EXHIBIT 4.1
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STANDARD TRUST AGREEMENT TERMS
with respect to
ALLSTATE LIFE GLOBAL FUNDING TRUSTS
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions....................................................................1
SECTION 1.2 Other Definitional Provisions..................................................7
ARTICLE 2
CREATION OF TRUST
SECTION 2.1 Name of the Trust..............................................................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 the Trust..........................................................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 Trust.................................................................9
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1 Payment Account...............................................................10
ARTICLE 4
NOTES; COLLATERAL
SECTION 4.1 Issuance of Notes.............................................................11
SECTION 4.2 Acquisition of Funding Note And Funding Agreements............................11
SECTION 4.3 Security Interest in the Collateral...........................................11
ARTICLE 5
REPRESENTATIONS AND WARRANTIES BY THE DELAWARE TRUSTEE
ARTICLE 6
DELAWARE TRUSTEE
SECTION 6.1 General Authority.............................................................13
SECTION 6.2 General Duties................................................................19
SECTION 6.3 Specific Duties...............................................................20
SECTION 6.4 Acceptance of Trust and Duties; Limitation on Liability.......................20
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SECTION 6.5 Reliance; Advice of Counsel...................................................25
SECTION 6.6 Delegation of Authorities and Duties..........................................25
SECTION 6.7 Indemnification...............................................................25
ARTICLE 7
TERMINATION OF AGREEMENT; DISSOLUTION OF THE TRUST
SECTION 7.1 Termination of Agreement......................................................26
ARTICLE 8
SUCCESSOR AND ADDITIONAL DELAWARE TRUSTEES
SECTION 8.1 Eligibility Requirements for the Delaware Trustee.............................27
SECTION 8.2 Resignation or Removal of the Delaware Trustee................................28
SECTION 8.3 Successor Delaware Trustee....................................................29
SECTION 8.4 Merger or Consolidation of Delaware Trustee...................................30
SECTION 8.5 Appointment of Co-Delaware Trustee or Separate Delaware Trustee..............30
SECTION 8.6 Delaware Trustee May Own Notes................................................32
ARTICLE 9
MISCELLANEOUS PROVISIONS
SECTION 9.1 Limitation on Rights of Others................................................33
SECTION 9.2 Amendments....................................................................33
SECTION 9.3 Notices.......................................................................34
SECTION 9.4 No Recourse to Certain Persons................................................36
SECTION 9.5 Limited Recourse..............................................................36
SECTION 9.6 No Petition...................................................................37
SECTION 9.7 Governing Law.................................................................37
SECTION 9.8 Severability..................................................................37
SECTION 9.9 No Third Party Beneficiaries..................................................37
SECTION 9.10 Counterparts..................................................................37
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This document constitutes the Standard Trust Agreement Terms, which will be
incorporated by reference in, and form a part of, the Trust Agreement (as
defined below) among the Delaware Trustee (as defined below), the Administrator
(as defined below) and Allstate Life Global Funding, a statutory trust formed
under the laws of the State of Delaware, as the sole beneficial owner of the
Trust (the "Trust Beneficial Owner").
These Standard Trust Agreement Terms shall not in and of itself create a
trust and shall be of no force and effect unless and until incorporated by
reference in, and then only to the extent not modified by, the Trust Agreement.
The following terms and provisions shall govern the activities of the
Trust, subject to contrary terms and provisions expressly adopted in the Trust
Agreement, which contrary terms shall be controlling.
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The following terms have the meanings set forth
below:
"Administrative Services Agreement" means that certain Administrative
Services Agreement, included in Part B of the Series Instrument, between the
Administrator and the Trust, as the same may be amended, supplemented, modified,
restated or replaced from time to time.
"Additional Amounts" has the meaning ascribed in the Indenture.
"Administrator" means the party named as such in the Trust Agreement, in
its capacity as the sole administrator of the Trust pursuant to the
Administrative Services Agreement, and its successors.
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" has the meaning ascribed in the Distribution Agreement.
"Allstate Life" means Allstate Life Insurance Company, a stock life
insurance company organized and licensed under the laws of the State of
Illinois, and any successor.
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"Business Day" has the meaning ascribed in the Indenture.
"Calculation Agent" has the meaning ascribed in the Indenture.
"Certificate of Trust" means the Certificate of Trust of the Trust as filed
with the Secretary of State of the State of Delaware.
"Closing Instrument" means the Closing Instrument of the Trust, pursuant to
which certain documents are executed in connection with the issuance of the
Notes by the Trust.
"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" has the meaning ascribed in the Indenture.
"Commission" means the Securities and Exchange Commission or any successor
body.
"Coordination Agreement" means that certain Coordination Agreement included
in Part F of the Series Instrument, among the Trust and the other parties
specified therein, as the same may be amended, supplemented, modified, restated
or replaced from time to time.
"Corporate Trust Office" means the principal office of the Delaware Trustee
located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000 or at such other address as may be specified by the Delaware Trustee
in the Trust Agreement or in a written notice provided in accordance with
Section 9.3.
"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.
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"Delaware Trustee" means the party named as such in the Trust Agreement, 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 the Trust
Agreement, "Delaware Trustee" shall mean each such Delaware Trustee.
"Distribution Agreement" means that certain Distribution Agreement dated -,
2006 by and among Global Funding and the Agents named therein, as the same may
be amended, supplemented, modified, restated or replaced from time to time.
"DTC" means The Depository Trust Company and its successors and assigns.
"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 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 an "Event of Default" as defined
in the applicable Funding Agreement.
"Funding Note" has the meaning ascribed in the Funding Note Indenture.
"Funding Note Indenture" means that certain Funding Note Indenture included
in Part H of the Series Instrument for the Trust, among Global Funding and the
other parties specified therein, as the same may be amended, supplemented,
modified, restated or replaced from time to time.
"Funding Note Indenture Trustee" means the party named as such in the
Funding Note Indenture, and, subject to the applicable provisions of the Funding
Note Indenture, its successors.
"Global Funding" means Allstate Life Global Funding, a statutory trust
formed 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
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"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Holder" has the meaning ascribed in the Indenture.
"Indemnified Person" has the meaning ascribed in Section 6.7.
"Indenture" means that certain Indenture included in Part G of the Series
Instrument, among the Trust and the other parties specified therein, as the same
may be amended, supplemented, modified, restated or replaced from time to time.
"Indenture Trustee" means the party named as such in the Indenture, and,
subject to the applicable provisions of the Indenture, its successors.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, and any successor statute thereto, and the rules, regulations and
published interpretations of the Commission promulgated thereunder from time to
time.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, the Trust
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Name Licensing Agreement" means that certain Name Licensing Agreement
included in Part D of the Series Instrument, between Allstate Insurance Company
and the Trust, as the same may be amended, supplemented, modified, restated or
replaced from time to time.
"Notes" has the meaning set forth in the Indenture.
"Note Certificate" has the meaning set forth in the Indenture.
"Obligations" means the obligations of the Trust secured under the Notes
and the Indenture, including (a) all principal of, any premium and interest
(including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of the Trust, whether or not allowed or allowable
as a claim in any such proceeding) on, and any Additional Amounts with respect
to, the Notes or pursuant to the Indenture, (b) all other amounts payable by the
Trust under the Indenture or under the Notes including all costs and expenses
(including attorneys' fees) incurred by the Indenture Trustee or any Holder
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thereof in realizing on the Collateral to satisfy such obligations and (c) any
renewals or extensions of the foregoing.
"Original Issue Date" has the meaning ascribed in the Pricing Supplement.
"Paying Agent" has the meaning ascribed in the Indenture.
"Payment Account" means the segregated non-interest-bearing corporate trust
account for the Trust 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 Notes by Moody's and
Standard & Poor's, in which all amounts paid to the Delaware Trustee in respect
of the Notes 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 these Standard Trust Agreement Terms, 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.
"Pricing Supplement" means the pricing supplement attached to the Series
Instrument as Annex A, as prepared by the Trust in connection with the issuance
of the Notes.
"Program" has the meaning ascribed in the Indenture.
"Program Documents" means each Note, the Series Instrument, the Closing
Instrument, the Indenture, the Trust Agreement, the Administrative Services
Agreement, the Support Agreement, the Name Licensing Agreement, the Distribution
Agreement, the Terms Agreement, each Funding Agreement and any other documents,
certificates, agreements or instruments entered into by, or with respect to, or
on behalf of, the Trust.
"Rating Agency" means each of Moody's, S&P and any other rating agency
which provides a rating of any Notes.
"Registrar" has the meaning ascribed in the Indenture.
"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
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matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"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" has the meaning ascribed in the Indenture.
"Series Instrument" means the Series Instrument of the Trust, pursuant to
which the Administrative Services Agreement, the Coordination Agreement, the
Funding Note Indenture, the Indenture, the Name Licensing Agreement, the Support
Agreement, the Terms Agreement and the Trust Agreement are entered into, and
certain other documents are executed, in connection with the issuance of the
Notes by the Trust.
"Standard Trust Agreement Terms" means these Standard Trust Agreement
Terms.
"Standing Order" has the meaning ascribed in Section 3.1(d).
"Supplemental Indenture" has the meaning set forth in the Indenture.
"Support Agreement" means that certain Support and Expenses Agreement
included in Part C of the Series Instrument, by and between Allstate Life and
the Trust, as the same may be amended, supplemented, modified, restated or
replaced from time to time.
"Terms Agreement" means that certain Terms Agreement included in Part E of
the Series Instrument, by and among Global Funding, the Trust and each Agent
named therein, which will incorporate by reference the terms of the Distribution
Agreement.
"Trust" means the Allstate Life Global Funding Trust specified in the
Series Instrument, together with its permitted successors and assigns.
"Trust Agreement" means that certain Trust Agreement included in Part A of
the Series Instrument, and which incorporates by reference these Standard Trust
Agreement Terms, as the same may be amended, supplemented, modified, restated or
replaced from time to time.
"Trust Beneficial Owner" means the party named as such in the Trust
Agreement, in its capacity as the sole beneficial owner of the Trust, and its
successors.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any successor statute thereto, and the rules, regulations and published
interpretations of the Commission promulgated thereunder from time to time.
"UCC" means the Uniform Commercial Code, as from time to time in effect in
the State of New York; provided that, with respect to the perfection, effect of
perfection or non-perfection, or priority of any security interest in the
Collateral, "UCC" shall mean the applicable jurisdiction whose law governs such
perfection, non-perfection or priority.
SECTION 1.2 Other Definitional Provisions. For all purposes of the 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 the 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 the Trust Agreement, the term
"generally accepted accounting principles" with respect to any
computation required or permitted under the 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";
(d) Article and Section headings are for the convenience of the
reader and shall not be considered in interpreting the Trust
Agreement or the intent of the parties to the Trust Agreement;
and
(e) capitalized terms not otherwise defined in the Trust Agreement
will have the respective meanings set forth in the Indenture.
ARTICLE 2
CREATION OF TRUST
SECTION 2.1 Name of the Trust. The Trust created under the Trust Agreement
shall have the name specified in or pursuant to the Series Instrument. The
Trust's activities shall be conducted under the name of the Trust.
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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 Indenture Trustee, 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
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 the
Trust constitute a statutory trust organized under the Delaware Statutory Trust
Act and that the Trust Agreement constitute the governing instrument of the
Trust. Pursuant to Section 3810 of the Delaware Statutory Trust Act, on or
before the date of the Trust Agreement, the Delaware Trustee shall file a
Certificate of Trust with the Secretary of State to form the Trust. The parties
to the Trust Agreement hereby appoint the Delaware Trustee as trustee of the
Trust, to have all rights, powers and duties set forth in the Trust Agreement
and in accordance with the applicable law, subject to modification by the Trust
Agreement, with respect to accomplishing the purposes of the Trust.
SECTION 2.4 Trust Beneficial Owner. The Trust Beneficial Owner shall not be
required to make any deposit, perform any service or otherwise provide any
consideration 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. Upon the creation of the
Trust, 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) issue and sell the Notes,
(b) use the net proceeds from the sale of the Notes to acquire the
Funding Note,
(c) receive one or more Funding Agreements from Global Funding
pursuant to the terms of the Funding Note,
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(d) grant a security interest in, and pledge and collaterally assign,
the rights, title and interest of the Trust in the Collateral to
the Indenture Trustee for the benefit of the Holders of the Notes
and any other Person for whose benefit the Indenture Trustee is
or will be holding the Collateral,
(e) make, or cause to be made, all payments due in respect of the
Notes, in accordance with the terms of the Indenture, and
(f) 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 Support Agreement to the
extent provided therein.
SECTION 2.7 Liability. None of the Delaware Trustee, the Administrator, the
Trust Beneficial Owner or the Holders shall have any personal liability for any
liability or obligation of the Trust.
SECTION 2.8 Income Tax Treatment. The parties agree, and each Holder and
beneficial owner of Notes by purchasing the Notes agrees, for all United States
Federal, state and local income and franchise tax purposes (i) to treat the
Notes 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 Trust. The Trust shall be located in the State of
Delaware. The Trust shall have the right, upon consent of the Indenture Trustee,
and under certain circumstances set forth in the Indenture, 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 except that those accounts established under the Indenture shall be
maintained with the Indenture Trustee in accordance with the Indenture. The
Trust shall not have any employees in any state other than in the State of
Delaware.
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ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1 Payment Account.
(a) On the Original Issue Date, 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 the Trust Agreement and the Indenture. Subject to
the Indenture, all funds or other property received by the
Delaware Trustee on behalf of the Trust in respect of the
Collateral will be deposited in the Payment Account. 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, subject to the security interest in the Collateral in
favor of the Indenture Trustee on behalf of the Holders of the
Notes and any other Person for whose benefit the Indenture
Trustee is or will be holding the Collateral, and for
distribution by the Delaware Trustee as provided in the Trust
Agreement, including (and subject to) any priority of payments
provided for in the Trust Agreement.
(b) All funds and other property deposited into the Payment Account
shall be distributed by the Trust as follows:
First, to the Indenture Trustee for the payment of all amounts
then due and unpaid upon the Notes and any other amounts due and
payable in accordance with the Indenture; and
Second, upon the final redemption of the Notes and payment of any
amounts payable in respect thereof, any remaining funds and other
property deposited into the Payment Account shall be distributed to
the Delaware Trustee for distribution pursuant to Section 7.1.
(c) The Delaware Trustee shall deposit in the Payment Account,
promptly upon receipt, any payments received with respect to the
Collateral. Amounts held in the Payment Account shall not be
invested by the Delaware Trustee.
(d) Notwithstanding anything in the Trust Agreement to the contrary,
the Delaware Trustee, on behalf of the Trust, shall execute a
standing order (the "Standing Order") to the Indenture Trustee
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pursuant to which the Indenture Trustee, either directly or
through a Paying Agent, shall distribute all 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 the Trust. For so long as (i) the Delaware
Trustee, on behalf of the Trust, has not rescinded the Standing
Order and (ii) the Indenture Trustee, either directly or through
a Paying Agent, is able to, and does, comply with the Standing
Order, the Delaware Trustee will not be required to establish a
separate Payment Account in accordance with Section 3.1;
provided, however, that the Delaware Trustee shall establish a
separate payment account to facilitate payments made pursuant to
Section 7.1.
ARTICLE 4
NOTES; COLLATERAL
SECTION 4.1 Issuance of Notes. The Trust shall, in accordance with the
Indenture, issue and deliver or cause to be issued and delivered the aggregate
principal amount of the Notes specified in the Pricing Supplement against
payment therefor. The Holders of the Notes shall only have a right to receive
payments from the Collateral as described in the Indenture and shall have no
right to receive payments from the assets of Global Funding or the assets held
in any other trust organized under the Program.
SECTION 4.2 Acquisition of Funding Note And Funding Agreements. In
connection with the issuance and sale of the Notes, pursuant to Articles 2 and 3
of the Coordination Agreement: (i) the Trust will use the net proceeds received
from the offering of Notes to purchase the Funding Note from Global Funding;
(ii) Global Funding will use the net proceeds received from the sale of the
Funding Note to purchase one or more Funding Agreements; and (iii) Global
Funding will assign absolutely to, and deposit into, the Trust each such Funding
Agreement, and the relevant Funding Note will be surrendered pursuant to the
terms of the Funding Note and cancelled by Global Funding immediately upon such
surrender. Such cancellation shall operate as a redemption and satisfaction of
the Funding Note.
SECTION 4.3 Security Interest in the Collateral. Simultaneously with the
issuance and sale of the Notes, pursuant to the Indenture, the Trust shall
pledge and collaterally assign to the Indenture Trustee, and will grant to the
Indenture Trustee, for the benefit of the Holders of the Notes and any other
Person for whose benefit the Indenture Trustee is or will be holding the
Collateral, a security interest in and to the Collateral, including, without
limitation, each Funding Agreement purchased by the Trust.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES BY THE DELAWARE TRUSTEE
The Delaware Trustee represents and warrants for the benefit of the Holders
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 the Trust
Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of the Trust Agreement;
(d) the 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 the Trust Agreement,
nor the performance by it of its obligations under the 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 the Trust
Agreement and the consummation of any of the transactions by it
contemplated by the 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
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(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 the Trust Agreement.
ARTICLE 6
DELAWARE TRUSTEE
SECTION 6.1 General Authority.
(a) The Delaware Trustee is authorized and empowered, among other
things, to (a) 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,
(b) take all actions required of the Trust pursuant to the
Program Documents including, but not limited to (i) 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, (ii)
providing certificates required under the Program Documents or
other documents or instruments to which the Trust is a party and
(iii) 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 connection
therewith or with the Trust Agreement, (c) cause the Trust to
perform under the Program Documents and (d) 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 the 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 Notes in
accordance with the Trust Agreement and the Indenture;
13
(ii) to cause the Trust to perform the Trust Agreement and to
enter into, and to execute, deliver and perform on behalf of
the Trust, the documents contained in the Series Instrument
and the Closing Instrument, the Distribution Agreement, the
Notes, each Funding 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) subject to the applicable provisions of the Indenture, to
receive and maintain custody of each Funding Agreement and
to exercise all of the rights, powers and privileges of an
owner or policyholder of each Funding Agreement;
(iv) to grant to the Indenture Trustee a security interest in the
Collateral and to pledge and collaterally assign the rights,
title and interest of the Trust in the Collateral to the
Indenture Trustee for the benefit of the Holders of Notes
and any other Person on whose behalf the Indenture Trustee
is or will be holding the Collateral, and to seek release of
such security interest upon payment in full of all amounts
required to be paid with respect to the Notes pursuant to
the terms and conditions of the Notes and the Indenture;
(v) to establish the Payment Account;
(vi) to send notices regarding the Notes and the Funding
Agreement(s) to Allstate Life, the Indenture Trustee, the
Rating Agencies, the Trust Beneficial Owner, the applicable
Agent(s) and any other Person entitled thereto, in
accordance with the terms of the Notes, the Indenture, each
Funding Agreement and the Trust Agreement;
(vii) to take all actions necessary or appropriate to enable the
Trust 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, subject to
the applicable provisions of the Indenture, 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 the Trust Agreement and to
14
protect and conserve the Collateral for the benefit of the
Holders of Notes and any other Person for whose benefit the
Indenture Trustee is or will be holding the Collateral and,
within five Business Days after the occurrence of a Funding
Agreement Event of Default actually known to a Responsible
Officer, to give notice thereof to the Administrator, the
Trust Beneficial Owner and the Indenture Trustee;
(ix) to the extent permitted by the 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;
(x) subject to the applicable provisions of the Indenture, 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 the Trust Agreement;
(xi) to execute and file documents with the Secretary of State;
and
(xii) 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 the 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 the 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
the Trust Agreement or the Indenture. In particular, the Trust
shall not, except as otherwise contemplated by the Trust
15
Agreement or the Indenture:
(i) sell, transfer, exchange, assign, lease, convey or otherwise
dispose of any assets held in the Trust (as of the date of
the Trust Agreement or thereafter acquired), including,
without limitation, any portion of the Collateral;
(ii) engage in any business or activity other than in connection
with, or relating to, (A) the performance of the Trust
Agreement and the execution, delivery and performance of any
documents, including the Program Documents (other than the
Trust Agreement as set forth above), relating to the Notes
and the transactions contemplated thereby, (B) the issuance
of the Notes pursuant to the Indenture and (C) any
activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the purposes
of the Trust specified in Section 2.5;
(iii) incur, directly or indirectly, any Debt except for the
Notes;
(iv) amend, modify or fail to comply with any material provision
of the Trust Agreement, except for any amendment or
modification of the Trust Agreement expressly permitted
under the Trust Agreement or under the Indenture or the
Funding Agreement(s);
(v) own any subsidiary or lend or advance any funds to, or make
any investment in, any Person, except for an investment in
the Funding Agreement(s), the Funding Note or the investment
of any funds of the Trust held by the Indenture Trustee, a
Paying Agent, the Registrar, the Delaware Trustee or the
Administrator as provided in (or in the documents or
agreements contained in) the Series Instrument or the
Closing Instrument, or in any Funding Agreement;
(vi) directly or indirectly declare or pay a distribution or make
any distribution or other payment, or redeem or otherwise
acquire or retire for value any securities other than the
Notes, provided that the Trust may declare or pay a
distribution or make any distribution or other payment to
the Trust Beneficial Owner in compliance with the Trust
Agreement if the Trust has paid or made provision for the
16
payment of all amounts due to be paid on the Notes, and pay
all of its debt, liabilities, obligations and expenses, the
payment of which is provided for under the Support
Agreement;
(vii) become required to register as an "investment company"
under and as such term is defined in the Investment Company
Act;
(viii) 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;
(ix) 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;
(x) have any employees other than the Delaware Trustee, the
Administrator and any other Persons necessary to conduct its
business and enter into transactions contemplated under the
Program Documents;
(xi) have an interest in any bank account other than (A) those
accounts contemplated by the Program Documents, and (B)
those accounts expressly permitted by the Indenture Trustee;
provided that any such further account or such interest of
the Trust therein shall be charged or otherwise secured in
favor of the Indenture Trustee on terms acceptable to the
Indenture Trustee;
(xii) permit any Affiliate, employee or officer of Allstate Life
or any agent of Allstate Life or Agent to be a trustee of
the Trust;
(xiii) issue any Notes unless Allstate Life has affirmed in
writing to the Trust 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 the Trust to the
Indenture Trustee in accordance with the terms of such
Funding Agreement(s) and the Trust has taken such other
steps as may be necessary to cause the Security Interest in
17
or assignment for all collateral purposes of, the Collateral
to be perfected for purposes of the UCC or effective against
its creditors and subsequent purchasers of the Collateral
pursuant to insurance or other state laws;
(xiv) make any deduction or withholding from any payment of
principal of or interest on the Notes (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 Collateral except to the extent specified
in the Indenture or a Note Certificate or Supplemental
Indenture;
(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; or
(xvi) (A) permit the validity or effectiveness of the Indenture
or the Security Interest securing the Notes 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, except as expressly
permitted thereunder, under the Indenture, the Trust
Agreement, or any Funding Agreement, (C) create, incur,
assume, or permit any Lien or other encumbrance (other than
the Security Interest) on any of its properties or assets,
or any interest therein or the proceeds thereof, or (D)
permit a Lien with respect to the Collateral not to
constitute a valid first priority perfected security
interest in the Collateral.
(c) Notwithstanding any other provision of the 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, other than the Security
Interest in the Collateral granted in favor of the Indenture
Trustee for the benefit of each Holder of the Notes and any other
Person
18
for whose benefit the Indenture Trustee is or will be holding the
Collateral.
(e) If and for so long as any Funding Agreement is held by the
Delaware Trustee for the benefit of the Trust, the Delaware
Trustee shall not (i) waive any default under any Funding
Agreement or (ii) consent to any amendment, modification or
termination of any Funding Agreement, without, in each case,
obtaining the prior approval of the Indenture Trustee in
accordance with the Indenture and an opinion of counsel
experienced in such matters to the effect that any such action
shall not cause the Trust not to be either ignored or treated as
a "grantor trust" for United States Federal income tax purposes.
The Delaware Trustee, upon a Responsible Officer obtaining actual
knowledge of the occurrence of a Funding Agreement Event of
Default, will notify the Indenture Trustee of any such Funding
Agreement Event of Default.
(f) 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 the 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
the 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 the 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 the 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 the Trust Agreement or thereunder but
only to the extent such obligations are not also required to be carried out by
the Delaware Trustee.
19
SECTION 6.3 Specific Duties.
(a) 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
forth in the Trust Agreement and as it may be directed from time
to time by the Administrator, the Trust Beneficial Owner and the
Indenture Trustee in accordance with the terms of the Trust
Agreement and the Indenture.
(b) The Delaware Trustee agrees that it will not manage, control,
use, sell, dispose of or otherwise deal with the Collateral
except as expressly required or permitted by the terms of the
Trust Agreement and the Indenture.
(c) The Delaware Trustee shall not take any action, or direct the
Administrator to take any action, which would be inconsistent
with Section 2.8 of the Trust Agreement.
SECTION 6.4 Acceptance of Trust and Duties; Limitation on Liability. The
Delaware Trustee accepts the trust created by the Trust Agreement and agrees to
perform its duties under the Trust Agreement with respect to the same, but only
upon the terms of the Trust Agreement. No implied covenants or obligations shall
be read into the Trust Agreement. The Delaware Trustee shall not be liable under
the 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 the 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,
the Trust Beneficial Owner or the Indenture Trustee 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 the Trust Agreement and the
Indenture;
(c) no provision of the Trust Agreement shall require the Delaware
Trustee to expend or risk personal funds or otherwise incur any
20
financial liability in the performance of any of its rights or
powers under the 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
the Trust Agreement, any Funding Agreement or any related
document, including the principal of and interest on the Notes;
(e) the Delaware Trustee shall not be responsible for, or in respect
of, the validity or sufficiency of the Trust Agreement or any
related document or for the due execution of the Trust Agreement
or thereof by any party (except by the Delaware Trustee itself)
or for the form, character, genuineness, sufficiency, value or
validity of any of the Collateral, 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, the
Indenture Trustee or any Paying Agent under the Indenture, the
Notes or any related documents or otherwise, and (ii) not have
any obligation or liability to perform the obligations of the
Trust under the 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 Trust Agreement or under
the Administrative Services Agreement or the Indenture Trustee
under the Indenture;
(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 the Trust
Agreement, or to institute, conduct or defend any litigation
under the Trust Agreement or otherwise or in relation to the
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
21
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 the 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 the Trust Agreement, in accepting
the trusts created by the Trust Agreement, the Delaware Trustee
acts solely as trustee under the 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
the Trust Agreement shall look only to the Trust's property for
payment or satisfaction thereof;
(j) the Delaware Trustee shall not have any responsibility or
liability for or with respect to the genuineness, value,
sufficiency or validity of any Collateral, and 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 the
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 the 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 the 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, the Trust
Beneficial Owner or the Indenture Trustee, (iii) to inspect the
Administrator's, the Trust Beneficial Owner's or the Indenture
Trustee'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 Support Agreement from Allstate Life
22
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 the
Trust Agreement, except as expressly required by the terms of the
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 the 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 the 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, as specified in and pursuant to the Series
Instrument; 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 the Trust Agreement;
(p) the Delaware Trustee shall not be required to take any action
under the 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 the 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 or the
Indenture Trustee, nor shall the Delaware Trustee have any
obligation to
23
furnish information to any Person if it has not received such
information as it may need from the Administrator, the Indenture
Trustee 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 or the Indenture Trustee. Whenever
the Delaware Trustee is unable to decide between alternative
courses of action permitted or required by the terms of the Trust
Agreement, or is unsure as to the application, intent,
interpretation or meaning of any provision of the 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 the 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 the
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.
24
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 the Trust Agreement, the Delaware
Trustee may for all purposes of the 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 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 the 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 the Trust Agreement, the Administrative Services
Agreement or the Indenture, as applicable.
SECTION 6.7 Indemnification. The Trust hereby agrees, whether or not any of
the transactions contemplated by the Trust Agreement shall be consummated, to
assume liability for, and hereby indemnifies, protects, saves and keeps harmless
the Delaware Trustee, and its officers, directors, successors, assigns, legal
25
representatives, agents and servants (each an "Indemnified Person"), from and
against any and all liabilities, obligations, losses, damages, penalties, taxes
(excluding any taxes payable by the Delaware Trustee on or measured by any
compensation received by the Delaware Trustee), claims, actions, investigations,
proceedings, costs, expenses or disbursements (including, without limitation,
reasonable legal fees and expenses, subject to the limitations imposed in this
Agreement) of any kind and nature whatsoever which may be imposed on, incurred
by or asserted at any time against an Indemnified Person (whether or not also
indemnified against by any other person but in all cases subject to the
limitations imposed in this Agreement) in any way relating to or arising out of
the Trust Agreement or any of the other agreements to which the Trust is or
becomes a party or the enforcement of any of the terms of any thereof or the
administration of the assets of the Trust or the action or inaction of the
Delaware Trustee under the Trust Agreement, except where any such claim for
indemnification has arisen as a result of the willful misconduct or gross
negligence on the part of the Indemnified Person, or the Indemnified Person's
failure to use ordinary care to disburse funds or the performance or
nonperformance of its duties under the Trust Agreement or any of the other
agreements to which the Trust becomes a party.
ARTICLE 7
TERMINATION OF AGREEMENT; DISSOLUTION OF THE TRUST
SECTION 7.1 Termination of Agreement. The Trust Agreement shall terminate
and the Trust 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 Notes and to the
Trust Beneficial Owner of all amounts required to be paid
pursuant to any Funding Notes, any Notes, the Indenture, the
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 of the Trust or any Holder shall not (i) operate to
terminate the Trust Agreement or 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
26
Holders or the parties hereto or any other document or any instrument entered
into by the Trust or (iv) dissolve the Trust.
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 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
the Trust Agreement shall terminate.
In connection with the termination of the Trust 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 the
Trust in the following order of priority:
First, to pay all expenses and other liabilities owed by the Trust;
and
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
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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.
(a) 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 upon not
less than 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 the
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 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 the
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.
(b) 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, the Trust (or the
Administrator, acting on its behalf) or the resigning Delaware
Trustee may apply to any court of competent jurisdiction to
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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.
(c) 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.
(d) 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.
(a) 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 the 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 the
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 the 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 the Trust
Agreement; and the Administrator and the predecessor Delaware
Trustee shall execute and deliver such instruments and do such
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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.
(b) Any successor Delaware Trustee appointed under the Trust
Agreement shall promptly file an amendment to the 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.
(c) 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.
(d) 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 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 the Trust Agreement,
anything in the Trust Agreement to the contrary notwithstanding, be the
successor of the Delaware Trustee under the Trust Agreement; provided, such
Person shall be eligible pursuant to Section 8.1.
SECTION 8.5 Appointment of Co-Delaware Trustee or Separate Delaware
Trustee.
(a) Notwithstanding any other provisions of the Trust Agreement, at
any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of any Collateral may at the
time be located, the Administrator and the Delaware Trustee shall
at any time have the power and shall execute and deliver all
instruments necessary to appoint one or more Persons approved by
the Delaware Trustee to act as co-Delaware Trustee, jointly with
it, or as separate Delaware Trustee or separate Delaware
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Trustees, of all or any part of any Collateral and, subject to
Section 4.4 of the Trust Agreement, to vest in such Person, in
such capacity, such title to any Collateral, or any part thereof,
and, subject to the other provisions of this Section 8.5, such
powers, duties, obligations, rights and trusts as the
Administrator and the Delaware Trustee may deem necessary or
desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request
so to do, the Delaware Trustee alone shall have the power to make
such appointment. No co-Delaware Trustee or separate Delaware
Trustee under the Trust Agreement shall be required to meet the
terms of eligibility as a successor Delaware Trustee pursuant to
Section 8.1 and no notice of the appointment of any co-Delaware
Trustee or separate Delaware Trustee shall be required; provided,
however, that any co-Delaware Trustee or separate Delaware
Trustee must be a "United States person" within the meaning of
Section 7701(a)(30) of the Code and a "bank" within the meaning
of Section 581 of the Code.
(b) Each separate Delaware Trustee and co-Delaware Trustee shall, to
the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Delaware Trustee shall be conferred or
imposed upon and exercised or performed by the Delaware
Trustee and such separate Delaware Trustee or co-Delaware
Trustee jointly (it being understood that such separate
Delaware Trustee or co-Delaware Trustee is not authorized to
act separately without the Delaware Trustee joining in such
act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed, the Delaware Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed by such
separate Delaware Trustee or co-Delaware Trustee, but solely
at the discretion of the Delaware Trustee;
(ii) the Administrator and the Delaware Trustee acting jointly
may at any time accept the resignation of or remove any
separate Delaware Trustee or co-Delaware Trustee; and
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(iii) no Delaware Trustee shall be personally liable by reason of
the act or omission of any other Delaware Trustee under the
Trust Agreement.
(c) Any notice, request or other writing given to the Delaware
Trustee shall be deemed to have been given to each of the then
acting separate Delaware Trustee and co-Delaware Trustee, as
effectively as if given to each of them. Every instrument
appointing any separate Delaware Trustee or co-Delaware Trustee
shall refer to this Section 8.5 and the conditions of this
Article 8. Each separate Delaware Trustee and co-Delaware
Trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instruments
of appointment, either jointly with the Delaware Trustee or
separately, as may be provided therein, subject to all the
provisions of the Trust Agreement, specifically including every
provision of the Trust Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the
Delaware Trustee. Each such instrument shall be filed with the
Delaware Trustee and a copy thereof shall be given to the
Administrator.
(d) Any separate Delaware Trustee or co-Delaware Trustee may at any
time appoint the Delaware Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of
the Trust Agreement on its behalf and in its name. If any
separate Delaware Trustee or co-Delaware Trustee shall become
incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be
exercised by the Delaware Trustee, to the extent permitted by
law, without the appointment of a new or successor Delaware
Trustee.
SECTION 8.6 Delaware Trustee May Own Notes. Except to the extent prohibited
under the terms of the Notes, the Delaware Trustee, in its individual or any
other capacity, may become the beneficial owner or pledgee of Notes, to the
extent that such ownership does not inhibit the Trust from relying on the
applicable exemption from registration as an "investment company" under the
Investment Company Act, with the same rights as it would have if it were not the
Delaware Trustee; provided, that any Notes so owned or pledged shall not be
entitled to participate in any decisions made or instructions given to the
Delaware Trustee or the Indenture Trustee by the Holders as a group. Except as
otherwise provided in this Section 8.6, the Delaware Trustee may deal with the
Trust and the Trust Beneficial Owner in banking and trustee transactions with
the same rights as it would have if it were not the Delaware Trustee.
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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 the 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 the
Trust Agreement, nor otherwise affect the rights, obligations and liabilities of
the parties to the Trust Agreement or any of them.
SECTION 9.2 Amendments.
(a) The 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 the Trust
Agreement, including, without limitation to: (i) cure any
ambiguity, (ii) correct, supplement or modify any provision of
the Trust Agreement that is inconsistent with another provision
of the Trust Agreement or (iii) modify, eliminate or add to any
provisions of the 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 Notes remain outstanding, except as provided in
Sections 9.2(c) and 9.2(d), any amendment to the Trust Agreement
that would adversely affect, in any material respect, the terms
of any Notes, other than 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 Notes.
(c) So long as any Notes remain outstanding, the Trust Agreement may
not be amended to (i) change the amount or timing of any payment
of any Notes or (ii) impair the right of any Holder to institute
suit for the enforcement of any right for principal and interest
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or other distribution, in each case without the consent of each
affected Holder.
(d) The Delaware Trustee shall not be required to enter into any
amendment to the Trust Agreement which adversely affects its own
rights, duties or immunities under the Trust Agreement.
(e) Prior to the execution of any amendment to the Trust Agreement,
the Delaware Trustee shall be entitled to an opinion of counsel
as to whether such amendment is permitted by the terms of the
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 the Trust
Agreement) to the Indenture Trustee, the Trust Beneficial Owner,
the Agents and the Rating Agencies.
(g) Contemporaneously with, or promptly after, the execution of any
amendment to the Trust Agreement requiring amendment to the
Certificate of Trust, the Delaware Trustee shall cause the filing
of such amendment to the Certificate of Trust with the Secretary
of State.
(h) Notwithstanding any other provision of the Trust Agreement, no
amendment to the 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 (B) the Notes to be treated as other than
indebtedness of Allstate Life and (ii) no amendment to the 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):
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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:
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
If to the Administrator:
AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxxx Xxxxxxx Syracuse & Hirschtritt LLP
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: -
If to the Indenture Trustee:
The Bank of New York Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: -
Facsimile: -
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If to the Rating Agencies:
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Capital Markets
Facsimile: (000) 000-0000
Xxxxx'x Investors Service Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Life Insurance Group
Facsimile: (000) 000-0000
or at such other address as shall be designated by any such person in a written
notice to each other person required to give or entitled to receive any notices
hereunder. 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 the then current address of the Administrator, and any notices
mailed within the time prescribed in the 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 Note shall be given as specified in the Indenture.
SECTION 9.4 No Recourse to Certain Persons. The Trust Beneficial Owner
acknowledges that its beneficial interest in the Trust does not represent an
obligation of Allstate Life, the Delaware Trustee, the Administrator, the
Indenture Trustee 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 the Trust Agreement or the Indenture.
SECTION 9.5 Limited Recourse. Notwithstanding anything to the contrary
contained in the Trust Agreement, the obligations of the Trust under the 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
Funding Agreements, the other Collateral and the 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 the Trust
Agreement, the Notes 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 the 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 the Trust Agreement, the Notes or any other Program Documents against
36
the Indenture Trustee, the Delaware Trustee, the Administrator, Allstate Life,
the Agents 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 any termination of the Trust Agreement.
SECTION 9.7 Governing Law. The 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 the Trust Agreement shall be
invalid, illegal or unenforceable, such provisions shall be deemed severable
from the remaining provisions of the Trust Agreement and shall in no way affect
the validity or enforceability of such other provisions of the Trust Agreement.
SECTION 9.9 No Third Party Beneficiaries. The Trust Agreement shall inure
to the benefit of and be binding upon the parties to the Trust Agreement and
their respective successors and permitted assigns. Except as otherwise provided
in the Trust Agreement, no other Person shall have any right or obligation under
the Trust Agreement.
SECTION 9.10 Counterparts. The Trust Agreement and any amendments,
supplements, modifications, restatements or replacements of the Trust Agreement,
or waivers or consents to the Trust Agreement, may be executed in any number of
counterparts, and by different parties to the 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. The Trust Agreement shall become
effective upon the execution of a counterpart to each of the parties to the
Trust Agreement.
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