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THE ALLSTATE CORPORATION
$500,000,000
$250,000,000 6.75% SENIOR DEBENTURES DUE MAY 15, 2018
$250,000,000 6.90% SENIOR DEBENTURES DUE MAY 15, 2038
_____________________________
UNDERWRITING AGREEMENT
_____________________________
May 20, 1998
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston Corporation
Chase Securities Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
SBC Warburg Dillon Read Inc.
As Representatives of the Several Underwriters
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for whom Xxxxxxx, Xxxxx & Co., Credit Suisse First Boston
Corporation, Chase Securities Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Xxxxxx Xxxxxxx & Co. Incorporated and SBC Warburg Xxxxxx Xxxx Inc.
are acting as Representatives (the "Representatives"), $200,000,000 principal
amount of its 6.75% Senior Debentures due May 15, 2018 (the "2018 Debentures")
and $200,000,000 principal amount of its 6.90% Senior Debentures due May 15,
2038 (the "2038 Debentures") each registered under the Registration Statement
referred to in Section 2(a) (collectively, the "Securities") to be issued
pursuant to the provisions of an Indenture dated as of December 16, 1997, as
supplemented by the Second Supplemental Indenture dated as of May 20, 1998 (as
so supplemented, the "Indenture") between the Company and State Street Bank and
Trust Company, as Trustee (the "Trustee").
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1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-10857) under the
Securities Act of 1933, as amended (the "Act"), which has become effective, for
the registration under the Act of the Securities. The Company proposes to file
with the Commission pursuant to Rule 424 under the Act a supplement or
supplements to the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as amended at the date
of this Agreement, is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the Registration Statement is
hereinafter called the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the Commission pursuant
to Rule 424 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of
this Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference;
(b) As of the date hereof, when the Final Prospectus is first filed or
transmitted for filing pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document incorporated
by reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and, the Indenture
will comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the Exchange Act and the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of such time, will contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustees (the "Form T-1") or (ii) the information
contained in or omitted from the Registration Statement or the Final Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information relating to such Underwriter or the underwriting
arrangements furnished in writing to the Company by any Underwriter
specifically for use in the Registration Statement and the Final Prospectus.
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(c) Each document incorporated by reference in the Registration Statement
and the Final Prospectus will comply in all material respects, as amended at
the time the Registration Statement becomes effective, with the Exchange Act.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company listed in Schedule III hereto (each, a
"Principal Subsidiary") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and delivered by the
Company.
(g) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) The Securities have been duly authorized and, when the Securities are
issued and delivered pursuant to this Agreement with respect to such
Securities, such Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture.
(i) The issuance and sale of the Securities and compliance by the Company
with all of the provisions of the Securities, the Indenture and this Agreement
will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument for borrowed money to
which the Company or any Principal Subsidiary is a party or by which the
Company or any of its Principal Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Principal Subsidiaries is
subject, nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any of its Principal
Subsidiaries or any statute or any order, rule or regulation of any court or
insurance regulatory authority or other governmental agency or body having
jurisdiction over the Company or any of its Principal Subsidiaries or any of
their properties, in each case other than such breaches, conflicts, violations
or defaults which, individually or in the aggregate, would not have
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a material adverse effect on the Company and its subsidiaries considered as a
whole, and no authorization, approval, order, consent, registration or
qualification of or with any such court or insurance regulatory authority or
other governmental agency or body is required for the issue or sale of the
Securities, except (i) the registration under the Act of the Securities; and
(ii) such authorizations, approvals, orders, consents, registrations or
qualifications as may be required under the Trust Indenture Act or state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, in each case other than
such authorizations, approvals, orders, consents, registrations or
qualifications which (individually or in the aggregate) the failure to make,
obtain or comply with would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(j) Except as described in or contemplated by the Registration Statement
and the Final Prospectus, there has not been any material adverse change in, or
any adverse development which materially affects, the business, properties,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole from the dates as of which information is given
in the Registration Statement and the Final Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Final Prospectus, there has not been any material increase in the
consolidated capital stock (other than issuances of capital stock upon exercise
of options and stock appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet incorporated by reference
in the Final Prospectus) or any material increase in the consolidated long-term
debt of the Company and its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Final Prospectus.
(k) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
2. Terms of Sale. The Company hereby agrees to sell to the several
Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agree, severally and not jointly, to purchase from the Company the respective
principal amounts of each of the 2018 Debentures and 2038 Debentures set forth
in Schedule I hereto opposite their names at 99.096% and 98.684%, respectively,
of their principal amount -- the respective purchase prices -- plus accrued
interest, if any, from May 26, 1998 to the date of payment and delivery.
3. Payment and Delivery of the Securities. Payment for the Securities
shall be made by wire transfer payable to the order of the Company in
immediately available funds at the office of Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time, on May 26, 1998, or at
such other time on the same or such other date, not later than May 26, 1998, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Time of Delivery" for such Securities.
Payment for the Securities shall be made against delivery to you or a
depositary on your behalf for the respective accounts of the several
Underwriters of the Securities registered in
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such names and in such denominations as you shall request in writing not later
than two full business days prior to the date of delivery, with any transfer
taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid.
4. Company Covenants. The Company agrees with each of the Underwriters of
the Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives and to
timely file such Final Prospectus pursuant to Rule 424(b) under the Act; (ii)
to make no further amendment or any supplement to the Registration Statement or
Final Prospectus as amended or supplemented after the date hereof and prior to
the Time of Delivery for the Securities unless the Representatives shall have
had a reasonable opportunity to review and comment upon any such amendment or
supplement prior to any filing thereof; (iii) to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; (iv) to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of (I) the time when any amendment to any Registration
Statement has been filed or becomes effective or any supplement to the Final
Prospectus or any amended Final Prospectus has been filed with the Commission,
(II) the issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Final Prospectus, (III) the suspension
of the qualification of the Securities for offering or sale in any jurisdiction
or of the initiation or threatening of any proceeding for any such purpose, or
(IV) any request by the Commission for the amending or supplementing of any
Registration Statement or the Final Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of the Final Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify the Securities for offering and sale under
the securities and insurance securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Securities, provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Final Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities, and if at
such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made when such Final Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or supplement
the Final Prospectus or to file under the Exchange Act any document
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incorporated by reference in the Final Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended Final
Prospectus or a supplement to the Final Prospectus or a document incorporated
by reference in the Final Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder; and
(e) During the period beginning from the date hereof and continuing to and
including the latter of (i) the termination of trading restrictions for the
Securities, as notified to the Company by the Representatives or their counsel
and (ii) the Time of Delivery for the Securities, not to offer, sell, contract
to sell or otherwise dispose of any securities of the Company which are
substantially similar to the Securities, without the prior written consent of
the Representatives, which consent shall not be unreasonably withheld.
5. Fees and Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing this Agreement, the Indenture, any Blue Sky Survey and
any Legal Investment Memoranda in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all reasonable expenses in connection
with the qualification of the Securities for offering and sale under state
securities and insurance securities laws as provided in Section 4(b) hereof,
including the reasonable fees and disbursements of counsel for the Underwriters
in connection with such qualification and in connection with the Blue Sky and
Legal Investment surveys; (iv) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (v) any fees charged by securities rating
services for rating the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee, Paying Agent or Transfer Agent and
the fees and disbursements of counsel for any such Trustee, Paying Agent or
Transfer Agent in connection with the Indenture and the Securities; and (viii)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided in this Section. It is
understood, however, that, except as provided in this Section, Section 7,
Section 8 and Section 10 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
6. Conditions to Underwriters' Obligations. The obligations of the
Underwriters of the Securities shall be subject to the condition that all
representations and warranties of the Company herein are, at and as of the Time
of Delivery for the Securities, true and correct, the
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condition that the Company shall have performed all of its obligations
hereunder to be performed at or before such Time of Delivery, and the following
additional conditions:
(a) The Final Prospectus as amended or supplemented in relation to the
Securities shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxx, counsel for the Company, shall have furnished to you
their written opinion, dated the Time of Delivery for the Securities, in form
and substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Final Prospectus as amended and supplemented;
(ii) This Agreement has been duly authorized, executed and delivered by
the Company;
(iii) The Securities have been duly authorized, and (assuming their due
authentication by the Trustee) have been duly executed, issued and delivered
and constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture and the Securities and the Indenture
conform in all material respects to the descriptions thereof in the Final
Prospectus as amended or supplemented;
(iv) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company, and
constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(v) The Registration Statement and the Final Prospectus as amended or
supplemented and any further amendments thereto made by the Company prior to
such Time of Delivery for the Securities (in each case other than with respect
to the financial statements, financial and accounting data and related
schedules incorporated by reference or included therein or excluded therefrom,
or the exhibits to the Registration Statement including the Form T-1, as to
which such counsel need express no opinion or belief), appear on their face to
be appropriately responsive in all material respects to the requirements of the
Act and the Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder; provided that, such counsel shall not be deemed to be
passing upon and shall not be required to assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Final Prospectus;
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(vi) As such counsel, such counsel reviewed the Registration Statement and
Final Prospectus as amended or supplemented, participated in discussions with
representatives of the Underwriters and of the Company and its accountants at
which contents of the Registration Statement and Final Prospectus as amended or
supplemented and related matters were discussed; on the basis of the
information that such counsel gained in the course of the performance of their
services referred to above, although such counsel shall not be deemed to be
passing upon and shall not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Final Prospectuses and not be required to have made an
independent check or verification thereof (except as described in paragraph
(ii) hereof), on the basis of the foregoing, no facts have come to the
attention of such counsel in the course of such review which have led such
counsel to believe that, as of its effective date, the Registration Statement
or any further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and the financial and accounting
data and related schedules incorporated by reference or included therein or
excluded therefrom, or the exhibits to the Registration Statement including the
Form T-1, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of its date or the Time of Delivery, the Final Prospectus as amended
or supplemented or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial statements and
financial and accounting data and related schedules incorporated by reference
or included therein or excluded therefrom, or the exhibits to the Registration
Statement including the Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made not misleading; and
(vii) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
(c) Xxxxxx X. Xxxx, Vice President, Secretary and General Counsel of the
Company, shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to you, to the effect
that:
(i) Each of Allstate Insurance Company ("AIC") and Allstate Life Insurance
Company ("XXXX") has been duly incorporated and is validly existing as an
insurance corporation under the laws of the State of Illinois, with corporate
power and authority to own its properties and conduct its business as described
in the Final Prospectus as amended or supplemented;
(ii) All of the issued shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued, are fully paid and
nonassessable, and are owned of record directly or indirectly by the Company,
AIC or XXXX, as the case may be (such counsel being entitled to rely in respect
of the opinion in this clause (ii) upon opinions of local or in-house counsel
and in respect of matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state that he believes
that both you and he are justified in relying upon such opinions and
certificates);
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(iii) Each Principal Subsidiary is duly licensed or authorized as an
insurer or reinsurer in each other jurisdiction where it is required to be so
licensed, except where the failure to be so licensed or authorized in any such
jurisdiction does not have a material adverse effect on the financial
condition, business or properties of the Company and its subsidiaries
considered as a whole; the Company and each Principal Subsidiary have made all
required filings under applicable insurance holding company statutes, and each
is duly licensed or authorized as an insurance holding company in each
jurisdiction where it is required to be so licensed, except where the failure
to have made such filings or to be so licensed or authorized in any such
jurisdiction does not have a material adverse effect on the financial
condition, business or properties of the Company and its subsidiaries
considered as a whole; the Company and each Principal Subsidiary have all
necessary authorizations, approvals, orders, consents, registrations or
qualifications of and from all insurance regulatory authorities to conduct
their respective businesses as described in the Final Prospectus as amended or
supplemented, except where the failure to have such authorizations, approvals,
orders, consents, registrations or qualifications does not have a material
adverse effect on the financial condition, business or properties of the
Company and its subsidiaries considered as a whole; and none of the Company or
any Principal Subsidiary has received any notification from any insurance
regulatory authority to the effect that any additional authorization, approval,
order, consent, registration or qualification from such insurance regulatory
authority is needed to be obtained by any of the Company or any Principal
Subsidiary in any case where it could be reasonably expected that (x) the
Company or any Principal Subsidiary would in fact be required either to obtain
any such additional authorization, approval, order, consent, registration or
qualification or cease or otherwise limit writing certain business and (y)
obtaining such authorization, approval, order, consent, license, certificate,
permit, registration or qualification or limiting such business would have a
material adverse effect on the business, financial position or results of
operations of the Company and its subsidiaries, considered as a whole (such
counsel being entitled to rely in respect of the opinion in this clause upon
opinions of local or in-house counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided that such
counsel shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge, each Principal Subsidiary is
in compliance with the requirements of the insurance laws and regulations of
its state of incorporation and the insurance laws and regulations of other
jurisdictions which are applicable to such Principal Subsidiary, and has filed
all notices, reports, documents or other information required to be filed
thereunder, or is subject to no material liability or disability by reason of
the failure to so comply or file (such counsel being entitled to rely in
respect of this clause upon opinions of local or in-house counsel and in
respect of matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he believes that both
you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than as set forth in
the Final Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or
any of its subsidiaries, individually or in the aggregate, could reasonably be
expected to have a material adverse effect on the financial condition, business
or properties of the Company and
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its subsidiaries considered as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened;
(vi) The issuance and sale of the Securities and the performance by the
Company of its obligations under the Indenture, the Securities or this
Agreement and the consummation by the Company of the transactions contemplated
therein and herein will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument
relating to the Company or any of its subsidiaries, as such agreements or
instruments have been amended (which indentures, mortgages, deeds of trust,
loan agreements or other agreements or instruments may be specified by such
counsel on a schedule attached to his opinion); nor will any such action result
in any violation of the provisions of the Certificate or the By-Laws or any
applicable United States law or statute or any order, rule or regulation of any
United States court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties, provided, that
the foregoing opinion is limited to those statutes, laws, rules and regulations
of the United States of America, the State of Delaware and the State of
Illinois, in each case, which, in the opinion of such counsel, are normally
applicable to transactions of the type contemplated by this Agreement, and
provided further, that no opinion need be given with respect to (A) the Act,
the Exchange Act, the Trust Indenture Act, the rules and regulations issued
pursuant to each such act, any order, rule or regulation made or established by
any insurance official or regulatory authority or the National Association of
Securities Dealers, Inc., or state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters or (B)
conflicts, breaches or violations which individually and in the aggregate both
would not have a material adverse effect on the financial condition, business
or operations of the Company and its subsidiaries taken as a whole and would
not have a material adverse effect on the sale or ownership of the Securities
(such counsel being entitled to rely in respect of the opinion in this clause
(vi) upon opinions of local or in-house counsel and in respect of matters of
fact upon certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(vii) No consent, approval, authorization, order, registration or
qualification of or with any United States court or governmental agency or body
is required for the issue and sale of the Securities by the Company or the
consummation by the Company of the transactions contemplated by this Agreement,
except that such counsel need not express any opinion with respect to such
consents, approvals, authorizations, orders, registrations or qualifications
(A) as may be required under the Act, the Exchange Act, the Trust Indenture
Act, the rules and regulations issued pursuant to each such act, any order,
rule or regulation made or established by any insurance official or regulatory
authority or the National Association of Securities Dealers, Inc., or (B) as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters, (C) the
absence of which individually or in the aggregate both are not material to the
Company and its subsidiaries taken as a whole and would not have a material
adverse effect on the sale or ownership of the Securities or (D) as may be
required under foreign laws in connection with the purchase and distribution of
the Securities by any international managers; provided, that the foregoing
opinion is limited to those consents, approvals, authorizations, orders,
registrations and qualifications under laws which, in the experience of such
counsel, are normally applicable to transactions of the type contemplated by
this Agreement;
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(viii) To the best of such counsel's knowledge, the Company and its
subsidiaries, as applicable, have filed all notices, reports, documents or
other information required to be filed pursuant to, and have obtained all
authorizations, approvals, orders, consents, registrations or qualifications
required to be obtained under, and have otherwise complied with all
requirements of, all applicable insurance laws and regulations known to such
counsel to be normally applicable to the transactions contemplated by this
Agreement in connection with the issuance and sale by the Company of the
Securities and, except as have been obtained pursuant to the foregoing clause,
no filing, authorization, approval, order, consent, registration or
qualification of or with any insurance regulatory agency having jurisdiction
over the Company or any of its subsidiaries or any of their properties known to
such counsel to be normally applicable to the transactions contemplated by this
Agreement or the Indenture is required for the issue and sale of the Securities
or the consummation by the Company of the transactions contemplated by this
Agreement, except such filings, authorizations, approvals, orders, consents,
registrations or qualifications which (individually or in the aggregate) the
failure to make, obtain or comply with would not have a material adverse effect
on the financial condition, business or properties of the Company and its
subsidiaries considered as a whole;
(ix) As general counsel to the Company, such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented,
participated in various discussions with representatives of the Underwriters
and of the Company and its accountants at which contents of the Registration
Statement and Final Prospectus as amended or supplemented were discussed; on
the basis of the information that such counsel gained in the course of his
activities referred to above, such counsel confirms that the Registration
Statement, as of its effective date, and the Final Prospectus, as amended or
supplemented (in each case other than with respect to the financial statements,
financial and accounting data and related schedules therein, as to which such
counsel need express no opinion or belief), appear on their face to be
appropriately responsive in all material respects to the requirements of the
Act and the applicable rules and regulations of the Commission thereunder; and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Final Prospectus as amended or
supplemented (except as expressly set forth in such opinion), on the basis of
the foregoing, no facts have come to the attention of such counsel in the
course of such review which has caused such counsel to believe that, as of its
effective date, the Registration Statement or any further amendment thereto
made by the Company prior to such Time of Delivery (other than the financial
statements and financial and accounting data and related schedules therein and
other than information under the captions "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Preferred Stock," "Description
of Preferred Securities," "Description of Preferred Securities Guarantees" and
"Plan of Distribution" in the Basic Prospectus and under the captions
"Description of the Debentures" and "Underwriting" contained in the Final
Prospectus as amended or supplemented, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statement
therein not misleading or that, as of its date, the Final Prospectus as amended
or supplemented or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements and
financial and accounting data and related schedules therein and other than
information under the captions "Description of Debt Securities," "Description
of Debt Warrants," "Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and "Plan of
Distribution"
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in the Basic Prospectus and under the captions "Description of the Debentures"
and "Underwriting" contained in the Final Prospectus as amended or
supplemented, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading or that, as of the Time of Delivery, either the Registration
Statement or the Final Prospectus as amended or supplemented or any further
amendment or supplement (when considered together with the document to which
such supplement relates) thereto made by the Company prior to such Time of
Delivery (other than the financial statements and financial and accounting data
and related schedules therein and other than information under the captions
"Description of Debt Securities," "Description of Debt Warrants," "Description
of Preferred Stock," "Description of Preferred Securities," "Description of
Preferred Securities Guarantees" and "Plan of Distribution" in the Basic
Prospectus and under the captions "Description of the Debentures" and
"Underwriting" contained in the Final Prospectus as amended or supplemented, as
to which such counsel need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and he does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Final Prospectus as amended
or supplemented or required to be described in the Registration Statement or
the Final Prospectus as amended or supplemented which are not filed or
described as required, in each case, other than with respect to the information
under the captions "Description of Debt Securities," "Description of Debt
Warrants," "Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and "Plan of
Distribution" in the Basic Prospectus and under the captions "Description of
the Debentures" and "Underwriting" contained in the Final Prospectus as amended
or supplemented; and
(x) On the basis of the information that such counsel gained in the course
of the review referred to in paragraph (ix) above (but without passing upon or
assuming any responsibility for the accuracy, completeness or fairness of the
statements contained in the documents described below), such counsel confirms
that no facts have come to the attention of such counsel in the course of such
review which have caused such counsel to believe that the documents
incorporated by reference in the Final Prospectus as amended or supplemented
(other than the financial statements and financial and accounting data and
related schedules therein or excluded therefrom, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, did not comply as to form in all material
respects with the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and he has no
reason to believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or, in the case of
other documents that were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made not misleading.
(d) XxXxxxx, Xxxx, Xxxxxx & XxxXxx, L.L.P., special counsel to the
Underwriters, shall have furnished to you their written opinion, dated the Time
of Delivery, in form
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and substance reasonably satisfactory to you, covering the matters referred to
in subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of paragraph (b) above.
(e) On the date hereof and the Time of Delivery of the Securities,
Deloitte & Touche shall have furnished to the Representatives a letter, dated
the effective date of the Registration Statement or, if more recently filed,
the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement if the
date of such report is later than such effective date, and a letter dated such
Time of Delivery, respectively, to the effect set forth in Schedule II hereto,
and with respect to such letter dated such Time of Delivery, in form and
substance satisfactory to the Representatives.
(f) Since the respective dates as of which information is given in the
Final Prospectus as amended or supplemented prior to the date hereof until such
Time of Delivery, there shall not have been any material increase in the
consolidated capital stock (other than issuances of capital stock upon exercise
of options and stock appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or incorporated by
reference in the Final Prospectus) or any material increase in the consolidated
long-term debt of the Company and its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Final Prospectus as amended or
supplemented prior to the date hereof, the effect of which, in any such case is
in the judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Final Prospectus as amended or supplemented prior to the date hereof.
(g) On or after the date hereof, (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or financial strength or
claims paying ability by any of Xxxxx'x Investor Services, Inc., Standard &
Poor's Corporation or A.M. Best & Co. and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
financial strength or claims paying ability, the effect of which, in any such
case described in clause (i) or (ii), is in your judgment (after consultation
with the Company) so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Final Prospectus
as amended or supplemented prior to the date hereof;
(h) On or after the date hereof, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or New
York State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated by the Final Prospectus
as amended or supplemented prior to the date hereof; and
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(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery certificates of officers of the Company
reasonably satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of the Time of
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Time of Delivery, as to the
matters set forth in subsections (a) and (f) of this Section and as to such
other matters as the Representatives may reasonably request.
7. (a) Indemnification and Contribution. The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Final Prospectus, the Registration Statement, the Final
Prospectus, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement (when
considered together with the document to which such supplement relates)
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Final Prospectus, the
Registration Statement, the Final Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Final Prospectus as amended or supplemented relating
to the Securities and, provided, further, that the Company shall not be liable
to any Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Final Prospectus, the Final Prospectus or the Final
Prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such Underwriter results from the
fact such Underwriter sold the Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Final Prospectus or of the Final Prospectus as then amended or
supplemented, whichever is most recent, in any case where such delivery is
required by the Act if the Company had previously furnished copies thereof to
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in
the Preliminary Final Prospectus which was corrected in the Final Prospectus
(or the Final Prospectus as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Final Prospectus, the Registration Statement, the Final
Prospectus, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement (when
considered together with the document to which such supplement relates)
thereto, or arise out of or are based upon the omission or
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alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary Final
Prospectus, the Registration Statement, the Final Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly, with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party and who may act in respect of actions involving more than
one indemnified party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
Notwithstanding anything to the contrary in this Section 7, an indemnifying
party shall only be liable for the legal fees and expenses of one national
counsel and appropriate local counsel for the indemnified parties with respect
to any proceeding or related proceedings and in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Xxxxxxx, Xxxxx & Co.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative
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fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable consideration. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters, in each case as set
forth in the table on the cover page of the Final Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. With respect to any Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any Preliminary Final Prospectus result from the fact
that such Underwriter sold the Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Final Prospectus or of the Final Prospectus as then amended or
supplemented, if the Company had previously furnished copies thereof to such
Underwriter. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to the Securities and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend
upon the same terms and conditions, to each person, if any, who controls any
Underwriters within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including
any person who, with his consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default; Termination. If, at the Time of Delivery, any one or more of
the Underwriters shall fail or refuse to purchase Securities that it or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting
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Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I bears to the principal amount of Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Underwriter has agreed to purchase pursuant to Section 2 be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If, at
the Time of Delivery any Underwriter or Underwriters shall fail or refuse to
purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Time of
Delivery but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Final Prospectus or in
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
9. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter, or the Company or any officer or director or
controlling person of the Company and shall survive delivery of and payment for
the Securities.
10. Effect of Termination of this Agreement or Nondelivery of Securities.
If this Agreement shall be terminated pursuant to Section 8 hereof, the Company
shall not be under any liability to any Underwriter with respect to the
Securities except as provided in Section 5 and Section 7 hereof; but, if for
any other reason, Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Securities, but the Company shall then be under no further
liability to any Underwriter in respect of such Securities except as provided
in Section 5 and Section 7 hereof.
11. Reliance Upon Representatives. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters and the parties hereto
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such of the
Representatives, if any, as may be designated for such purpose by Xxxxxxx,
Xxxxx & Co.
12. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile
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transmission to such Underwriters in the care of Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if to the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 7(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
13. Successors and Assigns. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company, and, to the
extent provided in Sections 7 and 9 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. "Business Day." As used herein, the term "business day" shall mean any
day when the Commission's office in Washington, D.C. is open for business.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: ________________________
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
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XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
SBC WARBURG DILLON READ INC.
As Representatives of the Several Underwriters
By XXXXXXX XXXXX & CO.
By: ______________________________
(Xxxxxxx, Xxxxx & Co.)
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SCHEDULE 1
UNDERWRITER PRINCIPAL AMOUNT PRINCIPAL AMOUNT
----------- OF 2018 DEBENTURES OF 2038 DEBENTURES
TO BE PURCHASED TO BE PURCHASED
------------------ ------------------
Xxxxxxx, Xxxxx & Co. $ 80,000,000 $ 80,000,000
Credit Suisse First Boston Corporation 40,000,000 40,000,000
Chase Securities Inc. 32,500,000 32,500,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 32,500,000 32,500,000
Xxxxxx Xxxxxxx & Co. Incorporated 32,500,000 32,500,000
SBC Warburg Dillon Read Inc. 32,500,000 32,500,000
Total....................................... $250,000,000 $250,000,000
21
SCHEDULE II
Pursuant to Section 6(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that: (i) They are
independent certified public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published rules
and regulations thereunder; (ii) In their opinion, the financial statements,
certain summary and selected consolidated financial and operating data, and any
supplementary financial information and schedules (and, if applicable, pro forma
financial information) audited by them and included or incorporated by reference
in the Final Prospectus as amended or supplemented or the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public Accountants
of the unaudited consolidated interim financial statements, and any
supplementary financial information and schedules, selected financial data, pro
forma financial information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of the Company
for the periods specified in such letter, and, as indicated in their report
thereon, copies of which have been furnished to the representatives of the
Underwriters (the "Representatives"); (iii) On the basis of limited procedures,
not constituting an audit in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the Final
Prospectus as amended or supplemented, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows and certain summary
and selected consolidated financial and operating data included or incorporated
by reference in the Final Prospectus as amended or supplemented do not comply
as to form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations thereunder;
(B) any other unaudited income statement data and balance sheet items
included or incorporated by reference in the Final Prospectus as amended or
supplemented do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived,
and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the Final Prospectus as amended or supplemented;
(C) the unaudited financial statements which were not included or
incorporated by reference in the Final Prospectus as amended or supplemented but
from which were derived any unaudited condensed financial statements
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referred to in Clause (A) and any unaudited income statement data and balance
sheet items included or incorporated by reference in the Final Prospectus as
amended or supplemented and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited consolidated
financial statements included or incorporated by reference in the Final
Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Final Prospectus as amended or
supplemented do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements.
(E) as of a specified date not more than five business days prior to the
date of such letter, there have been any changes in the consolidated capital
stock or any increase in the consolidated borrowings or consolidated reserve
for property- liability insurance claims and claims expense or consolidated
reserve for life insurance policy benefits, or asset reserves of the Company and
its subsidiaries, or any decreases in consolidated fixed income securities
available for sale, consolidated equity securities, consolidated investments or
shareholder equity, or any decrease in AIC's or XXXX'x statutory capital and
surplus, or other items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included or incorporated
by reference in the Final Prospectus as amended or supplemented, except in each
case for changes, increases or decreases which the Final Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Final Prospectus as amended or
supplemented to the specified date referred to in Clause (E) there were any
decreases in consolidated premiums earned, consolidated net investment income,
or other items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for decreases or increases
which the Final Prospectus discloses have occurred or may occur or which are
described in such letter; and (iv) In addition to the examination referred to in
their report(s) included or incorporated by reference in the Final Prospectus as
amended or supplemented and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (ii) and (iii) above,
they have carried out certain procedures as specified in their letter, not
constituting an audit in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information specified
by the Representatives, which are derived from the general accounting records of
the Company and its subsidiaries, which appear or are incorporated by reference
in the Final Prospectus as amended or supplemented or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such specified amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
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SCHEDULE III
PRINCIPAL SUBSIDIARIES JURISDICTION OF INCORPORATION
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
