EXHIBIT 4.2
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AMENDED AND RESTATED
TRUST AGREEMENT
OF
ALLSTATE LIFE GLOBAL FUNDING
DATED AS OF -, 2002
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS....................................................................................1
SECTION 1.1. DEFINITIONS..............................................................................1
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS............................................................7
ARTICLE 2 ORGANIZATION OF THE TRUST......................................................................8
SECTION 2.1. NAME AMENDMENT AND RESTATEMENT OF TRUST AGREEMENT........................................8
SECTION 2.2. ISSUANCE OF NOTES........................................................................8
SECTION 2.3. SERIES TRUST.............................................................................8
SECTION 2.4. COMPLIANCE WITH DELAWARE AND APPLICABLE LAW..............................................9
SECTION 2.5. OFFICE 9
SECTION 2.6. DELAWARE TRUSTEE.........................................................................9
SECTION 2.7. PURPOSES AND POWERS......................................................................9
SECTION 2.8. APPOINTMENT OF DELAWARE TRUSTEE.........................................................14
SECTION 2.9. CAPITAL CONTRIBUTIONS OF THE TRUST BENEFICIAL OWNER.....................................14
SECTION 2.10. LIABILITY..............................................................................14
SECTION 2.11. TITLE TO COLLATERAL....................................................................15
SECTION 2.12. SITUS OF TRUST.........................................................................15
SECTION 2.13. TAX TREATMENT..........................................................................15
ARTICLE 3 TRUST BENEFICIAL OWNER'S OWNERSHIP INTEREST IN THE DEPOSIT; INTEREST OF THE SERIES
BENEFICIAL OWNER.............................................................................15
SECTION 3.1. THE DEPOSIT.............................................................................15
SECTION 3.2. THE TRUST BENEFICIAL OWNER'S OWNERSHIP INTEREST IN THE DEPOSIT; INTEREST OF THE SERIES
BENEFICIAL OWNER......................................................................15
SECTION 3.3. SALE OR TRANSFER OF DEPOSIT CERTIFICATE OR SALE OR TRANSFER OF SERIES BENEFICIAL OWNER'S
INTEREST PROHIBITED...................................................................16
SECTION 3.4. DISTRIBUTION OF DEPOSIT.................................................................16
ARTICLE 4 THE NOTES.....................................................................................16
SECTION 4.1. ISSUANCE OF THE NOTES IN SERIES.........................................................16
SECTION 4.2. USE OF PROCEEDS; GRANT OF SECURITY INTEREST.............................................16
SECTION 4.3. COLLATERAL FOR EACH SERIES OF NOTES.....................................................17
SECTION 4.4. NO PARTNERS.............................................................................17
SECTION 4.5. SECURITY INTEREST IN THE COLLATERAL.....................................................17
ARTICLE 5 AUTHORITY AND DUTIES OF THE DELAWARE TRUSTEE..................................................17
SECTION 5.1. GENERAL AUTHORITY.......................................................................17
SECTION 5.2. GENERAL DUTIES..........................................................................18
SECTION 5.3. SPECIFIC DUTIES; FEDERAL INCOME TAX TREATMENT...........................................18
SECTION 5.4. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS..............................18
SECTION 5.5. DELEGATION OF AUTHORITIES AND DUTIES....................................................19
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ARTICLE 6 REGARDING THE
DELAWARE TRUSTEE................................................................19
SECTION 6.1. ACCEPTANCE OF TRUSTS AND DUTIES.........................................................19
SECTION 6.2. REPRESENTATIONS AND WARRANTIES..........................................................21
SECTION 6.3. RELIANCE; ADVICE OF COUNSEL.............................................................21
SECTION 6.4.
DELAWARE TRUSTEE NOT LIABLE FOR NOTES AND DEPOSIT CERTIFICATE...........................22
SECTION 6.5.
DELAWARE TRUSTEE MAY OWN NOTES..........................................................22
ARTICLE 7 COMPENSATION OF
DELAWARE TRUSTEE..............................................................22
SECTION 7.1.
DELAWARE TRUSTEE'S FEES AND EXPENSES....................................................22
SECTION 7.2. INDEMNIFICATION.........................................................................22
SECTION 7.3. NO RECOURSE.............................................................................23
ARTICLE 8 DISSOLUTION AND TERMINATION...................................................................24
SECTION 8.1. TERMINATION OF
TRUST AGREEMENT..........................................................24
SECTION 8.2. DISTRIBUTION OF REMAINING COLLATERAL....................................................25
SECTION 8.3. TERMINATION OF A SERIES.................................................................25
ARTICLE 9 SUCCESSOR
DELAWARE TRUSTEE....................................................................26
SECTION 9.1. ELIGIBILITY REQUIREMENTS FOR DELAWARE TRUSTEE...........................................26
SECTION 9.2. RESIGNATION OR REMOVAL OF DELAWARE TRUSTEE..............................................26
SECTION 9.3. SUCCESSOR DELAWARE TRUSTEE..............................................................27
SECTION 9.4. MERGER OR CONSOLIDATION OF DELAWARE TRUSTEE.............................................28
SECTION 9.5. APPOINTMENT OF CO-DELAWARE TRUSTEE OR SEPARATE DELAWARE TRUSTEE.........................28
ARTICLE 10 MISCELLANEOUS................................................................................30
SECTION 10.1. SUPPLEMENTS AND AMENDMENTS.............................................................30
SECTION 10.2. LIMITATION ON RIGHTS OF OTHERS.........................................................31
SECTION 10.3. NOTICES 31
SECTION 10.4. SEVERABILITY...........................................................................32
SECTION 10.5. COUNTERPARTS...........................................................................32
SECTION 10.6. SUCCESSORS AND ASSIGNS.................................................................32
SECTION 10.7. NO PETITION............................................................................32
SECTION 10.8. LIMITED RECOURSE.......................................................................32
SECTION 10.9. HEADINGS...............................................................................33
SECTION 10.10. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..........................33
SECTION 10.11. SERIES BENEFICIAL OWNER BOUND BY
TRUST AGREEMENT......................................33
SECTION 10.12. ENTIRE AGREEMENT......................................................................33
SECTION 10.13. NO WAIVER.............................................................................33
SECTION 10.14. REMEDIES CUMULATIVE...................................................................34
SECTION 10.15. THE ADMINISTRATOR.....................................................................34
EXHIBIT A FORM OF DEPOSIT CERTIFICATE
EXHIBIT B FORM OF SERIES TRUST SUPPLEMENT
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THIS AMENDED AND RESTATED
TRUST AGREEMENT (this "
TRUST AGREEMENT")
dated and effective as of November -, 2002, is entered into between the
undersigned Delaware Trustee (as defined below) and the Trust Beneficial Owner
(as defined below):
WHEREAS, the Delaware Trustee and the Trust Beneficial Owner have
established a statutory trust pursuant to the Delaware Statutory Trust Act (as
defined below) for the purposes of, among other things, (i) issuing Notes (as
defined below) to investors, the proceeds of which are to be used to purchase
Funding Agreements (as defined below) from Allstate Life (as defined below),
(ii) entering into the Support and Expenses Agreement (as defined below) with
Allstate Life, (iii) holding the Deposit (as defined below) for the benefit of
the Trust Beneficial Owner and (iv) engaging in activities incidental thereto.
WHEREAS, the Delaware Trustee and the Trust Beneficial Owner have
entered into that certain
Trust Agreement, dated as of June 24, 2002 (the "BASE
TRUST AGREEMENT"), and the parties hereto desire to amend and restate the Base
Trust Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the covenants set
forth in this
Trust Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS. The following terms, as used herein, have
the following definitions:
"ADDITIONAL AMOUNTS" shall have the meaning ascribed in the Indenture.
"ADMINISTRATIVE AGREEMENT" means that certain amended and restated
administrative services agreement dated as of - by and between the Trust and the
Administrator, as the same may be amended from time to time.
"ADMINISTRATOR" means AMACAR Pacific Corp., a Delaware corporation in
its capacity as the sole administrator of the Trust and each Series of the Trust
pursuant to the Administrative Agreement, and its permitted successors and
assigns.
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by",
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENTS" has the meaning specified in the relevant Distribution
Agreement.
"ALLSTATE LIFE" means Allstate Life Insurance Company, an Illinois
stock life insurance company, and its successors.
"ASSIGNED DOCUMENTS" means, with respect to any Tranche of Notes, the
Funding Agreement and the Support and Expenses Agreement relating to such
Tranche of Notes and those agreements, instruments or other documents (if any)
relating to such Tranche of Notes.
"BENEFICIAL OWNER" means any Person in whose name Notes are credited
to a securities account maintained in the name of such Person on the books and
records of a Clearing Corporation or other Securities Intermediary.
"CERTIFICATE OF TRUST" means the certificate of trust of the Trust
filed with the Office of the Secretary of State of the State of Delaware,
effective June 24, 2002.
"CODE" means the United States Internal Revenue Code of 1986, as
amended, including any successor statutes and any applicable rules, regulations,
notices or orders promulgated thereunder.
"COLLATERAL" means, with respect to any Series of Notes, (i) each
Funding Agreement from time to time issued by the Funding Agreement Provider and
securing such Series of Notes, whether owned at the time of issuance of such
Series of Notes or thereafter acquired by the Issuer, including all benefits,
rights, privileges and options thereunder, (ii) any other collateral specified
in the applicable Pricing Supplement, (iii) all Proceeds in respect of each such
Funding Agreement, and (iv) all books and records (including without limitation,
computer programs, printouts and other computer materials and files) of the
Issuer pertaining to the foregoing, as described in each Note Certificate or
Supplemental Indenture with respect to such Series of Notes.
"COMMISSION" has the meaning specified in Section 2.7(a)(v).
"CONTINGENT OBLIGATION" means, with respect to any Person, without
duplication, any direct or indirect liability, contingent or otherwise, of that
Person (i) with respect to any Indebtedness, lease, dividend, letter of credit
or other obligation of another if the primary purpose or intent thereof by the
Person incurring the Contingent Obligation is to provide assurance to the
obligee of such obligation of another that such obligation of another will be
paid or discharged, or that any agreements relating thereto will be complied
with, or that the holders of such obligation will be protected (in whole or in
part) against loss in respect thereof, (ii) under any letter of credit issued
for the account of or for which that Person is otherwise liable for
reimbursement thereof, (iii) under agreements providing for the hedging or
limitation of interest rate or currency risk, (iv) under any performance bond or
other surety arrangement, (v) under any direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
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Person of the obligation of another or (vi) for the obligations of another
through any agreement (contingent or otherwise); PROVIDED, HOWEVER, that
indemnification agreements, service agreements and expense agreements included
in this Trust Agreement or any Program Documents entered into in connection with
the Program and/or the issuance of any Tranche of Notes shall not be considered
to be Contingent Obligations.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Delaware Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original execution
of this Trust Agreement is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"DELAWARE STATUTORY TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as the same may be amended from
time to time.
"DELAWARE TRUSTEE" means Wilmington Trust Company, not in its
individual capacity but solely in its capacity as trustee, and its successors.
"DEPOSIT" means an amount equal to $1,000 sold, assigned, transferred,
conveyed and set over to the Trust by the Trust Beneficial Owner pursuant to the
terms hereof.
"DEPOSIT CERTIFICATE" means a certificate in, or substantially in, the
form attached hereto as Exhibit A evidencing the beneficial ownership interest
in the Deposit and the other assets of the Trust not otherwise allocated to a
Series of the Trust, as the same may be amended, modified, restated,
supplemented and/or replaced from time to time.
"DISTRIBUTION AGREEMENT" means one or more distribution agreements by
and among the Trust and the Agents, as the same may be amended, modified,
restated, supplemented and/or replaced from time to time.
"EXPENSES" has the meaning ascribed in Section 7.2 of this Trust
Agreement.
"FUNDING AGREEMENT" means each funding agreement between the Funding
Agreement Provider and Issuer issued from time to time by the Funding Agreement
Provider up to the principal amount or amounts as may from time to time be
authorized by the Funding Agreement Provider and subsequently assigned by the
Issuer to the Indenture Trustee in accordance with the Indenture, as any of the
same shall be amended from time to time.
"HOLDER" means, with respect to any Note, (i) any Person who has
possession of the Note Certificate representing such Note if (A) such Note
Certificate is indorsed to such Person or in blank by an effective endorsement
or (B) such Note is registered in the name of such Person in the applicable Note
Register or (ii) if there is no
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such Person, any Person in whose name such Note is registered in the applicable
Note Register.
"INDEBTEDNESS" means, as applied to any Person, (i) all indebtedness
for borrowed money or for the deferred purchase price of property or services in
respect of which such Person is liable, contingently or otherwise, or in respect
of which such Person otherwise assures a creditor against loss, (ii) that
portion of obligations with respect to capital leases which is properly
classified as a liability on a balance sheet in conformity with generally
accepted accounting principles, consistently applied, (iii) obligations
evidenced by bonds, notes, debentures or similar instruments of such Person, and
instruments payable by such Person and drafts accepted by such Person
representing extensions of credit whether or not representing obligations for
borrowed money, (iv) the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn thereunder and
(v) all indebtedness secured by any Lien on any property or asset owned or held
by that Person regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is non-recourse to the credit of that Person.
"INDEMNIFIED PARTIES" has the meaning ascribed in Section 7.2 of this
Trust Agreement.
"INDENTURE" means the indenture dated as of - by and between the Trust
and Bank One National Association in its capacity as Indenture Trustee and
Paying Agent as the same may be amended, modified, restated, supplemented and/or
replaced from time to time by one or more indentures supplemental thereto
entered into pursuant to the applicable provisions thereof and, with respect to
any Note, by the terms and provisions of such Note.
"INDENTURE TRUSTEE" means Bank One National Association, until a
successor Indenture Trustee shall have become such with respect to one or more
Series of Notes pursuant to the applicable provisions of the Indenture, and
thereafter "Indenture Trustee" shall mean each Person who is then an Indenture
Trustee thereunder; PROVIDED, HOWEVER, that if at any time there is more than
one such Person, "Indenture Trustee" shall mean each such Person and as used
with respect to the Notes of any Series shall mean the Indenture Trustee with
respect to the Notes of such Series.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"LICENSE AGREEMENT" means that certain License Agreement to be entered
into by and between Allstate Insurance Company and the Trust,
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
any financing lease
4
having substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the UCC or comparable law of any
jurisdiction).
"MOODY'S" means Xxxxx'x Investors Service, Inc., and its successors.
"NOTE" has the meaning stated in the first recital of the Indenture
each in an authorized denomination and represented individually or collectively
by a Note Certificate authenticated and delivered under the Indenture.
"OPINION OF COUNSEL" means a written opinion of legal counsel who may,
except as otherwise expressly provided in this Trust Agreement, be counsel for
the Trust, and who shall be reasonably satisfactory to each addressee of the
relevant opinion.
"PAYING AGENT" means the Indenture Trustee and any substitute or
additional paying agent appointed in accordance with the Indenture, and its
permitted successors and assigns.
"PERMITTED EXPENSES" means any expenses the Trust has agreed to pay
pursuant to one or more of the Program Documents.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, limited liability company, joint
venture, association, company, trust (including any beneficiary thereof), bank,
trust company, land trust, business trust or other organization, whether or not
a legal entity, and governments and agencies and political subdivisions thereof.
"PRICING SUPPLEMENT" means, with respect to any Tranche of Notes, the
pricing supplement prepared by, or on behalf of, the Trustee in connection with
such Tranche of Notes and executed by the Trustee, with such modifications as
the Trustee may deem necessary, and as the same may be amended, modified,
restated, supplemented and/or replaced from time to time.
"PROGRAM" means the program established by the Issuer for the
continuous issuance of Notes pursuant to the Indenture.
"PROGRAM DOCUMENTS" means the Notes, the Indenture, any Pricing
Supplement, any Relevant Agreement, the Administrative Agreement, any
Distribution Agreement, the Series Trust Supplements, the Support and Expenses
Agreement, the License Agreement, the Funding Agreements, the SEC Documents, the
documents relating to the assignment of the Funding Agreements to the Trust and
any other agreement or document to which the Trust is a party or signatory.
"RATING AGENCY" means any of Standard and Poor's, Moody's or any other
"nationally recognized statistical rating organization" (as such term is defined
in Rule 436(g)(2) of the Securities Act).
"RELEVANT AGENTS" means, with respect to a Relevant Agreement which is
made between the Trust and more than one Agent, the Person specified as such or
as the
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lead manager in the Pricing Supplement and/or in such Relevant Agreement; and,
with respect to a Relevant Agreement which is made between the Trust and a
single Agent, the Relevant Agent will be such Agent.
"RELEVANT AGREEMENT" means any agreement entered into from time to
time between the Trust and one or more Agents relating to the sale of Notes.
"RESPONSIBLE OFFICER" when used with respect to any Person means the
chairman of the board of directors or any vice chairman of the board of
directors or the president or any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "vice
president") of such Person. With respect to the Delaware Trustee or Issuer,
Responsible Officer means any Responsible Officer (as defined in the preceding
sentence) plus any assistant secretary and any officer of the Delaware Trustee
and with respect to the Issuer, or of the Administrator, and with respect to the
Trustee, Responsible Officer means any Responsible Officer (as defined in the
first sentence of this definition) plus the chairman of the trust committee, the
chairman of the executive committee, any vice chairman of the executive
committee, the cashier, the secretary, the treasurer, any trust officer, any
assistant trust officer, any assistant vice president, any assistant cashier,
any assistant secretary, any assistant treasurer, or any other authorized
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"SEC DOCUMENTS" means (i) any registration statement, including any
preliminary prospectus or prospectus supplement thereto and the exhibits
included therein, any per-effective or post-effective amendments thereto and any
registration statements filed thereafter under the Securities Act relating to
the registration under the Securities Act of any Series of Notes and certain
other securities and (ii) any other documents, filings or forms required to be
filed by the Trust or any Series of the Trust under the Securities Exchange Act
of 1934, as amended, or the Trust Indenture Act of 1939, as amended, or any
securities laws, rules or regulations of any state or any rules or regulations
of any national; securities exchange or market quotation dealer system or the
National Association of Securities Dealers.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations thereunder.
"SERIES" or "SERIES OF NOTES" means a series of Notes comprised of one
or more Tranches, the terms of which Tranche or Tranches of Notes are identical
except that the issue date, the issue price and the amount of the first payment
of interest may be different in respect of different Tranches and a Series may
comprise Notes in more than one denomination.
"SERIES BENEFICIAL OWNER" means The American National Red Cross as the
sole "beneficial owner" of each Series of the Trust (as defined and used in
Sections 3801(b) and 3806(b)(2) of the Delaware Statutory Trust Act).
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"SERIES OF THE TRUST" means a series of the Trust created pursuant to
Sections 3804 and 3806(b)(2) of the Delaware Statutory Trust Act; as such,
separate and distinct records shall be maintained and the assets of the Trust
associated with each Series of the Trust shall be held and accounted for
separately from the other assets of the Trust or any other Series of the Trust;
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to each Series of the Trust shall be enforceable
against the assets of such Series of the Trust only, and not against the assets
of the Trust generally or the assets of any other Series of the Trust. There
will be a separate Series of the Trust created pursuant to each Series Trust
Supplement and corresponding to each Series of Notes issued pursuant to the
Indenture.
"SERIES TRUST SUPPLEMENT" means, with respect to each Series of the
Trust, the related series trust supplement to this Trust Agreement in, or
substantially in, the form attached hereto as Exhibit B, as the same may be
amended, modified, restated, supplemented and/or replaced from time to time.
"STANDARD AND POOR'S" means Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, and its successors.
"SUPPORT AND EXPENSES AGREEMENT" means that certain support and
expenses agreement, dated as of June 27, 2002, by and between the Funding
Agreement Provider and the Issuer, as the same may be amended from time to time.
"TRANCHE" or "TRANCHE OF NOTES" means Notes which are issued on the
same issue date, the terms of which are identical in all respects (except that a
Tranche may comprise Notes in more than one denomination).
"TRUST" means
Allstate Life Global Funding, a Delaware statutory
trust, and its successors and assigns.
"TRUST AGREEMENT" means this governing instrument as originally
executed and delivered, as this instrument may be amended, modified, restated,
supplemented (including by Series Trust Supplements) and/or replaced from time
to time.
"TRUST BENEFICIAL OWNER" means, in its capacity as a beneficial owner
of the Trust, AMACAR Pacific Corp. and its successors.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS. For all purposes of
this Trust Agreement except as otherwise expressly provided or unless the
context otherwise requires:
All capitalized terms used herein and not otherwise defined will have
the meanings set forth in the Indenture;
(a) the terms defined in this Article 1 shall have the meanings
ascribed to them in this Article 1 and shall include the
plural as well as the singular; PROVIDED, THAT, all
capitalized terms used herein and not
7
otherwise defined herein will have the meanings set forth in
the Indenture;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles in the United States and,
except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder 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 this Trust
Agreement or the intent of the parties hereto;
(e) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section, Exhibit or other
subdivision; and
(f) references herein to Articles, Sections and Exhibits shall,
unless otherwise specified, refer respectively to Articles and
Sections hereof and Exhibits hereto.
ARTICLE 2
ORGANIZATION OF THE TRUST
SECTION 2.1. NAME AMENDMENT AND RESTATEMENT OF TRUST AGREEMENT. The
Trust created under the Base Trust Agreement is known as "
Allstate Life Global
Funding." The Trust's activities may be conducted under the name of the Trust by
the Delaware Trustee or by the Administrator on its behalf. This Trust Agreement
amends and restates the Base Trust Agreement in its entirety.
SECTION 2.2. ISSUANCE OF NOTES. The Trust is authorized to issue
Notes in series. Upon request of the Trust Beneficial Owner, the Delaware
Trustee may at any time and from time to time enter into a Series Trust
Supplement with the Trust Beneficial Owner and respective Series Beneficial
Owner for the purpose of authorizing the issuance of one or more Series of
Notes. Each Series of the Trust will be created pursuant to a separate Series
Trust Supplement and shall constitute a separate Series of the Trust. Each
Series of Notes will be made up of separate Tranches of Notes. The Holders of
each Series shall only have recourse to the Collateral related to such Series of
Notes and shall have no right to receive payments under the Collateral related
to any other Series of Notes or other assets or any other Series of the Trust.
SECTION 2.3. SERIES TRUST. The Trust is a series trust pursuant to
Sections 3804 and 3806(b)(2) of the Delaware Statutory Trust Act, and each
Series of the
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Trust shall be a separate series of the Trust within the meaning of Section
3806(b)(2) of the Delaware Statutory Trust Act. As such, separate and distinct
records shall be maintained for each Series of the Trust and the assets of the
Trust associated with each Series of the Trust shall be held and accounted for
separately from the other assets of the Trust or any other Series of the Trust.
The debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a Series of the Trust shall be enforceable
against the assets of such Series of the Trust incurring such debts,
liabilities, obligations or expenses, and not against the assets of the Trust
generally or the assets of any other Series of the Trust, and, unless otherwise
provided in this Trust Agreement, none of the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to the
Trust generally or any other Series thereof shall be enforceable against the
assets of such Series. There will be a separate Series of the Trust created
pursuant to each Series Trust Supplement and corresponding to each Series of
Notes issued pursuant to the Indenture.
SECTION 2.4. COMPLIANCE WITH DELAWARE AND APPLICABLE LAW. The Trust
is in compliance, and agrees to conduct its business activities in accordance,
with Delaware and other applicable law.
SECTION 2.5. OFFICE. The principal office of the Trust and of each
Series of the Trust shall be in care of the Delaware Trustee at the Corporate
Trust Office or at such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Indenture Trustee, the
Administrator and the Trust Beneficial Owner. The Trust shall also maintain an
office in care of the Administrator as follows:
Allstate Life Global Funding
c/o AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
SECTION 2.6. DELAWARE TRUSTEE. The name and address of the Trust's
trustee in the State of Delaware is as follows:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
SECTION 2.7. PURPOSES AND POWERS.
(a) The purpose of the Trust is to engage in the following
activities:
(i) to hold the Deposit and other assets of the Trust not
otherwise allocated to a particular Series of the
Trust for the benefit of the Trust Beneficial Owner;
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(ii) to issue, from time to time, Notes to investors, the
proceeds of which are to be used to purchase Funding
Agreements from Allstate Life;
(iii) to purchase at any time Notes at any price or prices
in the open market or otherwise with such Notes to be,
at the Trust's discretion, held by the Trust, resold,
or surrendered to the Indenture Trustee for
cancellation;
(iv) to register the Notes under the Securities Act and
under the state securities or blue sky laws, and to
qualify the Indenture as a trust indenture under the
Trust Indenture Act of 1939, as amended, and to, from
time to time, list one or more Series of the Notes on
any stock exchanges or market systems set forth in any
Pricing Supplement;
(v) to file with the Securities and Exchange Commission
(the "COMMISSION") and execute (a) a registration
statement on Form S-1 or other appropriate form,
including the prospectus and the exhibits included
therein, any pre-effective or post-effective
amendments thereto and any registration statements
filed subsequent thereto under rules promulgated under
the Securities Act, relating to the registration of
the Notes and any other securities under the
Securities Act, (b) any preliminary prospectus or
prospectus or supplement thereto relating to any Notes
required to be filed pursuant to the Securities Act,
and (c) registration statements and such other
documents, forms or filings as may be required by the
Securities Act, the Securities Exchange Act of 1934,
as amended, or the Trust Indenture Act of 1939, as
amended, or other securities laws in each case
relating to any Notes;
(vi) to file and execute such filings, applications,
reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and
other papers and documents as may be necessary or
desirable to register, or establish the exemption from
registration of, any Notes under the securities or
"Blue Sky" laws of any relevant jurisdictions;
(vii) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to
any Notes;
(viii) to enter into the Support and Expenses Agreement with
Allstate Life;
10
(ix) to grant a first priority perfected security interest
in and collaterally assign the rights, title and
interest of the Trust, with respect to the relevant
Series of the Trust, in the Collateral for any Series
of Notes (which may include multiple Tranches) to the
Indenture Trustee for the benefit of the Holders of
such Tranches of Notes and to seek release of such
security interest upon payment in full of all amounts
due and owing on such Series of Notes, including
without limitation, principal, premium (if any) and
interest and any Additional Amounts then due, required
to be paid with respect to such Series of Notes
pursuant to the terms and conditions of the Notes or
the Indenture;
(x) to pay the organizational, start-up, transactional and
ongoing expenses of the Trust;
(xi) to make, or cause to be made, all payments due on the
Notes including interest, principal and premium (if
applicable) and Additional Amounts (if applicable) in
accordance with the Indenture;
(xii) to enter into and perform its obligations under this
Trust Agreement, the Program Documents, the Assigned
Documents, the Pricing Supplement or any other
document or instruments to which the Trust is or may
become a party in connection with the issuance of each
Series of the Notes or the creation of each Series of
the Trust; and
(xiii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient
to accomplish the foregoing or are incidental thereto
or connected therewith.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall have the power and authority to engage in the foregoing and not
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the terms of this Trust Agreement or the Program
Documents.
(b) The Trust will not:
(i) sell, transfer, exchange, assign, lease, convey or
otherwise dispose of any of the assets of the Trust or
any Series of the Trust (now owned or hereafter
acquired), including, without limitation, any portion
of any Collateral other than the Deposit, except as
expressly permitted by the Indenture and this Trust
Agreement;
11
(ii) make any deduction or withholding from the principal
of or interest on any Series of Notes (other than
amounts that may be required to be withheld 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 any relevant
Pricing Supplement;
(iii) engage in any business or activity other than in
connection with, or relating to, (A) the execution and
delivery and performance of the this Trust Agreement,
Program Documents and any Assigned Documents relating
to any Series of the Trust or Tranche of Notes and the
transactions contemplated thereby, (B) the issuance of
the Notes pursuant to the Indenture and corresponding
Pricing Supplement, (C) holding the Deposit for the
benefit of the Trust Beneficial Owner and (D) any
activities, including entering into agreements that
are necessary, suitable or convenient to accomplish
the objectives listed in Section 2.7(a);
(iv) incur or otherwise become liable, directly or
indirectly, for any Indebtedness or Contingent
Obligation except for the Notes and then only on a
non-recourse basis and as otherwise required or
contemplated under the Program;
(v) (1) permit the validity or effectiveness of the
Indenture or any grant to be impaired, or permit the
Lien under the Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any
Person to be released from any covenants or
obligations under any Assigned Document, except as may
be expressly permitted thereby, (2) amend or vary, or
acquiesce in any amendment or variation of, or
terminate, any outstanding Funding Agreement, the
Support and Expenses Agreement, except as may be
expressly contemplated by the Indenture, (3) create,
incur, assume, or permit any Lien or other encumbrance
(other than the Lien under the Indenture) on any of
its properties or assets now owned or hereafter
acquired, or any interest therein or the proceeds
thereof or (4) permit a Lien under the Indenture not
to constitute a valid first priority perfected
security interest in the applicable Collateral;
(vi) fail to comply with any material provision of this
Trust Agreement or any supplement hereto;
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(vii) lend or advance any moneys to, or make any investment
in, any Person except for the investment of any funds
of the Trust or any Series of the Trust held by the
Indenture Trustee, Delaware Trustee, Administrator,
the Registrar or the Paying Agent as provided in any
Assigned Document or the Indenture;
(viii) directly or indirectly make any distribution or other
payment to the Trust Beneficial Owner, or pay, prepay,
purchase, repurchase or retire any securities or any
Indebtedness (or part thereof) other than (1) the
repayment, redemption or repurchase of one or more
Series of Notes issued in accordance with their
respective originally stated terms of issue or in a
negotiated transaction by and among the Holder, the
Trust and Allstate Life or and Affiliate thereof, or
(2) payments of Permitted Expenses;
(ix) make any withdrawals or transfers from any Funding
Agreement, or give any notice or instruction or take
any other action with respect to any Funding
Agreement, without (1) obtaining the prior consent of
the Indenture Trustee to any such action and (2)
notifying any Rating Agency then rating the Program or
the relevant Series of Notes;
(x) exercise any rights with respect to the Collateral
except at the direction of, or with the prior written
approval of, the Indenture Trustee;
(xi) become required to register as an "investment company"
as such term is defined in the Investment Company Act;
(xii) except as permitted under the Indenture, enter into
any transaction of merger or consolidation or
liquidate or dissolve itself (or 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;
(xiii) have any subsidiaries or any employees other than the
Delaware Trustee, the Administrator and other Persons
necessary to conduct its business and enter into
transactions contemplated under the Indenture;
(xiv) have an interest in any bank account other than
accounts expressly permitted by the Indenture Trustee;
PROVIDED, that, any such accounts or the Trust's
interest therein shall
13
be charged or otherwise secured in favor of the
Indenture Trustee on terms acceptable to the Indenture
Trustee;
(xv) take any position for United States Federal income tax
purposes that is inconsistent with the treatment of
the Notes as indebtedness of Allstate Life unless
otherwise required by applicable law; or
(xvi) vary the assets of any Series of the Trust or
otherwise take any action or fail to take any action
which action or failure to act would cause the Trust
or any Series of the Trust to fail either to be
ignored or to qualify as a "grantor trust" for United
States Federal income tax purposes.
(xvii) make any deduction or withholding from any payment of
principal of or interest on any Series of 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 any
relevant Collateral except of to the extent specified
in the Indenture or the applicable Note;
(xviii) permit any Affiliate, employee or officer of Allstate
Life or any Agent to be a trustee of the Trust; or
(xix) commingle the assets of any Series of the Trust with
any assets of any other Series of the Trust or any
assets of any Series of the Trust with any assets of
any of the Trust's Affiliates, or guarantee any
obligation of any of the Trust's Affiliates.
SECTION 2.8. APPOINTMENT OF DELAWARE TRUSTEE. Wilmington Trust
Company is hereby appointed as trustee of the Trust and each Series of the Trust
thereunder, effective as of the date hereof, to have all the rights, powers and
duties set forth herein.
SECTION 2.9. CAPITAL CONTRIBUTIONS OF THE TRUST BENEFICIAL OWNER.
On June 24, 2002, the Trust Beneficial Owner sold, assigned, transferred,
conveyed and set over to the Trust the sum of $1,000 for the sole beneficial
interest in the Deposit.
SECTION 2.10. LIABILITY. Neither the Holders, the Trust Beneficial
Owner nor the Series Beneficial Owner shall have any personal liability for any
liability or obligation of the Trust or any Series of the Trust. The Trust
Beneficial Owner and the Series Beneficial Owner shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
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SECTION 2.11. TITLE TO COLLATERAL. Legal title to the Collateral
shall be vested at all times in the Trust, except where applicable law in any
jurisdiction requires title to any part of the Collateral to be vested in the
Delaware Trustee or any co-trustee, in which case legal title shall be deemed to
be vested in the Delaware Trustee or any co-trustee appointed hereunder for such
purpose.
SECTION 2.12. 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 or any Series of the
Trust shall be located in the State of Delaware. Payments will be received by
the Trust or any Series of the Trust only in Delaware or the jurisdiction of
Allstate Life, the Administrator, the Indenture Trustee or co-trustee of the
Trust, and payments will be made by the Trust or any Series of the Trust only
from Delaware or the jurisdiction of Allstate Life, the Administrator, the
Indenture Trustee or co-trustee of the Trust. The only office of the Trust or
any Series of the Trust will be at the Corporate Trust Office in the State of
Delaware.
SECTION 2.13. TAX TREATMENT. (a) (a) The parties hereto hereby
agree, and each Holder and any Beneficial Owner of a Note by
its purchase of a Note are deemed to agree, that for United
States Federal, state and local income and franchise tax
purposes:
(i) each Note be treated as indebtedness of Allstate Life;
and
(ii) the Trust and any Series of the Trust be ignored.
(b) The parties hereto hereby agree, and each Holder and any
Beneficial Owner of a Note by its purchase of a Note are
deemed to have agreed, to not take any action inconsistent
with the treatment described in Section 2.13(a) (including,
without limitation, under United States Treasury Regulations
Sections 301.7701-2, or 000-0000-0, the "check-the-box"
regulations unless otherwise required by applicable laws).
ARTICLE 3
TRUST BENEFICIAL OWNER'S OWNERSHIP INTEREST IN THE DEPOSIT;
INTEREST OF THE SERIES BENEFICIAL OWNER
SECTION 3.1. THE DEPOSIT. The Deposit shall be an amount equal to
$1,000.
SECTION 3.2. THE TRUST BENEFICIAL OWNER'S OWNERSHIP INTEREST IN THE
DEPOSIT; INTEREST OF THE SERIES BENEFICIAL OWNER. The Trust Beneficial Owner is
the sole owner of a beneficial ownership interest in the Deposit and any other
assets of the Trust not allocated to a Series of the Trust. The Trust Beneficial
Owner's beneficial ownership interest in the Deposit shall be evidenced by a
Deposit Certificate. The Series Beneficial Owner shall not be required to make
any deposit, perform any service or otherwise
15
provide any consideration in exchange for its beneficial interest in any Series
of the Trust. The Series Beneficial Owner's interest in each Series of the Trust
will not be represented by any certificate or other instrument.
SECTION 3.3. SALE OR TRANSFER OF DEPOSIT CERTIFICATE OR SALE OR
TRANSFER OF SERIES BENEFICIAL OWNER'S INTEREST PROHIBITED. Except to the extent
required by applicable law, none of the Trust Beneficial Owner, the Series
Beneficial Owner, the Trust, the Delaware Trustee or the Administrator shall
cause or permit the sale or other transfer of all or a portion of the Trust
Beneficial Owner's interest in the Trust or the Series Beneficial Owner's
interest in any Series of the Trust, or cause or permit the creation,
incurrence, assumption or existence of any Lien on all or a portion of the Trust
Beneficial Owner's interest in the Trust or the Series Beneficial Owner's
interest in any Series of the Trust. To the extent permitted by applicable law,
any sale or other transfer of, or any creation, incurrence, assumption or
existence of any Lien on, all or a portion of the Trust Beneficial Owner's
interest in the Trust or the Series Beneficial Owner's interest in any Series of
the Trust shall be null and void.
SECTION 3.4. DISTRIBUTION OF DEPOSIT. The Deposit shall be
distributed in full by the Trust to the Trust Beneficial Owner upon presentation
of and in exchange for the Deposit Certificate at the date and place determined
by the Trust Beneficial Owner in its sole discretion; PROVIDED, HOWEVER, that no
such distribution shall be made prior to the payment to the Holders of all
Series of Notes of all amounts, including, without limitation, principal,
interest, premium or Additional Amounts, required to be paid to them pursuant to
the terms and conditions of the Notes or the Indenture and prior to the payment
to the Series Beneficial Owner of all amounts due to such Series Beneficial
Owner under this Trust Agreement. By virtue of its acceptance of its designation
as beneficial owner of each Series of the Trust, the Series Beneficial Owner
hereby agrees that it has and shall have no interest in, to or under the Deposit
and hereby agrees not to assert any claim at any time to the Deposit, any
portion thereof or any amount or account representing or in which the Deposit is
held.
ARTICLE 4
THE NOTES
SECTION 4.1. ISSUANCE OF THE NOTES IN SERIES. In connection with
the issuance of the first Tranche of each new Series of Notes and the
establishment of the related Series of the Trust, the parties hereto shall
execute a Series Trust Supplement which shall specify the relevant terms with
respect to such new Series of the Trust. Each Series of Notes shall correspond
to a separate Series of the Trust. The issuance and the terms and conditions of
each Series of the Notes shall be governed by the Indenture and one or more
related Pricing Supplements.
SECTION 4.2. USE OF PROCEEDS; GRANT OF SECURITY INTEREST. In
connection with the issuance of each Tranche of Notes, the Trust will use the
net proceeds of the issuance of such Tranche of Notes to purchase from Allstate
Life the Funding Agreement(s) relating to such Tranche of Notes.
16
SECTION 4.3. COLLATERAL FOR EACH SERIES OF NOTES. Each Series of
Notes will be secured by separate Collateral. Separate and distinct records
shall be maintained for each Series of the Trust and the assets of each Series
of the Trust shall be held and accounted for separately from the other assets of
the Trust or any other Series of the Trust; the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to each
Series of the Trust shall be enforceable against the assets of such Series of
the Trust only, and not against the assets of the Trust generally or the assets
of any other Series of the Trust.
SECTION 4.4. NO PARTNERS. Nothing set forth in this Trust
Agreement, or contained in the Terms and Conditions, shall be construed to
constitute the Holders of Notes, the Trust Beneficial Owner or the Series
Beneficial Owner from time to time as partners or members of an association.
SECTION 4.5. SECURITY INTEREST IN THE COLLATERAL. The Trust shall
collaterally assign and grant to the Indenture trustee, on behalf of the Holders
and any other Person for whose benefit the Indenture Trustee is holding the
applicable Series Collateral, a first priority perfected security interest in
and to the Funding Agreement(s) purchased by the Trust. By Executing each Note,
the Trust acknowledges with respect to the applicable Series, its duties set
forth in this Section.
ARTICLE 5
AUTHORITY AND DUTIES OF THE DELAWARE TRUSTEE
SECTION 5.1. GENERAL AUTHORITY. The Delaware Trustee is
authorized and empowered (but shall have no duty, except as set forth in
Section 5.4), among other things, to (a) execute and deliver on behalf of the
Trust the Program Documents and the Assigned Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit
to, or contemplated by, the Program Documents and the Assigned Documents to
which the Trust is to be a party and any amendment or other agreement to
which the Trust is to be a party, (b) take all actions required of the Trust
or any Series of the Trust pursuant to the Program Documents and the Assigned
Documents including, but not limited to (i) paying, or causing to be paid, on
behalf of the Trust or the Series of the Trust any amounts due and owing by
the Trust or any Series of the Trust under the Program Documents and the
Assigned Documents or any other documents or instruments to which the Trust
is a party, (ii) providing certificates required under the Program Documents
and the Assigned 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 and the Assigned Documents or any
other documents or instruments deliverable by the Trust thereunder or in
connection herewith or therewith, (c) cause each Series of the Trust to
perform under the Program Documents and the Assigned Documents to which the
Trust is a party 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 or any Series of the Trust as is permitted by the Program
Documents and the Assigned Documents.
17
SECTION 5.2. GENERAL DUTIES. It shall be the duty of the Delaware
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Trust Agreement, or any other documents or
instruments to which it is a party and to administer the Trust and each Series
of the Trust subject to the provisions of this Trust Agreement. Notwithstanding
the foregoing, the Delaware Trustee shall be deemed to have discharged its
duties and responsibilities hereunder to the extent (a) such duties and
responsibilities shall have been performed by the Administrator and (b) the
Administrator is required or permitted hereunder, under the Administrative
Agreement or under any other document or instrument to which the Trust is a
party, to perform any act or to discharge such duty of the Delaware Trustee or
the Trust and any Series of the Trust hereunder or under the Program Documents,
the Assigned Documents or any other documents or instruments to which the Trust
is a party; 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 hereunder or thereunder but only to the extent such obligations are
not also required to be carried out by the Delaware Trustee.
SECTION 5.3. SPECIFIC DUTIES; FEDERAL INCOME TAX TREATMENT. The
Delaware Trustee shall not take any action, or direct the Administrator to take
any action, which would be inconsistent with Section 2.13 of this Trust
Agreement.
SECTION 5.4. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. Subject to Sections 5.1, 5.2 and 5.3, Delaware Trustee is
authorized and directed to enter into such other documents and take such
other action in accordance with the terms hereof as the Trust Beneficial
Owner (including with respect to each Series of the Trust) specifically
directs in written instructions delivered to the Delaware Trustee. Whenever
(a) the Delaware Trustee is unable to decide between alternative courses of
action under this Trust Agreement or any other Program Document or any
Assigned Document, (b) the Delaware Trustee is unsure about the application
of any provision of this Trust Agreement or any other Program Document or any
Assigned Document or it appears to be in conflict with any other applicable
provision hereof or thereof or (c) if this Trust Agreement permits any
determination by the Delaware Trustee, or is silent or is incomplete about
the course of action that the Delaware Trustee is required to take given a
particular set of facts, the Delaware Trustee may give appropriate notice to
the Trust Beneficial Owner requesting instruction and, if the Delaware
Trustee in good faith follows any written instructions it receives from the
Trust Beneficial Owner, the Delaware Trustee shall not be liable to the Trust
Beneficial Owner or any other Person in connection with its compliance with
such written instructions. If the Delaware Trustee has not received written
instruction within ten days of its notice (or within such shorter period as
may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking any action not inconsistent with this Trust
Agreement that it deems to be in the best interests of the Trust Beneficial
Owner, and shall have no liability to the Trust Beneficial Owner for any such
action or inaction; PROVIDED, HOWEVER, the Delaware Trustee shall not be
required to take any action or refrain from acting if the Delaware Trustee
shall reasonably determine, or shall be advised by counsel, that such action
or inaction is likely to result in personal liability or is contrary to
applicable law or the terms of this Trust Agreement.
18
SECTION 5.5. DELEGATION OF AUTHORITIES AND DUTIES. The Delaware
Trustee shall have the right to delegate any and all of its authorities and
duties under this Trust Agreement to the Administrator to the extent permitted
by the Delaware Statutory Trust Act and the Administrative Agreement.
ARTICLE 6
REGARDING THE DELAWARE TRUSTEE
SECTION 6.1. ACCEPTANCE OF TRUSTS AND DUTIES. The Delaware Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Trust Agreement. The
Delaware Trustee also agrees to disburse all monies actually received by it
constituting part of the Collateral upon the terms of this Trust Agreement
subject to the other Program Documents. The Delaware Trustee shall not be
answerable or accountable hereunder or under any other Program Document under
any circumstances, except (x) for its own willful misconduct, bad faith or gross
negligence (y) for its failure to use ordinary care to disburse funds, or (z) in
the case of the inaccuracy of any representation or warranty contained in
Section 6.2 expressly made by the Delaware Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Delaware Trustee shall not be liable for any error of
judgment (unless such error of judgment constitutes gross
negligence) made by a Responsible Officer;
(b) no provision of this Trust Agreement or any other Program
Document shall require the Delaware Trustee to expend or risk
funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under
any other Program Document if the Delaware Trustee shall have
reasonable grounds for believing that repayment of such funds
or satisfactory indemnity against such risk or liability is
not reasonably assured or provided to it;
(c) under no circumstances shall the Delaware Trustee be liable
for Indebtedness evidenced by or arising under any of the
Program Documents, including, without limitation, the Notes;
(d) the Delaware Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Trust Agreement
or for the form, character, genuineness, sufficiency, value or
validity of any of the Collateral or for or in respect of the
validity or sufficiency of the other Program Documents, other
than the signature and countersignature of the Delaware
Trustee on the Assigned Documents, the Notes and on the
Deposit Certificate, and the Delaware Trustee shall in no
event assume or incur any liability, duty, or obligation to
any Holder, the Trust Beneficial Owner or
19
the Series Beneficial Owner other than as expressly provided
for herein in the Program Documents or the Assigned Documents;
(e) the Delaware Trustee shall (i) not be liable for any
action, inaction, default or misconduct of the
Administrator, the Indenture Trustee or any other agent
under any of the Program Documents, any of the Assigned
Documents or otherwise, (ii) have no duty to supervise the
Administrator, the Indenture Trustee or any other agent
under any of the Program Documents, any of the Assigned
Documents or otherwise and (iii) except as set forth in
Section 5.4, have no obligation or liability to perform the
obligations of the Trust or any Series of the Trust under
this Trust Agreement, the Program Documents, any of the
Assigned Documents or under any Federal, State, foreign or
local tax law, that are required to be performed by other
Persons, including without limitation, the Administrator
hereunder or under the Administrative Agreement or the
Indenture Trustee under the Indenture; and
(f) with respect to the Indenture Trustee and the Holders, the
Delaware Trustee undertakes to perform or observe only such of
the covenants and obligations of the Delaware Trustee as are
expressly set forth in this Trust Agreement, and no implied
covenants or obligations with respect to the Indenture Trustee
or the Holders shall be read into this Trust Agreement, the
Program Documents or the Assigned Documents against the
Delaware Trustee. The Delaware Trustee shall not be deemed to
owe any fiduciary duty to the Indenture Trustee or the
Holders, and shall not be liable to any such Person other than
as a result of the gross negligence or willful misconduct of
the Delaware Trustee in the performance of its express
obligations under this Trust Agreement.
(g) Notwithstanding anything to the contrary herein or in any
Program Document or other document, the Delaware Trustee shall
not be required to execute, deliver or certify on behalf of
the Delaware Trustee, the Trust or any other Person any
filings, certificates, affidavits or other instruments
required by the Commission or required under the
Xxxxxxxx-Xxxxx Act of 2002. Notwithstanding any Person's right
to instruct the Delaware Trustee, neither the Delaware Trustee
nor any agent, employee, director or officer of the Delaware
Trustee shall have any obligation to execute any certificates
or other documents required by the Commission or required
pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or the rules and
regulations promulgated thereunder, and the refusal to comply
with any such instructions shall not constitute a default or
breech under any Program Document.
20
SECTION 6.2. REPRESENTATIONS AND WARRANTIES. The Delaware Trustee
hereby represents and warrants, for the benefit of the Holders, that:
(a) It is a Delaware banking corporation duly organized and
validly existing in good standing under the laws of the State
of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations
under this Trust Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this
Trust Agreement will be executed and delivered by one of the
Responsible Officers who is duly authorized to execute and
deliver this Trust Agreement on its behalf. This Trust
Agreement constitutes a legal, valid and binding agreement of
the Delaware Trustee, and this Trust Agreement is enforceable
against it in accordance with its terms.
(c) Neither the execution nor the delivery by the Delaware Trustee
of this Trust Agreement, nor the consummation by it of the
transactions contemplated hereby, nor compliance by it with
any of the terms or provisions hereof, will contravene the
Delaware Statutory Trust Act or any Federal or Delaware law,
governmental rule or regulation governing the banking or trust
powers of the Delaware Trustee or any judgment or order
binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract,
agreement, judgment, injunction, order or instrument to which
it is a party or by which any of its properties may be bound.
SECTION 6.3. RELIANCE; ADVICE OF COUNSEL
(a) The Delaware Trustee may rely upon, shall be protected in
relying upon, and 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 reasonably believed by it in good faith to be
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 method of the determination of which
is not specifically prescribed herein, the Delaware Trustee
may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer or
other authorized officers of the relevant party, as to such
fact or matter and such certificate shall constitute full
protection to the
21
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 trusts hereunder and
in the performance of its duties and obligations under this
Trust Agreement, the other Program Documents, or the Assigned
Documents, 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 (ii)
may consult with counsel, accountants and other skilled
Persons to be selected in good faith and employed by it. The
Delaware Trustee 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 such Persons.
SECTION 6.4. DELAWARE TRUSTEE NOT LIABLE FOR NOTES AND DEPOSIT
CERTIFICATE. Except as set forth in Section 6.2, the Delaware Trustee makes no
representations or warranties as to the validity or sufficiency of this Trust
Agreement (other than Section 6.2), of any Program Document or any Assigned
Document (other than the signature and countersignature of the Delaware Trustee
on the Program Documents, the Assigned Documents, the Notes and the Deposit
Certificate) or of any related documents. The Delaware Trustee shall at no time
have any responsibility or liability for or with respect to the sufficiency of
the Collateral or its ability to generate the payments to be distributed under
this Trust Agreement and any Program Documents or any Assigned Document.
SECTION 6.5. DELAWARE TRUSTEE MAY OWN NOTES. Except to the extent
prohibited under the terms of any Series of Notes, the Delaware Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes of
any Series and subject to Section 9.1, may otherwise deal with the Trust or any
Affiliate of the Trust with the same rights as it would have if it were not
Delaware Trustee.
ARTICLE 7
COMPENSATION OF DELAWARE TRUSTEE
SECTION 7.1. DELAWARE TRUSTEE'S FEES AND EXPENSES. Wilmington Trust
Company shall receive compensation for its services hereunder as set forth in a
separate fee agreement between Wilmington Trust Company and the Trust.
SECTION 7.2. INDEMNIFICATION. The Trust agrees to indemnify the
Wilmington Trust Company and its directors, officers, employees, and agents
(collectively, the "INDEMNIFIED PARTIES") from and against, any cost, claim,
loss, liability, tax, expense (including the reasonable compensation of its
agents and counsel) (collectively, "EXPENSES") which may at any time be imposed
on, incurred by, or asserted
22
against any Indemnified Party in any way relating to or arising out of this
Trust Agreement, the Program Documents and any other documents or instruments
entered into by or on behalf of the Trust, the Collateral, the administration of
the Collateral or the action or inaction of the Delaware Trustee hereunder;
PROVIDED, that the Trust shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from (a) the
Indemnified Party's own willful misconduct, bad faith or gross negligence, (b)
the inaccuracy of any representation or warranty contained in Section 6.2
expressly made by the Indemnified Party or (c) any income or franchise tax
imposed on the Delaware Trustee's fees. In no event shall the Delaware Trustee
be entitled to make any claim upon the Collateral for the payment or
reimbursement of any Expenses. The indemnities contained in this Section 7.2
shall survive the resignation or termination of the Delaware Trustee or the
termination of this Trust Agreement.
SECTION 7.3. NO RECOURSE.
(a) To the fullest extent permitted by applicable law, no recourse
under any obligation, covenant or agreement of the Trust
Beneficial Owner contained in this Trust Agreement shall be
had against AMACAR Pacific Corp. acting in its capacity as the
Administrator or the Trust Beneficial Owner, or any
incorporator, stockholder, officer, director or employee of
AMACAR Pacific Corp. acting in its capacity as the
Administrator or the Trust Beneficial Owner, by the
enforcement of any assessment or by any legal or equitable
proceeding or otherwise; it being expressly agreed and
understood that this Trust Agreement is solely a corporate
obligation of the Trust Beneficial Owner, and that no personal
liability whatever shall attach to or be incurred by the
incorporator, stockholder, officers, directors or employees of
AMACAR Pacific Corp. acting in its capacity as the
Administrator or the Trust Beneficial Owner, or any of them
under or by reason of any of the obligations, covenants or
agreements of the Trust Beneficial Owner contained in this
Trust Agreement, or implied therefrom, and that any and all
personal liability for breaches by the Trust Beneficial Owner
of any of such obligations, covenants or agreements either at
common law or at equity, or by statute or constitution, of
AMACAR Pacific Corp., acting in its capacity as the
Administrator or the Trust Beneficial Owner, and every such
incorporator, stockholder, officer, director or employee is
hereby expressly waived as a condition of and in consideration
for the execution of this Trust Agreement; PROVIDED, HOWEVER,
that nothing in this Section 7.3 shall relieve any of the
foregoing Persons from any liability arising from his, her or
its willful misconduct or intentional misrepresentation.
(b) To the fullest extent permitted by applicable law, no recourse
under any obligation, covenant or agreement of Wilmington
Trust Company contained in this Trust Agreement shall be had
against
23
any incorporator, stockholder officer, director or employee of
Wilmington Trust Company, by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise; it being
expressly agreed and understood that this trust Agreement is
solely a corporate obligation of Wilmington Trust Company, and
that no personal liability whatever shall attach to or be
incurred by the incorporator, stockholder, officers, directors
or employees of Wilmington Trust Company, or any of them under
or by reason of any of the obligations, covenants or
agreements of Wilmington Trust Company contained in this Trust
Agreement, or implied therefrom, and that any and all personal
liability for breaches by Wilmington Trust Company of any of
such obligations, covenants or agreements either at common law
or at equity, or by statute or constitution, and every such
incorporator, stockholder, officer, director or employee is
hereby expressly waived as a condition of and in consideration
for the execution of this Trust Agreement. Further, it is
expressly understood and agreed by the parties hereto that (a)
the Delaware Trustee executes and delivers documents on behalf
of the Trust, not individually or personally, but solely as
Delaware Trustee, in the exercise of the powers and authority
conferred and vested in it, pursuant to this Trust Agreement,
(b) each of the representations, undertakings and agreements
made in such documents on the part of the Trust is made and
intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and
intended for the purpose for binding only the Trust, (c)
nothing therein contained shall be construed as creating any
liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any person
claiming by, through or under the parties thereto, and (d)
under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure
of any obligation, representation, warranty or covenant made
or undertaken by the Trust under such agreements or any other
related documents.
ARTICLE 8
DISSOLUTION AND TERMINATION
SECTION 8.1. TERMINATION OF TRUST AGREEMENT.
(a) The Trust shall dissolve, wind up and terminate in accordance
with Section 3808 of the Delaware Statutory Trust Act upon the
first to occur of (i) judicial dissolution of the Trust, or
(ii) following the payment to the Holders of all Series of
Notes, to the Series
24
Beneficial Owner and to the Trust Beneficial Owner of all
amounts required to be paid to them pursuant to the Notes, the
Indenture, this Trust Agreement, the Program Documents and the
Assigned Documents. An insolvency event, liquidation,
dissolution, death or incapacity with respect to the Trust
Beneficial Owner, the Series Beneficial Owner, the Delaware
Trustee, the Administrator or any of the other Agents or any
Holder shall neither (i) operate to terminate this Trust
Agreement, the Trust or any Series of the Trust, nor (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,
any Series of the Trust or the Collateral nor (iii) otherwise
affect the rights, obligations and liabilities of the other
Holders or the parties hereto or any other document or
instrument entered into by the Trust, nor (iv) dissolve the
Trust.
(b) The Trust shall dissolve only as provided in this Section 8.1,
and otherwise no Person, including the Indenture Trustee, the
Trust Beneficial Owner or the Series Beneficial Owner, shall
be entitled to revoke or dissolve the Trust or terminate any
Series of 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.
(c) Upon the final distribution of the Collateral of each Series
of the Trust, the Delaware Trustee shall have the power and
authority to cause the Certificate of Trust to be cancelled by
filing a certificate of cancellation with the Secretary of
State of Delaware in accordance with the provisions of Section
3810 of the Delaware Statutory Trust Act, at which time the
Trust and this Trust Agreement shall terminate.
SECTION 8.2. DISTRIBUTION OF REMAINING COLLATERAL. In the event
that after the payment (a) of all amounts required to be paid to them pursuant
to the Notes, the Indenture, this Trust Agreement and other Program Documents
and (b) of all expenses and other liabilities of the Series of the Trust there
shall be any funds remaining in the relevant Series of the Trust or in any
accounts in which the Trust has an interest, such remaining funds shall be
distributed to the Series Beneficial Owner.
SECTION 8.3. TERMINATION OF A SERIES. Unless otherwise set forth in
the Series Trust Supplement, a Series of the Trust shall terminate upon payment
to the Holders of such Series of Notes of all amounts, including, without
limitation, principal, premium (if any) interest and any Additional Amounts,
required to be paid to them pursuant to the terms and conditions of the Notes or
the Indenture. Upon termination of a
25
Series of the Trust, the Delaware Trustee shall pay any remaining amounts to the
Series Beneficial Owner.
ARTICLE 9
SUCCESSOR DELAWARE TRUSTEE
SECTION 9.1. ELIGIBILITY REQUIREMENTS FOR 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 (d) be subject to supervision or examination by relevant
Federal or State authorities. If the Delaware Trustee shall publish reports of
condition at least annually, pursuant to applicable law or to the requirements
of any said supervising or examining authority, then for the purpose of this
Section 9.1, the combined capital and surplus of the Delaware Trustee shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Delaware Trustee shall
cease to be eligible in accordance with the provisions of this Section 9.1, the
Delaware Trustee shall resign immediately in the manner and with the effect
specified in Section 9.2.
SECTION 9.2. RESIGNATION OR REMOVAL OF 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 with
thirty (30) days' prior notice to the Delaware Trustee, the
Indenture Trustee and each Rating Agency then rating the
Program or any Series of the Notes. Upon any resignation or
removal of the Delaware Trustee, the Administrator, acting on
behalf of the Trust, shall appoint a successor Delaware
Trustee whereupon such successor Delaware Trustee shall
succeed to the rights, powers and duties of the Delaware
Trustee, and the term "Delaware Trustee" shall thereupon mean
such successor Delaware Trustee effective upon such
appointment and approval, and the predecessor Delaware
Trustee's powers and duties as Delaware Trustee shall be
terminated, without any other or further act or deed on the
part of such predecessor Delaware Trustee or any of the
parties to this 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 9.1 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,
26
the provisions of this Article 9 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Delaware Trustee under this 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 9.2.
(b) If no successor Delaware Trustee shall be appointed and shall
have accepted such appointment within thirty (30) days after
the aforesaid notice of resignation or removal, the Trust (or
the Administrator, acting on its behalf) or the resigning
Delaware Trustee may apply to any court of competent
jurisdiction to appoint a successor Delaware Trustee to act
until such time, if any, as a successor Delaware Trustee shall
have been appointed as provided in this Section 9.2. 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 9.2. Any Delaware
Trustee shall be entitled to all Delaware Trustee fees to the
extent incurred or arising, or relating to events occurring,
before such resignation or removal becomes effective, and the
protections of Sections 7.1 and 7.2 with respect to any
Expenses to the extent incurred or arising, or relating to
events occurring, before such resignation or removal shall
survive.
(c) 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 9.2. 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 9.3. SUCCESSOR DELAWARE TRUSTEE. Each successor Delaware
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Administrator and to the predecessor Delaware Trustee an instrument accepting
such appointment under this 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 hereunder,
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 the predecessor Delaware Trustee under this Trust Agreement, with
like effect as if originally named as Delaware Trustee. The predecessor Delaware
Trustee shall duly transfer and deliver to the successor Delaware Trustee all
documents and statements and property and monies held by it under this Trust
Agreement, and the Administrator and the predecessor Delaware Trustee shall
execute and deliver such
27
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Delaware Trustee all such
rights, powers, duties, trusts and obligations of the predecessor Delaware
Trustee.
No successor Delaware Trustee shall accept appointment as provided in
this Section 9.3 unless, at the time of such acceptance, such successor Delaware
Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Delaware Trustee
pursuant to this Section 9.3, the Administrator shall mail notice of such
appointment to the Administrator, the Indenture Trustee, the Relevant Agents and
each Rating Agency then rating the Program or any Series of the Notes. If the
Administrator shall fail to mail such notice within ten (10) days after
acceptance of appointment by the successor Delaware Trustee, the successor
Delaware Trustee shall cause such notice to be mailed in the manner aforesaid.
SECTION 9.4. 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 hereto, anything to the
contrary herein notwithstanding, be the successor of the Delaware Trustee
hereunder; PROVIDED, that such Person shall be otherwise qualified and eligible
under this Article 9; PROVIDED, FURTHER, that the Delaware Trustee shall mail
notice of such merger, conversion or consolidation to the Trust, the Indenture
Trustee, the Relevant Agents, and each Rating Agency then rating the Program or
any Series of the Notes not less than fifteen (15) days prior to the effective
date thereof.
SECTION 9.5. APPOINTMENT OF CO-DELAWARE TRUSTEE OR SEPARATE
DELAWARE TRUSTEE. Notwithstanding any other provisions of this Trust Agreement,
for the purpose of meeting any requirements imposed upon the Trust or any Series
of the Trust by any court or governmental agency of any jurisdiction in which
any part of the Collateral may at the time be located, the Administrator and the
Delaware Trustee acting jointly 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 the
Delaware Trustee, or separate Delaware Trustee, of all or any part of the
Collateral, and to vest in such Person, in such capacity, such title to the
Trust, or any part thereof (including any Series of the Trust) and, subject to
the other provisions of this Section 9.5, 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 fifteen (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 this Trust Agreement
shall be required to meet the terms of eligibility pursuant to Section 9.1, and
no notice of the appointment of any co-Delaware Trustee or separate Delaware
Trustee shall be required pursuant to Section 9.3.
28
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) the rights, powers, duties, and obligations hereby 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 (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 (including any Series of the Trust) in any
such jurisdiction) shall be exercised and performed by such separate
Delaware Trustee or co-Delaware Trustee, but solely at the direction of the
Delaware Trustee;
(ii) except as provided in Section 6.1, no Delaware Trustee under
this Trust Agreement shall be personally liable by reason of any act or
omission of any other Delaware Trustee under this Trust Agreement; and
(iii) 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.
Any notice, request or other communication delivered to the Delaware
Trustee shall be deemed to have been delivered to each of the then 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 Trust Agreement and the conditions of this Article
9. 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 instrument of appointment, either jointly with the Delaware Trustee or
separately, as may be provided therein, subject to all the provisions of this
Trust Agreement, specifically including every provision of this 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 given to the Administrator.
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 this 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, titles, 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
separate Delaware Trustee or co-Delaware Trustee, as the case may be.
29
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. SUPPLEMENTS AND AMENDMENTS.
(a) This Trust Agreement may be amended in writing by the Delaware
Trustee and the Trust Beneficial Owner, with the consent of
the Indenture Trustee and with prior written notice to each
Rating Agency then rating the Program or any Series of the
Notes; PROVIDED, HOWEVER, that such action shall not, as
evidenced by an Opinion of Counsel satisfactory to the
Delaware Trustee and the Indenture Trustee, adversely affect
in any material respect the interests of any Holder of the
Notes or the Deposit Certificate (including without
limitation, changing the amount of timing for any payment or
impair the rights of any Holder of the Notes or the Indenture
Trustee to institute suit for the enforcement of any right for
principal and interest); PROVIDED, FURTHER, that an Opinion of
Counsel shall be furnished to the Indenture Trustee and the
Delaware Trustee to the effect that such amendment (i) will
not materially and adversely affect United States Federal,
State or local income or franchise taxation of any outstanding
Notes or any Holder thereof; (ii) will not cause the Trust to
be taxable as a corporation or partnership for United States
Federal, State or local income or franchise tax purposes;
(iii) will not cause any Series of the Trust to fail either to
be ignored or to qualify as a "grantor trust" under Subpart E
of Part I of Subchapter J of the Code; and (iv) will not cause
any outstanding Notes to be treated as other than indebtedness
of Allstate Life for Federal, State or local tax purposes.
(b) 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 hereby) to the
Indenture Trustee and each other Agent, the Trust Beneficial
Owner, the Relevant Agents and each Rating Agency then rating
the Program or any Series of the Notes.
(c) Contemporaneously with, or promptly after, the execution of
any amendment hereto 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 of the State of Delaware.
(d) Prior to the execution of any amendment to this Trust
Agreement or the Certificate of Trust, the Delaware Trustee
shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by
30
this Trust Agreement. The Delaware Trustee may, but shall not
be obligated to, enter into any such amendment which affects
the Delaware Trustee's own rights, duties or immunities under
this Trust Agreement or otherwise.
(e) In connection with the execution of any amendment to this
Trust Agreement or any amendment to any other agreement to
which the Trust is a party, the Delaware Trustee shall be
entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or
permitted by the Program Documents and that all conditions
precedent in the Program Documents for the execution and
delivery thereof by the Trust or the Delaware Trustee, as the
case may be, have been satisfied.
SECTION 10.2. LIMITATION ON RIGHTS OF OTHERS. The provisions of this
Trust Agreement are solely for the benefit of the Delaware Trustee, the Holders,
the Series Beneficial Owner and the Trust Beneficial Owner, and nothing in this
Trust Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Collateral or
under or in respect of this Trust Agreement or any covenants, conditions or
provisions contained herein.
SECTION 10.3. NOTICES. All demands, notices, instructions and other
communications hereunder shall be in writing (including telecopied or
telegraphic communications) and shall be personally delivered, mailed or
transmitted by telecopy or telegraph, respectively, to the address set forth
below (or, in the case of any other relevant party, addressed as set forth in a
separate notice delivered to all relevant parties):
If to the Delaware Trustee:
Allstate Life Global Funding
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Administrator and the Trust Beneficial Owner:
AMACAR Pacific Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
31
If to any other Person, at the address previously furnished in
writing to the Delaware Trustee, the Administrator and the
Trust Beneficial Owner.
SECTION 10.4. SEVERABILITY. If any provision of, or obligation
under, this Trust Agreement, or the application thereof to any Person or under
any circumstance, shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions of, and any obligations under, this Trust Agreement, or the
application of such provision in any other jurisdiction shall not in any way be
affected or impaired thereby, and each provision of this Trust Agreement shall
be valid and enforceable to the extent permitted by applicable law.
SECTION 10.5. COUNTERPARTS. This Trust Agreement and any amendments,
modifications, restatements, supplements and/or replacements hereof, or waivers
or consents hereto, instrument may be executed in any number of counterparts,
and by different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, when taken together, shall constitute one and the same instrument.
This Trust Agreement shall become effective upon the execution of a counterpart
to each of the parties hereto.
SECTION 10.6. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of each of the
Delaware Trustee, the Series Beneficial Owner and the Trust Beneficial Owner,
and their respective permitted successors and assigns, all as herein provided.
SECTION 10.7. NO PETITION. To the extent permitted by applicable
law, each of the Delaware Trustee, the Series Beneficial Owner (by accepting its
interest in Series of the Trust) and the Trust Beneficial Owner (by accepting
the Deposit Certificate) hereby covenants and agrees that it will not institute
against, or join with any other Person in instituting against, the Trust or any
Series of the Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any applicable bankruptcy or
similar law. This Section 10.7 shall survive termination of this Trust
Agreement.
SECTION 10.8. LIMITED RECOURSE. Notwithstanding anything to the
contrary contained in this Trust Agreement, the obligations of each Series of
the Trust under this Trust Agreement and all Program Documents and other
documents or instruments entered into by the Trust, are solely the obligations
of each Series of the Trust and shall be payable solely to the extent of funds
received by and available to each Series of the Trust under the Funding
Agreements, and the Support and Expense Agreement for the related Series of
Notes and from other Collateral received by and available to such Series of the
Trust. No recourse shall be had for the payment of any amount owing in respect
of any obligation of, or claim against, any Series of the Trust arising out of
or based upon this Trust Agreement, the Notes, any other Program Document or
Assigned Document against any holder of a beneficial interest, employee, agent,
officer or Affiliate of such Series of the Trust and, except as specifically
provided herein and in the other Program Documents or Assigned Documents, no
recourse shall be
32
had for the payment of any amount owing in respect of any obligation of, or
claim against, any Series of the Trust arising out of or based upon this Trust
Agreement, the Notes, any other Program Documents or Assigned Documents against
the Indenture Trustee, the Delaware Trustee, the Administrator, Allstate Life,
or any of their respective holders of beneficial interests, employees, agents,
officers, directors, incorporators or Affiliates.
SECTION 10.9. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.10. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) This 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.
(b) All judicial proceedings brought against the Trust arising out
of or relating to this Trust Agreement or any portion of any
Collateral may be brought in any State or Federal Court
located in the Borough of Manhattan, the City of New York, the
State of New York. Nothing herein shall affect the right of
any party hereto to bring proceedings against any other party
hereto in the courts of any other jurisdiction.
(c) THE PARTIES HERETO HEREBY AGREE THAT NO PARTY SHALL REQUEST A
TRIAL BY JURY IN THE EVENT OF LITIGATION BETWEEN THEM
CONCERNING THIS TRUST AGREEMENT OR ANY CLAIMS OR TRANSACTIONS
IN CONNECTION HEREWITH, AND ANY SUCH RIGHT TO TRIAL BY JURY IS
EXPRESSLY WAIVED. EACH OF THE PARTIES HERETO HEREBY
ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL UNDERSTANDING
AND KNOWLEDGE OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED
HEREBY.
SECTION 10.11. SERIES BENEFICIAL OWNER BOUND BY TRUST AGREEMENT. By
accepting an interest in a Series of the Trust, the Series Beneficial Owner
agrees to be bound by and shall comply with the terms of this Trust Agreement.
SECTION 10.12. ENTIRE AGREEMENT. This Trust Agreement constitutes the
entire agreement between the parties hereto relating to the subject matter
hereof, and supersedes all previous agreements between the parties, whether
written or oral.
SECTION 10.13. NO WAIVER. No failure on the part of the parties
hereto to exercise, and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single
33
or partial exercise thereof or the exercise of any other right, power or
privilege operate as such a waiver.
SECTION 10.14. REMEDIES CUMULATIVE. No right, power or remedy of the
parties hereunder shall be exclusive of any other right, power or remedy, but
shall be cumulative and in addition to any other right, power or remedy
thereunder or now or hereafter existing by law or in equity.
SECTION 10.15. THE ADMINISTRATOR. Subject to the terms and conditions
of the Administrative Agreement, the Administrator is hereby appointed as an
agent of the Trust and shall have the same general authority as the Delaware
Trustee, as set forth in Section 5.1 hereof.
34
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated this Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY,
in its individual capacity
By:
------------------------------
Name:
Title:
AMACAR Pacific Corp.,
as Trust Beneficial Owner
By:
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
35
EXHIBIT A
FORM OF DEPOSIT CERTIFICATE
U.S. $1,000
DEPOSIT CERTIFICATE
THIS DEPOSIT CERTIFICATE IS NOT TRANSFERABLE IN WHOLE OR IN PART AND, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY ATTEMPTED TRANSFER OF THIS
DEPOSIT CERTIFICATE SHALL BE NULL AND VOID.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE TRUST
AGREEMENT.
ALLSTATE LIFE GLOBAL FUNDING
DEPOSIT CERTIFICATE
evidencing a beneficial interest in the U.S. $1,000 deposit (the "DEPOSIT") of
Allstate Life Global Funding (the "TRUST") and any other assets of the Trust not
allocated to a Series of the Trust.
(This Deposit Certificate does not represent an interest in other assets or
property of the Trust or any Series of the Trust.)
THIS CERTIFIES THAT AMACAR Pacific Corp. is the registered owner of a
nonassessable, fully paid, beneficial ownership interest in the Deposit of the
Trust. This Deposit Certificate has an aggregate principal amount of U.S. $1,000
and bears no interest.
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Each certificateholder, by its acceptance of this Deposit Certificate,
covenants and agrees that, to the extent permitted by applicable law, such
certificate will not at any time institute against the Trust or any Series of
the Trust, or join in any institution against the Trust or any Series of the
Trust of any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any applicable bankruptcy or similar law
in connection with any obligations relating to the Deposit Certificate or the
Trust Agreement of
Allstate Life Global Funding dated June 24, 2002, as the same
may be amended, modified, restated, supplemented, and/or replaced from time to
time (the "Trust Agreement").
Reference is hereby made to the further provisions of this Deposit
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Delaware Trustee, by manual signature,
this Deposit Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
This Deposit Certificate shall be construed in accordance with the
laws of the State of Delaware, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
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DELAWARE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Deposit Certificate referred to in the Trust Agreement of
Allstate Life Global Funding, dated as of -, 2002, as the same may be amended,
modified, restated, supplemented and/or replaced from time to time.
Dated: -, 2002
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Delaware Trustee
By:
------------------------------
Name:
Title:
OR
By: -,
as Authenticating Agent
By:
------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the Delaware Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Deposit Certificate to be duly
executed.
ALLSTATE LIFE GLOBAL FUNDING
By: WILMINGTON TRUST COMPANY
not in its individual capacity,
but solely as Delaware Trustee
By:
-------------------------------
Name:
Title:
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EXHIBIT B
================================================================================
SERIES TRUST SUPPLEMENT NO. -
TO THE
TRUST AGREEMENT
OF
ALLSTATE LIFE GLOBAL FUNDING
DATED AS OF -, 2002
SERIES __
================================================================================
B-1
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS; REFERENCES........................................................................3
SECTION 1.1. TRUST AGREEMENT DEFINITIONS..............................................................3
SECTION 1.2. REFERENCES; INTERPRETATION...............................................................3
SECTION 1.3. SERIES DEFINITIONS.......................................................................3
ARTICLE 2 SERIES TRUST...................................................................................4
SECTION 2.1. CREATION OF SERIES TRUST.................................................................4
SECTION 2.2. AUTHORITY 4
SECTION 2.3. SERIES OF NOTES..........................................................................4
ARTICLE 3 GENERAL 4
SECTION 3.1. RATIFICATION OF TRUST AGREEMENT..........................................................4
SECTION 3.2. COUNTERPARTS.............................................................................4
SECTION 3.3. GOVERNING LAW............................................................................4
SECTION 3.4. AMENDMENTS...............................................................................5
SECTION 3.5. SERIES BENEFICIAL OWNER BOUND BY THIS SUPPLEMENT.........................................5
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THIS SERIES TRUST SUPPLEMENT NO. - (this "SERIES TRUST SUPPLEMENT"),
dated as of -, is entered into among -, in its capacity as Delaware Trustee (the
"DELAWARE TRUSTEE"), The American National Red Cross, as Series Beneficial Owner
with respect to Series ___, and AMACAR Pacific Corp., in its individual capacity
as Trust Beneficial Owner (the "TRUST BENEFICIAL OWNER"), under the Amended and
Restated Trust Agreement, dated as of -, 2002 between the Delaware Trustee and
the Trust Beneficial Owner (as amended, modified, restated, supplemented and/or
replaced from time to time, exclusive of any supplement entered into for the
purpose of creating a separate Series of the Trust, the "TRUST AGREEMENT").
WHEREAS, Sections 2.2 and 4.1 of the Trust Agreement provide, among
other things, that the Trust may at any time and from time to time enter into a
supplement to the Trust Agreement for the purpose of creating a separate Series
of the Trust and authorizing a separate Series of Notes.
NOW, THEREFORE, in consideration of the premises and covenants set
forth in this Series Trust Supplement the parties agree as follows:
ARTICLE 1
DEFINITIONS; REFERENCES
SECTION 1.1. TRUST AGREEMENT DEFINITIONS. All capitalized terms
used herein not otherwise defined shall have the meanings ascribed to such terms
in the Trust Agreement.
SECTION 1.2. REFERENCES; INTERPRETATION.
(a) All Article and Section references herein shall refer to
Articles and Sections of the Trust Agreement, except as
otherwise provided herein.
(b) The words "include", "includes" and "including" shall be
construed to be followed by the words "without limitation".
(c) Article and Section headings herein are for the convenience of
the reader and shall not be considered in interpreting this
Series Trust Supplement or the intent of the parties hereto.
(d) The words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Series Trust Supplement as a
whole and not to any particular Article or Section or other
subdivision.
SECTION 1.3. SERIES DEFINITIONS. Unless otherwise provided herein
or unless such term is otherwise defined in the Trust Agreement, each
capitalized term used or defined herein shall relate only to the Series of the
Trust and the Series of Notes authorized under this Series Trust Supplement.
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ARTICLE 2
SERIES TRUST
SECTION 2.1. CREATION OF SERIES TRUST. Series No. - of the Trust is
hereby created. The Trust is hereby creating a new Series of the Trust pursuant
to Section 3806(b)(2) of the Delaware Statutory Trust Act, and is authorized to
issue a Series of Notes and to perform all acts and to enter into a Pricing
Supplement(s) and such other agreements as may be necessary in connection
therewith.
SECTION 2.2. AUTHORITY. The Delaware Trustee and the Administrator
are authorized to execute such documents on behalf of the Trust or the relevant
Series of the Trust and take such action on behalf of the Trust or the relevant
Series of the Trust as may be incidental thereto.
SECTION 2.3. SERIES OF NOTES. The Series of Notes referred to
herein and all Tranches thereof shall be issued under and governed by the
Indenture and the related Pricing Supplement.
SECTION 2.4. TERMINATION OF A SERIES. The termination of any
particular Series of the Trust will not have the effect of dissolving or
terminating the Trust or any other Series of the Trust.
ARTICLE 3
GENERAL
SECTION 3.1. RATIFICATION OF TRUST AGREEMENT. As supplemented by
this Series Trust Supplement, the Trust Agreement is in all respects ratified
and confirmed and the Trust Agreement as so supplemented by this Series Trust
Supplement shall be read, taken, and construed as one and the same instrument.
Without limiting the foregoing, the Series of the Trust shall be subject to the
provisions of Section 4.5 of the Trust Agreement.
SECTION 3.2. Indenture. The interest of the Series Beneficial Owner
created hereunder shall be subject to the provisions of the Indenture.
SECTION 3.3. COUNTERPARTS.
This Series Trust Supplement may be executed in any number of
counterparts, and by different parties hereto 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 together constitute one and
the same instrument. This Series Trust Supplement shall become effective upon
the execution of a counterpart by each of the parties hereto.
SECTION 3.4. GOVERNING LAW. This Series Trust Supplement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to conflict of laws principles.
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SECTION 3.5. AMENDMENTS. This Series Trust Supplement may be
amended, modified, restated, supplemented and/or replaced from time to time from
time to time in accordance with the terms of the Trust Agreement.
SECTION 3.6. SERIES BENEFICIAL OWNER BOUND BY THIS SUPPLEMENT. The
Series Beneficial Owner agrees to be bound by and shall comply with the terms of
the Trust Agreement and this Series Trust Supplement.
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IN WITNESS WHEREOF, the parties hereto have caused this Series Trust
Supplement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY, not
in its individual capacity,
but solely as Delaware
Trustee
By:
-----------------------------
Name:
Title:
AMACAR Pacific Corp.,
as Trust Beneficial Owner
By:
-----------------------------
Name:
Title:
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