s) from Allstate Life; (B) Global Funding will grant a
security interest in, pledge and collaterally assign the relevant
Funding Agreement(s) to the Funding Note Indenture Trustee and will
immediately thereafter assign absolutely to and deposit into the
relevant Trust the relevant Funding Agreement(s); and (C) the relevant
Funding Note will thereupon be surrendered and cancelled by Global
Funding immediately upon such surrender, and such cancellation shall
operate as a redemption and satisfaction of the Funding Note;
(xv) commingle any of its assets with assets of any of Global
Funding's Affiliates, or guarantee any obligation of any of Global
Funding's Affiliates;
(xvi) (A) permit the validity or effectiveness of any Funding
Note Indenture or the Security Interest securing the Funding Note
issued pursuant to any Funding Note Indenture to be impaired, or
permit such Security Interest to be amended, hypothecated,
subordinated, terminated or discharged, (B) permit any Person to be
released from any covenants or obligations under any Funding Agreement
securing any Funding Note, except as expressly permitted thereunder,
under the applicable Funding Note Indenture, this Amended and Restated
Trust Agreement, or each applicable Funding Agreement, (C) create,
incur, assume, or permit any
17
Lien or other encumbrance (other than the Security Interests securing
the Funding Notes) on any of its properties or assets (whenever
acquired), or any interest therein or the proceeds thereof, or (D)
permit a lien with respect to any Collateral not to constitute a valid
first priority perfected security interest in such Collateral securing
the related Funding Note;
(xvii) issue any Funding Note unless the Funding Agreement
Provider has affirmed in writing to Global Funding that it has made
changes to its books and records to reflect the grant of a security
interest in, and the making of an assignment for collateral purposes
of, the relevant Funding Agreement(s) by Global Funding to the
applicable Funding Note Indenture Trustee in accordance with the terms
of such Funding Agreement(s) and the applicable Funding Note Indenture
and Global Funding has taken such other steps as may be necessary to
cause the Security Interest in or assignment for all collateral
purposes of, the applicable Collateral to be perfected for purposes of
the UCC or effective against its creditors and subsequent purchasers
of such Collateral pursuant to insurance or other state laws; or
(xviii) make any deduction or withholding from any payment of
principal of or interest on any Funding Note (other than amounts that
may be required to be withheld or deducted from such payments under
the Code or any other applicable tax law) by reason of the payment of
any taxes levied or assessed upon any portion of the related
Collateral except to the extent specified in the applicable Funding
Note Indenture or the relevant Funding Note Certificate or
Supplemental Funding Note Indenture.
(c) Notwithstanding any other provision of this Amended and Restated
Trust Agreement, the Delaware Trustee and the Administrator, acting on
behalf of Global Funding, shall not take any action that would cause Global
Funding 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 Global Funding adverse to the interest of Global
Funding or any Holder.
(e) The Delaware Trustee is authorized and directed to conduct the
affairs of Global Funding and to operate Global Funding so that Global
Funding 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
18
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 Global Funding, 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
Global Funding 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 Global Funding 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 Amended and Restated Administrative Services Agreement or
under any other documents or instruments to which Global Funding is a party, to
perform such act or discharge such duty of the Delaware Trustee or Global
Funding; 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.
(a) The Delaware Trustee will manage the business and affairs of
Global Funding 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 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.
(b) The Delaware Trustee shall not take any action, or direct the
Administrator to take any action, which would be inconsistent with Section
2.8.
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 Global Funding, 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
19
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 any 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 in respect of any
Funding Note or any related documents or otherwise, and (ii) not have any
obligation or liability to perform the obligations of Global Funding 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;
20
(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 any Funding Agreement 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 Global Funding'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;
(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 to: (i) see to any
recording or filing of any document, (ii) confirm or verify any financial
statements of the
21
Administrator or the Trust Beneficial Owner, (iii) inspect the
Administrator's or the Trust Beneficial Owner's books and records at any
time or (iv) 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 Global Funding, except
to the extent the Delaware Trustee has received funds, on behalf of Global
Funding, 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 Global Funding 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 Global
Funding which result from claims against the Delaware Trustee personally
that are not related to the ownership or the administration of the property
of Global Funding 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 Global Funding, 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, Global Funding 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;
22
(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 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 Global Funding;
(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 Global Funding any filings, certificates, affidavits or other
instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
SECTION 6.5 Reliance; Advice of Counsel.
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(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
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 Global Funding, the Delaware
Trustee may (i) 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) 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 OF AGREEMENT; DISSOLUTION OF GLOBAL FUNDING
SECTION 7.1 Termination of Agreement. This Amended and Restated Trust
Agreement shall terminate and Global Funding 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
24
amounts required to be paid pursuant to any Funding Notes, any Funding Note
Indenture, any 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 Global Funding; and
(c) the performance of all administrative actions by the Delaware
Trustee and the Administrator necessary to accomplish the purposes of
Global Funding, including the performance of any tax reporting obligations
with respect to Global Funding.
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 of Global Funding or any Holder shall not (i) operate
to terminate this Amended and Restated Trust Agreement or Global Funding, (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 Global Funding, (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 Global Funding or (iv) dissolve Global Funding.
Global Funding 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 Global Funding. The Administrator shall
act as the liquidator of Global Funding and shall be responsible for directing
the Delaware Trustee to take all required actions in connection with winding up
Global Funding. 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
Global Funding and this Amended and Restated Trust Agreement shall terminate.
In connection with the termination of Global Funding and the distribution
of all amounts from each Payment Account in accordance with the priority set
forth in Section 3.1(b), the Delaware Trustee will distribute any amounts
received pursuant to Section 3.1(b) (clause Second) and any other remaining
assets of Global Funding in the following order of priority:
First, to pay all expenses and other liabilities owed by Global
Funding; and
25
Second, any remaining funds and other property shall be paid to the
Trust Beneficial Owner.
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 Global Funding, may, in its sole discretion, remove the Delaware Trustee, in
each case upon not less than 30 days' prior notice to the Delaware Trustee, each
Funding Note Indenture Trustee, each 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 Global Funding, 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 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
26
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 30 days after the aforesaid notice of resignation or
removal, Global Funding (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
Global Funding.
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
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may reasonably be required for fully and certainly vesting and confirming in the
successor Delaware Trustee all such rights, powers, duties and obligations.
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
each Funding Note Indenture Trustee, each Indenture Trustee and each Rating
Agency then rating the Program or the Notes. If the Administrator shall fail to
mail such notice within ten 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 Global Funding shall not operate to terminate this
Amended and Restated Trust Agreement, nor to annul, dissolve or terminate Global
Funding, 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.
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(a) This Amended and Restated Trust Agreement may be amended from time
to time by the parties by a written instrument executed by each of the
parties, 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 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 Global Funding will, at
all times, for United States Federal income tax purposes be either ignored
or treated as a "grantor trust" or to ensure that Global Funding 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 or 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.
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(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) Global Funding not to be
either ignored or treated as a "grantor trust" for United States Federal
income tax purposes or (B) the Notes to be treated as other than
indebtedness of Allstate Life and (ii) 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: (000) 000-0000
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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, or at such other address as shall be
designated by the Trust Beneficial Owner in a written notice to the other
parties, 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 Funding Note Indenture.
SECTION 9.4 No Recourse. The Trust Beneficial Owner acknowledges that its
beneficial interest in Global Funding does not represent an obligation of
Allstate Life, the Delaware Trustee, the Administrator or any Affiliate of any
of the 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
Global Funding under this Amended and Restated Trust Agreement and all Program
Documents and other documents or instruments entered into by Global Funding, are
solely the obligations of Global Funding and shall be payable solely to the
extent of funds received by and available to Global Funding 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, Global Funding
arising out of or based upon this Amended and Restated Trust Agreement, any
Funding Note or any other Program Document against any holder of a beneficial
interest, employee, agent, officer or Affiliate of Global Funding 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, Global Funding arising
out of or based upon this Amended and Restated Trust Agreement, any Funding Note
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, the Administrator and the Trust Beneficial Owner covenants
and agrees that it will not institute against, or join with any other Person in
instituting against, Global Funding any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any applicable
bankruptcy or similar law. This Section 9.6 shall survive termination of this
Amended and Restated Trust Agreement.
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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, supplements, modifications, restatements 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 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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